under 28 U.S.C. 2675(a), shall not accrue until 6 months after the filing of an appeal. Final agency action on an appeal shall be effected by the General Counsel. If the previous denial decision is upheld, the notice shall be by certified mail and will inIclude advice as to the right to bring suit within 6 months.

(c) Allowance or compromise. (1) In the case of a claim where a determination is made by the District Counsel (if the claim is one for which authority has been delegated under § 2.6(e) of this chapter and § 14.602(c), or by the General Counsel, that there is or could be liability on the part of the Government, an attempt will be made to obtain an agreement with the claimant, or claimant's attorney, as to a fair and reasonable settlement or compromise.

(2) If the claim is one being handled by the District Counsel and a settlement agreement is reached in a sum of $2,500 or less, the District Counsel will approve the voucher (SF 1145, Voucher for Payment under Federal Tort Claims Act) and send the signed original and three yellow copies to the General Counsel for processing. If the settlement agreement is above $2,500 but within the delegated authority of the District Counsel, the District Counsel will approve the voucher (SF 1145) and send the signed original and three yellow copies to the General Accounting Office for payment. Vouchers for settlement in excess of $25,000 will not be signed by any District Counsel, but will be forwarded to the General Counsel for signature and transmittal to the General Accounting Office. Also, in any case which is settled by the District Counsel at the specific request of the General Counsel, the voucher will not be approved by the District Counsel but will be sent to the General Counsel's Office for approval and processing. All original vouchers will be signed by the claimant or claimant's legal representative and his or her spouse, if appropriate. Where required by State law, approval of a court of competent jurisdiction will be obtained. Certified copies of appropriate court documents and duplicate originals of "hold harmless" and "covenant not to sue" agreements will

accompany the transmittal of the voucher.

(3) If the claimant is a veteran, or the spouse or child of a veteran in a wrongful death claim, a copy of the letter to the General Accounting

Office will be sent to the Adjudication Division of the regional office having jurisdiction over the veteran's claims folder.

(4) When a District Counsel is unable to effect settlement of a tort claim considered to be appropriate for compromise within authorized limits, the District Counsel will confer with the next level of supervising authority before issuing a letter of denial.

(d) Attorney fees. In any claim administratively settled or compromised, no specific portion of the award shall be designated as an attorney fee. However, 28 U.S.C. 2678 prohibits an attorney from charging, demanding, receiving, or collecting for services rendered, fees in excess of 20 per centum of any award, compromise, or settlement made pursuant to 28 U.S.C. 2672. Violation of this prohibition will subject the attorney to a fine of not more than $2,000 or imprisonment for not more than 1 year, or both. When a claimant is represented by an attorney, the voucher for payment shall designate as "payee" both the claimant and claimant's attorney and the check shall be delivered to the attorney whose address shall appear on the voucher.

(e) Setoff for cost of unauthorized medical treatment. In any tort claim administratively settled or compromised where the claimant owes the Veterans Administration for unauthorized medical treatment, there will be included in the tort claim award the amount of the claimant's indebtedness to the Government. The amount of the indebtedness is for credit to the appropriation account from which the services were provided. The voucher prepared for settlement of the claim will specify the amount to be deposited to the credit of the designated account and that the balance of the award be paid to the claimant.

[42 FR 41416, Aug. 17, 1977, as amended at 43 FR 2722, Jan. 19, 1978]

13-119 0-83--38

LITIGATED CLAIMS

§ 14.609 Tort suits following denial of an administrative tort claim.

Where civil action against the United States follows denial of an administrative claim, the General Counsel, upon receipt of notice of the action, will furnish to the Department of Justice a copy of the investigation report and other related materials obtained in connection with the consideration of the administrative claim previously submitted to the agency. The General Counsel will instruct the District Counsel to forward to the appropriate U.S. Attorney the investigation report and other related materi-. als, including medical records and any other information, which may be appropriate to the litigation. The District Counsel will keep the General Counsel advised of subsequent developments, and will render assistance as requested by the U.S. Attorney and the General Counsel with respect to the defense of the suit.

[42 FR 41416, Aug. 17, 1977]

§ 14.610 Suits against Veterans Administration employees arising out of the operation of motor vehicles or based upon medical care and treatment furnished in or for the Department of Medicine and Surgery.

(a)(1) Section 2679 of title 28, United States Code, provides that no suit will lie against a Federal employee, or the employee's estate, for damage to property, personal injury, or death resulting from his or her operation of a motor vehicle while acting within the scope of his or her office or employment with the Federal Government. An action against the United States under 28 U.S.C. 2671-2680 is the exclusive remedy under these circumstances.

(2) Section 4116 of title 38, United States Code, provides that (i) where there is remedy against the United States under 28 U.S.C. 2671-2680, or (ii) where proceedings for compensation or other benefits from the United States are provided by law, and the availability of such benefits precludes a remedy under 28 U.S.C. 2671-2680 (as is the case, for example, in the Federal Employees' Compensation

Act, 5 U.S.C. 8101, et seq.), such recourse is the exclusive remedy for property damage, personal injury, or death allegedly occurring as a result of malpractice or negligence committed by a physician, dentist, nurse, physician's assistant, dentist's assistant, pharmacist or paramedical (for example, medical and dental technicians, nursing assistants, and therapists), or other supporting personnel, while furnishing medical care and treatment in the exercise of duties in or for the Department of Medicine and Surgery. Accordingly, a malpractice or negligence suit for property damage, personal injury, or death will not lie against such personnel under the circumstances set forth in this subparagraph.

(b) The Department of Justice will defend any civil action or proceeding brought in any court against persons referred to in paragraph (a) (1) or (2) of this section under the circumstances set forth therein. Accordingly, when a suit is filed against any employee of the Veterans Administration (1) as a result of the employee's operation of a motor vehicle incident to employment with the Government, or (2) as a result of furnishing medical or dental care and treatment in or for the Department of Medicine and Surgery, the employee shall immediately forward a copy of all papers served on him or her to the District Counsel having jurisdiction over the area in which the employee works. The employee will also promptly forward to the appropriate District Counsel a signed statement indicating whether he or she desires the Department of Justice to provide representation, and to otherwise protect his or her interests as provided for by law. Even though there may not have been service, if an employee learns that a suit arising from either of the above-described circumstances has been filed against him or her, the employee shall immediately so advise the appropriate District Counsel, provide the District Counsel with a brief description of the facts unsolved, and state whether he or she desires Federal intervention.

(c) Upon receipt of notice that suit has been filed against an employee of the Veterans Administration who is

entitled to protection under 28 U.S.C. 2679 or 38 U.S.C. 4116, the District Counsel having jurisdiction over the place where the employee works will conduct a preliminary investigation, which will include an affidavit by the employee's supervisor as to whether the defendant-employee was acting in the scope of his or her employment at the time of the incident, and a request from the defendant-employee for representation. The affidavit will contain a factual description of the employee's duties and responsibilities at the time of the incident and should describe the incident in question. Upon receipt of such information, the District Counsel will make a preliminary determination as to whether such suit comes within the provisions of either 28 U.S.C. 2679 or 38 U.S.C. 4116. The District Counsel will refer the matter to the appropriate U.S. Attorney with a recommendation as to whether the employee is eligible for protection under 28 U.S.C. 2679 or 38 U.S.C. 4116. The U.S. Attorney will decide whether the Veterans Administration employee is eligible for the protection. The District Counsel will submit to the General Counsel a preliminary report in duplicate containing the information furnished the U.S. Attorney. In all such cases, the District Counsel will conduct a complete investigation of the facts and law. Two copies of the investigation report will be sent to the General Counsel and one copy will be sent to the appropriate U.S. Attorney. The General Counsel, through the District Counsel, will keep the employee advised of the action being taken concerning the suit. In the event that the U.S. Attorney or the Department of Justice determines that the employee is not eligible for immunization pursuant to one of the aformentioned provisions, the General Counsel's office, through the district Counsel, will advise the employee and will call to his or her attention the discretionary conditional indemnification provisions of section 4116(e) of title 38, United States Code.

(d) Where a civil action is commenced in a State court against a Veterans Administration employee, and the matter is within the purview of either 28 U.S.C. 2679, or 38 U.S.C.

4116, the Department of Justice will be asked to remove such suit to the appropriate Federal District Court before trial, where it will be deemed an action against the United States. The defendant employee will be dismissed from the suit. After such removal, the United States has available all defenses to which it would have been entitled if the action had originally been commenced against the United States in the proper Federal District Court. Should a Federal District Court determine that the Veterans Administration employee whose acts or omissions gave rise to the suit was not acting within the scope of his or her office or employement, and therefore not eligible for immunization as provided for in the aforementioned section, the case will be remanded to the State court from which it was removed, the employee will be reinstated as the defendant, and the United States will be dismissed from the suit. Where the employee has been reinstated as the defendant under such circumstances, in order to protect any rights which he or she may have under 38 U.S.C. 4116(e), he or she shall immediately notify the General Counsel, through the local District Counsel. Through the District Counsel, the General Counsel will call the employee's attention to the discretionary conditional indemnification provisions of section 4116(e).

(e) Under the authority of 38 U.S.C. 4116(e), the Administrator of Veterans Affairs may pay for monetary damages sustained by or assessed against an individual (or his or her estate) described in paragraph (a) (2) of this section, as the result of any suit instituted against such individual which is not congnizable under the provisions of 28 U.S.C. 2671-2680 because the individual was assigned to a foreign country, the said individual was detailed to a State or political division thereof, or the cause of action was specifically excluded under the provisions of 28 U.S.C. 2680(h); Provided, That the amount of damages sustained is reasonable when compared with similar cases, litigated or settled, and the United States was given a reasonable opportunity to defend such individual

(a) Authority. Section 236, title 38, United States Code, provides that the Administrator of Veterans' Affairs may pay tort claims, in the manner authorized in the first paragraph of section 2672 of title 28, United States Code, when such claims arise in foreign countries in connection with Veterans' Administration operations abroad.

(b) Action by claimant. Claims for property loss or damage may be filed by the owner of the property or his or her duly authorized agent or legal representative. If the property was insured and the insurer is subrogated, in whole or in part, and if both the owner and the insurer desire to file a claim for their respective losses they should join in one claim. Claims for personal injury may be filed by the injured person or his or her agent or legal representative. Claims for death may be filed by the personal representative of the decedent or any other legally qualified person. When filed by an agent or legal representative, the claim must show the title or capacity of the person representing the claimant and be accompanied by evidence of the appointment of such person as agent, legal representative, executor/ executrix, administrator/administratrix, guardian, or other fiduciary.

(c) Time for filing. A claim may not be allowed under 38 U.S.C. 236 unless it is presented to the Administrator or his or her designee within 2 years after the claim accrues.

[38 FR 5473, Mar. 1, 1973, as amended at 42 FR 41417, Aug 17, 1977]

§ 14.616 Form and place of filing claim.

(a) Form of claim. Claims arising under 38 U.S.C. 236 will be prepared in the form of a sworn statement and submitted in duplicate. The original copy of the claim will be sworn to or affirmed before an official with authority to administer oaths or affirma

tions and will contain the following information, at least:

(1) The name and address of claimant;

(2) The amount claimed for injury or death, and for property loss or damage;

(3) If property was lost or damaged, the amount paid or payable by the insurer together with the name of the insurer;

(4) A detailed statement of the facts and circumstances giving rise to the claim, including the time, place, and date of the accident or incident;

(5) If property was involved, a description of the property and the nature and extent of the damage and the cost of repair or replacement based upon at least two impartial estimates;

(6) If personal injury was involved, the nature of the injury, the cost of medical and/or hospital services, and time and income lost due to the injury;

(7) If death is involved, the names and ages of claimants and their relationship to decedent;

(8) The name and official position of the employee of the United States allegedly responsible for the accident or injury, or loss or damage of property;

(9) The names and addresses of any witnesses to accident or incident; and (10) If desired, the law applicable to the claim.

(b) Place of filing claim. Claims arising in the Philippines under 38 U.S.C. 236 will be filed with the Director, Veterans Administration Regional Office, Manila, Republic of the Philippines. Claims arising in other foreign countries will be filed with the American Embassy or Consulate nearest the place where the incident giving rise to the claim took place.

(c) Evidence to be submitted by claimant (1) General. The amount claimed on account of damage to or loss of property or on account of personal injury or death shall, so far as possible, be substantiated by competent evidence. Supporting statements, estimates and the like will, if possible, be obtained from disinterested parties. All evidence will be submitted in duplicate. Original evidence or certified copies shall be attached to the original

copy of the claim, and simple copies shall be attached to the other copy of the claim. All documents in other than the English language will be accompanied by English translations.

(2) Personal injury or death. In support of claims for personal injury or death, the claimant will submit, as may be appropriate, itemized bills for medical, hospital, or burial expenses actually incurred; a statement from the claimant's or decedent's employer as to time and income lost from work; and a written report by the attending physician with respect to the nature and extent of the injury, the nature and extent of treatment, the degree of disability, the period of hospitalization or incapacitation, and the prognosis as to future treatment, hospitalization and the like.

(3) Damage to personal property. In support of claims for damage to personal property which has been repaired, the claimant will submit an itemized receipt, or, if not repaired, itemized estimates of the cost of repairs by two reliable parties who specialize in such work. If the property is not economically repairable, the claimant will submit corroborative statements of two reliable, qualified persons with respect to cost, age of the property and salvage value.

(4) Damage to real property. In support of claims for damage to land, trees, buildings, fences, or other improvements to real property, the claimant will submit an itemized receipt if repairs have been made, or, if repairs have not been made, itemized estimates of the cost of repairs by two reliable persons who specialize in such work. If the property is not economically repairable, the claimant will submit corroborative statements of two reliable, qualified persons with respect to the value of the improvements both before and after the accident or incident and the cost of replacements.

(5) Damage to crops. In support of claims for damage to crops, the claimant will submit an itemized signed statement showing the number of acres, or other unit measure of crop damaged, the probable yield per unit, the gross amount which would have been realized from such probable yield

and an estimate of the costs of cultivating, harvesting and marketing the crop. If the crop is one which need not be planted each year, the diminution in value of the land beyond the damage to the current year's crop will also be stated.

[38 FR 5473, Mar. 1, 1973, as amended at 42 FR 41418, Aug. 17, 1977]

§ 14.617 Disposition of claims.

(a) Disposition of claims arising in Philippines. All claims arising under 38 U.S.C. 236 in the Philippines, including a complete investigation report and a brief re 1sume 1 of applicable law, will be forwarded directly by the Director to the General Counsel, together with a recommendation as to disposition.

(b) Disposition of claims arising in foreign countries other than the Philippines. When a claim is received in an American Embassy or Consulate, the Embassy or Consulate receiving such claim shall make such investigation as may be necessary or appropriate for a determination of the validity of the claim and thereafter shall forward the claim, together with all pertinent material, including a re 1sume 1 of applicable law and a recommendation regarding allowance or disallowance of the claim, through regular channels of the Department of State to the General Counsel, Veterans' Administration Central Office, Washington, D.C.

(c) Payment of claims. Upon determining that there is liability on the part of the United States under 38 U.S.C. 236, the General Counsel, or such other personnel as may be designated by the Administrator, will take the necessary action to effect payment.

[38 FR 5473, Mar. 1, 1973, as amended at 42 FR 41418, Aug. 17, 1977]