[Title 32 CFR 536.50]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Chapter V - DEPARTMENT OF THE ARMY]
[Subchapter B - CLAIMS AND ACCOUNTS]
[Part 536 - CLAIMS AGAINST THE UNITED STATES]
[Subpart B - Claims Arising From Activities of Military or Civilian]
[Sec. 536.50 - Claims based on negligence of military personnel or civilian employees under the Federal Tort Claims Act.]
[From the U.S. Government Printing Office]


32NATIONAL DEFENSE32002-07-012002-07-01false536.50Sec. 536.50NATIONAL DEFENSEDEPARTMENT OF THE ARMYCLAIMS AND ACCOUNTSCLAIMS AGAINST THE UNITED STATESClaims Arising From Activities of Military or Civilian
Sec. 536.50  Claims based on negligence of military personnel or civilian employees under the Federal Tort Claims Act.

    (a) Authority. The statutory authority for this chapter is the FTCA 
(60 Stat. 842, 28 U.S.C. 2671-2680), as amended by the Act of 18 July 
1966 (Pub. L. 89-506; 80 Stat. 306), the Act of 16 March 1974 (Pub. L. 
93-253; 88 Stat. 50), and the Act of 29 December 1981 (Pub. L. 97-124), 
and as implemented by the Attorney General's Regulations (28 CFR 14.1-
14.11).
    (b) Scope. This section prescribes the substantive basis and special 
procedural requirements for the administrative settlement of claims 
against the United States under the FTCA and the implementing Attorney 
General's Regulations based on death, personal injury, or damage to or 
loss of property which accrue on or after 18 January 1967. If a conflict 
exists between the provisions of this section and the provisions of the 
Attorney General's Regulations, the latter govern.
    (c) Claims payable. Unless otherwise prescribed, claims for death, 
personal injury, or damage to or loss of property (real or personal) are 
payable under this section when the injury or damage is caused by 
negligent or wrongful acts or omissions of military personnel or 
civilian employees of the DA or the DoD while acting within the scope of 
their employment under circumstances in which the United States, if a 
private person, would be liable to the claimant in accordance with the 
law of the place

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where the act or omission occurred. The FTCA is a limited consent to 
liability without which the United States is immune. Similarly, there is 
no Federal cause of action created by the Constitution which would 
permit a damage recovery because of the Fifth Amendment or any other 
constitutional provision. Immunity must be expressly waived, as by the 
FTCA.
    (d) ``Employee of the Government'' (28 U.S.C. 2671) includes the 
following categories of tortfeasors for which the DA is responsible:
    (1) Military personnel (members of the Army), including but not 
limited to:
    (i) Members on full-time active duty in a pay status, including--
    (A) Members assigned to units performing active service.
    (B) Members serving as ROTC instructors. (Does not include Junior 
ROTC instructors unless on active duty.)
    (C) Members serving as National Guard instructors or advisors.
    (D) Members on duty or in training with other Federal agencies, for 
example, Nuclear Regulatory Commission, National Aeronautics and Space 
Administration, Departments of Defense, State, Navy, or Air Force.
    (E) Members assigned as students or ordered into training at a non-
Federal civilian educational institution, hospital, factory, or other 
industry. This does not include members on excess leave.
    (F) Members on full-time duty at nonappropriated fund activities.
    (G) Members of the ARNG of the United States on active duty.
    (ii) Members of reserve units during periods of inactive duty 
training and active duty training, including ROTC cadets who are 
reservists while they are at summer camp.
    (iii) Members of the ARNG while engaged in training or duty under 32 
U.S.C. 316, 502, 503, 504, or 505 for claims arising on or after 29 
December 1981.
    (2) Civilian officials and employees of both the DOD and the DA 
(there is no practical significance to the distinction between the terms 
``official'' and ``employee'') including but not limited to--
    (i) Civil Service and other full-time employees of both DOD and DA 
paid from appropriated funds.
    (ii) Contract surgeons (10 U.S.C. 1091, 4022) and consultants (10 
U.S.C. 1091) where ``control'' is exercised over physician's day to day 
practice.
    (iii) Employees of nonappropriated funds if the particular fund is 
an instrumentality of the United States and thus a Federal agency. In 
determining whether or not a particular fund is a ``Federal agency,'' 
consider whether the fund is an integral part of the DA charged with an 
essential DA operational function and the degree of control and 
supervision exercised by DA personnel. Members or users, as 
distinguished from employees of nonappropriated funds, are not 
considered Government employees. The same is true of family child care 
providers. However, claims arising out of the use of certain 
nonappropriated fund property or the acts or omissions of family child 
care providers, may be payable from such funds under chapter 12, AR 27-
20, as a matter of policy, even when the user is not within the scope of 
employment and the claim is not otherwise cognizable under any other 
claims authorization.
    (iv) Prisoners of war and interned enemy aliens.
    (v) Civilian employees of the District of Columbia National Guard, 
including those paid under ``service contracts'' from District of 
Columbia funds.
    (vi) Civilians serving as ROTC instructors paid from Federal funds.
    (vii) National Guard technicians employed under 32 U.S.C. 709(a) for 
claims accruing on or after 1 January 1969 (Pub. L. 90-486, 13 August 
1968; 82 Stat. 755).
    (3) Persons acting in an official capacity for the DOD or the DA 
whether temporarily or permanently in the service of the United States 
with or without compensation including but not limited to--
    (i) ``Dollar a year'' personnel.
    (ii) Members of advisory committees, commissions, boards or the 
like.
    (iii) Volunteer workers in an official capacity acting in 
furtherance of the business of the United States. The general rule with 
respect to volunteers is

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set forth in 31 U.S.C. 665(b), which provides that, ``No officer or 
employee of the United States shall accept voluntary service for the 
United States or employ personal service in excess of that authorized by 
law, except in cases of emergency involving the safety of human life or 
the protection of property.'' (5 U.S.C. 3111(c) specifically provides 
that student volunteers employed thereunder shall be considered Federal 
employees for purposes of claims under the FTCA. The same classification 
is applied by 10 U.S.C. 1588 to museum and family support program 
volunteers.) The DA is permitted to accept and use certain volunteer 
services in Army family support programs. (10 U.S.C. 1588).
    (iv) Loaned servants. Employees who are permitted to serve another 
employer may be considered ``loaned servants,'' provided the borrowing 
employer has the power to discharge the employee, to control and direct 
the employee, and to decide how he will perform his tasks. Whoever has 
retained those powers is liable for the employee's torts under the 
principle of respondeat superior. Where those elements of direction and 
control have been found, the United States has been liable, for example, 
for the torts of Government employees loaned for medical training and 
emergency assistance, and county and state employees discharging Federal 
programs.
    (e) ``Scope of employment'' means acting in ``line of [military] 
duty'' (28 U.S.C. 2671) and is determined in accordance with principles 
of respondeat superior under the law of the jurisdiction in which the 
act or omission occurred. Determination as to whether a person is within 
a category listed in paragraph (d)(3) of this section will usually be 
made together with the scope determination. Local law should always be 
researched, but the novel aspects of the military relationship should be 
kept in mind in making a scope determination.
    (f) ``Line of duty'' determinations under AR 600-8-1 are not 
determinative of scope of employment. ``Joint venture'' situations are 
likely to be frequent where the Federal employee is performing federally 
assigned duties but is under actual direction and control of a non-
Federal entity, for example, a Federal employee in training at a non-
Federal entity or ROTC instructors at civilian institutions. This could 
also occur where the employee is working for another Federal agency. 
Furthermore, dual purpose situations are commonplace where benefits to 
the Government and the member or employee may or may not be concurrent, 
for example, use of privately owned vehicles at or away from assigned 
duty station, or permanent change of station with delay en route. (See 
Secs. 536.90 through 536.97 for the handling of certain claims arising 
out of nonscope activities of members of the Army.)
    (g) Law applicable. The whole law of the place where the act or 
omission occurred, including choice of law rules, will be applied in the 
determination of liability and quantum. Where there is a conflict 
between the local law and an express provision of the FTCA, the latter 
governs.
    (h) Subrogation. Claims involving subrogation will be processed as 
prescribed in Sec. 536.5(b), except where inconsistent with the 
provisions of this section or the Attorney General's regulations.
    (i) Indemnity or contribution--(1) Sought by the United States. If 
the claim arises under circumstances in which the Government is entitled 
to contribution or indemnity under a contract of insurance or the 
applicable law governing joint tortfeasors, the third party will be 
notified of the claim, and will be requested to honor its obligation to 
the United States or to accept its share of joint liability. If the 
issue of indemnity or contribution is not satisfactorily adjusted, the 
claim will be compromised or settled only after consultation with the 
Department of Justice as provided in 28 CFR 14.6.
    (2) Claims for indemnity or contribution. Claims for indemnity or 
contribution from the United States will be compromised or settled under 
this section, if liability exists under the applicable law, provided the 
incident giving rise to such claim is otherwise cognizable under this 
section. As to such claims where the exclusivity of the FECA may be 
applicable, see 5 U.S.C. 8101-8150.
    (3) ARNG vehicular claims. When a vehicle used by the ARNG, or a 
privately

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owned vehicle operated by a member or employee of the ARNG, is involved 
in an incident under circumstances which make this section applicable to 
the disposition of administrative claims against the United States and 
results in personal injury, death, or property damage, and a remedy 
against the State or its insurer is indicated, the responsible area 
claims authority will monitor the action against the State or its 
insurer and encourage direct settlement between the claimant and the 
State or its insurer. Where the State is insured, direct contact with 
State or ARNG officials rather than the insurer is desirable. Regular 
procedures will be established and followed wherever possible. Such 
procedures should be agreed on by both local authorities and the 
appropriate claims authorities subject to concurrence by Commander, 
USARCS. Such procedures will be designed to ensure that local 
authorities and United States authorities do not issue conflicting 
instructions for processing claims and that whenever possible and in 
accordance with governing local and Federal law, a mutual arrangement 
for disposition of such claims as in paragraph (i)(4) of this section is 
worked out. Amounts recovered or recoverable by claimant from any 
insurer (other than claimant's insurer who has obtained no subrogated 
interest against the United States) will be deducted from the amount 
otherwise payable.
    (4) Claims arising out of training activities of ARNG personnel. 
Contribution may be sought from the state involved where it has waived 
sovereign immunity or has private insurance which would cover the 
incident giving rise to the particular claim. Where the state involved 
rejects the request for contribution, the file will be forwarded to the 
Commander, USARCS. The Commander, USARCS, is authorized to enter into an 
agreement with a State, territory, or commonwealth to share settlement 
costs of claims generated by the ARNG personnel or activities of that 
political entity.
    (j) Claims not payable. The exclusions contained in 28 U.S.C. 2680 
are applicable to claims herein. Other types of claims are excluded by 
statute or court decisions, including, but not limited to, the 
following:
    (1) Claims for the personal injury or death of a member of the Armed 
Forces of the United States incurred incident to service, or for damage 
to a member's property incurred incident to service. Feres v. United 
States, 340 U.S. 135 (1950). Currently the most significant 
justification for the incident to service doctrine is the availability 
of alternative compensation systems, and the fear of disrupting the 
military command relationship. Other supportive factors often cited by 
the courts are the service member's duty status, location, and receipt 
of military benefits at the time of the incident.
    (i) The exception applies to members of the Army, Navy, Air Force, 
Marine Corps, and Coast Guard, including the Reserve Components of the 
Armed Forces. (See 10 U.S.C. 261.) The exception also applies to service 
members on the Temporary Disability Retired List, and on convalescent 
leave, to service academy cadets, to members of visiting forces in the 
United States under the SOFA between the parties to the North Atlantic 
Treaty Organization or similar international agreements, and to service 
members on the extended enlistment program.
    (ii) The incident to service doctrine has been extended to 
derivative claims where the directly injured party is a service member. 
Third party indemnity claims are barred.
    (2) Claims for the personal injury or death of a Government employee 
for whom benefits are provided by the Federal Employees Compensation Act 
(5 U.S.C. 8101-8150). Who is a government employee under the Act is 
defined in the Act itself (5 U.S.C. 8101), but is not limited to Federal 
Civil Service employees. The term ``government employee'' can include 
certain ROTC cadets (5 U.S.C. 8140) and state or local law enforcement 
officers engaged in apprehending a person for committing a crime against 
the United States (5 U.S.C. 8191), certain nurses, interns or other 
health care personnel, e.g., student nurses, etc. (5 U.S.C. 5351, 8144) 
and certain Army Community Service Volunteers (10 U.S.C. 1588). This Act 
provides that benefits paid under the Act are exclusive and instead of 
all

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other liability of the United States, including that under a Federal 
tort liability statute (5 U.S.C. 8116(c)). It extends to derivative 
claims, to subsequent malpractice for treatment of a covered injury, to 
injuries for which there is no scheduled compensation, and to employee 
harassment claims for which other remedies are available (42 U.S.C. 
2000e). The exception does not bar third party indemnity claims. When 
there is doubt as to whether or not this exception applies, the claim 
should be forwarded through claims channels to the Commander, USARCS, 
for an opinion.
    (3) Claims for the personal injury or death of an employee, 
including nonappropriated fund employees, for whom benefits are provided 
by the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 
901-950). An employee of a nonappropriated fund instrumentality is 
covered by that Act (5 U.S.C. 8171). This is the exclusive remedy for 
covered employees, similar to the exclusivity of the FECA.
    (4) Claims for the personal injury or death of any employee for whom 
benefits are provided under any workmen's compensation law, if the 
premiums of the workmen's compensation insurance are retrospectively 
rated and charged as an allowable, allocable expense to a cost-type 
contract. If, in the opinion of an approval or settlement authority, the 
claim should be considered payable, for example, the injuries did not 
result from a normal risk of employment or adequate compensation is not 
payable under workmen's compensation laws, the file will be forwarded 
with recommendations through claims channels to the Commander, USARCS, 
who may authorize payment of an appropriate award.
    (5) Claims for damage from or by flood or flood waters at any place. 
33 U.S.C. 702c. This exception is broadly construed and includes multi-
purpose projects and all phases of construction and operation.
    (6) Claims based solely upon a theory of absolute liability or 
liability without fault. Either a ``negligent'' or ``wrongful'' act is 
required by the FTCA, and some type of malfeasance or nonfeasance is 
required. Dalehite v. United States, 346 U.S. 15 (1953); Laird v. Nelms, 
406 U.S. 797 (1972). Thus, liability does not arise by virtue either of 
United States ownership of an inherently dangerous commodity or of 
engaging in extra-hazardous activity.
    (k) Procedures--(1) General. Unless inconsistent with the provisions 
of this section, the procedures for the investigation and processing of 
claims set forth in Secs. 536.1 through 536.13 will be followed.
    (2) Claims arising out of tortious conduct by ARNG personnel as 
defined in paragraph (d)(1)(iii) of this section--(i) Notification. The 
procedures prescribed in Sec. 536.75, will be followed in ARNG claims 
arising under the FTCA.
    (ii) Claims against the U.S. Government received by agencies of the 
State. These claims will be expeditiously forwarded through the State 
adjutant general to the appropriate U.S. Army area claims office in 
whose geographic area the incident occurred.
    (3) Statute of Limitations. (i) To be settled under this section, a 
claim against the United States must be presented in writing to the 
appropriate Federal agency within 2 years of its accrual.
    (ii) For statute of limitations purposes, a claim will be deemed to 
have been presented when the appropriate Federal agency as defined in 
Sec. 536.3(m) receives from a claimant, his or her duly authorized 
agent, or legal representative an executed SF 95 or written notification 
of an incident, together with a claim for money damages, in a sum 
certain, for damage to or loss of property or personal injury or death. 
For Federal tort claims arising out of activities of the ARNG, receipt 
of a written claim by any fulltime officer or employee of the ARNG will 
be considered proper receipt.
    (iii) A claim received by an official of the DOD will be transmitted 
without delay to the nearest Army claims processing office or area 
claims office. Inquiries concerning applicability of the statute of 
limitations to claims filed with the wrong Federal agency will be 
referred to USARCS for resolution.
    (4) Claims within settlement authority of USARCS or the Attorney 
General. A copy of each claim which must be brought to the attention of 
the Attorney General in accordance with his or

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her regulations (28 CFR 14.6), or one in which the demand exceeds 
$15,000 or the total amount of all claims, actual or potential, from a 
single incident exceeds $25,000, will be forwarded immediately to the 
Commander, USARCS. Subsequent documents should be forwarded or added in 
accordance with Sec. 536.5(h)(2). USARCS is responsible for the 
monitoring and settlement of such claims and will be kept informed of 
the status of the investigation and processing thereof. Direct liaison 
and correspondence between USARCS and the field claims authority or 
investigator is authorized on all claims matters, and assistance will be 
furnished as required.
    (5) Non-Army claims. Claims based on acts or omissions of employees 
of the United States, other than military and civilian personnel of the 
DA, civilian personnel of the DOD, and employees of nonappropriated fund 
activities of the DA, will be transmitted forthwith to the nearest 
official of the employing agency, and the claimant will be advised of 
the referral.
    (6) Acknowledgment of claim. (i) The claimant and his or her 
attorney will be kept informed by personal contact, telephonic contact, 
or mail of the receipt of his or her claim and the status of the claim. 
Formal acknowledgment of the claim in writing is required only where the 
claim is likely to result in litigation or is presented in an amount 
exceeding $15,000. In this event, the letter of acknowledgment will 
state the date of receipt of the claim by the first agency of the Army 
receiving the claim.
    (ii) If it is reasonably clear to the office acknowledging receipt 
that a claim filed under the FTCA is not cognizable thereunder; for 
example, it is a maritime claim under Sec. 536.60, or it falls under 
Secs. 536.20 through 536.35 or Secs. 536.70 through 536.81, the 
acknowledgment will contain a statement advising the claimant of the 
statute under which his or her claim will be processed. If it is not 
clear which statute applies, a statement to that effect will be made, 
and the claimant will be promptly advised on his or her remedy when a 
decision is made. However, all potential maritime claims will be handled 
in accordance with Sec. 536.5(h)(5).
    (iii ) When a claim has been amended as set forth in 
Sec. 536.5(f)(4), the amendment will be acknowledged in all cases. 
Additionally, the claimant will be informed that the amendment 
constitutes a new claim insofar as concerns the 6 months in which the DA 
is granted the authority to make a final disposition under 28 U.S.C. 
2675(a) and the claimant's option thereunder will not accrue until 6 
months after the filing of the amendment.
    (iv) When a claim is improperly presented, is incomplete or 
otherwise does not meet the requirements set forth in Sec. 536.5(d), the 
claimant or his or her representative will be promptly informed in 
writing of the deficiencies and advised that a proper claim must be 
filed within the 2 year statute of limitations.
    (7) Investigation. Claims cognizable under this section will be 
investigated and processed on a priority basis in order that settlement 
if indicated may be accomplished within the 6 months prescribed by 
statute.
    (8) Advice to claimant. (i) A full explanation of claims procedures 
and of the rights of the claimant will be made to the extent 
necessitated by the amount and nature of the claim.
    (ii) In a case where litigation is likely, or where this course of 
action is preferred by the claimant, and it appears to be a proper case 
for administrative settlement, the claimant will be advised as to the 
advantages of administrative settlement. If the claim is within the 
jurisdiction of a higher settlement authority, the claim will be 
discussed with such authority prior to the furnishing of such advice. 
The claimant should be familiarized with all aspects of administrative 
settlement procedures including the administrative channels through 
which his claim must be processed for approval. He or she may be advised 
that administrative processing can result in more expeditious 
processing, whereas litigation may take considerable time, particularly 
in jurisdictions with crowded dockets.
    (iii) If appropriate, he or she may be informed that a tentative 
settlement can be reached for any amount above

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$25,000, subject to approval by the Attorney General. He or she should 
be advised that administrative filing of the claim protects him under 
the statute of limitations for purpose of litigation; suit can be filed 
within 6 months after the date of mailing of notice of final denial by 
the DA, thus potentially allowing negotiations to continue indefinitely. 
An attorney representing a claimant should be advised of the limitations 
on fees for purposes of administrative settlement (20 percent) and 
litigation (25 percent). The attorney may also be advised that there is 
no jury trial under the FTCA.
    (9) Notification to claimant of action on claim. (i) The filing of 
an administrative claim and its denial are prerequisite to filing suit. 
Any suit must be filed not later than 6 months after notification by 
certified or registered mail of the denial of the administrative claim. 
Failure of a settlement authority to take final action on a properly 
filed claim within 6 months may be treated by the claimant as a final 
denial for the purposes of filing suit. If the claimant has provided 
insufficient documentation to permit evaluation of the claim, written 
notice should be given to this effect. Since administrative settlements 
are a voluntary process, the preferred method of negotiating is to 
attempt to exchange information on an open basis.
    (ii) Upon final denial of a claim, or upon rejection by the claimant 
of a partial allowance, and further efforts to reach a settlement are 
not considered feasible (Sec. 536.5(h)(1)), the settlement authority 
will inform the claimant of the action on his claim by certified or 
registered mail. Notification will be made as set forth in 
Sec. 536.11(b).
    (iii) If a claim has been presented to the DA and, also, to other 
Federal agencies, without any notification to the DA of this fact, final 
action taken by the DA prior to that of any other agency is conclusive 
on a claim presented to other agencies, unless another agency decides to 
take further action to settle the claim. Such agency may treat the 
matter as a reconsideration under 28 CFR 14.9(b), unless suit has been 
filed. The foregoing applies likewise to DA claims in which another 
Federal Agency has already taken final action.
    (iv) If, after final denial by another agency, a claim is filed with 
the DA, the new submission will not toll the 6 months limitation for 
filing suit, unless the DA treats the second submission as a request for 
reconsideration under paragraph (k)(9)(iv)(A) of this section.
    (A) Reconsideration. (1) While there is no appeal from the action of 
an approving or settlement authority under the FTCA and this section, an 
approving or settlement authority may reconsider a claim upon request of 
the claimant or someone acting in his behalf. Even in the absence of 
such a request, an approving or settlement authority may on his own 
initiative reconsider a claim. He may reconsider a claim which he 
previously disapproved in whole or in part (even where a settlement 
agreement has been executed) when it appears that his original action 
was incorrect in law or fact based on the evidence of record at the time 
of the action or subsequently received. If he determines that his 
original action was incorrect, he will modify the action and, if 
appropriate, make a supplemental payment. The basis for a change in 
action will be stated in a memorandum included in the file.
    (2) A successor approving or settlement authority may also 
reconsider the original action on a claim but only on the basis of 
fraud, substantial new evidence, errors in calculation or mistake 
(misinterpretation) of law.
    (3) A request for reconsideration must be submitted prior to the 
commencement of suit and prior to the expiration of the 6-month period 
provided in 28 U.S.C. 2401(b). Upon timely filing, the appropriate 
authority shall have 6 months from the date of filing in which to make a 
final disposition of the request, and the claimant's option under 28 
U.S.C. 2675(a) shall not accrue until 6 months after the filing of the 
request.
    (4) A request for reconsideration should indicate fully the legal or 
factual basis asserted as grounds for relief. Following completion of 
any investigation or other action deemed necessary for an informed 
disposition of the request, the approving or settlement authority will 
reconsider the

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claim and attempt to settle it by granting such relief as may appear 
warranted. When further settlement efforts appear unwarranted, the 
entire file with a memorandum of opinion will be referred through claims 
channels to the Commander, USARCS, and the claimant informed of such 
referral.
    (B) [Reserved]