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to benefits under FECA, that will be the exclusive remedy and the DOL decision may not be challenged. A civilian employee of a non-appropriated fund (NAF) is entitled to receive worker’s compensation coverage and benefits pursuant to the Long Shoremen and Harbor Workers’ Compensation Act (LSHWCA). 5 USC 8171; 33 USC 901- 950. Te LSHWCA contains the compensation structure and the exclusivity provisions that are similar to those in FECA. In order for either FECA or the LSHWCA to apply, the


injured party needs to have been acting within the performance of their duty or within the scope of their employment. Ordinarily, when an employee is injured on the agency premises during working hours, coverage will apply. Tis is the case unless the employee is clearly acting outside the scope of their employment. Statute and case law have defined agency premises to include areas outside or adjacent to the place of employment, if those areas are federally owned and maintained, and to parking facilities that the agency owns or manages. Workers who are sent on errands or need to drive or deliver messages are likewise covered pursuant to FECA or LSHWCA. Coverage does not extend, however, to employees who visit premises for non- work related reasons. Tere have been a number of cases where employees will visit a facility for personal reasons or to engage


32 Trial Reporter / Spring 2011


in an activity clearly outside the scope of their employment and those individuals have been allowed to pursue claims under the FTCA. Finally, employees who are injured or killed while en route to work or on the way home are not covered unless the agency furnished them with transportation.


V. Statutory Exclusions Te FTCA contains a number of statutory exclusions, one of


which excludes claims arising from a government employee who uses “due care” in carrying out a statutory duty. 28 USC 2680(a). Tis exclusion involves claims that grow out of authorized government activities, such as flood control or irrigation projects, where there is no evidence of negligence. If the employee is exercising due care in the execution of a statute or regulation, the claim is excluded even if the statute or regulation is later ruled invalid. 28 USC 2680(a). Te only way to make such claims payable under the FTCA is to look to state law. If the same conduct by a private person would be deemed tortious under state law, then the claim may be payable under the FTCA. A major statutory exclusion to the FTCA are acts or


omissions classified as a “discretionary function.” 28 USC 2680(a). Te discretionary function exclusion essentially involves sovereign immunity for a government’s formulation and execution of policy, to include its failure to make certain policy decisions. Essentially, the justification for such an exception is that it prevents the judiciary from questioning public policy decisions and avoids a potential constitutional separation of powers problem between the Executive and Judicial branches. Dalehite v. United States, 346 US 15 (1953); United States v. Gauber, 499 US 315 (1991). In a discretionary function analysis, the focus is on the nature and quality of the conduct, whether discretion, choice or judgment were used or involved, and whether there is a specific mandatory regulation that was violated; negligence is not relevant. If an agency fails to act in accordance with specific mandatory directives, then those claims are not barred and may be pursued under the FTCA. Likewise, if there is discretion to act with respect to a project, those claims may also be pursued pursuant to the FTCA. Te discretionary function doctrine has been applied in many instances and there are numerous reported cases involving this exclusion. When confronted with a potential case involving discretionary function, case law needs to be consulted because this is such a nebulous concept and it is difficult to generalize a result. Claims arising out of an assault or battery are excluded


under the FTCA. 28 USC 2680(h). Such claims are not excluded for acts committed on or after March 16, 1974, if they were committed by a United States law enforcement officer authorized to execute searches, seize evidence or arrest citizens


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