Petition for Writ of Certiorari — Leone v. United States

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

>

REYNOLD LEONE, As Administrator of the Estate of ANDREA

LEONE, Also Known as ANDREA HELD, Deceased,

FRANCES S. COSTIGAN (now known as COSTIGAN-LEEDS),

as Executrix of the Estate of GEORGE B. COSTIGAN, JR.,

Dec d, “a

_— Petitioners,

—V.—

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Milton G. Sincoff

(Counsel of Record)

Daniel M. Kolko

Kreindler & Kreindler

100 Park Avenue

New York, New York 10017-5590

(212) 687-8181

Attorneys for Petitioners

December 5, 1990

Pe Oe ee Cee eee Je Tea, al &

— ee ee ee ee eer res Bee hs POR Ne tl Sith rade ay dri sia

i

QUESTION PRESENTED

The Federal Aviation Act requires the government’s Fed-

eral Aviation Administration to determine the medical fitness

of pilots. The statute authorizes the FAA to delegate those

powers and duties to private persons. Several thousand pri-

vate doctors are currently designated as Aviation Medical

Examiners (‘‘AMEs’’) by and act as official representatives

of the FAA when examining pilots. Those AMEs are con-

trolled in detail by the government in using its procedures to

determine the medical fitness of approximately 575,000 pilots

a year.

Under the Federal Tort Claims Act (‘‘FTCA’’), the federal

government is liable for the negligence of its employees. They

are statutorily defined to include ‘‘persons acting on behalf

of a federal agency in an official capacity, temporarily .. .

in the service of the United States . . . without compensa-

tion.”’

The question thus presented is whether the government or

an AME personally is liable for damages caused by the negli-

gent finding of a pilot as medically fit to fly.

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED .....cccccccccccsccvesses i

TABLE OF AUTHORITIES .............ccceeeeees iv

eg! 8 eS 6, Serer EVECTELTISe Terre eee ]

FFIO ENE Ch eee shidmeesevecéceustececcrccese 2

STATUTORY PROVISIONS INVOLVED........... 2

STATEMENT OF THE CASE oi. .ccccccccvcccecccs 3

STATEMENT OF FACTS 2c ccc cccccccsccccccsccces 3

THE DECISIONS BELOW ......cccccccccccccccce 8

REASONS FOR GRANTING THE WRIT .......... 9

I. The Circuit Court Decision Threatens The Col-

lapse Of The AME System and Public Safety 9

II. The Circuit Court Decision Has Abrogated

The Statute By Judicially Creating an Exemp-

GO nbc cc-kocdssebokeematascbccceeseeewtsses 11

III. The Circuit Court Decision Deviated From

Fils Cpe Oh SS ik bk cdwcdcnSenwdke dees 12

IV. The Circuit Court Decision Conflicts With

Prior Circuit and District Court Decisions. ... 17

COINCEAIIIUIN bc ctv ccccccccesctceneesecwnnesesces 19

APPENDICES

APPENDIX A: Opinion Of The United States Court

Of Appeals For The Second Circuit

CR Bil To 6 bs 640586 adeaee sets A-l

APPENDIX B:

APPENDIX C:

PAGE

Memorandum And Order Of The

United States District Court For The

Eastern District Of New York (Dearie,

Soh SIU ig UO 0d ck ne cdcvisviecs B-1

Order Of The United States Court Of

Appeals For The Second Circuit Deny-

ing Petition For Rehearing And Sug-

gestion For Rehearing In Banc (Dated

And Entered September 6, 1990)..... C-1

iv

TABLE OF AUTHORITIES

Cases: PAGE

Berman v. United States, 572 F. Supp. 1486 (N.D. Ga.

Ps S05 ne DEAS Aw ees Nhs dh eHaMEAN Oe Ca des 18

E.F. Williams Co. v. United States, 139 F. Supp. 875

ED 60 caida ape iawaiae bbs Vass s 16

Ferguson v. United States, 712 F.Supp. 775 (N.D. Cal.

SIN GRA ad ACK ROTC E Rhu bRTGWKE RSENS ened oKase 18

Flemming v. Huycke, 284 F.2d 546 (9th Cir. 1960)... 17

Garcia v. United States, 469 U.S. 70 (1984) ......... 12

In re Air Crash Disaster near Silver Plume, Colorado,

445 F. Supp. 384 (D. Kansas 1977)............... 18

Logue v. United States, 412 U.S. 521 (1973)........ passim

Malloy v. Eichler, 860 F.2d 1179 (3d Cir. 1988) ..... 12

Martarano v. United States, 231 F. Supp. 805 (D. Nev.

SG ee odie oa wk Cuek « SPER ies RG he oe REwEKE sso 16

McGuire v. United States, 349 F.2d 644 (9th Cir. 1965) 17

Rayonier Inc. v. United States, 352 U.S. 315 (1957).. 1]

Socialist Workers Party v. Attorney General, 642 F.

RN ee ert Pere re 18

State of Maryland v. Manor Real Estate & Trust Co.,

176 F.2d 414 (4th Cir. 1949) .................00.. 18

United States v. Aetna Casualty & Surety Co., 338

i cic hddan ea heed does ev been eee ons 11

United States v. Orleans, 425 U.S. 807 (1976)....... passim

PAGE

United States v. Yellow Cab Co., 340 U.S. 543 (1951) = 11

Witt v. United States, 462 F.2d 1261 (2d Cir.

EVES bau Vde Cn adn d FUR COW suacebet pehiabas cae 11, 17, 18

Statutes

Fp A 6 ib 64-45 45 0.0.0.4 beans knee Hane ous 1]

Se EE EE Gos b cevecccnsetdsccaacnueses sas 1]

Se EE EE oc eee ev obec cc cccccnceserekasas 2

Se EEE A655) Sab AC decked ecteesaysabeeees 8

ee SE 65 Kas eoesineentecnssdecvestwaee 2

Pe MP PGR C Sas ideccecsccdedcventecstsadwes a 35

ME AA EE Cvcees pUS Cr esereetectsnccéiscsens 1]

PU ED 6 8 00.6.0 0:0 serecceweverseusces 4

de Re Ee rr 3, 4, 7, 16

SP I ED os bce cecisvevecvevscsctuons 3, 4

Fe ED incidences sctecsectncisdidsseses 11

Regulations:

Rn PIDs 6 Gaic'n se daGo bc cones cessed en vucers 7

Oe ee I op a0 bac eecense cencessseeenonsen 4

PO PIPERS 65 cade cccencaesnvecsecsescunsete 7

Se PEE 6 nn.6ascnesvasdpaceacsssevchessnes 7

Be Geeks TART Poh cnc cnc ceedsvescns ce veacesacoes 7

PAGE

14 C.F.R. § 67.25(a)....... pve vaé bbaw ete debby eUbee 4,5

i Seen OE Pine bd ds ceb 0b cede o kbiW re cbiebew as -

Be ee aR 53-0 5 0b 6e.ccccacddaweseaesionss 4

ee | rrr rr errr sre Pe 4

14 C.F.R. § 183.15(d)(4-6)....... PR ee aoe 4

eee Se ren 6

PR I wb wv 600 ss vcussccesecedsaveace 4

ee Pee er ee 7

Miscellaneous:

eg he oe) eee eee 16

Restatement (Second) Agency § 2...............00-. 13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-

-

REYNOLD LEONE, As Administrator of the Estate of

ANDREA LEONE, Also Known as ANDREA HELD,

Deceased, FRANCES S. COSTIGAN (now known as

COSTIGAN-LEEDS), as Executrix of the Estate of GEORGE

B. COSTIGAN, JR., Deceased, en

Petitioners,

Vo

UNITED STATES OF AMERICA,

Respondent.

>

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

OPINIONS BELOW

The Opinion of the United States Court of Appeals for the

Second Circuit is reported at 910 F.2d 46, and is reprinted as

Appendix A. The Memorandum and Order of the United

States District Court for the Eastern District of New York is

reported at 715 F. Supp. 1182, and is reprinted as Appendix

B.

2

JURISDICTION

The Judgment of the United States Court of Appeals for

the Second Circuit which reversed the district court and

remanded with instructions to grant respondent’s motion for

summary judgment dismissing the complaints was entered on

July 30, 1990. Petitioners then filed a timely petition for

rehearing and suggestion for rehearing in banc. On Septem-

ber 6, 1990, the Court of Appeals issued and entered an

Order denying the petition. A copy of the Order denying the

petition for rehearing and suggestion for rehearing in banc is

reprinted as Appendix C. This petition for certiorari was filed

within 90 days of the date of the Order denying the petition

for rehearing.

This Court has jurisdiction to review the Judgment below

by Writ of Certiorari pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The government is subject to suit under the FTCA for

damages caused by the negligence of ‘‘any employee of the

Government’’ (28 U.S.C. § 1346(b)). “‘Employee of the gov-

ernment”’ is statutorily defined in 28 U.S.C. § 2671:

‘‘Employee of the government’’ includes officers or

employees of any federal agency . . . and persons acting

on behalf of a federal agency in an official capacity,

temporarily or permanently in the service of the United

States, whether with or without compensation.

Section 2671 further provides that the term ‘‘Federal

agency”’

includes the executive departments, the judicial and leg-

islative branches, the military departments, independent

establishments of the United States, and corporations

primarily acting as instrumentalities or agencies of the

United States, but does not include any contractor with

the United States.

3

Title 49, United States Coe, § 1422 "1) reads in part:

(1) Any perswn may file with the Secretary of Transpor-

tation an application for an airman certificate. If the

Secretary of Transportation finds, after investigation,

that such person . . . is physically able to perform the

duties . . . le shall issue such certificate, con‘aining

such terms, conditions, and hmitations as to . . . tests

of physical fitness, and other matters as the Secretary of

Transportation may determine to be necessary to assure

safety in air commerce.

Title 49, United States Code, § 1355(a) reads in part:

(a) In exercising the powers and duties vested in him by

this chapter, the Secretary of Transportation may .. .

delegate to any properly qualified private person .. .

any work, business, or function respecting (1) the exami-

nation, inspection, and testing necessary to the issuance

of certificates under subchapter VI of this chapter, and

(2) the issuance of such certificates in accordance with

standards established by him. The Secretary of Trans-

portation may establish the maximum fees which such

private persons may charge for their services and may

rescind any delegation mad: by him pursuant to this

subsection at any time and for any reason which he

deems appropriate.

STATEMENT OF THE CASE

Statement of Facts

Petitioners’ decedents were killed in November 1984 when

the private aircraft in which they were passengers crashed

into the Atlantic Ocean as a result of the pilot having a heart

attack.

The pilot, Irwin Small, had been examined and certified as

medically fit to be a pilot by the FAA’s AME Dr. Sabatine in

September 1982. Sabatine had been annually appointed by

4

the FAA for many years. Pilot Smal] was subsequently exam-

ined and certified as medically fit to be a pilot by the -AA’s

AME Dr. Conlon in August 1984, three months before the

fatal crash. Dr. Conlon had also been appointed as an AME

numerous times by the FAA.

When he was certified as medically fit by those two AMEs,

the pilot suffered from serious coronary heart disease mani-

fested by a patently observable surgical scar from a cardirc

catheterization (A 165-166, 168-169, 181-183, 185-187, 20!-

203, 216-228).' The AMEs performed careless examinations

of the pilot by failing to see the surgica! scar and discover his

serious heart condition.

No person can become a pilot unless the goverrment first

determines that he is physically fit (49 U.S.C. § 1422(b)());

14 C.F.R. § 61.3(c); see 49 U.S.C. § 106(g)(1); 14 C.F.R.

§ 67.25(a)). Congress has also determined that the govern-

ment’s ‘‘powers and duties’’ to determine and certify fitness

of pilots can be ‘‘delegated’’ to private persons (49 U.S.C.

§ 1355(a)). The ‘‘delegation’’ can be rescinded at any time

and for any reason (ibid.).

The government has delegated these ‘‘powers 2nd duties’’

to AMEs. AMEs are ‘‘selected’’ and ‘‘designated’’ by the

Federal Air Surgeon to act as ‘‘representatives’’ of the FAA

(14 C.F.R. §§ 183.1, 183.11(a)). The FAA appoints AMEs

for one year, subject to annual] extensions of one year for

‘satisfactory performance’ (A 115, 120, 142; 14 C.F.R.

§ 183.15(a)). The Federal Aviation Regulations specify the

‘*privileges’’ of designation, including conducting physical

examinations of pilot-applicants ‘‘[u]Jnder the genera! supervi-

sion of the Federal Air Surgeon ....'’ 14 C.F.R.

§ 183.21(b). The AME designation may be terminated at any

time for performance reasons or any reason the FAA con-

siders appropriate (14 C.F.R. § 183.15(a), (d)(4-4)).

1 Citations in the form “A WW” are to the Joint Appendix filed in

the Court of Appeals.

5

The FAA has expressly delegated to AMEs the authority to

(1) Examine applicants for and holders of medica! cer-

tificates for compliance with applicable medical star-

dards; and

(2) Issue, renew, or deny medical certificates *o 2npli-

cants and holders based upon compliance or noncomnii-

ance with applicable medical standards.

14 C.F.R. § 67.25(a)(1), (2) (emphasis added).

This same authority delegated to AMEs has also been dele-

gated to ‘‘authorized representatives of the Federa' Air Sur-

geon within the FAA’’. 14 C.F.R. § 67.25(a).

There are approximately 7,000 AMEs. They process nearly

575,000 applications for airman medical certification annually

(A 76).

An FAA Order characterized the AMEs as ‘‘represe~*a-

tives’? of the FAA who assumed ‘“‘responsibilities d’rectly

related to the agency’s safety program’’ (A 109, em hasis

added).

The FAA issued each AME 75 pages of detailed instruc-

tions as to technique of examination and prorr medic?’

assessment and certification procedure (A 73, 75, '10, 123).

These instructions were contained in the Guide for Aviation

Medical Examiners (‘‘Guide’’) (A 74-107). "t specified the

areas of the body to be examined, the examination techniques

and procedures to be followed, the medical standards *o be

applied, and the resulting disposition. AMEs were also

instructed by the guide to observe and report ‘‘signs of sur-

gery’’ (A 91). An FAA Order, also issued to each AME,

required an AME to agree to abide by FAA rules, regula-

tions, policies and procedures (A 110). The FAA Order

‘‘required’’ AMEs ‘‘to agree to comply with’’ and ‘‘be thor-

oughly familiar with instructions as to technique of examina-

tion’’ (A 110) (emphasis added).

Dr. Douglas Busby, a former Deputy Federal! Air Surgeon,

Dr. Menard Gertler, an AME for over 25 years, and AME

6

Conlon all affirmed under oath that the Guide and the

detailed examination techniques and procedures set forth in

the Guide were binding on the AME (A 159, 188-189, 248-

249, 258).

‘(T]he FAA Order requires the AMEs to comply ‘vith the

Guide, to attend training seminars, to obtain and use particu-

lar equipment, and to perform personally each pilot examina-

tion’’ (Opinion by Dearie, D.J., Appendix °, p. B-).

The FAA Order stated that ‘‘[i)t is the policy of the "FAA!

to continuously evaluate the performance of each AME’

(A 115). AMEs were continuously evaluated based on the

number and accuracy of examinations performed and their

‘‘error rate’’ in certification (A 115-116). AMEs rot perform-

ing a “‘significant number’’ of AME examinations in any !2-

month period were subject to non-redesignation (“AA Order,

A 116).

The FAA Order further provided that an AME may be ter-

minated or not redesignated for substandard pro‘essiona] per-

formance or failure to follow ‘‘FAA rules, regulations,

policies or procedures’’ (A 117). Termination cov'd occur ‘or

any other reason deemed appropriate (14 C.F.R.

§ 183.15(d)6)).

In a section entitled ‘‘Agreements’’ the FAA Order con-

firmed the provisions in the AME Application that AM=s

**shall be required to agree to comply. . . and be thoroughly

familiar with instructions as to technique of examination,

medical assessment, and certification of examinees’’ and to

*tabide by the policies, rules and regulations of the FAA’”’

(A 110).

When an AME had a question or needed assistance, the

Guide stated the Regional Flight Surgeon ‘“‘should be con-

tacted’’ and ‘“‘[t]elephone interpretation of medical] standards

or policies involving an individual airman whom the [AME]

is examining’’ can be obtained (A 80). Indeed, both AMEs

Sabatine and Conlon called the Regional Flight Surgeon at

JFK (A 255-257, 283).

7

According to former Deputy Federal Air Surgeon Douglas

Busby, until June 1987 (one month after commercement 0°

the instant FTCA actions), the FAA informed AM§s that the

government would defend AMEs and pay any judgments for

negligent certification (A 153-154). AME Sabatine testified

that this was his understanding (A 274-277). The FAA’s cur-

rent Deputy Federal Air Surgeon Jon Jordan resnonded that

FAA policy was that there was ‘“‘no guarantee’ that AMZ=s

would receive legal representation and the “AA considered

each case on an individual] basis (A 69-70).

Dr. Busby also stated that doctors on the FAA’s fu!'-time

payroll performed pilot medical examinations and issued or

denied medical certificates in the same way as nrivate AMEs

and ‘‘without the physical] presence of any other FAA ¢octor,

employee or supervisor’ (A 161). This was not denied by the

FAA’s Dr. Jordan (A 70-71).

The FAA promulgated detailed medical standerds whic’

pilot-applicants seeking certification must meet. '4 C.F.R.

§§ 67.13, 67.15, 67.17. The medical standards applicable to

third class certificates, pilot Small’s category, were set ‘orth

in § 67.17. AMEs must adhere to and apply those medica!

standards. 49 U.S.C. § 1355(a); 14 C.F.R. § 183.2!(c). In this

case, Small’s disqualification for his serious heart Ciseas* was

compelled by these medical standards. 49 U.S.C. § 1355(a);

14 C.F.R. § 67.17(e).

AMEs received no remune’ation from the FAA,

instead were paid a fee by each pilot-applicant. © statute,

however, the FAA Administrator had the authority to set the

maximum fee an AME may charge. 49 U.S.C. § '255(a). As

a matter of policy, the FAA informed AMEs that their fee

should be governed by the prevailing rate for simi!ar services

in the locality (A 79; A 123).

AMEs could be promoted by the FAA to Senior AME sta-

tus and thus perform medica] examinations for first-~<lass cer-

tificates (A 109). AME Sabatine had been promoted (A 270).

The Decisions Below

The United States District Court for the Eastern District of

New York had denied the government's motion for summar)

judgment dismissing the complaints and had granted petition-

ers’ cross motion for partia] summary jucegment strikine that

part of the respondent’s affirmative defer... 2¢°serting that the

government was not liable for the AMEs’ negligence, stating

‘*(t)hrough its demanding and detailed regulations, the FAA

dictates virtually every action the AME shou!'d undertake”’ ir

examining and certifying pilots (Appendix 8, p. B-9).

The Court of Appeals held, as a matter of 'aw, that the

Federal Aviation Administration’s Aviation ‘\edica! Exam-

iners (‘‘AMEs’’) were independent co cctors, and not

‘employees of the government’’ whose necligent acts render

the government liable under the Federa’ “ort Claims Act.*

The Court of Appeals held that ‘‘while t.. =AA 2c's gener-

ally as an overseer it does not manage the details of an

AME'’s work or supervise him in his daily Juties.’’ (Appendix

A, p. A-10). The Court of Appeals held that A’\‘Es were nei-

ther ‘‘employees’’ of the FAA nor » ‘sons ‘“‘actin7 on

behalf’? of the FAA, in an official capac v in the service of

the United States. The Circuit Court reversed District Judge

Dearie of the Eastern District of New York and remanded

with instructions to grant the respondent’s motion for sum-

mary judgment dismissing the complaints.

2 The appeal was before the Second Circuit on certification pursuant

to 28 U.S.C. § 1292(b).

REST AVAI

9

REASONS FOR GRANTING THE “VR'T

I.

THE CIRCUIT COURT DECISION THREAT-

ENS THE COLLAPSE OF THE AME SYSTEM

AND PUBLIC SAFETY

The government has conceded the profoun: sign'ficance of

the issue presented:

[T]he importance of this controlling question can be

seen by the effect on the FAA, althoug the effects of

this issue are applicable to other agencies as well. The

Federal Aviation Administration has over 12,000 desig-

nees, approximately 7,000 of whom are AMEs. The

operational impact of [the lower court’s decision] mate-

rially affects the nationwide operation of ‘he FAA

(Government’s Memorandum dated December

20, 1989 i in Support of Motion to Second Circu!t to Cer-

tify Lower Court Determination for Interlocutory

Appeal, p. 7) (Emphasis added).

By holding that AMEs are independent contractors and not

‘employees of the government’’, the Court of Appeals ':25

subjected approximately 7,000 AMEs, physicians in private

practice located throughout the country, who nerform a pub-

lic service for the FAA,’ to personal liability for their per-

formance of official) FAA duties.

That consequence harshly destroys the justifie? expecta-

tions heretofore held by AMEs that they wou':’ be protected

by the government from defending such suits and ~ersona!

liability. Before this suit, the government expressly promised

such protection by declaring that the governmen’ would

defend and indemnify AMEs (A 153-154, 274-277).

The personal exposure of AMEs to defending lawsuits and

paying judgments will cause the collapse of the present AME

3. Some AMEs, like AME Sabatine, perform one AME examination a

month (A 270).

ABLE COPY

10

system. Private physicians wil] now refuse to apnly for or

accept annual re-appointment as an AME ir order to avoic

suits and liability. AMEs annually process 575,000 applica-

tions for airman medical certification. The federa! govern-

ment has few payroll physicians and cannot fi"' the resu'ting

void. By federal] law, airline pilots must be examined and cer-

tified annually. Private pilots are ex: ined-cer.tiied bi-

annually.

Suits alleging negligent medical certification of r‘lots aris-

ing from an aviation disaster will expose ‘Es to claims not

covered by their private malpractice insurance or beyond nol-

icy limits. For AMEs to obtain liability ‘~cvrance covering

their personal exposure would impose cos*-prohibitive addi-

tional] premiums.

The Court of Appeals’ decision allows the government to

escape liability for the AME system that it created and

strictly controls, and for. whose benefit anc on whose behalf

it was established.

The Second Circuit decision removes any incentive for the

FAA to properly police, discipline and be held accountable

for its own designated representatives performine core gov-

ernment functions. Making the AME persona!!y liable wil!

not alleviate slipshod examinations. It w*'! either ‘ead to

AME resignations or an increase in malpractice insurance and

premiums.

A recent article in The Wall Street Journal* discussed the

problem of FAA designated flight examiners who failed to

weed out incompetent pilots, with tragic consequences.

According to the article, the General Accounting Office

reported last year that ‘‘unacceptable practices . . . such as

improper flight testing, seriously impair FAA’s ability to

ensure that only safe and competent pilots receive pilot certif-

icates.’’ The article concluded by quoting an FAA

inspector—‘‘the only victim is the general public.”’

4 October 23, 1990, p. 1. The title is “Some FA‘ Examiners Give

Slipshod Tests to Student Pilots’’.

1]

.

THE CIRCUIT COURT DECISION FAS ARRO-

GATED THE STATUTE BY JUDICIAY™Y

CREATING AN EXEMPTIO™

The FTCA ‘‘waives the Government’s immunity from suit

in sweeping language’’. United States v. Yellow Cab Co., 349

U.S. 543, 547, 554 (1951). The FTCA provision ‘‘emplov-s

of the government’’ was ‘‘drafted to have an expansive

reach’’. Witt v. United States, 462 F.2d 1261, 1743 (2d Cir.

1972). This Court in United States v. Aetna Casualty & Sur-

ety Co., 338 U.S. 366, 383 (1949), rejected th. zovernment’s

suggestion that the FTCA be strictly construed.

In light of these holdings, and given the cle” statutory lan-

guage, only Congress, not a Court, is empowered to immv-

nize the government under the circumstances nresented. This

Court in Rayonier, Inc. v. United States, 352 U.S. 315, 32°

(1957), cautioned:

There is no justification for this Court to read exemp-

tions into the Act beyond those providec by Congress.

If the Act is to be alterec that is a function for the same

body that adopted it.

The FAA statute delegating to private nersons the govern-

ment’s powers and duties of determining the medical fitness

of pilots was enacted well after passage of the FTCA which

imposed liability on the government for the negligence of

those acting on its behalf. The FTCA’s terms literally apply

to AMEs. No legislative history suggests an ex- "ntion of the

government.

In post-FTCA statutory enactments, Congress specifically

excluded certain groups as government employees or agents.

For examples, 50 U.S.C. § 2253(c) (civil defense volunteers);

15 U.S.C. § 1275(5) (members of the Toxicological Advisory

Board); 21 U.S.C. § 114h(c) (agricultural advisory committee

members hired by Secretary of Agriculture); 42 U.S.C.

§ 8104(e) (officers and employees of Neighborhood Reinvest-

12

ment Corporation). No such exemption for AMEs was ever

enacted.

Had the Executive, Department of Transportation or the

FAA truly deemed it necessary or intended to exclude AMEs

as government employees or agents for "TCA purposes, a

simple statutory amendment would have sufficed. At the very

least, some expression of legislative inter* would have been a

reasonable expectation. The Court of Appeals usurped Con-

gress’ powers and judicially legislated an exemption from

FTCA liability. Indeed, that Court said ‘‘"Vle 7o not believe

that such an extension of the FTCA’s waiver of sovereign

immunity is appropriate.’’ Appendix A, p. A-12. The Court

below rendered a policy judgment that AMEs, not the gov-

ernment, will be liable. Only Congress is empowered to make

that policy.

The Court of Appeals’ failure to apply the clear and literal

‘acting on behalf of’’ language of the statute was error for

clear statutory language can only be overridden by ‘‘extraor-

dinarily clear evidence of a contrary legistative intent.’’ Mc/-

loy v. Eichler, 860 F.2d 1179, 1183 (3d Cir. 1988); Garcia v.

United States, 469 U.S. 70, 75 (1984). Such evidence is non-

existent (see Logue v. United States, infra, 412 U.S. 52', 530

(1973)).

i.

THE CIRCUIT COURT DECISION *YTATED

FROM THIS COURT’S DECIS'ONS

This Court has held that the critica] factor distinevishing a

federa] government servant/agent from an independent con-

tractor ‘‘is the authority of the principal to contro] the

detailed physical performance of the contractor.’’ Logue v.

United States, 412 U.S. 521, 527-528 (1973); United States v.

Orleans, 425 U.S. 807, 814 (1976).

In Logue, a federal agency contracted with a county for it

to jail federal prisoners. While the federal<county contract

13

obligated the county to comply with federal prison regula-

tions, it gave the government ‘‘no authority to physically

supervise the conduct of the jail’s employees’’. 412 U.S. at

530. Logue held the government was not liable for the negli-

gence of the County Jail employees because they were neither

servants nor agents of the federal government, but rather

they were employees of the independent contractor-county.

The Court cited with approval! the Restatement (Second) of

Agency § 2 (1958):

(1) A master is a principal who employs an agent to ner-

form services in his affairs and who controls or has the

right to control the physical conduct of the other in the

performance of the service.

oe o 6

(3) An independent contractor is a person who contr2cts

with another to do something for him but who ‘- nor

controlled by the other nor subject to the other’s right

to control with respect to his physical conduc’ in the

performance of the undertaking. Jd. at 527, note S.

(Emphasis added).

As to the separate contention that the county jail employ-

ees were agents ‘‘acting on behalf of a ‘edera] agency’’,

Logue held that ‘‘we are not persuaded that emnloyees of a

contractor with the Government, whose physica] performance

is not subject to governmental supervision, 2re to be treated

as ‘acting on behalf of’ a federal agency”. /d. 2° 531.°

Logue was reinforced by United States v. Orleans, 425

U.S. 807 (1976). In Orleans, a loca] community action agency

was funded under the Economic Opportunity Act of 1964. It

had to comply with federal regulations ‘‘aimed at assuring

compliance with [federal] goals’’ (Jd. at 816). The 2ction

agency was locally controlled and the regulations dic not

$ Clearly AMEs are ‘‘subject to governmental supervision”’ (Logue,

412 U.S. at $31) and are thus ‘‘acting on behalf’’ of the FAA.

14

alter that fact. The local persons were not hired, fired,

trained and supervised by any federal agency. Orlecns hel¢

that the local entity was not a federal agency under the

FTCA. Orleans did not involve the ‘‘actine on behalf of’

provision.

Orleans stated the issue as whether the contractor's ‘‘day-

to-day operations are supervised by the Federal Govern-

ment.”’ Jd. at 815.

Then the rationale was articulated:

[Federal] regulations and guidelines attemnt to assure

that the federal money is spent for the benefit of the

poor. The regulations do not give the [feceral agency]

power to supervise the daily operation of ¢ community

action agency or a neighborhood »rogre™.

Nothing could be plainer than the congressiona! intent

that the local entities here in question have complete

control over operations of their own programs . . Jd. at

818. (Emphasis added).

Orleans also reasoned:

Although [federal] regulations are aimed at assuring

compliance with goals, the regulations do not convert

the acts of entrepreneurs—or of state governmenta!

bodies-into federal governmental acts. Jd. at 816.

The District Court below held:

The Court wonders what greater degree of contro! could

be exercised over AMEs, unless an FAA official literally

sat in the examination rooms, either prompting the

AME to ask a question he or she might forget to ask, or

holding the stethoscope as the AME listened to an appli-

cant’s heartbeat. It is noteworthy that 2’ ora! argument

the Court asked the government on what set of facts it

would deem the ‘“‘strict control’’ test met in this case;

the government was unable to provide a definitive or

even helpful answer, suggesting merely that the test

ee Te Me

15

might be met if a badge-wearing FAA official read the

applicable medica] standards to each AME ir person

before each examination.

In this Court’s view the ‘‘strict control’’ test should be

applied not with the absurd literalness suggested by the

government, but sensibly, with due regard for the total-

ity of the circumstances, including the nature of the ser-

vices performed and the configuration of the narties’

relationship. (Appendix B, pp. B-9-10).

The Second Circuit held that ‘‘the FAA does not maintain

the type of contro] over the AMEs that is requirec by Logue

and Orleans’’ (Appendix A, p. A-10).

The record, however, established pervasive, constant ac

**daily’’ control exercised by the FAA over the physical per-

formance of AMEs through the Federal Aviation Rezu!'s-

tions, FAA Guide and Order. The FAA required AMEs to

“se specified and detailed medical examination and assess-

ment techniques and procedures (in the circuit court’s

words—‘‘step-by-step instructions’’) and required AN =s to

apply prescribed medical standards. Failure to comply could

result in the AME’s termination. The AMEs were instructe?

by the FAA as to what to do, how to do it anc when and

under what medical circumstances they could issue or deny

certification. The FAA controls the result to be accomplished

as well as the manner and means by which the result is to be

accomplished. Also not mentioned in the Circuit Court's

decision is the significant fact that FAA full-time employees

who perform as AMEs function in the same way as private

AMEs—according to the FAA Regulations, Guide and Order

end without the physical presence of any other rerson

(A 161). The FAA exercises the same contro! over ‘oth! It is

hard to envision greater control.®

6 There is no dispute that the AMEs were not paid by the United

States and were paid by pilot Small, But section 267! declares the pres-

16

The jail employees in Logue were ‘‘hired, fired, trained,

disciplined, and supervised exclusively by state officials, and

they are not required to follow the orders 0° any federa! offi-

cer’’ (Brief for the United States in Logue, p. 34). The inci-

viduals in Orleans were likewise contro!'ed by !ocal-not

federal-officials. By contrast, AMEs are hired, fired, trained,

evaluated and directed in their work in detail by the FAA,

and are obligated to abide ke FAA rules, regu 'ations, nolicies

and procedures.

In Logue and Orleans the pertinent regulations did not

impact the individual actors’ duties. At bar, the FAA Regu!--

tions, Order and Guide dominate every aspect of the AMEs’

functions and duties as an AME. AMEs perfor™ cor” gov-

ernment functions for, on behalf of and at the behest of the

FAA. The rationale of Logue and Orleans comnels reversa!

of the Court of Appeals.

The Circuit Court did not mention the -AA’s absolute

right to fire an AME for any reason. That factor further

establishes control and is contrary to an inderendent contrac-

tor relationship. See E.F. Williams Co. v. United States, 139

F, Supp. 875, 878 (N.D.N.Y. 1956) (‘‘The broad right *> dis-

charge asserted here by the [employer] . . . is indicative of

right of control of both the details and time of perform-

ance’’); 2A C.J.S. Agency § 6, p. 561 (generally, the nower

of principal to terminate services of agent shows control).

Relying on Orleans, the Court of Appeals placed signifi-

cance in the fact that the FAA performs no on-site review

over AMEs. But the FAA has no on-site review of its own

full-time payroll doctors when they perform as AMEs

ence or absence of compensation to be irrelevant. See Martarano v.

United States, 231 F. Supp. 805, 808 (D. Nev. 1964) (fact that individ-

ual was paid by the state does not disqualify him as an employee of the

federal government for FTCA purposes). Further, the FAA Adminis-

trator had the authority to set the maximum fee an AME may charge.

49 U.S.C. § 1355(a). As a matter of policy, the FAA informed AMEs

that their fee should be governed by the prevailing rate for similar ser-

vices in the locality (A 79; A 123).

17

(A 161). Neither Logue nor Orleans was meant to impose a

requirement of on-site supervision. This unrealistic require-

ment would negate most employment or agency relationships.

The ‘‘right to control’’ contemplated by the employer-

employee relationship ‘‘requires only such supervision as the

nature of the work requires.’ McGuire v. United States, 349

F.2d 644, 646 (9th Cir. 1965). The court in Flemming v.

Huycke, 284 F.2d 546, 550 (9th Cir. 1960), held:

The methods by which physicians work are directed by

the standards of their profession and re peculiarly

unsuited to direction and close contro] by an employer.

IV.

THE CIRCUIT COURT DECISION CONFLICTS

WITH PRIOR CIRCUIT AND MD'STE'CT

COURT DECISIONS

In Witt v. United States, 462 F.2d 1261 (2d Cir. 1972), the

plaintiff was a military prisoner who ‘‘volunteered’’ for 2

prison work detail cleaning stables at the Fort Leavenworth

Hunt Club, a private association of military rersonne! 2nd

their dependents located on the military reservation. The

Hunt Club cortracted with a civilian named Harrison to

manage the stables and he in turn hired McQuirk, ano’er

civilian, to assist. McQuirk was paid by Harrison. McQuirk

picked up Witt in a tractor and took him to the Hunt C'ub.

On the return trip, Witt was injured.

As a matter of law, the Second Circuit held that ‘‘McQuirk

was ‘acting on behalf of a federal agency [the United States

Disciplinary Barracks] in an official capacity’ *’:

[A]lthough no written agreement existed, McQuirk was

impliedly authorized by the Commandant of the Disci-

plinary Barracks to transport prisoners in his custody >

a work detail . . . to supervise or help supervise taat

detail and to return the prisoners. Moreover, McQuirk

18

was certainly amenable to some degree of control by the

Disciplinary Barracks. Jd. at 1264. (Emphasis added).

Witt was discussed with approval by this Court in Logue,

supra, 412 U.S. at 532, n. 8. It was not discussed below.

In addition to Witt v. United States, supra, (civilian driver

of federal prisoners to clean stables), the ‘‘acting on behalf

of’’ clause has been relied on by courts to subject the govern-

ment to liability for the torts of a private contractor manag-

ing government owred property on a not-for-profit basis for

the benefit of the United States (Ferguson v. United States,

712 F.Supp. 775, 781-82 (N.D. Cal. 1989)); FBI informers

(Socialist Workers Party v. Attorney General, 642 F. Supp.

1357, 1423 (S.D.N.Y. 1986)); and of managing agents who

operate public housing projects, even though the agents are

corporate entities (State of Maryland v. Manor Real Estate &

Trust Co., 176 F.2d 414, 419 (4th Cir. 1949). The holding

below squarely conflicts with these authorities.

Missing from the brief portion of the Circuit Court deci-

sion discussing the ‘‘acting on behalf of’’ clause is the

detailed factual record set forth in petitioners’ brief establish-

ing the FAA’s detailed control over AMEs and that AMEs

act on behalf of the FAA in an official capacity, temporarily

in the service of the United States and without compensation.

The Second Circuit’s holding is in direct conflict with Ber-

man v. United States, 572 F. Supp. 1486, 1494 (N.D. Ga.

1983) (AMEs carry out a “‘direct function of government’;

government’~ otion for summary judgment on the ground it

is not liat.e for an AME’s negligence denied); and Jn re Air

Crash Disaster near Silver Plume, Colorado, 445 F. Supp.

384, 396, 400, 405-406 (D. Kansas 1977) (holding an FAA

designated authorized inspector was an FAA employee under

the FTCA since his work was zequired to be carried out

according to specific FAA standards, brochures, guidelines

and airworthiness directives).

19

CONCLUSION

For the foregoing reasons, petitioners respectfully request

that their petition for writ of certiorari to the United States

Court of Appeals for the Second Circuit be granted.

December 5, 1990

Respectfully submitted,

/s/ MILTON G. SINCOFF

Milton G. Sincoff

(Counsel of Record)

Daniel M. Kolko

Kreindler & Kreindler

100 Park Avenue

New York, New York 10017

(212) 687-8181

Attorneys for Petitioners

; > Ts oe ee > ig be te aa

- 4 Bee Bee Fs, OTe TRE Te 3 OP Lay t-<

- a . —_~

pie

mt APPENDIX A

A-l

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

aoe

No. 1297—August Term, 1989

(Argued: May 11, 1990 Decided: July 30, 1990)

Docket No. 90-6017

7

REYNOLD LEONE, As Administrator of the Estate of

ANDREA LEONE, Also known as ANDREA HELD,

Deceased, FRANCES S. COSTIGAN (now known as

COSTIGAN-LEEDS), as Executrix of the Estate of

GEORGE B. COSTIGAN, JR., Deceased,

Plaintiffs-A ppellees,

—V.—

UNITED STATES OF AMERICA,

Defendant-Appellant.

Before:

ALTIMARI and MAHONEY, Circuit Judges, and

POLLACK, District Judge.*

+>

* The Honorable Milton Pollack, United States District Court for the

Southern District of New rork, sitting by designation.

A-2

Appeal from an interlocutory order, entered in the

United States District Court for the Eastern District of

New York (Dearie, Judge), denying defendant-

appellant’s motion for summary judgment and granting

plaintiffs-appellees’ cross motion for partial summary

judgment, holding that private physicians designated by

the Federal Aviation Administration as Aviation Medi-

cal Examiners are employees of the government for pur-

poses of the Federal Tort Claims Act, 28 U.S.C.

§§ 1346(b), 2671 ef seg. (1988).

REVERSED AND REMANDED.

>

THOMAS B. ALMY, Senior Aviation Coun-

sel, U.S. Department of Justice, Wash-

ington, D.C. (Stuart M. Gerson,

Assistant Attorney General, Washing-

ton, D.C., Andrew J. Maloney, United

States Attorney for the Eastern District

of New York, Brooklyn, N.Y., of coun-

sel), for Defendant-Appellant.

DANIEL M. KOLKO, New York, N.Y.

(Milton G. Sincoff, Kreindler &

Kreindler, New York, N.Y., of counsel),

for Plaintiffs-A ppellees.

+>

ALTIMARI, Circuit Judge:

In this case, we consider whether private physicians,

who are designated by the Federal Aviation Administra-

:

i

:

A-3

tion (‘‘FAA’’) as Aviation Medical Examiners

(‘‘AMEs’’), are ‘‘employees of the government’’ for

purposes of the Federal Tort Claims Act (‘‘FTCA’’ or

**Act’’), 28 U.S.C. §§ 1346(b), 2671 et seq. (1988).

Defendant-appellant United States appeals from an

interlocutory order, entered in the United States District

Court for the Eastern District of New York (Dearie,

Judge), denying its motion for summary judgment and

granting plaintiffs-appellees’ motion for partial sum-

mary judgment. See Leone v. United States, 715 F.

Supp. 1182 (E.D.N.Y. 1982).

Plaintiffs-appellees’ decedents were passengers on a

private airplane piloted by Irwin Small. En route, Small

suffered a heart attack which resulted in the crash of the

airplane and the death of all aboard. At the time of the

accident, pilot Small held a current airman medical cer-

tificate which had been issued by FAA-designated

AMEs. Plaintiffs-appellees commenced the underlying

consolidated FTCA wrongful death actions against the

United States complaining that the AMEs who examined

Small and issued his airman medical certificate were

negligent in failing to discover Small’s true physical con-

dition. The United States filed a motion for summary

judgment, arguing that the AMEs, who were physicians

engaged in the private practice of medicine, were not

government employees, as defined by 28 U.S.C. § 2671,

and, therefore, that the United States is not amenable to

suit under the FTCA, id. § 1346(b). Plaintiffs-appelless

filed a cross motion for partial summary judgment,

seeking to strike the government’s affirmative defense

that the AMEs were not employees of the government.

The district court denied the United States’ motion and

granted plaintiffs-appellees’ cross motion, holding that

the AMEs were ‘“‘employees of the government’’ and

A-4

were ‘‘acting on behalf of the government’’ for FTCA

purposes. Leone, 715 F.Supp. at 1190.

The district court certified the issue for interlocutory

appeal, and this Court granted the United States’ peti-

tion for review pursuant to 28 U.S.C. § 1292(b) (1988).

For the reasons discussed below, we reverse the judg-

ment of the district court and remand with instructions

to grant the defendant-appellant’s motion for summary

judgment.

BACKGROUND

Pursuant to its statutory mandate to ‘‘insure the

safety of aircraft,’’ 49 U.S.C. App. § 1348(a) (1982), the

FAA requires that no person act as a pilot of an aircraft

unless in possession of, among other credentials, a cur-

rent airman medical certificate. 14 C.F.R. §§ 61.3(c),

67.11 (1990); see 49 U.S.C. App. 1422(b)(1) (1982). To

obtain an airman medical certificate, an applicant must

undergo a medical examination and an evaluation of his

medical history by an AME, and satisfy Federal Avia-

tion Regulation medical standards. 14 C.F.R. § 67.11,

67.13, 67.15, 67.17.

Although the Federal Air Surgeon and his authorized

representatives are empowered to issue medical certifi-

cates, id. § 67.25(a), the certificates are predominately

issued by private physicians who have been designated

as AMEs, id. § 183.21 (1990); see 49 U.S.C. App.

§ 1355(a) (1982). The process of designating AMEs is

administered by the Federal Air Surgeon or his autho-

rized representative. 14 C.F.R. 183.11(a). The designa-

tion is effective for one year, is renewable for additional

periods of one year, and may be terminated at the dis-

A-5

cretion of the FAA. 7d. § 183.15(a) & (d). An AME

applicant must be ‘‘a professionally qualified physician

in good community standing, licensed to practice medi-

cine in the state, foreign country, or area in which the

designation is sought and must be engaged in full-time

practice at a specified address.’” FAA Order 8520.2C,

para. 9(a)(1) (1978) (revised 1981); see also 14 C.F.R.

§ 183.11. The vast majority of physicians designated as

AMEs maintain private practices or are affiliated with

hospitals.

AMEs are authorized to: (a) accept applications for

physical examinations necessary for issuing an airman

medical certificate; (b) conduct those physical examina-

tions; and (c) issue, renew or deny airman medical cer-

tificates in accordance with Federal Aviation

Regulations. See 14 C.F.R. § 183.21; see also id.

§ 67.25. Although the FAA maintains regional lists of

AMEs, see id. § 67.23, an applicant for a medical certif-

icate is responsible for contacting and scheduling an

appointment with the AME of his choice. With limited

exceptions, AMEs conduct examinations in their own

offices and are required to have ‘‘adequate facilities for

performing the required examinations and possess or

agree to obtain’’ a variety of specialized medical equip-

ment. FAA Order 8520.2C, para. 9(a)(3)(e). Each AME

is responsible for setting an appropriate fee to be

charged for the examination, and payment is made by

the applicant directly to the AME. Further, the FAA

provides no insurance and does not pay workers’ com-

pensation or social security taxes for the AMEs.

AMEs act ‘‘[uJnder the general supervision of the

Federal Air Surgeon,’’ 14 C.F.R. § 183.21(b), and are

referred to in Federal Aviation Regulations as ‘‘repre-

A-6

sentatives of the [FAA],”’ id. § 183.1. It is the policy of

the FAA to continually evaluate AMEs. The evaluation

primarily consists of assessing: (1) the adequacy of

information the AME provides on the medical examina-

tion forms; (2) the ‘“‘error rate’’ in certification; (3)

reports from the aviation community concerning the

AMEs’ professional performance and personal conduct;

(4) attendance at seminars; (5) performance reports,

including quarterly and annual performance summaries.

FAA Order 8520.2C, para. 13(b).

To assist AMEs in the performance of their duties,

the FAA provides each AME with the Guide for Avia-

tion Medical Examiners (‘‘the Guide’’). The Guide is

designed to provide all pertinent information and guid-

ance needed to perform the duties and responsibilities

delegated to each AME by the FAA. Included in the

Guide are step-by-step instructions for reviewing medical

certificate applications and conducting physical examina-

tions of the applicants. The Guide also details the

proper use of the FAA medical examination form.

In 1982 and again in 1984, three months before the

ill-fated flight, pilot Small was examined and certified

by AMEs as medically fit to be a pilot. The AMEs were

‘both physicians engaged in the private practice of medi-

cine and employed by medical centers. At the time of

the examinations, Small suffered from heart disease as

well as other medical ailments. In violation of explicit

instructions, as well as federal law, 18 U.S.C. 1001

(1988), Small failed to disclose the existence of these

medical conditions on his certification application or in

his discussions with the AMEs. The discovery of Small’s

maladies would have required the denial of his airman

medical certificate. See 14 C.F.R. § 67.17(e). On this

Re ct aaa i, al Rg ear Are

A-7

appeal, as in district court, the plaintiffs-appellees con-

tend that under the FTCA the AMEs are government

employees and the United States is therefore liable for

their allegedly tortious conduct.

DISCUSSION

The FTCA is a limited waiver of sovereign immunity

making the Federal Government liable to the same

extent as a private person for certain torts of employees

of the government acting within the scope of their

employment. 28 U.S.C. §§ 1346(b), 2671. The Act

defines ‘‘employee of the government”’ to include ‘“‘offi-

cers or employees of any federal agency, members of the

military or naval forces of the United States, . . . and

persons acting on behalf of a federal agency in an offi-

cial capacity. . . .’’ Id. § 2671. The FTCA waiver of

sovereign immunity, however, does not extend to inde-

pendent contractors. Jd.; see United States v. Orleans,

425 U.S. 807, 814 (1976). Thus, the central question on

this appeal is whether the AMEs are FAA employees or

independent contractors.

Whether a person is a government employee or an

independent contractor is a question of federal law.

Logue v. United States, 412 U.S. 521, 528 (1973). The

Court in Logue and Orleans addressed the distinction.

Both cases concerned allegedly negligent employees of

government contractors. Logue involved a county jail

that had contracted with the federal government to hold

federal prisoners in custody. Orleans concerned a com-

munity action agency which was organized for the sole

purpose of undertaking federal programs, which was

funded entirely by the federal government, and all of

whose activities were in compliance with government

A-8

standards and regulations. At issue in both cases was

whether the contractors were ‘‘federal agencies’’ or inde-

pendent contractors. The FTCA’s definition of ‘‘federal

agencies”’ includes, inter alia, entities that are ‘‘acting as

instrumentalities and agencies of the United States.’’ 28

U.S.C. § 2671. The issue was critical because, in con-

trast to independent contractors, the FTCA’s waiver of

sovereign immunity extends to the negligent acts of

employees of ‘‘federal agencies.”’

Applying principles of agency law, the Court in effect

recognized that the term ‘‘federal agency’’ is synony-

mous with ‘‘servant or agent’’ of the government. See

Logue, 412 U.S. at 527-28 (citing Restatement (Second)

of Agency § 2 (1958)); Orleans, 425 U.S. at 814-15. The

Court concluded that the contractors were not servants

because the government lacked the authority ‘‘to control

the detailed physical performance of the contract.’’

Logue, 412 U.S. at 527, 528; see Orleans, 425 U.S. at

814; accord Restatement (Second) of Agency § 2. There-

fore, the federal government was held not to be liable

for the conduct of the contractors’ employees.

As the district court noted, the relationship between

the employees in Logue and Orleans and the AMEs in

this case is not perfectly analogous. Leone, 715 F.Supp.

at 1187-88. Logue and Orleans involved organizations,

which the plaintiffs argued were federal agencies. The

present case concerns individual AMEs, who the

plaintiffs-appellees argue are employees of the govern-

ment. Unlike the district court, however, we are uncon-

vinced that this distinction alters the relevant analysis.

Indeed, in contrast to Logue and Orleans which con-

fronted terminology specific to the FTCA, i.e. ‘‘federal

agency,’’ we are presented with conventional agency

A-9

relationships, i.e. employee (or servant) versus indepen-

dent contractor. See generally Restatement (Second) of

Agency §§ 2, 220. Similarly, we find no support in

either statute or precedent for plaintiffs-appellees’ con-

tention that the reasoning of Logue and Orleans is inap-

plicable to physicians and other professionals. Neither

Logue and Orleans nor the legislative history of the

FTCA supports drawing an arbitrary distinction between

professionals and other contractees. See Wood v. Stan-

dard Products Co., 671 F.2d 825, 831 (4th Cir. 1982);

cf. Polk County v. Dodson, 454 U.S. 312, 321 (1981)

(applying principles of agency to determine whether an

attorney was a public employee acting under color of

state law). Accordingly, we believe that the strict control

test, as well as principles of agency, govern this inquiry.

See Charlima, Inc. v. United States, 873 F.2d 1078,

1080-81 (8th Cir. 1989); Cavazos v. United States, 776

F.2d 1263, 1264 (Sth Cir. 1985); Wood, 671 F.2d at 829.

Confronting the strict control test, plaintiffs-appellees

nonetheless argue that the AMEs are employees of the

FAA. In particular, they emphasize that the FAA pro-

vides the AMEs with detailed guidelines for conducting

medical exams and requires the use of specific equip-

ment and examination techniques. The FAA regulations

also set forth the medical standards the AMEs must

apply in assessing each applicant for certification. Fur-

ther, each AME acts under the Federal Air Surgeon’s

general supervision, see 14 C.F.R. § 183.21(b), and the

FAA continuously evaluates the AMEs.

The plaintiffs-appellees, however, fail to appreciate

that such detailed regulations and evaluations are an

insufficient basis to satisfy the strict control test. See

Letnes v. United States, 820 F.2d 1517, 1519 (9th Cir.

A-10

1987). The question is not whether a contractor must

comply with federal regulations and apply federal stan-

dards, but whether its day-to-day operations are super-

vised Sy the Federal Government. See Orleans, 425 U.S.

at 815; see also Charlima, 873 F.2d at 1081; Brooks v.

A.R. & S. Enterprises, 622 F.2d 8, 11 (1st Cir. 1980).

Thus, while the FAA acts generally as an overseer, it

does not manage the details of an AME’s work or

supervise him in his daily duties. Indeed, neither the

supervision provided by the Federal Air Surgeon nor the

FAA procedures to evaluate the AMEs entail on-site

review or day-to-day management. Accordingly, the

FAA does not maintain the type of control over the

AMEs that is required by Logue and Orleans.

A similar outcome follows when the AMEs’ relation-

ship to the FAA‘is analyzed in accordance with the

Restatement (Second) of Agency. The Restatement, sec-

tion 220(2), provides that in determining whether one

acting for another is an employee or independent con-

tractor, the following relevant factors are to be consid-

ered: the extent of control which, by agreement, the

master may exercise over the details of the work;

whether or not the one employed is engaged in a distinct

occupation or business; the kind of occupation, with

reference to whether the work is usually done under the

direction of the employer or by a specialist without

supervision; the skill required in the particular occupa-

tion; whether the employer or the workman supplies the

instrumentalities, tools and the place of work; and the

method of payment, whether by time or by the job. See

also 1 L. Jayson, Handling Federal Tort Claims

§ 203.01, at 8-58 (1990).

2 ee a TN ee al ne te

A-1l

The FAA, as discussed above, does not maintain con-

trol over the detailed physical performance of the

AMEs. The individuals who serve as AMEs are profes-

sionally qualified physicians; most maintain their own

private medical practices or are affiliated with hospitals.

Each AME is free to examine as few or as many appli-

cants as he desires. The AMEs obviously are specialists,

who usually work without supervision. The performance

of their duties clearly requires special skill and training.

To that end, AMEs are responsible for being informed

as to the progress of aviation medicine, Order 8520.2C,

para. 9(a)(3)(a), and necessarily rely on their own pro-

fessional judgment in making certification decisions.

Each AME also must supply the instrumentalities, tools

and the place of work. Additionally, each AME sets his

own fee and is paid directly by the applicant. Also

instructive is the fact that the FAA provides no insur-

ance and does not pay workers’ compensation or social

security taxes for the AMEs. See 1 L. Jayson, supra,

§ 203.04, at 8-59. Viewed in toto, these factors demon-

strate that AMEs are independent contractors and not

employees of the government.

Finally, plaintiffs-appellees argue that AMEs should

be considered employees of the government because they

are acting on behalf of the FAA. Section 2671 of the

FTCA states that ‘‘persons acting on behalf of a federal

agency in an official capacity, temporarily or perma-

nently in the service of the United States, whether with

or without compensation’’ are to be considered employ-

ees of the government. 28 U.S.C. § 2671 (emphasis

added). Plaintiffs-appellees contend that because the

AMEs are deemed ‘“‘representatives of the [FAA],’’ 14

C.F.R. § 183.1, and are provided with an FAA identifi-

A-12

cation card, they are acting on behalf of the govern-

ment. We disagree.

Authorities that have discussed this clause indicate

that it is designed to cover special situations such as

government officials who serve without pay, or an

employee of one government agency who is loaned to

and works under the direct supervision of another gov-

ernment agency. Logue, 412 U.S. at 531; accord 1 L.

Jayson, supra, § 203.04, at 8-75. The fact that an inde-

pendent contractor holds a government I.D. card or that

a federal regulation refers to the contractor as a ‘‘repre-

sentative’ does not satisfy our understanding of the

_meaning of the ‘‘acting on behalf of’’ clause. Moreover,

‘to hold that this clause provides for FTCA liability,

when there is inadequate control or other indications of

an employee relationship, would seriously undermine the

FTCA’s independent contractor exemption. Cf. Logue,

412 U.S. at 532. We do not believe that such an exten-

sion of the FTCA’s waiver of sovereign immunity is

appropriate.

CONCLUSION

Based on the foregoing, the order of the district

court, denying the government’s motion for summary

judgment and granting plaintiffs-appellees’ cross-motion

for partial summary judgment, is reversed and the case

is remanded with instructions to grant the defendant-

_ appellant’s motion for summary judgment.

APPENDIX B

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

CV 87-1568

-

REYNOLD LEONE, as Administrator of the Estate of ANDREA

LEONE, also known as ANDREA HELD, deceased,

Plaintiff,

—against—

UNITED STATES,

Defendant.

FRANCIS S. COSTIGAN (now known as COSTIGAN-LEEDS), as

Executrix of the Estate of George B. Costigan, Jr.,

— Plaintiff,

—against—

UNITED STATES,

Defendant.

> —

MEMORANDUM AND ORDER

Attorneys:

For Plaintiff:

Milton G. Sincoff, Daniel M. Kolko

Kreindler & Kreindler

100 Park Avenue

New York, NY 10017

Dated June 27, 1989

B-2

For Defendant:

Thomas B. Almy

Torts Branch, Civil Division

U.S. Dep’t of Justice

Washington, D.C. 20591

DEARIE, District Judge.

This is a Federal Tort Claims Act (‘‘FTCA’’) suit brought

by the estates of two individuals killed when the pilot of an

airplane in which they were passengers suffered a heart attack

and the plane crashed. Plaintiffs claim that the physicians

who performed medical examinations of the pilot as a step in

the pilot’s licensing by the Federal Aviation Administration

(‘‘FAA’’) were ‘“‘employees of the government’? who con-

ducted the examinations negligently.

The government has moved for summary judgment dis-

missing the complaint on the grounds that for the purposes

of the FTCA, the physicians are independent contractors for

whose alleged negligence the United States is not liable.

Plaintiffs have cross-moved for partial summary judgment

striking the part of the government’s fifth affirmative defense

which sets forth the theory advanced in the government’s

present motion.

For the reasons set forth below, the government’s motion

is denied and plaintiffs’ cross-motion is granted.

FACTS’

In pursuit of its statutory mandate to promote aircraft

safety, see 49 U.S.C. § 1348(a), the FAA requires that per-

sons seeking to be licensed as pilots first obtain the appropri-

ate medical certification. 14 C.F.R. § 61.3(c). The FAA has

promulgated detailed medical standards which applicants

seeking certification must meet. 14 C.F.R. §§ 67.13, 67.15,

1 The facts are set forth in greater detail in this Court’s prior decision

in this action, Leone, ef al. v. United States, 690 F. Supp. 1182 (E.D.N.Y.

1988).

B-3

67.17 (hereinafter the ‘‘applicable medical standards’’). The

determination that an applicant has (or has not) met the

FAA’s medical requirements is based on an examination con-

ducted solely for that purpose and an evaluation of the appli-

cant’s medical history and condition. Jd. at § 67.11.

The FAA has delegated the task of medical examination

and evaluation of pilot applicants to physicians designated as

Aviation Medical Examiners (‘‘AMEs’’). Specifically, the

FAA has delegated to AMEs (and to the Federal Air Sur-

geon) the authority

to issue or deny medical certificates to the extent neces-

sary to (1) examine applicants for and holders of medi-

cal certificates for compliance with applicable medical

standards; and (2) issue, renew, or deny medical certifi-

cates to applicants and holders based upon compliance

or non-compliance with applicable medical standards.

Id. at § 67.25.

The vast majority of persons designated as AMEs are phy-

sicians in private practice, on hospital staffs, or otherwise not

‘‘employed’’ by the FAA. A few of the physicians the FAA

designates as AMEs, however, are persons already employed

by the FAA.

In 1981, the FAA issued a revised Guide for Aviation Med-

ical Examiners (the ‘‘Guide’’) ‘‘to assist’? AMEs in the per-

formance of their duties. The Guide informs AMEs that the

applicable medical standards (14 C.F.R. Part 65) are ‘‘estab-

lished by law’’ and therefore binding on AMEs. The revised

Guide also states, on its first page, that ‘‘the [AME] is a des-

ignated representative of the FAA Administrator with impor-

tant duties and responsibilities’? (emphasis added).

In 1978 the FAA issued an order (the ‘‘FAA Order’’),

revised in 1981, which states, inter alia, that ‘‘[i]t is the pol-

icy of the [FAA] to continuously evaluate the performance of

each AME.”’ Order, section 13(b)(1). AME evaluations assess

(i) the ‘‘adequacy of information’? the AMEs provide on

forms following examinations; (ii) the ‘‘error rate’’ in certifi-

_ cation; (iii) ‘‘reports from the aviation community concerning

the AMEs’ professional performance and personal conduct as

B-4

it may reflect on the [FAA];”’ (iv) attendance at seminars;

and (v) performance reports, including a quarterly and

annual performance summary and a training summary. Jd. In

addition, the FAA Order requires the AMEs to comply with

the Guide, to attend training seminars, to obtain and use par-

ticular equipment, and to perform personally each pilot

examination.

The FAA regulations also provide that when conducting

the examinations, AMEs act ‘‘[uJnder the general supervision

of the Federal Air Surgeon or the appropriate senior regional

flight surgeon.’’ 14 C.F.R. § 183.21(b) (emphasis added).

In addition to the FAA regulations, FAA Order, and the

1981 Guide, the FAA describes the duties and functions of

AMEs in yet another publication, FAA Form 8510-2, the

Aviation Medical Examiner Designation Application (the

“‘Application’’). In the Application, the FAA states that it

utilizes AMEs ‘‘to carry out responsibilities for enforcement

of physical standards prescribed in the [FAA regulations]’’

and that ‘‘the AME acts officia/ly as a representative of the

FAA. ...’’ (emphasis added) The Application requires

AME applicants to agree, as conditions of acceptance, to

become thoroughly familiar with the Guide, to abide by the

regulations, and to attend FAA seminars on aviation medi-

cine. Finally, the Application informs AME applicants that

all designations are made for one year, and that renewal is

contingent upon, inter alia, the ‘‘accuracy and number of

examinations performed.’’

AMEs receive no remuneration from the FAA but instead

are paid a fee by each pilot applicant. The FAA has the

authority, however, to set the maximum fee an AME may

charge.

DISCUSSION

A. Relevant Provisions of the FTCA.

The FTCA, 28 U.S.C. § 1346(b), authorizes suits against

the United States for damages:

for injury or loss of property, or personal injury or

death caused by the negligent or wrongful act or omis-

sion of any employee of the Government while acting

within the scope of his office or employment, under cir-

- cumstances where the United States, if a private person,

would be liable to the claimant in accordance with the

law of the place where the act or omission occurred.

Id. (emphasis added).

As is well known, there exist several exceptions to the

FTCA’s broad waiver of the sovereign’s immunity.” The

present motions involve the so-called ‘‘independent contrac-

tor’ exception to the FTCA, embodied in the legislative defi-

nitions. Section 2671 of Title 28, U.S.C. provides:

*‘Employee of the government’’ includes officers or

employees of any federal agency, . . . and persons act-

ing on behalf of a federal agency in an official capacity,

temporarily or permanently in the service of the United

States, whether with or without compensation (emphasis

added).

Section 2671 further provides that the term ‘‘federal agency’”’

includes the executive departments, the military depart-

ments, independent establishments of the United States,

and corporations primarily acting as instrumentalities or

agencies of the United States, but does not include any

contractor with the United States.

Id. (emphasis added).

2 This Court has previously held that the FTCA’s ‘‘discretionary func-

tion’’ exception does soi apply to AMEs because they perform a ‘‘regulatory

activity.’’ Leone, supra, 690 F. Supp. at 1188.

B-6

As the foregoing indicates, there are two theories under

which the AMEs could be deemed ‘‘employees of the govern-

ment:’’ either because they are ‘‘employees of any federal

agency”’ (in this case, the FAA), or because they are ‘‘per-

sons acting on behalf of [the FAA] in an official capacity

B. The Arguments of the Parties.

The government calls for a strict application of the

Supreme Court’s so-called ‘‘strict control’’ test, as announced

in Logue v. United States, 412 U.S. 521 (1973) and United

States v. Orleans, 425 U.S. 807 (1976), arguing that the

AMEs are independent contractors, and therefore not

employees of the government, because the government does

not exercise on-site, day-to-day supervision over them.

Plaintiffs, on the other hand, argue that the AMEs are

employees of the government because they ‘‘act on behalf

of’’ the FAA. The government essentially ignores this theory,

lamely arguing that the ‘‘acting on behalf of’’ clause does not

apply in this case. Plaintiffs also argue, however, that the

AMEs are employees of the government under a sensible

application of the Logue and Orleans rationale.

As the foregoing indicates, the parties are in disagreement

as to which of the two theories of section 2671—the ‘‘acting

on behalf of’’ clause, or the contractor exception as con-

strued in Logue and Orleans—governs the analysis of this

case. The Court does not view this case as one that could be

resolved simply by deciding that only one of the two availa-

ble theories governs because, as demonstrated below, (i) the

case is not on all fours with Logue and Orleans and yet it is

perhaps too easily decided by the rarely invoked ‘‘acting on

behalf of?’ clause; (ii) the Court believes that a common

rationale governs regardless of the particular statutory lan-

guage invoked; and (iii), even if the theories were entirely

separable, the Court need not decide which of the two theo-

ries governs because under either theory, the AMEs are

unquestionably persons for whose negligence the United

States may be found liable.

B-7

C. The ‘‘Strict Control’’ Test of Logue and Orleans.

1. The Cases.

Since both plaintiffs and the government argue under

Logue and Orleans, it is necessary to establish exactly what

these two cases hold.

In Logue, plaintiffs brought suit under the FTCA alleging

that their son’s suicide, which occurred while he was a fed-

eral prisoner housed in a county jail, was caused by the negli-

gent failure of employees of the Nueces County (Texas) jail

to maintain adequate surveillance. Section 4002 of Title 18,

U.S.C., authorizes the Federal Bureau of Prisons to contract

with state prisons for the housing of federal prisoners. The

Supreme Court held, however, that the government was not

subject to suit because the county jail’s employees were not

‘‘employees of the government’’ within the meaning of sec-

tion 2671.

The Court rejected first the argument that the county jail

was a “‘federal agency or instrumentality’’ within the mean-

ing of 2671, and that its employees, accordingly, were

“employees of the government,’’ since the statutory defini-

tion of federal agency expressly excludes ‘‘any contractor

with the United States.’’ Jd. The Court concluded that the

county jail was not a federal agency because it was an inde-

pendent contractor. Specifically, the Court found that the

‘contractor with the United States’’ language ‘‘adopt[s) the

traditional distinction between employees of the principal and

employees of an independent contractor with the principal.’’

412 U.S. at 527. The Court then announced that ‘‘the critical

factor in making this determination is the authority to con-

trol the detailed physical performance of the contractor.’’ Jd.

at 527-528 (emphasis added).

The Court noted that although the county provides custody

in accordance with the Bureau of Prisons’ ‘‘rules and regula-

tions governing the care and custody of persons committed,”

the contract between the Bureau and the county gave the gov-

ernment ‘‘no authority to physically supervise the conduct of

the jail’s employees.’’ Jd. at 529-530 (emphasis added). The

Court further observed that Congress, when authorizing the

B-8

government to contract with local jails, ‘‘clearly contem-

plated that the day-to-day operations of the contractor’s

facilities were to be in the hands of the contractor. . .”’ Jd.

(emphasis added). Accordingly, the Court concluded that the

county jail was not a ‘“‘federal agency,’’ and its employees,

therefore, not ‘‘employees of the government’’ under section

2671.

United States v. Orleans, supra, is largely a reiteration and

application of the principles announced in Logue. As in

Logue, the issue in Orleans was whether a particular entity—

in that case, a community action agency serving the poor—

was a federal agency or an independent contractor within the

meaning of section 2671.

A review of the facts of Orleans reveals that the relation-

ship between the allegedly negligent individuals and the gov-

ernment resembles the relationship between the jail employees

and the government in Logue. Under the Economic Opportu-

nity Act, 42 U.S.C. § 2781 et seq., (“‘EOA’’) the federal gov-

ernment provides financial support for community action

programs administered by state-designated community action

agencies. The Warren-Trumbull Council (“‘WTC’’), as such

an agency, organized a neighborhood opportunity center

which sponsored a recreational outing for a group of chil-

dren. The WTC arranged the transportation for the outing.

Suit was brought under the FTCA on behalf of a child

who was injured when the car transporting him home from

the WTC outing was involved in a collision. As expressly

stated by the Court, the sole issue in Orleans was ‘‘whether a

community action agency funded under the [EOA] is a fed-

eral instrumentality or agency for purposes of [FTCA] liabil-

ity.” 425 U.S. at 809. The precise holding of Orleans decided

that the WTC and the neighborhood opportunity center were

not federal agencies or instrumentalities for FTCA purposes.

Consequently, under a Logue analysis, employees of the

WTC (who ran the neighborhood opportunity center’s out-

3 The Logue Court also rejected plaintiffs’ attempt to rely on the

**acting on behalf of’’ clause. This portion of the Logue opinion is discussed

infra at section D.

B-9

ing) were not ‘“‘employees of the government’’ for whose neg-

ligence the United States would be liable. In its reasoning, the

Orleans Court simply reiterated and applied the Logue strict

control test, stating that the ‘‘critica] element in distinguish-

ing an agency from a contractor is the power of the Federal

Government ‘to contro] the detailed physical performance of

the contractor.’ ’’ 425 U.S. at 814 (citing Logue).

2. Application to the Instant Action.

As became clear during oral argument, the government

would have this Court attribute nearly talismanic weight to

the words ‘‘day-to-day”’ and the notion of on-premises super-

vision as applied in the Logue and Orleans opinions. During

argument, counsel for the plaintiffs contended that the FAA

does all it practically can to control, monitor and supervise

the AMEs’ performance, thus satisfying the Logue and

Orleans standard. Plaintiffs suggested specifically that the

FAA’s promulgation of excruciatingly detailed regulations

mandating how AMEs are to conduct exams is sufficient to

satisfy Logue which counsels ‘‘that the critical factor in mak-

ing this determination is the authority of the principal to con-

trol the detailed physical performance of the contractor.”’

Logue, 412 U.S. at 527-28. Without identifying precisely

what, the government insists that more is required. This

Court disagrees.

Through its demanding and detailed regulations, the FAA

dictates virtually every action the AME should undertake

during the examination, specifies the particular information

that should be elicited from the pilot applicants, and explic-

itly sets forth the medical standards the AME must apply in

assessing the information and in deciding whether to issue or

deny a certificate. The Court wonders what greater degree of

control could be exercised over AMEs, unless an FAA oOffi-

cial literally sat in the examination rooms, either prompting

the AME to ask a question he or she might forget to ask, or

holding the stethescope as the AME listened to an applicant’s

heartbeat. It is noteworthy that at oral argument the Court

asked the government on what set of facts it would deem the

B-10

**strict control’’ test met in this case; the government was

unable to provide a definitive or even helpful answer, sug-

gesting merely that the test might be met if a badge-wearing

FAA official read the applicable medical standards to each

AME in person before each examination.

In this Court’s view the ‘‘strict control’’ test should be

applied not with the absurd literalness suggested by the gov-

ernment, but sensibly, with due regard for the totality of the

circumstances, including the nature of the services performed

and the configuration of the parties’ relationship. It is there-

fore unnecessary to adopt, as plaintiffs suggest, a modified

version of Logue and Orleans for physicians.‘ Logue and

Orleans were clearly intended to have broad based applica-

tion beyond the confined factual scenarios suggested by the

language employed. The decisions prescribe a functional

approach, focusing on the activity involved, the need and

opportunity for supervision and the amount and source of

the supervision or oversight. In Logue the Bureau of Prisons

deferred entirely to the County jail officials who supervised

the day to day operations of the facility without interference

of any kind from the federal government. Similarly, in

Orleans, the community action agency ran its daily opera-

tions unencumbered by the scrutiny or supervision of federal

authorities. The negligent employees in those cases were

supervised not by any federal entity or representative, but by

their local employers. The particular language used to articu-

late the ‘‘strict control’’ test in Logue and Orleans constitutes

a sensible and appropriate test for vicarious federal liability

in cases where the relevant players’ relationship is structured

4 In addition, the Court notes that contrary to plaintiffs’ assertion, no

other court has so held. Plaintiffs cite two cases which they believe ‘‘estab-

lish’’ the principle that a modified ‘‘strict control’’ test should apply to phy-

sicians. See Lurch v. United States, 719 F.2d 333 (10th Cir. 1983); Quéilico v.

Kaplan, 749 F.2d 480 (7th Cir. 1984). In each case, however, the passages

upon which plaintiffs hang their hats are pure dicta.

Nonetheless, this Court’s decision to apply the strict control test sensibly

necessarily embraces part of the reasoning of the Lurch plaintiff, who argued

that those areas of medical services that are susceptible to supervision and

control should be considered in determining if a physician is a federal

employee.’’ Lurch, 719 F.2d at 337 (emphasis in original).

FP FCT eee lL eee “_~ - o

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B-11

as it was in Logue and Orleans. It therefore makes perfect

sense that the Supreme Court require, as a condition to hold-

ing the federal government liable for the employees of an

entity with which it contracts, that the government have exer-

cised over that entity’s employees at least as much, if not

more contro] than that entity actually exercises over those

same employees.

This is not to suggest that the ‘‘other entity’’ in each of

those cases existed, in the eyes of the Court, as a mere alter-

nate deep-pocket for recovery. Rather, the other entity in

each of those cases, as the actual employer of the allegedly

negligent individuals, functioned as the primary or more

proximate employer and supervisor of its own employees. Put

yet another way, Logue and Orleans would better support the

government’s argument here if, for example, the FAA had

contracted with the American Medical Association, or with a

particular hospital, to designate AMEs to conduct pilot certi-

fication exams, and these AMEs were members of the Associ-

ation or employees of the hospital and subject to some

primary level of supervision or contro] by the Association or

hospital. It is on that factual paradigm that the Logue and

Orleans decisions rest.*

S$ The government also places reliance on an opinion of the District

Court of the Northern District of Texas, In Re Air crash at Dallas/Fort

Worth Airport on August 2, 1985, Memorandum opinion filed Nov. 5, 1987,

M.D.L. No. 657 (the ‘‘Dallas case’’). The issue in that case was whether a

negligent weather observer was an employee of the government or an

employee of an independent contractor. The facts are structurally analogous

to those in Logue and in Orleans: the National Weather Service (‘‘NWS’’)

contracted with a group called Weather Experts to carry out NWS’s duty to

operate a weather observatory at Dallas/Forth Worth Airport. Although the

NWS provided Weather Experts with instructions for weather observing and

reporting, the Court, applying the Logue test (whether there is authority in

the principal to ‘‘control the physical cond « of the contractor in the per-

formance of the contract’’) concluded that employees of Weather Experts

were not employees of the government. Mem. Op. at 8.

The players’ relationship in the Dalias case thus exhibits the same structure

as the relationships in Orleans and Logue, so the decision in the Dallas case

does not affect this Court’s analysis of Logue and Orleans.

B-12

In sum, Logue and Orleans do not prescribe a ritualistic,

inflexible formula. The cases instead articulate a sensible,

flexibie rationale for holding the sovereign vicariously liable

which may be applied to a variety of situations. In essence,

the cases shield the government from vicarious liability unless

the government exercises comprehensive and meaningful con-

trol over the allegedly negligent actor as he performs the

material aspects of his government-commissioned task. This

Court cannot envision a more comprehensive or more mean-

ingful scheme for monitoring the AMEs’ contribution to the

safety of air travel than that presently designed and imple-

mented by the FAA.

D. ‘‘Persons Acting on Behalf of a Federal Agency in an

Official Capacity. . .”’

Although Congress defined ‘‘employee of the Govern-

ment”’ to include “‘persons acting on behalf of a federal

agency in an official capacity. . . ,”’ the government argues

that this Court should disregard this clause in assessing the

status of AMEs. While the Court acknowledges that the

clause is cited relatively infrequently in FTCA cases, the

Court is not persuaded that the clause is necessarily inappli-

cable to the case at bar. In any event, in light of the previous

discussion, extended analysis of the arguments presented on

this point is unnecessary.

The government relies on a discussion in Logue of the

FTCA’s legislative history to support its position that Con-

gress intended the ‘‘acting on behalf of’’ clause to apply to

only a few special and limited situations. See Logue, 412

U.S. at 530-31. The Logue Court acknowledged that

[t]he legislative history to which we are referred by the

parties sheds virtually no light on the congressional pur-

pose in enacting the ‘‘acting on behalf of’’ language in

§ 2671.

Id. at 531 (emphasis added). The Court observed that a single

passage in an appendix to the hearings comparing the bill as

enacted with previous drafts merely

a ee ee ee ee ee ee

B-13

affords some support to the Government’s contention

that the language is designed to cover special situations

such as the ‘‘dollar-a-year’’ man who is in the service of

the Government without pay, or an employee of another

employer who is placed under direct supervision of a

federal agency pursuant to a contract or other arrange-

ment.’’

Id. at 532 (emphasis added). Obviously, then, Logue does not

demand the limited application suggested by the government.

With or without Logue, however, it is equally clear that the

result is the same.

Plaintiffs cite two cases, both holding the United States lia-

ble. In Witt v. United States, 462 F.2d 1261 (2d Cir. 1972),

the plaintiff, a military prisoner assigned to the Parolee Unit

at the United States Disciplinary Barracks, one day volun-

teered for a prison work detail at a nearby private club which

frequently used prison labor. The club hired one individual,

who in turn hired a second, to transport prisoners from the

barracks to the club. The plaintiff was injured as a result of

the second individual’s negligence during the trip from the

barracks to the club.

The Second Circuit held that the second hiree was an

employee of the government for FTCA purposes because he

was ‘‘acting on behalf of’’ the government. The Court

believed it ‘‘umnecessary’’ to explore the relationship between

the second hiree and the club or between the club and the

Army. Instead, the Court reasoned that despite the absence

of any written agreement, the second hiree was ‘‘imnpliedly

authorized’’ by the Barracks Commander to transport and

help supervise prisoners, and ‘‘was certainly amenable to

some degree of control by the Disciplinary Barracks.’’ 462

F.2d at 1264 (emphasis added).

As to the meaning of the ‘‘acting on behalf of’’ clause

itself, the Witt Court observed that while the clause ‘‘is not

without boundaries, . . . quite clearly the statutory language

was drafted to have an expansive reach . . . and should be

applied with an eye to general agency law rather than to the

B-14

formalities of employment contracts.” 462 F.2d at 1263

(emphasis added) (citations omitted).

In Close v. United States, 397 F.2d 687 (D.C. Cir 1968),

the Court held that the United States could be liable under

the FTCA to a federal prisoner injured while temporarily

housed in a District of Columbia jail. Expressly relying on

the ‘‘acting on behalf of’’ clause, the Court noted that:

since the Congress has clearly committed the custody

and safekeeping of federal prisoners to the Attorney

General, then it must be true that in this instance the

D.C. jailer was serving as the Attorney General’s jailer;

and... that, as to the federal prisoner, the Attorney

General had some degree of power, commensurate with

his continuing responsibility, to supervise the D.C. jailer

in his handling of this particular prisoner.

Id. at 687.

Applying these principles, without the guiding hand of

Logue, this Court could easily conclude that the AMEs were

employees of the government since (i) the AMEs are ‘‘amena-

ble to some degree of control’’ by the FAA, see Witt, supra

at 1264, and (ii) the FAA, commensurate with its statutory

duty to promote air safety, had ‘‘some degree of power’’ to

supervise the AMEs in their handling of the medical certifica-

tion for pilots. See Close, supra at 687.

The Court is by no means, however, content with such rea-

soning. A plain, common sense reading of the clause, in Jight

of the facts set forth at the outset of this opinion, supports

the conclusion that the AMEs are employees of the govern-

ment more soundly than reliance on the limited discussion of

the clause in Witt and Close. The government concedes that

the AMEs perform a very important task and unquestionably

act ‘‘for’’ the FAA; the FAA’s own literature describes the

AMEs as the agency’s ‘‘official representatives;’’ and this

Court has already concluded that the FAA exercises about as

much control and supervison over the AMEs as practicable.

Thus, the Court can see no reason why the government

should not be answerable for an AME’s alleged negligence.

Such a conclusion is prompted by the Supreme Court’s invi-

B-15

tation to resi evex “‘acting on behalf of’’ cases on a finding

of Logue-type control. That invitation is a brief footnote in

Logue in which the Supreme Court distinguished, but did not

overrule, the holdings of Witt and Close, noting that those

two cases “‘involved findings of control by the Government

that are contrary to [the lack of contro] found by the lower

court in the Logue case].’’ Logue, supra, 412 U.S. at 533,

n.8 (emphasis added). Moreover, even if the Logue Court

had not so addressed (albeit obliquely) the ‘‘acting on behalf

of clause,’’ it would be illogical to conclude that the clause

offers a materially different rationale for federal liability or

that it may be used formalistically to circumvent the basic

“‘strict control’’ requirement.®

In short, this Court concludes that the sovereign cannot be

held vicariously liable absent substantial and meaningful con-

trol by the sovereign, regardless of the statutory or other

legal term the Court may be asked to construe. To reiterate,

then, it is not seriously disputed that the AMEs act on behalf

of the FAA when conducting pilot certification examinations,

and this Court has already decided, see section C, supra, that

the FAA exercises significant, comprehensive contro] over the

AMEs. Accordingly, the AMEs are employees of the govern-

ment under the FTCA for whose alleged negligence the

United States is answerable.

6 The fact that the ‘‘contractor’’ language creates an exception to only

the definition of federal agency, and not to the definiton of ‘‘employee of the

government,”’ of course invites the circumvention argument—namely, that

because the strict control test was occasioned by the Supreme Court’s inter-

pretation of the contractor exception, reliance on the ‘‘acting on behalf of’’

clause shouid not even implicate Logue and Orleans. This Court rejects such

a formalistic intepretation of the statute, however, and for essentially the

same reasons it rejects a formalistic reading of the language in Logue and

Orleans. Those cases clearly state a rationale for vicarious federal liability

which was meant to be applied to a wide range of factual sitations, and

which was clearly not meant to be inapplicable merely because a particular

set of facts may also happen to come within the “‘acting on behalf of’’

clause. In sum, whether construing the term “‘employee of the government”’

by way of the ‘‘contractor”’ exception or the “‘acting on behalf of’’ clause,

the determinative issue is control by the sovereign, and the theology of Logue

and Orleans accordingly, must obtain.

B-16

CONCLUSION

For the reasons set forth above, the government’s motion

is denied and the plaintiffs’ cross-motion is granted. The por-

tion of the government’s fifth affirmative defense, asserting

the independent contractor exception, shall be stricken.

SO ORDERED.

Dated: Brooklyn, New York

June 27, 1989

/s/ RAYMOND J. DEARIE

RAYMOND J. DEARIE

United States District Judge

APPENDIX C

C-1

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket Number 90-6017

Filed September 6, 1990

~

At a stated term of the United States Court of Appeals for

_the Second Circuit, held at the United States Courthouse, in

the City of New York, on the 6 day of September, one thou-

sand nine hundred and ninety

>

REYNOLD LEONE, As Administrator of the Estate of

ANDREA LEONE, Also known as ANDREA HELD,

Decease, FRANCES S. COSTIGAN (now known as

COSTIGAN-LEEDS), as Executrix of the Estate of GEORGE

B. COSTIGAN JR., Deceased,

Plaintiff-Appellees.

Vv

UNITED STATES OF AMERICA,

Defendant-Appellant.

-

A petition for rehearing containing a suggestion that the

action be reheard in banc having been filed herein by counsel

for plaintiffs-appellees, Reynold Leone and Frances S. Costi-

gan.

Upon consideration by the panel that heard the appeal, it

is

Ordered that said petition for rehearing is DENIED.

—.

/s/ ELAINE B. GOLDSMITH

ELAINE B. GOLDSMITH

CLERK

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