4-5.100
Tort Litigation—Generally
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.
4-5.110
Torts Branch Components—Aviation and Admiralty
|
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.
4-5.120
Torts Branch Components—Constitutional and Specialized Torts
|
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.
4-5.130
Torts Branch Components—Environmental Torts (formerly
Environmental and Occupational Disease Litigation)
|
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.
4-5.140
Torts Branch Components—Federal Tort Claims Act Staff
|
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.
4-5.200
Torts Branch Procedures—Conduct of FTCA Litigation
|
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.
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.
[cited in USAM 4-1.600]
4-5.220
Torts Branch Procedures—Substantive Considerations in FTCA
Litigation
|
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.
4-5.230
Torts Branch Procedures—Settlement of Federal Tort Claims Act
Suits
|
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.
4-5.240
Torts Branch Procedures—FTCA Payment Procedure
|
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."
4-5.300
Aviation and Admiralty Litigation—Contacts and Mailing
Information
|
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.
| 4-5.310
Admiralty Litigation
|
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.
[cited in USAM 4-5.200]
4-5.320
Aviation Litigation
|
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.
4-5.400
Constitutional and Specialized Torts—Contacts and Mailing
Information
|
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
[cited in USAM 4-5.200]
4-5.410
Constitutional and Specialized Torts—Introduction
|
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.
4-5.412
Constitutional Torts—Representation Process
- 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.
4-5.415
Constitutional Torts—Appealability of Immunity Claims
|
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).
4-5.420
National Vaccine Injury Compensation Program—Contacts and
Mailing Information
|
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
| 4-5.421
National Vaccine Injury Compensation Program—Introduction
|
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.
4-5.422
Disposition of Cases Under the Vaccine Program
|
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.
4-5.423
Action Following Receipt of a Vaccine Case
|
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.
4-5.430
Radiation Exposure Compensation Program—Contacts and Mailing
Information
|
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
| 4-5.431
Radiation Exposure Compensation Program—Introduction
|
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.
4-5.432
Radiation Exposure Compensation Program—Categories and
Criteria
|
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.
4-5.437
Action Following Receipt of a Radiation Program Claim
|
The Act also affords the right to seek judicial review of a final action
in a United States District Court. §6(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.
4-5.500
Environmental Torts (Formerly Environmental and Occupational Disease
Litigation (EODL))—Contacts and Mailing Information
|
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
[cited in USAM 4-4.210;
4-4.210;
4-5.200]
4-5.510
Environmental Torts (Formerly Environmental and Occupational Disease
Litigation (EODL))—Introduction
|
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.
[cited in USAM 4-5.520]
4-5.520
Conduct of Toxic Tort and Asbestos Litigation
|
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.
[updated May 1998]
4-5.600
Federal Tort Claims Act Staff—Contacts and Mailing
Information
|
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
[cited in USAM 4-5.200;
4-5.520]
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