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National Defense
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2020-07-01
2020-07-01
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Military Claims Act (10 U.S.C. 2733)
D

Subpart D
National Defense
Department of Defense (Continued)
DEPARTMENT OF THE AIR FORCE
CLAIMS AND LITIGATION
ADMINISTRATIVE CLAIMS

Subpart D—Military Claims Act (10 U.S.C. 2733)

Source:
55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83690, Nov. 22, 2016, unless otherwise noted.
§ 842.30
Scope of this subpart.
This subpart establishes policies and procedures for all administrative claims under the Military Claims Act for which the Air Force has assigned responsibility.
[81 FR 83690, Nov. 22, 2016]
§ 842.31
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. Final denial letters mailed from within the United States shall be sent by U.S. Mail, certified mail, return receipt requested.
(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.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83690, Nov. 22, 2016]
§ 842.32
Delegations of authority.
(a) Settlement authority. (1) The Secretary of the Air Force has 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 to deny claims in any amount:
(i) The Deputy Judge Advocate General.
(ii) The Director, Civil Law and Litigation.
(iii) The Chief, Associate Chief and Branch Chiefs, Claims and Tort Litigation Division.
(4) SJAs of the Air Force component commander of the U.S. geographic combatant commands for claims arising within their respective combatant command areas of responsibility have delegated authority to settle claims payable or deny claims filed for $25,000 or less.
(5) SJAs of GCMs in PACAF and USAFE have delegated authority to settle claims payable, or deny claims filed for $15,000 or less.
(b) Redelegation of authority. The Chief, Claims and Tort Litigation Division may redelegate his or her authority to Staff Judge Advocates. 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. The Chief, AFLOA/JACC may redelegate up to $25,000, in writing, to paralegals assigned to AFLOA/JACC and, upon request, may authorize installation Staff Judge Advocates to redelegate their settlement authority to paralegals under their supervision.
(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 or deny claims for the following reasons without AFLOA/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 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.
(9) 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.
(10) Medical malpractice.
[55 FR 2809, Jan. 29, 1990, as amended at 56 FR 1574, Jan. 16, 1991. Redesignated and amended at 81 FR 83690, Nov. 22, 2016]
§ 842.33
Filing a claim.
(a) Elements of a proper claim. A claim is must be filed on a Standard Form 95 or other written document. It must be signed by the Claimant or authorized agent, be for money damages in a sum certain, and lay out a basic statement as to the nature of the claim that will allow the Air Force to investigate the allegations contained therein.
(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.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83690, Nov. 22, 2016]
§ 842.34
Advance payments.
Subpart P of this part sets forth procedures for advance payments.
[81 FR 83690, Nov. 22, 2016]
§ 842.35
Statute of limitations.
(a) A claim must be filed in writing within 2 years after it accrues. It is deemed to be filed upon receipt by The Judge Advocate General, AFLOA/JACC, or a Staff Judge Advocate of the Air Force. A claim 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 Tort Claims Act should be applied with respect to the Military Claims Act. Upon receipt of a claim that properly belongs with another military department, the claim is promptly transferred to that department.
(b) The statutory time period excludes the day of the incident and includes the day the claim was filed.
(c) A claim filed after the statute of limitations has run is considered if the U.S. is at war or in an armed conflict when the claim accrues or if the U.S. enters a war or armed conflict after the claim accrues, and if good causes shows how the war or armed conflict prevented the claimant from diligently filing the claim within the statute of limitations. But in no case will a claim be considered if filed more than two years after the war or armed conflict ends.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83690, Nov. 22, 2016]
§ 842.36
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.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83690, Nov. 22, 2016]
§ 842.37
Who are proper claimants.
(a) Citizens and inhabitants of the United States. U.S. inhabitants includes dependents of the U.S. military personnel and federal civilian employees temporarily outside the U.S. for purposes of U.S. Government service.
(b) U.S. military personnel and civilian employees. Note: These personnel are not proper claimants for claims for personal injury or death that occurred incident to their service.
(c) Foreign military personnel when the damage or injury occurs in the U.S. Do not pay for claims under the Military Claims Act (MCA) for personal injury or death of a foreign military personnel that occurred incident to their service.
(d) States, state agencies, counties, or municipalities, or their political subdivisions.
(e) Subrogees of proper claimants to the extent they have paid for the claim in question.
[81 FR 83690, Nov. 22, 2016]
§ 842.38
Who are not proper claimants.
(a) Governments of foreign nations, their agencies, political subdivisions, or municipalities.
(b) Agencies and nonappropriated fund instrumentalities (NAFIs) of the U.S. Government.
(c) Subrogees of § 842.42(a) and (b).
(d) Inhabitants of foreign countries.
[81 FR 83690, Nov. 22, 2016]
§ 842.39
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, subject to the exceptions listed in this subpart.
(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 property damage of U.S. 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.
[55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32076, Aug. 7, 1990. Redesignated and amended at 81 FR 83690, Nov. 22, 2016]
§ 842.40
Claims not payable.
(a) Claims covered by the Federal Tort Claims Act (FTCA), Foreign Claims Act (FCA), International Agreements Claims Act (IACA), 10 U.S.C. 2734a and 2734b, Air Force Admiralty Claims Act (AFACA), 10 U.S.C. 9801-9804, 9806, National Guard Claims Act (NGCA), 32 U.S.C. 715, or covered under the Military Personnel and Civilian Employees' Claims Act (MPCECA), 31 U.S.C. 3701, 3721.
(1) MCA claims arising from noncombat activities in the U.S. are not covered by the FTCA because more elements are needed to state an FTCA claim than are needed to state a claim under the MCA for noncombat activities. All FTCA claims are based on elements of traditional tort liability (i.e., duty, breach, causation, and damages); that is, they are fault based. Noncombat activity claims under the MCA are based solely on causation and damages. Because MCA claims for noncombat activities are not fault based, they are not covered by the FTCA.
(2) Claims for incident-to-service damage to vehicles caused by the negligence of a member or employee of the armed forces acting in the scope of employment are paid under the MCA, instead of the Military Personnel and Civilian Employees' Claims Act.
(b) Arises with respect to the assessment or collection of any customs duty, or the detention of any goods or merchandise by any U.S. officer of customs or excise, or any other U.S. law enforcement officer. Note: This includes loss or damage to property detained by members of the Security Forces or Office of Special Investigation (OSI).
(c) Is cognizable under U.S. admiralty and maritime law, to include:
(1) The Suits in Admiralty Act, 46 U.S.C. 30901 and following.
(2) The Death on the High Seas Act, 46 U.S.C. 30301 and following.
(3) The Public Vessels Act, 46 U.S.C. 31101 and following.
(4) Exception: Claims arising from noncombat activities may be paid under the MCA, even if they are also cognizable under paragraphs (c)(1) through (3) of this section.
(d) Arises out of assault, battery, false imprisonment, false arrest, malicious prosecution, or abuse of process. Exception: Unless such actions were committed by an investigative or law enforcement officer of the U.S. who is empowered by law to conduct searches, seize evidence, or make arrests for violations of federal law.
(e) Arises out of libel, slander, misrepresentation, or deceit.
(f) Arises out of an interference with contract rights.
(g) Arises out of the combat activities of U.S. military forces.
(h) Is for the personal injury or death of a member of the Armed Forces of the U.S. incident to the member's service.
(i) Is for the personal injury or death of any person for workplace injuries covered by the Federal Employees' Compensation Act, 5 U.S.C. 8101, and following.
(j) Is for the personal injury or death of any employee of the US, including nonappropriated fund employees, for workplace injuries covered by the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901, and following.
(k) Is for a taking of property, e.g., by technical trespass or over flight of aircraft.
(l) Is for patent or copyright infringement.
(m) Results wholly from the negligent or wrongful act of the claimant.
(n) Is for the reimbursement of medical, hospital, or burial expenses furnished at the expense of the US, either directly or through contractual payments.
(o) Arises from contractual transactions, express or implied (including rental agreements, sales agreements, leases, and easements), that:
(1) Are payable or enforceable under oral or written contracts; or
(2) Arise out of an irregular procurement or implied contract.
(p) Is for the personal injury or death of military or civilian personnel of a foreign government incident to their service.
(q) 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 USAF/JACC. Claims under the noncombat activities provision of this subpart may be paid even if this paragraph (q) applies. Is based on the exercise or performance of, or the failure to exercise or perform, a discretionary function or duty on the part of a federal agency or a Federal Government employee, whether or not the discretion involved is abused. Do not deny claims solely on this exception without the prior approval of USAF/JACC. Exception: Claims under the noncombat activities provision may be paid even if this paragraph (q) applies.
(r) Is not in the best interests of the US, is contrary to public policy, or is otherwise contrary to the basic intent of the MCA. Examples include, but are not limited to, when a claimant's criminal conduct or failure to comply with a nonpunitive regulation is a proximate cause of the loss. Prior approval must be obtained from USAF/JACC before denying claims solely on this exception.
(s) Arises out of an act or omission of any employee of the government in administering the provisions of the Trading With the Enemy Act, 50 U.S.C. app. 1-44.
(t) Is for damages caused by the imposition or establishment of a quarantine by the U.S.
(u) Arises from the fiscal operations of the Department of the Treasury or from the regulation of the monetary system.
(v) Arises from the activities of the Tennessee Valley Authority.
(w) Arises from the activities of a federal land bank, a federal intermediate credit bank, or a bank for cooperatives.
(x) Is for the personal injury or death of any government contractor employee for whom benefits are available under any worker's compensation law, or under any contract or agreement providing employee benefits through insurance, local law, or custom when the U.S. pays insurance either directly or as part of the consideration under the contract. Only USAF/JACC may act on these claims.
(y) Is for damage, injury or death from or by flood or flood waters at any place.
(z) Is for damage to property or other losses of a state, commonwealth, territory, or the District of Columbia caused by Air National Guard 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.
(aa) Is for damage to property or for any death or personal injury arising out of activities of any federal agency or employee of the government in carrying out the provisions of the Disaster Relief Act of 1974 (42 U.S.C. 5121, et seq.), as amended.
(bb) Arises from activities that present a political question.
(cc) Arises from private, as distinguished from government, transactions.
(dd) Is based solely on compassionate grounds.
(ee) Is for rent, damage, or other expenses or payments involving the regular acquisition, use, possession, or disposition of real property or interests therein by and for the U.S.
(ff) Is presented by a national, or a corporation controlled by a national, of a country at war or engaged in armed conflict with the U.S., 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 U.S. 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 U.S. otherwise payable. Forward claims considered not payable under this paragraph (ff), with recommendations for disposition, to USAF/JACC.
(gg) Arises out of the loss, miscarriage, or negligent transmission of letters or postal matter by the U.S. Postal Service or its agents or employees.
(hh) Is for damage to or loss of bailed property when the bailor specifically assumes such risk.
(ii) Is for property damage, personal injury, or death occurring in a foreign country to an inhabitant of a foreign country.
(jj) Is for interest incurred prior to the payment of a claim.
(kk) Arises out of matters which are in litigation against the U.S.
(ll) Is for attorney fees or costs in connection with pursuing an administrative or judicial remedy against the U.S. or any of its agencies.
(mm) Is for bail, interest or inconvenience expenses incurred in connection with the preparation and presentation of the claim.
(nn) Is for a failure to use a duty of care to keep premises owned or under the control of the U.S. safe for use for any recreational purpose, or for a failure by the U.S. to give any warning of hazardous conditions on such premises to persons entering for a recreational purpose unless there is a willful or malicious failure to guard or warn against a dangerous condition, or unless consideration was paid to the U.S. (including a nonappropriated fund instrumentality) to use the premises.
[81 FR 83691, Nov. 22, 2016]
§ 842.41
Applicable law.
This section provides the existing law governing liability, measurement of liability and the effects of settlement upon awards.
(a) Federal preemption. Many of the exclusions in this subpart are based upon the wording of 28 U.S.C. 2680 or other federal statutes or court decisions interpreting the Federal Tort Claims Act. Federal case law interpreting the same exclusions under the Federal Tort Claims Act is applied to the Military Claims Act. Where state law differs with federal law, federal law prevails.
(b) Extent of liability. Where the claim arises is important in determining the extent of liability.
(1) Applicable law. When a claim arises in the United States, its territories or possessions, the same law as if the claim was cognizable under the FTCA will be applied.
(2) Claims in foreign countries. 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 federal case law interpreting the FTCA. Where the FTCA requires application of the law of the place where the act or omission occurred, settlement authorities will use the rules set forth in the currently adopted edition of the Restatement of the Law, published by the American Law Institute, to evaluate the liability of the Air Force, subject to the following rules:
(i) 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.
(ii) Absolute or strict liability will not apply for claims not arising from noncombat activities.
(iii) Hedonic damages are not payable.
(iv) The collateral source doctrine does not apply.
(v) Joint and several liability does not apply. Payment will be made only upon the portion of loss, damage, injury or death attributable to the Armed Forces of the United States.
(vi) Future economic loss will be discounted to present value after deducting for federal income taxes and, in cases of wrongful death, personal consumption.
(c) Claims not payable. Do not approve payment for:
(i) Punitive damages.
(ii) Cost of medical or hospital services furnished at the expense of the United States.
(iii) Cost of burial expenses paid by the United States.
(d) Settlement by insurer or joint tortfeasor. When settlement is made by an insurer or joint tortfeasor 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.
[81 FR 83692, Nov. 22, 2016]
§ 842.42
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 that issued the denial letter within 60 days of the date the denial letter was mailed. The settlement authority may waive the 60 day 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. Any higher settlement authority may act upon an appeal.
(d) The decision of the appellate authority is the final administrative action on the claim.
[55 FR 2809, Jan. 29, 1990. Redesignated and amended at 81 FR 83690, 83692, Nov. 22, 2016]
§ 842.43
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 U.S. military personnel or civilian employees whose conduct gave rise to government liability.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83690, Nov. 22, 2016]
§ 842.44
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.
[55 FR 2809, Jan. 29, 1990. Redesignated at 81 FR 83690, Nov. 22, 2016]