[Federal Register Volume 67, Number 204 (Tuesday, October 22, 2002)]
[Proposed Rules]
[Pages 64844-64846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-26832]


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DEPARTMENT OF JUSTICE

28 CFR Part 15

[CIV 102P; AG Order No. 2621-2002]
RIN 1105-AA62


Certification and Decertification in Connection With Certain 
Suits Based Upon Acts or Omissions of Federal Employees and Other 
Persons

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: In cases where employees of the Federal Government are sued 
for money damages based on alleged torts, if the Attorney General 
certifies that the employees (and certain non-employees) were acting 
within the scope of their office or employment at the time of the 
incident out of which the suit arose, the suit would be deemed an 
action against the United States under the Federal Tort Claims Act. 
This proposed rule conforms Department regulations on this subject to 
the provisions of the Federal Employees Liability Reform and Tort 
Compensation Act that expanded the tort protections for Federal 
employees (and certain non-employees).

DATES: Submit comments on or before December 23, 2002.

ADDRESSES: Address all comments concerning this proposed rule to 
Jeffrey Axelrad, Director, Torts Branch, Civil Division, U.S. 
Department of Justice, P.O. Box 888, Benjamin Franklin Station, 
Washington, DC 20044.

FOR FURTHER INFORMATION CONTACT: Jeffrey Axelrad, Director, Torts 
Branch, Civil Division, U.S. Department of Justice, P.O. Box 888, 
Benjamin Franklin Station, Washington, DC 20044.

SUPPLEMENTARY INFORMATION: In 1961 Congress passed the Federal Drivers 
Act, Public Law 87-258, 75 Stat. 539, which immunized Federal employees 
from liability for money damages based on torts involving the operation 
of motor vehicles within the scope of their employment. In the event 
that a Federal employee was sued in such a case, the statute authorized 
the Attorney General to issue a certification that the employee was 
acting within the scope of his or her employment at the time of the 
incident out of which the suit arose, and the suit thereafter would be 
deemed a tort action against the United States pursuant to the Federal 
Tort Claims Act, 28 U.S.C. 1346(b), 2671-2680.
    In ensuing years, Congress enacted a number of similar 
certification statutes to protect medical and legal personnel employed 
by certain Federal agencies from tort liability for professional 
malpractice arising within the scope of their employment. E.g., 10 
U.S.C. 1054 (Department of Defense legal personnel); 10 U.S.C. 1089 
(Department of Defense medical personnel); 22 U.S.C. 2509(j) (Peace 
Corps medical personnel); 22 U.S.C. 2702 (Department of State medical 
personnel); 38 U.S.C. 7316 (Department of Veterans Affairs medical 
personnel); 42 U.S.C. 233 (Public Health Service medical personnel); 42 
U.S.C. 2458a (National Aeronautics and Space Administration medical 
personnel).
    Most recently, the Federal Employees Liability Reform and Tort 
Compensation Act, 28 U.S.C. 2679(b)-(e), became law. This certification 
statute, which replaced the less comprehensive Federal Drivers Act, 
extended immunity from liability for money damages to Federal employees 
for all common law torts committed within the scope of their 
employment.
    A number of certification statutes also have been enacted to 
protect certain non-employees from tort liability arising out of 
certain Federal programs. As part of the National Swine Flu 
Immunization Program of 1976, Public Law 94-380, 90 Stat. 1113, 
Congress authorized the Attorney General to issue certifications in 
suits brought against certain agencies, organizations, and individuals 
that participated in the manufacture, distribution, and administration 
of the swine flu vaccine. Similar authority has been conferred on the 
Attorney General with respect to certain suits against fiduciaries of 
the Federal Retirement Thrift Savings Fund (5 U.S.C. 8477(e)(4)); 
atomic weapons testing contractors (42 U.S.C. 2212); and certain 
individuals enrolled as volunteers in National Volunteer Programs (42 
U.S.C. 5055(f)).
    Finally, several statutes, without expressly providing for 
certification, confer Federal employee status on certain persons who 
would not otherwise be encompassed within the Federal Tort Claims Act's 
definition of an ``employee of the government'' as that term is defined 
by 28 U.S.C. 2671. E.g., 5 U.S.C. 3102 (persons employed to assist 
handicapped federal employees in performing duties); 5 U.S.C. 3111 
(unpaid student volunteers); 7 U.S.C. 2272 (volunteers to Department of 
Agriculture); 10 U.S.C. 1588 (volunteers to Armed Services); 16 U.S.C. 
18i (volunteers to National Park Service); 16 U.S.C. 558c (volunteers 
to Forest Service); 22 U.S.C. 2504 (Peace Corps volunteers); 29 U.S.C. 
2897 (Job Corps enrollees); 33 U.S.C. 569c (volunteers to Army Corps of 
Engineers); 42 U.S.C. 3788 (volunteers to Office of Justice Programs, 
Bureau of Justice Assistance, National Institute of Justice Assistance, 
and Bureau of Justice Statistics).
    Part 15 has not been revised since the enactment of the Federal 
Employees Liability Reform and Tort Compensation Act. The regulations 
were initially promulgated after passage of the Federal Drivers Act, 26 
FR 11420 (1961), and revised as additional certification statutes were 
enacted. See 40 FR 4910 (1975); 42 FR 15409 (1977); 44 FR 9379 (1979); 
49 FR 44995 (1984). As last revised, Part 15 comprises three sections 
(15.1, 15.2, and 15.3) and an appendix. Each section in turn is 
subdivided into three subsections that govern suits subject to: (1) The 
Federal Drivers Act and the malpractice certification statutes; (2) the 
swine flu statute; and (3) the atomic weapons testing statute.
    This proposed rule revises Part 15 to conform it to the provisions 
of the Federal Employees Liability Reform and Tort Compensation Act, 
and to delete references to specific certification statutes. Section 
15.1 is new and sets forth definitions of the terms ``appropriate 
Federal agency,'' ``Federal employee,'' and ``covered person.'' 
Sections 15.2, 15.3, and 15.4 cover the same subjects that were covered 
by the prior versions of sections 15.1, 15.2, and 15.3, respectively, 
except that rather than the former tripartite subdivision, each section 
is subdivided into two paragraphs, one of which governs suits against 
Federal employees, and the other which governs suits against covered 
persons. Under the proposed rule, the procedures governing actions 
against Federal employees continue to apply in actions against estates 
of Federal employees. The appendix is removed.

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review.'' The 
Department of Justice has determined that this rule is a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review, and

[[Page 64845]]

accordingly this rule has been reviewed by the Office of Management and 
Budget.

Clarity of the Regulations

    The Attorney General invites comments on how to make these proposed 
regulations easier to understand. Send any comments that concern how 
the Department could make these proposed regulations easier to 
understand to the person listed in the ADDRESSES section of the 
preamble.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it 
certifies that this regulation will not have a significant economic 
impact upon a substantial number of small entities for the following 
reasons: This rule pertains to Federal employees and certain non-
employees against whom civil actions are filed under circumstances in 
which the remedy against the United States under the Federal Tort 
Claims Act has been made exclusive of the remedy against such Federal 
employees and non-employees. The regulation requires Federal employees 
in those circumstances promptly to deliver the process and pleadings in 
such actions to their employing Federal agency, and the agency to send 
a report concerning the matter to the appropriate United States 
Attorney and the responsible Branch Director of the Torts Branch, Civil 
Division, Department of Justice. The regulation further requires 
covered non-employees in those circumstances promptly to deliver the 
process and pleadings in such actions to the appropriate Federal 
agency, and the agency to send a report concerning the matter to the 
appropriate United States Attorney and the responsible Branch Director 
of the Torts Branch, Civil Division, Department of Justice. The rule's 
economic impact is minimal.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by Section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100,000,000 or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of the United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

List of Subjects in 28 CFR Part 15

    Authority delegations (Government agencies), Tort claims.

    For the reasons stated in the preamble, the Department of Justice 
proposes to amend 28 CFR part 15 as follows:
    1. Part 15 is revised to read as follows:

PART 15--CERTIFICATION AND DECERTIFICATION IN CONNECTION WITH 
CERTAIN SUITS BASED UPON ACTS OR OMISSIONS OF FEDERAL EMPLOYEES AND 
OTHER PERSONS

Sec.
15.1 General provisions.
15.2 Expeditious delivery of process and pleadings.
15.3 Agency report.
15.4 Removal and defense of suits.

    Authority: 5 U.S.C. 301, 8477(e)(4); 10 U.S.C. 1054, 1089; 22 
U.S.C. 2702; 28 U.S.C. 509, 510, and 2679; 38 U.S.C. 7316; 42 U.S.C. 
233, 2212, 2458a, and 5055(f); and the National Swine Flu 
Immunization Program of 1976, Pub. L. 84-380, 90 Stat. 1113 (1976).


Sec.  15.1  General provisions.

    (a) This part contains the regulations of the Department of Justice 
governing the application for and the issuance of statutory 
certifications and decertifications in connection with certain suits 
based upon the acts or omissions of Federal employees and certain other 
persons as to whom the remedy provided by the Federal Tort Claims Act, 
28 U.S.C. 1346(b) and 2672, is exclusive of any other civil action or 
proceeding for money damages by reason of the same subject matter 
against such Federal employees and other persons.
    (b) As used in this part:
    (1) Appropriate Federal agency means the Federal agency most 
closely associated with the program out of which the claim or suit 
arose. When it cannot be ascertained which Federal agency is the most 
closely associated with the program out of which the claim or suit 
arose, the responsible Director of the Torts Branch, Civil Division, 
Department of Justice, shall be consulted and will thereafter designate 
the appropriate Federal agency.
    (2) Federal employee means ``employee of the government'' as that 
term is defined by 28 U.S.C. 2671.
    (3) Covered person means any person other than a Federal employee 
or the estate of a Federal employee as to whom Congress has provided by 
statute that the remedy provided by 28 U.S.C. 1346(b) and 2672 is 
exclusive of any other civil action or proceeding for money damages by 
reason of the same subject matter against such person.


Sec.  15.2  Expeditious delivery of process and pleadings.

    (a) Any Federal employee against whom a civil action or proceeding 
is brought for money damages for loss or damage to property, or 
personal injury or death, on account of any act or omission in the 
scope of the employee's office or employment with the Federal 
Government, shall promptly deliver all process and pleadings served on 
the employee, or an attested true copy thereof, to the employee's 
immediate superior or to whomever is designated by the head of the 
employee's department or agency to receive such papers. In addition, if 
prior to the employee's receipt of such process or pleadings, the 
employee receives information regarding the commencement of such a 
civil action or proceeding, he shall immediately so advise his superior 
or the designee. If the action is brought against the employee's estate 
this procedure shall apply to the employee's personal representative. 
The superior or designee shall provide the United States Attorney for 
the district embracing the place where the action or proceeding is 
brought and the responsible Branch Director of the Torts Branch, Civil 
Division, Department of Justice, information concerning the 
commencement of such action or proceeding, and copies of all process 
and pleadings.
    (b) Any covered person against whom a civil action or proceeding is 
brought

[[Page 64846]]

for money damages for loss or damage to property, or personal injury or 
death, on account of any act or omission, under circumstances in which 
Congress has provided by statute that the remedy provided by the 
Federal Tort Claims Act is the exclusive remedy, shall promptly deliver 
to the appropriate Federal agency all process and pleadings served on 
the covered person, or an attested true copy thereof. In addition, if 
prior to the covered person's receipt of such process or pleadings, the 
covered person receives information regarding the commencement of such 
a civil action or proceeding, he shall immediately so advise the 
appropriate Federal agency. The appropriate Federal agency shall 
provide to the United States Attorney for the district embracing the 
place where the action or proceeding is brought, and to the responsible 
Branch Director of the Torts Branch, Civil Division, Department of 
Justice, information concerning the commencement of such action or 
proceeding, and copies of all process and pleadings.


Sec.  15.3  Agency report.

    (a) The Federal employee's employing Federal agency shall submit to 
the United States Attorney for the district embracing the place where 
the civil action or proceeding is brought a report that fully addresses 
whether the employee was acting within the scope of his office or 
employment with the Federal Government at the time of the incident out 
of which the suit arose. The employing Federal agency shall send a copy 
of the report to the responsible Branch Director of the Torts Branch, 
Civil Division, Department of Justice.
    (b) The appropriate Federal agency shall submit to the United 
States Attorney for the district embracing the place where the civil 
action or proceeding is brought a report that fully addresses whether 
the person was acting as a covered person at the time of the incident 
out of which the suit arose. The appropriate Federal agency shall send 
a copy of the report to the responsible Branch Director of the Torts 
Branch, Civil Division, Department of Justice.
    (c) A report under this section shall be submitted at the earliest 
possible date, or within such time as shall be determined upon request 
by the United States Attorney or the responsible Branch Director of the 
Torts Branch.


Sec.  15.4  Removal and defense of suits.

    (a) The United States Attorney for the district where the civil 
action or proceeding is brought, or any Director of the Torts Branch, 
Civil Division, Department of Justice, is authorized to make the 
statutory certification that the Federal employee was acting within the 
scope of his office or employment with the Federal Government at the 
time of the incident out of which the suit arose.
    (b) The United States Attorney for the district where the civil 
action or proceeding is brought, or any Director of the Torts Branch, 
Civil Division, Department of Justice, is authorized to make the 
statutory certification that the person was acting as a covered person 
at the time of the incident out of which the suit arose under 
circumstances in which Congress has provided by statute that the remedy 
provided by the Federal Tort Claims Act is the exclusive remedy.
    (c) A certification under this section may be withdrawn if a 
further evaluation of the relevant facts or the consideration of new or 
additional evidence calls for such action. The making, withholding, or 
withdrawing of certifications, and the removal and defense of, or 
refusal to remove or defend, such civil actions or proceedings shall be 
subject to the instructions and supervision of the Assistant Attorney 
General in charge of the Civil Division or his designee.

    Dated: October 16, 2002.
John Ashcroft,
Attorney General.
[FR Doc. 02-26832 Filed 10-21-02; 8:45 am]
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