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# 4-5.000 - Tort Litigation

4-5.100 | Tort Litigation—Generally
4-5.110 | Torts Branch Components—Aviation and Admiralty
4-5.120 | Torts Branch Components—Constitutional and Specialized Torts
4-5.130 | Torts Branch Components—Environmental Torts
4-5.140 | Torts Branch Components—Federal Tort Claims Act Staff
4-5.200 | Torts Branch Procedures—Conduct of FTCA Litigation
4-5.220 | Torts Branch Procedures—Substantive Considerations in FTCA Litigation
4-5.230 | Torts Branch Procedures—Settlement of Federal Tort Claims Act Suits
4-5.240 | Torts Branch Procedures—FTCA Payment Procedure
4-5.241 | Torts Branch Procedures—28 U.S.C. § 530D Reporting Requirements
4-5.310 | Admiralty Litigation
4-5.320 | Aviation Litigation
4-5.410 | Constitutional and Specialized Torts—Introduction
4-5.412 | Constitutional Torts—Representation Process
4-5.415 | Constitutional Torts—Appealability of Immunity Claims
4-5.421 | National Vaccine Injury Compensation Program—Introduction
4-5.422 | Disposition of Cases Under the Vaccine Program
4-5.423 | Action Following Receipt of a Vaccine Case
4-5.431 | Radiation Exposure Compensation Program—Introduction
4-5.432 | Radiation Exposure Compensation Program—Categories and Criteria
4-5.437 | Action Following Receipt of a Radiation Program Claim
4-5.510 | Environmental Torts (Formerly Environmental and Occupational Disease Litigation (EODL))—Introduction
4-5.520 | Conduct of Toxic Tort and Asbestos Litigation
4-5.610 | FTCA Staff—Introduction
4-5.620 | FTCA Staff—Research and Guidance Materials
4-5.630 | FTCA Staff—Substitution of the United States for Federal Employees
4-5.640 | FTCA Staff—Medical Care Recovery Act Cases
4-5.650 | FTCA Staff—Medicare Recovery Cases

## 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. A helpful source for contact information for the various persons and offices within the Torts Branch can be found in the routinely updated internal compendium “Expertise in the Civil Division.”

- The Aviation and Admiralty Staff handles claims arising out of aviation and maritime accidents, 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 (3) Administratively adjudicating claims for compensation from the Radiation Exposure Compensation Program.
- The Environmental Torts 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 April 2018]

## 4-5.110 - Torts Branch Components—Aviation and Admiralty

The Aviation and Admiralty Litigation Section handles matters surrounding aviation and maritime accidents. The Aviation caseload is largely comprised of defending the United States in wrongful death, serious personal injury, and extensive property damage actions arising from aircraft accidents. Federal activities giving rise to these lawsuits include air traffic control, military aviation operations, weather dissemination, charting of obstacles, operation of navigational aids, and certification of aircraft, airports, and air personnel. The Admiralty caseload involves the Federal Government’s role as ship-owner, regulator, and protector of the nation’s waterways. Cases relate to collisions involving government vessels, disputes over navigational markings, and challenges to the boarding of vessels on the high seas during national security activities. Admiralty litigation may involve suits under statutes such as the Suits in Admiralty Act, the Public Vessels Act, and the Contract Disputes Act. Affirmative admiralty actions seek compensation for the loss of government cargo and certain cases involving the costs associated with maritime pollution cleanups.

[updated April 2018]

## 4-5.120 - Torts Branch Components—Constitutional and Specialized Torts

Constitutional and Specialized Torts Litigation (CSTL) consists of three sections. The Constitutional 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 implied by the district courts. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). In addition, the Constitutional Torts Staff is the primary point of contact for questions regarding the Attorney General’s Representation Guidelines (published at 28 C.F.R. §§ 50.15 and 50.16) and for authorizing individual representation in the personal liability cases handled by the U.S. Attorney Offices.

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.

Attorneys within the Vaccine Litigation section of CSTL represent the Secretary of Health and Human Services in official capacity cases seeking to recover 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, attorneys and support professionals within CSTL’s RECA Program 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 April 2018]

## 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, electromagnetic 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.

[updated April 2018]

## 4-5.140 - Torts Branch Components—Federal Tort Claims Act Staff

The Federal Tort Claims Act Staff defends the government against tort suits, including 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 generally the responsibility of the FTCA Staff.

[updated April 2018]

## 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 JM 4-1.310 et seq.

If an adverse judgment is received in a delegated FTCA case, the amount of the judgment is less than $1,000,000, 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.

[updated April 2018]

## 4-5.220 - Torts Branch Procedures—Substantive Considerations in FTCA Litigation

The Assistant United States Attorney (“AUSA”) assigned to a tort suit assumes responsibility for the robust, professional defense of 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 AUSA, although the AUSA in delegated cases will ordinarily send the agency a request for a litigation report and remind it to institute or maintain an appropriate litigation hold. The litigation report will be the starting point for development of the facts and legal position to be taken in the litigation. However, the AUSA 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 AUSA must obtain approval from the appropriate FTCA Staff attorney prior to raising the "discretionary function exception" defense in any case. The AUSA may also 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, the AUSA 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 AUSA should contact the Torts Branch Staff attorney listed in the internal compendium of “Expertise in the Civil Division” as the assigned expert on the subject matter at issue. If the compendium does not list a Staff attorney for the subject matter, the author of the appropriate Monograph, if any, should be contacted or an 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 within 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 JM 4-5.630; 28 C.F.R. § 15.4. Certification and removal in cases arising under the Federally Supported Health Centers Assistance Act should be done exclusively under the provisions of 42 U.S.C. §233.

[updated April 2018]

## 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 million in settlement authority, subject to the limitations set forth in Civil Directive No. 1-15, 28 C.F.R. Part O, Subpart y, App. If a United States Attorney seeks approval of a proposed settlement in excess of the delegated authority, a detailed justification for the settlement must be forwarded to the Torts Branch. Upon receipt of a request for approval, the responsible Director will make a recommendation to the Assistant Attorney General (or if the proposed amount is in excess of $4 million, 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.

Consultation with the Torts Branch during settlement negotiations is encouraged, especially when any concern arises regarding the advisability of settlement or of the amount or structure of the settlement. In advance of initiation or completion of settlement negotiations, the Director of the Torts Branch will provide guidance as to what amount and terms of a settlement the FTCA Staff will support and recommend to the Assistant Attorney General.

Structured settlements, including those utilizing the U.S. Grantor Reversionary Medical Care Trust, require special handling. In the event an AUSA contemplates offering a structured settlement, the AUSA is required to select a structured settlement broker from the Attorney General’s list of structured settlement brokers that is current at the time of the selection, unless the negotiations are being handled exclusively by the Civil Division. See 28 U.S.C. 519 Historical and Revision Notes. AUSAs are not authorized to relegate the selection to opposing counsel and should not agree to use a broker opposing counsel has contacted on the case. The FTCA Staff is available to address any questions pertaining to the selection and use of structured settlement annuity brokers.

Structured settlements also require careful attention to the terms of the agreement. The FTCA Staff is available for consultation regarding the particular terms of a structured settlement, including the U.S. Grantor Reversionary Medical Care Trust. The FTCA Staff can also assist in locating suitable trustees and administrators for reversionary trusts. When a structured settlement includes the U.S. Grantor Reversionary Medical Care Trust and/or a reversionary annuity, the settlement agreement and trust agreement should provide that any reversionary payments be made by check payable to the funding source (e.g., Judgment Fund, 42 U.S.C. § 233(k) or 233(o) fund, or Postal Service fund), and delivered to the Director of the FTCA Staff.

Copies of all compromise memoranda in cases beyond the U.S. Attorney’s authority or those involving reversionary structured settlements should be forwarded to the appropriate member of the FTCA Staff.

Stipulations or 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. If a response to a request for admission, or acknowledgement that an element of liability is not disputed would be tantamount to an admission of liability, the foregoing approval must be obtained. In determining whether a request for authorization to request a fact or enter into a stipulation that is tantamount to a concession of liability should be approved, consideration will be given to whether professional responsibilities require the admission or stipulation.

[updated April 2018]

## 4-5.240 - Torts Branch Procedures—FTCA Payment Procedure

The Judgment Fund pays most FTCA settlements and judgments, but does not pay, for example, settlements and judgments in community health center and Postal Services cases. Settlement documents should indicate the proper funding source.

Judgments should not be submitted for payment until the Solicitor General or the Solicitor General’s designee has determined against any further review of the judgment. Settlements should not be submitted for payment until after all the required signatures and approvals have been obtained.

Most settlements and judgments are paid by electronic funds transfer, but may be paid by check when circumstances warrant it.

The Treasury Department has standard forms for payment of judgments and settlements. Treasury Department forms are included in the Civil Resource Manual at 224 et seq. Consult with the appropriate agency when the funding source is other than the Judgment Fund.

[updated April 2018]

## 4-5.241 - Torts Branch Procedures—28 U.S.C. § 530D Reporting Requirements

Pursuant to 28 U.S.C. § 530D, the Attorney General must report to Congress any instances in which the Attorney General or any officer of the Department of Justice approves, inter alia, any claim, suit, or other action against the United States (including any agency or instrumentality thereof) for a sum that exceeds, or is likely to exceed, $2,000,000, excluding prejudgment interest. 28 U.S.C. § 530D(a)(l)(C)(i). The report must include the date of the approval, a complete and detailed statement of the relevant issues and background, final, fully executed copies of all settlement agreements, consent decrees or orders, including copies of signed orders approving the settlement, where relevant. Because the final report must be submitted to Congress not later than 30 days after the conclusion of each fiscal year quarter, with respect to all approvals occurring in such quarter, the government attorney responsible for the settlement must provide the Torts Branch with a copy of the final, fully executed Stipulation for Compromise Settlement and Release and any court orders approving the settlement and dismissing the case.

[new April 2018]

## 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, damage to government property, and certain cases involving oil pollution. 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 AUSA, there should be close cooperation with the Admiralty staff.

In addition to the main office in Washington, D.C., there is a field office in San Francisco that handles West Coast maritime cases.

[updated April 2018]

## 4-5.320 - Aviation Litigation

The Aviation staff specializes in the defense of aviation and space-related cases arising primarily out of the activities of the FAA, NWS, NOAA, NASA, the military services and multiple agencies involved in aerial firefighting. 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.

[updated April 2018]

## 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 and authorizes representation in cases handled by the U.S. Attorney Offices. 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 under 28 U.S.C. § 1442 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 to preserve the status quo, provided the motion makes it clear the Department attorney is appearing for that limited purpose and that a representation decision is pending within the Department.

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 doj.representation@usdoj.gov.

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.

Additional Guidance: The Constitutional Torts Staff maintains a series of monographs discussing many issues that may arise when defending federal employees in their individual capacities. These monographs, along with practice commentaries and sample court papers, may be found on USABook.

[updated May 2018]

## 4-5.412 - Constitutional Torts—Representation Process

Generally. Personal representation of government employees is necessary only when they are sued, subpoenaed or charged in an individual capacity. 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, subpoenaed or charged in his or her individual capacity, he or she faces a personal risk of adverse legal consequences. For example, a plaintiff may seek recovery from the personal assets of the employee as opposed to the assets of the United States, the employee may face criminal liability under state or local law on account of performing government duties, the employee’s professional license may be at risk as a result of conduct within the scope of employment, or the employee’s subpoenaed testimony in a particular matter may be used against the employee in another matter in which the employee faces personal liability.

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 usually faces no claim seeking to recover money damages and no other personal risk of adverse legal consequences.

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, if appropriate, 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 a statement containing the employing agency’s findings as to whether the employee was acting within the scope of employment and the agency’s recommendation for or against providing representation. The agency’s statement should be accompanied by all available factual information. 28 C.F.R. § 50.15(a)(1). Agencies and United States Attorneys cannot authorize representation. 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. See 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) ) (denial of representation is unreviewable). See also Turner v. Schulz, 187 F. Supp. 2d 1288 (D. Colo. 2002) (DOJ’s decision to refuse to provide legal representation is not reviewable); Wooten v. Hudson, 71 F. Supp. 2d 1149, 1151 (E.D. Okla. 1999) (“This Court cannot review the decision of the United States declining to provide legal representation to a party . . . .”). But see Hall v. Clinton, 285 F.3d 74, 79-81 (D.C. Cir. 2002) (decision to grant representation may be subject to judicial review but recognizing that, even where such representation is granted, the Attorney General retains “broad discretion in his decision to dispatch government lawyers,” and the government need only “articulate[] a sufficient interest to pass muster under the flexible mandate of section 517.”).

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." 28 C.F.R. § 50.15(a)(1).

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, provided sufficient information is available to determine scope of employment and interest of the United States. 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 provide 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. See 28 C.F.R. § 50.15 (c). ). Pre-judgment indemnification is disfavored by the Department and is not available except in rare and extraordinarily compelling circumstances. Id. at (c)(3). Other agencies have similar regulations regarding 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, if appropriate, 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 Civil Division Administrative Directive 2120B.

[updated April 2018]

## 4-5.415 - Constitutional Torts—Appealability of Immunity Claims

District court orders denying immunity, absolute or qualified, are immediately appealable at both the motion to dismiss and summary-judgment stages of litigation so long as the ruling turns on a question of law. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (qualified immunity); Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982) (absolute immunity); see also Behrens v. Pelletier, 516 U.S. 299, 313 (1996). Immunity “is meant to give government officials a right, not merely to avoid ‘standing trial,’ but also to avoid ‘such pretrial matters as discovery . . ., as “‘[i]nquiries of this kind can be peculiarly disruptive of effective government.’” Behrens, 516 U.S. at 308 (quoting Mitchell, 472 U.S. at 526 (quoting in turn Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982)).

Without an immediate appeal, this “immunity from suit,” Mitchell, 472 U.S. at 526, would be irretrievably lost when denied at the pre-trial stage. Immunity denials therefore fall within that “small class” of district court decisions that “finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949); see also Mitchell, 472 U.S. at 524-25. Such “collateral orders” accordingly qualify as final decisions over which the courts of appeals have jurisdiction under 28 U.S.C. § 1291.

The timely filing of a notice of appeal is mandatory and jurisdictional. Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 264 (1978). Federal Rule of Appellate Procedure 4 governs the time for filing a notice of appeal in cases subject to 28 U.S.C. § 1291. See 9 Moore’s Federal Practice ¶ 110.21 (1991). Rule 4(a)(1)(A) generally requires that the notice be filed with the clerk of the district court within 30 days after entry of the order appealed from. If the United States, a federal agency, or an officer or employee of the United States is a party to the pending action, however, the period for filing a notice of appeal by any party is 60 days. See Fed. R. App. P. 4(a)(1)(B).That includes cases in which federal officers or employees are sued in a personal capacity for their official acts. See id. The rule implements the mandatory time restrictions on appeals in civil cases prescribed in 28 U.S.C. § 2107. Those time restrictions are jurisdictional. See Bowles v. Russell, 551 U.S. 205, 209-10 (2007).

The Appellate Staff of the Civil Division as well as the Constitutional Torts Staff should be consulted well within the 60-day period to help ascertain whether an appeal should be noticed in advance of Solicitor General approval in order to protect the client’s appellate rights. Consultation is especially important because the plaintiff may move in the district court to certify the appeal as frivolous or move to dismiss in the court of appeals for want of jurisdiction under Johnson v. Jones, 515 U.S. 304 (1995).

[updated April 2018]

## 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, seasonal 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 April 2018]

## 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 often 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 often 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. Punitive damages are expressly prohibited. In cases resulting in a vaccine-related death, a death benefit of $250,000 is provided, and the estate of the decedent also may be eligible for actual unreimbursable expenses related to the vaccine injury resulting in death, as well as past pain and suffering and lost earnings. 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 many 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. Case law has determined that Social Security Disability Insurance benefits are not an offset against a vaccine compensation award, however.

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 April 20128]

## 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 April 2018]

## 4-5.431 - Radiation Exposure Compensation Program—Introduction

The Radiation Exposure Compensation Act ("the Act" or “RECA”), codified at 42 U.S.C. § 2210 note 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 following 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 Constitutional and Specialized Torts Litigation section of the Civil Division’s Torts Branch, is the office responsible for administering the Act. The Act’s implementing regulations, set forth at 28 C.F.R. Part 79, establish procedures designed to utilize existing records so that claims can be resolved quickly in a reliable, objective, nonadversarial manner with little administrative cost to the United States or to the person filing the claim. The Radiation Program follows these procedures to develop the administrative record and issue a decision awarding or denying entitlement to compensation under the Act.

[updated April 2018]

## 4-5.432 - Radiation Exposure Compensation Program—Categories and Criteria

RECA sets forth 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: (1) actual or presumptive exposure to radiation, and (2) subsequent development of a compensable disease. Causation is not an element in any claim under the Act.

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 at specified test locations during a period of atmospheric nuclear testing between July 16, 1945, and December 31, 1962. The locations where covered atmospheric nuclear testing occurred are: (1) the Nevada Test Site; (2) the Pacific Test Sites; (3) the Trinity Test Site; (4) the South Atlantic Test Site; and (5) certain other decontamination and radiation monitoring facilities. § 4(a)(2)(C), 42 U.S.C. § 2210; 28 C.F.R. §§ 79.11(f), 79.32. The onsite participant also must have developed one of the 20 cancers identified under the downwinder provisions.

[updated April 2018]

## 4-5.437 - Action Following Receipt of a Radiation Program Claim

The Act affords claimants the right to seek judicial review by any United States District Court of the Radiation Program’s final agency action in a denied claim. § 6(l), 42 U.S.C. § 2210. An Appeal Memorandum issued by the Radiation Program Appeals Officer constitutes the final agency action. If a complaint seeking judicial review of this action in United States District Court is received by the office of a United States Attorney, please immediately notify the Assistant Director for the Radiation Program to coordinate an appropriate response.

[updated April 2018]

## 4-5.510 - Environmental Torts—Introduction

The Environmental Torts (ET) staff defends the United States in FTCA and other toxic-tort actions arising from contamination of the environment or exposure to chemicals or substances in the workplace and elsewhere. Some of the most visible examples of the litigation over the past few years have been those cases dealing with groundwater and air-dispersed contamination from chemicals, radiation experimentation on human subjects, crop injury due to herbicide exposure, mold exposure, lead paint exposure, carbon monoxide exposure, and asbestos exposure. Other ongoing litigation addresses complaints of property damage and/or personal injury allegedly caused by PCBs and dioxins, lead-based paint, Hantavirus, Valley Fever, Agent Orange, Legionnella bacteria, exposure to formaldehyde in government-purchased trailers, as well as other "sick building" toxins, munitions and ordnance, and biological agents. Many of these cases arise out of activities of the military, but they 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. Defense of vessel-caused pollution cases are handled by the Aviation & Admiralty staff.

Inquiries regarding toxic tort and asbestos litigation may be made by contacting the Director of the Environmental Torts Section.

[updated April 2018]

## 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, are handled directly by ET 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, many of our cases, fact issues have spanned a period since prior to World War II.

United States Attorneys confronted with environmental and related product liability tort claims against the United States shall contact ET as early as possible, preferably before suit. ET is prepared to assume primary responsibility for toxic tort litigation as described within JM 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 JM 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. Defense of vessel-caused pollution cases are handled by 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 April 2018]

##

## 4-5.610 - FTCA Staff—Introduction

The Federal Tort Claims Act Staff has general supervisory has responsibility for the administration of the FTCA and for: cases filed against the United States under the FTCA (except for aviation and most environmental tort suits); tort suits filed in district courts under legislation extending the FTCA to Community and Migrant Health Centers, physician volunteers at Free Clinics, and to Indian tribes; and affirmative tort suits on behalf of federal agencies.

Although most cases are handled by the United States Attorney’s Offices, the FTCA Staff retains primary responsibility for seminal suits filed under the FTCA and related statutes authorizing tort suits against the United States. The Staff initiates changes in Department regulations implementing the FTCA, which apply throughout the government. The Staff provides guidance to all federal agencies, subject to oversight by Department officials, on policy issues arising under the FTCA. In addition, the Staff resolves administrative claims arising from Department of Justice activities to the extent that such claims are not delegated for direct handling to units within the Department.

Although most of the Staff's work consists of handling litigation directly, the Staff also provides oversight and guidance to United States Attorneys' offices for FTCA litigation handled by those offices.

[updated April 2018]

## 4-5.620 - FTCA Staff—Research and Guidance Materials

The Torts Branch has prepared guidance covering many recurring substantive issues pertaining to Federal Tort Claims Act litigation. Please contact FTCA staff for further information on this guidance.

[updated April 2018]

## 4-5.630 - FTCA Staff—Substitution of the United States for Federal Employees

United States Attorneys , or their designated civil chiefs or first assistants, are authorized to make the certification provided for in 10 U.S.C. § 1089(c), 22 U.S.C. § 817(c), 28 U.S.C. § 2679(d), 38 U.S.C. § 4116(c), and 42 U.S.C. §§ 233(c) and 2458a(c), in order to substitute the United States as defendant in place of federal employees acting within the scope of their federal employment who have been sued under state tort law. See 28 C.F.R. § 15.4. In community health center cases, certification and removal should be done exclusive under 42 U.S.C. § 233.

[updated April 2018

## 4-5.640 - FTCA Staff—Medical Care Recovery Act Cases

Sections 2651 to 2653 of Title 42 authorize the recovery of the reasonable value of hospital, medical, surgical, or dental care and treatment (including prostheses and medical appliances) which the United States is authorized or required by law to furnish or has furnished to a person who is injured or suffers a disease under circumstances creating tort liability upon the part of a third party.

Administrative agencies are bound by regulations promulgated by the Attorney General (28 C.F.R. §§ 43.1 to 43.4) and generally will prevail upon the insured person to assert the government's claim in his/her own name for the use and benefit of the United States. 42 U.S.C. § 2651(b)(1) authorizes the government to intervene in the insured person's tort suit as of absolute right. If intervention is necessary, the injured person can normally be counted on to establish the defendant's basic tort liability. Intervention should be utilized as a measure of last resort only if private counsel do not cooperate with the agency to protect our right to participate in agency recovery.

If advice is needed, the appropriate FTCA staff should be contacted.

[updated April 2018]

## 4-5.650 - FTCA Staff—Medicare Recovery Cases

Section 1395y(b)(1) of Title 42 provides that Medicare shall be a secondary payor in certain circumstances, including automobile accident cases or other instances where a third party would otherwise be liable for medical costs. This provision also expressly authorizes the United States to bring an independent action to recover from an insurer the cost of Medicare payments needed as a result of an automobile accident, or to join or intervene in any such action.

If advice is needed, the FTCA staff should be contacted.

[updated April 2018]

Updated September 19, 2018