B-215494, SEPT 4, 1984

B-215494, SEPT 4, 1984

PRECIS UNAVAILABLE

THE HONORABLE SLADE GORTON UNITED STATES SENATOR 770 U.S. COURT HOUSE W. 920 RIVERSIDE AVENUE SPOKANE, WASHINGTON 99201

DEAR SENATOR GORTON:

THIS IS IN FURTHER REFERENCE TO YOUR MAY 29, 1984 REQUEST FOR OUR COMMENTS REGARDING THE INQUIRY OF YOUR CONSTITUENT, MR. DAVID EDGMON.

MR. EDGMON STATES THAT IN 1949, AT THE AGE OF 8 YEARS, HE WAS ACCIDENTALLY INJURED BY AN EXPLOSIVE THAT HAD BEEN LEFT IN A FIELD FOLLOWING MILITARY MANEUVERS AT FORT ORD, CALIFORNIA. THE EXPLOSION RESULTED IN HIS LOSS OF BOTH LEGS. HE INDICATES THAT ALTHOUGH HIS PARENTS PREVAILED IN A LEGAL ACTION AGAINST THE GOVERNMENT IN THE MATTER, BY THE TIME HE REACHED ADULTHOOD THE PROCEEDS AWARDED AS A RESULT OF THAT ACTION HAD BEEN EXHAUSTED BY HIS MEDICAL EXPENSES, PROSTHESES, AND OTHER MEDICAL SUPPLIES AND EQUIPMENT NECESSITATED BY HIS INJURY.

MR. EDGMON STATES FURTHER THAT HE IS PRESENTLY EXPERIENCING EXTREME FINANCIAL HARDSHIP, SINCE THE SOCIAL WELFARE AND SOCIAL SECURITY BENEFITS WHICH HE PREVIOUSLY RECEIVED HAVE BEEN DISCONTINUED. HE HAS, THEREFORE, INQUIRED AS TO THE AVAILABILITY OF A GOVERNMENT "PENSION" FOR INDIVIDUALS WHO HAVE BEEN INJURED ON GOVERNMENT PROPERTY. IN ADDITION, YOU HAVE REQUESTED OUR COMMENTS IN REGARD TO WHETHER HIS CASE WOULD QUALIFY AS A MERITORIOUS CLAIM PRESUMABLY FOR ENACTMENT OF PRIVATE RELIEF LEGISLATION.

THE MILITARY CLAIMS ACT, CURRENTLY CODIFIED AT 10 U.S.C. SECS. 2731 2737 (1982), AUTHORIZES THE SECRETARY OR THE JUDGE ADVOCATE GENERAL OF THE CONCERNED MILITARY DEPARTMENT, IF DESIGNATED BY THE SECRETARY, TO SETTLE CLAIMS AGAINST THE UNITED STATES FOR PERSONAL INJURIES RESULTING FROM NONCOMBAT ACTIVITIES OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD, BUT NOT INCIDENT TO THE SERVICE OF MILITARY MEMBERS, OR CIVILIAN OFFICERS OR EMPLOYEES. 10 U.S.C. SEC. 2733. A CAUSE OF ACTION FOR DAMAGES RESULTING FROM PERSONAL INJURY COULD ALSO HAVE BEEN PURSUED UNDER THE FEDERAL TORT CLAIMS ACT (CURRENTLY 28 U.S.C. SEC. 1346(B), AND 28 U.S.C. SEC. 2671, ET SEQ. (1982)).

UNDER BOTH THE MILITARY CLAIMS ACT AND THE FEDERAL TORT CLAIMS ACT THE CLAIM MUST BE FILED WITH THE APPROPRIATE AGENCY (IN MR. EDGMON'S CASE, THE ARMY) WITHIN 2 YEARS OF THE TIME IT ARISES. 10 U.S.C. SEC. 2733(B)(1) AND 28 U.S.C. SEC. 2401(B). MOREOVER, A JUDGMENT UNDER THE FEDERAL TORT CLAIMS ACT PRECLUDES ACCEPTANCE OF A SETTLEMENT ON ACCOUNT OF THE SAME SUBJECT MATTER UNDER THE MILITARY CLAIMS ACT, AND ACCEPTANCE OF A SETTLEMENT UNDER THE MILITARY CLAIMS ACT BARS ANY ACTION UNDER THE FEDERAL TORT CLAIMS ACT. SEE 28 U.S.C. SECS. 2672 AND 2679(A), AND 10 U.S.C. SECS. 2733B(2) AND 2733(E).

THE STATUTORY BASIS OF THE LEGAL ACTION TAKEN BY MR. EDGMON'S PARENTS IN RESPECT OF HIS ACCIDENT AND RESULTING INJURIES IS NOT CLEAR FROM THE CONTENTS OF HIS LETTER, BUT PRESUMABLY IT WAS THE FEDERAL TORT CLAIMS ACT. BUT, WHETHER THAT ACTION WAS BASED UPON THE FEDERAL TORT CLAIMS ACT OR THE MILITARY CLAIMS ACT, IT APPEARS THAT NO FURTHER REMEDY IS AVAILABLE TO HIM UNDER EITHER OF THESE STATUTES SINCE A SETTLEMENT UNDER EITHER STATUTE CONSTITUTES FULL SATISFACTION FOR OR COMPLETE RELEASE OF THE CLAIM. 10 U.S.C. SEC. 2733(E) AND 28 U.S.C. SEC. 2672.

CLAIMS AGAINST THE UNITED STATES ARE COGNIZABLE BY THE COMPTROLLER GENERAL EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED BY LAW. 31 U.S.C. SEC. 3702(A) (1982). HOWEVER, CLAIMS FOR PERSONAL INJURIES SUCH AS MR. EDGMON SUFFERED COME WITHIN THE PURVIEW OF THE MILITARY CLAIMS ACT OR THE TORT CLAIMS ACT. THE HEAD OF THE FEDERAL AGENCY OR DEPARTMENT CONCERNED IS SPECIFICALLY AUTHORIZED BY STATUTE TO SETTLE ADMINISTRATIVELY CLAIMS BROUGHT UNDER THESE ACTS AND THOSE SETTLEMENTS ARE FINAL AND CONCLUSIVE. 28 U.S.C. SEC. 2672; 10 U.S.C. SEC. 2735. THEREFORE, CONSIDERATION OF THE MERITS OF SUCH A CLAIM OR REVIEW OF SETTLEMENTS UNDER EITHER OF THESE PROVISIONS IS NOT WITHIN OUR JURISDICTION. SEE 41 COMP.GEN. 235, 238 (1961); AND SUZANNE C. CRAMOND, B-209615, MARCH 28, 1983.

IN HIS LETTER MR. EDGMON ALSO INQUIRES ABOUT POTENTIAL RELIEF IN TERMS OF A "PENSION." A CLAIM FOR CONTINUING SUPPORT PAYMENTS IN MR. EDGMON'S CIRCUMSTANCES WOULD APPEAR TO BE A WELFARE OR SOCIAL SECURITY CLAIM, WHICH IS WITHIN THE JURISDICTION OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES. (42 U.S.C., CHAPTER 7). WE HAVE NO JURISDICTION OVER SUCH CLAIMS. SEE 42 U.S.C. SECS. 405(H) AND 1383(C). HOWEVER, THAT DEPARTMENT HAS PROCEDURES FOR APPEAL AND REVIEW OF ADVERSE DETERMINATIONS ON CLAIMS AND, IF HE HAS NOT DONE SO, MR. EDGMON MAY WISH TO PURSUE THOSE AVENUES FOR APPEAL OF HIS CLAIMS.

AS TO WHETHER MR. EDGMON'S CASE WOULD QUALIFY FOR US TO RECOMMEND IT TO CONGRESS FOR ENACTMENT OF RELIEF LEGISLATION, WE HAVE AUTHORITY UNDER THE MERITORIOUS CLAIMS ACT, 31 U.S.C. SEC. 3702(D), TO REPORT CERTAIN CLAIMS TO CONGRESS FOR CONSIDERATION. THE ACT PROVIDES THAT WHEN A CLAIM IS TIMELY FILED IN THE GENERAL ACCOUNTING OFFICE THAT MAY NOT BE LAWFULLY ADJUSTED BY USE OF AN EXISTING APPROPRIATION, BUT IN THE COMPTROLLER GENERAL'S JUDGMENT THE CLAIM CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF CONGRESS, THE CLAIM SHALL BE SUBMITTED TO THE CONGRESS WITH THE RECOMMENDATION OF THIS OFFICE.

WE HAVE CONSISTENTLY CONSTRUED THE ACT AS APPLYING ONLY TO CLAIMS OF THE TYPES WHICH FALL WITHIN OUR SETTLEMENT AUTHORITY, BUT WHICH MAY NOT BE ADJUSTED AND SETTLED REGARDLESS OF THE EQUITIES INVOLVED, BECAUSE AGENCY APPROPRIATIONS ARE NOT AVAILABLE TO PAY A CLAIM FOR WHICH THE UNITED STATES IS NOT LEGALLY LIABLE. SEE 34 COMP.GEN. 490 (1955); SUZANNE C. CRAMOND, SUPRA.

SINCE, AS INDICATED ABOVE, A CLAIM BY MR. EDGMON IN RESPECT OF THE INJURIES HE SUSTAINED IN THE 1949 ACCIDENT OR FOR RELIEF IN HIS PRESENT CIRCUMSTANCES WOULD NOT BE WITHIN THE SETTLEMENT AUTHORITY OF OUR OFFICE, IT WOULD NOT BE APPROPRIATE FOR US TO CONSIDER THE MATTER FOR SUBMISSION TO THE CONGRESS AS A MERITORIOUS CLAIM UNDER THE PROVISIONS OF 31 U.S.C. SEC. 3702(D).

WE TRUST THAT THIS INFORMATION WILL BE OF ASSISTANCE TO YOU IN RESPONDING TO YOUR CONSTITUENT.