[Code of Federal Regulations]
[Title 13, Volume 1]
[Revised as of January 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 13CFR114]
[Page 176-180]
TITLE 13--BUSINESS CREDIT AND ASSISTANCE
CHAPTER I--SMALL BUSINESS ADMINISTRATION
PART 114_ADMINISTRATIVE CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT AND
REPRESENTATION AND INDEMNIFICATION OF SBA EMPLOYEES
Subpart A_Administrative Tort Claims
Sec.
114.100 Definitions.
114.101 What do these regulations cover?
114.102 When, where and how do I present a claim?
114.103 Who may file a claim?
114.104 What evidence and information may SBA require relating to my
claim?
114.105 Who investigates and considers my claim?
114.106 What if my claim exceeds $5,000?
114.107 What if my claim exceeds $25,000 or has other special features?
114.108 What if my claim is approved?
114.109 What if my claim is denied?
Subpart B_Representation and Indemnification of SBA Employees
114.110 What is SBA's policy with respect to indemnifying and providing
legal representation to SBA employees?
114.111 Does the attorney-client privilege apply when SBA employees are
represented by the Government?
Authority: 15 U.S.C. 634 (b)(1), (b)(6); 28 U.S.C. 2672; 28 CFR
14.11.
Source: 61 FR 2401, Jan. 26, 1996, unless otherwise noted.
Subpart A_Administrative Tort Claims
Sec. 114.100 Definitions.
As used throughout this part 114, date of accrual means the date you
know or reasonably should have known of your injury. The date of accrual
will depend on the facts of each case. Site means the geographic
location where the incident giving rise to your claim occurred.
Sec. 114.101 What do these regulations cover?
This part applies only to monetary claims you assert under the
Federal Tort Claims Act, 28 U.S.C. 2671 et seq., for injury to or loss
of property, personal injury, or death arising from the negligent or
wrongful act or omission of any SBA employee acting within the scope of
his or her employment.
Sec. 114.102 When, where and how do I present a claim?
(a) When. You must present your claim within 2 years of the date of
accrual.
(b) Where. You may present your claim at the SBA District Office
nearest to the site of the action giving rise to the claim and within
the same state as the site. If your claim is based on the acts or
omissions of an employee of SBA's Disaster Assistance Program, you may
present your claim either to the appropriate SBA District Office or to
the Disaster Assistance Office nearest to the site of the action giving
rise to the claim.
(c) How. You must use an official form which can be obtained from
the SBA office where you file the claim or give other written notice of
your claim, stating the specific amount of your alleged damages and
providing enough information to enable SBA to investigate your claim.
You may present your claim in person or by
[[Page 177]]
mail, but your claim will not be considered presented until SBA receives
the written information.
[64 FR 40283, July 26, 1999]
Sec. 114.103 Who may file a claim?
(a) If a claim is based on factors listed in the first column, then
it may be presented by persons listed in the second column.
------------------------------------------------------------------------
Claim factors Claim presenters
------------------------------------------------------------------------
Injury to or loss of property............. The owner of the property,
his or her duly authorized
agent, or legal
representative.
Personal injury........................... The injured person, his or
her duly authorized agent,
or legal representative.
Death..................................... The executor, administrator,
or legal representative of
the decedent's estate, or
any other person entitled
to assert the claim under
applicable state law.
Loss wholly compensated by an insurer with The parties individually, as
rights as a subrogee. their interests appear, or
jointly.
------------------------------------------------------------------------
(b) An agent or legal representative may present your claim in your
name, but must sign the claim, state his or her title or legal capacity,
and include documentation of authority to present the claim on your
behalf.
Sec. 114.104 What evidence and information may SBA require relating to
my claim?
(a) For a claim based on injury to or loss of property:
(1) Proof you own the property.
(2) A specific statement of the damage you claim with respect to
each item of property.
(3) Itemized receipts for payment for necessary repairs or itemized
written estimates of the cost of such repairs.
(4) A statement listing date of purchase, purchase price and salvage
value, where repair is not economical.
(5) Full information about potential insurance coverage and any
insurance claims or payments relating to your claim.
(6) Any other information that may be relevant to the government's
alleged liability or the damages you claim.
(b) For a claim based on personal injury, including pain and
suffering:
(1) A written report from your health care provider stating the
nature and extent of your injury and treatment, the degree of your
temporary or permanent disability, your prognosis, period of
hospitalization, and any diminished earning capacity.
(2) A written report following a physical, dental or mental
examination of you by a physician employed by SBA or another Federal
Agency. If you want a copy of this report, you must request it in
writing, furnish SBA with the written report of your health care
provider, if SBA requests it, and make or agree to make available to SBA
any other medical reports relevant to your claim.
(3) Itemized bills for medical, dental and hospital expenses you
have incurred, or itemized receipts of payment for these expenses.
(4) Your health care provider's written statement of the expected
expenses related to any necessary future treatment.
(5) A statement from your employer showing actual time lost from
employment, whether you are a full or part-time employee, and the wages
or salary you actually lost.
(6) Documentary evidence showing the amount of earnings you actually
lost if you are self-employed.
(7) Information about the existence of insurance coverage and any
insurance claims or payments relating to the claim in question.
(8) Any other information that may be relevant to the government's
alleged liability or the damages you claim.
(c) For a claim based on death:
(1) An authenticated death certificate or other competent evidence
showing cause of death, date of death, and age of the decedent.
(2) Evidence of decedent's employment or occupation at the time of
death, including monthly or yearly salary or earnings, and the duration
of such employment or occupation.
(3) Full names, addresses, birth dates, kinship, and marital status
of the decedent's survivors, including identification of those survivors
who were dependent upon the decedent for support at the time of his or
her death.
(4) Evidence of the support provided by the decedent to each
dependent survivor at the time of his or her death.
[[Page 178]]
(5) A summary of the decedent's general physical and mental
condition before death.
(6) Itemized bills or receipts for payments for medical and burial
expenses.
(7) For pain and suffering damage claims, a physician's detailed
statement specifying the injuries suffered, the duration of pain and
suffering, any drugs administered for pain, and the decedent's physical
condition in the interval between injury and death.
(8) Any other information that may be relevant to the government's
alleged liability or the damages claimed.
Sec. 114.105 Who investigates and considers my claim?
(a) SBA may investigate, or ask another Federal agency to
investigate, your claim. SBA also may request any Federal agency to
conduct a physical examination of you and provide a report to SBA. SBA
will reimburse the Federal agency for the costs of that examination when
authorized or required by statute or regulation.
(b) In those cases in which SBA investigates your claim, and which
arise out of the acts or omissions of employees other than employees of
the Disaster Assistance Program, the SBA District Counsel in the office
with jurisdiction over the site where the action giving rise to the
claim occurred will investigate and make recommendations or
determination with respect to your claim. In those cases in which SBA
investigates your claim, and which arise out of acts or omissions of
Disaster Assistance Program employees, the SBA Disaster Area Counsel in
the office with jurisdiction over the site where the action giving rise
to the claim occurred will investigate and make recommendations or a
determination with respect to your claim. The District Counsel, or
Disaster Area Counsel, where appropriate, may negotiate with you, and is
authorized to use alternative dispute resolution mechanisms, which are
nonbinding on SBA, when they may promote the prompt, fair and efficient
resolution of your claim.
(c) If your claim is for $5,000 or less, the District Counsel or
Disaster Area Counsel who investigates your claim may deny the claim, or
may recommend approval, compromise, or settlement of the claim to the
Associate General Counsel for Litigation, who will in such a case take
final action.
[61 FR 2401, Jan. 26, 1996, as amended at 64 FR 40283, July 26, 1999]
Sec. 114.106 What if my claim exceeds $5,000?
The District Counsel or Disaster Area Counsel, as appropriate, must
review and investigate your claim and forward it with a report and
recommendation to the Associate General Counsel for Litigation, who may
approve or deny an award, compromise, or settlement of claims in excess
of $5,000, but not exceeding $25,000.
[64 FR 40283, July 26, 1999]
Sec. 114.107 What if my claim exceeds $25,000 or has other special
features?
(a) The U.S. Attorney General or designee must approve in writing
any award, compromise, or settlement of a claim in excess of $25,000.
For this purpose, a principal claim and any derivative or subrogated
claim are considered a single claim.
(b) SBA must consult with the Department of Justice before
adjusting, determining, compromising, or settling a claim whenever the
General Counsel or designee determines:
(1) The claim involves a new precedent or a new point of law; or
(2) The claim involves or may involve a question of policy; or
(3) The United States is or may be entitled to indemnity or
contribution from a third party and SBA is unable to adjust the third
party claim; or
(4) Approval of a claim, as a practical matter, will or may control
the disposition of a related claim in which the amount to be paid may
exceed $25,000.
(c) SBA must consult with the Department of Justice before
adjusting, determining, compromising, or settling a claim whenever SBA
learns that the United States, or any of its employees, agents, or cost-
plus contractors, is involved in litigation based on a claim arising out
of the same incident or transaction.
(d) SBA, acting through its General Counsel or designee, must make
any referrals to the Department of Justice
[[Page 179]]
for approval or consultation by transmitting them in writing to the
Assistant Attorney General, Civil Division.
(1) The referral must contain a short and concise statement of the
facts and the reason for the request or referral, copies of the relevant
portions of the claim file, and SBA's views and recommendations.
(2) SBA may make this referral at any time after a claim is
presented.
Sec. 114.108 What if my claim is approved?
SBA will notify you in writing if it approves your claim. The
District Counsel or Disaster Area Counsel investigating your claim will
forward to you, your agent or legal representative the forms necessary
to indicate satisfaction of your claim and your acceptance of the
payment. Acceptance by you, your agent or your legal representative of
any award, compromise or settlement releases all your claims against the
United States under the Federal Tort Claims Act. This means that it
binds you, your agent or your legal representative, and any other person
on whose behalf or for whose benefit the claim was presented. It also
constitutes a complete release of your claim against the United States
and its employees. If you are represented by counsel, SBA will designate
you and your counsel as joint payees and will deliver the check to
counsel. Payment is contingent upon the waiver of your claim and is
subject to the availability of appropriated funds.
[64 FR 40283, July 26, 1999]
Sec. 114.109 What if my claim is denied?
SBA will notify you or your agent or legal representative in writing
by certified or registered mail if it denies your claim. You have a
right to file suit in an appropriate U.S. District Court not later than
six months after the date the notification was mailed.
Subpart B_Representation and Indemnification of SBA Employees
Sec. 114.110 What is SBA's policy with respect to indemnifying and
providing legal representation to SBA employees?
(a) If an SBA employee engages in conduct, within the scope of his
or her employment, which gives rise to a claim, and the SBA
Administrator or designee determines that any of the following actions
relating to the claim are in SBA's interest, SBA may:
(1) Indemnify the employee after a verdict, judgment, or other
monetary award is rendered personally against the employee in any civil
suit in state or federal court or any arbitration proceeding;
(2) Settle or compromise the claim; and/or
(3) Pay for, or request that the Department of Justice provide,
legal representation to the employee once personally named in such a
suit.
(b) If you are an SBA employee, you may ask SBA to settle or
compromise your claim, provide you with legal representation, or provide
you with indemnification for a verdict, judgment or award entered
against you in a suit. To do so, you must submit a timely, written
request to the General Counsel, with appropriate documentation,
including copies of any pleadings, verdict, judgment, award, or
settlement proposal. The General Counsel will decide all requests for
representation or settlement, and will forward to the Administrator,
with the accompanying documentation and a recommendation, any requests
for indemnification.
(c) Any payments by SBA under this section will be contingent upon
the availability of appropriated funds.
Sec. 114.111 Does the attorney-client privilege apply when SBA
employees are represented by the Government?
When attorneys employed by SBA participate in any process in which
SBA seeks to determine whether SBA should request the Department of
Justice to provide representation to an SBA employee sued, subpoenaed,
or charged in his or her individual capacity, or whether attorneys
employed by
[[Page 180]]
SBA should provide representational assistance for such an employee,
those attorneys undertake a full and traditional attorney-client
relationship with the employee with respect to the attorney-client
privilege. If representation is authorized, SBA attorneys who assist in
the representation of an SBA employee also undertake a full and
traditional attorney-client relationship with the employee with respect
to the attorney-client privilege. Unless authorized by the employee, the
attorney must not disclose to anyone other than attorneys also
responsible for the employee's representation information communicated
to the attorney by the client-employee during the course of the
attorney-client relationship. The attorney-client privilege will
continue with respect to that information whether or not representation
is provided, and even if the employee's representation is denied or
discontinued.