Page images
PDF
EPUB

the public interest to grant the excluSive license. (2) If an exclusive license has been granted pursuant to this part, notice thereof shall be published in the FEDERAL REGISTER. Such notice shall include: (i) Identification of the invention; (ii) Identification of the licensee; and (iii) Duration and Scope of the liCeIlSe. (3) If an exclusive license has been modified or revoked pursuant to paragraph (e) $746.11, notice thereof shall be published in the FEDERAL REGISTER. Such notice shall include: (i) Identification of the invention; (ii) Identification of the licensee; and (iii) Effective date of the modification or revocation. (e) Modification or revocation. (1) Any license granted pursuant to this part may be modified or revoked by the Chief of Naval Research if the licensee at any time defaults in making any report required by the license or commits any breach of covenant or agreement therein contained. (2) A license may also be revoked by the Chief of Naval Research if the licensee willfully makes a false Statement of material fact or willfully Onits a material fact in the license application or any report required in the license agreement. (3) Before modifying or revoking any license granted pursuant to this part for any cause, the Chief of Naval ReSearch shall furnish the licensee and any sublicensee of record a written no

tice of intention to modify or revoke the license, and the licensee and any Sublicensee shall be allowed 30 days after such notice to remedy any breach of any Covenant or agreement as referred to in paragraph (e)(1) of $746.11, or to show cause why the license should not be modified or revoked.

(f) Appeals. An applicant for a license, a licensee, or such other third party who has participated under paragraph (d)(1)(iv)(B) of $746.11 shall have the right to appeal, in accordance with procedures prescribed by the Chief of Naval Research, any decision concerning the granting, denial, interpretation, modification, or revocation of a license.

§ 746.12 Litigation.

The property interest in a patent is the right to exclude. It is not the intent of the Government to transfer the property right in a patent when a license is issued pursuant to this part. Accordingly, the right to Sue for infringement shall be retained with respect to all licenses so issued by the Government.

$746.13 Transfer of custody of Government inventions.

The Chief of Naval Research may enter into an agreement to transfer custody of a Government invention to another government agency for purposes of administration, including the granting of licenses pursuant to this part.

[blocks in formation]

Scope of subpart B. Exclusiveness of remedy. DefinitionS. Statutory/regulatory authority. Scope of liability. 750.26 The administrative claim. 750.27 Information and Supporting documentation. 750.28 Amendment of the Claim. 750.29 Investigation and examination. 750.30 Denial of the claim. 750.31 Reconsideration. 750.32 Suits under the Federal Tort Claims Act (FTCA). 750.33 Damages. 750,34 Settlement and payment. 750.35 Attorney’s fees. 750.36 Time limitations. 750.37–750.40 [Reserved]

[merged small][merged small][ocr errors]

750.54 Payment of CostS, Settlements, and judgments related to Certain medical or legal malpractice claims.

750.55 Attorney’s fees.

750.56–750.60 [Reserved]

Subport D-Claims Not Cognizable Under Any Other Provision of Low

[ocr errors]

Scope of Subpart D.
Statutory authority.

Definitions.

Claim procedures. Statute of limitations. Officials with authority to Settle. Scope of liability. 750.68 Claims not payable. 750.69 Measure of damages.

AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, and 5148; E.O. 11476, 3 CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202.

SOURCE: 57 FR 4722, Feb. 7, 1992, unless oth— erwise noted.

Subport A–Generol Provisions for Cldims

$750.1 Scope of subpart A.

(a) General. (1) The Judge Advocate General is responsible for the administration and Supervision of the resolution of claims arising under the Federal Tort Claims Act (subpart B of this part), the Military Claims Act (subpart C Of this part), the NonScope Claims Act (subpart D of this part), the PerSonnel Claims Act (part 751 of this chapter), the Foreign Claims Act, the International Agreements Claims Act pertaining to cost sharing of claims pursuant to international agreements, the Federal Claims Collection Act of 1966 (subpart A of part 757 of this chapter), the Medical Care Recovery Act (subpart B of part 757 of this chapter), and postal claims.

(2) The Deputy ASSistant Judge Advocate General (Claims and Tort Litigation) is the functional manager of the Navy claims System established to evaluate, adjudicate, and provide litigation support for claims arising under the acts listed above and is responsible to the Judge Advocate General for the management of that System. The claims system consists of field activities delegated claims processing and adjudicating authority and the attorneys and support personnel assigned to the Claims and Tort Litigation DiviSion of the Office of the Judge Advocate General. For economy of language, Naval Legal Service Offices and Naval Legal Service Office Detachments are referred to as Naval Legal Service Command Activities. (3) Commanding officers of commands receiving claims are responsible for complying with the guidance On investigations in §§ 750.2 and 750.3 and the guidance on handling and forwarding claims found in $750.5. (b) This subpart A delineates general investigative and claims-processing requirements to be followed in the handling of all incidents and claims within the provisions of this part. Where the general provisions of this Subpart. A conflict with the specific provisions of any subsequent subpart of this part, the specific provisions govern.

$750.2 Investigations: In general.

(a) Conducting the investigation. The command where the incident giving rise to the claim is alleged to have happened is responsible for conducting an investigation in accordance with this part.

(b) Thorough investigation. Every incident that may result in a claim against or in favor of the United States shall be promptly and thoroughly investigated under this part. Investigations convened for claims purposes are sufficiently complex that they should be performed with the assistance and under the Supervision of a judge advoCate or Other attorney. Where the Command has an attorney assigned, he shall be involved in every aspect of the proceedings. When an attorney is not assigned to the investigating command, consultation shall be sought from the appropriate Naval Legal Service Command activity.

(c) Recovery barred. Even when recovery may be barred by statute or case law, all deaths, serious injuries, and substantial losses to property that are likely to give rise to claims must be investigated while the evidence is available. Claims against persons in the naval service arising from the performance of their official duties shall be investigated as though they were claims

against the United States. When an incident involves an actual or potential claim against the United States for property damage only and the total amount likely to be paid does not exceed $5,000.00, an abbreviated investigative report may be submitted. Where this monetary figure may be exceeded, but the circumstances indicate an abbreviated report may be adequate to preserve the facts and protect the Government’s claims interests, approval to Submit a limited investigative report may be sought from the nearest Naval Legal Service Command activity. (d) Developing the facts. Any investigation convened for claims purposes must focus on developing the facts of the incident, i.e., the who, what, where, when, why, and how of the matter. Opinions on the possible liability of the United States under any of the claims Statutes listed above shall not be expressed. Early and continuous conSultation with claims attorneys at Naval Legal Service Command activities is essential to ensure the timely development of all necessary facts, the identification and preservation of relevant evidence, and to void the need for supplemental inquiries. (e) Attorney work product. (1) The convening order and the preliminary statement of an investigative report prepared to inquire into the facts of an inCident giving or likely to give rise to a claim against the United States shall include the following:

This investigation has been convened and Conducted, and this report prepared, in contemplation of claims adjudication and litigation and for the express purpose of assisting attorneys representing the interests of the |United States.

(2) When an investigation is prepared by or at the direction of an attorney representing the Department of the Navy and is prepared in reasonable anticipation of litigation, it is exempt from mandatory disclosure under the Freedom of Information Act exemption (b)(5) and is normally privileged from discovery in litigation under the attorney work product privilege. 5 U.S.C. 552(b)(5). Unless an attorney prepares the report or personally directs its preparation, the investigation may not be privileged, even if it was prepared in reasonable anticipation of litigation.

[ocr errors]

(f) Advance copy. An advance copy of any investigation conducted because a claim has been, or is likely to be, Submitted shall be forwarded to the Naval Legal Service Command activity claims office responsible for the area. where the incident giving rise to the claim occurred.

$750.3 Investigations: The report.

(a) Purpose. The purpose of investigations into claims incidents is to gather 11 relevant information about the incident so adjudicating officers can either pay or deny the claim. The essential task of the investigating Officer is to answer the questions of who, what, where, when, why and how? The Navy’s best interests are served when the investigation is thorough and is performed in a timely manner so the claimant can be advised promptly of the action on the claim. (b) Duties of the investigating officer. It is the investigating officer’s responSibility: (1) To interview all witnesses to the incident and prepare summaries of their comments. Obtaining signed Statements of Government witnesses is not necessary. Summaries of the witnesses’ remarks prepared by the investigating Officer are quite Sufficient and generally expedite the gathering of information. On the other hand, written Signed Statements should be obtained from the claimant, wherever possible; (2) To inspect the property alleged to have been damaged by the action of Government personnel; (3) To determine the nature, extent, and amount of any damage, and to Obtain pertinent repair bills or estimates and medical, hospital, and associated bills necessary to permit an evaluation of the claimant’s loss; (4) To obtain maintenance records of the Navy motor vehicle, plane, or other piece of equipment involved in the Claim; (5) To reduce to writing and incorporate into an appropriate investigative report all pertinent statements, Summaries, exhibits, and other evidence considered by the investigator in arriving at his conclusions; and, (6) To furnish claim forms to any perSon expressing an interest in filing a

claim and to advise such personnel where they should file their claim. (c) Content of the report. The written report of investigation shall contain information answering the questions mentioned in $750.3(a) and, depending On the nature of the incident, will include the following: (1) Date, time, and exact place the accident or incident occurred, specifying the highway, street, or road; (2) A concise but complete statement of the incident with reference to physical facts observed and any statements by the personnel involved; (3) Names, grades, Organizations, and addresses of military personnel and civilian witnesses; (4) Opinions as to whether military or civilian employees involved in the incident were acting within the scope Of their duties at the time; (5) Description of the Government property involved in the incident and the nature of any damage it sustained; and, (6) Descriptions of all private property involved. (d) Immediate report of certain events. The Navy or Marine Corps activity most directly involved in the incident Shall notify the Judge Advocate General and the appropriate adjudicating authority inmediately by message, electronic mail, or telephone in any of the following circumstances: (1) Claims or possible claims arising out of a major disaster or out of an incident giving rise to five or more posSible death or Serious injury claims. (2) Upon filing of a claim that could result in litigation that would involve a new precedent or point of law. (3) Claims or possible claims that involve or are likely to involve an agency other than the Department of the Navy. (e) Request for assistance. When an incident occurs at a place where the naval Service does not have an installation or a unit Conveniently located for Conducting an investigation, the Commanding officer or officer in charge with responsibility for performing the investigation may request assistance from the commanding officer or officer in charge of any other Organization of the Department of Defense. Likewise, if a commanding officer or Officer in charge of any other organization of the Department of Defense requests such assistance from a naval commanding Officer or officer in charge, the latter should normally comply. If a complete investigation is requested it will be performed in Compliance with the regulations of the requested service. These investigations are normally conducted without reimbursement for per diem, mileage, or other expenses incurred by the investigating unit or installation. (f) Report of Motor Vehicle Accident, Standard Form 91. RCS OPNAV 5100–6. The operator of any Government motor vehicle involved in an accident of any sort shall be responsible for making an immediate report. On the Operator’s Report of Motor Vehicle Accident, Standard Form 91. This operator’s report shall be made even though the operator of the other vehicle, or any other person involved, States that no claim will be filed, or the only vehicles involved are Government owned. An accident shall be reported by the operator regardless of who was injured, what property was damaged, or who was responsible. The operator's report shall be referred to the investigating officer, who Shall be responsible for examining it for completeness and accuracy and who Shall file it for future reference or for attachment to any Subsequent investigative report of the accident. (g) Priority of the investigation. To ensure prompt investigation of every incident while witnesses are available and before damage has been repaired, the duties of an investigating officer shall ordinarily have priority over any other assignments he may have. (h) Contents of the report of investigation. The report should include the following items in addition to the requirements in $750.3(c): (1) If pertinent to the investigation, the investigating Officer Should obtain a statement from claimant’s employer showing claimant’s occupation, wage or salary, and time lost from work as a result of the incident. In case of personal injury, the investigating officer should ask claimant to submit a written Statement from the attending phySician Setting forth the nature and extent of injury and treatment, the duration and extent of any disability, the

prognosis, and the period of hospitalization or incapacity. (2) A Privacy Act statement for each person who was asked to furnish perSonal information shall be provided. Social Security numbers of military personnel and civilian employees of the U.S. Government should be included in the report but should be obtained from available records, not from the individual. (3) Names, addresses, and ages of all Civilians or military personnel injured or killed; names of insurance companies; information on the nature and extent of injuries, degree of permanent disability, prognosis, period of hospitalization, name and address of attending physician and hospital, and anount of medical, hospital, and burial expenses actually incurred; occupation and wage or Salary of civilians injured Or killed; and names, addresses, ages, relationship, and extent of dependency

..of Survivors of any such person fatally

injured should be included. (4) If Straying animals are involved, a Statement as to whether the jurisdiction has an “open range law” and, if so, reference to such statute. (5) A statement as to whether any person involved violated any State or Federal statute, local ordinance, or inStallation regulation and, if so, in what respect. The statute, Ordinance, or regulation should be set out in full. (6) A Statement. On whether a police investigation was made. A copy of the police report of investigation should be included if available. (7) A Statement on whether arrests were made or charges preferred, and the result of any trial or hearing in Civil or military Courts. (i) Expert Opinions. In appropriate cases the opinion of an expert may be required to evaluate the extent of damage to a potential claimant’s property. In Such cases the investigating Officer Should consult Navy-employed experts, experts employed by other departments of the U.S. Government, or civilian experts to obtain a Competent a SSessment of claimant’s damages or otherwise to protect the Government’s interest. Any cost involved with obtaining the opinion of an expert not employed by the Navy shall be borne by the command conducting the investigation. Any cost

« PreviousContinue »