Claims on behalf of and against U.S.: General claims; administrative processing and consideration,

[Federal Register: September 19, 2007 (Volume 72, Number 181)]

[Rules and Regulations]

[Page 53417-53421]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr19se07-4]

DEPARTMENT OF DEFENSE

Department of the Navy

32 CFR Part 750

[USN-2006-0038]

RIN 0703-AA78

General Claims Regulations

AGENCY: Department of the Navy, DoD.

ACTION: Interim Final Rule.

SUMMARY: This rule reflects administrative changes to the regulations concerning the administrative processing and consideration of claims on behalf of and against the United States. The revisions will ensure the proper administrative processing and consideration of claims on behalf of and against the United States. This rule is being published by the Department of the Navy for guidance and interest of the public in accordance with 5 U.S.C. 552(a)(1).

DATES: This rule is effective September 19, 2007. Comments must be received by November 19, 2007.

ADDRESSES: You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) and title, by any of the following methods: Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.

Mail: Federal Docket Management System Office, 1160 Defense Pentagon, Washington, DC 20301-1160.

Instructions: All submissions received must include the agency name and docket number or RIN for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://regulations.gov as they are received without change,

including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Mr. Dan Fields, Head, Tort Claims Branch, Claims and Tort Litigation Division (Code 15), Office of the Judge Advocate General, 1322 Patterson Avenue, SE., Washington Navy Yard, DC 20374, telephone 202-685-4600.

SUPPLEMENTARY INFORMATION: Executive Order 12866, ``Regulatory Planning and Review.'' It has been determined that the changes to 32 CFR part 750 are not considered a ``significant regulatory action.'' The rule does not:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector in the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of the recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4). It has been certified that 32 CFR part 750 does not contain Federal Mandates that result in expenditures by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601). It has been determined that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule implements the processing of the proper administrative processing and consideration of claims on behalf of and against the United States, and does not economically impact the Federal government's relations with the private sector.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35). This rule does not impose collection of information requirements for purposes of the Paperwork Reduction Act (44 U.S.C. Chapter 35, 5 CFR part 1320).

Executive Order 13132, ``Federalism''. It has been certified that 32 CFR part 750 does not have federalism implications as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

(1) The States;

(2) The relationship between the National Government and the States; or

(3) The distribution of power and responsibilities among the various levels of Government.

List of Subjects in 32 CFR Part 750 Claims

0 Accordingly, 32 CFR part 750 is amended to read as follows:

PART 750--GENERAL CLAIMS REGULATIONS

0 1. The authority citation for part 750 is revised to read as follows:

Authority: 5 U.S.C. 301, 5 U.S.C. 552, 10 U.S.C. 5013, and 5148.

Subpart A--General Provisions for Claims

0 2. Section 750.1 is amended by revising paragraph (a)(1), the first two sentences of paragraph (a)(2), and paragraph (a)(3), and by adding footnote 1 to read as follows:

Sec. 750.1 Scope of subpart A.

(a) General. (1) The Judge Advocate General is responsible for the administration and supervision of the resolution of claims arising under the Federal Tort Claims Act (subpart B of this part), the Military Claims Act (subpart C of this chapter), the Nonscope Claims Act (subpart D of this part), the Personnel Claims Act (part 751 of this chapter), the Foreign Claims Act, the International Agreements Claims Act pertaining to cost sharing of claims pursuant to international agreements, the Federal Claims Collection Act (subpart A of part 757 of this chapter), the Medical Care Recovery Act and Health Care Services Incurred on Behalf of Covered Beneficiaries: Collection from Third-party Payers (subpart B of part 757 of this chapter), and postal claims.

(2) The Deputy Assistant Judge Advocate General (Claims and Tort Litigation) (Code 15) is the manager of the Navy claims system established to evaluate, adjudicate, and provide litigation support for claims arising under the acts listed above and is responsible to the Judge Advocate General for the management of that

[[Page 53418]]

system. The claims system consists of the Claims and Tort Litigation Division of the Office of the Judge Advocate General (Code 15), and the attorneys and support personnel assigned to the Tort Claims Unit at Naval Station, Norfolk, Virginia. * * *

(3) Commanding officers of commands receiving claims are responsible for complying with the guidance on investigations in Sec. 750.2 and Sec. 750.3, the guidance on handling and forwarding claims found in Sec. 750.5, and the guidance provided in the JAG Instruction 5800.7E (JAGMAN) \1\ of 20 June 2007.

\1\ JAG Instruction 5800.7E (JAGMAN) may be retrieved at the official Web site of the United States Navy Judge Advocate General's Corps at http://www.jag.navy.mil.

* * * * *

0 3. Section 750.2 is amended by revising paragraphs (c) and (f) to read as follows:

Sec. 750.2 Investigations: In general.

* * * * *

(c) Recovery barred. Even when recovery must be barred by statute or case law, all deaths, serious injuries, and substantial losses to property that are likely to give rise to claims must be investigated while the evidence is available. Claims against persons in the naval service arising from the performance of their official duties shall be investigated as though they were claims against the United States. When an incident involves an actual or potential claim against the United States for property damage only and the total amount likely to be paid does not exceed $5,000.00, an abbreviated investigative report may be submitted. Where this monetary figure may be exceeded, but the circumstances indicate an abbreviated report may be adequate to preserve the facts and protect the Government's claims interests, approval to submit a limited investigative report may be sought from the Office of the Judge Advocate General (Claims and Tort Litigation Division) (Code 15), the Tort Claims Unit Norfolk, or the nearest Naval Legal Service Command activity. * * * * *

(f) Advance copy. An advance copy of an investigation conducted because a claim has been, or is likely to be, submitted shall be forwarded to the Tort Claims Unit Norfolk.

0 4. Section 750.3 is amended by revising paragraphs (b)(6), (d) introductory text, (j)(1), and (j)(3) to read as follows:

Sec. 750.3 Investigations: The report.

* * * * *

(b) * * *

(6) To furnish claim forms to any person expressing an interest in filing a claim and to refer such personnel to the Office of the Judge Advocate General, Tort Claims Unit Norfolk, 9620 Maryland Avenue, Suite 100, Norfolk, Virginia 23511-2989. * * * * *

(d) Immediate report of certain events. The Navy or Marine Corps activity most directly involved in the incident shall notify the Judge Advocate General immediately by message, electronic mail, or telephone in any of the following circumstances: * * * * *

(j) * * *

(1) The command initiating the investigation in accordance with Sec. 750.3 or Sec. 750.5 shall review the report of investigation. If additional investigation is required or omissions or other deficiencies are noted, the investigation should be promptly returned with an endorsement indicating that a supplemental investigative report will be submitted. If the original or supplemental report is in order, it shall be forwarded by endorsement, with any pertinent comments and recommendations. An advance copy of the investigation shall be forwarded to the Tort Claims Unit Norfolk. * * * * *

(3) It is essential that each investigative report reflect that a good faith effort was made to comply with the Privacy Act of 1974 (5 U.S.C. 552a) as implemented by 32 CFR 701, subpart F. Any indication of noncompliance shall be explained either in the preliminary statement of the forwarding endorsements and, when required, corrected.

0 5. Section 750.4 is amended by revising paragraph (c) to read as follows:

Sec. 750.4 Claims: In general.

* * * * *

(c) Assistance to claimants. Claimants or potential claimants who inquire about their rights or the procedures to be followed in the resolution of their claims should be referred to the Tort Claims Unit Norfolk. The Tort Claims Unit Norfolk will provide claims forms, advise where the forms should be filed, and inform the requester of the type of substantiating information required. Claims officers may provide advice on the claims process but shall not provide advice or opinions about the merits or the wisdom of filing a particular claim. While claims officers have a responsibility to provide general information about claims, they must consider 18 U.S.C. 205, which makes it a crime for an officer or employee of the United States to act as an agent or an attorney in the prosecution of any claim against the United States.

0 6. Section 750.5 is amended by revising paragraph (c) to read as follows:

Sec. 750.5 Claims: Proper claimants.

* * * * *

(c) Subrogation. A subrogor and a subrogee may file claims jointly or separately. When separate claims are filed and each claim individually is within the Tort Claims Unit Norfolk's adjudicating authority limits, they may be processed by the Tort Claims Unit, even if the aggregate of such claims exceeds the Tort Claims Unit's monetary authority. However, if the aggregate of the claims exceeds the sum for which approval of the Department of Justice (DoJ) is required, currently $200,000.00 under the Federal Tort Claims Act, then the Tort Claims Unit Norfolk must obtain DoJ approval via the Office of the Judge Advocate General, Claims and Tort Litigation Division, before the claims may be settled. * * * * *

0 7. Section 750.6 is revised to read as follows:

Sec. 750.6 Claims: Presentment.

(a) Written demand and Standard Form 95. A claim shall be submitted by presenting a written statement with the amount of the claim expressed in a sum certain, and, as far as possible, describing the detailed facts and circumstances surrounding the incident from which the claim arose. The Claim for Damage or Injury, Standard Form 95, shall be used whenever practical for claims under the Federal Tort and Military Claims Acts. Claims under the Personnel Claims Act shall be submitted on DD Form 1842.\2\ The claim and all other papers requiring the signature of the claimant shall be signed by the claimant personally or by a duly authorized agent. If signed by an agent or legal representative, the claim shall indicate the title or capacity of the person signing and be accompanied by evidence of appointment. When more than one person has a claim arising from the same incident, each person shall file a claim separately.

\2\ The Claim for Damage or Injury, Standard Form 95 and the DD Form 1842 are available at the Web site of the United States Navy Judge Advocate General's Corps at http://www.jag.navy.mil.

(b) To whom submitted. Claims under the Federal Tort and Military Claims Acts should be submitted to the Tort Claims Unit Norfolk at the address

[[Page 53419]]

provided in Sec. 750.3 above, or the Office of the Judge Advocate General, Claims and Tort Litigation Division, 1322 Patterson Avenue, SE., Suite 3000, Washington Navy Yard, Washington, DC 20374-5066. Claims may also be submitted to the commanding officer of the Navy or Marine Corps activity involved if known, the commanding officer of any Navy or Marine activity, preferably the one nearest to where the accident occurred, or the local Naval Legal Service Command activity. The claim should be immediately forwarded to the Tort Claims Unit

Norfolk.

0 8. Section 750.7 is amended by correcting the word ``recipt'' to read ``receipt'' in paragraph (a), and revising paragraphs (b) and (c) to read as follows:

Sec. 750.7 Claims: Action by receiving command.

* * * * *

(b) Determine the military activity involved. The receiving command shall determine the Navy or Marine Corps activity most directly involved with the claim--usually the command where the incident is alleged to have occurred--and forward a copy of the claim to that activity. The original claim (and the transmittal letter, if a copy is forwarded to a more appropriate activity) should immediately be sent to the Tort Claims Unit Norfolk.

(c) Initiate an investigation. A JAGMAN Litigation Report Investigation shall be commenced immediately by the command most directly involved with the claim. Once the investigation has been completed, an advance copy shall be forwarded by the convening authority to the Tort Claims Unit Norfolk. Waiting until endorsements have been obtained before providing a copy of the investigation to the Tort Claims Unit Norfolk is neither required nor desirable. The facts of the incident must be made known to cognizant claims personnel as soon as possible.

0 9. Section 750.8 is revised to read as follows:

Sec. 750.8 Claims Responsibility of the Tort Claims Unit Norfolk.

(a) Reviewing prior actions. The adjudicating authority (Tort Claims Unit Norfolk) determines whether an adequate investigation has been conducted, whether the initial receipt date is recorded on the face of the claim, and whether all holders of the investigation, if completed, are advised of the receipt of the claim.

(b) Determining the sufficiency of the claim. The claim should be reviewed and a determination of its sufficiency made. If the claim is not sufficient as received, it shall be immediately returned to the party who submitted it along with an explanation of the insufficiency. This does not constitute denial of the claim. The claim shall not be considered ``presented'' until it is received in proper form.

(c) Adjudicating the claim. (1) The Tort Claims Unit Norfolk shall evaluate and either approve or disapprove all claims within its authority, except where the payment of multiple Federal Torts Claims Act claims arising from the same incident will exceed $200,000.00 in the aggregate and thereby require approval of DoJ. In this latter instance, the Torts Claims Unit Norfolk shall contact the Office of the Judge Advocate General, Claims and Tort Litigation Division (OJAG Code 15).

(2) The Tort Claims Unit Norfolk shall evaluate and, where liability is established, attempt to settle claims for amounts within its adjudicating authority. Negotiation at settlement figures above the Tort Claims Unit Norfolk's payment limits may be attempted if the claimant is informed that the final decision on the claim will be made at a higher level.

(3) If a substantiated claim cannot be approved, settled, or compromised within the settlement authority limits of the Tort Claims Unit Norfolk, the Tort Claims Unit Norfolk shall contact OJAG Code 15 to seek additional settlement authority. To obtain the additional settlement authority, the following materials shall be forwarded to OJAG Code 15:

(i) A letter of transmittal containing a recommendation on resolution of the claim.

(ii) A memorandum of law containing a review of applicable law, an evaluation of liability, and a recommendation on the settlement value of the case. This memorandum should concentrate on the unusual aspects of applicable law, chronicle the attempts to resolve the case, provide information about the availability of witnesses, and outline any other information material to a resolution of the claim, i.e., prior dealings with the claimant's attorney, local procedural rules, or peculiarities that may make trial difficult. The memorandum should be tailored to the complexity of the issues presented and provide any expert opinions that have been obtained in the case by the Navy or the claimant.

(d) Preparing litigation reports. The Tort Claims Unit Norfolk will prepare a litigation report when a lawsuit is filed and the complaint is received. The report is sent directly to the DoJ official or the U.S. Attorney having cognizance of the matter. The report is a narrative summary of the facts upon which the suit is based and has as enclosures the claims file and a memorandum of law on the issues presented. A copy of the report and all enclosures should be sent to the Judge Advocate General (OJAG Code 15).

0 10. Section 750.10 is amended by revising the first sentence of paragraph (a) to read as follows:

Sec. 750.10 Claim: Settlement and release.

(a) Fully and partially approved claims. When a claim is approved for payment in the amount claimed, settlement agreement may not be necessary. * * * * * * * *

0 11. Section 750.11 is amended by revising paragraph (b) to read as follows:

Sec. 750.11 Claims: Denial.

* * * * *

(b) If the claim is cognizable under the Military Claims Act, appeal in writing to the Office of the Judge Advocate General, Claims and Tort Litigation Division within 30 days of the receipt of the denial notification. The notice of denial shall inform the claimant or his representative that is suit is not possible under the act.

0 12. Section 750.12 is amended by revising the first sentence of paragraph (a) and revising paragraph (b) to read as follows:

Sec. 750.12 Claims: Action when suit filed.

(a) Action required of any Navy official receiving notice of suit. The commencement, under the civil action provisions of the Federal Tort Claims Act (28 U.S.C. 1346(b)), of any action against the United States and involving the Navy, that comes to the attention of any official in connection with his official duties, shall be reported immediately to the Tort Claims Unit Norfolk to take any necessary action and provide prompt notification to the Judge Advocate General. * * *

(b) Steps upon commencement of civil action. Upon receipt by the Judge Advocate General or Tort Claims Unit Norfolk of notice from the DoJ or other source that a civil action involving the Navy has been initiated under the civil action provisions of the Federal Tort Claims Act, and there being no investigative report available at the headquarters, a request shall be made to the commanding officer of the appropriate Naval Legal Service Command activity for an investigative report into the incident. If there is not a completed investigation, the request shall be forwarded to the appropriate naval activity to convene and complete such a report. The commanding officer

[[Page 53420]]

of the Naval Legal Service Command activity shall contact the Tort Claims Unit Norfolk to determine whether an administrative claim had been filed and, if available information indicates none had, the Tort Claims Unit Norfolk shall advise the Office of the Judge Advocate General (Claims and Tort Litigation Division) immediately.

0 13. Section 750.13 is amended by revising paragraphs (a)(7), (b)(1), (b)(2), and (b)(3); and removing footnote 1 in paragraph (a).

Sec. 750.13 Claims: Single service responsibility.

* * * * *

(a) * * *

(7) Federal Claims Collection Act (31 U.S.C. Sections 3701, 3702, and 3711), claims and demands by the United States Government; and * * * * *

(b) * * *

(1) Department of the Army: Austria, Belgium, El Salvador, the Federal Republic of Germany, Grenada, Honduras, Hungary, Korea, Iraq, Kuwait, Latvia, Lithuania, the Marshall Islands, the Netherlands, Poland, Romania, Slovakia, Slovenia and Switzerland, and as the Receiving State Office in the United States under 10 U.S.C. Sections 2734a--2734b and the NATO Status of Forces Agreement, and other Status of Forces Agreements with countries not covered by the NATO agreement. Claims arising from Operation Joint Endeavor, including the former Yugoslavia, Hungary, Slovakia and the Czech Republic, as well as the Rwanda Refugee Crisis Area are also assigned to the Army.

(2) Department of the Navy: Bahrain, Greece, Iceland, Israel, Italy, Spain and the United Arab Emirates.

(3) Department of the Air Force: Australia, Azores, Canada, Cyprus, Denmark, India, Japan, Luxembourg, Morocco, Nepal, Norway, Pakistan, Saudi Arabia, Tunisia, Turkey, the United Kingdom, Egypt, Oman, and claims involving, or generated by, the United States Central Command (CENTCOM) and the United States Special Operations Command (SOCOM), that arise in countries not specifically assigned to the Departments of the Army and the Navy. * * * * *

Sec. 750.27 [Amended]

0 14. Section 750.27 is amended by removing the extra word ``any'' following the word ``any'' in paragraph (a)(2)(i).

Sec. 750.33 [Amended]

0 15. Section 750.33(c) is amended by removing the word ``CHAMPUS'' and adding in its place the word ``TRICARE''.

0 16. Section 750.34 is amended by revising the first sentence of paragraph(c)(1), revising paragraphs (c)(2)(i), (c)(2)(ii), and removing the table in (c)(2)(ii) to read as follows:

Sec. 750.34 Settlement and payment.

* * * * *

(c) Payment of the claim--(1) Statutory authority. Pursuant to 28 U.S.C. 2672 and in accordance with 28 CFR 14.6(a), the Secretary of the Navy or designee, acting on behalf of the United States may compromise or settle any claim filed against the Navy under the FTCA, provided any award, compromise, or settlement by the Navy in excess of $200,000.00 may be effected only with the prior written approval of the Attorney General or designee. * * * * * * * *

(2) Specific delegation and designation--(i) Payment authority.

Delegated and Designated Authority Federal Tort Claims Act

Judge Advocate General--$200,000.00 Deputy Judge Advocate General--$200,000.00 Assistant Judge Advocate General (General Law)--$200,000.00 Deputy Assistant Judge Advocate General (Claims and Tort Litigation) and Deputy Division Director--$200,000.00 Head, Tort Claims Branch (Claims and Tort Litigation)--$200,000.00

Any payment of over $200,000.00 must be approved by DoJ. The Judge Advocate General, the Deputy Judge Advocate General, the Assistant Judge Advocate General (General Law), Deputy Assistant Judge Advocate General (Claims and Tort Litigation), and the Head, Tort Claims Branch (Claims and Tort Litigation) may deny Federal Tort Claims in any amount.

(ii) Adjudicating authority. The Department of the Navy's tort claims adjudication function is consolidated as the Tort Claims Unit Norfolk (TCU) located at Naval Station, Norfolk, VA. The address is as follows: Department of the Navy, Office of the Judge Advocate General, Tort Claims Unit Norfolk, 9620 Maryland Avenue Suite 100, Norfolk, VA 23511-2989. * * * * *

Subpart C--Military Claims Act

0 17. Section 750.44 is amended by adding paragraph (n) to read as follows:

Sec. 750.44 Claims not payable.

* * * * *

(n) Any claim to which the exceptions in 28 U.S.C. 2680 apply.

0 18. Section 750.45 is amended by revising paragraph (d) to read as follows:

Sec. 750.45 Filing claim.

* * * * *

(d) Where to file. The claim shall be submitted by the claimant to the commanding officer of the naval activity involved, if it is known. Otherwise, it shall be submitted to the commanding officer of any naval activity, preferably the one within which, or nearest to which, the incident occurred, or to the Office of the Judge Advocate General of the Navy, (Claims and Tort Litigation), 1322 Patterson Avenue, SE., Suite 3000, Washington Navy Yard, DC 20375-5066. * * * * *

0 19. Section 750.46 is amended by redesignating paragraph (c) as paragraph (d), revising newly redesignated paragraph (d), and adding new paragraph (c) to read as follows:

Sec. 750.46 Applicable law.

* * * * *

(c) Principles applicable to all MCA claims. (1) ``Scope of employment'' is determined in accordance with Federal law. Reported FTCA cases provide guidance on this determination;

(2) Claims for emotional distress will be considered only from the injured person or members of the injured person's immediate family. Claims from the injured person's immediate ``zone of danger'' (i.e., immediate vicinity of the incident) and the claimant substantiates the claim with proof of the physical manifestation(s) of the emotional distress; and

(3) Claims under the MCA do not include the principles of absolute liability and punitive damages.

(d) Clarification of terms. Federal law determines the meaning and construction of the MCA.

0 20. Section 750.49 is amended by revising the first sentence in paragraph (a)(1), revising paragraph (a)(3), removing paragraphs (a)(4), (a)(5), (a)(6), and (b), adding new paragraph (a)(4), redesignating paragraph (c) as paragraph (b) and revising newly designated paragraph (b) to read as follows:

Sec. 750.49 Delegation of adjudicating authority.

(a) * * *

(1) The Secretary of the Navy may settle or deny claims in any amount. * * * * * * * *

[[Page 53421]]

(3) The Deputy Judge Advocate General, the Assistant Judge Advocate General (General Law), the Deputy Assistant Judge Advocate General (Claims and Tort Litigation), and Head, Tort Claims Branch (Claims and Tort Litigation), have delegated authority to settle claims for $25,000.00 or less, and have denial authority in any amount.

(4) Individuals with settlement authority under paragraph (a)(3) of this section may delegate all or part of their settlement authority. Such delegation must be in writing.

(b) Appellate authority. Adjudicating authorities have the same authority as delegated in paragraph (a) of this section to act upon appeals. No appellate authority below the Secretary of the Navy may deny an appeal of a claim it had previously denied.

0 21. Section 750.50 is amended by revising paragraph (c)(3) to read as follows:

Sec. 750.50 Advance payments.

* * * * *

(c) * * *

(3) The Deputy Assistant Judge Advocate General (Claims and Tort Litigation) and the Head, Tort Claims Branch (Claims and Tort Litigation) have delegated authority to make advance payments up to $25,000.00. * * * * *

Subpart D--Claims Not Cognizable Under Any Other Provision of Law

0 22. Section 750.66 is revised to read as follows:

Sec. 750.66 Officials with authority to settle.

Judge Advocate General; Deputy Judge Advocate General; Assistant Judge Advocate General (General Law); Deputy Assistant Judge Advocate General (Claims and Tort Litigation); and Head, Tort Claims Branch (Claims and Tort Litigation) may settle a nonscope claim.

Dated: September 10, 2007. T.M. Cruz, Lieutenant, Judge Advocate General's Corps, U.S. Navy, Federal Register Liaison Officer. [FR Doc. E7-18198 Filed 9-18-07; 8:45 am]

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