United States District Court, Central District of Illinois, Springfield Division
December 18, 1985
M. ORLANDO BOHLEN, ADMINISTRATOR OF THE ESTATE OF VIRGINIA A. BOHLEN, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Mills, District Judge.
Courts universally look upon settlements with great favor and
encourage their use since it is a peaceable resolution of a
dispute arrived at by mutual and voluntary agreement. The cases
so holding are myriad.
But the settlement here — regrettably — cannot be enforced
since one of the parties to the agreement was not cloaked with
adequate authority to bind his client.
Plaintiff asks the Court to enforce a settlement agreement
which Defendant denies ever existed. The underlying cause of
action alleges a wrongful death resulting from a swine flue
vaccine administered in accordance with the National Swine Flu
Immunization Program Act, 42 U.S.C. § 247b(j).
In preparation for trial, counsel for Plaintiff, Mr. Thomas
F. Londrigan, and counsel for the Government, Assistant United
States Attorney James A. Lewis, discussed a possible settlement
of the claim. Plaintiff's counsel insists that the Assistant
U.S. Attorney agreed to a settlement. The motion to enforce the
alleged settlement does not, however, allege that any other
official of the United States Department of Justice approved
the claimed compromise. Without wading into the conflicting
factual allegations, the Court has determined that an Assistant
United States Attorney has no authority to settle claims and
that any agreement which may have been reached between Mr.
Londrigan and Mr. Lewis is unenforceable as a matter of law.
Thus, for the purpose of considering Plaintiff's "Motion to
Enforce", the Court accepts Plaintiff's allegations as true but
finds no enforceable settlement agreement.
Plaintiff brings this suit pursuant to the Federal Tort
Claims Act, 28 U.S.C. § 1346, et seq. Congress has created a
method for adjudicating claims against the United States which
sound in tort. 28 U.S.C. § 2677-2680 (entitled Tort Claims
Procedure). The Tort Claims Procedure specifically provides for
the settlement of claims. 28 U.S.C. § 2677. This settlement
procedure is exclusive. United States v. Reilly, 385 F.2d 225,
229 (10th Cir. 1967). ("[W]here Congress has set out a
statutory procedure for the compromise of matters involving the
United States, it implicitly negatives the use of any other
The statutory authority for settlement of tort claims reads:
"The Attorney General or his designee may arbitrate,
compromise, or settle any claim cognizable under section
1346(b) of this title, after the commencement of an action
thereon." 28 U.S.C. § 2677. By administrative directive, the
Attorney General has delegated his authority to compromise
cases to his deputies, assistants, branch directors and, in
special circumstances, U.S. Attorneys and Assistant U.S.
Attorneys. Part O — Organization of the Department of Justice,
Subpart Y — Authority to Compromise and Close Civil Claims,
and Appendix to Subpart Y. 28 C.F.R. Ch. 1, § 0.160 et seq.
With respect to United States Attorneys and their assistants,
the Attorney General's directive specifically provides:
. . Attorneys-in-Charge of field offices are
(2) Accept or reject offers to compromise cases
and close claims which have been directly referred
or delegated to them by the Civil Division, as set
forth in sections 4(a) and (b) of this directive,
in the same manner and to the same extent as
Branch and Office Directors, except that United
States Attorneys and Attorneys-in-Charge of field
offices cannot accept or reject any offers in
compromise of any claim or case against the United
States where the principal amount of the proposed
settlement exceeds $100,000. Nor can United States
Attorneys or Attorneys-in-Charge of field offices
close (other than by compromise or by entry of
judgment) any claim or case on behalf of the
United States where the gross amount involved
exceeds $100,000, or accept or reject any offers
in compromise of any such claim or case in which
the difference between the gross amount of the
original claim and the proposed settlement exceeds
$100,000 or 10 percent of the original claim,
whichever is greater. United States Attorneys may
redelegate this authority to Assistant United
States Attorneys who supervise other Assistant
United States Attorneys who handle civil
28 C.F.R. Ch. 1, Part O, Subpart Y, Appendix, Directive No.
145-81 § 1(c) (emphasis added). Thus, United States Attorneys
have authority to compromise those claims that have been
specifically referred to them. This authority to compromise may
be delegated to Assistant United States Attorneys "who
supervise other United States Attorneys who handle civil
litigation." Id. at c(2).
In the case at bench, the record is totally devoid of any
indication that the Assistant United States Attorney assigned
to this matter was cloaked with either supervisory authority or
Ergo, the Assistant United States Attorney here could not
have been delegated any authority to settle Plaintiff's claim
since he was not acting in any supervisory capacity. In the
absence of any cognizable delegated authority, the AUSA could
not have entered into an enforceable settlement agreement.
Accord United States v. Kates, 419 F. Supp. 846, 858 (E.D.Pa.
A settlement entered upon by an agent of the Government who,
lacking actual authority, appears to have authority is,
nonetheless, void. See Schweiker v. Hansen, 450 U.S. 785, 101
S.Ct. 1468, 67 L.Ed.2d 685 (1981); Federal Crop Insurance Corp.
v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947);
United States v. 32.40 Acres of Land, More or Less,
614 F.2d 108 (6th Cir. 1980). The federal government cannot be bound by
the unauthorized acts of its agents.
Plaintiff's motion to enforce a settlement agreement is
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