Justice Manual § 4-5.230

United States Attorneys responsible for the defense of FTCA or other tort litigation (e.g., Suits in Admiralty Act or Vessels Act) are currently delegated $1 million in settlement authority, subject to the limitations set forth in Civil Directive No. 1-15, 28 C.F.R. Part O, Subpart y, App. If a United States Attorney seeks approval of a proposed settlement in excess of the delegated authority, a detailed justification for the settlement must be forwarded to the Torts Branch. Upon receipt of a request for approval, the responsible Director will make a recommendation to the Assistant Attorney General (or if the proposed amount is in excess of $4 million, to the Associate Attorney General). Although the Torts Branch endeavors to expedite consideration of settlement proposals, opposing counsel and, if necessary, the court should be informed that immediate action cannot be guaranteed on any settlement proposal.

Consultation with the Torts Branch during settlement negotiations is encouraged, especially when any concern arises regarding the advisability of settlement or of the amount or structure of the settlement. In advance of initiation or completion of settlement negotiations, the Director of the Torts Branch will provide guidance as to what amount and terms of a settlement the FTCA Staff will support and recommend to the Assistant Attorney General.

Structured settlements, including those utilizing the U.S. Grantor Reversionary Medical Care Trust, require special handling. In the event an AUSA contemplates offering a structured settlement, the AUSA is required to select a structured settlement broker from the Attorney General’s list of structured settlement brokers that is current at the time of the selection, unless the negotiations are being handled exclusively by the Civil Division. See 28 U.S.C. 519 Historical and Revision Notes. AUSAs are not authorized to relegate the selection to opposing counsel and should not agree to use a broker opposing counsel has contacted on the case. The FTCA Staff is available to address any questions pertaining to the selection and use of structured settlement annuity brokers.

Structured settlements also require careful attention to the terms of the agreement. The FTCA Staff is available for consultation regarding the particular terms of a structured settlement, including the U.S. Grantor Reversionary Medical Care Trust. The FTCA Staff can also assist in locating suitable trustees and administrators for reversionary trusts. When a structured settlement includes the U.S. Grantor Reversionary Medical Care Trust and/or a reversionary annuity, the settlement agreement and trust agreement should provide that any reversionary payments be made by check payable to the funding source (e.g., Judgment Fund, 42 U.S.C. § 233(k) or 233(o) fund, or Postal Service fund), and delivered to the Director of the FTCA Staff.

Copies of all compromise memoranda in cases beyond the U.S. Attorney’s authority or those involving reversionary structured settlements should be forwarded to the appropriate member of the FTCA Staff.

Stipulations or admissions which are tantamount to a stipulation of liability must be approved by whatever level of authority is appropriate based on the highest reasonably predictable judgment that the court could enter predicated upon the stipulation or admission. If a response to a request for admission, or acknowledgement that an element of liability is not disputed would be tantamount to an admission of liability, the foregoing approval must be obtained. In determining whether a request for authorization to request a fact or enter into a stipulation that is tantamount to a concession of liability should be approved, consideration will be given to whether professional responsibilities require the admission or stipulation.