TORT CLAIMS UNDER NEW ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP57-00384R001300360032-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 4
• Document Creation Date: December 9, 2016
• Document Release Date: August 7, 2001
• Sequence Number: 32
• Publication Date: January 1, 1949
• Content Type: OPEN

OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY ? WASHINGTON, D. C.
NAVEXOS P-523
CONTENTS
SERVICE RECORD ENTRIES ..................... Lt. H. Hutchinson, USN
CONSOLIDATION OF CHARGES .............Lt. Kurt Hallgarten, USNR
LAST WILL AND TESTAMENT .............. Cdr. Eulan I. Snyder, USNR
TORT CLAIMS UNDER NEW ACT ............. Lcdr. M. H. Staring, USN
INDEX
NAVY Declassification/Release Instructions on File
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 32-6
DP57-003QQ LQqf 00L
1011
MEN: C
UNDER NEW ACT
By Ledr M. It. Staring, USN
Published monthly by the Judge Advocate General of
the Navy in the interest of true justice. The mission of
the JAG JOURNAL is to promote legal forehandedness
among naval personnel charged with the administration
of naval law. The goal to be attained through this un-
official medium of instruction and review for those un-
trained or trained in law is the clear understanding of
the basic laws governing Navy life and of the rights and
obligations of naval personnel.
The editorial policy has been established as one of in-
formality. For this reason its pages are not citable as
legal authority in any judicial proceedings. Court Mar-
tial Orders and Opinions of the Judge Advocate General
will continue to be the authoritative sources of citable
decisions and legal precedent.
Views on controversial topics expressed herein by in-
dividual authors must be construed as being their own
personal views, not necessarily bearing the endorsement
or approval of the Navy Department or of the Judge
Advocate General.
The printing of this publication has been approved by
the Director of the Bureau of the Budget, 13 July 1948.
RADMI. G. L. RUSSELL, USN
Judge Advocate General of the Navy
CAPT. E. E. WOODS, USN
Assistant Judge Advocate General of the Navy
COMDR. T. F. RYAN, USNR
Editor I,.",
LT. W. A. SAVAGE, TTSN
Associate Editor
For sale by the Superintendent of Documents,
U. S. Government Printing; Office, Washington 25, D. C.
Price 10 cents, 81.00 per year, $1.35 Foreign
T IIE Federal Tort Claims Act has been re-
pealed; but don't call off the investigator. It
has been re-enacted, in revised form, as a part of
Title 28, United States Code. In codifying and re-
enacting the provisions of the original law, it was
apparently the intent of the Congress that no sub-
stantive changes be made. For the most part
this intention appears to have been fulfilled; but
there are enough changes in phraseology, arrange-
ment, and substance to warrant a close study of
the revised law by everyone concerned with its
administration.
In the first section of Public Law 773 of the
Eightieth Congress, approved by the President
on 2.5 June 1948, effective 1 September 1948, it is
stated : "Title 28 of the United States Code, en-
titled `Judicial Code and Judiciary' is hereby re-
vised, codified, and enacted into law, and may be
cited as `Title 28, United States Code, section-,'
as follows : * * *" There follows a complete
revision of Title 28, including a number of scat-
tered sections which contain the provisions for-
merly found in the Federal Tort Claims Act, Title
IV of the Legislative Reorganization Act of 1946,
Public Law 601, Seventy-ninth Congress. Section
39 of Public Law 773 includes a. "Schedule of
Laws Repealed". Included in this schedule are
sections 401-423 of the original Federal Tort
Claims Act, and section 1 of the Act of 1 August
1947, Public Law 324 of the Eightieth Congress,
NO ich amended the Federal Tort Claims Act.
Public Law 773 thus repealed all sections of the
Federal Tort Claims Act with the single exception
of section 424. With regard to section 424, left
standing on the statute books, the Reviser's Notes
which explain in detail the changes made in the
revision of Title 28, United States Code, state:
"Section 946 of title 28, U. S. C., 1940 ed.,
which was derived from section 124 (b) of the
Federal Tort Claims Act, was omitted from this
revised title. It preserved the existing author-
ity of federal agencies to settle tort claims not
cognizable under section 2672 of i I i is title. Cer-
tain enumerated laws granting such authority
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 Frep efn 2011/0iF7 :a) o -RDP5 p0038 fROO1 ess the 4p ctera132 6agency has made final
wereAs~ ecotve cai
l y l ys (r
the Federal Tort Claims Act, which section was
also omitted from this revised title. These, pro
visions were not included in this revised title as
they are not properly a part of a code of general
and permanent law."
Section 2 of the Act, of 1 August 1947, broadening
the statute of limitations of the 111ederal Tort
Claims .Act with respect to death claims in certain
jurisdictions, was also left standing on the stat4ito
books through omission from the, schedule of laws
repealed by Public Law 773.
The provisions governing the administrative
settlement of federal tort claims, formerly l?onnd
primarily in part 2 of the Federal Tort Claims Act,
are now located in Title 28, United States Code,
sections 2401, 2671--26'74, 2678, and 2680. The pro-
visions governing civil action against the United
States in tort cases, formerly contained primarily
i a part 3 of the Federal Tort Claims Act, are now
found in Title 28, United States Code, sections
1254, 1255, 1291, 1346, 1402, 1504, 2110, 2401, 2402,
2411, 2412, 2671, and 2674 2680.
The only major substantive change which ap-
pears to have resulted from the reshuffling of the
provisions of the Federal Tort Claims Act occurs
in Title 28, T7nited States Code, section 2675, con-
taining some of the provisions formerly found in
section 410 (b) of the original act. The Federal
Tort Claims Act, as originally enacted, here pro-
vided that no suit should be instituted against the
United States upon a claim presented to any Fed-
eral agency for administrative consideration un-
less the Federal agency had made final disposition
of the claim. It was further stated that the claim-
ant might, upon 15 days' written notice, withdraw
his claim from consideration by the Federal agency
and commence suit thereon. Section 410 (h) of the
act then provided that, "as to any claim so dis poased
of or so withdrawn," [italics supplied] no suit
should be instituted for any sum in excess of the
amount of the claim presented to the Federal
agency unless the increased amount was based
upon newly discovered evidence or upon evidence
of intervening facts relating to the amount of the.
claim.
These particular provisions of section 410 (b)
of the original act have been placed in two sub-
sections of Title 28, United States Code, section
2675. Subsection (a) provides (lint an action shall
disposition of the claim. Subsection (b) provides
that the claimant may, upon 15 days' written no-
tice, withdraw his claim from consideration by the
Federal agency and commence action thereon. It
is then provided, still (and only) in subsection (b),
that "Action under this subsection shall not be
instituted for any sum in excess of t Iae amount of
the claim presented to the Federal agency," [italics
supplied] subject to the same exceptions as con-
tained in the original act.
The effect of the revised arrangement of the
provisions of section 410 (b) of the former Fed-
oral Tort Claims Act is to provide that a claimant
who lyithdraws his claim from consideration by
a Federal agency cannot bring suit for any sum
in excess of the amount of his administrative claim,
whereas a claimant whose claim has received final
administrative disposition by a Federal agency is
not, limited to the amount of his administrat:ive
claim in bringing a subsequent civil action against
the Government. It is highly probable that this
substantive change in the law was inadvertent;
but it, appears, nevertheless, to be real.
The provisions of the original Federal Tort
Claims Act expressly limiting its application to
claims "accruing on and after January 1, 1945,"
have been omitted from the revision of Title 28,
United States Code. It is stated in the Reviser's
Notes that these words of the original act were
"omitted because executed as of the date of the
enactment of this revised title." Tlie 1-year stat-
ute of limitations will of course bar a it initial filing
of any claim which accrued prior to 1 January
1945. It is conceivable, however, that a case may
arise involving a claim which accrued prior to
1 January 1945, upon which a claim was filed
within 1 year from the date of accrual, and upon
which no final action has been taken. In such a
remote event, it is considered probable that a con-
sideration of the legislative history of the revised
title will result in a decision that the Congress
intended no broadening of the original waiver of
sovereign immunity to result from the omission
of the limiting phrase in the codification.
A minor oversight in an internal reference in
Title 28 is worthy of note, if only to save someone
a slight and momentary confusion. Sections
2671-2680 of the revision are contained in chapter
171 entitled "Tort Claims Procedure." The num-
riot be instituted upon a claim against the United her of this chapter was 173 in the original bill,
States which has been presented to a Federal but was changed to 171 by a Serrate amendment.
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815256 -49 3
 Section 1340 (b). ~tRSeiFr#~sf~?ooiosi~rr~P-RP~~f4840arQ14E~>t~r6)f tlle
ei vi I actions in tort cases to the United Sta'l s
district. courts, and to certain other courts, "Sul)-
)ec.t to i 110 provisions of chal)ler 173 of this I itle
It was randoaabtedly intended that jurisdicticii
should be collferrod subject to II>r provisio>s of
chapter 171, rather than chapter 173, as there is
no ( 111er 173 in the revised title as it now stands.
In line vaitai the general revision of 'T'itle
with relation to I he Federal courts. then e. has been
a change ita i he. wording of the original :Ic.t which
conferred jurisdiction In tort cases upon '`the
United States district court . inchtdirig
the United States district courts for the 'Ferai-
tories and possessions of t lie United States." 'This
p(risdictioll is riow conferred by 'Title 28, United
States Code. sectioll 1346 (b), upon "the listri'''t.
courts, together with tine District court. for (Ile
'T'erritory of Alaska, the United States Distri~h
(',onrt for the District of the. Canal Zone and
the T)ist.rict Court of the Virgin Islands." Tlris
change removed a prior question concerning the
itpplicalion of the Federal :Tort Claims Act to the
I'a.nama Canal Zone. By express definition els,2-
United Slates" includes the I'IIited States (list rict
our is for all States, the District of Cohnnbia,
Ill wail, and Puerto Pico. The title also clianges
the official des gn atioil"(Tuned States circuit court
ppeals..,
of appeals" to 'Tailed States court of a
'T'he. only other changes which appear to have
beets made, in codifying and re-enacting the pro-
visions of tlic fornier Federal Tort Claims Act
sure general changes in phraseology. The prolixity
of the original act has been appreciably reduced,
:1114 the meaning, has in some Iltstaraces been clari-
fied. It is regrettable, from a practical stand-
point, that the coilvenient handle, "Federal Tort
Claims Act," is no longer 1) officially authorized
reference; and the dispersal of the provisions of
(lie law through numerous isolated sections of the
revised title snakes for a certain awkwardness
when. a general reference is desirable. To mini.-
niize confusion in referring to the various provi-
sions of the law during the transition period, there
is reproduced below a table of parallel reverences
to assist in the location of the reincarnate provi-
sions of the dear (ill cost) departed "F T('A".
FEDERAL TORT CLAIMS ACT
Parallel 'Reference 'f'able
*Ilepealed bV sec. 39, Public Law 77:3, 801.11 Cong., 62 8tat. 869.
Original Seel-ion
()iginal Sta1:. Citation: New Stal,. ('ifafion: f' 2 S C.
eciiuns of .hide l F 1'nh, t a 601, g21, )2L rule , lull, l a w % 773, 80th
()riginal lcl 79 111 Con g., 60, (at.8.12 922, 931 note 869-
311 1
1009
8 16 947 !H 6
101
61) Stitt. 842--
921 note
4(12*
.-j GO Stitt. 842-84:;_---
941----
403
6O Sta,t? 843 -
921-
1f)4*
110 (aa) *
(;0 Stat. 843--
1 6 0 S t a t. 843 844
(a,rnended Pith. Law
922
931 (e
324, 80th Conn;., 61
Sta,t. 722).
410 (b)*.
thO Stat. 844--
9:31 (b)_.-
4 1 1 *
GO Stitt. 844
932
4 12 (1.) (1) *
AGO Stitt. 844
933 (U (1)
112 (a) (`?)*
GO Stat, $44 54:1
93:1 6) (2)
4 1 2 (h) * -_
60 Stitt.. 845
933 (11)-_
4I:1*
till Stat. 845
934
120*
i 60 Stitt,. 845
942
421 *
60 Stitt,. 845 846_-
943
422*
GO Stat. 846 __.
944
423*
6O Stat. 846
945
124 (a)
i 60 Stat. 846--847-
921 note
121 (b)
. 61) Stitt. 847 _
916 ---
62 Stat. 982
62 Stat. 983
62 Stat. 98:1- - - - --
62 Stat. 933. 937,
971, 973, 983.
62 Stat 98:'., 984----
62 Stat. 93:?,, 973- - -
\ec~ section of 28 1-. S.
C : 1291, 1346, 1102,
1501, 2110, 2101, 2102,
2111, 2412, 2671-2680
(Omitted.)
2671.
2672.
2673.
1346 (b), 1402 tb).
2402, 2411, 2412
(c). 2674.
2675, 2676.
1346 (c), 2411.
1291.
1504. 2110.
(Omitted; covered
1254, 1255.)
62 Stat 1)29
62 Stitt. 942', 964
62 Stitt,. 98-1 2677.
62 Stitt.. 971 2401 W.
62 Stilt. 984 2680.
62 Stat. 984 26"98.
62 Stitt. 984 2679.
(Omitted.)
(Omitted.)
by
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