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 has three core
missions: (1) Individual capacity representation of federal employees who
have been sued, subpoenaed or charged for actions taken within the scope of
their employment; (2) Defending the Secretary of Health and Human Services
in his official capacity against claims seeking recovery of money damages
under the Vaccine Injury Compensation Program; and (2) Administratively
adjudicating claims for compensation from the Radiation Exposure
Compensation Program.
- 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.
[updated May 2012]
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 federal employees in their individual capacities against claims
challenging conduct undertaken within the scope of their employment and
seeking to recover money damages from their personal assets. Most commonly,
these are personal liability, constitutional tort claims which under some
circumstances may be inferred by the district courts. See Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
Exception. Any case challenging the adequacy of medical care for
incarcerated persons, including those asserting Bivens claims,
falls within the responsibility of the FTCA staff.
Constitutional and Specialized Torts Staff attorneys also represent the
Secretary of Health and Human Services in his official capacity in cases
seeking to recovery money damages under the National Vaccine Injury
Compensation Program. These cases are litigated in the U.S. Court of Federal
Claims and involve allegations of injuries and death caused by certain
vaccines.
Finally, Constitutional Torts Staff personnel are responsible for reviewing
and adjudicating claims seeking compensation for injuries caused by certain
types of radiation exposure, under procedures created by the Radiation
Exposure Compensation Act.
[updated May 2012]
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.
See
USAM 4-1.310 et seq.
If an adverse judgment is received in a delegated FTCA case, the amount
of the judgment is less than $500,000 and no significant issue is presented
by the adverse decision, and both the United States Attorney and the
affected agency recommend against appeal, the judgment can be promptly
forwarded to the Tort Branch Director responsible for the matter who is
authorized to determine against appeal, provided the determination is made
within thirty days after entry of judgment. All other matters involving
adverse judgments, the adverse judgments along with comments and supporting
materials must be forwarded to the Appellate Staff: a copy of these
materials also should be forwarded to the Torts Branch.
Copies of all compromise memoranda should be forwarded to the
appropriate Torts Branch staff. addresses are provided in USAM 4-5.300, 400, 500, and
600.
[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.
[updated July 2009]
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—Key Staff and Contact
Information
Rupa Bhattacharyya, Director, (202) 305-0008.
Nicki L. Koutsis, Assistant Director, (202) 616-4150.
Sal D'Alessio, Senior Trial Counsel, (202) 616-4168 or (202) 353-5329.
Andrea McCarthy, Senior Trial Counsel, (202) 616-4175.
Richard Montague, Senior Trial Counsel, (202) 616-4158.
Mary Hampton Mason, Senior Trial Counsel, (202) 616-4123.
Paul Michael Brown, Senior Counsel for Instructional Activities, (202) 616-4167.
Vaccine Injury Compensation Act Internet Homepage
Radiation Exposure Compensation Act Internet Homepage
Mailing Address: P.O. Box 7146, Washington, DC 20044-7146
Physical Address: 1425 New York Avenue, Suite 8122, Washington, DC 20005
E-mail for Individual Capacity Representation Requests:
doj.representation@usdoj.gov
[updated May 2012]
[cited in USAM 4-5.200]
4-5.410
Constitutional and Specialized Torts—Introduction
|
The Constitutional Torts staff defends present and former federal
employees against claims seeking to recover money damages from their
personal assets in suits challenging conduct undertaken in the scope of
federal employment. Under 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
individual capacity representation in this context.
Policy guidelines pertaining to individual capacity representation are
found at 28 C.F.R. §§ 50.15 and 50.16.
Caution. Department attorneys are forbidden from providing
individual capacity representation to federal employees unless individual
capacity representation has been approved under the procedures set forth
in 28 C.F.R. § 50.15(a)(1) and (a)(2). This ban includes removal
of suits filed in state court.
Exception. While a request for individual capacity representation
is pending, Department attorneys may seek an extension of time for the
defendant employee to respond to a complaint, provided the motion makes it
clear the Department attorney is appearing for that limited
purpose.
The overwhelming majority of requests from federal employees for
individual capacity representation by Department Attorneys are processed by
the Constitutional Torts staff. Accordingly, agency counsel should forward
the papers described in 28 C.F.R. § 50.15(a)(1) and (a)(2) to the
Constitutional Torts Staff, preferably by email, to the address listed
above.
Exception. Any case challenging the adequacy of medical care for
incarcerated persons, including those asserting Bivens claims,
falls within the responsibility of the FTCA 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.
[updated May 2012]
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 and should relief be awarded, it would be
against the resources of the United States. Kentucky v. Graham, 473
US 159 (1985). As a matter of course Department attorneys represent federal
officials sued in their official capacities for declaratory, injunctive or
other forms of relief, and 28 C.F.R. § 50.15 is not implicated.
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. The employee is named in the caption as a party
defendant as required under Rule 10(a) and the prayer for relief demands
money damages.
What about federal employees who testify at depositions? Are they
entitled to individual capacity representation? Generally speaking, no. The
employee is a witness, not a party and faces no claim seeking to recover
money damages.
Situations in Which Individual Capacity Representation is Generally Not
Available. 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).
Criteria for Individual Capacity Representation. There is a
two-part test. First, the employee's actions giving rise to the suit must
reasonably appear to have been performed within the scope of federal
employment. Second, it must 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 reviewing the recommendation and analysis
provided by the agency that employed the defendant. Because the executive is
responsible for determining the interests of the United States in
litigation, decisions of this nature are precluded from judicial review 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."
Time-Sensitive Requests. If a request for individual capacity
representation must be considered promptly, it should be emailed to the
address listed above and followed by a telephone call to the Director of the
Constitutional Torts Staff to advise regarding the short suspense date. In
some rare cases an oral request for "conditional" approval may be made. See
28 C.F.R. § 50.15(a)(1). Such requests must be supplemented by a
written representation request package as soon as possible. Finally, as
noted, above, United States Attorneys have automatic authority to seek
extensions of time in which to respond to a complaint.
Representation Agreements. Once individual capacity
representation is approved, 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.
[updated May 2012]
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).
[updated May 2012]
4-5.420
National Vaccine Injury Compensation Program—Contacts and
Mailing Information
Rupa Bhattacharyya, Director, 202-305-0008
Mark W. Rogers, Deputy Director, 202-616-4134
Gabrielle M. Fielding, Assistant Director, 202-616-4359
Vincent J. Matanoski, Assistant Director, 202-616-4124
Catharine E. Reeves, Assistant Director, 202-307-1400
Mailing:
Office of Vaccine Litigation
Torts Branch, Civil Division
United States Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Web sites:
http://www.justice.gov/civil/common/comp_progs.html
http://www.hrsa.gov/Vaccinecompensation/index.html
[updated May 2012]
4-5.421
National Vaccine Injury Compensation Program—Introduction
The National Vaccine Injury Compensation Program (42 U.S.C.
§§ 300aa-10 through 34) (the "Program"), which is part of the
National Childhood Vaccine Injury Act of 1986 (the "Vaccine Act"),
establishes a "no fault" compensation system for persons injured by certain
vaccines set forth in the Vaccine Injury Table. Claimants need not
establish that the vaccine was defective, or that any degree of negligence
was involved in its administration. The only liability-related question is
causation—did the vaccine cause the injury for which compensation is
sought. The Act prohibits the filing of a civil action for damages against a
manufacturer or vaccine administrator for a "vaccine-related injury or
death" unless the individual has first pursued a claim under the Vaccine
Act. By offering an alternative to traditional tort actions against vaccine
administrators and manufacturers for alleged serious adverse reactions, the
Program recognizes and furthers the public interest in encouraging the
availability and use of these vaccines.
Note. Currently, the vaccines covered under the Program are:
diphtheria, tetanus, pertussis, measles, mumps, rubella, polio, hepatitis
A, hepatitis B, varicella, Haemophilus influenzae type b, rotavirus,
pneumococcal conjugate, trivalent influenza vaccines, human
papillomavirus, and meningococcal vaccines.
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. The 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 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.
[updated May 2012]
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.
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 experts in 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 actual and future unreimbursable
medical expenses related to the vaccine injury. A life care planner is
usually retained to develop a life care plan to determine future medical and
rehabilitative needs. 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. There is no provision for punitive damages. In
all cases resulting in a vaccine-related death, a fixed payment of $250,000
is provided. Cases that reach the compensation phase frequently are settled
by the parties. Awards are paid from a trust fund, which is funded by an
excise tax on vaccines.
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, and/or reversionary trusts. The damages analysis may
include interpretation of statutory compensation provisions and legal
precedent for certain elements of damages. Consideration must also be given
to other primary benefits to which the injured party is entitled such as
private insurance, Medicare, and benefits under the Individuals With
Disabilities Education Act (IDEA). Under the statute, these benefits may be
offset against the vaccine compensation award. Medicaid-based programs are
secondary to a Program award.
Either party may appeal the special master's decision 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, and ultimately the United States Supreme Court.
[updated May 2012]
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 proper 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.
[updated May 2012]
4-5.430
Radiation Exposure Compensation Program—Contacts and Mailing
Information
Assistant Director: Gerard W. Fischer, 202-616-4090
Senior Counsel: Dianne S. Spellberg, 202-616-4129
Mailing: Radiation Exposure Compensation Program
United States Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
[updated May 2012]
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 (2006), 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 testing or as a result
of their exposure to radiation during employment in uranium mines, mills, or
in the transportation of uranium or vanadium-uranium ore.
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.
[updated May 2012]
4-5.432
Radiation Exposure Compensation Program—Categories and
Criteria
|
There are five categories of claims: uranium miners, uranium millers,
ore transporters, 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, uranium miners who worked in Colorado, New Mexico,
Arizona, Wyoming, South Dakota, Washington, Utah, Idaho, North Dakota,
Oregon, or Texas during the years 1942 to 1971. The miner must have been
exposed to a certain threshold level of radiation measured by working level
months of radiation ("WLMs") during the course of his uranium mining
activities. Alternatively, the miner must have been employed in a uranium
mine for at least one year during the same time period. Finally, the miner
must have subsequently developed primary cancer of the lung or one of the
following nonmalignant respiratory diseases: pulmonary fibrosis, fibrosis
of the lung, cor pulmonale related to fibrosis of the lung, silicosis, or
pneumoconiosis. § 5(a)(1)(A), § 5(b)(3), 42
U.S.C. § 2210; 28 C.F.R. § 79.42.
The uranium miller provisions of the Act provide a payment of $100,000
to, or on behalf of, uranium millers who worked in Colorado, New Mexico,
Arizona, Wyoming, South Dakota, Washington, Utah, Idaho, North Dakota,
Oregon, or Texas during the years 1942 to 1971. The miller must have been
employed in a uranium mill for at least one year during this time period.
Finally, the miller must have subsequently developed primary renal cancer,
chronic renal disease, primary cancer of the lung, or one of the following
nonmalignant respiratory diseases: pulmonary fibrosis, fibrosis of the
lung, cor pulmonale related to fibrosis of the lung, silicosis, or
pneumoconiosis. § 5(a)(1)(A),
§ 5(b)(3), 42 U.S.C. § 2210; 28 C.F.R.
§ 79.52.
The uranium ore transporter provisions of the Act provide a payment of
$100,000 to, or on behalf of, uranium ore transporters who worked in
Colorado, New Mexico, Arizona, Wyoming, South Dakota, Washington, Utah,
Idaho, North Dakota, Oregon, or Texas during the years 1942 to 1971. The
ore transporter must have transported uranium or vanadium-uranium ore from a
mine or mill for at least one year during this time period. Finally, the
ore transporter must have subsequently developed primary renal cancer,
chronic renal disease, primary cancer of the lung, or one of the following
nonmalignant respiratory diseases: pulmonary fibrosis, fibrosis of the
lung, cor pulmonale related to fibrosis of the lung, silicosis, or
pneumoconiosis. § 5(a)(1)(A), § 5(b)(3), 42 U.S.C.
§ 2210; 28 C.F.R. § 79.62.
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 conducted at the Nevada Test Site. The downwinder must
establish physical presence in certain geographical areas in Utah, Nevada
and Arizona for at least two years during the time period beginning on
January 21, 1951, and ending on October 31, 1958, or for 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 (other than chronic
lymphocytic leukemia), lymphoma (other than Hodgkin's disease), multiple
myeloma, or primary cancer of the thyroid, male or female breast, esophagus,
stomach, pharynx, small intestine, pancreas, bile duct, gall bladder,
salivary gland, urinary bladder, brain, colon, ovary, liver (except if
cirrhosis or hepatitis B is indicated), or lung. § 4(a)(2),
§ 4(b), 42 U.S.C. § 2210; 28 C.F.R.
§ 79.22.
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 participating onsite 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 C.F.R. § 79.32. The onsite participant also
must have developed one of the 20 cancers identified under the downwinder
provisions.
[updated May 2012]
4-5.437
Action Following Receipt of a Radiation Program Claim
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The Act affords claimants 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 W. Fischer, Assistant Director, at 202-616-4090, or
Dianne S. Spellberg, Senior Counsel, at 202-616-4129.
[updated May 2012]
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