Appendix D: COMPENSATION SOURCES FOR THOSE KILLED
OR INJURED ONBOARD GOVERNMENT AIRCRAFT
Summary:
Unlike victims of commercial aviation crashes -- who frequently recover sizable amounts in litigation against the airline and other responsible parties -- Federal employees who are injured or killed while traveling aboard government aircraft are barred from suing the owner or operator of the aircraft because the owner is the United States or its operator is a Federal employee. Principles of workers’ compensation law preclude lawsuits by employees who are killed or injured on the job against their employers. Thus, consistent with the limitations placed on private employees, the sole remedy for Federal employees is Federal workers’ compensation. Although tort recovery is not an option in these situations, other benefits -- including a $10,000 death benefit and in-kind services -- are available.
The Federal workers' compensation laws ensure that medical expenses and other benefits, including loss of wages, are paid to a Federal worker who is injured on the job in the performance of duty. The family of a Federal worker who is killed on the job in the performance of duty is also entitled to receive workers' compensation benefits. These benefits are payable on a "no-fault" basis whenever an injury or death occurs in the performance of duty, including while the employee is on official travel aboard a government aircraft.
In some cases, a private citizen who is injured or killed aboard a government aircraft may fall within the definition of "Federal employee" and may likewise be barred from filing a tort action against the Federal government. In other cases, when the private citizen who was injured or killed does not qualify as a Federal employee, he or she (or the victim's family) may file a claim against the United States under the Federal Tort Claims Act, provided the accident occurred within the United States or one of its territories. For accidents that took place in a foreign country, victims and their families may be eligible to recover under the Military Claims Act or the Foreign Claims Act.
In addition to the monetary benefits discussed above, victims and their families of previous Federal disasters have received further in-kind benefits from the Federal government, including crisis intervention counseling, and assessment and referral services through an Employee Assistance Program (EAP), transportation to accident-related events, as well as food and lodging expenses while there, and the erection of special memorials or other tributes to accident victims. Practices such as these have been considered “necessary expenses” under the extreme circumstances and pressures faced by the government in its attempts to respond in a humanitarian fashion. Each agency must enjoy sufficient flexibility to make these practices a reality when needed, and some of the legal group opined that the law is broad enough to allow such freedom of action. A strict reading of the law has lead GSA to conclude that there is no authority under Title 5, United States Code, Subchapter III to provide transportation or per diem to families of civilians who are killed or critically injured in aviation disasters on government aircraft. GSA may consider proposing changes to Title 5, Subchapter III, including but not limited to these sections: 5741, General Prohibition; 5742, Transportation of remains, dependents, and effects, and Death occurring away from official station or abroad; although some in the group consider such changes as not necessary.
The following discusses the salient points of compensation issues in more detail:
The families of government employees and private citizens aboard the CT-43 have raised the issue of being unable to bring actions for negligence against the Air Force, and have suggested that statutory changes be made in order to permit such litigation.
In order to respond to these concerns, it is important to understand the basic legal framework and philosophy surrounding compensation for persons killed or injured in the course of their employment under United States law.
So long as an individual is acting within the course and scope of his or her employment at the time of death or injury, state statutes generally entitle employees or survivors to receive workers' compensation benefits from the employer on a "no-fault" basis. Such workers' compensation benefits are, in most instances, the sole remedy an injured employee has against the employer or co-employees, although several states provide an election to sue at common law or a percentage increase in compensation as the penalty for employer misconduct (such as willful intent to cause injury, failure to provide safety devices, or willful misconduct generally). Because traditional tort remedies for work-related injuries were sometimes slow and always uncertain, workers’ compensation systems, which provide for payment of medical bills, compensation for loss of wages, and other benefits, are generally advantageous for both employee and employer. Both the employer and the employee surrender certain features of the tort system that would be beneficial to them. The employee receives workers’ compensation benefits without having to prove negligence or fault on the part of the employer or awaiting the extended course of civil litigation, while the employer is spared from the possibility of a catastrophically large verdict in a personal injury or wrongful death law. Both also benefit from reduced legal fees and the ability of the workers’ compensation provider to encourage and support an early return to work or vocational rehabilitation necessary for severely injured workers.
Thus, while an employee killed or injured aboard an airliner could sue the airline for negligence, the same injury incurred aboard an aircraft operated by his/her employer will entitle the employee to workers' compensation benefits. This is because the pilot is a fellow employee, the employer operates the aircraft, and the death or injury occurs within the scope of employment.
Like their counterparts in private employment, Federal employees also are subject to a workers' compensation program, but theirs is based on Federal, rather than state, law. The Federal Employees’ Compensation Act (FECA) establishes a comprehensive workers' compensation program that provides benefits to any of the more than three million Federal employees in 72 different agencies who sustain an injury in the performance of duty. The FECA, like virtually all of the workers’ compensation statutes covering employees in each of the fifty states and the District of Columbia, is an employee’s exclusive remedy against the employer for an injury that arises in the performance of an employee’s duty. Administration of the FECA has been entrusted to the DOL. DOL regulations delegate this authority to the Director of the Office of Workers' Compensation Programs (OWCP), who is responsible for the administration and implementation of the FECA.
Thus, Government employees killed or injured aboard their employer's aircraft within the course and scope of their employment are, like their private counterparts, barred from suing their employer or fellow employees. FECA's workers’ compensation benefits are the exclusive remedy of these employees against the Government, just as private employees aboard their own employer's aircraft would be limited to workers’ compensation benefits by state statute.
For Federal or private employees killed aboard their employer's aircraft, state law may provide a product liability action against the manufacturer of the aircraft, or its components (engines, radios, etc.). Additionally, if other "third parties" are believed to have caused or contributed to the accident, state law normally will provide a cause of action against that third party for personal injury or wrongful death; examples would include actions against a maintenance facility, refueler, airport authority, etc.
Private citizens killed or injured as a result of Government aircraft operations within the United States may have a claim against the department or agency involved pursuant to the provisions of the Federal Tort Claims Act (FTCA), 28 U.S.C. ¤ 1346(b), 2671, et seq. This statute, which is a limited waiver of the Government's traditional sovereign immunity, establishes an administrative claim procedure by which potential claimants can present their claims to the Federal agency or department alleged to have been negligent; if the claim is not paid or compromised, an action may be brought in Federal District Court against the United States. The liability of the United States is determined by reference to the law of the place where the act or omission occurred, but the Government retains a number of unique defenses under the provisions of the FTCA. One such defense is that provided by 28 U.S.C. ¤ 2680(k), which exempts from the courts' jurisdiction any claims "arising in a foreign country." Thus, for acts and omissions which occur outside of the United States, its territories and possessions, no right of action exists against the government, except where there is admiralty jurisdiction. In the case of military aircraft accidents, the provisions of the Military Claims Act or Foreign Claims Act may, at the discretion of the Secretary of the department involved, provide such compensation as the Secretary deems appropriate under the circumstances.
Other provisions of the FTCA are applicable to Government air crash victims, just as they are to those suffering other forms of governmental acts or omissions. Plaintiffs against the United States under the FTCA cannot recover punitive or exemplary damages; are not entitled to prejudgment interest; and are not entitled to a trial by jury. The "discretionary function" exception (28 U.S.C. 2680(a)) protects the Government's exercise of policy-level discretion, so that those making policy judgments or carrying out programs imbued with governmental policy do not expose the United States to tort liability for their discretionary acts.
In short, non-Federal passengers killed or injured aboard Government aircraft may have a tort claim for wrongful death or personal injury under the provisions of the Federal Tort Claims Act. But this waiver of sovereign immunity is subject to unique conditions and exceptions which may reduce recoveries obtained in comparison to those against a private defendant, or even eliminate the right to recovery altogether.
In order to permit the survivors of Federal employees killed aboard Government aircraft to recover tort damages instead of, or in addition to, FECA benefits, fundamental legislative changes would have to be made to the "exclusive remedy" provisions contained in the Federal Employee's Compensation Act. If the bar were not eliminated altogether, it could be changed to permit an election of a tort remedy in instances of willful or wanton misconduct, or to provide an enhanced level of benefits.
Legislative and Policy considerations:
FEDERAL TORT CLAIMS ACT CHANGES
In order to permit private citizens to recover for wrongful death or personal injury incurred aboard a Government aircraft in a foreign country, a legislative change would have to be made to the Federal Tort Claims Act to restrict or remove the "foreign country" exception.
Legislative and Policy considerations:
The families of Government employees and private citizens aboard the CT-43 noted that they were unaware of the nature of benefits, legal remedies, and other sources of assistance prior to the accident.
With respect to Federal employees killed or injured in the course of their employment, a number of resource publications are available. “Work-Related Injuries and Fatalities -- What You and Your Family Should Know About Your Benefits,” Publication RI84-2, published by the OPM Retirement and Insurance Service, is comprehensive and concise. It provides information concerning workers' compensation benefits, retirement benefits and death or disability payments under both the Civil Service Retirement System and Federal Employees' Retirement System, insurance benefits, Thrift Savings Plan, and social security benefit information, as well as special benefits available to public safety officers.
This or a similar publication should presently be available for any Federal employee through their personnel department or directly from the originating agency. Copies of such a publication could be provided to each passenger preparatory to flight aboard a Government aircraft, or could be maintained for reference at air operations bases and via the internet.
Legislative and Policy considerations:
Liability Information for Non-Federal Passengers
With respect to non-Federal passengers aboard Government aircraft, potential tort liability is primarily determined under the Federal Tort Claims Act, or, under some circumstances when an aircraft operates offshore, the Suits in Admiralty Act. Because suits against the United States require a statutory waiver of sovereign immunity, potential tort claims against the Government are not without legal complexities and limitations; generally, however, the United States will be held to the same standard of conduct as would apply to non-Government actors under the law of the place where the act or omission complained of occurred. Because the possibility of Government liability for an aircraft accident is not grossly unlike that of a corporate or airline operator, it may not be necessary or desirable to apprise potential civilian passengers of the nuances of FTCA provisions prior to boarding a flight. Such an advisory would, of necessity, be very general in nature, and could not take the place of the advice of competent counsel were an injury or death to be sustained.
A slightly different situation is presented by Government aircraft operating outside the United States in a foreign country. Acts or omissions of Government employees occurring in a foreign country are exempted from potential liability under the provisions of the Federal Tort Claims Act. In the case of civilians aboard U.S. military aircraft, claims may be paid under the authority of the Secretary of the military department involved pursuant to the Military Claims Act or the Foreign Claims Act, but there is no judicial recourse or review.
Legislative and Policy considerations:
The families of Government employees aboard the CT-43 have raised the issue of family counseling assistance following a Government aviation disaster.
Federal agencies have generally been able to provide assessments, short-term counseling and resource referral services through existing EAPs, which are primarily aimed at Federal employees but have been broadly construed to include family members on humanitarian and practical bases. It appears that such measures are within the realm of "necessary expenses" which may be made from an agency's general funds. While this has generally proven workable, clarification and specific authorization of this practice could be advantageous to victims and the agencies.
Legislative and Policy considerations:
Appropriations available to any department or agency during the current fiscal year or thereafter for necessary expenses, including operating expenses, shall also be available for payment for the use of Employee (or family) Assistance Programs to provide grief counseling services and otherwise assist family members of victims in the aftermath of a federal government disaster.
The families of Government employees and private citizens aboard the CT-43 have raised the issue of being provided travel to the accident site and to the special memorial service, and have suggested that the Government provide transportation and accommodations in future Government accidents.
Although Government air disasters of a scale raising these issues are very rare, there appears to be agreement in principle among the Federal agencies and departments with these requests. Because the Government's mission and its fiscal constraints are far different from those of the commercial airlines and their insurers, Government agencies and departments are constrained in their ability to provide such services, having to utilize discretionary funds or other "catch-all" appropriation items that are otherwise available for such expenditures. As a fundamental principle of appropriations law, public funds may be used only for the purpose or purposes for which appropriated. Thus, if a proposed expenditure is not authorized by or is inconsistent with language in an appropriations act, it would be improper. However, since it is not possible for an appropriations act to specify every item of expenditure, a corollary principle of Federal appropriations law is that agencies have reasonable discretion in determining how to carry out the objectives of an appropriation.
Under the “necessary expense” doctrine, an appropriation made for a specific object is available for expenses normally incident to accomplishing that objective unless the broader objective is prohibited by law or otherwise provided for. A key issue in any necessary expense analysis is whether the proposed item of expenditure is primarily for the benefit of the government or is personal in nature. There are a long line of decisions of the Comptroller General that apply the necessary expense rule. In view of the vast differences among departments and agencies, determinations as to whether proposed expenditures are necessary expenses must be made on a case-by-case basis. While existing DOJ or Comptroller General interpretations of EAP statutes and other similar findings are helpful, specific legislation providing for post-disaster assistance for the families of Government employees could be employed to make this more uniform and comprehensive.
Another practical issue is the nature of the familial or other relationship with the decedent in order to be provided such transportation. The order of precedence established by statutes, such as that governing the Federal Employees' Group Life Insurance program, provides a useful model: surviving spouse; children; surviving parents; next-of-kin. Allowing a fixed number of travelers and self-selection by those affected has proven workable in other disasters.
Legislative and Policy considerations:
Federal Travel Regulation (FTR) (41 CFR, Chapters 301-304).
The General Services Administration (GSA) does not currently have the statutory authority to provide assistance to the families of executive branch civilian employees (or other civilians) who are involved in aviation disasters on government aircraft (or in any other disasters related to Federal government business/employment). GSA's statutory authority currently is limited to providing the following assistance to civilian employees of the executive branch who are injured or die while on official travel:
FECA provides several other benefits for employees who die from an injury sustained in the performance of duty. Those benefits are compensation in case of death, funeral and burial of employee, and preparation and transportation of employee's remains. Non-travel related expenses pertaining to a surviving employee's injuries are also governed by the FECA. For further information, please contact the DOL, Federal Employee Compensation Division.
Legislative and Policy Considerations:
In addition to changes that would provide for travel for families, GSA recommends evaluating the need for other travel-related changes to 5 U.S.C., which may include, but may not be limited to, the following:
Travel expenses of an escort for remains are not allowable under 5 U.S.C. 5742. This creates problems in retrieving remains from certain countries that won't release other than to family (requires State Department involvement to obtain release).