[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC2679]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART VI--PARTICULAR PROCEEDINGS
CHAPTER 171--TORT CLAIMS PROCEDURE
Sec. 2679. Exclusiveness of remedy
(a) The authority of any federal agency to sue and be sued in its
own name shall not be construed 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
exclusive.
(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 damages 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 proceeding for money damages arising out of or relating to the same
subject matter against the employee or the employee's estate is
precluded without regard to when the act or omission occurred.
(2) Paragraph (1) does not extend or apply to a civil action against
an employee of the Government--
(A) which is brought for a violation of the Constitution of the
United States, or
(B) which is brought for a violation of a statute of the United
States under which such action against an individual is otherwise
authorized.
(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 employee against whom such
civil action or proceeding is brought shall deliver within such time
after date of service or knowledge of service 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 department to receive such papers and such person shall
promptly furnish copies of the pleadings and process therein to the
United States attorney for the district embracing the place wherein the
proceeding is brought, to the Attorney General, and to the head of his
employing Federal agency.
(d)(1) 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 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 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 in which the action or proceeding 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 thereto, 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
removal.
(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 proceeding shall be
deemed to be an action or proceeding brought 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. A copy of the
petition shall be served upon the United States in accordance with the
provisions of Rule 4(d)(4) 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 action 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 pending.
If, in considering the petition, the district court determines that the
employee was not acting within the scope of his office or employment,
the action or proceeding shall be remanded to the State court.
(4) Upon certification, any action or proceeding subject to
paragraph (1), (2), or (3) shall proceed in the same manner as any
action against the United States filed pursuant to section 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 defendant under this subsection is dismissed
for failure first to present a claim pursuant to section 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 action 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, Sec. 1, Sept. 21,
1961, 75 Stat. 539; Pub. L. 89-506, Sec. 5(a), July 18, 1966, 80 Stat.
307; Pub. L. 100-694, Secs. 5, 6, Nov. 18, 1988, 102 Stat. 4564.)
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., Sec. 945 (Aug. 2, 1946, ch.
753, Sec. 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.
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, Sec. 5, amended subsec. (b)
generally. Prior to amendment, subsec. (b) read as follows: ``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,
resulting from the operation by any employee of the Government of any
motor vehicle while acting within the scope of his office or employment,
shall hereafter be exclusive of any other civil action or proceeding by
reason 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, Sec. 6, amended subsec. (d) generally.
Prior to amendment, subsec. (d) read as follows: ``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 proceeding 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 motion 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).
Effective Date of 1988 Amendment
Section 8 of Pub. L. 100-694 provided 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 amendments made by this Act
[amending this section and sections 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 respect to any civil
action or proceeding to which the 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
unde
