Civil/General Law Flashcards
(124 cards)
1
Q
Who has the SECAF delegated the ultimate/final authority over Art 138 complaints?
A
HQ USAF/JAA
2
Q
What is the complaint process for an Art 138 complaint?
A
1) Initial application to CC
2) CC’s review
3) CC notifies member
4) Member makes a formal 138 complaint
5) GCMCA’s review
6) GCMCA notifies member and forwards to JAA
7) SECAF review completed by JAA.
3
Q
What types of claims can be filed on the AFCSC website?
A
HHG claims:
- Hold Baggage
- Shipped motorcycles/vehicles
- Vehicle storage
Non-HHG Claims:
- Disaster
- Food spoilage
- Thefts
- Vandalism
4
Q
What are the items to remember on the AFCSC website?
A
- Left side screen buttons (home, FAQ, contact info, continue existing claim, other services claims websites)
- File HHG claims
- File non-HHG claims
- Key dates to remember when filing claims
5
Q
What statue covers the FTCA?
A
28 U.S.C. § 1346(b), 2671-2680
6
Q
What statue covers the MCA?
A
10 U.S.C. § 2733
7
Q
What regulation covers administrative claims?
A
32 CFR Part 842
8
Q
What is a tort?
A
When a party causes personal injury/damage to another.
9
Q
What is a civil wrong?
A
A negligent or wrongful act or omission of an act.
10
Q
What are the elements of a tort?
A
1) Whether someone had a duty to do/not to do something
2) If someone breached or violated that duty
3) Breach was proximate cause of that damage or injury
11
Q
What are the statutory requirements of FTCA?
A
State law takes precedent in substantiating the claim.
Federal law takes precedent for the two year statute of limitations and the filing of the claim before suing.
12
Q
What are examples of proper & improper claimants under FTCA?
A
Owners of property that was damaged, injured persons, executors of diseased or persons who have been given that power.
Improper claimants are anyone who isn’t a proper claimant.
13
Q
What is the statute of limitations under FTCA?
A
Two years from date of incident or when the person should have reasonably known.
14
Q
What are the elements of FTCA that must be met in order for a claim to be payable under the act?
A
1) Injury to person or property
2) Due to negligence or wrongful act or omission
3) Employee of the US gov (military/civil svc/NAFI employees)
4) Employee was acting within the scope of the employment
5) USG is treated as a private person and adopts that same liability
15
Q
Which topics are defined by state law under FTCA?
A
- Damage limitation
- All defenses available to private person
- Cause of action (tort elements)
- Scope of employment
16
Q
What is the feres doctrine?
A
Military member’s family member cannot sue the military for damage/injury/death incident to service.
17
Q
What are the statutory requirements of the MCA?
A
State law applies where the incident or accident occurs
18
Q
What is a proper claimant under the MCA?
A
Proper claimants: citizens or inhabitants of the U.S., federal civilians, non-citizens of the US if it happened in the U.S., state counties, political subdivision.
Improper claimants: govt’s of foreign nations, inhabitants of foreign countries.
19
Q
What types of damage/injuries/incidents would be considered a noncombat activity under MCA?
A
Anything that is military in nature and it must only have a causal connection.
20
Q
What are the important steps to follow when preparing/conducting a witness interview?
A
- Review witness/case info
- Face-to-face, telephone, or VTC
- Identify your role as a rep of the AF
- Take careful notes
- Don’t record
- Report criminal conduct to JACC if discovered.
- Do not conduct the witness interview alone
21
Q
What must every witness interview memorandum begin with?
A
A work product statement.
22
Q
What offices can provide reports/info that can assist with claims?
A
- SFS
- Transportation Office (LRS)
- CES
- Flight Operations
- Commissary and AAFES
23
Q
What is the purpose of a potential claim file?
A
To preserve evidence, maintain claimant information, and maintain continuity.
24
Q
When should you prepare a potential claim file?
A
When a major accident, natural disaster (hurricanes), or military activity occurs where there may be potential claimants as a result of the damages.
For 5 or more claimants, prepare a master claims file.
25
T/F: Regardless of the type of claim, if the incident resulting in a claim occurs overseas it will be processed under MCA.
True.
26
What three important items to remember when processing a tort claim?
- Agency has six months to process/consider
- SJA can process claims $25k and under
- Forward all claims over settlement authority to JACC w/in 72 & file in WEBAFCIMS.
27
T/F: If an agency has not responded to a claimant regarding their claim it is considered approved.
False, it is considered denied.
28
What claims are always transferred to JACC?
- Medical/legal Malpractice
- Personal Injury
- Government Contractor
- Injury or Death
- Admiralty Claims
- Civil Air Patrol
29
What do you provide to the claimant if you believe payment is appropriate?
A settlement offer and agreement
30
What are the requirements for a denial letter of a claim?
- Title and legal citation of statute in letter
- Photocopy of letter
- Sent via certified/registered w/ return receipt requested
31
What organization pays out claims for amounts greater than $2500 under FTCA?
The judgement fund U.S. treasury.
32
Which organization pays out claims for amounts less then $2500 under FTCA & MCA?
AFCSC via AF 1034
33
T/F: The date that a denial letter is mailed should be the same as the date on the letter.
True.
34
If a claim was denied under FTCA, what info must be included in a demand letter?
- "This is the final denial of your claim"
| - Can file suit in district court w/in 6 mo of date letter was mailed
35
If a claim was denied under MCA, what info must be included in the demand letter?
- "This is the final denial of your claim"
| - Can appeal within 60 days of date letter was mailed
36
T/F: Appeals for claims are sent back to the authority who denied the claim.
True.
37
What statute allows us to file g-claims?
31 U.S.C. 3711
38
What are g-claims typically filed for?
Damage to US gov't/NAFI property caused by a negligent or wrongful act.
39
What is the statute of limitations for g-claims?
3 years from the date the gov't knew or should have known property was damaged.
40
What law is used to evaluate liability for g-claims?
The state law of where the incident occurred.
41
What is used to assert a g-claim?
A Notice of Claim Memo with a statutory right under the federal collections act.
Sent via certified mail, return receipt/requested.
42
If someone doesn't reply to a notice of claim memo, what do you do?
Send them a 60 day due process letter, forward the letter to JACC, and transfer the claim to JACC in WEBAFCIMS.
43
Where is the money from g-claims deposited?
U.S. Treasury Miscellaneous Receipts Account using DD 1131
44
Can a g-claim be terminated?
Yes if the evidence doesn't substantiate the claim or if the claim is without merit.
45
Who can compromise on a settlement of a g-claim?
SJA if they are the settlement authority or JACC if they are the settlement authority.
46
What is the purpose of an AIB?
To provide a publicly releasable report of the facts/circumstances surrounding the accident with statement of opinion.
47
Which accidents require an AIB?
On-duty Class A accidents involving aerospace assets or anything w/ high public interest.
48
What is the composition of an AIB?
- President
- Legal Advisor
- Recorder
(optional)
- Maintenance Member
- Medical member
- Pilot member
49
Who is typically a President on an AIB?
- Must come from outside mishap wing
- FGO or GO
- Fatality requires GO or GO select
- Completed AFSEC Board President Course
50
Who is typically the legal advisor for an AIB?
- Must come from outside the mishap wing
- Completed AIB course
- For a fatality, will be FGO
51
Who is typically the recorder for an AIB?
- Enlisted or junior officer
| - For a fatality, must have completed A1C
52
What are the details of the legal advisor and the recorder?
- Acts as liaison with MAJCOM JA and base JA.
- Oversees evidence collection/preservation/disposition
- Witness interviews
- Prepares A1B reports and post-investigation memo
53
What are the recorder-specific duties?
- Establish contact w/ base legal
- Set up work center
- Contact AF/JAT for CR support
- Assist LA in checking privileged info so AIB won't be conflicted out
- Redact FOUO/PA info from P1
- Attend and plan meetings
- Schedule/attend witness ints
- Conduct pre-interview briefs w/ witnesses
- Obtain witness contact info for post interview memo
- Gather evidence
- Assist in ensure report including tabs are set up for public release
54
What is the summary of facts within an AIB report?
Break down of each topic. There is no opinion, it is factual in nature.
55
What is the statement of opinion in the AIB report?
Opinion of the AIB president and is publicly releasable.
56
What is the executive summary in an AIB?
Summary of facts and circumstances and is written so it is easily readable by the public.
57
List examples of unauthorized practice of the law.
- Practicing law in a jurisdiction where doing so violates the regulation of that jurisdiction
- *Non-lawyer, or suspended or disbarred lawyer engaging in the practice of law such as representing clients, setting legal fees, drafting legal documents, or giving legal advice without a law license parameters may also constitute UPL
58
_________________ is a rule of evidence protecting confidential communications between a lawyer and a client from disclosure.
Attorney client privilege
59
Giving ____________ is when someone recommends a course of conduct or a particular action to a client.
legal advice
60
What is the basic ethical principle that a lawyer shall not reveal information relating to the representation of a client?
Confidentiality
61
What is the definition of exculpatory?
Tending to clear from a charge of fault or guilt.
62
List examples senior supervising attorneys.
Base: MAJCOM SJA
Defense: AFLOA/CC
ANG: ANG Assistant to TJAG
63
What is the process for reporting professional misconduct/ethical violations?
- Complaint sent to TPRA
- Credibility determination is made
- Could result in formal inquiry
64
What are the two areas of concurrent conflicts of interest?
- When an attorney represents a client that who is directly adverse to another client
- When representing a client has the potential to pose a significant risk
65
________ is a constant and earnest effort to accomplish what is undertaken.
Diligence
66
Legal knowledge, skill, thoroughness, and preparations are key principles in a paralegal's ___________.
Competence
67
What is the general gift rule?
Do not solicit or accept gift from prohibited source or if the gift is given because of official position
68
What are some key legal issues in a PO review?
- Nature
- Function
- Objectives
- Membership Criteria
- Sources of Income
69
Unauthorized release of Privacy Act information could possibly result in a ____________ and a ____________.
1) Misdemeanor criminal charge
| 2) A fine for up to $5000 per incident
70
What are some "must do's" when processing Privacy Act request?
1) Always process under Privacy Act & FOIA
2) Unless something specifically states it cannot be released, it generally should be released to the individual the information is about
71
When a subject requests info under PA, if an ________ has been claimed then process a Privacy Act request under FOIA, otherwise release the complete record being requested.
Exemption
72
Where can Privacy Act exemptions be found?
SORN (System of Records Notices)
73
What are the procedures to be taken when processing a Privacy Act request for a third party?
- Determine purpose (official or non-official?)
- If non-official -> FOIA
- If official, check for exemption.
- - If an exemption applies, then process under PA, otherwise FOIA.
74
What are the two timelines that must be met when processing Privacy Act request?
- 10 workdays to notify that the request has been received.
| - 20 workdays to process the request
75
Who is the approval authority for POs and fundraisers?
The installation commander--usually delegated to MSG/CC or FSS/CC
76
What are some common issues in reviewing fundraising requests?
- No more than 3 per quarter
- No duplicating AFFES/NAFI activities
- No alcohol
- Cannot solicit funds on base
- Cannot be in uniform or on duty
- No frequent or resale activities
77
The SJA is the release authority for official information on ________________ in civil court litigation.
Air Force business
78
Who is the release authority for individuals who may appear before state and local legislative bodies?
AF/JAA
79
________ is the release authority for individuals who may appear for matters in civil litigation.
AFLOA/JACL
80
AFLOA/JAQ is the release authority for individuals who may appear for matters in ____________.
Commercial litigation
81
Who will decide if an AF person can testify if the AF has a direct/indirect interest?
Litigation Division or AFLOA/JACL
82
Briefly describe the procedure for processing a FOIA request.
1) FOIA Monitor logs/tracks request and forwards to OPR
2) If full release of info by OPR, no JA review
3) If partial release or denial of release, JA conducts review
4) Denial Authority is MAJCOM and MAJCOM JA conducts 2nd review
83
Who is the appeal authority for FOIA requests?
SAF/GC. JACL-IL drafts the response and 3rd review of the request.
84
What is the purpose of HIPAA?
To protect protected health information (PHI) of individuals - living or deceased.
85
PHI shall not be released or disclosed by ______________ except for specifically permitted purposes.
Covered entities
86
List covered entities under HIPAA.
1) Healthcare providers
2) Health Plans (TRICARE etc)
3) Health Clearinghouses (billing companies)
4) Business Associates
87
List situations where PHI can be used freely.
1) Treatment
2) Payment
3) Healthcare Operation
4) When the person is requesting info about themselves
5) Pursuant to authorization (Ex: If someone gives POA for HIPAA)
6) As permitted by the privacy rule.
88
Who is the release authority for information from judicial proceedings involving the AF?
DoJ and US Attorneys
89
________ release official info to the DoJ and US attorney on request.
SJAs
90
What are some of the key legal issues in a review of a PO?
- Nature
- Function (cannot discriminate within the org)
- Objectives
- Membership Criteria (all assigned personnel need to be a part of the membership)
- Sources of Income (has to be raised by the org itself or the member)
91
Explain the information required in the CC's discharge notification letter.
- Proposed discharge
- Reason(s) for action
- Ineligible to reenlist
- Sexual assault reporting statement
- Right to counsel w/ appt date/time
- Right to submit statements
- Failure to seek counsel/submit statement
- Medical exam w/ appt date/time
- Privacy Act
- Where a copy of AFI can be found
92
List the contents of a legal review of an admin discharge.
- BLUF / Introduction
- Facts (Evidence for the Government)
- Member’s Response (Evidence for the Respondent)
- Law and Analysis - Answer 4 Qs!
- Errors and Irregularities
- Options for separation authority
- Recommendation from JAG
93
Define attorney-client privilege.
A rule of evidence protecting confidential communications between a lawyer and a client from disclosure.
94
What is confidentiality in terms of an attorney-client relationship?
The basic ethical principle that a lawyer shall not reveal information relating to the representation of a client.
95
____________ is recommending a course of conduct or a particular action to a client.
Legal advice
96
What are some examples of unauthorized practice of law?
1) Practicing law in a jurisdiction where doing so violates the rules of that jurisdiction.
2) Non-lawyer, suspended or barred lawyer engaging in the practice of law.
97
Under what circumstances should someone report professional misconduct or ethical violations?
Once they have knowledge of another attorney or judge's conduct that violates rules, calls integrity into question, and calls 'fitness' to practice law in the question.
98
Who is the proper authority for reporting professional misconduct/ethical violations for judges and attorneys?
Judges: Chief Trial Judge of the Air Force
Attorneys: Senior Supervising Attorney
99
Who is the senior supervising attorney for JAGs?
Base Legal: MAJCOM SJA
Defense: AFLOA/CC
ANG: Assistant to TJAG
100
What are the three fiscal law principles?
1) Purpose
2) Time
3) Amount
101
The _________ fiscal principle asks the question, "Are you using the correct pot of money?" and, "Is the purchase you're about to make a necessary expense?"
Purpose
102
The _________ fiscal principle asks if you're using money from the correct fiscal year.
Time
103
The _________ fiscal principle asks if you have enough money at the right time.
Amount
104
___________ projects are completed in order to preserve or maintain a facility (replacing filters, painting, calking).
Maintenance.
105
___________ projects install or assemble a new facility or add an addition/expansion to an existing facility.
Construction
106
What is the Anti-Deficiency Act?
A series of statutes to prevent coercive deficiencies from spending excess of apportioned amounts.
107
List some administrative sanctions of the Anti-Deficiency Act.
1) Admonishment or Reprimand
2) Suspension w/o pay
3) Relief of command
4) Adverse EPR/OPR
108
What are some of the possible criminal sanctions of an ADA violation?
Knowing/willful violations result in $5k fine, two years in prison, or both.
109
What is the bona fide need rule?
Agencies may only obligate appropriated funds during a period of availability to satisfy a current bona fide need.
(Ex: Buying paper for 5 years would not satisfy a bona fide need)
110
___________ Acts are statutes that provide/restrict authority for the gov't to use public funds.
Authorization
111
___________ Acts are statutory authorization to incur obligations and make payments out of the US Treasury.
Appropriation
112
When issuing a civilian administrative derogatory paperwork, you must state ___________ for the paperwork and notify them of the ___________.
1) specific reasons (evidence such as statements/docs/investigative reports)
2) Proposed action (i.e. reprimand/suspension/reduction in pay or grade)
113
What is the 'general' gift rule?
Do not solicit or accept gifts from prohibited sources because of official position.
114
What are not considered gifts under the JER?
- Modest items/food/refreshments
- Items with low intrinsic value
- Discounts available to public
- Rewards/prizes available to public
115
Gifts that have a value of ____________ are authorized.
$20 or less and not more than $50 cumulative value for the whole year
116
T/F: A gift with greater than $20 value that is given because of a personal relationship is authorized.
True.
An example would be a baby shower for a co-worker.
117
On special, infrequent occasions a subordinate may give or donate toward a gift to a superior that may not exceed ________.
$300
118
T/F: When receiving gift from a foreign gov't you cannot accept it even if you're trying to avoid embarrassing or offending the donor.
False.
119
If you receive a gift greater or equal to this value from a foreign gov't, it becomes property of the US.
$415
120
If an officer is being discharged 'not for cause' then ____________ will process the discharge and ___________ will approve/disapprove the discharge.
1) AFPC
| 2) SECAF
121
What are some examples of 'not for cause' discharges?
- Non-select for promotion
- Loss of a license/training to perform duty
- Reached max years of svc
- Loss of ecclesiastical indorsement
122
T/F: You can separate an officer with an entry-level service characterization.
FALSE
123
What is the difference between a probationary officer and a non-probationary officer?
Probationary officers have spent less than 6 years on AD.
Non-probationary officers have been on AD for 6 years or more.
124
Why do we not do codicils in the military?
It has the same execution requirements as a will.
