2 FAM 280
CLAIMS AGAINST THE UNITED STATES
(CT:GEN-533; 02-19-2019)
(Office of Origin: L/CID)
2 FAM 281 TORT CLAIMS
2 FAM 281.1 Authority
(CT:GEN-350; 01-23-2009)
Authorities addressed in this subchapter include the
Federal Tort Claims Act (28 U.S.C. 1346, 2671-2680) and the State Department
Basic Authorities Act of August 1, 1956, as amended (22 U.S.C. 2669-1), which
authorize the Secretary of State to receive, consider, settle, and pay tort
claims against the United States.
2 FAM 281.1-1 Tort Claims Within
the United States
(CT:GEN-353; 02-23-2009)
Under the Federal Tort Claims Act, the Secretary of State
or designee is authorized to consider and settle administratively tort claims,
except those specifically excluded by the act (28 U.S.C. 2680), on account of
damage to or loss of property or on account of personal injury or death arising
in the United States as a consequence of the negligent or wrongful act or
omission of any employee of the Department acting within the scope of the
employees employment under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the place
where the act or omission occurred.
2 FAM 281.1-2 Tort Claims Outside
the United States
(CT:GEN-353; 02-23-2009)
Under the State Department Basic Authorities Act, the
Secretary of State is authorized to pay tort claims arising in foreign
countries in connection with Department of State operations abroad in the same
manner as tort claims arising in the United States are paid under the
administrative settlement provisions of the Federal Tort Claims Act, 28 U.S.C.
2672.
2 FAM 281.1-3 Tort Claims Not
Addressed in This Subchapter
(CT:GEN-353; 02-23-2009)
a. Property damage claims arising out of the activities
of the United States Section, International Boundary and Water Commission,
United States, and Mexico. For such claims, consult 22 U.S.C. 277e, which
provides in part: The Secretary of State acting through such officers as he
may designate, is further authorized to consider, adjust, and pay from funds
appropriated for the project, the construction of which resulted in damages,
any claim for damages accruing after March 31, 1937, caused to owners of lands
or other private property of any kind by reason of the operations of the United
States, its officers or employees, in the survey, construction, operation, or
maintenance of any project constructed or administered through the American Commissioner,
International Boundary and Water Commission, United States and Mexico, if such
claim for damages does not exceed $1,000 and has been filed with the American
Commissioner within one year after the damage is alleged to have occurred, and
when in the opinion of the American Commissioner such claim is substantiated by
a report of a board appointed by the said Commissioner.
b. Property damage claims by U.S. Government employees
at a post abroad when the claims arise incident to their employment. For such
claims, consult 14
FAM 640.
c. Personal injury claims by U.S. Government
employees at a post abroad when the claims arise incident to their employment
(workers compensation claims). For such claims, please consult 3 FAM 3630.
2 FAM 281.1-4 Tort Claims of
Agencies Other Than State
(CT:GEN-353; 02-23-2009)
The U.S. Agency for International Development, the Foreign
Agricultural Service of the Department of Agriculture, the Department of
Commerce, the Departments of the Army, Navy, and Air Force, and the Veterans
Administration have separate authority to consider, settle, and pay tort claims
arising in foreign countries attributed to negligent acts or omissions of their
personnel in connection with activities of such agencies abroad. Tort claims arising
out of activities of the above-mentioned agencies and based on negligent or
wrongful acts or omissions of their personnel are not cognizable under the
State Department Basic Authorities Act. Such claims are handled in accordance
with the existing regulations and procedures with the existing regulations and
procedures of the respective agencies.
2 FAM 281.2 Delegation of Authority
(CT:GEN-350; 01-23-2009)
a. The Legal Adviser and the Deputy Legal Advisers are
authorized to consider, ascertain, adjust, determine, compromise, and settle
claims in an amount of $25,000 or less, which are capable of administrative
settlement under the Federal Tort Claims Act and the State Department Basic
Authorities Act. The Assistant Legal Adviser and Deputy Assistant Legal
Adviser for International Claims and Investment Disputes (L/CID) are authorized
to consider, ascertain, adjust, and determine all claims arising from the above
acts, including the denial of all claims, and to compromise and settle such
claims in the amount of $10,000 or less. Chiefs of mission and principal
officers of fiscal-reporting posts are authorized to consider, ascertain,
adjust, determine, and settle claims in an amount of $2,500 or less, which are
capable of administrative settlement under the State Department Basic
Authorities Act, arising out of the activities of their respective posts.
b. Awards in excess of $25,000 require the prior
approval of the Attorney General or the Attorney Generals designee.
2 FAM 281.3 Limitations
(CT:GEN-350; 01-23-2009)
Claims arising under the Federal Tort Claims Act and the
State Department Basic Authorities Act must be presented in writing within 2
years after accrual.
2 FAM 281.4 Action by Claimant
2 FAM 281.4-1 Claimant
(CT:GEN-95; 08-24-1967)
a. Claims for property loss or damage may be filed by
the owner of the property, the owners duly authorized agent or legal
representative, or survivors.
b. A claim for loss wholly compensated by an insurer
with the rights of a subrogee may be presented by the insurer.
c. A claim for loss partially compensated by an
insurer with the rights of a subrogee may be presented by the parties
individually as their respective interests appear, or jointly.
d. Claims for personal injury may be filed by the
injured person, the persons duly authorized agent or legal representative.
e. Claims for death may be filed by the executor or
administrator of the decedents estate or by any other person legally or
beneficially entitled to assert such a claim in accordance with applicable
local law governing the rights of survivors.
f. When filed by an agent or legal representative, the
claim is presented in the name of the real claimant; is signed by the agent or
legal representative; shows the title or legal capacity of the person signing;
and is accompanied by evidence of the persons authority to present a claim on
behalf of the claimant as agent, legal representative, executor, administrator,
parent, guardian, or other legal representative.
2 FAM 281.4-2 Form of Claim
(CT:GEN-350; 01-23-2009)
All claims must be submitted in writing, preferably on
Form SF-95, Claim for Damage, Injury, or Death. Copies of the claim must be
furnished upon request to the Department. The claim must contain sufficient
information to allow the Department to conduct an investigation of the matter,
which will be conducted by the relevant post or bureau, often in coordination
with L/CID. It is especially important that the claimant specify the amount
claimed for property damage and for personal injury, and that the claimant or
his/her representative sign the document.
2 FAM 281.4-3 Place of Filing
Claim
(CT:GEN-350; 01-23-2009)
A claim must be submitted directly to the office, bureau,
division, or Foreign Service establishment of the Department, or of the
Commission, out of whose activities the accident or incident occurred, if
known; if not known, to the Office of the Assistant Legal Adviser for
International Claims and Investment Disputes, L/CID, Department of State,
Washington, DC 20520.
2 FAM 281.4-4 Evidence and
Information To Be Submitted by Claimant
(CT:GEN-350; 01-23-2009)
a. General: The amount claimed on account of damage to
or loss of property or on account of personal injury or death must, so far as
possible, be substantiated by competent evidence. Supporting statements,
estimates, and the like must, if possible, be obtained from disinterested
parties. When possible, all documents in other than the English language
should be accompanied by English translations.
b. Death: In support of a claim based on death, the
claimant may be required to submit the evidence or information listed in 28 CFR
14.4 (a).
c. Personal injury: In support of a claim for
personal injury, including pain and suffering, the claimant may be required to
submit the evidence or information listed in 28 CFR 14.4 (b).
d. Damage to property: In support of a claim for
damage to or loss of property, real or personal, the claimant may be required
to submit the evidence or information listed in 28 CFR 14.4 (c).
2 FAM 281.5 Investigation of Claims
(CT:GEN-350; 01-23-2009)
a. When a claim (except those arising outside the United States in an amount of $2,500 or less) is received, the office, bureau, division, or
post out of whose activities the claim arose should inform L/CID immediately.
Unless informed otherwise, and in consultation with L/CID, the relevant office,
bureau, division, or post should then make such investigation as may be
necessary or appropriate for a determination of the validity of the claim.
Such investigation will include a statement by the supervisor of the activities
out of which the claim arose, setting forth the supervisor's views concerning
the accident or incident and any additional information or evidence relating to
the claim.
b. The claim, together with all pertinent material, and
a recommendation based on the merits of the case with regard to allowance or
disallowance of the claim, will be transmitted to L/CID for a decision. (With
regard to the processing of vouchers for a claims settlement award, see 4 FAM 480.)
c. If the claim arises outside the United States and is less than $2,500 in total, it is not necessary to transmit the above
materials to L/CID. A decision on allowance or disallowance may be made by the
chief of mission or the principal officer of a fiscal-reporting post (see 2 FAM 281.2),
unless the conditions set forth in 2 FAM 281.7
are present.
d. A chief of mission or principal officer of a
fiscal-reporting post may, at that officers discretion, appoint from among
post personnel a committee of no less than three U.S. Government officers or
employees to review claims arising at the officers post or at a constituent
post and to make recommendations as to the settlement of claims. The
determination and settlement of a claim will be made by the chief of mission or
principal officer of a fiscal-reporting post, even when an advisory committee
has also reviewed the claim.
e. Pursuant to instructions from the Department, acting
at the request of any other Federal agency, a post must make such
investigations as may be necessary or appropriate for the determination of the
validity of the claim arising outside the United States and thereafter must
forward the claim, together with all pertinent material, and a recommendation
regarding allowance or disallowance of the claim, to L/CID for transmission to
the requesting agency.
2 FAM 281.6 Determination of Claims
(CT:GEN-533; 02-19-2019)
Claims will be determined in accordance with the
applicable statute and the applicable subpart of this part. Questions of law
will be determined in accordance with the law of the place where the accident
or incident occurred. The procurement of legal services by post (see 2 FAM 282) may
be necessary in order to determine whether payment is appropriate.
2 FAM 281.7 Adjustment or
Settlement of Claims
(CT:GEN-350; 01-23-2009)
a. No claim may be adjusted or settled by a chief of
mission or principal officer of a fiscal-reporting post if it exceeds $2,500.
b. Except on written instructions from the Legal Adviser,
a Deputy Legal Adviser, the Assistant Legal Adviser for L/CID, or the Deputy
Assistant Legal Adviser for L/CID, no claim may be adjusted or settled by a
chief of mission or principal officer of a fiscal-reporting post if it falls
within one of the following categories:
(1) A new precedent or new point of law;
(2) A claim that involves or may involve a question of
policy;
(3) A claim in which the United States is or may be
entitled to indemnity or contribution from a third party, and the claim against
the third party has not been settled;
(4) A claim whose adjustment or settlement would, for
any reason, control the disposition in a related claim in which the amount to
be paid may exceed $25,000; and
(5) A claim in which the United States, an employee, agent,
or cost-plus contractor is involved in litigation based on a claim arising out
of the same transaction.
c. If a chief of mission or principal officer of a
fiscal-reporting post determines, after the investigation of the claim has been
completed, that the claim may fall within one of the categories listed in
paragraphs a or b of this section, the responsible officer must transmit the
claim, together with all pertinent material, to L/CID.
d. When the Legal Adviser, a Deputy Legal Adviser, or
the Assistant Legal Adviser for L/CID determines that a claim falls within one
of the categories listed in paragraphs a or b of this section, he or she should
consult the Department of Justice. Such consultation may be initiated by a
written communication addressed to the Assistant Attorney General, Civil
Division, containing:
(1) A short and concise statement of the facts and of
the reasons for the referral;
(2) Copies of relevant portions of the claim file; and
(3) A statement of the recommendations and views of
the Department.
e. The settlement of a claim for an amount in excess of
$25,000 may not be effected until the Legal Adviser, Deputy Legal Adviser, the
Assistant Legal Adviser for L/CID, or the Deputy Assistant Legal Adviser for
L/CID has obtained the written approval of the Department of Justice.
Consultations with a view to obtaining such approval should be initiated as
provided in paragraph d of this section. For the purpose of this paragraph, a
principal claim and a derivative or subrogated claim will be treated as a
single claim.
2 FAM 281.8 Final Denial of Claim
(CT:GEN-350; 01-23-2009)
Final denial of an administrative claim will be made in
writing in accordance with 28 CFR 14.9 (a).
2 FAM 281.9 Acceptance of Award or
Settlement by Claimant
(CT:GEN-350; 01-23-2009)
The acceptance by the claimant of an award, compromise, or
settlement is considered by the Department to be final and conclusive on the
claimant, the claimants agent, attorney, or legal representative, and any
person on whose behalf (or for whose benefit) the claim has been presented, and
constitutes a complete release of any claim against the United States and
against any employee of the Government whose act or omission gave rise to the
claim, by reason of the same subject matter. It is important to obtain the
relevant partys signature on a settlement and release form prior to payment of
a settlement. L/CID will provide posts with appropriate settlement and release
language upon request.
2 FAM 281.10 Attorneys Fees
(CT:GEN-350; 01-23-2009)
Attorneys fees for services rendered in connection with a
claim are limited by 28 U.S.C. 2678.
2 FAM 282 PROCUREMENT OF LEGAL SERVICES BY THE POST
(CT:GEN-533; 02-19-2019)
See also Welfare and whereabouts (7 FAM 100); Suits
Against the U.S. Government and/or U.S. Government Employees (7 FAM 970); and
Extradition of Fugitives to the United States (7 FAM 1620).
2 FAM 282.1
Authorization of Principal Officer
To Procure Legal Services
(CT:GEN-533; 02-19-2019)
Whenever legal services are required by the post to
protect the U.S. Governments interests or to enable a U.S. Government officer
or employee to perform duties (including protection of U.S. nationals) or to
carry on service in an efficient manner, the principal officer must inform the
Office of Diplomatic Law and Litigation (L/DL) of the situation and request
authorization to procure necessary legal services. Except as provided in
section 2 FAM
282.2, such requests are made on a case-by-case basis, and no agreement or
obligation may be made with any attorney or solicitor (which includes lawyers,
barristers, and other legal advisers or representatives) prior to approval by
the Department.
2 FAM 282.2
Emergency Authorization
(CT:GEN-533; 02-19-2019)
In exceptional circumstances involving an emergency when
it is evident that any delay would cause irreparable injury to the interests of
the Government, or when legal services need to be obtained without delay to
enable the Government to meet its responsibilities in the protection of a U.S.
national, the chief of mission may approve procurement of legal services when
in his or her judgment the facts appear to warrant such action. However, this
authority does not extend to the procurement of legal services to represent the
interests of the U.S. Government in matters before foreign courts or other foreign
tribunals. (See 2
FAM 283.) This authority also does not extend to a Government commitment
for employing legal counsel to represent a U.S. citizen. An immediate report
of each such case must be provided to the Office of Diplomatic Law and
Litigation, including all the information required under 2 FAM 282.4.
2 FAM 282.3
Special Post Situation
(CT:GEN-533; 02-19-2019)
In any post where recurring problems are anticipated
because of the provisions of local law or because of special circumstances
peculiar to the post, a full report must be submitted to L/DL, with a request
for authorization to enter into an agreement with a local attorney or solicitor
for services on a retainer basis. Complete information as required by 2 FAM 282.4 must be furnished, and no agreement or
commitment may be entered into until approval is received from the Department,
including from L/DL.
2 FAM 282.4
Information Required for Approval
of Legal Services
(CT:GEN-533; 02-19-2019)
The following information must be furnished to L/DL to
request approval to obtain legal services, or to report emergency procurement
of such services:
(1) The factual situation out of which the legal
questions have arisen, or are expected to arise;
(2) Name, address, telephone and fax numbers of the
attorney or solicitor whose services are desired, or whose services are
employed;
(3) Statement of the general background,
qualifications, and experience of the attorney or solicitor, and if listed
under 7 FAM 990;
(4) Comparative standing of the attorney or solicitor
in the law profession, indicated by reputation and rating, as given in any
professional rating service available; and
(5) Estimated cost of services and length of time for
which they will be or were required.
2 FAM 283 SUITS IN FOREIGN COUNTRIES AGAINST THE UNITED
STATES
2 FAM 283.1
Background
(CT:GEN-533; 02-19-2019)
a. It has been agreed by the Departments of State,
Defense, and Justice that the Justice Department will represent the
Governments interests in suits instituted in foreign courts against the United
States or its agencies and instrumentalities, and suits against officers and
employees of the United States when such suits are apparently based upon the
individuals performance of official acts.
b. Action by the Justice Department in the event of
litigation within the purview of this section will include the engagement and
instruction of local legal counsel (which includes attorneys, solicitors,
lawyers, barristers, and other legal advisers and representatives).
Accordingly, section 2 FAM 282 is not applicable in such cases.
2 FAM 283.2
Scope
(CT:GEN-533; 02-19-2019)
a. Suits against the United States or an agency
thereof: From time to time, suits are filed in foreign countries against the
U.S. Government or against its agencies such as Army, Navy, and Air Force
bases; missions, and units; post and naval exchanges; officers and
noncommissioned officer clubs and messes; military assistance advisory groups
(MAAGs); U.S. operations missions (USOMs); USAID missions; embassies and
consulates, etc. Most agencies are not legal persons under U.S.
law, and suits against them should be treated as suits against the U.S.
Government.
b. Suits against individuals: Suits are also filed
from time to time against individual U.S. officers and employees. Suits
apparently related to the performance of official duties should be reported
under this section. If a suit clearly is based upon the individual defendants
private acts, it is not within the purview of this section, but should be
reported in accordance with section 2 FAM 226.
2 FAM 283.3
Foreign Litigation
(CT:GEN-533; 02-19-2019)
a. Receipt of notice: Embassies and other posts abroad
can receive notices from host state judicial or other tribunals either
requesting information, testimony or records or communicating notice of
litigation. Such notice may arrive at post by mail, by messenger, or under
cover of a diplomatic note. In rare cases, notice is sometimes provided by
publication in a newspaper or other means. The notice may identify as a party
the United States, the U.S. Government, the embassy, a current or former
embassy official, or even a component part of the diplomatic or consular
mission, such as a USAID mission or public information office. In all cases,
the Department (L/DL) and the Department of Justice, Office of Foreign
Litigation, immediately should be notified via a front channel cable. If, due
to time constraints, a cable cannot be sent, notification may be made via
email, fax or telephone, or a combination of those methods.
b. Information provided to the Office of Diplomatic Law
and Litigation (L/DL) should include:
(1) The precise date on which the notice was received;
(2) All details concerning how the papers were
delivered or how notice was received;
(3) A description of the documents received (e.g.,
letter or formal court paper);
(4) The name and location of the court or tribunal
mentioned on the papers;
(5) The name(s) of the plaintiffs/claimants;
(6) The identities of the U.S. parties named as
defendant(s) (i.e., the embassy, USAID, the consul general);
(7) Whether the documents and all attachments are in English;
(8) The date by which a response to the papers is
required/requested; and
(9) What the case is about, to the extent post can
determine such information from the notice. Where practicable, the papers
should be faxed or emailed to the Department (L/DL) together with a summary
translation if the originals are not in English.
c. Response by the Department: The Department will
consult with the Justice Department and, as appropriate, with other U.S.
Government agencies and respond to post regarding next steps as soon as
possible. If the notification of the individual or entity is insufficient
under customary international law, post usually will be instructed to send the
papers and a covering diplomatic note to the Ministry of Foreign Affairs (MFA)
with a request that service properly be made. L/DL will provide posts with
specific language for any necessary diplomatic notes in a given case. The U.S.
Government position is that acceptable service of process on the U.S.
Government generally is service transmitted through the foreign ministry,
providing adequate time of at least 60 days after such service before any court
appearance or responsive pleading is required. The U.S. Government also
requests that official documents be served with an English translation to
facilitate a response.
d. Conducting litigation:
(1) Report to Department: L/DL and the Department of
Justice will contact reporting posts for information about the nature of a
lawsuit and any information the post may wish to have considered in respect of
its particular local situation. Requested information regarding the nature of
the suit may include a detailed report on both the facts of the case and the
issues that have been or are expected to be raised in the litigation by any
party to the case, as well as the identification of relevant documents and
witnesses; and
(2) Action by post during course of suit: The Justice
Department will retain and supervise attorneys to handle local litigation,
subject to 2 FAM
512. The Justice Department and the local attorney will be working with
post, both to obtain information and to seek guidance on factual issues and
policies. L will continue to provide the Department of States input regarding
legal policy questions (e.g., assertion of sovereign immunity) after
consultation with relevant bureaus and other agencies. Posts should refrain
from instructing local counsel in any of the matters with which counsel is
charged by the Justice Department, but should feel free to raise any concerns
with L/DL or the Office of Foreign Litigation at the Justice Department. In
addition, posts should keep L/DL and the Justice Department currently informed
of any activity (e.g., receipt of documents; communication from the ministry of
foreign affairs (MFA), the court, the plaintiff, or other individual, etc.) in
the case.
2 FAM 283.4
Sovereign Immunity
2 FAM 283.4-1 Claim
of Sovereign Immunity Through Diplomatic Channels
(CT:GEN-533; 02-19-2019)
Posts must not claim sovereign immunity through diplomatic
channels without first obtaining L/DLs authorization and instructions. If the
Department decides that representations should be made through diplomatic
channels to the government concerned, it will so advise the Department of
Justice and will send appropriate instructions to the post. The Departments
decision will be based on the established policy for sovereign immunity cases.
However, if the Department has reason to believe that the case is of unusual
interest to a particular post, the post will be asked to comment if it has not
already done so.
2 FAM 283.4-2 Pleading
a Defense of Sovereign Immunity Through Local Counsel
(CT:GEN-533; 02-19-2019)
a. Consultation with the Department: The Department of
Justice consults with the Department in cases in which it contemplates filing a
plea of sovereign immunity.
b. Possible foreign policy objection to filing a plea
of sovereign immunity: Communicate any foreign policy considerations relevant
to asserting or failing to assert a plea of sovereign immunity to the Department
(L/DL). Any such concerns will be resolved by consultation between the
interested entities in Washington.
2 FAM 283.5
Post To Be Kept Informed
Concerning Suits
(CT:GEN-533; 02-19-2019)
a. The Department of Justice will keep the posts
informed concerning suits against the United States or any of its agencies by
making them an information addressee of its correspondence with local counsel
either directly or through the Office of the Legal Adviser of the Department.
b. Posts will prepare and process vouchers for payment
of adverse judgments or compromise settlements only in accordance with
instructions to be furnished in each case by the Department.
2 FAM 283.6
Necessity To Avoid Default
Judgments
(CT:GEN-533; 02-19-2019)
Strict adherence to the foregoing procedures established
by this section is required in order to avoid having default judgments entered
against the United States Government, its agencies, instrumentalities, and
officers and employees.
2 FAM 284 THROUGH 289 UNASSIGNED