Rules of Procedure Before the Office of General Counsel

PART 912-PROCEDURES TO ADJUDICATE CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ARISING OUT OF THE OPERATION OF THE U.S. POSTAL SERVICE

Sec.

912.1 Claims responsibility.

912.2 Applicability of Federal Tort Claims Act.

912.3 Time limit for filing. 912.4 Place of filing.

912.5 Administrative claim; when presented.

912.6 Administrative claim; who may file. 912.7 Evidence and information to be sub

mitted.

912.8 Sufficiency of evidence and informa

tion submitted.

912.9 Final denial of claim.

912.10 Action on approved claims.

912.11 Exclusiveness of remedy.

912.12 Review by legal officers.

912.13 Attorneys' fees.

912.14 Conclusiveness of remedy.

AUTHORITY: 28 U.S.C. 2671-2680; 28 CFR 14.1-14.11; 39 U.S.C. 409, unless otherwise noted.

be a proper charge against the United States and it is not cognizable under 28 U.S.C. 2672, he may adjust and settle it under authority of 39 U.S.C. 2603.

[45 FR 43719, June 30, 1980]

§ 912.3 Time limit for filing.

(a) Claim. A claim under the Federal Tort Claims Act must be presented within two years from the date the claim accrues.

(b) Suit. Suit must be filed within six months after the date of mailing by certified or registered mail of notice of final denial of the claim by the Postal Service.

[45 FR 43720, June 30, 1980]

§ 912.4 Place of filing.

A claim is usually filed with the postmaster of the office within the delivery limits of where the accident happened, but may be filed at any office of the Postal Service, or sent directly to the Assistant General Counsel, Claims Division, U.S. Postal Service, Washington, D.C. 20260.

[45 FR 43720, June 30, 1980]

§ 912.5 Administrative claim; when presented.

(a) For purposes of this part, a claim shall be deemed to have been presented when the U.S. Postal Service receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95, Claim for Damage or Injury, or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident. Standard Form 95 may be obtained from postmaster, postal inspectors, or other local Postal Service establishments.

(b) A claim presented in compliance with paragraph (a) of this section may be amended by the claimant at any time prior to final Postal Service

action or prior to the exercise of the claimant's option under 28 U.S.C. 2675(a). A claim may not be amended after the Postal Service has issued payment of the full amount of the claim or has issued a written denial of the claim in accordance with § 912.9. Amendments shall be submitted in writing and signed by the claimant or his duly authorized agent or legal representative. Upon the timely filing of an amendment to a pending claim, the Postal Service shall have six months in which to make final disposition of the claim as amended, and the claimant's option under 28 U.S.C. 2675(a) shall not accrue until six months after the filing of an amendment.

[36 FR 12448, June 30, 1971, as amended at 145 FR 43720, June 30, 1980]

§ 912.6 Administrative claim; who may file.

(a) A claim for injury to or loss of property may be presented by the owner of the property, his duly authorized agent, or legal representative.

(b) A claim for personal injury may be presented by the injured person, his duly authorized agent, or legal representative.

(c) A claim based on death may be presented by the executor or administrator of the decedent's estate, or by any other person legally entitled to assert such a claim in accordance with applicable State law.

(d) A claim for loss wholly compensated by an insurer with the rights of a subrogee may be presented by the insurer. A claim for loss partially compensated by an insurer with the rights of a subrogee may be presented by the parties individually as their respective interests appear, or jointly.

(e) A claim presented by an agent or legal representative shall be presented in the name of the claimant, be signed by the agent or legal representative, show the title or legal capacity of the person signing, and be accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.

[36 FR 12448, June 30, 1971, as amended at 45 FR 43720, June 30, 1980]

§ 912.7 Evidence and information to be submitted.

(a) Death. In support of a claim based on death, the claimant may be required to submit the following evidence or information:

(1) An authenticated death certificate or other competent evidence showing cause of death, date of death, and age of the decedent.

(2) Decedent's employment or occupation at time of death, including monthly or yearly salary or earnings, if any, and the duration of his last employment or occupation.

(3) Full names, addresses, birth dates, kinship, and marital status of the decedent's survivors, including identification of those survivors who were dependent for support upon the decedent at the time of his death.

(4) Degree of support afforded by the decedent to each survivor dependent upon him for support at the time of his death.

(5) Decedent's general physical and mental condition before death.

(6) Itemized bills for medical and burial expenses incurred by reason of the incident causing death, or itemized receipts of payment for such expenses.

(7) If damages for pain and suffering prior to death are claimed, a physician's detailed statement specifying the injuries suffered, duration of pain and suffering, any drugs administered for pain, and the decedent's physical condition in the interval between injury and death.

(8) Any other evidence or information which may have a bearing on either the responsibility of the United States for the death or the damages claimed.

(b) Personal injury. In support of a claim for personal injury, including pain and suffering, the claimant may be required to submit the following evidence or information:

(1) A written report by his attending physician or dentist setting forth the nature and extent of the injury, nature and extent of treatment, any degree of temporary or permanent disability, the prognosis, period of hospitalization, and any diminished earning capacity. In addition, the claimant may be required to submit to a physi

cal or mental examination by a physician employed by the agency or another Federal agency. A copy of the report of the examining physician shall be made available to the claimant upon the claimant's written request, provided that he has, upon request, furnished the report referred to in the first sentence of this subparagraph and has made, or agrees to make available to the agency or another Federal agency. A copy previously or thereafter made of the physical or mental condition which is the subject matter of his claim.

(2) Itemized bills for medical, dental, and hospital expenses incurred, or itemized the report referred to in the first expenses.

(3) If the prognosis reveals the necessity for future treatment, a statement of expected expenses for such treatment.

(4) If a claim is made for loss of time for employment, a written statement from his employment, whether he is a full- or part-time employee, and wages or salary actually lost.

(5) If a claim is made for loss of income and the claimant is self-employed, documentary evidence showing the amount of earnings actually lost.

(6) Any other evidence or information which may have a bearing on either the responsibility of the United States for the personal injury or the damages claimed.

(c) Property damage. In support of a claim for injury to or loss of property, real or personal, the claimant may be required to submit the following evidence or information:

(1) Proof of ownership. (2) A detailed statement of the amount claimed with respect to each item of property.

(3) An itemized receipt of payment for necessary repairs or itemized written estimates of the cost of such repairs.

(4) A statement listing date of purchase, purchase price and salvage value, where repair is not economical. [36 FR 12449, June 30, 1971]

§ 912.8 Sufficiency of evidence and information submitted.

In order to exhaust the administrative remedy provided, a claimant shall

submit substantial evidence to prove the extent of any losses incurred and any injury sustained, so as to provide the Postal Service with sufficient evidence for it to properly evaluate the claim.

[45 FR 43720, June 30, 1980]

§ 912.9 Final denial of claim.

(a) Final denial of an administrative claim shall be in writing and sent to the claimant, his attorney, or legal representative by certified or registered mail. The notification of final denial may include a statement of the reasons for the denial and shall include a statement that, if the claimant is dissatisfied with the agency action, he may file suit in an appropriate U.S. District Court not later than 6 months after the date of mailing of the nota. tion.

(b) Prior to the commencement of suit and prior to the expiration of the 6 month period provided in 28 U.S.C. 2401(b), a claimant, his duly authorized agent, or legal representative, may file a written request with the postal official who issued the final denial or with the Assistant General Counsel, Claims Division, U.S. Postal Service, Washington, D.C. 20260, for a reconsideration of a final denial of a claim under paragraph (a) of this section. Upon the timely filing of a request for reconsideration, the Postal Service shall have 6 months from the date of filing in which to make a disposition of the claim and the claimant's option under 28 U.S.C. 2675(a) shall not accrue until 6 months after the filing of a request for reconsideration. Final Postal Service action on a request for reconsideration shall be effected in accordance with this part.

(c) For purposes of this section, a request for reconsideration of a final denial of a claim shall be deemed to have been filed when received in the office of the official who issued the final denial or in the office of the Assistant General Counsel, Claims Division, U.S. Postal Service, Washington, D.C. 20260-1111.

(d) Only one request for reconsideration of a final denial may be filed. A claimant shall have no right to file a request for reconsideration of a final

denial issued in response to a request for reconsideration.

(28 U.S.C. 2671-2680; 28 CFR 14.1-14.11; 39 U.S.C. 401, 409, 2008)

[36 FR 12448, June 30, 1971, as amended at 38 FR 16868, June 27, 1973; 49 FR 19478, May 8, 1984]

§ 912.10 Action on approved claims.

In any case where the General Counsel or his designee, upon consideration of all the evidence submitted, finds that compensation is due a claimant, payment will be made by the U.S. Postal Service and in due course a settlement check will be forwarded to the claimant or his representative. [36 FR 12450, June 30, 1971]

8912.11 Exclusiveness of remedy.

The provisions of 28 U.S.C. 2679(b) provide that the remedy against the United States, as provided by sections 1346(b) and 2672 of Title 28, for injury or loss or personal injury or death resulting from the operation by an employee of the Government of any motor vehicle while acting within the Scope of his employment is exclusive Ge of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim.

[45 FR 43720, June 30, 1980]

8912.12 Review by legal officers.

The authority of the Postal Service to adjust, determine, compromise, and settle a claim under the provisions of the Federal Tort Claims Act shall, if the amount of a proposed compromise, settlement, or award exceeds $2,500, be exercised only after review by a legal officer of the Postal Service.

(45 FR 43720, June 30, 1980]

8912.13 Attorneys' fees.

The provisions of 28 U.S.C. 2678 should be consulted in determining the amount of the attorneys' fees. [36 FR 12448, June 30, 1971. Redesignated at 45 FR 43720, June 30, 1980] $912.14 Conclusiveness of remedy. Payment by the Postal Service of fr the full amount claimed or acceptance

by the claimant, his agent, or legal representative, of any award, compromise, or settlement made pursuant to the provisions of the Federal Tort Claims Act, shall be final and conclusive on the claimant, his agent, or legal representative, and any other person on whose behalf or for whose benefit the claim has been presented, and shall constitute a complete release of any claim against the United States and against any employee of the Government whose act or omission gave rise to the claim by reason of the same subject matter.

[45 FR 43720, June 30, 1980]

§ 916.3 Notice of demand for hearing.

(a) Respondent served with a complaint by the postmaster charging violation of 39 U.S.C 3008, may request a hearing on the issues. The mailer shall file a written request for such hearing with the postmaster no later than 15 days from the date of receipt of a complaint issued pursuant to paragraph (d) of 39 U.S.C. 3008.

(b) The postmaster, upon receipt of a request for a hearing from the respondent, shall promptly forward such request with the file in the matter to the appropriate regional counsel.

§ 916.4 Notice of hearing.

(a) The regional counsel, upon receipt of the respondent's request for a hearing, shall serve upon the respondent, by registered or certified mail, a notice of hearing setting forth the date, time, and place of hearing, and the name of the hearing officer who will preside. A copy of the rules will accompany the notice of hearing.

(b) Whenever practicable, the hearing date will be within 30 days from date of the notice of hearing served on the mailer.

(c) Requests for continuances and extensions of the scheduled hearing date shall be filed with the hearing officer and such requests, within the discretion of the hearing officer, shall not be granted except for good and substantial reasons shown.

(d) The parties in the proceeding initiated under 39 U.S.C. 3008 shall be the mailer, referred to as "Respondent", and the postmaster, referred to as "Complainant".

§ 916.5 Hearing officers.

The presiding officer at the hearing held under this part shall be the appropriate regional counsel of the U.S. Postal Service, or an alternate hearing officer designated by the regional counsel or by the General Counsel of the U.S. Postal Service, to preside as hearing officer and to exercise the same authority as the regional counsel in the proceeding under this part.

[33 FR 15026, Oct. 8, 1968]

§ 916.6 Change of place of hearing.

Requests for change of place of hearing based on good and substantial reasons therefor, may be filed with the hearing officer. Such requests may be granted or denied, within the discretion of the hearing officer, who shall consider the convenience and necessity of all parties concerned and the jurisdictional requirements.

§ 916.7 Conduct of the hearings.

(a) Testimony shall be under oath and witnesses shall be subject to cross examination.

(b) Hearings shall be stenographically reported by postal personnel, or if necessary, a contract reporter of the U.S. Postal Service under the supervi sion of the hearing officer. Copies of the transcript shall be supplied to the parties to the proceeding by Postal Service personnel at the rates provided by § 262.7 of this chapter, or if by the reporter, at rates not to exceed the maximum rates fixed by the contract between the U.S. Postal Service and the reporter.

(c) A party may object to admissions of evidence and shall make a brief statement of the grounds for the objections. Formal exceptions to the rulings of the presiding officer are unnecessary.

(d) All relevant and material evidence is admissible, including hearsay evidence of a trustworthy nature.

(e) The U.S. Postal Service is not authorized by law to issue subpoenas requiring the attendance or testimony of witnesses or the production of documents.

(f) The U.S. Postal Service is not authorized to pay fees and expenses for the respondent's witnesses or for depositions requested by the respondent pursuant to § 916.8.

§ 916.8 Depositions.

(a) Not later than 5 days after receipt of a notice of hearing by respondent under § 916.4, either party may file with the hearing officer a request for the taking of testimony by deposition. A copy of the request shall be served on complainant. Requests shall contain a statement under oath, signed by the respondent, setting out