Justice will represent the Department of the Navy in
court, naval judge advocates assist by preparing
litigation reports summarizing the pertinent facts in the
The following examples demonstrate the operation
of legal principles governing FTCA claims:
1. Facts. YN3 Daytona, the commands duty
driver, was on an authorized run in Pensacola, Florida,
when he was involved in an auto accident with Mr.
Lucky. The police report clearly indicates that the
accident was caused by YN3 Daytonas negligent failure
to stop at a red light and that there was nothing Mr.
Lucky could have done to avoid the collision. Mr.
Lucky has filed, within 2 years of the accident, an FTCA
claim for $75,000 damageincluding property damage
to his automobile, medical expenses, and punitive
damages. Can he collect?
Solution. Yes (except for the punitive damages).
The accident was caused by the negligence of a
government employee, YN3 Daytona, who was acting
within the scope of his federal employment. None of
the exclusions from liability apply. The claim does not
arise out of an excluded governmental activity. It is not
cognizable under any other claims statute and the
claimant is not a member of any excluded class of
claimants. Therefore, this claim is cognizable under the
FTCA, Punitive damages arc excluded from FTCA
compensation. Because the claim is for $75,000, it can
be paid by a local adjudicating authority only if Mr.
Lucky is willing to accept $20,000 or less in full
settlement of his claim.
Otherwise, an adjudicating
authority in OJAG will approve his claim.
2. Facts. Mrs. Shimmy, the dependent wife of an
active duty naval officer, underwent surgery at the Naval
Hospital, Portsmouth, Virginia. The surgeon, CDR
Badknife, negligently severed a nerve in her neck. At
first, Mrs. Shimmy was paralyzed from the neck down,
but after 5 months treatment and rehabilitation at the
Naval Hospital she regained complete use of her arms,
legs, and trunk. She has lost 5 months wages from her
civilian job, for which she was ineligible for state
disability compensation. Also, she suffers from slight
residual neurological damage that causes her shoulders
to twitch involuntarily. This twitching is permanent.
Mrs. Shimmy has presented an FTCA claim. Can she
Solution. Yes (from the United States, but not from
Dr. Badknife), The paralysis and lasting damage were
caused by the negligent acts of CDR Badknife, a federal
employee acting within the scope of his employment.
None of the three general types of exclusions from
FTCA liability apply. The Feres doctrine does not apply
to this claim because it involved personal injury to a
military dependent not to active duty military personnel.
Therefore, this claim is payable under the FTCA. The
value of medical care and rehabilitation services Mrs.
Shimmy received at the Naval Hospital will be deducted
from her compensation; however, she will be
compensated for all other nongovernmental medical
services as well as for the pain and suffering she
endured, the wages she has lost already (and likely will
lose in the future), and the permanent nature and
disfigurement of her injury. No claim will lie against
CDR Badknife individually.
MILITARY CLAIMS ACT
Like the FTCA, the Military Claims Act, 10 U.S.C.
§ 2733 (1982) (MCA), compensates for personal injury,
death, or property damage caused by activities of the
federal government. MCA claims are limited to two
general types: (1) injury, death, or property damage
caused by military personnel or civilian employees
acting within the scope of their employment and (2)
injury, death, or property damage caused by
noncombatant activities of a peculiarly military nature.
The MCA provides compensation for certain claims
that are not payable under the FTCA. First, its
application is worldwide.
Also, the claimant has no
right to sue the government if his or her MCA claim is
denied by the adjudicating authority. Finally, unlike the
FTCA that creates statutory rights for claimants, the
MCA is operative only under such regulations as the
Secretary of a military department may prescribe.
Each service Secretary has issued regulations stating
under what circumstances claims will be paid by his or
her department under the MCA. A claimant has no
greater rights than what is prescribed by each services
SCOPE OF LIABILITY
The MCA is limited to two rather broad categories
those arising from the acts of military
employees in the scope of their employment and those
incident to noncombatant activities of a peculiarly
The Department of the Navy is liable under the
MCA for injury, death, or property damage caused by
its military members or civilian employees acting within