# State of Maryland for the Use of Nadine Y. Levin v. United States of America, State of Maryland for the Use of Sydney L. Johns v. United States

> Court of Appeals for the Third Circuit · April 28, 1964 · 329 F.2d 722

URL: https://www.frixlaw.com/law-library/cases/9449949

## Case

- **Full name:** STATE OF MARYLAND for the Use of Nadine Y. LEVIN, Et Al., Plaintiff-Appellees, v. UNITED STATES of America, Defendant-Appellant; STATE OF MARYLAND for the Use of Sydney L. JOHNS, Et Al., Plaintiff-Appellees, v. UNITED STATES of America, Defendant-Appellant
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** April 28, 1964
- **Citations:** 329 F.2d 722
- **Precedential status:** Published
- **Opinion:** Concurrence by Hastie
- **Judges:** Staley, Hastie, Smith
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9449949

## How later opinions describe it (automated extraction)

- holding that a Guardsman, when not federally activated, “was an employee of the State of Maryland” because he was ultimately “subject to the supervision and control . . . of [Maryland’s] Adjutant General”

## Opinion text

HASTIE, Circuit Judge
(concurring in result).
I ágree with Judge SMITH that the flight during which this accident occurred was not an undertaking of a civilian caretaker in performance of his responsibility for aircraft maintenance. Rather, it was a “proficiency flight”, a training activity, properly undertaken by Captain McCoy in his capacity as an officer of the Maryland Air National Guard.
*732 The fact that any incidental observations this pilot might make concerning the performance of his plane would be communicated to and used by civilian technicians in the servicing or maintenance of the plane did not change the basic character of this training flight. Neither, as I see it, did it matter that the officer flying the plane had a second military responsibility as “squadron aircraft maintenance officer” and a separate and distinct civilian job at the airfield as a caretaker and aircraft technician. We all agree that in his capacity as a National Guard officer, whether functioning as a pilot or as the squadron aircraft maintenance officer, Captain McCoy was not a federal employee within the meaning of the Federal Tort Claims Act. I think it is irrelevant that as a civilian caretaker and mechanic he might put to use the information he had acquired during the performance of one or both of his other responsibilities as a National Guard officer.
The considerations and conclusions stated in the foregoing paragraph are a sufficient basis for reversing the judgment of the district court and requiring the dismissal of this action. Therefore, I do not reach the more difficult and far-reaching question, whether a civilian caretaker and technician, employed as provided in section 709 of Title 32, United States Code, is a federal employee within the meaning of the Tort Claims Act.
I join in the decision reversing the judgment of the district court, but without expressing any opinion upon that portion of the disagreement between my colleagues which concerns the status of civilian aircraft maintenance workers employed to care for federally owned planes while in the custody of National Guard units.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9449949. Public record. Not legal advice.