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. Execution of statute or regulation. The FTCA
does not apply to any claim based on an actor omission
of a federal employee who exercises due care while in
the performance of a duty or function required by statute
or regulation.
. Discretionary governmental function.
The
FTCA does not apply to any claim based upon the
cxercise or performance of, or the failure to exercise or
perform, a discretionary governmental function.
Perhaps no single exclusion under the FTCA has
generated as much litigation as the discretionary
function exclusion. The key issue usually is whether the
government activity involved in the claim was a
discretionary function. The problem is complicated by
the fact that neither the FTCA nor any court has ever
formulated a comprehensive definition of discretionary
function. Each case must be decided on its own facts.
l Postal claims.
The FTCA does not apply to
claims for the loss, miscarriage, or negligent
transmission of letters or postal matters. Such claims,
under limited circumstances, may be payable under the
MCA.
. Detention of goods. The FTCA does not apply
to claims arising out of the detention of any goods or
merchandise by a federal law enforcement officer,
including customs of officials.
This exception is
commonly applied in situations where the claimant
seeks compensation for property seized during a search
for evidence.
This exclusion also prevents
compensation under the FTCA for alleged contraband
seized by law enforcement officers.
. Combatant activities in time of war.
The
combatant activities exclusion has three requirements:
the claim (1) must arise from activities directly
involving engagement with the enemy; (2) must be
conducted by the armed forces; and (3) occur during
timc of war (declared and undeclared). Combatant
activities are given a very strict meaning by the courts.
It does not include practice or training maneuvers, nor
any operations not directly involving engagement with
an enemy.
. Intentional torts. The government is not liable
under the FTCA for the following intentional torts:
assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract
rights. This exclusion will not protect the government
from liability for assaults, batteries, false
imprisonments, false arrests, abuses of process, or
malicious prosecutions committed by federal law
enforcement officers.
Claims Cognizable Under Other Claims
statutes
Certain claims cannot be paid under the FTCA
because they are cognizable under some other claims
statute. Although the claimant may still recover under
another statute, the amount may be significantly less
than under the FTCA. Also, the claimant may not have
the right under the other claims statute to sue the
government if the claim is denied. Examples of claims
cognizable under other situations and therefore not
payable under the FTCA include the following:
l Personnel claims. Claims by military personnel
or civilian federal employees for damage or loss to
personal property incident to service are cognizable
under the Military Personnel and Civilian Employees’
Claims Act.
. Admiralty claims.
Admiralty claims, arising
from incidents such as ship collisions, are usually
governed by the Suits in Admiralty Act and the Public
Vessel Act.
l Overseas claims.
Claims arising in a foreign
country arc not cognizablc under the FTCA, but may be
allowed under either the MCA or the FTCA.
. Injury or death to civilian federal employee.
Claims arising out of personal injury or death of a
civilian federal employee, while on the job, arc usually
covered by the Federal Employees’ Compensation Act.
Nonappropriated fund activity employees are
compensated under the Longshoremen’s and Harbor
Workers’ Compensation Act.
Excluded Claimants—Military Personnel
In Feres v. United States, the U.S. Supreme Court
held that military personnel cannot sue the federal
government for personal injury or death occurring
incident to military service.
The Supreme Court
reasoned that Congress did not intend the FTCA to apply
to military personnel because it had already provided
medical care, rehabilitation, and disability benefits for
them. Since 1950, the Feres doctrine has been applied
consistently by federal courts at all levels and was
reaffirmed by the Supreme Court in 1987.
The rationale for the Feres doctrine can be
explained by examining the policy reasons underlying
the doctrine proscribing governmental liability. The
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