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The appeal must be submitted within 30 days of
receipt by the claimant of notice of action on the
claim.
Appeal
A claim that is disapproved in whole or in part may
be appealed by the claimant at any time within 30 days
after receipt of notification of disapproval. An appeal
will be in writing and state the grounds relied upon. An
appeal is not an adversary proceeding and a hearing is
not authorized; however, the claimant may obtain and
submit any additional evidence or written argument for
consideration by the appellate authority.
Processing of the appeal may be delayed pending
further efforts by the adjudicating authority to settle the
claim. Where the adjudicating authority does not reach
a final agreement on an appealed claim, he or she will
send the entire claim file to the next higher settlement
authority who is the appellate authority for that claim.
The appellate authority will notify the claimant in
writing of the determination on appeal; that such
determination constitutes the final administrative action
on the claim; and there is no right to sue under the MCA.
EXAMPLES
1. Facts.
A Navy aircraft crashed, utterly
demolishing an automobile owned by Mr. Smashed, a
civilian. Mr. Smashed has presented an MCA claim for
the fair market value of his car. Can he recover?
Solution. Yes. This claim falls under the second
theory of MCA liability—an incident arising out of
noncombat activities of a peculiarly military nature.
None of the exclusions from liability apply. This
incident does not involve an exempted governmental
activity. It is not covered by any other claim statute. The
FTCA would not apply because the facts do not indicate
any negligence by any federal employee. (If the crash
had been caused by the Navy pilot’s negligence, it would
be compensable under the FTCA.) Mr. Smashed does
not belong to an excluded class of claimants. There is
no evidence that his actions in any way caused the
incident; therefore, Mr. Smashed can recover the value
of his car-less any salvage value.
2. Facts. While conducting gunnery exercises
aboard USS Shotinthedark, naval personnel
miscalculated and accidentally shot a shell into the fleet
parking lot.
The shell completely destroyed an
automobile owned by ENS Noluck who was on duty
aboard one of the ships tied up at a nearby pier. ENS
Noluck has filed an MCA claim. Is this claim payable
under the MCA?
Solution. No. Although this incident involved
noncombatant activities of a peculiarly military nature
and was also caused by naval personnel acting within
the scope of employment, the MCA does not apply. A
claim that is cognizable under the Military Personnel
and Civilian Employees’ Claims Act is not payable
under the MCA. Because compensation for this motor
vehicle loss is available as a personnel claim, it is not
payable under the MCA. However, ENS Noluck’s
recovery will be limited to the $2,000 amount prescribed
under the personnel claims regulations and not the
greater amount payable under the MCA.
Special points. Perhaps you were thinking that,
since the Military Personnel and Civilian Employees’
Claims Act limits payments for automobile claims to
$2,000, the MCA could be used to pay the amount of
ENS Noluck’s loss that is in excess of the $2,000 limit.
No such luck.
JAG has interpreted the phrase
cognizable under the Military Personnel and Civilian
Employees’ Claims Act to mean payable under the
Military Personnel and Civilian Employees’ Claims Act.
Accordingly, in this particular situation, the Military
Personnel and Civilian Employees’ Claims Act is
considered to be the exclusive remedy available to pay
for the damages to ENS Noluck’s automobile.
CLAIMS AGAINST THE
GOVERNMENT-SPECIALIZED
CLAIMS STATUTES
The general claims statutes discussed earlier in this
chapter cover abroad range of losses and incidents. The
specialized claims statutes are limited to certain types of
losses suffered by specific classes of claimants
occurring under certain specific circumstances. The
specialized claims statutes interact with the general
claims statutes in two ways. First, they may permit
compensation for certain losses, claimants, or incidents
not covered by one of the general claims statutes. Some
of the specialized statutes were enacted to plug gaps in
the general claims statutes. Second, the specialized
claims statutes often act as exclusions from liability
under general statutes.
For example, a claim that
otherwise would be payable under the FTCA or the
MCA cannot be paid under those statutes if it is also
cognizable under the Military Personnel and Civilian
Employees’ Claims Act.
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