Military Law Rev1 Ew Vol. 42

DEPARTMENT OF THE ARMY PAMPHLET 27-100.42 d 3 MILITARY LAW REV1 EW B .? VOL. 42 Art ides EXCLUSIVE REMEDY PROVISION OF THE FEDERAL EMPLOYEES’ COMPENSATION ACT-FACT OR FICTION? THE SITUATION OF THE ARMED FORCES IN A CONSTITUTIONAL DEMOCRACY MIRANDA AND THE MILITARY DEVELOPMENT OF A CONSTITUTIONAL RIGHT LIABILITY TO PASSENGERS IN MILITARY AIRCRAFT Y HEADQUARTERS, DEPARTMENT OF THE ARMY OCTOBER 1968 TAG0 5356B PREFACE The Military Law Review is designed to provide a medium for those interested in the field of military law to share the product of their experience and research with their fellow lawyers, Arti- cles should be of direct concern and import in this area of schol- arship, and preference will be given to those articles having last- ing value as reference material for the military lawyer. The Military Law Review does not purport to promulgate De- partment of the Army policy or to be in any sense directory. The opinions reflected in each article are those of the author and do not necessarily reflect the views of The Judge Advocate General or the Department of the Army. Articles, comments, and notes should be submitted in duplicate, triple spaced, to the Editor, Military Law Review, The Judge Ad- vocate General’s School, U.S. Army, Charlottesville, Virginia 22901. Footnotes should be triple spaced, set out on pages separate from the text and follow the manner of citation in the Harvard Blue Book. This Review may be cited as 42 MIL. L. REV. (number of page) (1968) (DA Pam 27-100-42, 1 October 1968). For sale by the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402, Price : $75 (single copy). Subscription price : $2.50 a year ; $.75 additional for foreign mailing. AGO 5366B i Pam 27-100-42 PAMPHLET HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-42 I WASHINGTON, D.C., I October 1968 MILITARY LAW REVIEW-VOL. 42 Page Articles : Exclusive Remedy Provision of the Federal Employees' Compensation Act-Fact or Fiction ? Major John R. Thornock 1 The Situation of the Armed Forces in a Constitutional Democracy Professor Dr. Klaus Obermayer - - - - - - - - - 41 Miranda and the Military Development of a Constitutional Right Major Donald W. Hansen _____________ ~ 55 Liability to Passengers in Military Aircraft Major Norman S. Wilson ______ _________ 101 s AGO 5856B iii PAUL JOSEPH KILDAY Judge of the United States Court of Military Appeals 1961-1968 Paul Joseph Kilday was born in Sabinal, in Uvalde County, Texas, on 29 March 1900, the son of Patrick Kilday and Mary Tallant Kilday. He went to school in San Antonio, Texas, where he graduated from high school in 1918. Subsequently, he attended St. Mary’s College in San Antonio. He received his LL.B. degree from Georgetown University, Washington, D.C., in 1922. Judge Kilday is survived by his widow and two daughters, Mary Catherine Kilday and Betty Ann Drogula, and two grandchildren. From 1918 to 1921, Judge Kilday served as Clerk to the United States Civil Service in Washington, D. C. The following year he served as Clerk to the United States Shipping Board, Emergency Fleet Corporation, also in Washington. In 1922, Judge Kilday was admitted to the Texas Bar and entered private practice in his home city of San Antonio. He was appointed first assistant Dis- trict Attorney for Bexar County, Texas, which includes San Antonio, in 1935, and served in that capacity from 1936 until 1938, when he was elected to Congress. Judge Kilday represented the Twentieth Congressional District in Texas, in the House of Representatives, beginning with the 76th Congress in 1939, until the 87th Congress, in 1961. During that time he served on the House Armed Services Committee from 1946 until 1961, and also on the Joint Committee on Atomic Energy for over ten years. As a Congressman and a Chairman of various House Armed Service Subcommittees, Judge Kilday played a significant part in the drafting of the Uniform Code of Military Justice, the creation of an independent Air Force, and the spon- soring of continued pay raises for service members. Judge Kilday resigned from Congress in 1961, when he was appointed by President Kennedy as a Judge of the United States Court of Military Appeals. He served in that capacity until his death on 12 October 1968. In addition to being a member of the Texas Bar, Judge Kilday also belonged to the American, Texas, and San Antonio Bar As- sociations, as well as the Democratic Party and the Knights of Columbus. iv AGO 5356B It is with great sorrow and a keen sense of loss that the Judge Advocate General’s Corps and the Armed Forces learned of Judge Kilday’s death at the age of 68. A lifelong friend of the individual serviceman throughout his career as both a Congressman and a Judge, he will probably be best remembered for liberal interpreta- tions of military law, equating the constitutional rights of service members with those of civilians. AGO 6366B V FEDERAL EMPLOYEES’ COMPENSATION ACT EXCLUSIVE REMEDY PROVISION OF THE FEDERAL EMPLOYEES’ COMPENSATION ACT- FACT OR FICTION?* by Major John R. Thomock** This article contains an examination of the exclusive remedy provision of 5 U.S.C. $ 8116 (c) (1966), with emphasis on its application when one government employee is injured or killed by the tortious conduct of another; its relationship with the Government Drivers’ Act, 28 U.S.C. $ 2679 (1964)’ and similar legislutiolz. The author discusses the liability of the United States by way of contributim or indemnity as a joint tort-feasor when compensation has been awarded a plaiintiff. I. INTRODUCTION It is the aim of this article to probe the background of workmen’s compensation and to analyze critically various principles, concepts and fallacies which have produced unintended and somewhat deleterious effects by the application of the exclusive remedy provisions of the Federal Employees’ Compensation Act and various provisions of the Federal Tort Claims Act.* Particu- lar attention will be given the so-called “Government Drivers’ and the liability of the United States for contribution or indemnity as a joint tort-feasor when F.E.C.A. compensation has been awarded a plaintiff-government employee. The problems herein arise first, when one government employee acting within the scope of his employment injures another government employee under circumstances making the injured employee eligible for *Thisarticle was adapted from a thesis presented to The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia, while the author was a member of the Sixteenth Advanced Course. The opinions and conclusions presented herein are those of the author and do not necessarily represent the views of The Judge Advocate General’s School or any other governmental agency. **JAGC, U.S. Army; Assistant to Director, Plans and Publications De- partment, The Judge Advocate General’s School; B.A., 1957, LL.B., 1960, University of Idaho. Admitted to practice before the bars of the State of Idaho, the United States Court of Military Appeals, and the United States Supreme Court. 5 U.S.C. $5 8101-50 (1966) [hereafter ’called F.E.C.A.]. ’28 U.S.C. $0 134B(b), 2671-80 (1964) [hereafter called F.T.C.A.]. ‘28 U.S.C. 0 2679(b)-(e) (1964). AGO 6366B 1 42 MILITARY LAW REVIEW F.E.C.A. benefits ; and second, the United States’ liability by way of contribution as a joint tort-feasor when compensation has been awarded a plaintiff. The various combinations of injured parties and causes of injury considered will be: 1. Federal civilian employee tortiously injured by a member of the armed forces. 2. Federal civilian employee tortiously injured by another co- worker federal employee. 3. Federal civilian employee tortiously injured by another federal employee (co-employee) who does not qualify as a co-worker. Throughout the article reference will be made to the exclusive remedy provisions of F.E.C.A. It should be noted that the Long- shoremen’s and Harbor Workers’ Compensation Act s is made applicable to most employees of nonappropriated funds,6 and that the exclusive remedy provision applicable to the nonappropriated fund employees is virtually identical to that of F.E.C.AS7There - fore, whenever the provisions of F.E.C.A. are considered, those discussions and conclusions are equally applicable to the nonappropriated fund employee. 11. HISTORY OF WORKMEN’S COMPENSATION A. HISTORICAL BACKGROUND The scope and magnitude of the changes brought by the industrial revolution have been and will continue to be analyzed by writers of nearly every bent. For the purposes of this article, suf- fice it to say that one of the sociological changes wrought by in- dustrialized society was a greater awareness of the workingman’s position in life and his basic rights vis-a-vis industry and society. 1. Industrial Disability Law. Contrary to popular belief, workmen’s compensation had its beginnings in the tribal laws of Charlemagne’s time and the Frankish Empire. E These earliest beginnings found new life in nineteenth century Germany under Bismarck. In 1884, after a progressive development, Germany adopted the first modern compensation system, some thirteen years before England ; twenty- five years before the first United States jurisdiction; and fully - The details of these categories will be discussed in part V infra. ‘33 U.S.C. $5 901-50 (1964). “5 U.S.C. 0 8172 (1966). ‘5 U.S.C. 0 8173 (1966). ‘See Small, The General Structure of Law Applicable to Employee Injury and Death, 16 VAND. L. REY. 1021 (1963). 2 AGO 5356B FEDERAL EMPLOYEES’ COMPENSATION ACT sixty-five years before Mississippi, the last American state to do SO.^ The German system was unique in that it featured contribu- tions by the worker himself.’O The E,nglish development took a similar, although somewhat later course.

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