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SCOPE OF LIABILITY
The government’s liability under the FCA is
somewhat parallel to that under the MCA. Liability is
based on two general theories: (1) loss caused by
military personnel and (2) loss incident to noncombat
military activities. The government’s liability under the
FCA is generally greater than under the MCA. On the
other hand, the FCA is more limited than the MCA in
terms of eligible claimants and territorial application.
Loss Caused by Military Personnel
Under the FCA, the government is liable for
personal injury, death, and property damage, including
both real and personal property, caused by military
members or civilian military employees. Unlike the
FTCA and the MCA, the scope of employment doctrine
does not apply except when the civilian employee is a
native foreign national (for example, a Spanish citizen
employed by the U.S. Government in Spain who must
be acting within the scope of employment for a possible
recovery under the FCA). Also, unlike FTCA claims,
the acts that caused the loss need not be wrongful or
negligent.
The government assumes liability for
virtually all acts ranging from mere errors in judgment
to malicious criminal acts.
Loss Incident to Noncombat Military Activities
The second theory of FCA liability is virtually
identical to the second basis for liability under the MCA.
The government assumes liability for personal injury,
death, or property damage, both real and personal
property, caused by, or incident to, noncombat military
activities. Such activities are peculiarly military, having
little parallel in civilian life, and involve situations in
which the federal government historically has assumed
liability. If such a loss incident to noncombat military
activities is payable both under the FCA and also under
the MCA, it will be paid under the FCA.
Effect of Claimant’s Negligence
A claimant whose negligent or wrongful conduct
partially or entirely caused the loss might be prevented
from recovery under the FCA. The effect, if any, of the
claimant’s contributory or comparative negligence is
determined by applying the law of the country where the
claim arose. Under such circumstances, the claimant
recovers under the FCA only to the extent that his or her
own courts would have permitted compensation.
Territorial Application
The FCA applies to claims arising outside the
United States, its territories, commonwealths, and
possessions. The fact that the claim arises in a foreign
country, but in an area that is under the temporary or
permanent jurisdiction of the United States (for
example, an overseas military base), does not prevent
recovery under the FCA.
Relationship to Claims Under Treaty or
Executive Agreement
Certain treaties and executive agreements, such as
Article VIII of the NATO Status of Forces Agreement,
contain claims provisions that may be inconsistent with
the FCA principles and procedures. When such treaty
or executive-agrccnwn (claims provisions conflict with
the FCA, the treaty or the executive agreement usually
governs.
In countries where such treaty or
cxccutivc-agreement provisions arc in effect, directives
of the cognizant area coordinator should be consulted
before processing any claims by foreign nationals.
EXCLUSIONS FROM LIABILITY
There are two general categories of exclusions from
FCA liability: excluded types of claims and excluded
classes of claimants.
Excluded Types of Claims
The following types of claims we not payable under
the FCA:
Claims that are based solely on contract rights or
breach of contract
Private contractual and domestic obligations of
individual military personnel or civilian
employees (private debt owed to foreign
merchant)
Claims based solely on compassionate grounds
Claims for support of children born out of
wedlock where paternity is alleged against a
service member
Claims for patent infringements
Claims arising directly or indirectly from combat
activities
Admiralty claims unless otherwise authorized by
JAG
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