foreign claims training...foreign claims act 10 usc §2734 •purpose –ex gratia payments to...

Foreign Claims Training

CPT Rochelle M. Howard

Claims Judge Advocate

Foreign Torts Branch, USARCS

Foreign Claims Act 10 USC §2734

• Purpose – ex gratia payments to promote friendly relations.

• Statutory LanguageTo promote and to maintain friendly relations through the

prompt settlement of meritorious claims, the Secretary concerned, or an officer or employee designated by the Secretary, may appoint, under such regulations as the Secretary may prescribe, one or more claims commissions, each composed of one or more officers or employees or combination of officers or employees of the armed forces, to settle and pay in an amount not more than $100,000, a claim against the United States for -

Statutory Language (continued)

(1) damage to, or loss of, real property of any foreign country or of any political subdivisionor inhabitant of a foreign country, including damage or loss incident to use and occupancy;(2) damage to, or loss of, personal property of foreign country or of any political subdivisionor inhabitant of a foreign country, including property bailed to the United States; or(3) personal injury to, or death of, any inhabitant of a foreign country;

Statutory Language (continued)

if the damage, loss, personal injury, or death occurs outside the United States, or the Commonwealths or possessions, and is caused by, or is otherwise incident to noncombat activities of, the armed forces under his jurisdiction, or is caused by a member thereof or by a civilian employee of the military department concerned or the Coast Guard, as the case may be. . . .

Statutory Language (continued)

(b) A claim may be allowed under subsection (a) only if -(1) it is presented within two years after it accrues; (2) in the case of a national of a country at war with the [US], or of any ally of that country, the claimant is determined by the commission or by the local military commander to be friendly to the [US]; and (3) it did not arise from [enemy] action or result directly or indirectly from an act of the armed forces of the [US] in combat, except that a claim may be allowed if it arises from an accident or malfunction incident to the operation of an aircraft of the armed forces of the [US], including its airborne ordnance, indirectly related to combat, and occurring while preparing for, going to, or returning from a combat mission. . . .

References

• FCA, 10 USC § 2734

• Department of Defense Financial Management Regulation 7000.14-R

• Army Regulation 27-20, Claims

• Department of Army Pamphlet 27-162, Claims Procedures

• References in this presentation refer to AR 27-20 (e.g., ¶ 2-15c(2)) unless stated as DA Pam 27-162.

Foreign Claims ActAgenda

• Implementation – AR 27-20, Claims, Ch 10.

• Foreign Claims Commissions

• Exclusions

• Payments

• Denials

• Proper Party Claimants

• Solatia

• Claims Issues

• Single Service Tort Claims Responsibility

DODI 5515.8 (November 11, 2006) Assignment of Claims Responsibility (¶ 2-15c(2))

• 4.2. The Secretaries of the Military Departments listed . . . shall adjudicate the following claims arising in those countries named. . . .:

• 4.2.1. All claims against the United States arising under sections 2733, 2734, 2734a,

• 2734b, 2736, 2737, and 2738 of Reference (d), Reference (e), 32 U.S.C. 715 (Reference (g)), and

• Other SOFAs with countries not covered by Reference (e).

• Single Service Tort Claims Responsibility

E2. ENCLOSURE 2

• E1.1.1. The Department of the Army. Afghanistan, Albania, Austria, Belarus, Belgium, Bulgaria, the Czech Republic, El Salvador, Eritrea, Estonia, Ethiopia, the Federal Republic of Germany,

Grenada, Honduras, Hungary, Iran, Iraq, Kenya, Korea, Kuwait, Latvia, Lithuania, the Marshall Islands, Moldova, the Netherlands, Poland, Romania, Seychelles, Slovakia, Slovenia, Somalia, Sudan, Switzerland, Ukraine, and Yemen, and claims in countries in the U.S. Central Command area of responsibility not specifically assigned to the Department of the Air Force or the Department of the Navy in subparagraphs E1.1.2. and E1.1.3., and as the Receiving State Office in the United States under Sections 2734a and 2734b of Reference (d), Reference (e), and SOFAs with countries not covered by Reference (e).

FCCs• Composition

– 1-Member – JA, non-attorney if CDR, USARCSappoints. (¶ 10-8)

• Authority - $15,000 for attorneys, $5,000 for non-attorneys (¶ 10-9c)

– 3-Member – At least 2 JAs/attorneys. Quorum = 2.

• $50,000 – field, $100,000 – USARCS FCC (¶ 10-9d)

– All members must be US citizens (¶ 10-8)

– If non-Army personnel, CDR, USARCS must appoint with permission from other service (¶ 10-8)

FCCs• Appointment (¶ 10-6)

– SJA requests appointment from Command Claims Service if extant; else CDR, USARCS

– Appointment request memo includes:

• Name, rank, SSN (last four)

• Branch (JA/non-JA, Army/USAF/USN/USMC)

• Unit, mailing address, email address, DSN telephone number

• Position: 1-mbr or 3-member FCC member, president, or non-voting alternate

• Name of FCC who new FCC is replacing (relief)

FCCs

• Relief (¶ 10-6)

– SJA sends request for relief to appointing authority with date of relief requested

• Orders

– Appointing authority sends to SJA and FCC

– Contains requirement to complete and certify training prior to action

– Serves as legal authority to act on and pay claims

FCCs

• Finance– Requires separate appointment and training to

commit funds (DoD Fin.Mgt.Reg 7000.14-R, Vol. 5, Ch 2, para 0206)

– Appointment as fiscal officer by unit (BDE+) commander

• FCC Code (¶¶ 10-6d, 13-1b)– Code identifies FCC for legal appointment and

disposition of claims– Assigned by CDR, USARCS– Three-digit alphanumeric designator for office and

database entries– Iraq claims – “I__” (e.g., “I8A”)– Controls access to TSCA database and funding source

FCCs

• Database Access– Requires:

• FCC Code – assigned at appointment as FCC• AKO account – to get account, click “Register” link• JAGCNET account

– For JAGCNet account, go to www.jagcnet.army.mil. Click on lower-left link, “Request/Update Account,” directly under “Account Options.” Provide requested information.

– Assigned by TSCA Administrator• Douglas Dribben (douglas.dribben@us.army.mil)• Lorenzo Ferguson (lorenzo.ferguson@us.army.mil)

• Personnel required

• Foreign Claims Commissioner—SJA appointed

• Unit Claims Officer—BDE CDR appointed

• Claims Pay Agent –BDE CDR appointed

• Claims Automation Clerk

• Translator

• Security Element

• Convoy ops

• Claims centers on paydays

• Other Key Personnel

Setting up for Claims Mission

• Equipment required

• Digital camera—UCOs need these too

• PDF scanner—for efficient file-transfer between FCC and USARCS

• Printer—you must give claimants written denials

• NIPR connection—you have to have consistent Internet connection to use the database and properly manage claims

Setting up for Claims Mission

• Claims intake

• Government Information Center (GIC)

• Initial claim intake

• Paydays

• Security concerns• Front entrance guard

• Waiting area guard

• Money guard

Setting up for Claims Mission

Role

• Inform

–Provide information to potential claimants

–Record as PCE where possible

– Explain SOL (2yr/3yr)

–Provide forms (appropriate language)

–Gather initial information from claimant for PCE file

Role

• Receive

–Proper claim – writing*, signed, sum certain, sufficient information (¶2-5a)

–Date stamp claim form/sign date stamp

–Obtain claim number from TSCA (¶13-1d)

–Create claim file (hardcopy)

–Upload initial information to TSCA

–Obtain claimant contact information

* can be oral; reduce to writing – 1 year

Role

• Acknowledge (¶ 2-7)

–Provide written confirmation of claim

–Provide POC for claimant to contact

– Inform claimant of any problems with claim

–Request necessary evidence for adjudication of claim.

• Notify the unit involved’s POC

Role

• Jurisdiction

– Examine monetary authority limits

– Convert demand to US $ at time of receipt and time of final action

– Forward to appropriate office if not yours AFTER coordination (¶2-9c, 10-6f(4))

– Retain copy until confirmation of receipt

– Transfer on TSCA (¶13-2)

• Screen for exceptions

Role

• Investigate

– Fact investigation (DA Pam 27-162), Ch. 2, Sec. V)

• Claimant/Witness interviews - Face-to-face gives greater satisfaction of being heard

– Look to Iraq SOP C-01, Claims, for guidance

– Provide supporting evidence

» Customers – business losses

» Mechanics/experts

» Neighbors

» Tribal leaders

» Soldiers in AO

Role

• Investigate (facts)

–Photographs

• Claimant’s

–Analyze content – credible?

–Dates

• Yours

– Multiple angles

– Scale

– Timing/weather/lighting/conditions

Role

• Investigate (facts)

• Documents

– Identification – Gensia, ration cards, others

–Ownership – deeds, leases, bills of sale

–Estimates/receipts/expert statements

–Claims cards/handwritten Soldier statements

–Unit reports, statements, photographs, SIRs

– Iraqi Police statements/reports

–Pictures/drawings/sketches

Role

• Investigate (facts)• Medical records

–BDE Surgeon evaluation

– Iraq public/private hospitals» Cost differences

» Time differences

• Translations–Use new software for oral statements

–http://www.militaryonesource.com

• Pocket claims cards

Investigating and Evaluating Claims

• Soldier Statements

Investigating and Evaluating Claims

• Sketches

Investigating and Evaluating Claims

Role

• Investigate (law)

–Determine applicable law – local law tempered with FCA?

–Determine legal ownership

–Determine legal impediments

–Determine value

• GOI Ministries

• Civil affairs

• USAID

Role

• Adjudicate

• Monetary Authority limits

–Pay

• In full

• Compromise

–Deny

– Transfer

Performance

• FY 07– Paid over $6.5M on 1,623 claims. – Denied 2,736 claims during this same period.

• FY 08

– Paid $32,624,012 for 6,196 claims

– Denied 8,987 claims

• FY 09 (through 25 Sept 09)

– Iraq: paid $18,245,505 for 2,305 claims; 3,727 denied

– Afghanistan: paid $1,351,931 for 516 claims; 202 denied

Exclusions

• Combat Activity (glossary, ¶ 2-28j)

– “Resulting directly or indirectly from action by enemy, or by the [U.S.] Armed Forces engaged in armed conflict, or in immediate preparation for impending armed conflict.”

• Ground travel to/from combat BUT NOT aircraft travel

• Collateral damage

• Innocent bystanders

– Does not include training

– Highly fact-dependent – evidence is essential

• Claims from Contractor actions (¶ 2-31)

Exclusions

• Contract-based (¶ 10-4b)

– Bad checks, purchases

• Real Estate longer than 30 days (¶ 10-4g)

– CREST

– AR 405-15

– HQ MNC-I FRAGO 176 (1 Aug 07) – unit pay

• Enemy or unfriendly claimants (¶ 10-4i)

– EPWs?

Exclusions (¶ 10-4)

• Not in best interest of US (¶ 10-4h)

– (e.g., People’s Mujahedeen of Iran)

• Subrogation claims (¶ 10-4l)

• MCA Claims (¶ 10-4n)

• SOL (¶ 2-30)

• Devaluation of Dinar

Solatia - (¶ 10-11)

• Definition - nominal payments made immediately to victim or family to express sympathy when local custom exists for such payments.

• No responsibility; sympathy only• Source of funds - tortfeasor from personal

funds, or by the Armed Forces of the US from O&M appropriations other than claims funds.

• Accounting – deduct US solatia payments from claim award.

Other Remedies

• State Department – see CLAMO Legal Lessons Learned From Afghanistan And Iraq: Volume I, Major Combat Operations (11 Sep 2001-1 May 2003) p. 183

• CERP – see MNCI-JA Info Paper - Concurrent Payment of Solatia And Condolence Payments?

• Civil Affairs

• GOI Insurgency Claims Program does exist

• Others?

Issues

• Identity – with whom are you dealing?

• Claimant (per local law)

–Guardian

– Executor/legal representative of deceased

• US involvement

• Burden of Proof – POTE – on claimant

• SA effects – US handles its own claims

Issues

• Evidence – sufficient?• Documentation• Determining local law

– Sharia– Iraqi Civil Code

• Comparative fault – Art. 210–Hassan Ali Dananoon, Explanation of Civil

Responsibility (Times Pub. & Printing Co., 1991),

Preventing Duplicate or Fraudulent Claims

Issues

• Proper Party Claimant – (i.e., subrogee, GOI prohibited by SA, Iraqi military on joing missions by AR 27-20) (¶ 10-4)

• Forum-shopping

• Property identification

– Personal property• Fungibility

• Previous condition

• Repairable/destroyed

– Real property • Ownership interest (Deeds)

• Trespass/lease

Issues

• Business losses – permitted in tort (¶ 3-5d(e))

–Damage/destruction of business facility

– Loss of income

– Fortification or occupation of business

• NOT rent payments

• Cannot get both rent (lease – O&M funds) and loss of business

Issues

• US involvement

–Claims cards

–Reports – SIPR Fusion Net

–US/Iraqi forces – who acted/who directed?

–US/Foreign military vehicle silhouettes/pictures

• Determining local law – sources?

– Filter through FCA – negligence/strict liability

Evidence

• 15-6/LOD/UCMJ/FLIPL Results

• Accident Reports

• CID/MP Reports

• Medical records

• Visit scene whenever possible

• Security issues

• Duty to government fisc

Causation

• Intervening/superseding

• Policy determinations

–Siting of housing, offices, etc.

• Iraqi/US/Coalition Joint Action – joint forces’ claims barred

• Enemy action

• Claimant’s negligence – not a bar

Damages

• Guidance

–Use local law

• Situs of tort

• Residence of claimant

–AR 27-20, para 10-5

• AR 27-20, paras. 3-5b-d

• DA Pam 27-162, para 2-53c(4)

Damages

• Valuation

– Estimates

–Receipts

–Records – business for profits

–Photographs

–Current vs. replacement value

– Temper with your experience

– Expert opinion

Settlement/Final Action

Payment

• Authorities (¶ 10-9b)

• Currency (¶ 10-9b)

–Dinar

–US Dollar (with acceptable reason)

–Other currency only as approved by CDR, USARCS

• Witnesses

• Security

Payment

• Obtaining money in your FCC account

• Payment documents required (¶ 2-50)

–Action

– Settlement Agreement (¶ 2-51)

–Payment voucher

–Receipt for payment (SF 1034)

• Recording payment

• Time – be aware of End of FY

Final Offer

• If amount claimed within your authority, may issue the claimant a final offer if unable to negotiate a settlement on a meritorious claim. (¶ 2-52)

• Send notice of proposed final action with offer, statement that offer is final offer, and claimant can accept or request reconsideration, along with reconsideration language. (¶ 10-6f)

• If claimant requests reconsideration and you upholdfinal offer, send claimant written notice that he has 180 days from date of notice to accept final offer and sign settlement agreement; if not, offer is withdrawn, claim denied, and no further avenue of address for the claimant. (¶ 10-9h)

Denial

• Notice of proposed final action (¶ 10-6f)• Required language on recon

• Do NOT include court review language

• Like claimant interviews, give claimant face-to-face denial proposal with explanation

• Recon period – 30 days (¶ 10-6f(1))

• Recon – de novo review (¶ 10-6f(2))

• Final Action (¶ 10-6f(3))

Transfers

• Seven-paragraph memorandum required(DA Pam 27–162, ¶ 2–60)

• Signed by proper authority (FCC, not SJA)

• Mail (controlled)

• Email coordination of transfer

• Follow-up investigation and assistance as required

Reporting

• In-theater reports

• Weekly (Thursday) payment reports to Joanne Roe

• Database– Report transactions

• Transfers

• Payments

• Proposed denial

• Denial

• Withdrawals

SAMPLE -- WEEKLY REPORTThe format below is to be typed in the email message itself. You can

call this up from a previous email and type over/or create a blank one

each time, then send to Budget.

Office Code: ____

Report Timeframe: ____________ (Thurs – Wed)

claims paid by claim number ____________

$$paid ________________

claims denied by claim number __________

$$ anticipated for next 2 weeks _________

Typical Claims

• House searches

• Roadblocks

• Traffic collisions

– IEDs – combat exception

–Otherwise, Iraqi Civil Code 227

• Trespass/rental of real property

• Procurements

Typical Claims• Non-combat activities (subset of not combat)

– Authorized military activities, having little parallel in civilian pursuits, historically considered as proper basis for payment of claims.

– Strict Liability (¶3-5a(2)

COMBAT

EXCLUDED

NOT COMBAT

(NEGLIGENCE REQUIRED)

NONCOMBAT

STRICT

LIABILITY

Typical Claims

• Non-combat activities

• Convoys

• Contractors

• Personal property detention

• Non-scope acts of soldiers

• Illumination rounds – Crop destruction

– noncombat activity

Review of claims(Not appeals)

• Higher FCCs

• FTB

• USARCS CDR

• TJAG/DJAG

• SA

• Congress

• FOIA

–Media

–ACLU

–Others

Detainee Physical Abuse Claims

• Receive

• Investigate – get detainee file, med records, other relevant documents/ photos

• ISN number key

• Do NOT adjudicate

• Transfer to USARCS FCC through higher FCC

• NO AUTHORITY to act on the claims

Classified Documents

• Scrub ALL files for classified documents

• If none, so indicate on cover of file.

• If classified, seek declassification, remove, or, if necessary, mark file and transmit appropriately

• If no longer classified, ensure markings reflect the declassification status

• Do NOT mismanage classified info

Proactivity

• Unit Training (UCO and soldiers)

• Claims Card–When

–Contents

–Markings

• Report of incident– SIR

–PCE

–Unit claims officer

Proactivity

• Use SOPs

• Use UCOs

• Use checklists

• Use complementary programs where proper

–CERP

–MNC-I DoD Rewards Program (10 USC 127b)

• MNF-I SOP, Annex O

AAR Comments

• Set up the claims system before deployment and work with USARCS

–Need to train E-6 or above as pay agent

–Brigade JA should NOT be pay agent

–Pay agent should be available for every mission

• Understand Finance requirements for certifying pay agents – do they have to re-certify in country?

AAR Comments

• BCT Attorneys need OSJA appointment and training for Personnel Claims

• Foreign Claims Pay agent cannot be condolence pay agent

• To avoid forum shopping and fraudulent claims – start using national ID numbers and names/BIDS

AAR Comments

• Educate commanders about the PC claims program. It is a morale tool that is not as well known as it should be

• Make sure claims personnel know the local culture. Claims are a combat multiplier; don’t blow it with poor cultural awareness

AAR Comments

• Educate low-level commanders about the claims system and get them to help document the incidents

• Make sure Claims JAs have access to SIGACTS. It will help verify potential claims

AAR Comments

• Remember that claims is NOT the Army’s primary mission. We advise commanders, and pay the results, when permissible. Claims does not dictate mission strategy, but should be offered to assist it.

Requirements to Be a Certified FCC

• Receive USARCS training (preferably in person or via email/phone with CPT Howard or Mr. Dribben)

• Pass USARCS FCC Certification Test

• SJA Memo requesting appointment

• Receive USARCS orders appointing you as a FCC

** make sure you get a copy of the test before you leave this training and you can email answers to douglas.dribben@us.army.mil or rochelle.howard@us.army.mil

QUESTIONS???