32 C.F.R. Subpart M—Claims Under the National Guard Claims Act (32 U.S.C. 715)
Title 32 - National Defense
This subpart explains how to settle claims against the United States arising out of the noncombat activities of the Air National Guard (ANG), when its members are acting within the scope of their employment and performing duty under 32 U.S.C. Contact HQ USAF/JACC for guidance on any claim for property damage, injury or death by the ANG which accrued prior to 29 December 1981. (a) Appeal. An appeal is a request by the claimant or claimant's authorized agent to reevaluate the final decision made on a claim. A request for reconsideration is considered as an appeal. (b) Air National Guard (ANG). The federally recognized Air National Guard of each state, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, and Guam. (c) ANG member. An ANG member is one who is performing duty under 32 U.S.C., section 316, 502, 503, 504, or 505 for which the member is entitled to pay from the United States or for which the member has waived pay from the United States. (d) ANG duty status—(1) Active federal service. ANG members may serve on active Federal duty under 10 U.S.C. to augment the active Air Force under certain circumstances or for certain types of duty or training (e.g., overseas training exercises and ANG alert duty). Duty under 10 U.S.C. does not fall under this subpart. (2) Federally funded duty. ANG members perform specified federally funded duty or training under 32 U.S.C. such as weekend drills, annual training, field exercises, range firing, military schooling, full time unit support, or recruiting duties. Duty under 32 U.S.C. falls under this subpart for noncombat activities. (3) State duty. State duty is duty not authorized by federal law but required by the governor of the state and paid for from state funds. Such duty includes civil emergencies (natural or other disasters), civil disturbances (riots and strikes), and transportation requirements for official state functions, public health, or safety. State duty does not fall under this subpart. (e) Compromise. A compromise is an agreed settlement based upon the facts, the law, and the application of the law to the facts. (f) Final denial. A final denial is a letter from the settlement authority to the claimant or authorized agent advising of the decision to deny the claim. (g) Noncombat activity. Noncombat activity is an act, other than combat, war or armed conflict, which is particularly military in character and has little parallel in the civilian community. (h) ANG technicians. An ANG technician is a Federal employee employed under 32 U.S.C. 709. Tort claims arising out of his or her activity are settled under the Federal Tort Claims Act (FTCA). This paragraph outlines the levels of authority authorized to settle claims brought under the National Guard Claims Act (32 U.S.C. 715). (a) Settlement authority. (1) The Secretary of the Air Force has authority to: (i) Settle a claim for $100,000 or less. (ii) Settle a claim for more than $100,000, paying the first $100,000 and reporting the excess to the General Accounting Office for payment. (iii) Deny a claim in any amount. (2) The Judge Advocate General has delegated authority to settle a claim for $100,000 or less, and deny a claim in any amount. (3) The following individuals have delegated authority to settle a claim for $25,000 or less, and deny a claim in any amount: (i) The Deputy Judge Advocate General. (ii) The Director of Civil Law. (iii) The Chief, Deputy Chief, and Branch Chiefs, Claims and Tort Litigation Staff. (4) The SJA of 9AF for CENTCOM and the SJAs of USAFE and PACAF have delegated authority to settle claims payable or deny claims filed for $25,000 or less. (5) SJAs of single base GCMs, GCMs in PACAF and USAFE and each Air Force base, station or fixed installation have delegated authority to settle claims payable, and deny claims filed, for $15,000 or less. (b) Redelegation of authority. A settlement authority may redelegate up to $25,000 of settlement authority to a subordinate judge advocate or civilian attorney. This redelegation must be in writing and can be for all claims or limited to a single claim. (c) Appellate authority. Upon appeal a settlement authority has the same authority to settle a claim as that specified above. However, no appellate authority below the Office of the Secretary of the Air Force may deny an appeal of a claim it previously denied. (d) Authority to reduce, withdraw, and restore settlement authority. Any superior settlement authority may reduce, withdraw, or restore delegated settlement authority. (e) Settlement negotiations. A settlement authority may settle a claim filed in any amount for a sum within the delegated settlement authority regardless of the amount claimed. Unsettled claims in excess of the delegated settlement authority are sent to the individual with higher settlement authority. Unsuccessful negotiations at one level do not bind higher authority. (f) Special exceptions. No authority below the level of HQ USAF/JACC may settle claims for: (1) Legal malpractice. (2) On the job personal injury or death of an employee of a government contractor or subcontractor. (3) Assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution committed by an investigative or law enforcement officer. This paragraph explains how to file a claim under the National Guard Claims Act. (a) How and when filed. A claim is filed when a federal military agency receives from a claimant or duly authorized agent a properly completed SF 95 or other written and signed demand for money damages in a sum certain. Claims belonging to another agency are promptly transferred to the correct agency. (b) Receipt of claims from State National Guard agencies. The Office of the State Adjutant General promptly sends claims it receives to the appropriate Air Force claims authority in whose geographic area the incident occurred. The report forwarded to the Air Force includes: (1) The date, place, and nature of the incident. (2) The names and organizations of ANG members involved, and the statutory duty status of the ANG members at the time of the incident (include copies of orders, if applicable). (3) A scope of employment statement from the supervisors of the ANG members involved. (4) The names of the claimants. (5) A brief description of any damage to private property, personal injuries, or death. (c) Claims investigations. (1) Upon receipt of a claim: (i) It is investigated by claims office personnel responsible for the geographic area where the incident causing the claim occurred. (ii) The investigative report includes a scope of employment statement and a copy of the orders authorizing the performance of duty by the ANG member. (2) The State Adjutants General designate an official or office as point of contact for Air Force claims personnel and furnish necessary personnel to assist the Air Force investigation, subject to the availability of funds and personnel. (d) Amending a claim. A claimant may amend a claim at any time prior to final action. To amend a claim the claimant or his or her authorized agent must submit a written, signed demand. Subpart Q of this part sets forth procedures for such payments. A claim must be filed in writing within 2 years after it accrues. (a) Federal, not state law, determines the time of accrual. A claim accrues when the claimant discovers or reasonably should have discovered the existence of the act that resulted in the claimed loss. (b) In computing the statutory time period, the day of the incident is excluded and the day the claim was filed is included. (c) A claim filed after the statute has run is considered if the United States is at war or in an armed conflict when the claim accrues; or if the United States enters a war or armed conflict after the claim accrues, and good cause is shown. No claimant may file a claim more than 2 years after the good cause ceases to exist or the war or armed conflict ends. Congress or the President establishes the beginning and end of war or armed conflict. The following individuals may file a claim under this subpart. (a) Owners of the property or their authorized agents may file a claim for property damage. (b) Injured persons or their authorized agents may file a claim for personal injury. (c) Executors or administrators of a decedent's estate or any other person legally entitled to do so under applicable local law may file a claim based on: (i) An individual's death. (ii) A cause of action surviving an individual's death. (d) Insurers with subrogation rights may file a claim for losses paid in full by them. The parties may file a claim jointly or individually, to the extent of each party's interest, for losses partially paid by insurers with subrogation rights. (e) Authorized agents signing a claim must show their title or legal capacity and present evidence of such authority to file the claim. Only certain individuals are proper claimants under this subpart. Proper claimants include: (a) Citizens and inhabitants of the United States. (b) States or territories and their agencies, unless it is the state of the ANG member who caused the injury or property damage. (c) Counties, municipalities, or units of local government, unless they are in the state of the ANG member who caused the injury or property damage. (d) Persons in foreign countries who are not inhabitants of a foreign country. (e) Property owners, their representatives, and those with certain legal relationships with the record owner, including mortgagors, mortgagees, trustees, bailees, lessees and conditional vendees. (f) Subrogees, to the extent they have paid the claim. The following individuals are not proper claimants: (a) ANG members performing duty under 32 U.S.C. when the personal injury or death claim arises incident to service. (b) Agencies and departments of the U.S. Government including the District of Columbia government. (c) Federal nonappropriated fund instrumentalities. (d) Governments of foreign nations, their agencies, political subdivisions, and municipalities. (e) The state territory, local government unit, or their agencies, whose ANG member caused the injury or property damage. (f) Subrogees of all the above. (a) Claims arising from noncombat activities of ANG members performing duty under 32 U.S.C and acting within the scope of their employment, whether or not such injuries or damages arose out of their negligent or wrongful acts or omissions. (b) Claims are payable if they are for damage to bailed property under §842.109(a) of this part where: (1) The ANG assumed the duties of a bailee. (2) The bailor did not assume the risk of loss by express agreement. (3) Authorized ANG members acting in their official capacity properly accepted the property. (c) Claims are payable if they are for loss or damage to: (1) Insured or registered mail, under §842.109 (a) or (b) of this part while in the possession of the ANG. (2) Minimum fee insured mail but only if it has an insurance number or requirement for hand-to-hand receipt and was lost or damaged while in the possession of the ANG. (3) Any mail in the possession of the United States Postal Service or a Military Postal Service due to an unlawful or negligent inspection, search, or seizure in an oversea military postal facility, which was ordered by ANG members. (d) Claims filed by ANG military or civilian health care providers or legal personnel for their personal liability by settlement or judgement, to include reasonable costs of such litigation, for their common law tortious acts committed on or after 29 Dec 1981 while performing title 32 duty within the scope of their employment under the circumstances described in 10 U.S.C. 1089(f) and 10 U.S.C. 1054(f). [55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32077, Aug. 7, 1990] The following are not payable: (a) Claims payable under any one of the following statutes and implementing regulations: (1) The Federal Tort Claims Act (FTCA). (2) The Foreign Claims Act (FCA). (3) The International Agreements Claims Act. (4) The Air Force Admiralty Claims Act and the Admiralty Extensions Act. (5) The Military Claims Act (MCA). (6) The Military Personnel and Civilian Employees' Claims Act. (b) Claims from the combat activities of the armed forces during war or armed conflict. (c) Claims for personal injury or death of ANG members performing duty under 32 U.S.C. incident to their service. (d) Claims for damage to or loss of bailed property when the bailor specifically assumed such risk. (e) Claims for personal injury or death of a person covered by: (1) The Federal Employees' Compensation Act. (2) The Longshore and Harbor Workers' Compensation Act. (3) A United States contract or agreement providing employee benefits through insurance, local law, or custom and the United States pays for such benefits either directly or as a part of the consideration under the contract. (f) Claims for property damage, personal injury or death occurring in a foreign country to an inhabitant of that country. (g) Claims caused by the negligent or wrongful acts or omissions of members of the District of Columbia ANG. (h) Claims arising from a private rather than a government transaction. (i) Claims for patent or copyright infringement. (j) Claims for damage, use, or other expenses involving the regular acquisition, possession, and disposition of real property by or for the ANG. (k) Claims for the taking of private real property by a continuing trespass or by a technical trespass such as overflights of aircraft. (l) Claims for loss of rental fee for personal property. (m) Claims in litigation against the United States. (n) Claims for a maritime occurrence covered under U.S. admiralty laws. (o) Claims for: (1) Any tax or customs duty. (2) The detention of any goods or merchandise by any officer of customs, excise, or law enforcement officer. (p) Claims from an act or omission of any employee of the Government while administering the provisions of the Trading With the Enemy Act. (q) Claims for damages caused by the United States' imposition or establishment of a quarantine. (r) Claims for libel, slander, misrepresentation, deceit or interference with contract rights. (s) Claims that result wholly from the negligent or wrongful act of the claimant or the claimant's agent. (t) Claims for reimbursement of medical, hospital, or burial expenses furnished at the expense of the United States, any state, the District of Columbia, or Puerto Rico. (u) Claims for damage from floods or flood waters. (v) Claims for damages caused by the fiscal operations of the Treasury or by regulation of the monetary system. (w) Claims caused by the negligent or wrongful acts or omissions of ANG members acting within the scope of their employment, while performing duty under 32 U.S.C., on or after 29 December 1981. (x) Claims caused by the negligent or wrongful acts or omissions of ANG technicians employed under 32 U.S.C. 709. (a) Extent of liability. The following rules apply to determine the extent of liability of a claim. (1) Claims arising in the United States. The law of the place where the act or omission occurs governs liability. The local law on dangerous instrumentalities, assumption of risk, res ipsa loquitur, last clear chance, discovered peril, and comparative and contributory negligence are considered. Absolute liability is never imposed. (2) Claims arising in foreign countries. The general principles of tort law common to the majority of American jurisdictions as evidenced by Federal case law and standard legal publications, control liability, except that absolute liability is not imposed. However, the law of the place where the act or omission occurs governs the effect of the claimant's comparative or contributory negligence. Where applicable, rules of the road and similar locally prescribed standards of care are followed to determine fault. Note: ANG personnel ordered to foreign countries proceed under title 10, U.S.C.; consequently, the National Guard Claims Act would not apply. However, there may be cases where ANG personnel are inadvertently in a foreign country while on title 32, U.S.C. orders. (b) Measure of damages. The following rules apply to the measurement of damages. (1) Normally, the law of the place where the act or omission occurs is applied. In claims arising in foreign countries, the measure of damages is determined in accordance with general principles of American tort law. (2) Damages in suits against private persons are apportioned if local law applies comparative negligence. (3) Proceeds from private insurance policies are not deducted except to the extent the policy was paid by the Government or is allowed by local law. (4) Compensation and benefits from any U.S. Government associated source are deducted. However, sick and annual leave payments are deducted only if allowed by local law. (5) The following are not payable: (i) Punitive damages. (ii) Cost of medical or hospital services furnished at U.S. expense. (iii) Cost of burial expenses paid by the United States, any territory or possession, any state, or the District of Columbia. (c) Settlement by insurer or joint tort-feasor. When settlement is made by an insurer or joint tort-feasor and an additional award is warranted, an award is made if: (1) The United States is not protected by the release executed by the claimant. (2) The total amount received from such source is first deducted. This paragraph explains the steps to take when a denial is appealed. (a) A claimant may appeal the final denial of the claim. The claimant sends the request, in writing, to the initial settlement authority within a reasonable time following the final denial. Sixty days is considered a reasonable time, but the time limit may be waived for good cause. (b) The initial settlement authority reviews the appeal. (c) Where the settlement authority does not reach a final agreement with the claimant on an appealed claim, the entire claim file is sent to the next higher settlement authority, who is the appellate authority for that claim. (d) The decision of the appellate authority is the final administrative action on the claim. The Air Force becomes subrogated to the rights of the claimant upon settling a claim. The Air Force has the rights of contribution and indemnity permitted by the law of the situs or under contract. Contribution or indemnity is not sought from ANG members whose conduct gave rise to Government liability. In the settlement of any claim pursuant to 32 U.S.C. 715 and this subpart, attorney fees will not exceed 20 percent of any award. For the purposes of this paragraph, an award is deemed to be the cost to the United States at the time of purchase of a structured settlement, and not its future value.
Title 32: National Defense
PART 842—ADMINISTRATIVE CLAIMS
Subpart M—Claims Under the National Guard Claims Act (32 U.S.C. 715)
§ 842.100 Scope of this subpart.
§ 842.101 Definitions.
§ 842.102 Delegations of authority.
§ 842.103 Filing a claim.
§ 842.104 Advance payments.
§ 842.105 Statute of limitations.
§ 842.106 Who may file a claim.
§ 842.107 Who are proper claimants.
§ 842.108 Who are not proper claimants.
§ 842.109 Claims payable.
§ 842.110 Claims not payable.
§ 842.111 Applicable law.
§ 842.112 Appeal of final denials.
§ 842.113 Government's right of subrogation, indemnity, and contribution.
§ 842.114 Attorney fees.
