[Title 32 CFR F]
[Code of Federal Regulations (annual edition) - July 1, 1997 Edition]
[Title 32 - NATIONAL DEFENSE]
[Subtitle A - Department of Defense (Continued)]
[Chapter VII - DEPARTMENT OF THE AIR FORCE]
[Subchapter D - CLAIMS AND LITIGATION]
[Part 842 - ADMINISTRATIVE CLAIMS]
[Subpart F - Military Claims Act (10 U.S.C. 2733)]
[From the U.S. Government Publishing Office]




  32
  NATIONAL DEFENSE
  6
  1997-07-01
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  1997-07-01
  
  
  
  
    NATIONAL DEFENSE
    Department of Defense (Continued)
    DEPARTMENT OF THE AIR FORCE
    CLAIMS AND LITIGATION
    ADMINISTRATIVE CLAIMS
  


             Subpart F--Military Claims Act (10 U.S.C. 2733)



Sec. 842.40  Scope of this subpart.

    This subpart explains how to settle claims made against the United 
States for property damage, personal injury, or death caused by military 
personnel or civilian employees of the Air Force acting in the scope of 
their employment or otherwise incident to the Air Force's noncombat 
activities.



Sec. 842.41  Definitions.

    (a) Appeal. A request by the claimant or claimant's authorized agent 
to reevaluate the final decision. A request for reconsideration and an 
appeal are the same for the purposes of this subpart.
    (b) Final denial. A letter mailed from the settlement authority to 
the claimant or authorized agent advising the claimant that the Air 
Force denies the claim.
    (c) Noncombat activity. Activity, other than combat, war or armed 
conflict, that is particularly military in character and has little 
parallel in the civilian community.



Sec. 842.42  Delegations of authority.

    (a) Settlement authority: (1) The Secretary of the Air Force has 
delegated authority to:
    (i) Settle claims for $100,000 or less.
    (ii) Settle claims for more than $100,000, paying the first $100,000 
and reporting the excess to the General Accounting Office for payment.
    (iii) Deny a claim in any amount.
    (2) The Judge Advocate General has delegated authority to settle 
claims for $100,000 or less and deny claims in any amount.
    (3) The following individuals have delegated authority to settle 
claims for $25,000 or less and deny claims in any amount:
    (i) The Deputy Judge Advocate General.
    (ii) The Director of Civil Law.

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    (iii) The Chief, Deputy Chief and Branch Chiefs, Claims and Tort 
Litigation Staff.
    (4) The SJA of 9AF for CENTCOM, and the SJAs of PACAF and USAFE have 
delegated authority to settle claims payable or deny claims filed for 
$25,000 or less.
    (5) SJAs of single base GCMs, and GCMs in PACAF and USAFE, and each 
Air Force base, station, or fixed installation have delegated authority 
to settle claims payable, or deny claims filed for $15,000 or less.
    (b) Redelegation of authority. A settlement authority may redelegate 
his or her authority for claims not exceeding $25,000, to a subordinate 
judge advocate or civilian attorney in writing.
    (c) Appellate authority. Upon appeal, a settlement authority has the 
same authority specified above. However, no appellate authority below 
the Office of the Secretary of the Air Force may deny an appeal of a 
claim it had previously denied.
    (d) Authority to reduce, withdraw, and restore settlement authority. 
Any superior settlement authority may reduce, withdraw, or restore 
delegated authority.
    (e) Settlement negotiations. A settlement authority may settle a 
claim in any sum within its delegated settlement authority, regardless 
of the amount claimed. Send uncompromised claims in excess of the 
delegated authority to the level with settlement authority. Unsuccessful 
negotiations at one level do not bind higher authority.
    (f) Special exceptions. Do not settle claims for the following 
without HQ USAF/JACC approval:
    (1) Legal malpractice.
    (2) On the job personal injury or death of an employee of a 
government contractor or subcontractor.
    (3) Assault, battery, false imprisonment, false arrest, abuse of 
process, or malicious prosecution committed by an investigative or law 
enforcement officer.
    (4) On-base animal bite cases.
    (5) Personal injury from asbestos or radon.
    (6) Claims based upon an act or omission of an employee of the 
government, exercising due care, in the execution of a statute or 
regulation.
    (7) Claims based upon the exercise or performance or the failure to 
exercise or perform a discretionary function or duty on the part of a 
federal agency or an employee of the government.
    (8) Claims for damage to property of a state, commonwealth, 
territory, or the District of Columbia caused by ANG personnel engaged 
in training or duty under 32 U.S.C. 316, 502, 503, 504, or 505 who are 
assigned to a unit maintained by that state, commonwealth, territory or 
the District of Columbia.
    (9) Claims not payable because payment is not in the best interests 
of the United States, is contrary to public policy, or is otherwise 
contrary to the basic intent of the MCA.
    (10) Claims presented by a national, or a corporation controlled by 
a national, of a country at war or engaged in armed conflict with the 
United States, or any country allied with such enemy country.
    (11) Medical malpractice.

[55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991]



Sec. 842.43  Filing a claim.

    (a) How and when filed. A claim is filed when a federal military 
agency receives from a claimant or duly authorized agent a properly 
completed Standard Form 95 or other signed and written demand for money 
damages in a sum certain. A claim belonging to another agency is 
promptly transferred to that agency.
    (b) Amending a claim. A claimant may amend a claim at any time prior 
to final action. To amend a claim, the claimant or his or her authorized 
agent must submit a written, signed demand.



Sec. 842.44  Advance payments.

    Subpart Q sets forth procedures for advance payments.



Sec. 842.45  Statute of limitations.

    (a) A claim must be filed in writing within 2 years after it 
accrues. It accrues when the claimant discovers or reasonably should 
have discovered the existence of the act that resulted in the claimed 
loss. The same rules governing accrual pursuant to the Federal

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Tort Claims Act should be applied with respect to the Military Claims 
Act.
    (b) The statutory time period excludes the day of the incident and 
includes the day the claim was filed.
    (c) Consider claims filed after the statute has run when:
    (1) The United States is at war or in an armed conflict when the 
claim accrues, or
    (2) The United States enters a war or armed conflict after the claim 
accrues, and
    (3) Good cause is shown. A claim is barred by the statute of 
limitations if it is filed more than 2 years after the good cause ceases 
to exist or the war or armed conflict ends. Congress or the President 
establishes the beginning and end of war or armed conflict.



Sec. 842.46  Who may file a claim.

    (a) Owners of the property or their authorized agents may file 
claims for property damage.
    (b) Injured persons or their duly authorized agents may file claims 
for personal injury.
    (c) Duly appointed guardians of minor children or any other persons 
legally entitled to do so under applicable local law may file claims for 
minors' personal injuries.
    (d) Executors or administrators of a decedent's estate or another 
person legally entitled to do so under applicable local law, may file 
claims based on:
    (1) An individual's death.
    (2) A cause of action surviving an individual's death.
    (e) Insurers with subrogation rights may file claims for losses paid 
in full by them. The parties may file claims jointly or individually, to 
the extent of each party's interest, for losses partially paid by 
insurers with subrogation rights.
    (f) Authorized agents signing claims show their title or legal 
capacity and present evidence of authority to present the claims.



Sec. 842.47  Who are proper claimants.

    (a) Citizens and inhabitants of the United States.
    (b) U.S. military personnel and civilian employees.

    Note: These personnel are not proper claimants for personal injury 
or death incident to service.

    (c) Persons in foreign countries who are not inhabitants of the 
foreign country.
    (d) States, state agencies, counties, or municipalities, or their 
political subdivisions.
    (e) Prisoners of war or interned enemy aliens.

    Note: These individuals are proper claimants for personal property 
damage but not for personal injury.

    (f) Property owners, their representatives, and those with certain 
legal relationships with the record owner, including mortgagors, 
mortgagees, trustees, bailees, lessees and conditional vendees.
    (g) Subrogees to the extent they have paid for the claim in 
question.



Sec. 842.48  Who are not proper claimants.

    (a) Governments of foreign nations, their agencies, political 
subdivisions, or municipalities.
    (b) Agencies and departments of the U.S. Government.
    (c) Nonappropriated fund instrumentalities.
    (d) Subrogees of Sec. 842.48(a), (b), and (c) of this part.
    (e) Inhabitants of foreign countries.



Sec. 842.49   Claims payable.

    (a) Claims arising from negligent or wrongful acts or omissions 
committed by United States military or civilian personnel while acting 
in the scope of their employment.
    (b) Claims arising from noncombat activities of the United States, 
whether or not such injuries of damages arose out of the negligent or 
wrongful acts or omissions by United States military or civilian 
employees acting within the scope of their employment.
    (c) Claims for damage to bailed property under Sec. 842.49(a) or (b) 
of this part, where all of the following are present:
    (1) The United States armed forces assumed the duties of a bailee.
    (2) The bailor did not assume the risk of loss by express agreement.
    (3) Authorized United States armed forces military or civilian 
personnel

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acting in their official capacity properly accepted the property.
    (d) Claims for loss or damage to:
    (1) Insured or registered mail under Sec. 842.49(a), (b), or (c) 
while in the possession of the United States armed forces military or 
civilian personnel.
    (2) Minimum fee insured mail, but only if it has an insurance number 
or requirement for hand-to-hand receipt while in the possession of the 
United States armed forces military or civilian personnel.
    (3) Any mail in the possession of the US Postal Service or a 
Military Postal Service due to an unlawful or negligent inspection, 
search, or seizure conducted in an oversea military postal facility, 
under orders of armed forces personnel.
    (e) Claims for property damage of US military personnel under 
conditions listed in paragraphs (a) and (b) of this section, where the 
damage occurred on a military installation and is not payable under the 
Military Personnel and Civilian Employees' Claims Act.
    (f) Claims filed by DOD military or civilian health care providers 
or legal personnel for their personal liability by settlement or 
judgment, to include reasonable costs of such litigation, for their 
common law tortious acts committed within the scope of their employment 
under circumstances described in 10 U.S.C. 1089(f) and 10 U.S.C. 
1054(f).

[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32076, Aug. 7, 1990]



Sec. 842.50  Claims not payable.

    Exclusions listed in Sec. 842.50 (a) through (l) of this part, are 
based on the wording of 28 U.S.C. 2680. The remainder are based either 
on statute or court decisions. The interpretation of these exclusions is 
a Federal question decided under Federal law. Where State law differs 
with Federal law, Federal law prevails. A claim is not payable under 
this subpart if it:
    (a) Is based on an act or omission of an employee of the government, 
exercising due care, in the execution of a statute or regulation, 
whether or not such statute or regulation is valid. Do not deny claims 
solely on this exception without the prior approval of HQ USAF/JACC.
    (b) Is based on the exercise or performance or the failure to 
exercise or perform a discretionary function or duty on the part of a 
Federal agency or an employee of the government, whether or not the 
discretion involved is abused. Do not deny claims solely on this 
exception without the prior approval of HQ USAF/JACC.
    (c) Arises out of the loss, miscarriage, or negligent transmission 
of letters or postal matter, except those claims payable under 
Sec. 842.49.
    (d) Arises with respect to the assessment or collection of any tax 
or customs duty, or the detention of any goods or merchandise by any 
officer of customs or excise, or any other law enforcement officer.
    (e) Is cognizable under the Suits in Admiralty Act or under the 
Public Vessels Act.
    (f) Arises out of an act or omission of any employee of the 
government in administering the provisions of the Trading With the Enemy 
Act.
    (g) Is for damages caused by the imposition or establishment of a 
quarantine by the United States.
    (h) Arises out of an assault or battery, unless the assault or 
battery arises out of the acts or omissions of investigative or law-
enforcement officers of the US Government, or arises out of the 
performance of medical, dental or related health care functions.
    (i) Arises out of false imprisonment, false arrest, malicious 
prosecution or abuse of process, unless such actions were committed by 
an investigative or law enforcement officer of the United States who is 
empowered by law to execute searches, seize evidence, or make arrests 
for violations of federal law.
    (j) Arises out of libel, slander, misrepresentation, or deceit.
    (k) Arises out of interference with contract rights.
    (l) Arises from the fiscal operations of the Department of the 
Treasury or from the regulation of the monetary system.
    (m) Arises out of the combat activities of the military or naval 
forces, or the Coast Guard, during time of war.
    (n) Arises from activities of the Tennessee Valley Authority.
    (o) Arises from the activities of the Panama Canal Company.

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    (p) Arises from the activities of a Federal land bank, a Federal 
intermediate credit bank, or a bank for cooperatives.
    (q) Is for the personal injury or death of a member of the Armed 
Forces of the United States, including the Coast Guard, incurred 
incident to service.
    (r) Is for the personal injury or death of a government employee for 
whom benefits are provided by the FECA.
    (s) Is for the personal injury or death of an employee, including 
nonappropriated fund employees, for whom benefits are provided by the 
Longshore and Harbor Workers' Compensation Act (LHWCA).
    (t) Is for the personal injury or death of any government contractor 
employee for whom benefits are provided under any worker's compensation 
law, or under any contract or agreement providing employee benefits 
through insurance, local law, or custom when the United States pays them 
either directly or as part of the consideration under the contract. Only 
HQ USAF/JACC may settle these claims.
    (u) Is for taking of property as by technical trespass or overflight 
of aircraft and of a type contemplated by the Fifth Amendment to the US 
Constitution, or otherwise constitutes a taking.
    (v) Is for damage from or by flood or flood waters at any place.
    (w) Is for damage to property or for any death or personal injury 
occurring directly or indirectly as a result of the exercise or 
performance of, or failure to exercise or perform, any function or duty 
by any Federal agency or employee of the government to carry out the 
provisions of the Federal Civil Defense Act of 1950 during the existence 
of a civil defense emergency.
    (x) Is for patent or copyright infringement.
    (y) Is for damage to property of a state, commonwealth, territory, 
or the District of Columbia caused by ANG personnel engaged in training 
or duty under 32 U.S.C. 316, 502, 503, 504, or 505 who are assigned to a 
unit maintained by that state, commonwealth, territory, or the District 
of Columbia unless the express approval for payment is received from HQ 
USAF/JACC.
    (z) Is for damage to property or for any death or personal injury 
arising out of the activities of any federal agency or employee of the 
government in carrying out the provisions of the Federal Disaster Relief 
Act of 1954.
    (aa) Arises from activities that present a political question.
    (bb) Results wholly from the negligent, or wrongful act of the 
claimant or agent.
    (cc) Is for reimbursement for medical, hospital, or burial expenses 
furnished at the expense of the United States.
    (dd) Arises from contractual transactions, express or implied, 
including rental agreements, sales agreements, leases and easements, 
which are payable or enforceable under such contracts or arise out of 
irregular procurement and implied contract.
    (ee) Arises from private, as distinguished from government, 
transactions.
    (ff) Is based solely on compassionate grounds.
    (gg) Is for rent, damage, or other expenses or payments involving 
the regular acquisition, use, possession, or disposition of real 
property of interests therein by and for the Air Force.
    (hh) Is not in the best interests of the United States, is contrary 
to public policy, or is otherwise contrary to the basic intent of the 
MCA; for example, claims by inhabitants of unfriendly foreign countries 
or by or based on injury or death of individuals considered to be 
unfriendly to the United States. Claims considered not payable under 
this paragraph are forwarded, with recommendations for disposition, 
through claims channels to HQ USAF/JACC.
    (ii) Is presented by a national, or a corporation controlled by a 
national, of a country at war or engaged in armed conflict with the 
United States, or any country allied with such enemy country unless the 
appropriate settlement authority determines that the claimant is, and at 
the time of the incident was, friendly to the United States. A prisoner 
of war or an interned enemy alien is not excluded as to a claim for 
damage, loss, or destruction of personal property in the custody of the 
Government otherwise payable. Claims

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considered not payable under this paragraph are forwarded with 
recommendations for disposition, through claims channels, to HQ USAF/
JACC.
    (jj) Is for personal injury or death of military or civilian 
personnel of a foreign country, if their personal injury or death was 
suffered incident to their service.
    (kk) Is for damage to or loss of bailed property when the bailor 
specifically assumes such risk.
    (ll) Is for property damage, personal injury, or death occurring in 
a foreign country to an inhabitant of that country.
    (mm) Is for the loss of a rental fee for personal property.
    (nn) Arises out of matters which are in litigation against the 
United States.
    (oo) Is payable under any one of the following statutes and 
implementing regulations:
    (1) Federal Tort Claims Act.
    (2) Foreign Claims Act.
    (3) International Agreements Claims Act.
    (4) Air Force Admiralty Claims Act and the Admiralty Extension Act.
    (5) National Guard Claims Act.
    (6) Military Personnel and Civilian Employees' Claims Act.



Sec. 842.51   Applicable law.

    This paragraph provides the existing law governing liability, 
measurement of liability and the effects of settlement upon awards.
    (a) Extent of liability. Where the claim arises is important in 
determining the extent of liability.
    (1) When a claim arises in the United States, the law of the place 
where the act or omission occurred governs liability. The settlement 
authority considers the local law on such issues as dangerous 
instrumentalities, assumption of risk, res ipsa loquitur, last clear 
chance, discovered peril, and comparative and contributory negligence. 
Absolute liability is never imposed.
    (2) Claims in foreign countries. (i) In claims arising in a foreign 
country, where the claim is for personal injury, death, or damage to or 
loss of real or personal property caused by an act or omission alleged 
to be negligent, wrongful, or otherwise involving fault of military 
personnel or civilian officers or employees of the United States acting 
within the scope of their employment, liability or the United States is 
determined according to general principles of tort law common to the 
majority of American jurisdictions, as evidenced by Federal case law and 
standard legal publications, except as to the principle of absolute 
liability.
    (ii) The law of the foreign country governing the legal effect of 
contributory or comparative negligence by the claimant will be applied 
in determining the relative merits of the claim. In the unusual 
situation where foreign law governing contributory or comparative 
negligence does not exist, use traditional rules of contributory 
negligence. Foreign rules and regulations governing the operation of 
motor vehicles (rules of the road) are applied to the extent those rules 
are not specifically superseded or preempted by United States military 
traffic regulations.
    (3) When adjudicating claims based upon negligence, the principle of 
absolute liability is not applicable, even though otherwise prescribed 
by applicable local law.
    (4) The meaning and construction of the MCA is a Federal question to 
be determined by Federal law.
    (b) General information: (1) The measure of daages in claims arising 
in the United States or its possessions is determined according to the 
law of the place where the act or omission occurred. The measure of 
damages in claims arising overseas is determined according to general 
principles of American tort law.
    (2) Apportion damages against the United States in the same manner 
as they are apportioned in suites against private persons if local law 
applies comparative negligence.
    (3) Do not deduct proceeds from private insurance policies except to 
the extent allowed by local law. However, proceeds are deducted if the 
policy was paid for by the United States.
    (4) Deduct compensation and benefits from the Department of Veterans 
Affairs, or monetary value received from any U.S. Government associated 
source from the damages which may be awarded. Deduct sick and annual 
leave payments if local law allows.
    (5) Do not approve:

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    (i) Punitive damages.
    (ii) Cost of medical or hospital services furnished at U.S. expense.
    (iii) Cost of burial expenses paid by the United States.
    (c) Settlement by insurer or joint tort-feasor. When settlement is 
made by an insurer or joint tort-feasor and an additional award is 
warranted, an award may be made if both of the following are present:
    (1) The United States is not protected by the release executed by 
the claimant.
    (2) The total amount received from such source is first deducted.



Sec. 842.52   Appeal of final denials.

    (a) A claimant may appeal the final denial of the claim. The 
claimant sends the request, in writing, to the settlement authority 
within a reasonable time following the final denial. Sixty days is 
considered a reasonable time, but the settlement authority may waive the 
time limit for good cause.
    (b) Upon receipt of the appeal, the original settlement authority 
reviews the appeal.
    (c) Where the settlement authority does not reach a final agreement 
on an appealed claim, he or she sends the entire claim file to the next 
higher settlement authority, who is the appellate authority for that 
claim.
    (d) The decision of the appellate authority is the final 
administrative action on the claim.



Sec. 842.53  Right of subrogation, indemnity, and contribution.

    The Air Force becomes subrogated to the rights of the claimant upon 
settling a claim. The Air Force has the rights of contribution and 
indemnity permitted by the law of the situs, or under contract. Do not 
seek contribution or indemnity from US military personnel or civilian 
employees whose conduct gave rise to government liability.



Sec. 842.54  Attorney fees.

    In the settlement of any claim pursuant to 10 U.S.C. 2733 and this 
subpart, attorney fees will not exceed 20 percent of any award provided 
that when a claim involves payment of an award over $1,000,000, attorney 
fees on that part of the award exceeding $1,000,000 may be determined by 
the Secretary of the Air Force. For the purposes of this paragraph, an 
award is deemed to be the cost to the United States of any trust or 
structured settlement, and not its future value.