CHAPTER 12 CLAIMS

A significant portion of your duties as an LN will entail the investigation and processing of claims. Claims involving the United States Government and its military activities are governed by a complex system of statutes, regulations, and procedures. This chapter is not a substitute for the official departmental claims regulations published in the JAG Manual and JAGINST 5890.1, Administrative Processing and Consideration of Claims on Behalf of and Against the United States.

It is, however, a useful starting point for research into claims.

This chapter is organized to reflect the various claims statutes and their respective functions in the claims system. Claims involving the federal government are of two types:

1. Claims in which the federal government is a claimant seeking compensation.

2. Claims against the government for which a claimant seeks compensation. These can be further divided into two functional categories:

a. General claims statutes, such as the Federal Tort Claims Act (FTCA) and Military Claims Act (MCA), that provide for payment of claims arising out of a broad range of incidents and situations.

b. Specialized claims statutes, such as the Military Personnel and Civilian Employees' Claims Act and the Foreign Claims Act (FCA), that provide for payment of claims arising out of specific types of incidents or to only specific classes of claimants.

Claims are adjudicated by a complex system of interesting statutes, regulations, and procedures. Claims that are not covered by one of the general claims statutes are frequently payable under one of the specialized statutes. Thus, specialized statutes can fill gaps in areas where the general statutes do not provide coverage. Conversely, some claims are not cognizable under one of the general statutes because one of the specialized statutes may apply to the claim. Likewise, classes of persons barred by statute or regulation from collecting under a general claims statute often can be compensated under one of the specialized statutes. Examples in this chapter will demonstrate the interaction of the various claims statutes, regulations, and procedures. The key to understanding claims law is to realize that it involves a logical system of interacting provisions and not just a perplexing labyrinth of seemingly unrelated rules.

FEDERAL TORT CLAIMS ACT

The Federal Tort Claims Act, 28 U.S.C. 1346, 2671-2680 (1982) (FTCA), was a product of many years of congressional deliberations and considerations. Before 1946, if a person was wrongfully injured by a federal employee who had acted within the scope of his or her federal employment, the doctrine of "sovereign immunity" barred that injured party from suing the government for compensation. This doctrine often had the effect of denying fair compensation to persons with meritorious claims. At that time, the only available form of redress was the "private bill"-a system whereby the injured party could be compensated for his or her injury by a special act of Congress. This system was cumbersome and resulted in thousands of private bills annually. This system was also unfair to those who lacked sufficient influence to have a representative introduce a private bill on their behalf.

The FTCA was enacted with the intent of providing a more equitable, comprehensive system. The FTCA provides for compensation for personal injury, death, and property damage caused by the negligent conduct of federal employees acting within the scope of federal employment. It also covers certain intentional, wrongful acts. There are, however, three general types of exceptions from government liability under the FTCA. First, the government is protected from liability arising out of certain types of governmental actions. Second, the FTCA will not provide compensation when one of the specialized claims statutes (discussed later in this chapter) covers the claim. Third, certain classes of claimants, such as active duty military personnel, are prevented from recovering under the FTCA, although they may be compensated under other statutes.

SCOPE OF LIABILITY

The law defines negligence as the failure to exercise the degree of care, skill, or diligence that a reasonable person would exercise under the same circumstances. Negligent conduct can arise either from an act or a failure to act. It can be either acting in a careless manner or failing to do those things that a reasonable person would do in the same situation.

Whether certain conduct was negligence-and, therefore, whether the government is liable-will be determined by the tort law of the place where the _{conduct occurred.} Questions, such as whether the violation of a local law, by itself, constitutes negligence, are answered by applying the doctrines of the local tort law.

Example 1: Seaman Jones, while ^{performing his} duties in Virginia, injures Mr. Smith. ^{Under Virginia} law, Jones' conduct is not negligence. ^{Therefore, Mr.} Smiths FTCA claim will be denied.

Example 2: Seaman Door, while ^{performing his} duties in North Carolina, engages in exactly the same conduct that injured Mr. Smith in the previous example. Door injures Mr. Johnson in this example. Under North Carolina law, Door's acts constitute negligence. Therefore, Mr. Johnson's FTCA claim will be paid.

Limited Range of Intentional Torts

The FTCA will compensate for intentional wrongful acts under very limited circumstances. On or after 16 March 1974, the FTCA applies to any claim arising out of the following intentional torts committed by federal law enforcement officers: assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution. A federal law enforcement officer, for purposes of the FTCA, is any officer of the United States empowered bylaw to execute searches, to seize evidence, or to make arrests for violations of federal law.

Since Article 7, UCMJ, extends the authority to apprehend to commissioned officers and petty officers, these officers would be considered law enforcement officers for FTCA purposes when they are actually engaged in law enforcement duties. No other intentional tort claims are payable under the FTCA. Under very limited circumstances, however, the government may be liable for an intentional tort committed by a federal employee overseas under the FCA discussed later in this chapter. Federal employees have been held individually liable to the injured party for intentional torts committed while the employees are acting beyond the proper limits of their authority.

Government Employees

Under the FTCA, the government is liable only for the wrongful acts of its employees. The term government employee is defined to include the following individuals:

l Officers or employees of any federal agency

l Members of the military or naval forces of the United States

l Persons acting on behalf of a federal agency in an official capacity, either temporarily or permanently, and either with or without compensation

The term federal agency includes not only the departments and agencies of the executive, legislative, and judicial branches of the federal government, but also independent entities that function primarily as federal agencies such as the U.S. Postal Service and the Commodity Credit Corporation.

GOVERNMENT CONTRACI'OR.- A government contractor and its employees are not usually considered government employees under the FTCA. When, however, the government exercises a high degree of control over the details of the contractor's activities, the courts will find that the government contractor is, in fact, a government employee. The standard personnel qualifications and safety standards provisions in government contracts are not enough to turn a government contractor into an employee. Where the contract requires the contractor to follow extensive, detailed instructions in performing the work though, the contractor will usually be considered a government employee and the contractor's employees who work on the federal job will likewise be treated as government employees for FTCA purposes.

NONAPPROPRIATED FUND ACTIVITIES.- A nonappropriated fund activity is one that, while operating as part of a military installation, does not depend upon, and is not supported by, funds appropriated by Congress. Examples of nonappropriated fund activities include the Navy exchange and officers' clubs. Whether liability is incurred depends upon a two-pronged test. The FTCA applies to a nonappropriated fund activity if (1) the activity is charged with an essential function of the federal government and (2) the degree of control and supervision by the federal government is more than casual or perfunctory.

Every facet of the activity's operations must be examined. IS the activity entirely self-supporting? Does it own its own property? Does it use government properly, equipment, or personnel in its operation'? What control does the command have over the activity's operation? Dots the activity provide essential services or benefits to military personnel?

Applying the two-pronged test and considering the specific points mentioned previously, the Navy exchange would clearly be a nonappropriated fund activity subject to the FTCA. On the other hand, an equestrian club, sponsored by a command but operating entirely independent of the command, would not be subject to the FTCA. Each case must be determined on its own merits.

Many nonappropriated fund activities carry commercial liability insurance to protect them against claims for property damage and personal injury attributable to their operations. Therefore, many FTCA claims against nonappropriated fund activities are handled by commercial insurance carriers. The procedures for negotiating and settling FTCA claims against nonappropriated fund activities covered by liability insurance are set forth in JAGINST 5890. 1.

Scope of Employment

The government is liable under the FTCA for its employees' conduct only when the employees are acting within the scope of their employment. The scope-of-employment requirement is viewed by the courts as "the very heart and substance" of the act. While scope-of-employment rules vary from state to state, the issue usually turns to ( 1 ) the degree of control the government exercises over the employee's activities on the job and (2) the degree to which the government's interest were being served by the employee at the time of the incident.

Whether or not a government employee's acts were within the scope of employment is determined by the law of the state, including the principles of respondeat superior, where the incident occurred. This has led to many different results on the question of applicability of the FTCA involving PCS and TDY.

Example: Consider the following hypothetical situation. Seaman Doe, the command duty driver, is making an authorized run in the command vehicle. On the way back to the base, he stops at a local bar and drinks himself into a stupor. Barely able to stand, he gets back in the command vehicle and continues toward the base. In his drunken state, he fails to see a stop sign and crashes into an automobile driven by a civilian. Both Seaman Doe and the civilian are seriously injured. For the purposes of the FTCA, Seaman Doe could be considered, in at least some jurisdictions, to have been acting within the scope of his employment (he was completing an authorized run when he was involved in the accident). Accordingly, the claim of the civilian would be cognizable under the FTCA.

Example: Seaman Doe, the command duty driver, is making an authorized run in the command sedan. While daydreaming, he becomes inattentive, fails to keep a lookout for pedestrians, and hits Mr. Hatch. Seaman Dot's negligence occurred within the scope of his employment.

Example: Seaman Doe, the command duty driver, takes the command sedan after hours on an unauthorized trip to the ball game. After the game, he and some buddies stop at several taverns and all become drunk. Because of his drunken condition, while driving back to the base, Seaman Doe runs over Mr. Smith. In this case, Seaman Doe's negligence occurred outside the scope of his employment. He and his friends were off on their own and their activities were entirely unrelated to the performance of a governmental or military function. Therefore, Mr. Smith will not be able to recover under the FTCA. Since a government vehicle is involved, however, Mr. Smith may be entitled to limited compensation under the nonscope claims procedures discussed later.

Territorial Limitations

The FTCA applies only to claims arising in the United States, or in its territories or possessions (where a U.S. district court has jurisdiction). Any lawsuit under the FTCA must be brought in the U.S. district court in the district where the claimant resides or where the incident giving rise to the claim occurred.