4-5.000
TORT LITIGATION
4-5.100 Tort Litigation --
Generally
4-5.110 Torts Branch Components --
Aviation and
Admiralty
4-5.120 Torts Branch Components --
Constitutional and Specialized Torts
4-5.130 Torts Branch Components --
Environmental Torts formerly Environmental and Occupational Disease
Litigation)
4-5.140 Torts Branch Components --
Federal Tort Claims Act Staff
4-5.200 Torts Branch Procedures --
Conduct of FTCA Litigation
4-5.220 Torts Branch Procedures --
Substantive Considerations in FTCA Litigation
4-5.230 Torts Branch Procedures --
Settlement of Federal Tort Claims Act Suits
4-5.240 Torts Branch Procedures --
FTCA
Payment Procedure
4-5.300 Aviation and Admiralty
Litigation -- Contacts and Mailing Information
4-5.310 Admiralty Litigation
4-5.320 Aviation Litigation
4-5.400 Constitutional and
Specialized
Torts -- Contacts and Mailing Information
4-5.410 Constitutional and
Specialized
Torts -- Introduction
4-5.412 Constitutional Torts --
Representation Process
4-5.415 Constitutional Torts --
Appealability of Immunity Claims
4-5.420 National Vaccine Injury
Compensation Program -- Contacts and Mailing Information
4-5.421 National Vaccine Injury
Compensation Program -- Introduction
4-5.422 Disposition of Cases Under
the
Vaccine Program
4-5.423 Action Following Receipt of
a
Vaccine Case
4-5.430 Radiation Exposure
Compensation
Program -- Contacts and Mailing Information
4-5.431 Radiation Exposure
Compensation
Program -- Introduction
4-5.432 Radiation Exposure
Compensation
Program -- Categories and Criteria
4-5.437 Action Following Receipt of
a
Radiation Program Claim
4-5.500 Environmental Torts
(Formerly
Environmental and Occupational Disease Litigation (EODL)) --
Contacts
and Mailing Information
4-5.510 Environmental Torts
(Formerly
Environmental and Occupational Disease Litigation (EODL)) --
Introduction
4-5.520 Conduct of Toxic Tort and
Asbestos Litigation
4-5.600 Federal Tort Claims Act
Staff --
Contacts and Mailing Information
4-5.610 FTCA Staff -- Introduction
4-5.620 FTCA Staff -- Research and
Guidance Materials
4-5.630 FTCA Staff -- Substitution
of
the United States for Federal Employees
4-5.640 FTCA Staff -- Medical Care
Recovery Act Cases
4-5.650 FTCA Staff -- Medicare
Recovery
Cases
Tort litigation against the Federal Government is under the
general
supervision of the Civil Division's Torts Branch. The Torts Branch
has
four different litigation offices or staffs, each of which
specializes
in a different area.
- The Aviation and Admiralty Staff handles claims
arising
out of the government's role as aircraft or ship owner and as
regulator
of both air traffic and the nation's coastal and inland waterways.
- The Constitutional and Specialized Torts Staff
represents
federal employees sued in their individual capacities for actions
taken
within the scope of their employment and handles matters arising
out of
claims under the Vaccine and Radiation Exposure compensation
programs.
- The Environmental Torts (formerly Environmental and
Occupational Disease Litigation) Staff handles property and
personal
injury cases involving toxic substances in the environment, the
workplace, and government-owned housing.
- The Federal Tort Claims Act Staff handles all other tort
claims, including traditional actions against the government for
personal injury and property damage.
Cases brought under the Federal Tort Claims Act may be the
responsibility of any one of the four staffs, depending upon the
subject
matter. Although different categories of tort cases are the
responsibility of the different staffs of the Torts Branch, many
aspects
of defending a federal tort lawsuit are common to all, or several,
categories of tort cases. For example, many of the defenses
available
under the Federal Tort Claims Act may be equally applicable in
aviation
cases, general tort cases, and cases involving exposure to
hazardous
substances. Similarly, it is not uncommon for a single case to
present
alternative causes of action which cross the boundary between
particular
categories. For example, a single case will often include both a
constitutional tort claim against individuals and a general tort
claim
against the government. In addition, as will be discussed, infra,
some
related contract issues may be handled by the Torts Branch, and, in
some
circumstances, cases may be the joint responsibility of the Torts
Branch
and other components of the Civil Division or other Divisions of
the
Department.
The Aviation and Admiralty staff represents the government in
its
role as owner of ships and regulator of the nation's coastal waters
and
inland waterways. Admiralty litigation may involve suits under
statutes
such as the Suits in Admiralty Act, the Public Vessels Act, and the
Contract Disputes Act. Issues in admiralty may involve cargo
damage,
ship collision, contracts, and pollution in navigable waters.
Aviation
litigation arises from private and military air carrier operations
and
from the government's ownership and operation of both civil and
military
aircraft. The government's role in air traffic control, aircraft
and
airport certification, and dissemination of weather information is
often
involved in these cases.
The Constitutional and Specialized Torts staff represents
current
and former Government officials who are personally sued for
monetary
damages as a result of actions taken in the course of their
official
duties. An exception to this is that all cases relating to the
delivery
or failure to deliver medical care to prisoners, including Bivens
actions, should be sent to the FTCA staff. This staff also
represents
the government in claims brought against the Secretary of Health
and
Human Services under the National Vaccine Injury Compensation
Program.
Cases under the Program are litigated in the U.S. Court of Federal
Claims and involve allegations of injuries and death attributable
to the
receipt of certain childhood vaccines. Further, this section is
responsible for reviewing claims and compensating victims of
radiation
exposure from atmospheric nuclear testing and uranium mining under
the
Radiation Exposure Compensation Act.
The Environmental Torts (ET) staff defends the United States in
cases arising from allegations of personal injuries and property
damage
due to exposure to toxic materials resulting from federal
activities.
Ongoing litigation addresses complaints of injuries caused by air,
surface-water, or groundwater contamination; housing and facility
construction/renovation programs; and radiation experimentation.
These
cases include exposure to substances such as TCE, PCBs and dioxins,
asbestos, lead-based paint, Agent Orange, Legionnella bacteria,
radiation, electric magnetic fields and biological agents. Tort
cases
alleging toxic injury to persons or property in the course of EPA's
clean-up activities are the responsibility of ET.
The Federal Tort Claims Act Staff defends the government
against
tort suits including, for example, such areas as medical
malpractice,
personal injuries attributed to the actions of government
employees, and
Governmental Regulatory activities. This staff is also responsible
for
affirmative tort claims not encompassed within another staff's
responsibilities. Any tort suit not within the responsibility of
the
other three staffs is the responsibility of the FTCA Staff.
Upon service of a complaint sounding in tort, the United States
Attorney shall promptly forward a copy of that complaint to the
appropriate component within the Torts Branch. The forwarding
letter
should indicate the date of service on the United States Attorney's
Office and the name of the judge to whom the case has been
assigned.
See USAM 4-1.310 et seq.
If an adverse judgment is received in a delegated FTCA case,
the
amount of the judgment is less than $500,000 and no significant
issue is
presented by the adverse decision, and both the United States
Attorney
and the affected agency recommend against appeal, the judgment can
be
promptly forwarded to the Tort Branch Director responsible for the
matter who is authorized to determine against appeal, provided the
determination is made within thirty days after entry of judgment.
All
other matters involving adverse judgments, the adverse judgments
along
with comments and supporting materials must be forwarded to the
Appellate Staff: a copy of these materials also should be forwarded
to
the Torts Branch.
Copies of all compromise memoranda should be forwarded to the
appropriate Torts Branch staff. addresses are provided in USAM 4-5.300, 400,
500,
and 600.
The Assistant United States Attorney assigned to a tort suit is
expected to assume full responsibility for preparation of an
aggressive,
professional defense to the suit, unless the suit is one assigned
to be
handled directly by a component of the Torts Branch. The initial
letter
from the Torts Branch will request the agency to forward a
litigation
report to the Assistant United States Attorney. This litigation
report
will be the starting point for development of the facts and legal
position to be taken in the litigation. However, the Assistant
United
States Attorney is responsible for ensuring that each reasonable
legal
and factual defense is pursued regardless of whether the agency
litigation report identifies the defense. The Torts Branch
Monographs
and, particularly the FTCA Staff's Monograph "Checklist of FTCA
Defenses," provide assistance.
The Assistant United States Attorney should obtain approval
from the
appropriate Torts Branch Staff prior to raising the "discretionary
function exception" defense in any case and may well desire to
consult
with the Branch when a difficult issue pertaining to any of the
exceptions or exclusions to the Federal Tort Claims Act arises. If
the
case is designated as a monitored case, Assistant United States
Attorney
may seek assistance from the Torts Branch attorney or reviewer
designated in the initial letter from the Torts Branch to the
agency
requesting a litigation report. If the case is designated as a
delegated
case, the author of the appropriate Monograph, if any, should be
contacted or inquiry may be made by calling the responsible
Director's
office.
The FTCA is the exclusive remedy for common law torts committed
by
federal employees acting in the scope of employment. United States
Attorneys are authorized to make the certification required by law
(28
U.S.C. § 2679(d)(1)) in order to substitute the United States
for a
federal employee against whom a common law tort suit is brought.
See 28 C.F.R. § 15.3.
United States Attorneys responsible for the defense of FTCA or
other
tort litigation (e.g., Suits in Admiralty Act or Vessels Act) are
currently delegated $1,000,000 in settlement authority, subject to
the
limitations set forth in Civil Division Directive No. 14-95, 28
C.F.R.
Part O, Subpart y, App. If a United States Attorney seeks to settle
for
an amount in excess of the delegated authority, a detailed
justification
for the settlement must be forwarded to the Torts Branch. The
responsible Director will then make a recommendation to the
Assistant
Attorney General (or if the proposed amount is in excess of
$2,000,000
to the Associate Attorney General). Although the Torts Branch
endeavors
to expedite consideration of settlement proposals, opposing counsel
and,
if necessary, the court should be informed that immediate action
cannot
be guaranteed on any settlement proposal.It is customary to consult
with
the Torts Branch during settlement negotiations when any concern
arises
regarding the advisability of settlement or of the amount of the
settlement. Although authority to settle a case can be obtained in
exceptional cases prior to submission of an authorized offer from
the
other party(ies) to the case, this procedure is highly disfavored
and
should not be used unless special justification for its use is
provided.
However, the Torts Branch will provide counsel as to what amount it
will
recommend to the Assistant Attorney General in advance of
initiation or
completion of settlement negotiations.
Stipulations for admissions which are tantamount to a
stipulation of
liability must be approved by whatever level of authority is
appropriate
based on the highest reasonably predictable judgment that the court
could enter predicated upon the stipulation or admission.
The procedures for payment of an FTCA settlement should not be
initiated until after all required approvals are obtained. Most
FTCA
settlements are paid by means of a Treasury check issued upon
making a
request to the Department of the Treasury. Forms for use in
transmitting
a request for payment to the Treasury Department are included in
the Civil Resource Manual at 224 et
seq.
Structured settlement agreements require careful attention to
the
terms and provisions of the agreement. The Torts Branch is
available to
be consulted regarding the particular terms of a structured
settlement.
Copies of the final settlement papers should be forwarded to the
Torts
Branch for retention. In the event that a reversionary trust
provision
is included in a structured settlement, the trust should include a
requirement that the reversionary interest be paid to the United
States
Treasury in care of the Torts Branch pursuant to the terms of the
agreement. Further information on the format and provisions for
structured settlements is included in the Torts Branch Handbook
entitled
"Damages Under the FTCA."
Gary W. Allen, Director, (202) 616-4000, SS07(ALLEN).
Admiralty: David V. Hutchinson, Assistant Director for
Afmiralty,
(202) 616-4126, SS07(HUTCHINS); Debra J. Kossow, Senior Admiralty
Counsel, (202) 616-4070, SS07 (KOSSOW); Scott R. Blaze, Senior
Admiralty
Counsel, (202)616-4042, SS07(BLAZE).
Aviation: Kathlynn Fadely, Assistant Director for Aviation,
(202)
616-4044, SS07(FADELY); Steven J. Riegel, Senior Aciation Counsel,
(202)
616-4049, SS07(RIEGEL); James C. Wilson, Senior Aviation Counsel,
(202)
616-4081, SS07 (OMALLEY).
New York Field Office: Janis Schulmeisters, Attorney in
Charge,
(212)264-0480, civ20(jschulme); Jack S. Rockafellow, Assistant
Attorney
in Charge, (212) 264-0482, civ20Ijrockafe). Mailing &
Delivery:
Aviation & Admiralty Litigation, Torts Branch, Civil Division, 26
Federal Plaza, Suite 320, Ney York, NY 10278-0140.
WEST COAST FIELD OFFICE: Philip A. Berns, Attorney in
Charge,
(415) 436-6630, CIV21(PBERNS); Warren A. Schneider, Assistant
Attorney
in Charge, (415) 436-6645, CIV21(WSCHNEID). Mailing:
Aviation &
Admiralty Litigation, Torts Branch, Civil Division, West Coast
Field
Office 450 Golden Gate Ave., P.O. Box 36028, San Francisco, CA
94102-3463.
The Admiralty staff of the Torts Branch specializes, on the
defensive side, in cases involving collisions at sea, groundings,
seamen's injuries, search and rescue and other actions relating to
the
government's regulation of the nation's waterways. On the
affirmative
side, the cases include mortgage foreclosure, oil pollution and
damage
to government property. The admiralty staff also handles cases
filed in
district courts involving maritime contracts, both defensive and
affirmative. The Admiralty staff generally retains primary
responsibility for the defense of admiralty litigation, including
preparation and trial. In any admiralty case handled primarily by
an
Assistant United States Attorney, there should be close cooperation
with
the Admiralty staff.
Two field offices handle the bulk of New York and West Coast
maritime cases, because of the number of cases arising in these
port
areas and the active presence of major client agencies there.
Maritime
cases involving New York or nearby environs are generally handled
in the
New York Field Office located in New York City. Caes brought in
West
Coast states, as well as in Alaska, Hawaii and Guam are generally
handled in the West Coast Field Office in San Francisco.
The Aviation staff specializes in the defense of aviation cases
arising primarily out of the activities of the FAA, NWS, NOAA and
the
military services. The Aviation staff generally retains primary
responsibility for the defense of aviation litigation, including
preparation and trial, particularly if questions of broad national
import with particular precedential significance are involved, or
if the
litigation will raise questions concerning the use of air traffic
control services or dissemination of weather and in-flight
information
to operators of commercial and private aircraft. In any aviation
case
handled primarily by an Assistant United States Attorney, there
should
be close cooperation with the Aviation Staff.
Helene M. Goldberg, Director, (202) 616-4140, civ10(hgoldbe).
Nicki L. Koutsis, Assistant Director, (202) 616-4150,
civ10(nkoutsis).
Gordon W. Daiger, Senior Trial Counsel, (202) 616-4330,
civ10(gdaiger);
Timothy P. Garren, Senior Trial Counsel, (202) 616-4171,
civ10(tgarren);
R. Joseph Sher, Senior Trial Counsel, (202) 616-4328, civ10(jsher).
Mailing: Civil Division
United States Department of Justice
P.O. Box 7146
Benjamin Franklin Station
Washington, D.C. 20044
The Constitutional Torts staff defends present and former
government
officials in suits seeking damages against them in their official
and
individual capacities based upon official conduct. Pursuant to 28
U.S.C.
§§ 516 to 519, the Attorney General and the Department of
Justice are responsible for attending to the interests of the
United
States in litigation which includes providing representation to
present
and former government employees who are sued for actions taken
within
the scope of their employment. Policy guidelines for Department of
Justice representation are published at 28 C.F.R. §§ 50.15
and
50.16. The Constitutional Tort staff processes the majority of
representation requests in suits against individual federal
employees,
and questions regarding representation requests should be directed
to
that staff.
Personal damages claims against individuals raise special
concerns
that are critical to their defense and with which the government
attorney must be able to deal effectively. These are discussed
briefly
in subsequent sections.
- Generally. Personal representation of
government employees is necessary only when they are sued in an
individual capacity for damages. When a government employee is sued
in
an official capacity, the real defendant is the United States.
Should
relief be awarded, it would be against the resources of the United
States. The Department of Justice represents federal officials sued
in
their official capacities for declaratory, injunctive or other
forms of
relief. No formal request for representation is necessary in such
cases.
- When an employee (present or former) is sued in his or her
individual capacity, he or she is the personal target of the
lawsuit.
The plaintiff seeks recovery from the personal assets of the
employee as
opposed to the assets of the United States. Additionally, it is
noted
that in most instances a federal employee providing testimony (i.e.
deposition), and who is not a party to the action, does not need
personal representation and Department of Justice representation
will
not be authorized. In any case in which there is doubt as to
whether an
employee is sued in his individual capacity for constitutional or
federal statutory violations, authority to represent the official
individually should be secured from the Department pursuant to 28
C.F.R.
§ 50.15.
- Criteria. Department of Justice representation is
generally
not available in a federal criminal proceeding or investigation. 28
C.F.R. § 50.15(a)(4). Nor is it available in a civil case if
the
employee is the subject of a federal criminal investigation
concerning
the act or acts for which he seeks representation. See 28
C.F.R.
§ 50.15(a)(5) to (7). In such a civil case, however, private
counsel
may be provided to the employee at federal expense, provided no
decision
has been made to seek an indictment or file an information against
the
employee. 28 C.F.R. § 50.15(a)(7).
- The criteria for personal representation of an employee are:
- Scope of employment. The employee's actions giving
rise to the suit must reasonably appear to have been performed
within
the scope of his/her federal employment.
- Interest of the United States. It must also be in the
interest of the United States to provide the requested
representation.
28 C.F.R. § 50.15(a). The Department of Justice is ultimately
responsible for making the "scope" and "interest" determinations
after
benefiting from the agency recommendation. Because the Executive
Branch
is responsible for determining the interests of the United States
in
litigation, decisions of this nature are precluded from Judicial
Branch
scrutiny by the doctrine of separation of powers. Falkowski v.
Equal
Employment Opportunity Commission, 764 F.2d 907 (D.C. Cir.
1985),
reh'g denied, 783 F.2d 252 (D.C.Cir.), cert. denied,
478
U.S. 1013 (1986).
- Procedure for Requesting Department of Justice
Representation.
- Generally. Department of Justice representation is
neither automatic nor compulsory; federal employees are free to
retain
counsel of their choice at their own expense. Every individual
defendant
who desires Department of Justice representation must request it in
writing. The written request should be submitted to the
individual's
employing agency (usually the Office of the General Counsel, Chief
Counsel, or Solicitor) along with a copy of the Summons and
Complaint or
other legal papers. The agency should then forward the request with
all
available factual information to the Department of Justice with a
recommendation as to whether representation should be provided
based
upon the criteria of "scope" and "interest." It is also suggested
that a
courtesy copy of the papers be provided to the United States
Attorney in
the district where the suit is filed.
- Conditional Representation. Frequently, a
representation
request must be resolved quickly. In such cases, telephone approval
may
be secured from the Director, Assistant Director, or Senior Trial
Counsel of the Constitutional Torts Staff. See 28 C.F.R.
§
50.15(a)(1). This approval is conditional and must be supplemented
by
the aforementioned written materials. Additionally, United States
Attorneys have automatic authority to seek extensions of time in
which
to respond to a complaint.
- Representation Agreements. Upon formal approval of
representation, the litigating attorney should forward a Form 399
to the
client for signature and return. The form sets forth the
limitations of
Department of Justice representation so that the client may be
fully
informed before he or she enters into the attorney-client
relationship.
See Department of Justice Order 2770.5.
- Appellate Review. Whenever the Solicitor General
declines to
authorize an appeal on behalf of an employee or representation of
the
employee involves assertion of a position that conflicts with the
interest of the United States, the Department may not continue to
represent the employee if: (1) the employee does not knowingly
agree to
forego appeal or waive assertion of the position; or (2) the
assigned
attorney determines, after consultation with his or her supervisor
(and,
if appropriate, with the litigating division) that an appeal or
assertion of the position is necessary to the employee's adequate
representation. 28 C.F.R. § 50.15(a)(11). However, in
appropriate
cases, private counsel may be provided at federal expense. 28
C.F.R.
§ 50.15(a)(11)(iii).
- Payment of Adverse Judgments. Regardless of whether
representation is provided by the Department of Justice, a federal
employee remains personally responsible for the satisfaction of a
judgment entered solely against the employee; there is no right to
compel indemnification from the United States or an agency thereof
in
the event of an adverse judgment. However, the Attorney General may
authorize indemnification of Department of Justice employees for
adverse
judgments or, in exceptional circumstances, for adverse
settlements.
See 28 C.F.R. § 50.15 (c). Some other agencies have
similar
regulations allowing indemnification of their employees.
- Private Counsel. Where conflicts in the factual or
legal
positions of a number of defendants make representation by a single
attorney impossible, retention of private counsel at government
expense
may be authorized, provided the scope and interest criteria have
been
satisfied and subject to the availability of funds. See 28
C.F.R.
§ 50.15(a) (10) and 50.16. Special written agreements between
the
Department of Justice and private counsel are required. See
Administrative Directive 2120.
The current immunity doctrines not only are designed to protect
officials from liability but from the burdens of litigation as
well.
Harlow v. Fitzgerald, 457 U.S. 800 (1982). Accordingly, an
order
denying an absolute immunity defense is immediately appealable, to
the
extent that it turns on an issue of law. Mitchell v.
Forsyth, 472
U.S. 511, 530 (1985). In Johnson v. Jones, 515 U.S. 304, 115
S.Ct. 2151 (1995), the Supreme Court held that a pretrial order
denying
qualified immunity is not immediately appealable to the extent that
the
order "determines whether or not the pretrial record sets forth a
'genuine' issue of fact for trial." 515 U.S. at 319. Nevertheless,
appellate jurisdiction will still exist over the district court's
determination that a violation of clearly established law has been
shown
on a given set of facts, or that a factual dispute is material to
the
issue of qualified immunity. See Behrens v.
Pelletier, ___
U.S. ___, 11
6 S.Ct. 834, 842 (1996). Regarding any possible appeal of a denial
of
immunity, very close contact should be maintained with the Torts
Branch
and Appellate Staff. See 28 C.F.R. § 50.15(a)(11).
John L. Euler, (202) 616-4088, Deputy Director.
Charles R. Gross, (202) 616-4131, Assistant Director.
Gerard W. Fischer, (202) 616-4090, Assistant Director.
Mailing: National Vaccine Injury Compensation Program
Torts Branch, Civil Division
United States Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
The National Vaccine Injury Compensation Program (42 U.S.C.
§§ 300aa-10 through 17) (the "Program"), which is part of
the
National Childhood Vaccine Injury Act of 1986 (the "Vaccine Act"),
establishes a compensation system for persons injured by routine
pediatric vaccines. The Program recognizes and furthers the public
interest in encouraging the availability and use of these vaccines
by
offering an alternative to traditional tort actions against vaccine
administrators and manufacturers for alleged serious adverse
reactions.
The Vaccine Litigation Group in the Torts Branch of the Civil
Division defends all claims brought against the Secretary of Health
and
Human Services under the Vaccine Act. These Vaccine Act cases are
filed
in the United States Court of Federal Claims by individuals
claiming to
have suffered injuries as a result of the receipt of certain
specified
vaccines. The cases routinely involve claims of catastrophic
injuries or
death. As a result, the cases present unique challenges and require
diverse litigation skills of the Department of Justice trial
attorneys
who defend them.
The Vaccine Act established within the United States Court of
Federal Claims an Office of Special Masters. When a petition for
vaccine
compensation is filed, the chief special master assigns the case to
a
special master who makes an initial determination as to whether
entitlement to an award should be granted. In many cases, a trial
is
necessary to decide the issue of entitlement under the Program.
Although
the court is located in Washington, D.C., the entitlement hearing
is
usually held in the state where the vaccine-injured party resides.
After the special master enters the entitlement decision,
either
party may appeal the outcome to the United States Court of Federal
Claims. The Court of Federal Claims reviews the decision and enters
judgment. The decision of the Court of Federal Claims may then be
appealed to the United States Court of Appeals for the Federal
Circuit.
A finding of vaccine-causation is made in one of two ways. The
claimant may show vaccine-causation by proving a specified injury
occurred within a specified time period following vaccination. This
entitles the claimant to a presumption of vaccine-causation that
can
only be rebutted if we establish, by preponderant evidence, a cause
for
the alleged injury other than the vaccine. If the claimant cannot
meet
the requirements for a presumptively vaccine-related injury, the
claimant must prove vaccine-causation under more traditional
standards
of proof used in tort litigation. In either situation, these cases
require the development of detailed factual evidence and medical
evidence from various medical specialties, such as neurology,
pediatrics, immunology, rheumatology, epidemiology, infectious
diseases,
pathology and virology.
Once a determination of vaccine-causation is made, the claimant
is
generally entitled to compensation for all future unreimbursable
medical
expenses related to the vaccine injury. For cases arising after the
date
of the Vaccine Act, claimants are also entitled to lost wages, pain
and
suffering up to a jurisdictional maximum of $250,000, and
reasonable
attorney's fees and costs. For cases involving vaccinations
administered
prior to the Vaccine Act's effective date, there is a cap of
$30,000 on
the combined items of pain and suffering, lost wages and reasonable
attorneys' fees and costs. There is no provision for punitive
damages.
In all cases resulting in a vaccine-related death, a fixed payment
of
$250,000 is provided.
Because of the severity of most vaccine injuries and the
likelihood
of lifelong future damages, vaccine cases require a complex
economic
analysis of the damage payments to be made to the injured party
through
lump sum payments, annuities, or reversionary trusts. The damages
analysis includes interpretation of statutory compensation
provisions
and legal precedent for pain and suffering, medical care,
residential
care, attendant care, therapies, and lost wages. Consideration must
also
be given to other primary benefits to which the injured party is
entitled such as private insurance, Medicaid, Medicare, and
benefits
under the Individuals With Disabilities Education Act (IDEA). Under
the
statute, these benefits may be offset against the award.
Any vaccine injury compensation case received in the office of
a
United States Attorney should be forwarded immediately to the
Vaccine
Litigation Section of the Constitutional and Specialized Tort
Branch for
handling. If such a proceeding has been filed in the United States
District Court or a state court for resolution, rather than the
appropriate forum of the United States Court of Federal Claims,
similar
action should be taken to notify the Vaccine Litigation Section so
appropriate steps may be taken in cooperation with the United
States
Attorney to either dismiss the case, or remove it to the Court of
Federal Claims.
Gerard W. Fischer, (202) 616-4090, CIV10(GFISCHER), Assistant
Director.
Lori Beg, (202) 616-4377, CIV10(LBEG), Trial Attorney.
Mailing: Radiation Exposure Compensation Program
United States Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
On October 15, 1990, Congress passed the Radiation Exposure
Compensation Act (the "Act"), 42 U.S.C. § 2210 note (Supp.
1995),
which provides for compassionate payments to, or on behalf of,
individuals who contracted certain cancers and other serious
diseases
following exposure to radiation that was released during
above-ground
nuclear weapons tests or as a result of their exposure to radiation
during employment in uranium mines.
The Radiation Exposure Compensation Program (the "Radiation
Program"), part of the Torts Branch, Civil Division, is responsible
for
administering the Act. The procedures established in the
implementing
regulations are designed to utilize existing records so that claims
can
be quickly resolved in a reliable, objective, nonadversarial manner
with
little administrative cost to the United States or to the person
filing
the claim. Part 79 of Title 28, Code of Federal Regulations.
There are three categories of claims: uranium miners,
downwinders,
and onsite participants. There are two major eligibility criteria
for
each category of claims: exposure to radiation and subsequent
development of a compensable disease.
The uranium miner provisions of the Act provide a payment of
$100,000 to, or on behalf of, underground uranium miners who worked
in
Arizona, Colorado, New Mexico, Wyoming or Utah during the years
1947 to
1971. The miner must have been exposed to certain threshold levels
of
radiation measured by working level months of radiation ("WLMs")
during
the course of his underground uranium mining activities. The miner
also
must have subsequently developed primary cancer of the lung or one
of
the following non-malignant respiratory diseases: pulmonary
fibrosis,
fibrosis of the lung, cor pulmonale related to fibrosis of the
lung, and
moderate or severe silicosis and pneumoconiosis. § 5(b)(3), 42
U.S.C. § 2210, 28 CFR §§ 79.31(h), (i).
The downwinder provisions of the Act provide a payment of
$50,000
to, or on behalf of, individuals who lived or worked downwind of
atmospheric nuclear tests in certain geographical areas in Utah,
Nevada
and Arizona for at least 24 months (cumulative or consecutive)
during
the time period of January 21, 1951, and ending on October 31,
1958, or
the entire period from June 30, 1962, to July 31, 1962. In order to
receive compensation under the "downwinder" provisions of the Act
it
must also be demonstrated that, after the requisite length of
exposure,
one of the following specified compensable diseases was developed:
leukemia (but not chronic lymphocytic leukemia), lymphoma (but not
Hodgkin's disease), multiple myeloma, or primary cancer of the
thyroid,
female breast, esophagus, stomach, pharynx, small intestine,
pancreas,
bile duct, gall bladder, or liver. § 4(b)(2), 42 U.S.C. §
2210,
28 CFR § 79.21(d). Each disease has its own additional
requirements
such as age at first exposure, latency period, and absence of heavy
smoking and drinking. 28 CFR § 79.22(b).
The onsite participant provisions of the Act provide a payment
of
$75,000 to, or on behalf of, individuals who contracted a
compensable
disease after being present onsite, as a participant, during a
period of
atmospheric nuclear testing between July 16, 1945 and December 31,
1962.
The test site locations where atmospheric nuclear testing occurred
are:
(1) the Nevada Test Site; (2) the Pacific Test Sites; (3) the
Trinity
Test Site; and (4) the South Atlantic Test Site. § 4(a)(2)(C),
42
U.S.C. § 2210, 28 CFR §§ 79.42(a), (b). The onsite
participant also must have developed one of the 13 cancers
identified
under the downwinder provisions.
The Act also affords the right to seek judicial review of a
final
action in a United States District Court. ڌ(l). If a case
appealing
a denial decision to a United States District Court is received,
please
notify Gerard Fischer, Assistant Director, at 202-616-4090, or Lori
Beg,
staff attorney, at 202-616-4377.
J. Patrick Glynn, (202) 616-4200, CIV05(PGLYNN), Director.
JoAnn J. Bordeaux, (202) 616-4204, CIV05(JBORDEAU), Deputy
Director.
David S. Fishback, (202) 616-4206, CIV05(DFISHBAC), Assistant
Director.
Mailing: Torts Branch, Civil Division
United States Department of Justice
P.O. Box 340
Benjamin Franklin Station
Washington, D.C. 20044
The Environmental Torts staff (formerly Environmental and
Occupational Disease Litigation (EODL) staff) defends the United
States
in FTCA and other toxic tort actions arising from contamination of
the
environment or exposure in the workplace and elsewhere to chemicals
or
substances. Some of the most visible examples of the litigation
over the
past few years have been those cases dealing with groundwater
contamination, radiation experimentation on human subjects, and
exposure
to asbestos. Other ongoing litigation addresses complaints of
injuries
allegedly caused by PCBs and dioxins, lead-based paint, Agent
Orange,
Legionnella bacteria and other "sick building" toxins, electric
magnetic
fields and biological agents. Many of these cases arise out of
activities of the military, but may stem from other agencies'
activities, as well.
Toxic tort litigation involves direct personal injury and/or
property damage actions and third-party claims by manufacturers and
suppliers for contribution and indemnity. Claims are filed under
the
Federal Tort Claims Act, the Suits in Admiralty and Public Vessels
Acts,
the Little Tucker Act, and against individual government employees
seeking monetary damages. The ET staff litigates in the district
courts
and the U.S. Court of Federal Claims. Tort cases alleging
negligence in
the course of EPA'S Clean-Up Activities are the responsibility of
ET.
Vessel-caused pollution and clean-up cost recovery cases are
handled by
the Aviation & Admiralty staff.
Inquiries regarding toxic tort and asbestos litigation may be
made
by calling 202-616-4200 or writing to the Environmental Torts
section at
Post Office Box 340, Benjamin Franklin Station, Washington, D.C.
20044.
Federal Express deliveries should be mailed to EODL, Torts Branch,
1331
Pennsylvania Avenue, N.W., Suite 800 South, Washington, D.C. 20004.
Environmental and related product liability tort actions,
whether
involving mass numbers of parties or only a few, pose special case
management problems and thus are generally designated as "primary"
to be
handled by Department of Justice attorneys. Given long latency
periods,
the litigation often is not filed until decades after exposure. The
cases can require massive and prolonged discovery involving
millions of
documents and the analysis of convoluted and complex fact
situations.
For example, in the asbestos litigation, fact issues have spanned
a
period since prior to World War II. All asbestos cases are
designated
for primary handling by ET and as a general rule will not be
assigned to
United States Attorneys.
Environmental tort litigation also requires familiarity with
specialized scientific and medical issues. The source of
contamination
in any particular case may be chronic and latent, as with asbestos
exposure or progressive groundwater contamination, or may be
readily
apparent, as with chemical or industrial spills. Disease or injury
often
manifests itself only following cumulative or repeated exposure,
and in
many instances, the effects of exposure have not been definitively
scientifically or medically documented. Like the asbestos cases,
fact
issues can span decades, some spanning periods before World War I.
United States Attorneys confronted with environmental and
related
product liability tort claims against the United States should
contact
ET as early as possible, preferably before suit. ET is prepared to
assume "primary" responsibility for toxic tort litigation as
described
within USAM 4-5.510.
It should be noted that tort suits alleging breaches of duty
arising
directly from regulatory activities of the government
generally
are within the purview of the Federal Tort Claims Act staff, and
should
be directed to that staff. See USAM
4-5.600. Matters involving clean-up activities of the
Environmental
Protection Agency, however, should immediately be brought to the
attention of ET. Such cases should be handled jointly with the
Environment and Natural Resources Division. Also, matters involving
the
Oil Pollution Act of 1990 should be referred to the Aviation and
Admiralty staff.
ET's expertise developed in the asbestos litigation has led to
the
assignment of certain contract (Little Tucker Act and Tucker Act)
cases
to ET. Cases asserting implied warranties or indemnities arising
out of
contracts for government purchase of products made in conformity
with
government specifications where said products' alleged toxicity
caused
personal injuries should be referred to ET. See, e.g.,
Hercules v. United States,516 U.S. 417, 116 S.Ct. 981 (1996)
(Agent Orange); Lopez v. A.C. & S., 858 F.2d 712 (Fed. Cir.
1988), cert. denied, 491 U.S. 904 (1989) (asbestos). In
addition,
cases where government contractors seek to invoke indemnity
provisions
to be held harmless from environmental regulatory claims and tort
claims
should be referred to ET.
Jeffrey Axelrad, (202) 616-4400, CIV05(JAXELRAD), Director.
Paul Figley, (202) 616-4248, CIV05(PFIGLEY), Deputy Director.
Assistant Directors: Roger D. Einerson, (202) 616-4250,
CIV05(REINERSO);
Phyllis J. Pyles, (202) 616-4252,
CIV05(PPYLES).
Mailing: Civil Division
United States Department of Justice
P.O. Box 888
Benjamin Franklin Station
Washington, D.C. 20044
The Federal Tort Claims Act (FTCA) Staff litigates cases filed
against the United States under the FTCA (except for aviation and
most
environmental tort suits); tort suits filed in district courts
under
legislation extending the FTCA to Community and Migrant Health
Centers
and to Indian tribes; and affirmative tort suits on behalf of
federal
agencies. The Staff is also responsible for the administration of
the
FTCA.
The FTCA Staff litigates seminal suits filed under the FTCA and
related statutes authorizing tort suits against the United States.
Representative cases include AIDs litigation, medical malpractice,
mine
inspection, and banking litigation. The Staff initiates changes in
Department regulations implementing the FTCA, which apply
throughout the
government. The Staff provides guidance to all federal agencies,
subject
to oversight by Department officials, on policy issues arising
under the
FTCA. In addition, the Staff resolves administrative claims arising
from
Department of Justice activities to the extent that such claims are
not
delegated for direct handling to units within the Department.
Although most of the Staff's work consists of handling
litigation
directly, the Staff also provides oversight and guidance to United
States Attorneys' offices for FTCA litigation handled by those
offices.
The Torts Branch has prepared Monographs and a Handbook
covering
many recurring substantive issues pertaining to Federal Tort Claims
Act
(FTCA) litigation. The current FTCA Monographs are:
- Actionable Duty
- Administrative Claim Sum Certain Requirement and the Ad Damnum
Limitation
- Administrative Claims
- Checklist of FTCA Defenses
- Claims Under Wrongful Death and Survival Statutes and Claims
for Loss of
Consortium
- Discretionary Function Exception, Part A and Part B
- FTCA Exception: Claims Arising in a Foreign Country
- FTCA Statute of Limitations
- Indemnity and Contribution
- Law Enforcement Torts under the FTCA
- The Doctrines of Loss of Chance and Increased Risk
- Prejudgment and Postjudgment Interest in Federal Tort Claims
Act Litigation
- The Assault and Battery Exception
- The FTCA'S Contractor Exclusion and Related Issues
- The Misrepresentation Exception and the Interference with
Contract Rights
Exception
- The Feres Doctrine
Each United States Attorney has received copies of the
foregoing
Monographs. If an Assistant United States Attorney needs an
additional
copy of a particular Monograph, it can be obtained by calling (202)
616-4233 or by writing to the Torts Branch, Post Office Box 888,
Ben
Franklin Station, Washington, D.C. 20044. In addition, a looseleaf
handbook entitled "Damages Under the Federal Tort Claims Act" has
been
sent to each USAO and updated periodically. Contributions to the
Damages
Handbook are solicited from Assistant United States Attorneys.
United States Attorneys are authorized to make the
certification
provided for in 10 U.S.C. § 1089(c), 22 U.S.C. § 817(c), 28
U.S.C. § 2679(d), 38 U.S.C. § 4116(c), and 42 U.S.C.
§§
233(c) and 2458a(c), in order to substitute the United States as
defendant in place of federal employees acting within the scope of
their
federal employment who have been sued under state tort law.
See
28 C.F.R. § 15.3.
Sections 2651 to 2653 of Title 42 authorize the recovery of the
reasonable value of hospital, medical, surgical, or dental care and
treatment (including prostheses and medical appliances) which the
United
States is authorized or required by law to furnish or has furnished
to a
person who is injured or suffers a disease under circumstances
creating
tort liability upon the part of a third party.
Administrative agencies are bound by regulations promulgated by
the
Attorney General (28 C.F.R. §§ 43.1 to 43.4) and generally
will
prevail upon the insured person to assert the government's claim in
his/her own name for the use and benefit of the United States. 42
U.S.C.
§ 2651(b)(1) authorizes the government to intervene in the
insured
person's tort suit as of absolute right. If intervention is
necessary,
the injured person can normally be counted on to establish the
defendant's basic tort liability. Intervention should be utilized
as a
measure of last resort only if private counsel do not cooperate
with the
agency to protect our right to participate in agency recovery.
If advice is needed, the FTCA staff may be contacted at (202)
616-4254.
Section 1395y(b)(1) of Title 42 provides that Medicare shall be
a
secondary payor in certain circumstances, including automobile
accident
cases or other instances where a third party would otherwise be
liable
for medical costs. This provision also expressly authorizes the
United
States to bring an independent action to recover from an insurer
the
cost of Medicare payments needed as a result of an automobile
accident,
or to join or intervene in any such action.
If advice is needed, the FTCA staff may be contacted at (202)
616-4296.
| May 1998
| USAM Chapter 4-5
|