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”
How later courts described this case
- 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”
- National Guard units are independent military forces subject to the exclusive jurisdiction of the states, except when they are called into the active service of the United States
Written by the judges who cited it.
The opinion
STALEY, Circuit Judge
(dissenting).
In my judgment the decision of the majority is erroneous for the reason that it is premised on the resolution of a question which is not germane to the issue in this case. The majority reasons that constitutional and historical considerations make it manifest that, for the purposes of the Federal Tort Claims Act, members of the Air National Guard are state and not Federal employees. Until today that question had been left open in this Circuit. O’Toole v. United States, 206 F.2d 912 (C.A.3, 1953). In the Second Circuit, see Courtney v. United States, 230 F.2d 112 (C.A.2, 1956). In my view, the United States maintains such control over members of the National Guard even while they have not been called into active service that they are “employees of the Government” within the meaning of the Federal Tort Claims Act. But I leave that question to another day, for, as the majority states, “The first and most important question for decision is whether the relationship between the United States and Captain McCoy, in his civilian position as an air technician, was that of employer and employee within the meaning of the statute.” (Emphasis supplied.) On this question, historical and constitutional considerations as to the status of members of the National Guard are simply not relevant. For we are concerned with the status of Captain McCoy, not as a member of the National Guard, but as a civilian caretaker or air technician employed under 32 U.S.C. § 709 (a) “to care for material, armament, and equipment of the Air National Guard * * * ” which is property of the Federal Government.
On this, the vital question in this case, the majority candidly admits that each and every one of the reported cases is arrayed against it, for each of them holds that when acting in this capacity such a caretaker is an “employee of the Government” within the meaning of the Federal Tort Claims Act. See the cases cited in the majority opinion.
The undisputed evidence in this case makes it abundantly clear that in addition to his duties as a member of the Air National Guard, Captain McCoy was employed as a civilian maintenance technician pursuant to 32 U.S.C. § 709 . Indeed, the record shows that the major *733 portion of his salary resulted from his employment in this capacity, and that he was so employed on the very day of this tragic accident. Pursuant to § 709(f), his salary was fixed by the Secretary of the Air Force, who had designated the Adjutant General of the Maryland National Guard to employ him. Thus, in this capacity, McCoy was employed under Federal law, received his pay from Federal funds, cared for Federal property, and his duties were fixed by Federal regulation. As the Court of Appeals for the District of Columbia has held with respect to this very individual in companion suits brought by the survivors of others killed in this catastrophe, “In his property maintenance function he was paid by, and the ultimate right of control over him was in, the United States.” United States v. State of Maryland, for the Use of Meyer, 116 U.S.App.D.C. 259 , 322 F.2d 1009 , 1013 (C.A.D.C.), cert. denied, 375 U.S. 954 , 84 S.Ct. 445 , 11 L.Ed.2d 314 (1963). For an excellent exposition of these and additional factors which compel the conclusion that a caretaker is an employee of the Federal Government, see Elmo v. United States, 197 F.2d 230 (C.A.5, 1952), and United States v. Holly, 192 F.2d 221 (C.A.10, 1951). We specifically approved the rationale of Holly in O’Toole v. United States, 206 F.2d at 916 . Thus, the effect of the majority’s decision is to overrule our decision in that case.
The majority finds it difficult to perceive how the incidents of employment I have mentioned are material in considering McCoy’s employment status as a civilian caretaker, but are not decisive in determining his employment status as a member of the National Guard. I have no such difficulty. There can be no question but that these indicia of employment represent significant, if not conclusive factors, in determining the employer-employee relationship. See National Labor Relations Board v. Howard Johnson Co., 317 F.2d 1 (C.A.3, 1963), cert. denied, 375 U.S. 920 , 84 S.Ct. 264 , 11 L.Ed.2d 164 (1963). Hence, in ordinary circumstances, members of the National Guard would be considered Federal employees because substantial elements of control over them are vested in the United States. However, because of the constitutional provision with respect to the militia, several eases have held that members of the National Guard who have not been called into active service are state and not Federal employees. See the cases cited in the majority opinion. I have already indicated my disagreement with that conclusion. But, in any event, there is no such constitutional or statutory provision with respect to civilian caretakers. Accordingly, in determining their employment status, an analysis of the incidents of employment is of critical significance. As has been previously indicated, such an analysis of McCoy’s status as a civilian caretaker of Federal property leads to the ineluctable conclusion that, in this capacity, he was an employee of the United States.
The majority states that as a full time maintenance technician McCoy was “employed by the Adjutant General of the Maryland National Guard.” But this observation is not persuasive, for under 32 U.S.C. § 709 (f), “[t]he Secretary concerned shall fix the salaries of clerks and caretakers authorized to be employed under this section, and shall designate the person to employ them.” Thus in employing McCoy the Adjutant General was merely acting as the designee of the Secretary of the Air Force. As was stated in United States v. State of Maryland, for the Use of Meyer, 116 U.S.App.D.C. 259 , 322 F.2d at 1013 :
“ * * * The functions lodged by the United States in the State Adjutant General did not serve to supplant this right of control in the United States, though it may be said to have been ancillary thereto. Such supervision as was lodged in the State did not make Captain McCoy an employee of Maryland. A foreman, for example, is not the employer of the one whose work he may in some respects supervise. There is of course a close relationship bev-tween the State of Maryland and the *734 United States in the maintenance of federal property allocated to the Maryland National Guard, but this does not tip the balance toward the State on the issue of employment; for too much begins and remains with the United States in the case of these caretakers of federal property.”
In this setting, to hold that McCoy was .a state and not a Federal employee for the purposes of the Federal Tort Claims Act is to thwart the remedial purposes for which that statute was enacted.
The majority also concludes that, assuming that Captain McCoy in his civilian capacity was an employee of the United States, he was not acting within the .scope of his employment as a maintenance technician at the time of the accident. The plain answer to this conclusion is, as the Government concedes in its brief, that it is contradicted by the undisputed testimony of both Captain .McCoy and his commanding officer. The testimony of the commanding officer who •gave permission for the flight in question •was given at the trial of the companion • case in the District of Columbia. That testimony was made a part of the record in this ease by the agreement of the parties. 1 As indicated in the opinion of the ■Court of Appeals for the District of Columbia, the commanding officer testified .as follows:
“A. The general reason for any flight of this nature is proficiency. You don’t set up a flight for the express purpose of taking any individual up, the express purpose for flying is for your own general proficiency. If there is a seat available and a man qualifies in accordance with the regulations, it is permissible to take him up on that flight. The Air Force does it all the time.
“Q. Were there other reasons for the flight in question?
“A. I think as I mentioned before, a third reason for any flight is to insure that the equipment is in proper working order, to — well, as a result of each flight the maintenance officer takes, he has to fill out a form, whether the aircraft was okay, or whether it had even minor discrepancies which would be listed in the form. When he lands and comes back from the flight, this is done; so there is a third reason for the flight, which is to insure the proper maintenance of the equipment which he has general supervision over.
“Q. As an aircraft technician?
“A. As an aircraft maintenance officer in the squadron and also as an air technician.” United States v. State of Maryland for the Use of Meyer, 116 U.S.App.D.C. 259 , 322 F.2d at 1012 .
The testimony of Captain McCoy is to the same effect. Certainly, in the light of this uncontroverted evidence, I cannot say that the district court erred in concluding that Captain McCoy was acting within the scope of his employment as a maintenance technician at the time of this accident.
I think that no more need be said; I would affirm the judgment of the district court.
. In that portion of its brief describing the proceedings in the district court, the Government relates that:
“The evidence at the trial on that issue consisted of the testimony of Captain McCoy, and his commanding officer, Lt. Col. Kilkowski, and others, and numerous exhibits and depositions, including the deposition of Major General Winston P. Wilson of the Arkansas Air National Guard, who has been on active (Federal) duty in the National Guard Bureau of the Department of Defense as the Assistant Chief for the Air National Guard. Both Captain McCoy and Lt. Col. Kilkowski testified that in their opinions they believed that Captain McCoy was performing duties in his civilian capacity as well as his military capacity, at the time of the accident.”