EXCLUSIONS FROM LIABILITY

Statutes and case law have established three general categories of exclusions from FTCA liability. The following specific exclusions are encountered frequently in claims practice in the military. A complete list of FTCA exclusions is set forth in JAGINST 5890. 1. In each of the following situations, the government will not be liable under the FTCA, although it maybe liable under some other claims statute. The following categories are exempted governmental activities:

. Execution of statute or regulation. The FTCA does not apply to any claim based on an actor omission of a federal employee who exercises due care while in the performance of a duty or function required by statute or regulation.

. Discretionary governmental function. ^The FTCA does not apply to any claim based upon the cxercise or performance of, or the failure to exercise or perform, a discretionary governmental function. Perhaps no single exclusion under the FTCA has generated as much litigation as the discretionary function exclusion. The key issue usually is whether the government activity involved in the claim was a discretionary function. The problem is complicated by the fact that neither the FTCA nor any court has ever formulated a comprehensive definition of discretionary function. Each case must be decided on its own facts.

l Postal claims. The FTCA does not apply to claims for the loss, miscarriage, or negligent transmission of letters or postal matters. Such claims, under limited circumstances, may be payable under the MCA. . Detention of goods. The FTCA does not apply to claims arising out of the detention of any goods or merchandise by a federal law enforcement officer, including customs of officials. This exception is commonly applied in situations where the claimant seeks compensation for property seized during a search for evidence. This exclusion also prevents compensation under the FTCA for alleged contraband seized by law enforcement officers.

. Combatant activities in time of war. ^The combatant activities exclusion has three requirements: the claim (1) must arise from activities directly involving engagement with the enemy; (2) must be conducted by the armed forces; and (3) occur during timc of war (declared and undeclared). Combatant activities are given a very strict meaning by the courts. It does not include practice or training maneuvers, nor any operations not directly involving engagement with an enemy. 

. Intentional torts. The government is not liable under the FTCA for the following intentional torts:

assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. This exclusion will not protect the government from liability for assaults, batteries, false imprisonments, false arrests, abuses of process, or malicious prosecutions committed by federal law enforcement officers.

Claims Cognizable Under Other Claims statutes

Certain claims cannot be paid under the FTCA because they are cognizable under some other claims statute. Although the claimant may still recover under another statute, the amount may be significantly less than under the FTCA. Also, the claimant may not have the right under the other claims statute to sue the government if the claim is denied. Examples of claims cognizable under other situations and therefore not payable under the FTCA include the following: l Personnel claims. Claims by military personnel or civilian federal employees for damage or loss to personal property incident to service are cognizable under the Military Personnel and Civilian Employees' Claims Act.

. Admiralty claims. Admiralty claims, arising from incidents such as ship collisions, are usually governed by the Suits in Admiralty Act and the Public Vessel Act.

l Overseas claims. Claims arising in a foreign country arc not cognizablc under the FTCA, but may be allowed under either the MCA or the FTCA. . Injury or death to civilian federal employee.

Claims arising out of personal injury or death of a civilian federal employee, while on the job, arc usually covered by the Federal Employees' Compensation Act. Nonappropriated fund activity employees are compensated under the Longshoremen's and Harbor Workers' Compensation Act.

Excluded Claimants-Military Personnel

In Feres v. United States, the U.S. Supreme Court held that military personnel cannot sue the federal government for personal injury or death occurring incident to military service. The Supreme Court reasoned that Congress did not intend the FTCA to apply to military personnel because it had already provided medical care, rehabilitation, and disability benefits for them. Since 1950, the Feres doctrine has been applied consistently by federal courts at all levels and was reaffirmed by the Supreme Court in 1987.

The rationale for the Feres doctrine can be explained by examining the policy reasons underlying the doctrine proscribing governmental liability. The Court noted that there is a special relationship of "solider to his superiors." Granting to him the right to bring an action would have an adverse effect upon discipline and would result in a judicial intrusion into the general area of military performance. Congress had established a system of uniform compensation for injuries or death of those in the armed services. This system provides adequate and comprehensive benefits for service personnel and compares favorably with workmen's compensation statutes. To allow individual suits would circumvent the statutory schemes of veterans' benefits.

The Court in Feres recognized the relationship existing between the United States and its military personnel as distinctively federal in character, so that it would be inappropriate to apply local law to that relationship by way of the FTCA. Applying the state law of the area where the injury took place, given the wide variety of local laws, would be unfair to the military member who has no choice as to his or her duty station.

A major exception to the Feres doctrine exists when the injury, death, or loss of the military member did not occur incident to military service. Under such circumstances, the Feres doctrine will not prevent FTCA recovery by a military claimant. The value of benefits received from the government, such as medical care, rehabilitation, and disability payments, however, will be deducted from the compensation paid to the claimant.

The central issue in determining whether the Feres doctrine will prevent a military member from recovering under the FTCA is whether the injury or loss occurred incident to military service. Courts decide this issue only after considering all the facts and circumstances of each case. As a general rule, however, all the following factors must be present for an injury, death, or loss of a military member to be held not incident to military service:

l The member must have been off duty.

l The member must not have been aboard a military installation.

l The member must not have been engaged in any military duty or mission.

l The member must not have been directly subject to military orders or discipline.

If any of the previous four factors are absent, the claim usually will be held by the courts to be incident to military service.

The Feres doctrine does not apply to claims by military members who are acting solely in a representative capacity (guardian, executor of an estate). It will bar FTCA claims by nonmilitary persons acting as legal representatives of injured or deceased military members. The following examples demonstrate these principles.

Example: Johnny Doe, the minor child of LT Doe, was the victim of medical malpractice at a military hospital. LT Doe presents a $100,000 claim on behalf of Johnny. The Feres doctrine will not apply. LT Doe is presenting the claim solely as the parent and legal representative of his minor son and the Feres doctrine does not apply to injuries, death, or loss suffered by a military dependent-only to military members themselves.

Example: While on duty, LT Doe was negligently killed by a Marine Corps officer acting within the scope of federal employment. The executor of LT Doe's estate, Mr. Rich, presents an FTCA claim for wrongful death. The Feres doctrine will bar this claim. Although Mr. Rich is a civilian, he is claiming only in his capacity as LT Doe's legal representative. Because LT Doe's death occurred incident to service the claim will be denied, just as if LT Doe had presented it himself.

CIVILIAN FEDERAL EMPLOYEES.- Civilian federal employees usually cannot recover under the FTCA for injury or death that occurs on the job because of Federal Employees Compensation Act (FECA) compensation benefits.

INTRA-AGENCY CLAIMS.- One federal agency usually may not assert an FTCA claim against another federal agency. Government property is not owned, for FTCA purposes, by any specific agency of the government. Therefore, the federal government will not normally reimburse itself for the loss of its own property.