Department of the Army Historical Summary: FY 1983
Special functions, such as civil works, environmental protection and preservation programs, energy conservation, and litigation are activities that deeply involve the Army in the life of the civilian community. Since the 1780s the Corps of Engineers have played a major role in the civil works of the nation. Besides benefiting the nation's residents and economy, this activity provides in time of peace a training ground for Corps of Engineers officers to develop the construction skills they need in time of war. Environmental protection and preservation programs permit the Army to work with the civilian community to preserve the nation's natural resources. The Army becomes more directly involved with the civilian community, however, in energy conservation since gas, oil, coal, or other types of energy are essential to a highly mechanized force. Such close relationships with the civilian community sometimes lead to controversy, the consequences of which are litigation involving the Army.
In recent years, the Corps of Engineers involvement in civil works has focused on developing and maintaining the nation's water resources. In that endeavour, this fiscal year the Corps primary areas of interest were flood control, regulatory functions, navigation, and dam safety.
Due to the inability of the Congress to agree upon and pass the energy and water development appropriations bill for FY 83, the Corps of Engineers civil works program was funded through the continuing authority provided by PL 97-276 and 97-377. This authority allowed the Corps to maintain its activities based on the FY 82 level of obligations. The amount received equaled $2,975,385,000. Besides these funds, $389,000,000, was allotted under the Productive Employment Appropriations Act (PL 988), and $54,800,000 in supplemental appropriations (PL 98-63). The supplemental amount includes $17,800,000 for salary increases attributable to changes in GS pay scales. Table 19 provides a breakdown of all FY 83 funds by appropriation account.
During FY 83 Corps dams, levees, and local protection projects saved the civilian community an estimated $23.2 billion in flood damages, surpassing its previous record of $19.4 billion set in FY 79. Through FY 83, Corps flood control projects prevented a total of $129 billion in flood damages, including $9.5 billion
during the past ten years. Corps undertakings were particularly effective in preventing major urban losses and evacuations in the Lower Mississippi Valley this fiscal year, despite the second largest peak flow on the Mississippi River at some locations in fifty-five years. Preliminary analysis indicates that Corps flood control projects within the Lower Mississippi Valley prevented flooding of more than fourteen million acres and flood damages estimated at $20 billion. Corps flood control works also were highly effective in preventing flood damages in parts of California and Oregon.
TABLE 19 - FUNDS BY APPROPRIATION ACCOUNT BREAKDOWN,
Fiscal Year 1983
|Operation and Maintenance, General||$1,201,367,000|
|Flood Control, Mississippi River and Tributaries||$403,052,000|
|Flood Control and Coastal Emergencies||$54,877,000|
|Special Recreation Use Fees||$4,942,000|
Beside saving lives, property, and money, the Corps flood control projects make other contributions to the national well being. By creating the demand for labor and materials, construction projects offer an important means for increasing the utilization of labor and capital resources idled by prolonged recession.
This fiscal year, the Department of the Army proposed cost sharing as a way of paying for certain types of Army sponsored water projects. Many worthy projects were not started due to a lack of federal funds, and the president did not expect an increase in federal funding for water projects in the foreseeable future. To redress this, the administration proposed cost-sharing or capitalizing on the capabilities of the project beneficiaries to assemble financing packages. Such action would also weed out marginal projects. The administration argued that nonfederal project financing, such as water supply and electric power, which are extensively funded by the nonfederal sector through the sale of revenue bonds, has been successfully funded through cost sharing. However, some services provided by water projects, most notably flood damage reduction, are not vendible; for example, flood control is not provided in the normal course of private sector activities, because the government cannot withhold benefits from beneficiaries who will not pay. Yet these benefits are just as real as
those of the vendible outputs; they can be non-federally funded when local sponsors are able to commit themselves to such institutional mechanisms as flood control districts with assessment and taxing authority to recover the projects costs from the beneficiaries.
The administration's policies on cost-sharing and financing reflected the fundamental differences among the various types of project purposes: for fully vendible services, such as hydropower, and municipal and industrial water supply, which have traditionally been funded successfully through the sale of revenue bonds, the administration expected 100 percent nonfederal financing; for recreation and beach erosion control, 50 percent nonfederal financing; for irrigation and flood control, at least 35 percent cost-sharing, with some flexibility regarding the timing of the payment in cases where contributions in the form of construction financing would impose an undue burden on the nonfederal sponsor. Because the government would recover the cost of deep-draft navigation projects, it was still working out the method of assessing those fees. The administration was proposing recovery of 70 percent of inland navigation costs through user fees based on ton-miles.
As a complement to proposals for increased project cost sharing, the administration would breakdown traditional planning studies into two parts-a reconnaissance study and then, if warranted, a feasibility study. The reconnaissance portion would explore possible solutions to identified problems in general terms, and the federal government would fund it. If the reconnaissance study demonstrated that a feasibility study might result in a feasible project, and if the nonfederal interest expressed a desire to proceed, then the federal government and the nonfederal sponsor would complete a full feasibility study with the cost shared 50/50 each. As much as half of the nonfederal share could be supplied by "in kind" services if so desired.
A working group of the Cabinet Council on Natural Resources and Environment formulated the position of the administration on non-navigation purposes. The Assistant Secretary of the Army for Civil Works formulated the Army's position. The Senate Committee on Environment and Public Works is considering both proposals, while working on the Water Resources Development Act of 1983. The bill should be out of committee early in the next fiscal year.
Another civil works function of the Corps of Engineers involves regulatory authority over construction activities by others in the nations' navigable waterways. Section 10 of the River and Harbor Act of 1899 codified this authority, and Section 404 of the
Clean Water Act of 1972, and several court decisions, made under the act, greatly expanded the Corps jurisdiction. Today the Corps exercises jurisdiction over construction, dredge and fill operations, and certain other activities in the "Water of the United States," including wetlands.
In FY 83, the Corps continued to streamline its regulatory program following a 7 May 1982 directive from the president's Task Force on Regulatory Relief. In December 1982, however, sixteen conservation groups filed suit to have certain parts of the Corps 22 July 1982 regulations revoked, charging the Corps and the current administration with "abandoning the Nation's wetlands under the guise of regulatory reform." According to the suit, the Corps' regulations allowed discharges that were illegal under the Clean Water Act, and were adopted without adequate consideration for procedures of the National Environmental Policy Act. The primary complaint involved six of the regulation's twenty-seven nationwide permits, which allowed filling without the usual regulatory controls regarding individual permits. The Corps expected an out-of-court settlement in early 1984. The Corps published proposed regulations announcing further reforms on 12 May 1983, including clarification of the jurisdictional scope of the program, expansion of general permits, increased responsibility for the states, modifications to nationwide permit procedures, and administrative changes to allow faster processing of permits. The Corps received over 350 comments from federal, state and local agencies, environmental groups, industry, and private citizens on the 12 May regulations, and scheduled a public hearing in Washington, D.C., for 12 October 1983. The Corps expects to finalize the regulations sometime in FY 84. Meanwhile, the reforms have already reduced average permit application process time by 40 percent (or to 73 days). Also, during the year, the Corps licensed about 10,000 applications through its regional permits, which authorize activities without the need for processing individual applications.
In the area of navigation, the COE continued to operate and maintain the nation's waterways and harbors, a mission it began in 1824 when Congress authorized the clearing of snags and sandbars from the Ohio and Mississippi rivers. In FY 83, the Corps operated and maintained an inland navigation system consisting of about 25,000 miles of improved channels and 204 lock sites. For the most part, the system operated without major incident, allowing the continued movement of a variety of cargoes, primarily bulk items, such as petroleum products, coal, and grains. However, a serious incident occurred on the Arkansas River, in early December 1982 during a period of high river flows, when several barges broke loose from moorings and sank in
front of, or lodged against Dam 2, with some of the barges rendering the dam gates inoperable. The high flows plus an uneven discharge through the dam nearly caused failure of the dam. The Corps completed salvaging in 1983 and made repairs to restore the dam to pre-accident condition. The Corps also began studying ways to modify the dam structure to prevent similar damage, should an uneven flow through the dam again occur. Another Corps initiative involved the closure of Kentucky River Locks 514 beginning on I October 1982. The upper Kentucky River locks served only recreational traffic and the Corps could not justify their continued operation, particularly in light of budgetary and personnel constraints. These constraints will likely continue and the closure of other waterway systems that primarily serve recreational traffic in future years is a strong possibility. Significant construction activities in FY 83 included continuing work on the Tennessee-Tombigbee Waterway, the replacement of Lock and Dam 26 on the Mississippi River, the replacement of Vermillion Lock on the Gulf Intracoastal Waterway (named Leland Bowman Lock), and the Red River Waterway.
This year the Navigation Analysis Center (NAC) of the Corps of Engineers provided Congress and OMB with the data and analysis they needed for proposed legislation concerning user charges to cover operation and maintenance cost and construction-rehabilitation cost in both shallow and deep-draft navigation. The Corps analyzed various levels and schedules of user charges and their potential impact on revenues and carriers. With the assistance of the NAC, the Corps will continue to provide this data during the coming year.
The inland waterways Performance Monitoring System (PMS) is a detailed data base containing information on the operation and performance of Corps-owned locks on the inland waterways. Three kinds of data are collected for the PMS: shift data, recorded each time there is a shift change or navigation condition change; lockage data for each vessel passing through the lock; and vessel data for commercial tows and cargo-carrying vessels. Milestones of the PMS in FY 83 were: the establishment of a PMS users group to allow wider user involvement in system changes and improvements; completion and delivery to the field operating agencies of a draft of the PMS user guide; implementation of a system to uniformly provide PMS data to private industry; establishment of the steering committee for a PMS users group; completion of the report on the effects that sampling of various types would have on PMS data collection at locks of various sizes; conversion of navigation cost recovery system from commercial to Corps-owned data processing environment; provision of customized training in data collection and editing to Buffalo, Detroit,
Louisville, Galveston, Jacksonville, New York, and Vicksburg districts; significant reduction of gaps in data reported to the PMS central library, and increase of district participation to 100 percent.
In FY 83, the Corps initiated a number of navigation studies for use through data bases. They included costs and characteristics of deep and shallow draft vessels; inland vessel costs parameters; deep draft tug and barge costs; U.S. and Foreign Flag Deep-Draft Vessel costs; costs of rail movements under the International Communications Commission's (ICCs) Uniform Rail Costing System (URCS).
In FY 83, the COE took steps to establish, from private industry, a reserve dredging fleet to augment the Corps minimum fleet in an emergency. On 21 October 1982, the Corps appointed a Corps of Engineers Reserve Fleet (CERF) board to be chaired by Water Resources Support Center-Director (WRSC-D) and consisting of one member each from the Office. of Counsel, the Office of Contracting Policy, and the Operations Branch of the Construction Division to determine the scope and concept for a Corps of Engineers Reserve Fleet. On 2 December 1982, the Corps and private dredging contractors agreed upon the concept of a CERF A basic ordering agreement (BOA) would become the contractural instrument for implementing the CERF, and the Dredging Division prepared this document with special assistance from the members of the CERF board, the Small and Disadvantaged Business Utilization Office, and representative from Corps of Engineers Divisions. On 1 June 1983, General John Wall assigned the contractual responsibility of preparing, negotiating, and executing the BOAS for CERF to the New Orleans District. During the next fiscal year, the Corps expects to accept proposals from dredging firms with hopper dredges, and then negotiate and sign for a reserve fleet.
An essential part of the civil works water resource development program is assuring that the COEs dams meet rigid standards of safety. Since its initial funding in 1980, the Dam Safety Assurance program has reviewed 619 projects (including 87 turned over to other managers for operation and maintenance). Results indicate that about 50 of these projects should be considered as candidates for dam safety improvement. Since studies are not yet complete, the precise number of projects requiring modification is unavailable. Although some of the other projects do not fully meet present day standards, their deficiencies are viewed as not significant enough to warrant inclusion in the Dam Safety Assurance program at this time. The Dam Safety Assurance program's progress through FY 83 is noted in Table 20.
TABLE 20 - CORPS OF ENGINEERS DAM SAFETY ASSURANCE PROGRAM'S PROGRESS
Fiscal Year 1983
|FY||Funds Appropriated||Number of Dams||Studies Construction|
Environmental Protection and Preservation
In the area of environmental protection and preservation, this year the Army paid special attention to hazardous waste management, automation of the Environmental Pollution Prevention, Control, and Abatement Report, and fish and wildlife preservation measures.
During FY 83, the Army initiated a number of actions concerning hazardous waste management. On 10 May 1983, the Army published Chief of Staff Regulation 5-19, Hazardous Material and Hazardous Waste Programs. This regulation prescribes policies and responsibilities for managing hazardous material and hazardous waste programs at the Army staff (ARSTAF) level. Excluded are low-level radioactive waste and NBC warfare issues. On 15 June 1983, the Army published Interim Change to AR 420-47, Solid Waste Management. These instructions outline procedures that participating installations must follow to recover the proceeds from the sale of recyclable materials. In August 1983, the DOD and the EPA entered into a MOU for the implementation of the Comprehensive Environmental Response, Compensation, and Liability Act (CERLA) better known as "Superfund." This MOU establishes policies and procedures governing interagency actions for responding to environmental pollution problems particularly the cleanup hazardous and toxic waste sites addressed by CERLA. These procedures apply to the individual services and will guide Army environmental cleanup activities.
Meanwhile, during FY 83, the Corps, as responsible agency for the technical aspects of design and construction for all federal lead Superfund remedial actions, assisted the EPA on Superfund projects. Twenty-eight technical assistance assignments were completed or underway; ten design assignments were completed or underway; and ten construction assignments were completed or underway. The total funds allocated to the Corps for these projects equaled approximately $30 million. Corps projects included cleanup of polychlorinated bipheyl (PCB) wastes and
debris at Lehigh, Pennsylvania, and removal of various chemical wastes and structures at Chem-Dyne, Ohio.
The Army Construction Engineering Research Laboratory, in cooperation with the DACE, has begun development of a pilot system to automate the Environmental Pollution Prevention, Control, and Abatement at DOD Facilities Report-commonly known as the 1383 Report. The 1383 Report, which is submitted annually to the EPA and the OMB, is used to identify pollution control projects and those resources needed to effectively carry out DA environmental programs. Remote access to the pilot automation system, once development is complete, will be through CERLs computer-based ETIS.
As part of its environmental protection and preservation mission, the Corps attempted to preserve the fish and wildlife in the areas adjacent to Corps projects. To do this, it conducted biological studies. Prompted by the Office of the Assistant Secretary of the Army for Civil Works, in FY 83 the OCE initiated a nationwide study to determine the appropriateness and efficiency of having the FWS receive Corps funds to conduct biological studies through formal interagency agreements, as compared to having these same studies performed in-house or by other means. In September 1983, the Corps Institute for Water Resources (IWR) submitted to the OCE the results of studies of some 700 Fish and Wildlife Coordination Act (FWCA) reports produced by the FWS for 519 Corps projects. Their findings concluded that the FWS performance was responsive, timely, technically adequate, and efficient; costs related to FWS studies were reasonable, generally comparable to in-house costs, and less expensive than consultant and private contractor or university costs.
The Sport Fishing Institute also initiated a study to evaluate the fish and wildlife planning at Corps of Engineers reservoir projects. The major thrust of the study was to compare the preconstruction fish and wildlife recommendations with the actual changes in the fish and wildlife resources following the project construction. Also, of specific interest was the acquisition of mitigation lands and their management. Upon completion of the twenty individual reservoir project evaluations, the institute prepared a final report summarizing the pre-construction forecasts and the post-construction results and trends of the fish and wildlife resources. It expected to complete the report in November 1983.
Culminating several years of study effort, the Mobile District completed the Tennessee-Tombigbee Wildlife Mitigation Feasibility Report in July 1983. The purpose of the study was to determine the amount of justified fish and wildlife mitigation
measures needed in compensation for losses incurred by construction of the 232 miles long Ten-Tom Waterway Project. The Ten-Tom project extends from Alabama's Tombigbee River navigation system through a divide cut into Pickwick Pool on the Tennessee River. The district's recommended plan suggests intensive management of wildlife on 72,500 acres of project lands and 16,000 acres of other Corps lands. To complete the mitigation, the report recommended management of an additional 26,000 acres of flood-plain forest. The Board of Engineers for Rivers and Harbors (BERH) received the report in September 1983, and, at the end of the fiscal year was reviewing it.
Army Energy Program
This year, the Army's Energy Program focused on developing alternative sources of energy and energy conservation. The Army's energy consumption in fixed facilities during FY 83 was 14.4 percent below the energy consumed during the base year FY 75. Although this performance was better than that in FY 82, the desired FY 83 target was not achieved. Even though energy consumption decreased, the overall dollar costs of energy continued to escalate due to increasing unit costs, particularly for natural gas and electricity. In fact, while other major forms of energy generally decreased, electrical energy consumption increased at most installations.
The Army used a wide range of initiatives to reduce energy consumption. The Department of the Army, Major Commands, and installations employed on-site reviews, seminars, contests, technical sessions, and various personnel motivation efforts. The Army also provided increased funding for operations and maintenance, Army energy-related projects, particularly in USAREUR. During FY 83, the Army provided $62.7 million for accomplishment of 96 projects in the Energy Conservation Investment program for Active Army and family housing facilities.
The Army uses 84 percent of the energy it consumes annually to operate its installations. The cost of this energy is $1 billion per year. To manage the use of energy resources on Army installations more effectively, it has characterized the electric and thermal energy consumption profiles for typical Army buildings from two standpoints: their response to weather conditions and their time-dependency. The characterization includes equations that relate electrical and thermal energy consumption to heating and cooling degree days. The Army has completed a report and an Engineer Technical Note detailing the characterization for six commodity groups (family housing, troop housing,
administration, maintenance, community facilities, and storage facilities). Use of this information will reduce planning time and result in more effective use of energy dollars.
The Army also estimated the percentage of energy consumed by process activities at each DARCOM installation. The results clearly indicated the breakdown between process and nonprocess energy within DARCOM, and enabled the Army to update and track DARCOM process energy consumption. The DARCOM Energy Office used the individual estimates to develop energy conservation plans, which permitted the Energy Office to partition energy conservation efforts between buildings and processes.
Title 10, United States Code, requires that the Army perform solar feasibility studies for all new military construction where the use of solar energy has the potential for displacing fossil fuel. To make these studies as inexpensive as possible, the Army developed a computer program, known as SOLFEAS (Solar Energy System Economic Feasibility Program), that ranks prospective projects for four district thermal applications. The user friendly computer program has been under pilot research in six Corps districts. The results indicate that solar studies, which usually take a month to perform and cost up to $20,000, can be performed in an hour at a cost of less than $50, and with the same precision.
This year the Army initiated a program at Fort McClellan, Alabama, to demonstrate energy conservation on an installation wide basis, concentrating on implementation of rapid payback energy conservation technologies and intensive energy management techniques. The rapid payback technologies included the continuous sampling of combustion gases on central plant boilers and the automatic adjustment of boiler fuel and air ratios for optimal efficiency; the development and installation of a load-dispatching system to permit the central plants to provide an output just sufficient to meet the most demanding customer; radio control of exterior lighting, .systematic reduction of forced outdoor air ventilation rates on all major air-handling systems; improved fan efficiencies; techniques to improve air tightness in family housing; automated condenser tube cleaning to enhance chiller performance; summer shutdown of central plant systems by providing on-site domestic hot water generation; and optimization of small building boiler efficiency. Management activities included metering of major energy users, such as central plants and large barracks complexes, central plant operating schedule changes, continuous Heating, Ventilating, and Air Conditioning (HVAC) control system calibration, and increased emphasis on energy conservation.
During FY 83, Army activities and policies continued to be the subject of frequent litigation. Its personnel policies were again attacked in federal court, and its commercial activities came under close review as a result of the DODs increased emphasis on the debarment and suspension of contractors.
The RELOOK cases, concerning officers released from active duty because of their nonselection for temporary promotion, again provided a significant workload. Fifty-three cases involving 100 plaintiffs in the U.S. Claims Court, 6 cases involving 9 plaintiffs in the U.S. District Court for the District of Columbia, and 20 consolidated cases involving 49 plaintiffs in the U.S. Court of Appeals for the Federal Circuit were pending at the close of the fiscal year.
The Army has settled certain of these cases resolved by earlier decisions, and is litigating issues not previously decided. In Goble v. Marsh and Stone v. United States, the Army won significant victories regarding the extent RELOOK plaintiffs can recover pay claims in U.S. district courts. These victories resulted in the transfer of many cases to the U.S. Claims Court and will cause most future cases to be brought there. In Bockoven v. Marsh, all remaining RELOOK issues went before the U.S. Court of Appeals for the Federal Circuit. The Army won on all issues at the district court level. Bockoven may provide definitive resolution to the RELOOK problem because under the Federal Court Improvement Act of 1982, appellate jurisdiction for all RELOOK cases should be in the U.S. Court of Appeals for the Federal Circuit. Further, the Department of Defense is considering a legislative proposal to cure some of the problems created by this litigation.
Although progress has been made in many of the cases arising from Army testing of hallucinogens, several cases remain before the courts. In Stanley v. U.S. et al., the district court ruled that Mr. Stanley could bring a suit for money damages against his former military superiors for alleged violation of Mr. Stanley's constitutional rights. Since this decision is inconsistent with the Supreme Court's 1983 decision in Chappell v. Wallace, which held Navy members could not sue their commanders for money damages for alleged constitutional violations, the Army is appealing the ruling.
Three related cases Barrett v. United States, Barrett v. Hoffman, and Barrett v. Arthur concerning the death of a civilian after the administration of mescaline as part of an Army research contract received new life when the Second Circuit Court overturned a favorable district court opinion and ordered a trial on the merits.
At the end of the fiscal year, no trial date has yet been established. In litigation concerning the atmospheric nuclear testing program, Broudy v. United States, remained the leading case. The Broudy decision upheld the Feres decision, which precludes suits for injuries received incident to military service. However, the Ninth Circuit Court allowed Mrs. Broudy to file an action for a "post-discharge tort" because the government failed to warn her husband of the continuing dangers of exposure to radiation after he left the service. This new action was pending at the end of the fiscal year. Three other radiation cases were also pending in district court.
Although the United States was dismissed as a party defendant in the "Agent Orange" litigation in a preliminary order in December 1980, the Army has continued to be heavily involved in the case by providing numerous documents relevant to the remaining parties.
The lawsuit challenging the constitutionality of the Army's chaplaincy program because it allegedly violated the First Amendment to the Constitution, Katcoff v. Alexander, is still pending decision on cross motions for summary judgment.
In sole parent litigation, the only pending case is Mack v. Rumsfeld, a class action which challenges the Army's policies on the enlistment of sole parents in the Regular Army, the Army Reserve, and the Army National Guard. Army regulations currently proscribe the first-time enlistment of any applicant without spouse, who has a child under 18 years of age, unless the child is placed in the custody of another adult, by court order, or as prescribed by state law, and is not required to pay child support. Extensive discovery, pursued by the plaintiffs, has been completed. The Army renewed its motion for summary judgment in 1983 and is awaiting a decision.
In Rich v. Secretary of the Army, appeal pending, the plaintiff is a former Army enlisted man who was discharged for fraudulently concealing at the time of his enlistment that he had previously engaged in homosexual acts. The district court ruled in favor of the Army and dismissed the case. Appeal to the Tenth Circuit was pending at the close of the fiscal year. In another case challenging the Army's mandatory policy of discharging homosexuals- Watkins v. Department of the Army- the district judge rejected the Army's arguments and ordered that Watkins, an admitted homosexual, be reenlisted in the Army. The Ninth Circuit Court reversed the decision, finding Watkins' claims to be nonreviewable. At the end of the fiscal year, two other cases challenging the mandatory discharge of homosexuals were pending- Matthews v. Marsh, awaiting decision after an
evidentiary hearing, and Krugler v. U.S. Army, pending filing of a motion for summary judgment.
This year, the Army Civilian Personnel Branch was involved in a number of cases. The plaintiffs petition for a writ of certiorari to the Supreme Court was denied in A.F.G.E. v. Brown. This left undisturbed the lower court's decision in the Army's favor in the lawsuit, which challenged contracting out under the Commercial Industrial Type Activities program at Fort Gordon, Georgia.
The Army won a significant equal employment opportunity class action victory in Harris v. Marsh, when the district court denied plaintiffs motion for class certification. Shortly after this decision, forty-four additional individual plaintiffs were permitted to intervene in the lawsuit, which alleges racial discrimination in employment at Fort Bragg, North Carolina. Trial of these individual cases is set to begin in February 1984.
The Eleventh Circuit Court of Appeals reversed the district courts denial of class certification in Lawler v. Alexander. Although a class has been certified in Lawler, the Army is still contesting liability. The district court found for the plaintiffs in Goldman v. Marsh, and a hearing on relief was pending at the end of the fiscal year. Several other class actions are still pending.
The Army Commercial Branch saw increased activity in terms of both litigation and debarment and suspension during this fiscal year. It soon became evident that the Claims Court and the Court of Appeals for the Federal Circuit, which were created by the Federal Courts Improvement Act on 1 October 1982 intended to keep their dockets current. The Claims Court, exercising its new authority to grant equitable relief prior to award of government contracts, required especially fast responses to motions for injunctions by disappointed bidders. The Commercial Branch achieved much success in defending these cases in both the Claims Court and the district courts. Many of the cases involved challenges to the acquisition of critically needed equipment.
In other significant litigation developments, the case of Peter Kiewit Son's Co. v. U.S. Army Corps of Engineers, held that the plaintiff must exhaust its administrative remedy available within the Army's debarment process before filing suit.
An increase in both affirmative and defensive environmental litigation occurred including a suit for recovery of the costs of cleaning up contamination resulting from "midnight dumping" on Fort Bragg, and a suit against an Army contractor for allowing the discharge of hazardous chemicals into the groundwater near Saint Paul, Minnesota.
The area of debarment and suspension continued to receive increased emphasis from the Defense Department and Army leadership. In May, the Secretary of Defense directed that each service establish a central point to coordinate and monitor civil, criminal, administrative, and contractual remedies pertaining to fraud by government contractors. In September the Army Management Evaluation Policy Committee decided to give the mission to the Office of the Judge Advocate General. A decision was made to create a separate Contract Fraud Branch within the Litigation Division. At the close of the fiscal year, the division was seeking the resources necessary to create such a branch.
Also this year, the Army eliminated the Special Litigation Branch and transferred its few remaining cases relating to intelligence activities to the Commercial Branch.
In FY 83 a virtual "explosion" occurred in Federal Tort Claims Act (FTCA) litigation, particularly in medical malpractice cases, which increased by 55 percent. All signs point to continuing increase in the future with over 500 administrative claims for medical malpractice currently pending at the U.S. Army Claims Service.
Two cases, Morris, et al. v. United States, and Conley, et al. v. United States demonstrate an important development in the malpractice area. Both cases concern claims of malpractice outside the United States, which normally would be barred by the foreign claim exception to the Federal Tort Claims Act. In these cases, however, plaintiffs have alleged negligence by officials at DA level in the staffing of Army Medical Facilities overseas. If these actions are allowed to continue by the Federal Courts, they could open up a new and substantial class of cases previously barred.
There have also been significant developments in the Army Medical Care Recovery program. Efforts to recover cost of medical care in states in which tort liability has been abolished in favor of a no-fault insurance system have encountered serious challenge. The United States has been denied the right to recover under the Kentucky and Georgia no-fault statutes, and those cases are now on appeal to the Sixth and Eleventh Circuit courts, respectively. In prior cases, recovery has been allowed under no-fault laws in New York, Colorado, and Florida, but not in Pennsylvania, Michigan, or North Dakota. A legislative proposal to remedy the situation is scheduled for introduction in the next Congress. Meanwhile the Medical Care Recovery program continues to improve, with FY 83 recoveries expected to surpass FY 82 by half a million dollars.
Government contractor cases with potentially high liability continue to mount. An explosion during the repair of a JP-4 fuel storage tank in Newington, New Hampshire, resulting in two
employee deaths and one serious injury led to multimillion dollar claims in Audlee v. New England Tank Industries et al., and related cases. Similarly, an explosion at Radford Army Ammunition Plant, Virginia, which caused serious injury has also resulted in three potentially high liability lawsuits- Fortney v. Envirotech, et al.
General lawsuits involving unusual and interesting subject-matter could present considerable discovery problems. In Hohri et al. v. United States, 120,000 Japanese-Americans interned during World War II have sued for $2.5 billion alleging violations of various constitutional rights. In Price et al. v. United States, plaintiffs claim ownership rights in artwork attributed to Adolf Hitler. The United States acquired possession of these materials at the end of World War II pursuant to the laws of war and international treaty obligations, but plaintiffs now seek to recover them. Both cases may involve discovery of voluminous documents and other materials which go back over forty years.
Lastly, cases abound that arise out of alleged constitutional torts, vehicle accidents, firing range mishaps, and exposure to toxic chemicals. These cases have the potential for significant increases in FY 84.
In FY 83, Army initiative in executing its special functions contributed to the national well being as well as to the development of an Army of Excellence. In FY 83 its planning, engineering, construction and management of water resources saved lives, property, and money, while advancing its ability to respond to mobilization construction missions. Its policies and actions involving environmental pollution problems benefitted the nation's residents, while its energy conservation program ensured the preservation of a mechanized force. The civilian community's concern with the Army's actions in all these areas, however, sometimes led to controversy and litigation. In settling many of these cases, as well as those involving its own personnel policies, the Army made progress this year. As for the RELOOK cases, about officers released from active duty because of their nonselection for temporary promotion, the Department of Defense began to consider legislation to cure some of the problems created by this litigation.
Return to Table of Contents
Last updated 9 March 2004