§ 2671. — Definitions.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC2671]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART VI--PARTICULAR PROCEEDINGS
CHAPTER 171--TORT CLAIMS PROCEDURE
Sec. 2671. Definitions
As used in this chapter and sections 1346(b) and 2401(b) of this
title, the term ``Federal agency'' includes the executive departments,
the judicial and legislative branches, the military departments,
independent establishments of the United States, and corporations
primarily acting as instrumentalities or agencies of the United States,
but does not include any contractor with the United States.
``Employee of the government'' includes (1) officers or employees of
any federal agency, members of the military or naval forces of the
United States, members of the National Guard while engaged in training
or duty under section 115, 316, 502, 503, 504, or 505 of title 32, and
persons acting on behalf of a federal agency in an official capacity,
temporarily or permanently in the service of the United States, whether
with or without compensation, and (2) any officer or employee of a
Federal public defender organization, except when such officer or
employee performs professional services in the course of providing
representation under section 3006A of title 18.
``Acting within the scope of his office or employment'', in the case
of a member of the military or naval forces of the United States or a
member of the National Guard as defined in section 101(3) of title 32,
means acting in line of duty.
(June 25, 1948, ch. 646, 62 Stat. 982; May 24, 1949, ch. 139, Sec. 124,
63 Stat. 106; Pub. L. 89-506, Sec. 8, July 18, 1966, 80 Stat. 307; Pub.
L. 97-124, Sec. 1, Dec. 29, 1981, 95 Stat. 1666; Pub. L. 100-694,
Sec. 3, Nov. 18, 1988, 102 Stat. 4564; Pub. L. 106-398, Sec. 1 [[div.
A], title VI, Sec. 665(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A-169;
Pub. L. 106-518, title IV, Sec. 401, Nov. 13, 2000, 114 Stat. 2421.)
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., Sec. 941 (Aug. 2, 1946, ch.
753, Sec. 402, 60 Stat. 842).
Changes were made in phraseology.
1949 Act
This section corrects a typographical error in section 2671 of title
28, U.S.C.
Amendments
2000--Pub. L. 106-518, in par. defining ``Employee of the
government'', inserted ``(1)'' after ``includes'' and added cl. (2).
Pub. L. 106-398 inserted ``115,'' after ``members of the National
Guard while engaged in training or duty under section'' in par. defining
``Employee of the government''.
1988--Pub. L. 100-694 inserted ``the judicial and legislative
branches,'' after ``departments,'' in first par.
1981--Pub. L. 97-124 inserted ``members of the National Guard while
engaged in training or duty under section 316, 502, 503, 504, or 505 of
title 32,'' in definition of ``Employee of the government'' and ``or a
member of the National Guard as defined in section 101(3) of title 32''
in definition of ``Acting within the scope of his office or
employment''.
1966--Pub. L. 89-506 expanded definition of ``Federal agency'' to
include military departments.
1949--Act May 24, 1949, corrected spelling of ``office''.
Effective Date of 2000 Amendment
Pub. L. 106-398, Sec. 1 [[div. A], title VI, Sec. 665(c)(2)], Oct.
30, 2000, 114 Stat. 1654, 1654A-169, provided that: ``The amendment made
by subsection (b) [amending this section] shall apply with respect to
acts and omissions occurring before, on, or after the date of the
enactment of this Act [Oct. 30, 2000].''
Effective Date of 1988 Amendment
Amendment by Pub. L. 100-694 effective Nov. 18, 1988, and applicable
to all claims, civil actions, and proceedings pending on, or filed on or
after, Nov. 18, 1988, see section 8 of Pub. L. 100-694, set out as a
note under section 2679 of this title.
Effective Date of 1981 Amendment
Amendment by Pub. L. 97-124 applicable only with respect to claims
arising on or after Dec. 29, 1981, see section 4 of Pub. L. 97-124, set
out as a note under section 1089 of Title 10, Armed Forces.
Effective Date of 1966 Amendment
Amendment by Pub. L. 89-506 applicable to claims accruing six months
or more after July 18, 1966, see section 10 of Pub. L. 89-506, set out
as a note under section 2672 of this title.
Severability
Section 7 of Pub. L. 100-694 provided that: ``If any provision of
this Act [see Short Title of 1988 Amendment note under section 1 of this
title] or the amendments made by this Act or the application of the
provision to any person or circumstance is held invalid, the remainder
of this Act and such amendments and the application of the provision to
any other person or circumstance shall not be affected by that
invalidation.''
Law Enforcement Officer Acting Within Scope of Office or Employment
Pub. L. 105-277, div. A, Sec. 101(h) [title VI, Sec. 627], Oct. 21,
1998, 112 Stat. 2681-480, 2681-519, as amended by Pub. L. 106-58, title
VI, Sec. 623, Sept. 29, 1999, 113 Stat. 471, provided that:
``(a) Definitions.--In this section--
``(1) the term `crime of violence' has the meaning given that
term in section 16 of title 18, United States Code; and
``(2) the term `law enforcement officer' means any employee
described in subparagraph (A), (B), or (C) of section 8401(17) of
title 5, United States Code; and any special agent in the Diplomatic
Security Service of the Department of State.
``(b) Rule of Construction.--Effective on the date of the enactment
of this Act [Oct. 21, 1998] and thereafter, and notwithstanding any
other provision of law, for purposes of chapter 171 of title 28, United
States Code, or any other provision of law relating to tort liability, a
law enforcement officer shall be construed to be acting within the scope
of his or her office or employment, if the officer takes reasonable
action, including the use of force, to--
``(1) protect an individual in the presence of the officer from
a crime of violence;
``(2) provide immediate assistance to an individual who has
suffered or who is threatened with bodily harm; or
``(3) prevent the escape of any individual who the officer
reasonably believes to have committed in the presence of the officer
a crime of violence.''
Congressional Findings and Purposes
Section 2 of Pub. L. 100-694 provided that:
``(a) Findings.--The Congress finds and declares the following:
``(1) For more than 40 years the Federal Tort Claims Act [28
U.S.C. 1346(b), 2671 et seq.] has been the legal mechanism for
compensating persons injured by negligent or wrongful acts of
Federal employees committed within the scope of their employment.
``(2) The United States, through the Federal Tort Claims Act, is
responsible to injured persons for the common law torts of its
employees in the same manner in which the common law historically
has recognized the responsibility of an employer for torts committed
by its employees within the scope of their employment.
``(3) Because Federal employees for many years have been
protected from personal common law tort liability by a broad based
immunity, the Federal Tort Claims Act has served as the sole means
for compensating persons injured by the tortious conduct of Federal
employees.
``(4) Recent judicial decisions, and particularly the decision
of the United States Supreme Court in Westfall v. Erwin, have
seriously eroded the common law tort immunity previously available
to Federal employees.
``(5) This erosion of immunity of Federal employees from common
law tort liability has created an immediate crisis involving the
prospect of personal liability and the threat of protracted personal
tort litigation for the entire Federal workforce.
``(6) The prospect of such liability will seriously undermine
the morale and well being of Federal employees, impede the ability
of agencies to carry out their missions, and diminish the vitality
of the Federal Tort Claims Act as the proper remedy for Federal
employee torts.
``(7) In its opinion in Westfall v. Erwin, the Supreme Court
indicated that the Congress is in the best position to determine the
extent to which Federal employees should be personally liable for
common law torts, and that legislative consideration of this matter
would be useful.
``(b) Purpose.--It is the purpose of this Act [see Short Title of
1988 Amendment note under section 1 of this title] to protect Federal
employees from personal liability for common law torts committed within
the scope of their employment, while providing persons injured by the
common law torts of Federal employees with an appropriate remedy against
the United States.''
Section Referred to in Other Sections
This section is referred to in title 5 section 8477; title 8 section
1357; title 16 section 4604; title 20 section 4420; title 25 section
450f; title 42 sections 7142c, 12555n.
