Mr. HOWELL, from the Committee on Claims, submitted the following

REPORT

[To accompany S. 4377]

The Committee on Claims, to whom was referred the bill (S. 4377) to provide for the settlement of claims against the United States on account of property damage, personal injury, or death, having considered the same, report favorably thereon with the recommendation that the bill do pass without amendment.

STATEMENT OF FACTS

This bill is identical with H. R. 9285, Seventieth Congress, second session, as amended in the Senate for reasons stated in Senate Report 1699, Seventieth Congress, second session, except in certain minor particulars hereinafter mentioned. That bill, as amended in the Senate, was agreed to in conference, the conference report was adopted by both the Senate and the House, and the bill was presented to the President for approval during the last day or two of the second session, Seventieth Congress. Due to an objection hereinafter mentioned, the said bill, H. R. 9285, as amended, was given a pocket veto by the President. This bill, S. 4377, was drafted to embody the provisions of H. R. 9285, with certain changes to meet the objection leading to pocket veto of the bill.

It was stated in Senate Report 1699, Seventieth Congress, second session, that

There is now no general law providing for the adjustment of tort claims against the United States by either General Accounting Office, administrative officers, or the courts. The consequence is that the Claims Committees of Congress are burdened with numerous private bills for the payment of tort damages caused by acts of omission or commission of officers of the United States, and a considerable part of the time of Congress is consumed in the consideration of such of the bills as are favorably reported by the respective committees. The burden on Congress and the injustice to claimants have become so great that provision should be made for the utilization by Congress of the assistance

of the established machinery of the accounting office and of the judicial branch of the Government for the settlement of tort claims in the same manner as provision has been made for such utilization in the settlement of contract claims against the United States.

The act of February 24, 1855 (10 Stat. 612), establishing the Court of Claims, limited suits therein to claims "founded upon any law of Congress, or upon any regulations of an executive department, or upon any contract, express or implied, with the Government." The act of March 3, 1887 (24 Stat. 506), slightly extended the jurisdiction of the Court of Claims by adding claims "for damages, liquidated or unliquidated, in cases not sounding in tort." These statutes were carried forward into the Judicial Code of March 3, 1911 (36 Stat. 1093, 1135-1143). However, there have been enacted from time to time many special statutes conferring jurisdiction on district courts to hear and determine particular claims sounding tort against the Government and there is a general statute which authorizes the Court of Claims to hear claims for the tortuous acts of the Government in the infringement of patents. See act of June 25, 1910 (36 Stat. 851). In taking over the railroads and collateral services and in establishing a Shipping Board for the merchant ships, the Government placed itself in the position of a private operator. See acts of March 21, 1918 (40 Stat. 456), September 7, 1918 (39 Stat. 728), and March 9, 1920 (41 Stat. 525). That is, it submitted itself to tort liability in connection therewith.

There have also been enacted from time to time numerous private bills for the payment of damages to persons or property because of tortuous acts of employees or other agents of the United States. In addition to these private acts the Federal workmen's compensation act of September 7, 1916 (39 Stat. 742), has been enacted providing compensation for the disability or death of an employee "resulting fom a personal injury sustained while in the performance of his duty," and Congress provided in the act of July 11, 1919 (41 Stat. 109), for compensation for damage to property by Army aircraft and by the act of December 28, 1922 (42 Stat. 1066), provision was made for the satisfaction by the heads of the executive departments or independent establishments of the Government of certain claims for damage to or loss of private property not in excess of $1,000 "caused by negligence of any officer or employee of the Government acting within the scope of his employment." An act of the same date gave the Secretary of the Navy authority to settle maritime collision claims up to $3,000.

In other words, it may be said that Congress has recognized the general liability of the Government within maximum amounts for the negligence of officers and employees of the United States, but the machinery for determining that liability is defective and results in overburdening the claims committees of Congress and Congress itself with the consideration of tort liability claims and with injuries to the claimants.

This proposed legislation is designed to relieve the situation by utilizing the machinery of the Accounting Office and judicial branches of the Government in the assistance of Congress.

EXTENT AND AMOUNT OF LIABILITY

The act of December 28, 1922, authorized the payment of claims not exceeding $1,000 "caused by the negligence of any officer or employee of the Government acting within the scope of his employment.' This bill as passed by the House provides that “contributory negligence shall operate to diminish the damages recovery in proportion to the amount of negligence attributable to the claimant," and increases the $1,000 limitation to $5,000 and forces claimants who have been damaged in their property more than $5,000 to seek redress in the courts.

The liability of the Government in the act of December 28, 1922, is too broad and this bill as it passed the House enlarges that liability by attempting to set up the doctrine of apportionment of negligence in the settlement of tort claims. This is a rule of admiralty and does not obtain in the English or any of the American courts in common-law actions, except in one or two States. The apportionment of negligence is wholly impracticable of application in tort claims against the United States and would be the source of endless disputes and dissatisfaction.

The ordinary rule as between private parties is that contributory negligence proximately causing the damage bars recovery. The rule is stated in Grand Trunk Railroad Co. v. Ives (144 U. S. 409), quoting from the syllabus, as follows: 11* * * If the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured, an action for the

injury can not be maintained unless it further appear that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence."

The Congress is surrendering no authority or responsibility by virtue of the proposed legislation because under Article I, section 9, of the Constitution no money may be drawn from the Treasury without the consent of Congress, and it matters not whether a claim for $5,000 or more comes to the Congress for appropriation through a court or through the proper officer of the Government because in either event the Congress must either approve or disapprove the conclusion reached and, in its discretion, refuse to approve what has been done in appropriating money to pay the claim or judgment.

A claim on account of tort liability should be, of course, determined on the basis of the facts and the law. It will remain the responsibility of Congress to see that such claims are so determined before appropriating money to pay them. The jurisdiction and power should be and has been clearly reserved in the Congress to require such a determination before paying a claim, and this whether the claim is in the form of a settlement or in the form of a judgment.

Furthermore, courts should not be burdened and claimants required to bear additional expense of judicial proceedings unless there is some controversy between the proper officers of the Government and the claimant as to the extent and amount of the damage, if any. Under the law as it now stands, there is no limitation placed on the amount of contract, and similar claims which may be settled and paid nor is there any limitation on the jurisdictional amount of such contract and similar claims in the Court of Claims. See section 236, Revised Statutes, as amended by the act of June 10, 1921 (42 Stat. 24), and section 145, of the act of March 3, 1911 (36 Stat. 1137). The committee, however, thinks it proper to place a limitation of $50,000 on the amount of tort claims that can be settled and reported to Congress.

MACHINERY FOR THE SETTLEMENT OF TORT CLAIMS

The Congress has as its agent in auditing the expenditures of the administrative departments and establishments of the Government and for the settlement of claims against the United States generally, the General Accounting Office, created by the Budget and Accounting Act of June 10, 1921 (42 Stat. 23, 27), amending the statutes relating to the former accounting officers of the Treasury. See ordinance of September 26, 1778; act of September 2, 1789 (11 Stat. 65); act March 3, 1817 (3 Stat. 366); and act July 31, 1894 (28 Stat. 208). This office is wholly disinterested in the expenditures of such departments and establishments of the Government. Its sole duty and responsibility is to see for the Congress that the appropriations are expended as directed in the law. This office is equipped with trained personnel for the settlement of all claims against the Government; in fact, section 305 of the Budget and Accounting Act, which originated in the act of March 3, 1817, directs that office to settle and adjust all claims and demands whatever wherein the Government of the United States is concerned, either as debtor or creditor, but either because no, or limited, appropriations have been made for the payment of tort claims, that office has been unable, under the limitations imposed on it by the statutes, to property assist Congress in the settlement of these tort claims. The appropriation limitation on that office with respect to all contract, etc., claims was removed by Public No. 247, Seventieth Congress, approved April 10, 1928.

The act of December 28, 1922, with respect to tort claims of less than $1,000 · departed from that sound rule of administration which was stated by Blackstone that a man should not be a judge in his own case. The rule was stated by the Secretary of the Treasury in his report to the Senate, dated December 5, 1834, in part, as follows:

'It seems required, by a due regard to system, uniformity, and proper accounting ability that neither those empowered by law to decide on the necessity of certain services and purchases nor those who make the purchases and contracts should also adjust the accounts rendered for them; but that the auditors themselves (now the General Accounting Office), whether the claims originated under the authority of heads of bureaus or of departments, should have the exclusive power, in the first instance, to judge of the reasonableness and just amount due, looking to all the evidence in the case and to the laws and fixed prospective regulations that apply to it."

Not only should the officers or their immediate superiors whose tortuous acts gave rise to a claim against the Government not have the adjustment of such

claims, but there should be uniformity in their adjustment. The amendments proposed by your committee provide, among other things, two essential safeguards: (1) That neither the officer nor his superior who commits the tort shall have the duty and responsibility of settlement of the resulting claims. (2) That such claims shall be settled and reported to the Congress by a disinterested agency of the Government and thereby uniformity of settlements also secured.

The Treasury Department, for instance, might not have the same ideas as to either the basis or extent of liability as the Department of Agriculture, and there is no justification for as many different rules of settlement as there are different departments and establishments of the Government. The same principle maintains here as that which made it necessary in the accounting system of duties of six auditors and a comptroller being finally centralized in the Comptroller General to obtain uniformity in action upon accounts and claims.

The House bill recognized this matter by the provision that the personalinjury claims should be considered in the first instance by the Federal Employees' Compensation Commission. This committee approves concentration of investigation and report of physical-injury and death claims in said commission, but believes that the property-damage claims should be concentrated in the General Accounting Office and that the personal-injury claims should be reported to that office, in furtherance of uniformity and to the end that all claims under this bill shall reach the Congress through but one agency. This was the procedure approved by the Congress in the act of March 2, 1927 (44 Stat. p. 3, 1800), for settlement of the property-damage and personal-injury claims arising out of the explosions at Lake Denmark, N. J., and in Private No. 24, Seventieth Congress, approved March 5, 1928, for the settlement of the claims caused by the airplane accident at Moundsville, W. Va.

The bill, as it passed the House, provided for suits against the United States in the Court of Claims to recover on tort claims exceeding $5,000 in amount and conferred concurrent jurisdiction on both the Court of Claims and the various United States district courts to entertain such claims where the amount claimed was between $5,000 and $10,000. It is not believed that until there shall be built up a body of case law, the district courts should have jurisdiction of tort claims against the Government and, furthermore, it is not believed that the procedure of suits against the United States is a proper one to secure judicial determination of tort claims, especially where there is no controversy as to the liability of the United States. There is English procedure, exemplified in Rex v. Roberts (1925 A. C. 578), of review or on certiorari and there is a substantially similar procedure in this country of judicial review in the circuit courts of appeals of cease-and-desist orders of the Federal Trade Commission, the conclusion of the Board of Tax Appeals, and the rulings of the Commissioner of Patents in the Court of Appeals of the District of Columbia, as well as of the conclusions of the Board of General Appraisers, or Customs Court in the Court of Customs Appeals.

It is believed that the review should be as on certiorari, so that the submission to the accounting officers will include all facts relied upon and claimant will be required to show by petition and argument that some substantial error was committed by the General Accounting Office before the court will be required to take jurisdiction and review the matter.

The second substantial amendment is in section 202 of the bill so as to provide for legislative control over such personal-injury or death claims by utilizing the legal training of the employees in the General Accounting Office by requiring the Comptroller General to examine and settle the claims and report them to the Congress for consideration and payments after they have had the benefit of the trained services of the Federal Employees' Compensation Commission in investigating and reporting on the facts of the claims. Other reasons for this amendment have been hereinbefore mentioned. No provision has been made for suit against the United States with respect to personal-injury or death claims.

This S. 4377 differs from H. R. 9285 in that section 2 of the bill has been reworded to conform to suggestions made by Attorney General Mitchell in his memorandum of December 5, 1929, so as to leave in charge of the Department of Justice any litigations arising after the settlement by the Comptroller General of claims concerning property loss or damage instead of placing the matter in charge of the Comptroller General, as was done in H. R. 9285, as amended. Unless expressly excepted, the Attorney General, pursuant to sec

tions 188 and 359, Revised Statutes, is charged with the responsibility of defending the United States in suits in the Court of Claims. Some few other minor amendments have been made at the suggestion of the Attorney General in the aforesaid memorandum, including a provision in sections 1 (d) and 202 (a) to establish a definite, though not exclusive method of proving that a claim has been filed as required by the bill. The time within which such claims may be filed has been shortened to 90 days in order to reduce to a minimum any possibility of ambulance chasing practices by such limited members of the board as may engage in such disreputable practice. These changes meet the objections which led to the pocket veto of the prior bill.

Under the act of December 28, 1922 (42 Stat. 1066), propertydamage claims against the Government are investigated and allowed by the administrative department which caused the damage if the claims do not exceed $1,000, and after allowance these claims are then certified to the Committees on Appropriations of the respective Houses. Lump sums are usually included in the appropriations for the department of establishment concerned in amount equal to the property-damage claims for payment to the various claimants. No provisions is made under existing law for settlement of propertydamage claims exceeding $1,000 in amount nor for personal-injury claims.

This bill changes this procedure, which is applicable to all propertydamage claims not exceeding $50,000 in amount. If the claim exceeds $50,000, the present procedure of a private bill in Congress is to be continued. By the changed procedure applicable to propertydamage claims under $50,000, the claim must be investigated by the department concerned-as at present-and the claim with report of all the facts and recommendations must be submitted to the Comptroller General. The Comptroller General will then investigate the claim, and if he believes same to be properly payable, will direct payment out of existing appropriations in event the claim does not exceed $1,000 in amount. If the claim exceeds $1,000, it must be reported by the Comptroller General to the Congress for an appropriation; that is, the Congress retains revisory control over all claims exceeding $1,000 in amount and less than $50,000, and complete control over all claims exceeding $50,000 in amount.

If a claimant does not agree with the Comptroller General, he can have the record certified to the Court of Claims where the action of the Comptroller General can be reviewed. If the Court of Claims believes that the claimant is entitled to any amount, it may enter judgment therefor and the judgment will have to be reported to the Congress for an appropriation-as all other judgments of that court are now reported with certain minor exceptions not her material.

The same procedure is established by the bill for personal injury claims except that the head of the department must first transmit the claim to the Federal Employees' Compensation Commission. After the commission has investigated the claim, it is required to make its report and recommendation to the Comptroller General. The Comptroller General is required to report all claims properly payable to the Congress. No provision is made for suit in the Court of Claims or elsewhere on account of personal injury claims.

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