B-65754, MAY 22, 1947, 26 COMP. GEN. 891

B-65754, MAY 22, 1947, 26 COMP. GEN. 891

FEDERAL TORT CLAIMS ACT - APPLICABILITY TO AGENCIES IN OTHER THAN EXECUTIVE BRANCH OF GOVERNMENT THE DEFINITION OF THE TERM " FEDERAL AGENCY" BY SECTION 402 (A) OF THE FEDERAL TORT CLAIMS ACT AS INCLUDING "THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS" OF THE GOVERNMENT IS NOT TO BE REGARDED AS EXCLUDING ANY AGENCY (EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED) FROM THE OPERATION OF SAID ACT, SO THAT THE AUTHORITY PROVIDED THEREBY FOR THE ADMINISTRATIVE SETTLEMENT OF PROPERTY DAMAGE, PERSONAL INJURY OR DEATH CLAIMS IS APPLICABLE TO THE LIBRARY OF CONGRESS, WHICH IS A LEGISLATIVE ESTABLISHMENT.

COMPTROLLER GENERAL WARREN TO THE LIBRARIAN OF CONGRESS, MAY 22, 1947:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 21, 1947, AS FOLLOWS:

A QUESTION HAS ARISEN REGARDING THE APPLICABILITY TO THE LIBRARY OF CONGRESS OF THE FEDERAL TORT CLAIMS ACT ( TITLE IV, LEGISLATIVE REORGANIZATION ACT OF 1946, PUBLIC LAW 601, 79TH CONGRESS).

PART 2 OF THE ACT CONFERS "UPON THE HEAD OF EACH FEDERAL AGENCY" AUTHORITY "TO ASCERTAIN, ADJUST AND SETTLE ANY CLAIM * * * WHEN THE TOTAL AMOUNT OF THE CLAIM DOES NOT EXCEED $1,000 * * " PART 1, SECTION 402 OF THE ACT STATES THAT THE TERM " FEDERAL AGENCY INCLUDES THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OF THE UNITED STATES" BUT MAKES NO REFERENCE TO LEGISLATIVE AGENCIES. SINCE IT HAS BEEN REPEATEDLY HELD BY THE COMPTROLLER OF THE TREASURY AND THE COMPTROLLER GENERAL (4 COMPT. TREAS. 125, 14 COMPT. TREAS. 674, 21 COMPT. TREAS. 66, 21 C.G. 987) THAT THE LIBRARY OF CONGRESS DOES NOT FALL WITHIN EITHER OF THESE CATEGORIES BUT IS A LEGISLATIVE ESTABLISHMENT, IT WOULD APPEAR THAT THE LIBRARY OF CONGRESS IS NOT SUBJECT TO THE PROVISIONS OF PART 2, TITLE IV OF THE TORT CLAIMS ACT.

A DECISION AS TO THE VALIDITY OF OUR INTERPRETATION IS REQUESTED.

THE FEDERAL TORT CLAIMS ACT, 60 STAT. 842, BY SECTION 403 (A), 60 STAT. 843, CONFERS UPON THE HEAD OF EACH FEDERAL AGENCY, OR HIS DESIGNEE FOR THE PURPOSE, ACTING ON BEHALF OF THE UNITED STATES, AUTHORITY TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND SETTLE (WHERE THE TOTAL AMOUNT OF THE CLAIM DOES NOT EXCEED $1,000), AND, BY SECTION 410 (A), 60 STAT. 843, UPON THE UNITED STATES DISTRICT COURT FOR THE WHEREIN THE PLAINTIFF IS RESIDENT OR WHEREIN THE ACT OF OMISSION COMPLAINED OF OCCURRED, INCLUDING THE UNITED STATES DISTRICT COURTS FOR THE TERRITORIES AND POSSESSIONS OF THE UNITED STATES, SITTING WITHOUT A JURY, EXCLUSIVE JURISDICTION TO HEAR, DETERMINE, AND RENDER JUDGMENT ON --

* * * ANY CLAIM AGAINST THE UNITED STATES, FOR MONEY ONLY, ACCRUING ON AND AFTER JANUARY 1, 1945, ON ACCOUNT OF DAMAGE TO OR LOSS OF PROPERTY OR ON ACCOUNT OF PERSONAL INJURY OR DEATH * * * CAUSED BY THE NEGLIGENT OR WRONGFUL ACT OR OMISSION OF ANY EMPLOYEE OF THE GOVERNMENT WHILE ACTING WITHIN THE SCOPE OF HIS OFFICE OR EMPLOYMENT, UNDER CIRCUMSTANCES WHERE THE UNITED STATES, IF A PRIVATE PERSON, WOULD BE LIABLE TO THE CLAIMANT FOR SUCH DAMAGE, LOSS, INJURY, OR DEATH IN ACCORDANCE WITH THE LAW OF THE PLACE WHERE THE ACT OR OMISSION OCCURRED.

WITH RESPECT TO THE TERM " FEDERAL AGENCY" AND "EMPLOYEE OF THE GOVERNMENT" SECTION 402, 60 STAT. 842, 843, PROVIDES AS FOLLOWS:

(A) " FEDERAL AGENCY" INCLUDES THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OF THE UNITED STATES, AND CORPORATIONS WHOSE PRIMARY FUNCTION IS TO ACT AS, AND WHILE ACTING AS, INSTRUMENTALITIES OR AGENCIES OF THE UNITED STATES, WHETHER OR NOT AUTHORIZED TO SUE OR BE SUED IN THEIR OWN NAMES: PROVIDED, THAT THIS SHALL NOT BE CONSTRUED TO INCLUDE ANY CONTRACTOR WITH THE UNITED STATES.

(B) " EMPLOYEE OF THE GOVERNMENT" INCLUDES OFFICERS OR EMPLOYEES OF ANY FEDERAL AGENCY, MEMBERS OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES, AND PERSONS ACTING ON BEHALF OF A FEDERAL AGENCY IN AN OFFICIAL CAPACITY, TEMPORARILY OR PERMANENTLY IN THE SERVICE THE UNITED STATES, WHETHER WITH OR WITHOUT COMPENSATION.

WHILE ONLY THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OF THE UNITED STATES ARE MENTIONED SPECIFICALLY IN THE DEFINITION OF A FEDERAL AGENCY, AN EXAMINATION OF THE ENTIRE ACT AND ITS LEGISLATIVE HISTORY REQUIRES A CONCLUSION THAT NO AGENCIES OR EMPLOYEES ARE EXCLUDED FROM THE OPERATION OF THE ACT SAVE IN THE CASE OF THE SPECIFIC EXCEPTIONS ENUMERATED IN SECTION 421 THEREOF, 60 STAT. 845.

IN THE FIRST PLACE, HE FEDERAL TORT CLAIMS ACT WAIVES THE SOVEREIGN IMMUNITY OF THE UNITED STATES FOR THE NEGLIGENT OR TORTIOUS ACTS OF ITS EMPLOYEES GENERALLY AND PROVIDES THAT THE UNITED STATES SHALL BE LIABLE THEREFOR "TO THE SAME EXTENT AS A PRIVATE INDIVIDUAL UNDER LIKE CIRCUMSTANCES.' NOTHING IS FOUND IN THE ACT OR IN ITS LEGISLATIVE HISTORY INDICATING THAT IT WAS THE INTENT OF THE CONGRESS TO EXCLUDE THE ACTIVITIES OF ANY EMPLOYEE OF THE GOVERNMENT FROM ITS COVERAGE EXCEPT BY SPECIFIC MENTION. ON THE CONTRARY, A COMPLEMENTARY PROVISION IN SECTION 131 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, 60 SAT. 812, 831, BANS THE CORRELATIVE SYSTEM UNDER WHICH CONGRESSIONAL COMMITTEES IN THE LEGISLATIVE RELIEF IN TORT CASES AND LEAVING CLAIMANTS TO A SOLE REMEDY UNDER THE NEW ACT. HENCE, THE JURISDICTION GRANTED TO ADMINISTRATIVE AGENCIES AND TO THE COURTS TO PASS UPON TORT CLAIMS APPEARS TO BE IDENTICAL AND COEXTENSIVE, SAVE FOR THE $1,000 LIMITATION IN THE CASE OF THE FORMER, THERE BEING NO LOGICAL REASON TO DENY JURISDICTION TO ANY AGENCY OF THE GOVERNMENT.

MOREOVER, THE FEDERAL TORT CLAIMS ACT WAS ENACTED AS TITLE IV OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, SUPRA, AN ACT DEALING PRIMARILY WITH THE LEGISLATIVE BRANCH OF THE GOVERNMENT; AND SUCH FACT APPEARS SATISFACTORILY TO EXPLAIN THE STATEMENT IN SECTION 402 (A) THAT THE TERM " FEDERAL AGENCY" INCLUDES THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS.' THE OBVIOUS PURPOSE OF THE LANGUAGE EMPLOYED IS TO ENSURE, UNDER THE CIRCUMSTANCES, AN ALL-INCLUSIVE MEANING FOR THE SAID TERM, WHICH OTHERWISE MIGHT BE REGARDED AS FAILING TO INCLUDE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OF THE GOVERNMENT, AND GOVERNMENT CORPORATIONS.

FINALLY, THAT THE TERM " FEDERAL AGENCY" IS INTENDED TO INCLUDE EVERY FEDERAL AGENCY IS SHOWN CLEARLY IN THE LEGISLATIVE HISTORY. SEE PAGE 31 OF SENATE REPORT NO. 1400, 79TH CONGRESS, MADE BY THE SPECIAL COMMITTEE ON THE ORGANIZATION OF CONGRESS, EXPLAINING THE OBJECTIVES OF SECTION 402 AS FOLLOWS:

THIS SECTION DEFINES THE TERMS USED IN THE TITLE AND MAKES IT CLEAR THAT ITS PROVISIONS COVER ALL FEDERAL AGENCIES, INCLUDING GOVERNMENT CORPORATIONS, AND ALL FEDERAL OFFICERS AND EMPLOYEES, INCLUDING MEMBERS OF THE MILITARY AND NAVAL FORCES * * *.

IN THE LIGHT OF THE ABOVE, THERE CAN BE NO REASONABLE DOUBT THAT THE LIBRARY OF CONGRESS IS A FEDERAL AGENCY WITHIN THE MEANING OF THE FEDERAL TORT CLAIMS ACT.