28 U.S.C. § 2679 — Exclusiveness of remedy

Page 642 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2678 HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 934 (Aug. 2, 1946, ch. 753, § 413, 60 Stat. 845). Changes were made in phraseology. SENATE REVISION AMENDMENT This section was renumbered ‘‘2676’’ by Senate amendment. See 80th Congress Senate Report No. 1559. Editorial Notes AMENDMENTS 1966—Pub. L. 89–506 struck out provision requiring that approval of court be obtained before Attorney General could arbitrate, compromise, or settle a claim after commencement of an action thereon. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1966 AMENDMENT Amendment by Pub. L. 89–506 applicable to claims ac- cruing six months or more after July 18, 1966, see sec- tion 10 of Pub. L. 89–506, set out as a note under section 2672 of this title. § 2678. Attorney fees; penalty No attorney shall charge, demand, receive, or collect for services rendered, fees in excess of 25 per centum of any judgment rendered pursuant to section 1346(b) of this title or any settlement made pursuant to section 2677 of this title, or in excess of 20 per centum of any award, com- promise, or settlement made pursuant to section 2672 of this title. Any attorney who charges, demands, receives, or collects for services rendered in connection with such claim any amount in excess of that al- lowed under this section, if recovery be had, shall be fined not more than $2,000 or imprisoned not more than one year, or both. (June 25, 1948, ch. 646, 62 Stat. 984; Pub. L. 89–506, § 4, July 18, 1966, 80 Stat. 307.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 944 (Aug. 2, 1946, ch. 753, § 422, 60 Stat. 846). Words ‘‘shall be guilty of a misdemeanor’’ and ‘‘shall, upon conviction thereof’’, in the second sentence, were omitted in conformity with revised title 18, U.S.C., Crimes and Criminal Procedure (H.R. 1600, 80th Cong.). See sections 1 and 2 of said revised title 18. Changes were made in phraseology. SENATE REVISION AMENDMENT This section was renumbered ‘‘2677’’ by Senate amendment. See 80th Congress Senate Report No. 1559. Editorial Notes AMENDMENTS 1966—Pub. L. 89–506 raised the limitations on allow- able attorneys fees from 10 to 20 percent for adminis- trative settlements and from 20 to 25 percent for fees in cases after suit is filed and removed the requirement of agency or court allowance of the amount of attorneys fees. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1966 AMENDMENT Amendment by Pub. L. 89–506 applicable to claims ac- cruing six months or more after July 18, 1966, see sec- tion 10 of Pub. L. 89–506, set out as a note under section 2672 of this title. § 2679. Exclusiveness of remedy (a) The authority of any federal agency to sue and be sued in its own name shall not be con- strued to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be ex- clusive. (b)(1) The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money dam- ages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or pro- ceeding for money damages arising out of or re- lating to the same subject matter against the employee or the employee’s estate is precluded without regard to when the act or omission oc- curred. (2) Paragraph (1) does not extend or apply to a civil action against an employee of the Govern- ment— (A) which is brought for a violation of the Constitution of the United States, or (B) which is brought for a violation of a stat- ute of the United States under which such ac- tion against an individual is otherwise author- ized. (c) The Attorney General shall defend any civil action or proceeding brought in any court against any employee of the Government or his estate for any such damage or injury. The em- ployee against whom such civil action or pro- ceeding is brought shall deliver within such time after date of service or knowledge of serv- ice as determined by the Attorney General, all process served upon him or an attested true copy thereof to his immediate superior or to whomever was designated by the head of his de- partment to receive such papers and such person shall promptly furnish copies of the pleadings and process therein to the United States attor- ney for the district embracing the place wherein the proceeding is brought, to the Attorney Gen- eral, and to the head of his employing Federal agency. (d)(1) Upon certification by the Attorney Gen- eral that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. (2) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be re- moved without bond at any time before trial by the Attorney General to the district court of the Page 643 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2679 1 So in original. Probably should be a reference to Rule 4(i). United States for the district and division em- bracing the place in which the action or pro- ceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references there- to, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of re- moval. (3) In the event that the Attorney General has refused to certify scope of office or employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment. Upon such certification by the court, such action or pro- ceeding shall be deemed to be an action or pro- ceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be sub- stituted as the party defendant. A copy of the petition shall be served upon the United States in accordance with the provisions of Rule 4(d)(4) 1 of the Federal Rules of Civil Procedure. In the event the petition is filed in a civil action or proceeding pending in a State court, the ac- tion or proceeding may be removed without bond by the Attorney General to the district court of the United States for the district and division embracing the place in which it is pend- ing. If, in considering the petition, the district court determines that the employee was not act- ing within the scope of his office or employ- ment, the action or proceeding shall be re- manded to the State court. (4) Upon certification, any action or pro- ceeding subject to paragraph (1), (2), or (3) shall proceed in the same manner as any action against the United States filed pursuant to sec- tion 1346(b) of this title and shall be subject to the limitations and exceptions applicable to those actions. (5) Whenever an action or proceeding in which the United States is substituted as the party de- fendant under this subsection is dismissed for failure first to present a claim pursuant to sec- tion 2675(a) of this title, such a claim shall be deemed to be timely presented under section 2401(b) of this title if— (A) the claim would have been timely had it been filed on the date the underlying civil ac- tion was commenced, and (B) the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action. (e) The Attorney General may compromise or settle any claim asserted in such civil action or proceeding in the manner provided in section 2677, and with the same effect. (June 25, 1948, ch. 646, 62 Stat. 984; Pub. L. 87–258, § 1, Sept. 21, 1961, 75 Stat. 539; Pub. L. 89–506, § 5(a), July 18, 1966, 80 Stat. 307; Pub. L. 100–694, §§ 5, 6, Nov. 18, 1988, 102 Stat. 4564.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 945 (Aug. 2, 1946, ch. 753, § 423, 60 Stat. 846). Changes were made in phraseology. SENATE REVISION AMENDMENT The catchline and text of this section were changed and the section was renumbered ‘‘2678’’ by Senate amendment. See 80th Congress Senate Report No. 1559. Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (d)(3), are set out in the Appendix to this title. AMENDMENTS 1988—Subsec. (b). Pub. L. 100–694, § 5, amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: ‘‘The remedy against the United States pro- vided by sections 1346(b) and 2672 of this title for injury or loss of property or personal injury or death, result- ing from the operation by any employee of the Govern- ment of any motor vehicle while acting within the scope of his office or employment, shall hereafter be ex- clusive of any other civil action or proceeding by rea- son of the same subject matter against the employee or his estate whose act or omission gave rise to the claim.’’ Subsec. (d). Pub. L. 100–694, § 6, amended subsec. (d) generally. Prior to amendment, subsec. (d) read as fol- lows: ‘‘Upon a certification by the Attorney General that the defendant employee was acting within the scope of his employment at the time of the incident out of which the suit arose, any such civil action or pro- ceeding commenced in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place wherein it is pending and the proceedings deemed a tort action brought against the United States under the provisions of this title and all references thereto. Should a United States district court determine on a hearing on a mo- tion to remand held before a trial on the merits that the case so removed is one in which a remedy by suit within the meaning of subsection (b) of this section is not available against the United States, the case shall be remanded to the State court.’’ 1966—Subsec. (b). Pub. L. 89–506 inserted reference to section 2672 of this title and substituted ‘‘remedy’’ for ‘‘remedy by suit’’. 1961—Pub. L. 87–258 designated existing provisions as subsec. (a) and added subsecs. (b) to (e). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1988 AMENDMENT Pub. L. 100–694, § 8, Nov. 18, 1988, 102 Stat. 4565, pro- vided that: ‘‘(a) GENERAL RULE.—This Act and the amendments made by this Act [enacting section 831c–2 of Title 16, Conservation, amending this section and sections 2671 and 2674 of this title, and enacting provisions set out as notes under this section and section 2671 of this title] shall take effect on the date of the enactment of this Act [Nov. 18, 1988]. ‘‘(b) APPLICABILITY TO PROCEEDINGS.—The amend- ments made by this Act [amending this section and sec- tions 2671 and 2674 of this title] shall apply to all claims, civil actions, and proceedings pending on, or filed on or after, the date of the enactment of this Act. ‘‘(c) PENDING STATE PROCEEDINGS.—With respect to any civil action or proceeding pending in a State court to which the amendments made by this Act apply, and as to which the period for removal under section 2679(d) of title 28, United States Code (as amended by section 6 of this Act), has expired, the Attorney General shall have 60 days after the date of the enactment of this Act during which to seek removal under such section 2679(d). ‘‘(d) CLAIMS ACCRUING BEFORE ENACTMENT.—With re- spect to any civil action or proceeding to which the Page 644 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2680 1 So in original. 2 See References in Text note below. amendments made by this Act apply in which the claim accrued before the date of the enactment of this Act, the period during which the claim shall be deemed to be timely presented under section 2679(d)(5) of title 28, United States Code (as amended by section 6 of this Act) shall be that period within which the claim could have been timely filed under applicable State law, but in no event shall such period exceed two years from the date of the enactment of this Act.’’ EFFECTIVE DATE OF 1966 AMENDMENT Amendment by Pub. L. 89–506 applicable to claims ac- cruing six months or more after July 18, 1966, see sec- tion 10 of Pub. L. 89–506, set out as a note under section 2672 of this title. EFFECTIVE DATE OF 1961 AMENDMENT Pub. L. 87–258, § 2, Sept. 21, 1961, 75 Stat. 539, provided that: ‘‘The amendments made by this Act [amending this section] shall be deemed to be in effect six months after the enactment hereof [Sept. 21, 1961] but any rights or liabilities then existing shall not be affected.’’ § 2680. Exceptions The provisions of this chapter and section 1346(b) of this title shall not apply to— (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discre- tionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. (b) Any claim arising out of the loss, mis- carriage, or negligent transmission of letters or postal matter. (c) Any claim arising in respect of the assess- ment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or ex- cise or any other law enforcement officer, except that the provisions of this chapter and section 1346(b) of this title apply to any claim based on injury or loss of goods, merchandise, or other property, while in the possession of any officer of customs or excise or any other law enforce- ment officer, if— (1) the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of a criminal offense; (2) the interest of the claimant was not for- feited; (3) the interest of the claimant was not re- mitted or mitigated (if the property was sub- ject to forfeiture); and (4) the claimant was not convicted of a crime for which the interest of the claimant in the property was subject to forfeiture under a Federal criminal forfeiture law..1 (d) Any claim for which a remedy is provided by chapter 309 or 311 of title 46 relating to claims or suits in admiralty against the United States. (e) Any claim arising out of an act or omission of any employee of the Government in admin- istering the provisions of sections 1–31 of Title 50, Appendix.2 (f) Any claim for damages caused by the impo- sition or establishment of a quarantine by the United States. [(g) Repealed. Sept. 26, 1950, ch. 1049, § 13 (5), 64 Stat. 1043.] (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious pros- ecution, abuse of process, libel, slander, mis- representation, deceit, or interference with con- tract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious pros- ecution. For the purpose of this subsection, ‘‘in- vestigative or law enforcement officer’’ means any officer of the United States who is empow- ered by law to execute searches, to seize evi- dence, or to make arrests for violations of Fed- eral law. (i) Any claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system. (j) Any claim arising out of the combatant ac- tivities of the military or naval forces, or the Coast Guard, during time of war. (k) Any claim arising in a foreign country. (l) Any claim arising from the activities of the Tennessee Valley Authority. (m) Any claim arising from the activities of the Panama Canal Company. (n) Any claim arising from the activities of a Federal land bank, a Federal intermediate cred- it bank, or a bank for cooperatives. (June 25, 1948, ch. 646, 62 Stat. 984; July 16, 1949, ch. 340, 63 Stat. 444; Sept. 26, 1950, ch. 1049, §§ 2(a)(2), 13(5), 64 Stat. 1038, 1043; Pub. L. 86–168, title II, § 202(b), Aug. 18, 1959, 73 Stat. 389; Pub. L. 93–253, § 2, Mar. 16, 1974, 88 Stat. 50; Pub. L. 106–185, § 3(a), Apr. 25, 2000, 114 Stat. 211; Pub. L. 109–304, § 17(f)(4), Oct. 6, 2006, 120 Stat. 1708.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 943 (Aug. 2, 1946, ch. 753, § 421, 60 Stat. 845). Changes were made in phraseology. Section 946 of title 28, U.S.C., 1940 ed., which was de- rived from section 424(b) of the Federal Tort Claims Act, was omitted from this revised title. It preserved the existing authority of federal agencies to settle tort claims not cognizable under section 2672 of this title. Certain enumerated laws granting such authority were specifically repealed by section 424(a) of the Federal Tort Claims Act, which section was also omitted from this revised title. These provisions were not included in this revised title as they are not properly a part of a code of general and permanent law. SENATE REVISION AMENDMENT Sections 2680 and 2681 were renumbered ‘‘2679’’ and ‘‘2680’’, respectively, by Senate amendment. See 80th Congress Senate Report No. 1559. Editorial Notes REFERENCES IN TEXT Sections 1–31 of Title 50, Appendix, referred to in sub- sec. (e), was in the original source of this section (sec-