Description: http://www.fws.gov/policy/fws_col.gif401 FW 1, Claims Against the Government


FWM#:       219 (new)
Date:          October 5, 1995
Series:        Legal
Part 401:   Claims
Originating Office: Division of Contracting and General Services


1.1 General. Department of the Interior and Service policy and procedure regarding property loss, property damage, personal injury, death due to alleged negligence, omissions or wrongful acts by Service employees while acting within their scope of office or employment is contained in 451 DM 1, Tort Claims Against the United States. In any area of disagreement between this Chapter and 451 DM 1, procedures contained in 451 DM 1 prevail.

1.2 Policy. Determination of whether a claim against the Government may be allowed on the basis of fact and applicable law is a legal or judicial responsibility of the Office of the Solicitor. However, all Service officials and managers are responsible for the prevention of situations which cause such claims. When a claim is made or threatened, Service officials and managers are responsible for proper investigation, documentation, and processing of claims within their areas of control. Service officials and managers will work closely with the Office of the Solicitor and the U.S. Attorney toward the resolution of all claims filed against the Service.

1.3 Authorities.

A. Part 451 of the Departmental Manual, Chapter 1, Claims.

B. 28 U.S.C. 2671-80, Federal Tort Claims Procedure.

1.4 Federal Tort Claims.

A. A tort claim is any claim against the Government arising out of alleged negligence, omissions or wrongful acts of a Government employee or official. Claims against the Government arise from many causes, such as automobile collisions, poisoning of livestock from herbicides, careless manipulation of water controls, escape of fire in controlled burning operations, etc.

B. The Federal Tort Claims Act permits injured persons to submit claims for administrative determination; or to bring suits for damages in the Federal District Court on those claims that have been rejected administratively. Generally, claims must be filed or suits begun within two years from the time of injury. The claimant must sign a release before administrative award.

1.5 Responsibilities of Service officials and employees are as follows:

A. Assistant Director - Policy, Budget and Administration (APBA).

(1) The Assistant Director has overall responsibility for the prompt processing of all claims against the Service, claims by the Service, and employee claims.

(2) Within Headquarters, the Assistant Director carries out all duties and responsibilities of the Regional Director as regards Part 401. The Assistant Director is assisted by the Facilities Management Officer in the Division of Contracting and General Services, who serves as the Tort Claims Officer for Headquarters, and is responsible for processing all tort claims for Headquarters.

B. Regional Directors designate a Regional Tort Claims Officer who assists Regional personnel process claims against the Service, and whose duties in the capacity of the Torts Claims Officer ordinarily have priority over any other assignments. The Regional Director ensures regional compliance with all provisions of this Part.

C. Managers and Supervisors are responsible for:

(1) Taking reasonable steps to prevent accident, injury, loss of or damage to property, and loss of life. Reasonable steps include adherence to safety and health policy and regulations, proper training and supervision of employees, and dissemination of guidance necessary to ensure the safety of visitors.

(2) Properly handling claims; proper reporting, and as appropriate, investigating claims to protect the Government's, employee's, and claimant's interest.

(3) Taking appropriate corrective and other follow-up actions, including recommending disciplinary action, to prevent recurrence of claims against the Government.

D. Regional Safety Managers assist the Tort Claims Officers by providing pertinent information concerning specific claims as well as pertinent information concerning related accidents, or potential claims.

E. Employees. When a lawsuit is threatened or filed against an employee for torts arising out of Government service, the employee should notify his or her supervisor. Should a claim result, the employee should deliver all process papers and pleadings to the supervisor. All subsequent action is in accordance with guidance received from the Tort Claims Officer.

F. Tort Claims Officers shall provide assistance to the Solicitor who is the official authorized to make determination of awards or denials of claims. Additionally, the Tort Claims Officer provides assistance to Regional or Headquarters managers and supervisors in processing tort and employee claims against the Service.

(1) For all accidents which may result in tort claims, whether or not a claim has been filed, the Tort Claims Officer is responsible for collecting information and evidence to protect the Government's interest, and conducting any such further investigation requested by the Solicitor.

(2) The nature and extent of the Tort Claims Officer's investigation depends on the seriousness of the accident and the need for additional information. The Tort Claims Officer takes the following actions and others, as necessary:

(a) Reviews related accident reports and obtains such reports for the Solicitor if they have not been submitted.

(b) Considers all information and evidence obtained from any previous investigation with regard to any aspect of the present accident.

(c) Secures and considers signed statements from all competent witnesses to the incident. Witnesses should be interviewed at the earliest opportunity.

(d) Inspects accident/incident sites, damaged property, and interviews injured persons or their representatives.

(e) Ascertains the nature, extent, and amount of damage or injury and obtains all pertinent repair bills, medical or hospital bills, estimates, etc.

(f) Ascertains whether the employee involved carried liability insurance which might cover, in whole or in part, the damage or injury sustained and might provide protection from legal action.

(g) Consults with appropriate Solicitor to determine action to be taken to aid the employee. The Tort Claims Officer advises the Solicitor of the status of any case filed.

(h) Consults with the Regional Safety Manager to ensure that all materials pertinent to the accident/incident from which the tort claim arises have been included in the case file.

(i) Prepares a case/report file which includes, where appropriate, photographs, measurements, doctor's certificate of bodily injury, police investigation reports, operator's statement, agency's recommendations, witnesses' statements, and any other pertinent data.

(j) The case file is submitted to the Solicitor for action and determination.

1.6 Claimant Action. A claimant must file a claim with the Service for determination by the Department. To do so, the claimant completes SF-95, Claim for Damage or Injury. However, the claimant may file a claim in any form, providing it contains the information specified in the SF-95. Specific areas to be addressed are:

A. Name and address of claimant, including telephone number.

B. A detailed description of the place of incident.

C. Date and time of incident.

D. Dollar amount of claim, including property damage and personal injury, including cost of related rentals and services. The claim must be for a sum certain amount.

E. Description of incident.

F. Name and address of property owner if other than claimant.

G. Location of damaged property and extent of damage.

H. If an injury occurred, nature and extent of injury.

I. Name, addresses, and telephone numbers of any witnesses.

J. If applicable, name, address and telephone number, and policy number of insurance carrier.

K. Statement as to whether claim has been filed with an insurance carrier and action of carrier, if known.

1.7 Employee Action.

A. Immediately upon involvement in an accident resulting in personal injury or damaged property of a private individual, the employee shall complete form DI-134, Accident/Incident Report, and submit the DI-134 in accordance with 240 FW 7, Report of Accident/Incident.

B. In discussing the accident with a potential claimant or claimant's representative, the employee shall not state his or her conclusion as to fault. The employee shall state the facts in full, as distinguished from personal opinions and conclusions.

C. If the employee carries personal liability insurance, a statement showing the amount of coverage and name and address of the insurance carrier is attached to the DI-134. The employee shall advise the insurance carrier of the accident immediately.

D. If a claim is filed at a field station, the project leader enters the time and date received in the margin, and transmits the claim through channels to the Tort Claims Officer.

E. When the claim involves an injury or illness, medical evidence shall be presented with the claim. If the claimant does not submit competent medical evidence the Regional Director may seek a medical examination of the claimant by a reputable private doctor. The doctor's fee is payable from appropriations available for payment of claims arising under the Federal Tort Claims Act (29 Comp. Gen. 111; September 6, 1949).

1.8 Procedures For Investigating Potential Tort. The employee's supervisor will follow procedures contained in 240 FW 7. However, in investigating accidents which involve members of the public or private property or accidents/incidents which have resulted or may result in a claim against the Service, the following also apply.

A. A Standard Form 91, Investigative Report of Motor Vehicle Accident, must be completed when a motor vehicle accident occurs.

B. Supervisors review all forms for completeness and consult with the Regional Safety Manager to ensure that all steps have been taken to document the case fully.

C. The Regional Safety Manager reviews all DI-134s to determine whether a potential exists for a claim against the Government and ensures that all pertinent documents are transmitted along with the DI-134. The Regional Safety Manager may request that the supervisor submit additional information, forms, or documentation.

D. In cases where a claim against the Government is filed, a copy of the DI-134 is submitted to the Tort Claims Officer along with other pertinent information and documentation to facilitate the Tort Claims Officer's investigation in accordance with 1.5F).

1.9 Final Denial and Reconsideration.

A. The Solicitor prepares a final denial of administrative claim in writing and sends it to the claimant, his/her attorney, or legal representative by certified or registered mail. The notification of final denial may include a statement of the reasons for the denial, and shall include a statement that the claimant is entitled to resubmit the claim to the deciding official or file suit in the appropriate U.S. District Court within six months if dissatisfied with the determination. The initial decision is final unless reconsideration is requested.

B. The Solicitor has six months from the date of filing of the reconsideration request to make a final disposition of the claim. Final action on a request for reconsideration must be in writing and sent to the claimant, the claimant's attorney, or legal representative by certified or registered mail. The notification of final denial may include a statement of the reasons for the denial and shall include a statement that the claimant is entitled to submit the claim to the appropriate U.S. District Court within six months.

1.10 Employee Liability.

A. An injured party may choose to sue the involved employee individually, the employee and the Service jointly, or the Service alone. The Federal Tort Claims Act provides that any suit brought against an employee or an employee's estate, for an injury resulting from the operation of a motor vehicle (Government-owned or leased, or privately owned), while acting within scope of employment, will be deemed to be against the United States and will be defended by the U.S. Attorney. Authority to determine whether or not the employee was acting within the scope of employment has been delegated to the U.S. Attorney.

B. Although the Tort Claims Act substantially reduces an employee's liability, it does not provide the employee with absolute protection. Further, the U.S. Attorney, or the district court, may determine that the employee was not acting within the scope of employment, and the employee is then personally liable for any injury involved. In view of this possibility, employees should consider carrying broad-form personal liability insurance.

C. If an employee is served with papers requiring proof of financial responsibility under a State law imposing such a requirement with respect to automobile accidents, and the employee's own insurance carrier disclaims liability such papers are forwarded with the process papers and pleading to the Tort Claims Officer. The finding of the U.S. Attorney as to the applicability of the Federal Tort Claims Act may be forwarded to the State agency as proof of financial responsibility.



For additional information regarding this Web page, contact Krista Bibb, in the Division of Policy and Directives Management, at Krista_Bibb@fws.gov 


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