Discretionary Activities of Federal Agents Vis-A-Vis the Federal Tort Claims Act and the Military Claims Act: Are Discretionary Activities Protected at the Administrative Adjudication Level, and to What Extent Should They Be Protected

• Author: Lieutenant Commander Clyde A. Haig
• Pages: 04

110 MILITARY LAW REVIEW [Vol. 183

DISCRETIONARY ACTIVITIES OF FEDERAL AGENTS VIS-À-VIS THE FEDERAL TORT CLAIMS ACT AND THE

MILITARY CLAIMS ACT: ARE DISCRETIONARY ACTIVITIES PROTECTED AT THE ADMINISTRATIVE ADJUDICATION LEVEL, AND TO WHAT EXTENT SHOULD THEY BE PROTECTED?

LIEUTENANT COMMANDER CLYDE A. HAIG1

A prominent exception to the limited waiver of sovereign immunity contained in the Federal Tort Claims Act (FTCA)2 is the discretionary function exception (DFE).3 Although the U.S. Supreme Court repeatedly has emphasized the broad reach of the DFE in shielding the government from liability,4 the exception has been applied inconsistently at the administrative adjudication level by operation of the Military Claims Act (MCA).5 Unlike the FTCA, the MCA does not contain the DFE,6 but still provides for compensation in many of the same situations as the

FTCA.7 As a result, a claim that is expressly barred under the FTCA (based upon the premise that it stems from a discretionary governmental function) may be compensable under the MCA.8 Given the reach of the DFE in shielding the government from liability in FTCA practice,9

whether the exception should apply to the MCA should not be a matter of ad hoc speculation or agency discretion; rather, the MCA itself should contain specific guidance on the issue. This article demonstrates the thematic inconsistency between the MCA and the FTCA with respect to discretionary governmental activities, and offers a proposal for resolving this inconsistency.

The tragic shooting death of a teenager by a U.S. Marine Corps anti-drug patrol in Texas10 is demonstrative of the need for legislative guidance concerning the applicability of the DFE to claims adjudicated at the agency level under the MCA. While the incident drew international attention to a number of issues, including the question of criminal responsibility for the mishap and the propriety of using military forces to assist the border patrol in drug interdiction operations,11 it also raised

issues concerning the settlement of claims under the MCA at the agency level.12 The U.S. Navy and the Department of Justice (DOJ) settled claims submitted by the victim's family after the incident.13 While the specific details of the settlement are protected by federal privacy laws, the government denied any wrongdoing or fault in causing the victim's death:

Asked why federal officials agreed to a settlement . . . [DOJ] spokeswoman Chris Watney said Tuesday in a telephone interview from Washington, D.C., that federal privacy laws prevented her from commenting. However, Watney said the Military Claims Act allows federal military organizations to "settle claims caused by their activities, without showing the [sic] fault on the part of any person, so long as the injured person, or claimant, was not at fault." In the settlement, the Marine Corps, which is under the Department of the Navy, denied any liability in Hernandez's death.14

Addressing the implementation of the DFE at the administrative adjudication level, this paper will assess the putative resolution of the Hernandez claims had they been adjudicated under MCA implementing regulations of the other military departments.15 Following this

assessment is a proposed resolution that addresses the inconsistent application of the DFE to the MCA at the administrative level.16

1. The Statutory Framework of the FTCA and MCA

   To fully understand how the DFE has been inconsistently applied at the administrative adjudication level, one must first examine the context of the principal provisions of the FTCA and MCA. The following sections provide a background and statutory framework for this analysis.

   1. Basis for Governmental Liability Under the FTCA

      The FTCA provides that a party may commence a private cause of action against the United States in district court for claims based on the negligent or wrongful conduct of a government agent acting within the scope and course of his employment.17 Additionally, the FTCA provides for the administrative adjudication of claims brought against the United States, and requires that a claimant exhaust these administrative remedies before properly filing suit against the government:

      [a]n action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his

      office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.18

      While the FTCA dictates "procedural and substantive differences between a suit against a private party and one against the United States,"19 it is fundamentally a limited waiver of sovereign immunity providing for a cause of action against the United States sounding in tort:

      [s]ince no suit may be brought against the sovereign without its consent, a statutory waiver of immunity is a sine qua non to providing a judicial remedy for tort claims against the Government. The [Federal] Tort Claims Act is such a statutory waiver. "The very purpose of the [Federal] Tort Claims Act was to waive the Government's traditional all-encompassing immunity from tort actions and to establish novel and unprecedented governmental liability."20

      FTCA practice is bound by a number of additional requirements and restrictions, some of which are statutory, while others are based upon court decisions. For instance, any claim arising in a foreign country is specifically excluded from the purview of the FTCA.21 Further, the liability of the United States is determined "in accordance with the law of the place where the act or omission occurred."22 The status of the claimant is also a factor in FTCA practice. For instance, federal civilian

      employees are limited to the benefits they receive under the under the Federal Employees' Compensation Act (FECA) for injuries incurred during the course of their employment.23 Similarly, employees of Non-Appropriated Fund Instrumentalities are limited to the benefits they receive under the Longshore and Harbor Workers' Compensation Act for their employment-related injuries.24 The most hotly contested liability exclusion in FTCA practice is the so-called Feres bar. Under the Feres doctrine, claims stemming from the injuries (or death) of service members are not compensable under the FTCA if the injury or death is deemed "incident to service."25

      The status of a tortfeasor may also act as a bar to recovery under the FTCA. Liability of the government under the FTCA will only lie if the injury at issue is attributable to the tortious conduct of a governmental agent or employee acting within the scope and course of his employment.26 With limited exception, the United States does not assume liability under the FTCA for the torts of its independent contractors.27

      While the foregoing requirements and exclusions are the subject of exhaustive exceptions and judicial interpretation,28 the FTCA is, in its most fundamental sense, a limited waiver of sovereign immunity that is "hedged with protections for the United States."29

   2. Bases for Compensation under the MCA

      Unlike the FTCA, the MCA does not provide for a private cause of action against the United States.30 Thus, instead of creating federal

      government "liability," the MCA compensates private parties in certain circumstances. Unlike the FTCA, the MCA applies worldwide, with the proviso that claims arising in the United States must first be considered under the FTCA.31 Further, claims arising in foreign territories are first considered under the Foreign Claims Act (FCA) before they are adjudicated under the MCA.32

      The most salient facet of the MCA impacting adjudication of claims involving discretionary governmental activities is the MCA's bifurcated compensation scheme. The MCA provides compensation for damages to (or loss of) property, personal injury, or death either (1) caused by an agent of the Army, Navy, Air Force, Marine Corps, or Coast Guard "acting within the scope of his employment," or (2) "incident to noncombat activities" of the U.S. Military Departments or Coast Guard.33 The MCA thus delineates two distinctly different categories of claims for which the government will provide compensation: those claims stemming from injury or damage caused by a government agent acting within the scope of his employment and those claims stemming from noncombat activities. The ramifications of this bifurcated compensation scheme are significant:

      If the claim is not incident to the noncombat activities of the military departments, the claimant must show the causative act or omission to be negligent, wrongful, or otherwise to involve fault. Contrariwise, if the claim is based upon a noncombat activity, the claimant need not show negligence, wrong, or fault; a showing of causation and damages suffered is all that is needed...if the claim is based upon a noncombat activity of the armed forces, it is not necessary to establish scope of employment . . .

      34

      While the "scope of employment" prong for recovery under the MCA is similar to the basis for recovery set forth in the FTCA,35 the

      FTCA contains no basis of recovery similar to the "noncombat activities" prong of the MCA. Though each of the services provides guidance on the meaning of noncombat activities, they all define the term in a consistent fashion. Pursuant to Navy claims regulations, noncombat activities are defined as follows:

      activities essentially military in nature, having little parallel in civilian pursuits, and in which the U.S. Government has historically...