Legal Issues: Making a Claim against Uncle Sam
By Mark F. Riley, Esquire
HYPOTHETICAL SITUATION
Colonel T.E. Lawrence (hereafter, "Tom"), an Army FAO, had just returned from a year of fun and
games in the Middle East. Late one Saturday afternoon, Tom's 16 year-old son, Wingate (hereafter,
"Winnie"), a straight-A student and star athlete, sprained the big toe of his left foot when he fell off a sofa
while watching (for the sixth time) "The Lion of the Desert." Tom loaded Winnie on the family camel and
they humped their way to the nearby the DoD hospital, Welostanother Army Medical Center. During a
"minor" surgical procedure performed by the attending emergency room physician, Dr. (Major)
Oopsyslipsy, Winnie developed severe seizures and then sank into a coma. After Winnie emerged from his
coma ten days later, it was determined that he had developed permanent mental and physical disabilities,
faces months if not years of rehabilitative therapy, and will be on medication for the rest of his life. Tom
and his family are now facing the prospect of financial disaster because of this tragedy. Rocket scientist
that Tom is, he thinks that someone at the hospital might have made a serious mistake. Is there anything
Tom can do about this problem?
ANSWER
Congress enacted the Federal Tort Claims Act (FTCA) in 1946 in order to provide an avenue
whereby victims of torts (private or civil wrongs or injuries) committed by the U.S. Government
can obtain remedies for the harm done to them. The FTCA, with a number of significant exceptions and
exclusions I will discuss later, waives the Government's sovereign immunity to tort liability and makes the
Government liable in the same manner and to the same extent as a private person under the same
circumstances. Under the FTCA, a victim can obtain financial compensation ("damages" in legalese) for
the loss or damage of personal property or for personal injury or death caused by the wrongful or negligent
act of a U.S. Government employee who was acting within the scope of his employment. Examples of
situations in which an FTCA claim may be cognizable include medical malpractice by a military or civil
service doctor, a "slip and fall" on the wet floor in the commissary, or being struck by a Government
vehicle. Thus, Winnie may be eligible for compensation from the Government. However, he will need to
demonstrate that he suffered an injury, that the injury resulted from the negligence or wrongdoing of a
Government employee, and that the employee was acting within the scope of his Government employment
at the time he caused the injury.
In order to proceed under the FTCA, Winnie (the "claimant"), or Winnie's agent acting on his behalf,
must file a written administrative claim with the responsible Government agency, in this case, the
Department of the Army. If Winnie's agent (i.e., Tom or his attorney) files the claim for Winnie, he must
have a valid Power of Attorney from Winnie. The claim must be filed not later than two (2) years after the
date the injury occurred or the date Winnie learned of the injury or its cause (the "Statute of Limitations"
period). There is no requirement that Winnie know that the injury resulted from a negligent or wrongful
act or omission. Claims are usually submitted on SF Form 95 (Claim for Damage, Injury, or Death), to
which supporting documents can be attached. However, as long as Winnie's claim is in writing, there is no
requirement that it be made on SF Form 95. The claim must describe the facts and circumstances of the
injury and the act or omission which caused it in sufficient detail to permit an investigation thereof, state a
specific dollar amount of damages (the "sum certain"), and be signed by either Winnie or his legal
representative. The claim may be submitted either through the mail or by facsimile to the appropriate
agency, which, in this hypothetical case, is the Army.
Once the administrative claim is filed, the Government agency has six months within which to
investigate the claim and to either approve it, negotiate a compromise settlement, or deny the claim.
During this period, the claimant cannot file suit against the United States Government. If, at the end of the
six-month period, the claimant is satisfied that the Government agency is investigating and negotiating in
good faith, the administrative time period will be automatically extended until the Government takes "final
administrative action." If the Government does take final administrative action and the claimant is
dissatisfied with the Government's action, the claimant has six months from the date of the certified letter
notifying him of the final administrative action to file suit against the Government in Federal District
Court. If the initial six-month period expires without the Government taking final administrative action, the
claimant may treat the Government's inaction as a denial of his claim and file suit in Federal District Court,
regardless of the status of ongoing negotiations with the Government. When the claimant files suit, he
becomes the "plaintiff" and the Government is the "defendant." As soon as Plaintiff Winnie files suit, the
Federal agency (in Winnie's case, the Department of the Army) loses control of the claim. Thereafter, the
Department of Justice or the U.S. Attorney will represent the Government both during settlement
negotiations and, if negotiations break down, at trial.
Although the case will be litigated in Federal court, the FTCA provides that state substantive law
applies. In other words, if the injury occurred at a military hospital in Virginia, then Virginia tort law will
apply. This can dramatically affect the plaintiff's ability to prevail in his claim against the Government.
For example, negligence that may be actionable under Maryland law may not be actionable under Georgia
law. Thus, if two plaintiffs suffer an identical injury under identical circumstances in military hospitals in
Georgia and Maryland, respectively, then only the plaintiff who was injured in Maryland will be able to
file suit. Likewise, some states have lower ceilings than others on the damages that may be awarded in
various types of tort actions.
As I mentioned at the beginning of this article, there are many exclusions and exceptions to the
FTCA, several of which may impact on the ability of some of my fellow FAOs to make claims against the
Government. I'll briefly mention a few of them.
The best known (and from the perspective of many active duty military personnel, the most unfair)
exception to the FTCA is the "Feres Doctrine" (Feres v.
U.S., 340 U.S. 135 (1950)). The
Feres Doctrine bars members of the U.S. armed forces from making claims against the U.S.
Government for personal injury or death occurring "incident to service." The courts have held that the
term "incident to service" means more than simply performing military duties. Thus, if the service member
suffered the harm either while on military property, when he was on duty, as the result of a command
relationship, or while using a military benefit (i.e., space-available transportation, commissary privileges),
then he is barred from making a claim against or suing the Government. Probably the most well publicized
application of the Feres Doctrine is the barring of military malpractice claims by military personnel.
If an active duty soldier, sailor, or airman is injured as the result of the malpractice of a military or DoD
civilian doctor, then he is barred from making a claim against the Government.
Fortunately, the Feres Doctrine does not apply to military dependents or retirees. They are
treated like all other civilians under the FTCA. If your spouse slips in the commissary, is a victim of
malpractice in a military hospital, or is struck by an Abrams tank, she may be able to file an FTCA claim
against the Government. In the above hypothetical, since Dr. Oopsyslipsy is an Army officer/Government
employee, Winnie may file a claim under the FTCA. However, the question of who exactly is a
"Government employee" in a DoD hospital can be problematic. As a result of the military draw down of
the last decade, many of the healthcare providers in military hospitals are no longer either active duty
military personnel or federal civilian employees. Today, many of the doctors, nurses, and other medical
personnel serving in DoD hospitals are independent contractors or employees of independent contractors.
These independent contractor healthcare providers are not supervised by the Government and are covered
by their own malpractice insurance. If the person who negligently caused the injury (in legalese, the "tort-
feasor") is an independent contractor, the victim's remedy is to sue the independent contractor rather than
to file a claim against the Government under the FTCA.
There are other important exclusions to the right to sue the Government under the FTCA. For
example, the Government generally cannot be sued under the FTCA and will not pay claims on torts
committed by Government employees in foreign countries or resulting from combat operations. So, if
young Winnie's injury had occurred in an U.S. Army hospital in Germany, he would have been barred
from filing suit under the FTCA. However, he may have recourse under another claim statute such as the
Military Claims Act.
Other FTCA exclusions include when a Government employee commits an intentional tort, such as
assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, on interference with contract rights. As in the case of independent contractors in
a Government hospital, the remedy may be to sue the tort-feasor individually. However, the courts have
supported the right of a victim to file an FTCA claim against the Government for an assault or battery
committed by a federal investigative or law enforcement officer empowered by law to execute searches,
seize evidence, or arrest persons for violations of Federal law. Thus, the Government may be liable when a
military policeman commits an assault or a battery.
As you can see, this is a fairly complicated area of the law. The foregoing discussion only scratches
the surface, and for every "rule" I have listed, there may be one or more exceptions. This article is of an
informational nature and is not designed to answer all of the questions you may have on the subject. Every
case has its own unique set of facts and circumstances. If you believe that you have a legitimate claim
against the Government, particularly if it involves serious injury or death, you should seek competent legal
counsel.
Lieutenant Colonel (Ret.) Riley is a former Military Intelligence officer and Sub-Saharan Africa FAO.
In addition to two
overseas tours in the Defense Attache System, his military career included assignments
with the 4th Infantry Division (M); United States Army Operational Group, USAINSCOM;
the Defense Intelligence Agency; and the Central Intelligence Agency. He currently practices law in
Annapolis, Maryland, focusing on criminal defense, tort litigation (plaintiff), national security law, and
matters affecting active duty military, retirees, veterans and their dependents. This is the first installment
of a regular column to be written by LTC Riley for the F.A.O. Journal. Should any F.A.O. Journal readers
desire him to address a particular legal topic in future articles, he can be contacted via e-mail at
mrileyesq@aol.com.
1999, Foreign Area Officer Association
Springfield, Virginia
Maintained by LTC Steve
Gotowicki.
http://www.faoa.org