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Claims  Cognizable  Under  Other  Claims Statutes
Legalman 1 & C - Navy Lawyer / Jag training guide manuals
Contents of the Claim
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: 12-5 l l l l If The member must have been off duty. The  member  must  not  have  been  aboard  a military installation. The member must not have been engaged in any military  duty  or  mission. The member must not have been directly subject to military orders or discipline. 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. MEASURE  OF  DAMAGES The  phrase  measure  of  damages  refers  to  the method by which the amount of a claimant’s recovery will be determined. In FTCA cases, the measure of damages   will   be   determined   by   the   law   of   the jurisdiction  where  the  incident  occurred.  For  example, the measure of damages for a claim arising out of a tort that  occurred  in  Maryland  will  be  determined  by Maryland  law. When  the  local  law  conflicts  with applicable federal law, however, the federal statute will govern.

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