Petition for Writ of Certiorari — United States v. Maryland ex rel. Meyer

Supreme Court brief1963

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INDEX :

. . ‘ Page

| Opinions bie ee Seleccacdeteeeseceseees een |

. Jurisdiction. -.-S-----.- are rtere ston scan naen fs

. Questions presented. - -.- -----------=----*+ aan" 2

Constitution, statutes and regulations involved’. 2

* Statement-.--------------------- canes aie, ee ee.

Reasons for granting NS Se De eS |

.: Cosiclusion .....----@ +----:- en ae 27

~ Appendix A ----- node cceteeearebscecncseteene® la

Appendix B---.----.- OD. isnatixevaviens thn. oe

vase eng

Cases:

_Barr, Eleanor H., In the Matter of, didiiag’ as

widow of Ist Lt. Robert A. Barr, deceased

- ‘National Guardsman, 10 ECAB 206..----1 . 20

Baur v. Calic, 166 Md. 387, 171 Atl..713---- 22

Blackwell v. United States (C.A. 5, No. 20121). 16-17 ©

Callaway v. Garber, 289 F. 2d 171----------- 21

Courtney v. United States, 230 F. 2d‘112. 13, 17, 25

Dover v. United States, 192 F. 2d 431....---... 16

_ Elmo v. United States, 197 F. 2d 230__-_-. 13, 17, 25 .

. Freis v. United States, 170 F. 2d 726; certiorari —

denied, 336 U.S. 954- ------------------- 21, 23

Gallagher’s Estate v. Battle, 209 Md. “592, 122 .

A. 2d 93, certiorari denied, 352 U.S. 894. +- 22 |

- Henkelmann v. Metropolitan Insurance » ee

180 Md. 591, 26 A. 2d 418_.-- --.-------- 22, 23

- Keitz v. National Paving & Contracting Co.

— ie 479, “134A, 24 296. Se auceec ates. Cae

: Cases—Continued - j se)

___Layne x. United States, 295 F: 2d 483 certiorari Paso |

a: denied, 368 U:S. 990------y------------- “19.

“= Leachman v. Belknap Hardwore &- M$q. Sipe

260 Ky. 123, 84 S.W. 2d 46-...---------- - 23

*McCranie v. United States, 199 F. 2d 581----: 16°

_ NLRB v. Hearst Publications, 322 U.S. 1fl_. ©. 19

O’Leary v. Brown-Pacific-Mazon, | 340 US: - = »

604... .--2------4.------ 2-2 ----+2--2--- .

0’ Toole v. United States, 206 F. od oe. 17

Patino v. United States,/311 F. 2d 604, certi-

orari denied, 373 U.S. 911--------- 16, 17, 24, 26

rn Storer Broadcasting Co. v. United States, 251 «|

F. 2d 268, certiorari denied, 356 U.S. 951__.16, 17

United States v. Duncan, 197 F. 2d 233.... 13, 17, 25.-

United States v. Holly, 192 F. 2d 221---.-.13, 17, 25

United States v. Wendt, 242 F: 2d 854__-. 13, 17, 25

United States ex rel Gillett. v. Dern, 74 F..

Og. bh aeewetscwonwecdteen$s->= 17

Williams v. Un ited States, 350 US. or

Williams v.. United States, 189 F. 2d 607. - - -- . - 16

Censtitution, statutes and regulations: es

_. Constitution: : . aa

Art. 1, Sec. 8, Cl. Cor 3,7,19a .

“Statutes: . | |

Acts of Maryland General Assembly, Oct. ‘

_ Nov. Sess., 1678, 7 Archives of “Mary-: *

land (Md. Hist. Society 1889) 59. .--- - 17a

Act of April 23, 1508, 2 Stat. 490..:-.-.. 17a —

Act of Feb. i2, 1887, 24 Stat. 401-_----- — 2

Act of. May 8,- 1792, Sec. 1, 1 Stat. i. 17a

, Act of Jan: 21, 1903, 32 Sit: F77..:-.-. Wa

* Act of May 28, 1926, eh. 417,. § 1,44 Stat.

RE ORIG) FOS aS aatetiaop ee yarenaae oe |” ae

Act of June 19, 1935, ~ 277, 49 Stat. 391. 19a

- Constitution, statutes: and regulitigns—Con.

! ! Statutes—Continued )

or Act of July 16, 1946, ch. 583; 1,60 Stat. Page

. eet | US ores Se Ba gee 20a

’ Act of Sept. 1, 1954, 68 Stat. 1059. ~ .2ia

"Act of June 15,'1956, 70 Stat. 283, ‘5

3 i ae aA SO

Act of July 2,.1956, ch. 488, ttle V, $01,

tek OW. es isise a

| ae . + Federal Tort Claims Act: — .

cs | oe - 93 USC. 1346(0)_ 2-222 8 15, 21.

- 28 U.S.C. 2671.2. -----s ~ went a as

“+ Md. Anno. Code, Art.. 65, § 10. re,

| __ National Defense Act of 1916 a ) Ps

as 166, et seq.): ° s'

‘ . @ .Seetion 83, 32 U.S.C. 702_- 26, -% 18a .

9 Section 87, 32 U.S.C. 702. 26, 18a.

"e. — ® Section 90, 32 UB.C. 709... f.-.- . “4.

ee 7,8, 9, 14, 18, 24, 17a, 18a

: ty, ee nae ca : : Section 9h, 32 US.C. 501 a 2. 4, 1a:

a Sra Ko 6 Section 93, 32 U.S.C. 105.22... 8, 26, 17a

eee Section 61, 32. U.S.C. 209. x eects

7s) Section 116, 32 U.S,@. 108)... 8.

| Section 117, 32 UGC. 101. ce ees

as | Pub. L. 85-117 . (Ate. 2, 1957) title ‘Pees ;

: $a01, 71 Stat. 397. "20a

, Fob. L. 86-740 (Sept. 13, 1960, 74 Stat.

‘= 878) 32 U.S.C. (Supp. II) 715__.- 16, 20, 22a -

_. Pub. L. 87-224, Sept. 13, 1961, 75 Stat.

sone * 496, 5 “$i (Supp. IV) 84d... 19, 2la

a ees. RS. § ar eee weedeat yh tonn « - 17a

"10 UBC. See eter i SEAS pa ae”

<A ee Mr nea aa scver sees sss ae

$2 U.S.C. (Supp. IV) 709(f)_-.-----.- 19, 2la

Powe Soa /A2 USC. ER DCTS "19, 2la

Md. Rev. Code of 1878, Art. 18, § 28-33. 17a ¢ .

~ Constitution, statites ae regulations —Con,

Air National Guard Regulations (ANGR) “Pe

Bas SRN SES ae Seen 8.10

.Army National Guard Reguiations

(NGRS5I)-.- ---.------------- Stans

Miscellaneous: - ar Ro

10 Comp. Rec. 227, 228... --.-.-----~, Ia.

14 Comp, Dec..631----..- ------------ -. 7a

- 21 Comp. Gen. Dec. Eee a

- °106 Cong. Rec. Me accep ine were * 23a |

| Hearings before House Appropriations

: Committee, 84th Cong., 2d Sess., Vol. ,

4, relative to Dept of Air Force appro-

~ priation for fiscal year 1957 ---------- 9,20a

Hearings |on H.R. 5435 and 9315, House :

Judiciary Committee, 86th Cong., 2d ~

REE Bavee Conese aera seer pee a

| ‘Historical Note, 32 USC. pp. 5768-9. 20a, 21a

H. Rep.-1031, 69th Cong., Ist. Sess__--- 27, 18a .

H. Rep. 1698, 83d Cong., 2d Sess____-- 19, 21a

H. Rep. 1928, 86th-Cong., 2d Sess.. 20, 22a, 23a.

H. Rep. 786, 87th Cong., 1st Sess_..... 19, Zla .

Restatement, Agenty'2d:

Section 230. .----=------- nee = §

Section ee oe ee 13, 21 .

teen OR. . 5 os kes 13

os “Sen Rep. 785,-69th Cong., Ist Sess..." 27, 18a

. Sen. Rep: 635, 74th Cong., Ist-Sess...- 18, 19a

Sen. Rep. 1987, 83d Cong., 2d Sess..-- 19,.21a

Sen. Rep. 2045, 84th Cong., 2d Sess....-19, 2la

Sen. Rept. 1502, 86th Cong,, 2d Sessé.... 20,

. 22a, 23a

Sen: Rep. 709, 87th Cong,, Ist Sess... 19, 21a

ome

’

_ in these cases on J une 13,1963. a Aig oP ;

OcTOBER TERM, 1963 ;

No. ——

2 > , Y ¥ . .

Usrrep SraTes OF AMERICA, PETITIONER

he Vv. 5 Pe

Srame OF MARYLAND, FOR THE USE: OF Mary. JANE. -

MEYER, ET AL.; STATE oF. Mar¥LANnD, FOR THE USE.

oF VaNcE LEWMAN Baby, ET TAL. j. AND. cmalares AIR-

_ LINES, INc.

PETITION FOR. A WRIT OF ‘CERTIORARI TO THE UNITED STATES

; ow wc OF APPE AL& FOR THE DISTRICT OF Cony MBIA C1ROCES

The Solicitor. General, on - ‘behalf wy the United

States, petitions for a writ of | “certiorari to review.

the judgments. of the United States Court of Ap-

crate

peals for the District of Columbia Circuit ‘entcred .

OPINIONS BELOW

‘The. findings of ‘fact and conclusions of law of

the district court on the issue of vicarious liability:

(J.A. 679-688)’ and the opinions ‘of the district court

on’ smegligence and damages (J. A. -725-728, . 789-790)

are nreported.. The opinion of the court of appeals

(App., infra, pp. sit 3 ‘has not yet been reported.

2A." references are to the Joint poe filed in the

| court of — nine copies of which. have been filed in this

? /

Court.

«1)

‘uf

—— 3 SP

" JORISDICTION

rns judgments -of the eourt-of-appeals-w -were-en-— eT §

tered: on June 13, 1963: (App., infra, pp..1ga-16a).-

«+ By order dated /September 7, 1963, the Chief Justice

Bes “extended the’ time for filing a petition for a writ of

certiorari to and including October 11, 1963. The

pease of this Court i is invoked under 28 USS. -

a :

QUESTIONS PRESENTED |

L Whether members of the National Guard of the

| ‘States, acting as ‘civilian employees of the Guard.

* and receiving pay. from federal funds in that: capac-

ity, are employees of. the United States. within. the

: — of the Federal Tort Claims Act.

2. Whether, assuming such persotis are federal 5

= sini, the applicable federal statute.and regula-. ~ .

tions confer upon the United States a right %o con-

trol and: supervise these. activities sufficient to justify

_ the imposition, upon the government of vicarious. tort.

_ hhability." :

_ CONSTITUTION, STATUTES, AND REGULATIONS INVOLVED.

1. The Constitution of the United States provides

in pertinent part:

Art. I, See. 8. The. Congress shall have

Power * * * © ;

To provide for sii. arming, and ae

ciplining the Militia, and for géverning such

Part. of them .as may be employed in the Serv-

ice of the [United States, reserving to the

States: respectively, the Appointment - of the

_ Officers, “and the er. of ee: the -

eevee tie |

mae . ?

____. by Congress; *,

- 2. The Federal Tort Claims Act provides in perti- |

nent part (Title 28, United States Code): ~

_-§ 1346: United States as defendant.

(b) Subject to the provisions: of chapter 171

of this title,.the district .¢ourts, * * * shall

- have.exclusive jurisdiction of civil actions on —

~~ claims against the United States, for money

damages, accruing on and after January 1,

_.» 1945, for irijury or loss of property or personal

injury: or death caused by. the negligent. or’

wrongful act or omission of any employee of .

the Government while acting within the scope

Militia According ‘to the discipline prescribed

‘of his office or employment, under circum- —

stances where the United States, if a private

person, would be liable’ to the ‘elaimant ‘in

acrordance with the law of the place wheré the —

~~ act or omission occurred.

. tt trae * er ae aes ai

§ 2671. Definitions. .

_ As used in this chapter ‘and sections 1346(b).

and 2401(b) of this title, the term—

* ./ Tee * es

“Emplafes of the government” -inclades

officers “r employees of any, federal agency,

members of ‘the military or naval forces of the as

' United States, and persons acting on behalf of

a federal agency in an official: capacity, tem-. ¢ .

porarily or permanently in the service of the

United States, .whether with /or without

- compensation.

“yy

3. The National Defense Act of 1916 (39 Stat. 166),

- as amended, provides jn pertinent. part (Title: 32,

United States Code): - - A ee

4 Section. 709. Caretakers and clerks.

(a) ‘Under. such regulations as the Secretary _-

of the Army”may prescribe, funds’ allotted by

him for'the Army National Guard may be spent

for the compensation of competent: persons to

care for material, armament, and equipment of

the Army. National Guard. Under such regu-

.. .letjons as the Secretary of the Air Force may pre-

_ peribe, funds allotted by him for the Air National

Guard may be spent for the compensatippref com-

; pétent persons to care for material, armament,

- and equipment of the Air National Guard. A .

caretaker employed under this subsection may ,

alsv perform clerical duties incidental to his em-

* _ ployment_and’ other duties that do not interfere

with the performance of his duties as caretaker.

bad o *, * * ae

oe (d) Under: fegulaitous to be prescribed by

the Secretary concerned, one commissioned 6ffi-

cer of the National Guard in a grade below ma-

: jor may be employed for each pool set up under —

subsection (ce) and for each squadron: of the

- Air National Guard. Commissioned officers

cmay not be otherwise. employed under this

“section. 2°

e * * * ; * *

(f) ‘The Secretary anime sug fix. the -

salarzes of' “clerks and caretak thorized to

be employed under this section, and shall desig-

~ nate the person to employ them.

4. The: Air, National Guard’ Regulations (ANGR).

40-01 (20 Dec. 1954) provided } in pertinent part:

Seetin I © - |

Pa. er ar ‘ * : © >

ae: tron J pe ee ne nee pn PO

+ * . ; *. . %

2.. Policy:

-. * EES *. *

b. Air N National Guard civilian personnel

‘must be federally recognized members of

* the Air National Guard of the State, Ter- .

-ritory, Puerto Rico, or the * District’ of

Columbia except for the employment of :

(1) Females (when specifically author-

‘ined by the Chief, National Guard Bureau).

(2) Temporary personnel paid from

ftunds other than those designated for the

Ee ae pay of air tec -hnicians.

ce. Officers will not be appointed to Air

National Guard civilian personnel positions

authorized for airniep,por will airmen be - .

appointed to psfins a for

officers. ~ he “,

a * *- * * _ P

» i. Air.National Guard civilian personnel .

- will occupy the T/O vacancy most compara-

ble to that civilian position. ©. . ~

* * sy * i *-

> 3. Authority: G3:

2a. Basic authority, ‘or the employment,of

Air National Guard civilian personnel is

contained in Section 90, National anne

Act, as arhended. - .

b. Authority is pace to the. ‘adju-

tants general of the several Staté@, Terri-

708-690-632 :

tories, Puerto Rico, and the District of _

Columbia, to employ, fix rates of pay, eS- —

tablish work hours (a minimum of 40 hours

‘per week), supervise, and discharge em- —

ployees within the purview of this regu-_

lation; subject to'the provisions of law and ¢

such instructions as may be subsequently -

issued by the Chief, National Guard_

* Bureau. . oe

4. Status. Air National Guard civilian per-

sonnel. are considered to he employees of the

’ State, Territory, Puerto Rico, or the District

of Columbia (21 Comp. Gen. Dee. 305).

5. Definitions. For: the -purpose of this

Regulation: ; wo

a. Air National Guard civilian person-

nel’? means any and. all civilians employed

‘by the several States, Territories, Puerto

Rico, and the Distriet of Columbia, perma-

nent or temporary, male or female, sup-

ported wholly or in.part by Federal funds

appropriated for that purpose, including

but not limited to the following: ©

(4) “Air technician’’ means, a person

employed for the performance of the duties

of positions listed on the manning guide

and paid from funds designa for the

pay of air technicians.” ies

* + * *. #

“+

b. Section IIT

7. Appointment: | ies

‘a. Authority. Appointmént. of Air Na- ©

tional Guard civilian personnel is a func-

- tion of tle adjutant general.

* * , J

* Fi;

On the morning of May 20, 1958, a Viscount pas-

senger airplane owried by Capital Airlines collided '

over Brunswick, Maryland, with a jet trainer air-

plane owned by the United States and assigned | to

the Air National Guard of Maryland. ‘Both air- .

planes were destroyed, and all of the passengers and

crews, except the pilot of the jet trainer, were killed.

At the time of the accident, the pilot of the trainer was

both a commissioned officer in the Maryland Air Na-

tional Guard and a civilian air technician paid with

federal funds pursuant to the so-called “caretaker”

statute, 32 U.S.C. 709. : %

These suits brought under the Federal Tort Claims

Act, seek to impose liability on the United States for

_ the pilot’s alleged negligence. . |

1. BACKGROUND.

(a) The National Guard: The National Guard is a

constituent part of the militia of each State. 32

U.S.C. 101(4) and (6); 10 U.S.C. 3079, 8079. : While

the federal government prescribes its discipline, ‘fur-

nishes it with arms and supplies, and provides com-

pensation for its members, the actual recruitment, .

selection, and training of National Guard _personnel

are reserved to the States.: (Constitution, Art., I,

Sec. 8, Cl. 16; 32 U.S.C. 101(4) and (6), 501; JA.

290.) To qualify for fédcral_ support, the State units

are required to maintain “federal recognition”’ by -

passing annual inspections designed to assure that

their members, organization, training, instruction

and : property meet sailed tedoral see 32

US.C, 105, 108. But unless and until the Guard is

~ ealled into active federal service, it is subject to the

‘exclusive command and control ‘of the governor and

other State officials, and its officers and men, although.

federally recognized,’’ are not considered officers or

, employees of the United States. 32 US.C., ta ad :

J.A. 282.

‘(b) The Air Technician Program: 32 U S.C. 709,

the so-called ‘‘caretaker’’ statute, provides, inter alia, ©

that ‘‘funds allotted by [the Secretary of. the Air

Force] for the Air. National Guard may be spent for

the compensation cf competent’ persons to care for.

; material, armament, and equipment of the Air

National Guard” (par. (a)) and that the Secretary

“shall fix the salaries of. clerks and caretakers author-

_ ized to be employed under this section, and shall .

_ designate the person to employ them” (Par. (f)).

Under. regulations issued pursuant to Section 709

(now ANGR 40-01, dated Sept. 21, 1962; the ‘regula-

tions in effect at the time of the accident were ‘sub-

stantively the.same), authority to employ, supervise

and disc harge civilian personnel of the Air ‘National

' Guard -(including air tec hnicians), is delegated to the

adjutants general of the several States (See. 1, par.

3(b)j.. With certain exceptions not here relevant,

such personjel must be members or officers of the -

Air National Guard (td., par. (2)). The regulations .

declare that ‘*Air National Guard. civilian personnel

are considered to be employees of the State

(id., par. 4).

* & #97" —

The regulations accurately describe the air techni-

cian program both as it. actually operated in 1958 and

as it operates today. Civilian Kir technicians consti-

tute about 19% of the personnel of the Air National

Guard and are considered its “backbone.”’ . Although

the majority are enlisted men, officers in ‘squadrons

hold air technician positions such as base commander,

operations | training supervisor, flying training super-

visors, supply officers and maintenance officers (J.A. °

293). The grade, status, and promotions of the civil- |

ian employees are determined by State officials ‘acting

for the Governor (J.A. 295). State officers also deter-

mine the hours and working conditions of the’ civilian:

employees, supervise their daily work, and give work

assignments pursuant to State policy (J.A.295). No

federal officers or agencies have authority to pr emote

or discharge the. civilian personnel, or to’ assign, ¢on-

trol or supervise their daily work (J.A. 295-296).

Finally, although Section 709(f) authorizes the Secre-

tary of the Air Force to’fix the salaries of the “care-

* tee

takers,” many States. pay ‘less than: the maximum ——_————~

‘amount specifted by the “Seeretary, . while others. pay |

- more. than the federal maximum, augmenting the

federal money with State funds (J A. 293-294),

The civilian employees of the National Guard are |

not within the federal civil service? nor do they

receive the disability, death and retirement henefits

provided by the Federal Civil Service. Retirement

2 Volume 4, Hearings before the House Appropriations Com-

mittee, Sith .Cong., 2d Sess., relative to the Department of the

Air Force sili te ution for the Socal year 195%, Pp. 998-999.

ae “10° aS \

System (ANGR, See. 1 par. 14). However, under the

policy of the Bureau of Employees’ Compensation of —

-the United States Department of Labor, Federal Em-

' ployee Compensation benefits are payable’ upon the

i injury or death of such employees while performing

their. duties (App. 7a). .

. THE FACTS OF THIS CASE

Captain MeCoy held a commission from the Gov-

-ernor of Maryland as a captain in the Maryland Air ~

National Guard (J.A. 37, 661). A jet fighter pilot

on flying status, he was assigned to the 104th Fighter-

Interceptor Squadron, stationed at Martin Field, near

Baltimore. His military duties also included service

as the “aircraft maintenance officer’ of.the Squadron

(J.A. 92, 131). In his capacity. as civilian air tech--

‘nician, Captain McCoy held the pesition of Aircraft |

* Maintenance Chief and - ‘Acting. Maintenance Super- ,

__visor. -As such, he was in charge of the maintenance

of 28 airplanes owned by the United States and as- ©

signed to the 104th Squadron (J.A. 681). At no.

relevant time was the Squadron in the active federal

service (J. A. 283).

‘ For, some time _ prior to ‘May 20, 1998, Captain

McCoy had béen attempting to ‘jaterest an acquaint- /

ance of his, Donald Chalmers, in joining the Mary-

land “Air National Guard (J.A. 83). On the prior —

Saturday he had requested permission from his com-

manding officer, Lt. Col. Kilkowski, to take Chalmers

as a passenger’ on a flight, with a view to oo |

his intere est in the Gu: wie nee 68, erik On May 2

ee ee

Col; Kilkowski authorized Captain McCoy: to. make

such a flight with, Chalmers (J.A. 189,° 151). The

flight order, issued by order of the commanding offi-

eer of the 104th Fighter Squadron, and authorized by

the Maryland Air National Guard, directed Captain

McCoy to make a flight “for purpose of maintaining

flying proficiency” * (J.A. 209, 207). Apparently

~ because of the passenger, the flight was to be made in

ene of the unit’s two training airplanes, rather than

in one of the fighters. Although the flight was pri-

marily a “proficigney’’ (Le, training)* flight, Cap-

tain. McCoy also checked the efficiency. of the equip- _

ment to .détermine whether it was working properly — sit

(J.A, 684). To that extent, the flight"was related

-to his civilian maintenance joh. And -since he had |

qualified for all of the inilitary ‘flight pay to which he

-was entitled for the period. im question, and the flight

occurred during a day ov which he was acting as a

civilian air technician, he was, drawing compensation >»

: * - Fs ‘ -

—_—_— @

*Captain McCoy was a-rated pilot on flying status.” In order .

to maintain that rating, he was required to fly 100 hours a

year. ee a Re ae Po

‘Part of the training of. flying officers of ‘the Air National

Guard consists of “proficiency flights.’ which are training

flivhts not test flights (JA. 161-162). See App. 5a, and fn. 5,° |

infrasp. 12. ere a? : ,

Although the requirement of 100 hours’ annual flying time is

federal, the times, routes and methods of performipg flights in

Air National Guard planes were controlled by state officers

GIA. 283-285, 300, 337-338). Many proficiency flights of the

104th Squadron were made at times other than the organized

drills, both by aig technicians and other pilots of the unit (J.AL.

68). ‘* >

during the period of the flight in his civilian capacity

as an air technician (J.A. 599). It was this flight

which resulted in the collision giving rise to this liti-

gation” °° Oe jeer

3. THE PROCEEDINGS BELOW...

. tI % .

Capital Airlines, together with the survivors of the

‘pilot and co-pilot of its airplane, brought these suits.

under. the Tort Claims Act, asserting: that the United

States was responsible for Captain McCoy’s negli-

_” genee,in piloting the airplane. -The district court held:

a -trial on the preliminary question whether Captain .

‘ “.MeCoy was an employee of the United States acting

within the scope of his employment. While the court

made extensive findings as to Captain YfeCoy’s civilian 8

and military émploymet*( J.A_-679-688), it made no. --

findings ‘as to whetlier any federal. official had the

: right to hire, supervise or discharge him, or to control

* Although air technicians are6n¢ivilian pay. status during

their regular work week, they rei eive flight payin their mili-

tary capacity fer any proficiency fights they undertake, unléss

’ they have already qualified for all. the flight pay they are en-

titled to receive for the period (J.S. 153-154). When the pilot

has qualified for all of the flight pay, he is, when flying, con-

sidered to be on inactive military duty training status without

military pay (J.A. 128, 155). In such circumstancesy however,

he can receive civilian pay, as an air technician for thé’ period

of the flight (J.A. 156). one sate |

_- Suits arising out of the same collision have also been’ filed

_in Pennsylvania, Hlinois, Ohio and New York. The two Penn- .

sylvania actions have been tried (largely upon the record made

in these cases}, and resulted’ in judgments of $427,000 against

the United States. The government’s appeals in these two cases

have been briefed and argued, but are -still pending in‘ the

Court of Appeals for the Third Circuit (Nos. 14041 and 14042).

AZ pe eee.

him in the performance of his work. ‘The court found

that at the time of the accident “Captain: McCoy was |

at least in part carrying out his civilian work“ag Air-

eraft Maintenance Chief and Acting Maintenance

Supervisor’” (F.A, 687)... It riled. moreover, as a

matter of law, that a person employed as an air tech-

niciin “(earetaker) Im a nen- -activated National

Guard Unit isan employee of the United States s with-

in the meaning of sis Federal Tort Claims Act

(J.AS688). |

>, The remaining issue 2S were, then tried separately to.

the district court, which found Captain MeCoy’s neg-

ligence to be the siile proximate cause of the accident

and entered judgements’ for Capital Airlines and. the’

individual plaintiffs. Be sate

The government appealed from the. judgments on the .

quostions of its responsibility for*the actions of Cap-

tain McCoy, apd the anfount of damages awarded to

‘Capital Airlines. On the : authori)" of United States v.

Holly, 192 Fr 2d 221 (¢. A. 10) ad. subsequent cases,”

the court of appeals held ray as an air technician

receiving pay pursiiant, tothe caretaker statute, © ayy

tain MeCov -was ane nani of the. fedeual: giver,

ment { Apy. Ga). Moreover, while recognizing ‘that in

_ Ma ry), ind.-as in mosttether Sti tes) an employer can

— ddaceountable for the torts of an employee only

* he has the. right to direct and control the very

oe whie h. curses the injury ( App. tla- “1 2a), the’

a |

flys 8. Ionitet States, 17 F. od “3307 (C.A. 5s United -

Ntates v. Duncan, 197 F. 28 238 (C.A, 5); Courtney v. United

States. 230 F. ad 112 (CA, 2): United States v. Wendt, 242 a

2d S54 (Cc. A. 9).

* See, Restatement, Agency od. § s 220, -, , 228.

708-590—63-——3

14 ee ae

court held that the United States did have “the ulti- .

mate right of control over’? Captain McCoy (App.

7a). Accordingly, it affirmed the decision of the dis-

trict cc art? :

. REASONS FOR GRANTING THE WRIT

These cases present important issues as to the

‘liability of ‘the United, States unger the Federal.

Tott Claims Act for the tortious conduct of civilian |

personnel of..the National Guard, who receive com-

pensation from federal funds’ under The so-called .

“caretaker” statute (32 U.S.C. 709). Two distinet,

though related, questions are involved, both of which,

‘we urge, were wrongly decided by the court below | -

and warrant definitive resolution by_this Court. The —

. first question is whether civilian personnel of the

' National Guard are ‘“‘employees’’ of the United

| States within, the meaning of the Tort Claims Act. :

- The: second question is whethen—assuming that ‘such

“persons are /‘employees’’ of the United. States—the ©

applicable federal statute and regulations give federal

officials the right to direct and control them ingthe

. performance of their duties; for only if such right |

exists would the United States, “if a_ private per-

son, * * * be liable to the claimant in accordance

with’ the law of the place where the act or omission

occurred,” (28 U.S. 1346(b) ) in this instance,

Maryland. The court of appeals answereu both .of

*On the question of damages to Capital Airlines, the court

held that the district court had erred in awarding Capit&T the

“ reproduction: cost of its airplane, rather than its fair market |

Value, and‘ reversed and remanded the judgment in regard to

Capital Airlines for q finding of damages based upon fajr

yiarket value (App. l2a-I4a). ;

. had

_ .

_ these questions in the affirmative. On the second,

" issue, its decision is in conflict. with a fecent decision - |

of the. Tenth ‘Circuit. | oe .

Civilian employees of the ‘Air National Guard, in- |

Big sienna cen make up 19 percent of the total -

membership and number more than 14,800 employees.

Since they are on duty a full work week, they are

considered its “backbone” (App. B, infra, p. 20a).

- Similarly, there are approximately 21,800 civilian em-

ployees of the Army National Guard." The question

of the government’s responsibility under» the Tort

- Claims Act. for the conduct of such employees has

‘been a subject of recurrent litigation involving sub-—

stantial. sums of money. Indeed, the single air crash

giving rise to these actions has resulted in jud nents

against the United States of $2,063,050," and iether

2° One might phrase the two questions as one: Whether the.

United States may be held. liable, under the Tort Claims

statute, for acts performed by civilian personnel of the Na-

tional Guard. Certainly, it is true that, factors relevant.to the -

question whether such persons are properly deemed federal

: employees at all are relevant, also, for purposes of determin-

ing the degree of federal ‘control over their activities. But

since the federal Act uses the term “employee of the govern-

ment,” we cons’ '2r, first, the question of eniployment status

‘and, secondly, wuether in any évent the United States exer-

cises a measure of control which" would bring into play the

State's rule of respondiat auperiore = 5.

11 Estimates of strength are as of June 30, 1963. ;

* In addition to the three cases at bar, two actions involving

judgments of $427,000 are now on appeal to-the Third Circuit

(Nos. 14041 and 14042). See fn. 6, supra, p. 12. The amount

of the award in. the Capital Airlines case should be reduced

(see faotnote 9, supra,.p. 14). On Octdber 8, 1963, the district

court made findings, which; if sustained, would reduce Capital’s

judgment by $130,000, Jeaving a-total of,-$1.933,050 in existing

judgments.

’

an ; «

-still pending.” $ ;

' ; - 16)

actions seeking more than $3,495,000 in damages are

.The prospective - importance of these issues is not.

significantly diminished by the fact that in 1960.

Congress provided for a limited administrative set-

tlement 6f claims arising out of torts committed by -

National Guard personnel (32 U.S. C. (Supp. 11) 715;

- see infra, pp. 2ha-23a). For, as the court*below indi-

cated (App. 10a), the new: statute’ ereating that rem-

edy eontains no provision ma ing aie ‘lusive. Thus, °

if the court of appeals is, cortect in holding that fhe-.°

United States is answerable in damages for the cen-

‘dnet.of such employe eS under the Tort C aims. Act,

claimants may have a choice of remedies, one under |

the new statute and the other under the Tort Claims.

Act, and would be free to pursue both. , ;

1. The courts of appeals have uniformly and «cor-

rectly held that members of the National Gitard per-

forming training and. other military “duties: (except

when called into active federal service) -are not em-

ployees of the United States within the meaning of

the Federal Tert Claims Act." * With equal consist-

x Although dices are 1i actions, they iavabie only 7 eaten,

The actual amount of damages is likely, of epurse, to be ‘sub-

stantially less than the.amount claimed. — .

6 Williams-v. United ‘States, 189 °F. 20.607 (CLA. 10). Dagger

v. United. States, 12 F. 2d 451 (CLA. 5): MeCranie v. United

— Ntates. 199 F. 2d 581 (CLA. 5): Storer, Broad: wing Co. Nv.

° . /

United States, 251 F. HX 268 (ELA. 5). eertiorar? demed, 356

U S. OF 1: ~ PD FAistow ve. Unit d Nihate é, 309 F. 2d {Gh (CLA. 6)

> Patino v. United States, 211-F: 2d G04 (CLA, VW), cert ior ari

denied, 373 VS. 9112Werl: melt ve. tod States (C A. b ‘Na.

20121). Séme- of the distrift conte’ tases are colle te “loin

Storer Broadcasting Co. vo United Nrates,. Supe, Xe ‘ore

— | ay : ‘ 2

-ency—but incorrectly in’ our view—they have held -

that members ofthe Guard acting: in the capacity of

~ full-time civilian caretakers’ or air technicians are

~ federal employees,” _ There is no reasona le basis for ,

the dichotomy which has thus developed. wes on

Civilian employees of the National Guard, like mem-

-bers and officers performing military functions, are

paid from federal funds.. In both cases, the federal

government! sets standards which the National Guard ~

units must (ect 2 Yor der to receive federal support.

‘But unless an@. until the whit is called into active.

- federal service, the State and its oftici als exercise the

' exclusive right to. command and control, the activities »

of the Guardsmen, both in their military and civilian |

G capacities (supra, pp. 7-10). In each.case the State

officials select from qualified can dates the person

to. be enlisted” and employed, anc have the exclusive

; United ’ States ex rel Gillett. Dem. 74°F. 2d 4853 487 :

D.C): - BP Toole v. United States, 206 F, 2d 912 ¢C. A. 3 (where ’ a

niembers af: the “Mesias al Giyard of the District of Columbia

were held to “be federal employees, becuse ‘that organization

is under the direct command of the President, who appoints its

officers and who, saat a direct chain of pommand, controls

it: activities).

8 Tsited States V. Molla. 192 F. te 24 (CLA. 10) 3 Elmo ¥.

United Staten, 197 Fe “i = (C:A. 5)3U nited States v. Dunean,

197 F. 24-283 (CALS): Couringy Vv. 4 nited) States, 230 F. 2d 142

+, FR 8) : United Debts v. W ae 242 F. hi et (C, A. 9). In

' nied, 373 aU. S. 911, of course, the court he! Md thatthe officer air

technician was an employee of the United States (311 F. 2d at *

606-607 ) but denied Hakility on the ground that he was orf loazi

J to and under contro] of the state. "See infra. pp. 24-26.

> right fo promote, ‘demote: or Sateen them." ‘In

neither case does any federal official have authority te

supervise the conduct of the Guard members. These -

considerations, whieh have led the courts to hold unan-

iinously that National Guard ‘members| engaged in

training and other military duties are not federal

employees, compel the same conclusion in the case: .

of the Guard’s civilian caretakers and air technicians.

Nothing in the language or history of either the

a ‘‘caretaker”’ statute (32 U.S.C.. 709) %r the Tort

Claims Act justifies the. difference in treatment. The

former provision 1 simply declares *Nat “funds allotted”

to: the States for the National Guard “may be spent

material, armament, and equipment”’ and. that the

“Seeretary [of the Air Force] shall ‘fix the salaries

of clerks and caretakers authorized to be ‘employed

under this section, andéshall designate the person to

employ. them” (supra, p. 4). It is eledr fromm the.

legislative history that Congress intended and. under- .

stood that the person “designated’’ by the Secretary f

to “employ’’ the caretakers would be a State, rather

than‘a federal, official (Sen. Rep. No. 635, 74th Cong.,

Ast Sess., pp. 2-3), and that those receiving pay under

Section 709 would be employees of the States and not

the federal government (App. B, ‘nfra, pp. 17a-19a).

In accordance -with that understanding, the regula-

tions under Section 709 provide Mhat ° ‘Air National |

In each case the federal government ‘may cut off ee for

ee — and = in most instances cause their dis-

chagge. ew JA, 80-29 : g:%

ran) de

Guard civilian "personnel are scnnddieed:. to be em-

‘ployees of the State * * *,” and delegate to. the adju-

tants general of the a ceaad States the anthoritv to

employ, supervise, and/ discharge such etiployees, fix

their rates cf pay and establish their working hours

(supra, pp. 5-6).”

The civiltan personnel of. the National Guard, more- -

over, are deemed by Congress to be State employees

for Social Security purposes” and for purposes of the -

payroll deductions for State retirement funds; “ they

are not within the federal civil service and are ineligi-

ble to reeeive the disability, death and retirement

benefits provided by the Civil’ Serv ice Retirement

System (auprs, pp. 9-10). oo. a. * i.

* The hue National Guard regulations are to the same

effect (NGR 51,/Sec. 1, par. 4¢b)).

1s 42 TLS.C. 418¢b) (5): TL. Rep. 1695, sid Cong., 2d” Sess..

p. 5O\Sen. Rep. 1987, 83d Cong., 2d Sess., pp. 45-46.

m5 USC. Std: Sen. Rep. 2045, 84th Cong., 2d Sess., p. 1:

see also > USC. (Supp. FV) Std and 32.U.5.C. (Supp. IV)

709(f) {concerning federal contribution to State retirement

funds): II. Rep. 786, Sen. Rep.. 709, STth Cong., Ist Sess.

°° To be sure, the Bureau of Employ ees’ Compensation awards

such employees benefits under the Federal Employees’ Compen-

sation Act (App 7a). However, the concept of employment

under workmen's compensation acts and other remedial legis-

ation is much broader than the relajjonship which imposes vi- ”

carious liability under principle; of common law. VERB

Hearst Publications, 322 U.S. 111, 120-122; O*Leary v. ena

Pacific-Maron, AO Us. 504, 506-507. For similar reasons,

- Layne v. United States, 295 F. 2d 435 (C.A.°7). certiorari de-

nied, 368 U.S. 990, relied upon by respondents below, is not in

point. Indeed, federal compensation under the Act is awarded

to National Guardsmen training in ‘summer camp in their mili-

tary capacity. (In the Matter of Eleanor al. Barr, claiming

as widow. of ist Lt. Robert A. Barr, deceased . National Guards-

———

We note,° finally, that in 1960 Congress rejected a

_ bill which would have exparided the eoverage of the

Federal Tort Claims Act to make the United States

liable for the negligence of National.Quard person-

nel, both civilian and military (see diseussion in App.

B, infra, pp. 2la-23a).. Instead, adopting the recom--

mendation of the De partment of the Army, ‘it estab-

‘lished a limited administrative 1 remedy ‘for ‘claims

: resulting from the activities of both cep of Guard

; employees _ (32 U.S.C. (Supp. Th) 715). The's Senate

Committee gave the. following explanation for its re-

fusal to modify the Tort Claims’ Act -(Sen. Rep, 1502,

6th Cong., 2d Sess.@p. +):

The erux of this matter lies in the ‘aet that

the National Guard is primarily under State -.

control, as opposed to Federal control. “7 *.

Similarly, the House Committee believed that it would |

be “unwise to extend the coverage” of the Act to in- »

elude conduct of civilian and military members of’ the

Guard, sitice: * Federal authorities do not have com-

mand. and control. over National: Guard units. and

smembers not in active Federal service."’ H. Rep.

1928, 86th Cong., 2d Sess, p. 4. That reasoning is

no less applicable to the civilian personnel ef the |

Guard than to members who per form purely, military

‘ e : )

futn, 10 ECAB 200), in circumstances where the U hited States

would not be - held liable for their conduct under the: Tort

Claims Act (fh. Ly svyra. pp. Le 7).

*! This amendment pa a the Secretary of the Army and

the Secretary of the Air Force-to settle Qnd pay -claims ur an.

amount net more than $5,000 and to report: amounts in EXCESS

of that ceiling to C ongress for ats consideration. -

8 °

*% : - >

duties, a faet whieh Congress impliedly recognized

when it made the same administrative. remedy avail-

able for the conduct of both categories of employees.

2. (a) Even if civilian personnel receiving compen-

sation under the * caretaker statute are assumed: to

be federal employees, it /does not \follow’ that the

‘United States is dnswera

the: Federal Tort Claims Act. United States 1s

accountable for the negligent conduct of an employee

within the scope of his employment only ‘under cir-

cumstances where the United States, if a private per-

son, would be lable to the claimant in accordance with

sthe law’ of the State (28 U.S.C. 1346).* In most, if

not all, of the States, the law of re spondeat superior

* recognizes the fundarfiental unfairness of subjectuig

the employer to vicarious tort liability unless he has

the right to direct and control the very activities of -

~ the servant which give rise to the injury* As we.

have .already shown (supra, pp. 7-10), eivihan em-’

_ployees ofthe National Guard, although’ compensated

by federal funds, are under the. exclusive command

and supervision of State officials. Only State officials

have the right to tell them when, where and how to

perform their duties. :

In the cases at bar, the orders authorizing and di-

-reeting the flight in question, and pr ese ribing its route,

2 28 USC. 1n46(b): Williams v. United States, 350 US.

857; "Fries vw. United Stats, 170 F. 2d 726 (C.A, 6), cettioraci

denied, iG U.S. 4: ¢ allway v. , Garber, so F. 2d 171 (CLA.

9). : | C

* Restatement, A gene y 2d. §§ 220, ), a7

* 7O&- 590-— 63-—-—-4

le for. their torts. Under.

forage 2 oa

were signed by the order of the Commander of the’.

104th Squadron, whose authority was, of course, de-

rived from the Governor of Maryland through the

Adjutant General of Maryland ( J.A. 209; 207, 295-

‘ 295). No federal officer or employee had any. right to

authorize” or direct the flight, to prescribe an itinerary,

pr in any other ‘way physically t6 control or supervise.

Captain MeCoy’s piloting. of ° the airplane. . And in

"Maryland, as in most other States, the law of respond-

eat ‘supe rior imposes yiearious tort liability only if the .

asserted master has the right to control and — the

particular activities giving rise to the injury." Only

upon a mistaken belie’ that Federal officials hada

right to control and supervise McCoy. eculd the United:

"States be held aecountable for his neghgenee. |

The result reached by the court of appeals did not

stem fram any misapprehension as to State law. In-

deed. the court qnoted at length (App. lla-12a)' a.

leading Marvland decision. Keitz v. National Paving

& Contracting Co., 214 Md. 479, 491, 134 A. 2d 296.

301, emphasizing. as the, decisive test of liability.

‘whether the employer had the “night to control and

durcet the servant in the-performance of hisswork and

“aM the: manner m whicl the work ts ta be done’ (em-

phasis 1n- original ): ite efror—en error of federal |

24 E.g.. Henkelmann v. Metropolitan Life Insurance Co., 180

Md. 591, 26 A. 2d 418: Gallagher's Estate v. Battle, 209 Md.

592, 122 A. 2d 93, certiorarie denied, 352 U.S. 894 The Mary-

land ‘cases allow the imposition of liability on two masters, only

when each retains the concurrent authority to contro] the activ--

ities of the servant. Bours. Casic. 166 Md., 387, 401, 171

Atl. 713. : 7 .

one

law—wi as in, holding thét, “ii an ultimate sense the |

right. of coptrol was in the Federal Government at the.

time and in the cireumstanic es of this aecident’ (.\pp.

Ja). That conclusion retleets ‘a fundamental nus-

understanding ofthe nature of the federal: govern-

ment’s rele under the caretaker statute and pursnant

“regulations. The relationship of the government to

civilian persontiel of the Natigua!l Gu: urd is not, as the

court below supposed (App. 7a). “comparable - to that

of a plant owner who exere ixes ultimate control over:

his anplovees, though delegating the task of immedi—

ate supervision te a 7 forem: ie ‘ (the State *).. Rather.

fhe function of the Sceretary of the Army and Air

Force under the ‘ar etaker statute, and indeed under

the N National Defense Act asia whole, Is simply to pre-

* The court below also erred in believing that an “ultimate”

right of control would be enough. to justify ‘the imposition of +

vicarious tort liability. In that regard the court's approach is

strikingly at variance with that of the Sixth Circuit in shes v.

’ United States, 170 F. 2d 726, certiorari denied, 336 U. S. 954.

There the court held that the United States was not stoned

under the Federal Tort Claims Act for the acts of persons

_who, though cone ededly federal employ ees receiving federal pay.

were on loan to a loca] government and engaged in a project

- under the ‘sole supervision of -a. local: Official. The respondeat

superior law of Kentucky, to which the court“ in Fries was

referred by the Tort Claims Act, was essentially the same as

that of Maryland in requiring, as a prerequisite to various

tort liability, a right to control the very activity giving rise

* to the injury. ee *. Meirqpolitin Life Insurance. Co.

186 Md. 5f1, 601, 26 A. od 418, lying upon Le mhman ¥.

Belknap Hardirare & ng fo. 200 Ky el 3, 84 S.W. 2d 46.

~ Guard employees. does nat “de spend upon the. super.

seribe standards; 2G funds, and fix the limits of

Feder ‘al funds to be used for salaries. ‘Ih no meaning-

ful sense does any federal official—exeept of COUTSE,

when the Guard is on active federal se wrvice—have the

right, “ultimate” or otherwise, to supervise the actual,

performance*of their duties by National Guard per:

sonnel, whether civilian: or military. To be sare, such

a a ge caiethtisins thats

~ authority “could be ¢ reate dl by a statutory amendment,

and conceivably even by a major revision of the regu.

lations.. Plainly, however, the legal responsibility of

the United States for the: negligence of National .

Visory powers federal offieials might have under s some

hypothetical regulatory schenie, but vather upon the

right of control (or lack of it): whieh is thei irs under

the existing. system. .

b. On. this jssue, the deeision below conflicts with

the recent decision of the Tenth. Cirenit in| Pafine v.

United States, SU F. 2d 604, certioran ibaa 373

US OU. There, the plaintiff sought damages from

' the United States’ for injuries catised by the alleged

negligence of the pilots of two jet ffehters owned by

the United St ites, . but assigned to the Wyoming Air

National Giiard. One of the pilots, in addition to

beimgz-a Sational Guard officér, was a civil: un | flying

instructor receiving salary pursuant to 32 U.S.C. 7. we

(311 F.2d at 606; R. By At the time is the

= *

* The other pilot was simply an’ officer of the Guard. and

not a civilian employee. In accord with the cons) istent Toldings

of that and other courts, the court held that he was an em

ployee of the, Staté forAv hose acts the U way States was not

apie 311 F. 2d at 605-606.

“Ro” references are to the printed record i Purttno, a copy

ot — has been made avuilable ‘to opposiimg counsel,

. 4

\ ‘ or

er a

. : 25:

-2 ‘

‘ . »

aceident, he was receiving pay asa civilian employee

and was engaged, in a training flicht to evaluate the

proficiency of - the other pilot—the very function .

“for which he had been employe ed as an air technician

(R. 60-61). Although holding that a civilian em- .—

ployee of the National. Guard appointed pursuant to,

the “caretaker” statute is a federal employee,” the

ro court. nonethé ‘less denied recovery on the ground that

the flight was Uiider-the exclusive eontrol atid super:

vision of the State and in furtherance of, the State’s

lusiness, and that the” W voming law of respoudeat

superior “(like that of Maryland and of the Stites

generally) did. not impose vicarious Nability onan

BN “r for the tortious conduct of a servant acting

unde r /the sole direction and upon the business of

* Wollow nig its dee tston im Lo nited States — Molly. We F.

vd yyy (CLA. 10). ~ Compare, Dp. 16-21, supra.

2* The so-called caretaker decisions of the courts of ap ,peals

are not to the contrary. = nited States ¥. Holly, 192 F. 2d 221

(CAS 100: -Flino vy Uited States, 10 EF, 2d vse (Cel. of:

fed Ntafes Vv. | ee iff F. 2d 25 acm. oF Courtine y

\ I nited States, 230 F. 2d 11 (‘<*-5. 2h IV nite States —

Weodt. wiz Fo 2d Sod (CUA 9). Each of these cases involved —

only the que stion of whether civilian emplovees of the National,

” Guard, receiving pay pursuant to the caretaker statute, were

employees of the United States within the meaning of the

Tort Claims Act. (For a further discussion of this issue and

these cnses wee supro. pp. 16-19) In none was there any dis-

pute ‘a weer the pou esas to yhetber the applicable State law

of respondeat superior weald inipose vie arious tort liability on

-4 private employer in like cireum=tances. e

The court in Wer? raised the issme sir spe onte and ruled

that there would be liability under.the rexpondert superior

law of the State of Washington. ‘Tt did not focus on the

“The court below attempted to distinguish Pattno,

not by pointing to any difference between the law of

Wyoming and that of Maryland (for there was none ),

but rather on the ground : ‘that the’ flight in that ease

was a training flight, whereas the one in the present.

case was (in part) ‘twithin the caretaker [mainte-

nanee} function’ (App. 5a, 6a, fns 2, 3). That. dis- -

tinction is plainly insubstantial. In the first place, al-

though Captain McCoy a dmittedly made certain

equipment checks during the course of the flight (J.A.

684), the primary and official purpose of the flight was _

to Keep up his proficiency as a pilot; it was “chietly ‘a.

” “training,” nét a “test,” tlight (supra, pp. 11-12, fns. |

4-5). | ;

Furthermore, no. different result would be war-

ranted even if the sole netion of the tight had been

to test the plane for maintenance purposes. The

miatintenance duties, too, were part of the business of

the State, for the National Defense Aet charges the

State with responsibility for the care and maintenance

of all federal equipment assigned.to the National

| Guard (32 ULS.C. 105¢a) (1), 702 (a) and (d), 710(e¢) ;

J.A, 287-288). Moreover, in adopting <absection (d)

_of the caretaker statute, the only provision which eX-

pressly authorizes the appointment of National ‘Guard

officers (as opposed to enlisted men) as. caretakers,

Congréss specifically contemplated that, these offivers

would be utilized in their civilian capacity both for

the maintenance of equipment and for the supervision

question of the right to control the civihan employee, and

accordingly we do not believe it appropriate to assert a conflict

, between that case and Puttno, supra.

of ine training (H. Rep. 1031, 69th Cong., Ist Sess., .

p. 3; Sen.” Rep. 785, 69th. Cong., Ist Sess., p. 1).

And, as we have observed, only: State offici als have

authority: to ‘command civilian air technicians, whether

their function be training or maintenance. Thus, it:

would be wholly unreasonable te make the liability -

of the U nited States turn upon whether, at the: time

of the accident, the air technician is engaged in flight

training, in maintenance activity, or (ike Captain

McCoy) in both. “Regardless of the particular task,

‘the civilian employee is acting. under the exe ‘lusive

control of the | State and pe rforming part of the. State's

husitiess. ,

CONCLUSION

For the foregoing reasons, it is’ respectfully sub-

mitted that this petition for a writ of, certiorari

should be granted.

ARCHIBALD cite, ok

| _Soltcrtor General,

6 Joun W. Dove.as,

Assistant Attorney General.

Morton HOLLANDER,

Davip L. Rose,

Attorneys.

OcTOBER 1963.

APPE NbIx aoe ie

United States Court of “Appeals ng the District of

_ Columbia Circuit ,

No. 1695 93 ; at

UnNirep STATES OF hack. APPELLANT

. « = Le .

Stare or Marytanp, For tHe Use or Mary JANE,

- MEYER, ET AL., APPELLEES :

. No. 16954

Unirep Svates OF AMERICA, APPELLANT

e ; ’ a 0’..

“STATE OF Manve. AND, FOR THE USE OF Vince LEW M AN ;

Brapy, Wiipow, LT AL., APPELLEES

o ;

—— 2. Shs ©

No. 16955

Unrrep States oF AMERICA, APPELLANT

oy ; 3

- v. - =

Caprran AIRLINES, INc., & CoRPORATION, APPELLEE

>/ ;

es ALS FROM THE UNITED STATES DISTR ICP COURT

FOR ‘THE, DISTR ict or COLUMBIA Bon,

Decided Juni CB 19638 -

“Mr. David L. Rose, Attotne Vv, Department of Jus-

tice, with whom Acting Assistant Attorney General

Guilfoyle, Messrs. David C. Acheson, United States

2 : . la)

“tal ee .

‘ .

= ‘

: °

, a

. 9. . 2a,

_ Attorney, Morton, Hollander, Johu G. Laughlin, JT.»

‘and Enoch BE. Ellison, Attorneys, Department of Jus-:

__otiee, were on the brief, for appellant.

Mr. Richard W. Galiher, with whom’ Mr. William

E. Stewart, Jr., was on the brief, for appellees..

‘Before’ Fauy, DanaHer -and Buroer, Ccrewt

Judges. ; |

Fany, Cireuit Judge: A, mid-air collision occurred ~

overs Maryland between a jet plane owned: by the —

United States, and used by the Maryland Air National

Guard, and“a’ passenger plane of Capital Airlines.

The passengers. and crew in the Capital plane “were

killed and the plane was destroyed. A. passenger in

the jet plane was also killed. The only other occupant

“of the jet’ plane was its pilot, Captain McCoy, who

was ejeeted and came down safely by-parachute.

The survivors of the pilot and co-pilot of the Capital

_plane sued the United States under the Federal Tort

Claims’ Act. - Capital also sued the United States

under the same Act for damages due to loss ‘of its

plane. .Negligence of the jet pilot was found at trial

and judgment against the. United States was entered

for all plaintiffs. The. United States appeals, but con-

fines its contenfions to questions involving the availa-

bility. to plaintiffs of the Federal Tort Claims Act and

the amount of damages awarded Capital for loss of

its‘piane:, Neither negligence on the part of Captain

McCoy nor the ‘amount of damages awarded to the

individual plaintiffs is now contested. . | :

Liability of the United States under the Federal

Tort Claims Act; 28 U.S.C. § 1346(b), set forth in the

margin, depends upon whether the -jet pilot was an -

1 Section 1346, United States as defendant.

“(b) Subject’ to the provisions of chapter 171 of this title,

the district courts *°* * shall have exclusive jurisdiction of

civil actions on claims against the United States, for money

damages, accruing on and after January 1, 1945, for ‘injury

. . - 3a .

° ° 2 e

: , es - :

, :

“employee of ‘the Government”’ at the time of the acci- .

dent; and, if so, was’ “acting within the scope of his

office ‘or employment, under circumstances where. the

United States, if a private person, would be liable to

the laimant: in: accordance with the law of thie place

where the act or omission oceurred,( which was

Maryland. .* | *

'. Upon’ the basis of abundant ‘evidence, follywed by

elaborate findings and conclusions, the Distric Court .

answered these questions in favor of plaintiffs, We

think this answer was correct. i oF

The Air National Guard of Maryland is part of the

State Militia referred to in Article I, See. 8, of the

Constitution. Congress is there empowered ‘‘to pro-

vide for organizing, arming, and discipfining the.

Militia, and for governing such Part of them as may .

be employed in the Service of the United States.”

** * Clause 16 of Sec. 8. Article I_yeserves to

‘the States the appointment: of the offiters and the

authority of training the. Militia g#efording.to the

discipline prescribed by Congress: At all times rele-_

vant to this ease the Maryland Air National Guard —

had not been called into the actual service of the

United States. = =~ re ?

In order to improve-the national defense Congress

has extensively legislated and appropriated funds with

respect to the Militia, which is organized, equipped

~-and disciplined in accordance with Federal standards, |

though trained and officered by the States... Impor-

tant equipment is supplied by the United States. The

airplane ‘operated by Captain MeCoy when this aeci-

ery

or logs of property, or personal injury or, death caused by the

negligent or wrongful act or omission of any employee of the

Government while acting «within the .scope of his office or

employment, under circumstances where the United States, af a

private person, would be liable to*the claimant in accordance

with the law of the place where the act or omissjon, occurred.”

“

va.

*>e>

dent oceurred Was owne ‘d by the United States. 32

U.S.C. § 710(a). It had been allocated by the Unitea

States to the Maryland Air National Guard. It was

maintained by personnel paid by t the United States

for that purpose, known as civilian air technicians,

and also known as caretakers. Mies

. ‘aptain MeCoy. was paid by the ° United States

pursuant ti ‘U.S.C. § 709(a), “to care for’? this

pr operty. a. pay was ‘in addition to his National’

Guard compensation: See 32 0.8.0) § 709(b). The

United States: fixed the salary of thise authorized

Py be “employed’” as was Captain “McCoy. 32,.U.8.C>

7T09(f) (Supp. 1962). “Air Force recul: ations rechg-

nize this basic authority for the employment of eivil-

ian personnel. ‘Employment under this authority is

delegated to state adjutant generals, “subject to the-

provisions of law and such instructions as may he

subsequently issued’ under United States authority.

Air National Guard: Regulation No, 40-01, 20. Dee.

1954.. The exereise of this authority is manifested

the Air National Guard. Civilian Personnel Manu

issued 1 Maych 1958 “By Order of the Se eretary. of

the Air Foree’’ of the United States. The Mapual

prescribes inter alia the duties of civilian -personne!

in the Air National Guard inthe situation of Captain

McCoy. It also describes the quatifications, duties

and “responsibilities of positions which inelude those

of ‘“‘maintenance supervisor’? and “aircre ft mainte

‘nance chief.” “:

Captain’ MeCoy was also an officer of the National |

aGuard of Maryland, commissioned “by the Governor,

He was assignedtto LO¢th Fighter-Interceptor Squad-

ron of tle Marvland ‘Air National Guard as “atreraft..

maintenance officer.’ This was. in addition to his -

civikan job as “base maintenance supervisor,” or “air

raft Maintenance chief." Among his re sponsibilities

a a

w .

was that of flight-testing of aireralt. This was ae-

-seomplished by tlights called‘! proficiency flights”

= which, however, had mul'iple. purposes, including

evaluation of maintenance’ of -the equipment, which .

was a responsibility of Capiy tin MeCoy in his employ-

ment under 32 ELS.CL& 709, At the time of the fen

thrat ee in thik accidery, whieh oceirred von

‘Tuesday, Captain MeCoy’s pay status was thi it of aun

air technic’ i, a status he’ hove throughout is normal

~ work period of From cight sam. to 4:80 o'clock “pan.

during the week dows. He was actually paid the day

of the aeeydent as an air feehnician, and such pay.

continued during his disability following the accident,

on On this particular flight: Captain MeCoy was iate-

companied by the patssenee » who Jest his life. This

passenger Was interested an joming the Air National

Guard And. in obtaining flight) training. Captain

MeCoy indicated this te the Commander of the 104gh

Squadron, who concurred that the passenger could

aceompany Captain MeCoy on the thght. The Com-

mander gave permission foy the flight. Te explained —

the reasons’ for doing so as follows: .

. 2 AS The eeneral veason for ary ffeht of atts

Jor the express purpose of taking 3

vidual, theo per - MT SG Lye

Our Ow! eeneral profighen Y. If there is a sent.

avatlable-ay nl the maint qua lifes In aecofdonce

with the rewulotions, itis permissible te take

himeoum i: ce ut flight... The Air Fores dees. it

- all the’ time, .

«). Were t hye athep Me YSOTES for the Hicht 1}!

ae i question 2A. PE think as | mentioned | before a

yoo ft Tt appears that flying these pries jivalved boty a miliary

ee ond. a civilian eheek on thé ‘plane's mdtintenanes ‘because of

= —— :

Cosyotaan

: . 7 , : . —_

tetoy's dual role. sitWough itunlso uppenrs ff:

personnel molytarily qualiiel gre perminted to fly the pinne-

and that ne iin ry puLY ean be mvenrded sor sug hi fiver.

Ga: as,

third reason for any flights to insure that the

equipmefit is in proper working order, to—

well, as a result of each flight the: maintenance

officer takes, he‘has to fill out a farm, whether

the aircraft was okay, or whether it had even

minor diserepancies which would be listed. in

the form. When he lands and comes back

from the flight, this is done; se there, is a third

reason for the flight, which Is to mesure the

_ proper maintenance of the equipment which .

he has general supervision over,

Q. As an aircraft technician? A. Asan air-

eraft maintenance officer in the squadron and

also as an air technician.

We hold with the District Court that in his civilian

eapacity as a caretaker of “property of the United

States Captain MeCoy when on this flight, which en-.

tailed the: performance of his caretaker and mainte-

“nanee duties, was an employee of the United States

within the terms of the Federal Tort Claims Act. “See

United States vy. Holly, 192 F. 2d 221 (10th Cir.

1951) ; Elmo v: United States, 197 F. 2¢ 230 (Sth Cu.

1952); United States Vv. Duncan, 197 F. 2d 288 ( 5th

Cir. 1952); Courtney V. United States, 930 F. 2d 112:

(2d Cir. 1956)! United States v. Wendt, 242 F. 2d 854

(9th Cir. 1957)... He was so emploved to assist: the

» But see also the later case of Pattno v. Enited States, 311

F. 2d 604 (10th Cir. 1962), cert. denied, —. US. .——

(1963), where the ‘caretaker was held’ not’ within. the Fed-

eral Tort Claims Act, the court concluding that when the

accident. occurred he was flying on a training program ‘te

evii’uate. the skill of another. We think «this case distin-

-guishable fgom the present case on the. findings of the District

Court, supported by the evidence, that the flight was within

the caretaker function when the accident . occurred. ;

In Storer Broacasting Co. v. United States. 251 .F. 2d 268

(5th Cir. 1958), the court said the only: question -presented

was whether a member of the National Guard “who is not a

t 7a

National Guard. but also to assist the United States.

In his property mayntenance function he: was paid

by, and the ultimate right of control over him was in,

the United States. The funetions ledged by. tic

United States in the State Adjutant General did not

serve to supplant this right of control in thesUnited

States, though it may be said to have been ancillary

thereto. «Such supervision as was lodged in the State

did not make Captain MeCoy an employee of Mary-

land. “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 between the

State of Maryland and the United States in the. main-

tenance 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.

Perhaps the status of Captain Mec@oy can be de-

scribed. as an employment divided’ between Maryland

and: the United: States, varying in relative amounts |

at different times and m different cireumstances. sut |

in an ultimate sense the right of control was in the

Federal Government at the time and in the circum.’

stances of ‘this aceident, notwithstanding immediate

authority or permission for the flight. was given by

the State through its militia officers. While such

personnel are. not within the Federal Civil Service the

Federal Bureau of: Employees’ Compensation of the

Department Of Labor considers them to be federal

emnplovees entitled to compensation benefits under the

Act it administers. 3 aM

caretaker” and not in the active service of the United States

is an “emplovee of the Government”. within the meaning of:

the Federa] Tort Claims Act.

et a |

The. United States contends that Congress, since

the events inthis case, has rejected the effort to ex>

tend the.coverage of the Federal Tort Claims Act

to members and civilian employees. of the National

Guard.’ Reliance for this.contention is pliced a

74 Stat. 878 (1960), 32 U.S.C. § TH: (Supp. 1262

and .its histéry, ineliding H.R. Rep. No. 1928, and

S. Rep. No. 1502, 86th Cong., 2d Sess.” (1960). We

ean by ne means agree with this contention msofar

cas it bears upon the s tatits of persens employed ais

civilians under 82 U.S.C. » 709. The: Government's

reference in its brief to the statenfent in the letter .

‘of the Deputy Attorney General to the Chairman of

the Senate Committee on the Judiciary, set forth in

the Senate Report, “Po divorcee responsibility from

control ix to forego any rational legal basis for pay-

ment.” clearly misses ‘the significatries of the position

of the Deputy Attorney General insofar.as the pres-

ent Case Is Cone ned. The thrust of hie obiection te

the Propose 74} legish: ition, S.. 1764. S6th Cone., 2d Sess.

(1960), which would have amende d. se Tort Claims

Act ag. to both elasses of persons, was tuat it wonld .

ehanze existing law as to federal ability for acts

of Gaardsmen when on regular tr ‘ining diuty tinder

State*control. As. to the provision expressty inelud=

Ine elvillan earet: ikers under the term ‘enmloyees

of the Gevernment.”” his position was the it it Was un-

necessary beenuse it would merely restate existing

law." eee

*As to federalized National Guardsmen, and Section 709

emnplovees the Deputy Attorney General stated:

“The same rationale that looks to the-controling organization

ere that when National Guardsmen are netually under the

control, in whole or in part, of regular Army or Air Force

oMicers or other Federal personnel, the Geverament— is liable

for their negligence. In such instances, however, -the proposed

Wveiclation would be unnecessary for the Government's .respon-

This distinction between members of the National

Guard and men. employed pursuant to Section 709 ap-

pears alsq in the H earings Before Subcommittee No.

2 of the House Committee on the Judiciary, 86th

Cong., 2d Sess. Ser. 92 (1960), where the First As-

sistant, Civil Division, Department of Justice, with

reference to-Seetion 709 emplayees, made a statement

in terms identical to those used. by the Deputy Attor-

ney General. Id, at 6 and 7. See note 4, supra.

The new. statute, 74 Stat. 878, 32 U.S.C. § 715

(Supp. 1962), though not adding to the coverage 6f

‘the Tort Claims Act, creates authority in the Seere-

-taries of the Army and Air Force to settle claims

up to $5,000 arising out of National Guard aetivity

even when the active, agent is performing routine Na-

‘tional Guard work. under State control. And the

active avent may be a Guardsman or a civilian em-

ployed under 32 U.S.C. -§ 709. ‘Thus in one- respect

claimants are now in a better position than they were

prior to passage of 74 Stat. 878 in 1960, in that they

may successfully present their claims arising out of

ordinary Guard: activity such as training when the

actor has heen a Guardsman even though such per-

sibility alreadys exists under the. present provisions of the

Federal Tort Claims Act. ; Z:

“The provision * which avould expressly include within. the

definition of ‘employee of -Government,” civilian empleyees

‘of the National’ Guard who perform caretaker. functions with

- ppspect to the National Guard's Anilitary equipment, and “are

separately paid for such services under title 32, United

States Code, section 709, is Also unnecessary and thus objec-

tionable, for’ the’ same reavon. -For it has already been held

under the principles we Aiave discussed -in an unbroken series

of court decisions that. because of the control relationsiip

between such persons and the Federal Government {and its

property), the® latrer is responsible for their torts under the

present provisions bf the Federal Tort Claims Act.” .

Senate Report, spre at p. Tl

ay .

a ee

sons are not under federal contro] at the time. With

: Ai 5 . ES ee

_ respect to injuries caused by civilians employéd tinder

§ 709 it would seem that the new statute creates a lim- .

ited administrative recovery as an alternative to the

traditional judicial one under the Federal Tort Claims

Act. However that may be, it is clear that as of the

time here in question, 1958, the plaintiffs’ remedy for

injuries caused: by civilian caretakers was under the-

Federal Tort Claims Act; and the history of this

° . . . bad - J ”

‘In reporting the bill out which became 74 Stat. 878. and

not the one originally proposed, the Chairman of the sSenare

Committee on the Judiciary, Seyator Eastland, commented

that administrative coverage Was being given to claims arising

out of injuries enused by Guardsmen. since when in a non

federa) status they had been held not to be emplovees of the

United States. within the meaning of the Federal Tort Claims

Act./ No such explicit comment wis made with reference to

£709 civilidns, although the Senator appended. to his report a.

letter from the Secretary of the Army which acknowhedged

that the Courts of Appeals had held that injuries eaused by

these caretakers were cognizable under the Federal Tort Chums: .

Act since those employed under autiroriiy of § 709 were “em

plovees of the Government” within the meaning of that Act.

See S. Rep. No. 1502, 86th Cong.. 2d Sess. 306 (1960), The

Secretary cited these cases on the point : [Tol/y v. United States,

Elmo v. United States, Courtney %. United States, and United

Staies v. Wendt, all supra at p. 6. And he went on to say -

that the view reflected in these cases was at variance with the

position of the Comptroller General bat that the Supreme

Court had not considered the muacter, thus giving rise to an

uncertainty, in the view of the Secretary, as to’ the status of

sach employees under the Tort Claims Act; But the Secretary

was quite certain that Guardsmen in a non-federal statns were

not covered since it had been so held, citing MeCranie Vv.

Vnited States, 199 F. 2d 581 (Sth Cir. 152), se that an ad-'

ministrative remedy was thought desirable—if any there was .

to be-—instead of imposing a new kind of liability on the

United States under the Tort Claims Net wherein liabifity is

based upon resporideat. superror. S. Rep. No, Lad, supra, at

7. ° :

e,’

lla

subsequent legislation supports this view. The ‘fact °

- that this caretaker was also an officer of the National

Guard with other duties in that respect did’ not re-

‘move him from the federal employee status while he

was actually performing the duties inciderit to. that

status. - ; | |

Not only-was the Captain an employee of the United

States but he Was also “acting within the seope of his

‘office or ‘Smployment, sunder, circumstances where the

United States, if a private persotice would be lable to

the cladmant im accordance with the law’ of Mary-

land where the negligence geeurred, A private person

in Marvland is liable for the negligence of his servant

in the cireumstanees set forth im Keitz v. National. .

Paving & Contracting Co., 214 Md. 479, 491, 14 A. 2d

206, 301 (1957) : a ;

[T]here are at least five criteria that may: be

considered in determining the ‘question whether.

‘the relationship. of master’ and servant EXISTS.

"These are: (1) the seleetion and engagement

of the servant, (2) the payment of wages, (3)

the power to discharge, 64) the power to control

the servant's eonduet, (5° awd whether othe

work. is-a part of Abe regular business of the -

entplover. Standing alone, mine of these

indicia, excepting (4). seem controling im the

determination as te whether such relatioliship

exists. The. decisive test tn determining

whether the relation “of master and servant

exists is whether the employer has the right to

control and direct the servant im ‘the porform-

ance of his work and in the manner ino which

the work isto be doves MW will be uoeted from

the above, itt is not the manner 1 which the al,

leved master actually exercised his authority

te control and direct the action of the servant

which controls, but it is his right to do so that ts

important. Sun Cab Co. v. Powell, 196 Md.

#98 U.S.C. § IB46ib). °

12a

572, 578, 77 A.2d 783 * * *. [ Emphasis in the

original. ] :

~The emphasis here is omshe right of control: which,

as we have seen, was in the United States, notwith-

standing the particular flight could be said to have:

_ been under some supe! rvision by the State as to its

timing in relatieri te other activities at the airfield.

Since there is no question on the appeal as te the

finding of negligence by Captain McCoy, nor of the

amount of damages awarded to the individual plain-

tiffs, the judgments for the. latter will be affirmed.

‘Thete remains the contention of the Uhited States

that the ‘jndemetit of $1.210,000 awarded to Capital

Airlines, Inc.. due to complete demolisin nent ‘ef. 3

airplane, was excessive. The conrt arrived at ae

amount because of its view that the evidence ‘showed

Capital could make itself whole only by purchasing

a new. airplane of the same type, ne used airplanes

of the type being available, and the ev ide nee showed

. that a new plane would cost #1.210,000,

The original cost of the Thane was $1,074,020 in

Jamary 19: 56. It had been Jn service for over fwo

vears whe in it was destroyed and was then _aboit

ready for overhaul. The evidence shows that some

_other airplanes, of a different version of the Viscount.

-had been sold when about two years old by Capital

for several hundred thousand dollars less, per -pl: ime,

than their original cost when new. And the reeord

also shows tliat the destroved airplane was carried on

Capital's hooks at a deprec~ited value of some three

hundred thonsand dollars less than original cost. The

trial court, as we have indicated, was more impressed

- by the, fact that .. replacement’ aircraft for the one

The judgment was for $1,216,050, the di eons of S650

heing expense incurmsL by Capital, as to which item - arately

considere «| no objec tien is Mh ade,

13a. ee

lost could only be had from the makers, so that “new”

‘ price would have to be paid if an identical substitute

were to be obtained. It is clear then that what was

awarded was replacement. value and not fair market

value.. Bh ; :

Tn the. usual case—and we think Maryland is in |

accord—courts seek to compensate. an injured, party

for its Joss caused by the fault of another; and’ the

loss in personalty’is in terms of value at the time of

the loss. .An objective measure of value is usually

meant. in other words what, a willing buyer, would

have paid a willing seller in-an arm’s length tmans-

action for the article in question just before it was

lost, or, in other words, inarket value. United States

v. Toronto Nav, Co, 3388 US. 396 (4949) ; Boston Tron

& Metal Co. v. S.S. Winding Gulf, 85 F. Supp. 806

~(D. Md. 1949); Barley ¥. Ford, 151 Md: 664, 185 Atl.

835 (1927); MeCormick on Damages & 44. (1939) ; ‘te

ALL.R. 2d 722 (1960). eal | |

* Sometimes fair market value camhot be determined,

or would be inadequate, as when, for example, the

-arhiele destroyed Was unique or possessed qualities

“the special nature of which ‘cauld only be appreciated

by the owner. In such a ‘ease additional prineiyies

are helpful in determinmne proper Gompenisation to

the injured party: See McCormick, supra, 645. In .

the case before ws, however, both parties agree that

the proper measure to be applied is fair market value. —

_And replacement vale-however probative it may or

—fmay not be-in estab uishing market’ value—is not the

equivalent of ‘market value. Cf. Bailey Vv: Ford,

supra; CL. & P. Telephone Co. v. Public Service

Comm'n, 201. Md. 170, 93 A. 2d 249 ( 1952). . ;

There was evidence from which the trial court could.

have found the fair market value of the airplane at

the time of its destruction. Accordingly, the conclu-

, 14a =

sion that Capital was ‘entitled to replacement value

was erroneous and must be reversed. ‘On wemand

- new findings on this aspect of the case may be made

consistent with this opinion, with privilege to the

parties of adducing additional evidence if the court

in its discretion permits. j es

* Judge Danaher is of. the opinion, however, ‘hat the:

evidence sustains -the trial court’s conclusion as to

. damages to Capital, deeming the situation here pre-

sented to be unique, and that we should not hold that

the trial court should not have found as it did as to

Capital’s damages...

aad Nos. 16953 and 16954 affirmed;

No. 16955 reversed and remanded.

o re : ees he ee

mh.

l5a

United States Court of Appeals for the District of

: Columbia Circuit

SEPTEMBER TERM 1962

| erat Filed: June 13, 1963

on No. 16953

Civil 1236-59

UNITED STATES OF AMERICA APPELLANT

. v.

SraTE OF MARYLAND, FOR THE Use or Mary JANE

ME¥ER, ET Al

., APPRLLERS

| No. 16954

2 ; . Civil 1237-59

\ Unirep States OF AMERICA, APPELLANT

: v.

"Sate OF MARYLAND,

FOR THE Usk, oF Vance LEWMAN

BRADY Winow, ET AL. APPELLEES

> ?

_ No. 16955

Civil’ 1238-5

Unitep STATES OF AMERICA “APPELLANT

“Ay |

| ie \

Carrvan AIRLINES, INC., A CORPORATION, APPELLER \

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR

THE-DISTRICT OF COLUMBIA

S-

Before: Fany, DANAHER and BURGER, Cirenit J udges

_ TEIGMENT

These cases came On td

appe

be heard on the reco ord on

‘als from the United States Distric

District: of Columbia, and. were argue

t Court for the

d by counsel.

_ 16a ae

On ConsipERATION W HEREOF, it is ordered and ad-

judged by this court that: | | ars

- (1) The portion of the judgment of the, District

Court on appeal in Nos. 16953 and 16954 is affirmed ;

and es sores s wo,

(2) The portion of the judgment. of the District

‘Court on appeal in. No. 16955 is reversed, and this case |

is hereby remanded to the District Court for further

proceedings consistent with the opinion of this court.

ae Per Circuit Judge Fany.

‘Dated: June 13, 1963. |

Yireuit Judge Danaher would, affirm No. 16955 and

accordingly ‘dissents from the court’s -reversal and_

remand of that case. ss fe

ees |

”

before Congress autharized the use of federal funds |

__. APPENDIX B

“LEGISLATIVE DEVELOPMENTS CONCERNING CIVILIAN

_. EMPLOYEES OF THE NATIONAL GUARD |

There were Civilian employees of the militia !ung

for their pay.’ Although Congress provided federal

arms and equipment .for the ‘militia virtually- from

the country’s” beginning," it was not until early in

this century that it began to appropriate funds for

the compensation of Guard members anid civilian em-

ployees. “In 1908, soon after the States were @m- -,

powered to, use federal funds for paving military

trainees (Sec. 14, Act of January 21, 1903, 32. Stat.

777; 10 Comp. Dee. 227, 228), they were given aul-

thority to use- such funds for the compensation of

Guardsmen in civilian capacities (14 Comp. Dec. 631).

-The so-called caretaker statute (32: U.S.C. 709).

was adopted as: See. .90 of. thie National Defense Act

1For example. the Maryland statutes Jong: authorized the

employment of “armorers.” Md. Rev. Code of. 1878, Art. 1%,

gg 98-33. Similar positions appear to have existed since colo-

nial times. * Act of Maryland General Assembly, Oct.—Nov: Sess., .

1678, 7 Archives of Maryland (Md. -Hist. Society 1889) 59.

See, now, Md. Anno. Code, Art. 65, § 10. : ae ,

2See Act of April’ 28, 1808, 2 Stat. 490. ‘Previously, each

* member of the militia was apparently expected to furnish his

own arms. Act. of. May: 8, 1792, Sec. 1, 1 Stat. 271. Ale.

though Congress originally did. not specify. the ownership of °

such arms and equipment «R.S. £1661) it provided, beginning

- . jn 1887, that ‘they should remain the property of ‘the Lnited_

States, but that the States would be charged with the-respon-—

sibility. of caring for-them. Act of Feb. 12, 1887, 24 Stat. 401.

See 32. HS.C. 105(a)41), 702 (a). and (d), and 710(¢).

(1Ta)

—— Te

’ ‘18a ”

of 19162 “That Act reshaped the. National Guard

into its-ptesent form, providing for the allotment of

federal funds. to the States for the supplies, equip-

- ment, and ‘salaries of the Guard on condition that °

the States adhere -to the discipline and standards

prescribed by the federal government. Originally, :

“the men to be compensated”’. were enlisted men of

the battery or troop, ‘detailed by the battery or troop

commander.” . 39 Stat. 205-206. Since these men

were ta be selected by their commanding officer (a

State official), and’ the maintenance and eare of the

property were the function and responsibility of the - 7

State’ (Sees. °82-89 of the National Defense Act, 39

. Stat. 203-205, now found at 32 U.S.C. 702(d), 710

(b)), it would seem clear that they: were to be State

employees in their “civilian (caretaker) capacity, as

well as in their military status. Ee,

_ Although Section 90 was amended several times in

the two decades following its enactnent, the basic re-

lationships remained unchanged.’ Two of the amend-

ments are pertinent to the problem presented -here.

_ In 1926 Congress authorized, for the first time, the

~ compensation of National Guard officers for full time ~

civilian employment. Act of May 28, 1926, ch. ‘417,

was limited te air ‘squadrons, and to one officer per

squadron. The purposes of the amendment were ( a).

to secure the more efficient maintenance and. care of

airplanes, and (b) to provide “an officér constantly on

duty * * * for the supervision of flying training.”

H. Rep. N6. 1031, 69th Cong., Ist Sess., ps 3; Sen.

Rep. 785, 69th Cong., Ist Sess., p. Ff. Thus, the first

officers of the State National Guard to occupy a eivil-

‘ jan “caretaker” or air technician status. were to per-

- form in that capacity a function (conduct of training)

239 Stat. 166.

19a 2 —

reserved to the States by the Constitution ( Ae I, See.

8, cl. 16) and by statute (Section 91 of the National .

Defense Act of 1916, 39 Stat. 206, now 32 U.S.C...

501(b). Nothing in the statute or legislative history

indicates that Congress intended this State function

to be performed hy a federal employee. It therefore

seems clear that in 1926, as in. 1916, Congress con-

sidered the members of the National Guard ‘‘detailed”’

for caretaker employment by their organization com-

mander to be full-time civilian employees of the State,

_ and not the federal government.

The statutory’ provision that the ‘‘caretakers’’ were

to. be “detailed” by the commander ofthe organization

having custody of the equipment restricted their selec-

tion and efficient use. Accordingly, in 1939 Congress |

(at the request of the National Guard Association and

the adjutants general of the States) authorized the

pooling of caretakers by providing that the Secretary

designate “‘by whom they shall: be employed.”” Act of

June 19, 1935, ch.’ 277, 49 Stat. 391, 392. The legis-

lative history shows clearly that Congress used that

language merely to allow the Secretary to designate

‘Which State officials should employ the caretakers.

The committee reports make this intention clear (Sen.

Rep. 635, 74th Cong., Ist Sess., pp. 2-3) =. r

Section 6 of %. 2710 will authorize the pooling.

‘ of National Guard caretakers. Under pres-

takers from the units that have the material.

Section 6 will permit the handling under the

adjutant general or other proper State oficial

of the caretakers asa pool..* * * [Emphasis

—, added.) 7 vee .

Nothing in the legislative history supports. the view

that the Seeretary was given authority to authorize:

their employment by a federal official, or in any other

way to treat them as federal oyees. Interventing

\ -

—

ent law Statvs are required to select the care-.

Bes *

adiinistiative “ihe cisions Were to the same effect, che.

2 Comp. Gein. Phew, $05.

‘Although the statute re mained: une hanged, beginning’

di 140 the statutory restriction that only one officer

he chiployed per squadron was in effect lifted when

Ihe Beeretaky Wits authored, in the Appropriations

Act to tine federal funds te support the employment

bap ibiadii) caretakers as he “deemed! necessary.”

Act of duly 16, 1946, eho 58a, 41, GO Stat. 556. Sub-

ooqiiedit os jropatation acts contained similar provi-

sets. See bbisterical Nate, 32 US.C., pp. N7TO8- 9,

Phe testinvony before the Ap Preprint ios Com-

tiittees La stip iport ef the appropriition of federal

fuiads for the National Gaaard arr tee shnnenan program

potoutis as ely tliat etuptloy ces of the respec tive States.

bor en. aliiplo Chet te al Watsetn, the rauthing air ofticer

at the National Gard Buteau, gave the following _

thiuiubuatl ae scription of the air tec ymiciam program

CVotuitie 4 Bleatthos before the Su heornnittes of the

ices Viptoprtattoy Cotmuttec, S4th Cong, 2d Sess.,

relative too the Py-peararent of the Arr Forse appr

Uiiatiol tot fiscal 17 os LAS) )

Qhay O ho Pb bangs trite! Netcare s ‘a “be ae

. ‘ , > Ps } BL ap ; — — 7

: ere ct : ‘Na Tie Wha” Ae Ole fe ? re t Wgi-

° Lived 4 sets M2 uA "ia at t st \

avr: tire eiae 1 the Atr: Natiomai Gourd a

i ‘ ‘ us Aer i ee

Sy ™ . ¥ *

an ys avy eee th, e ara e2%et 4 eo staciitl ‘ ee

a. e .

i. \s ras | Sis tari sme tEs i =o or*tzit-4 aa

‘ .

stalin as 4&4 Slate ‘itiavee, | UI TYSS, A Be PS ayes bee “Gissee

‘ ap Pup ied Heri. LS web a@tnurised The Use ; *edae Ped

Wig Tl bes ebdets ae Meer Pe Torersdiyieiatlis Gs "he Sace?-

m ; he ; ‘ " - \ ’* >.

etaye of ‘ike A yiewe 2eetinae ta) Osdtoae £.g., FUN.

“peaas

. " = ° TE Sw . . . :

-s “ ' 4 tes a. 4), 'w. rLse? ¥ Nn = “ wat. soe

2la

- Act of July 2, 1956, ch. 488, title V,. 6501, 70 Stat.

466. See Historical Note, 32 U.S.C... pp. 5768-69.

Despite the decisions of appellate courts that .em- ,

ployees receiving pay pursuant to the caretaker

statute are federal ‘employees (see. fn. 15, supra,

. p. 17), Congress has repeatedly rejeeted this charae-

terization and enacted legislation: treating them as

employees of the States. For example, in 1954 Con-

cress established a separate coverage group under

the Social Security Act for ‘[e]ivilian employees of -

National Guard units of a ‘State. who are employed

pursuant to section 90," since “{t}he Department of

Defense does not regard these employees as Federal

employees.”” Act of Sept. J, 1954, 68 Stat. 1059,

amending 42 U.S.C. 418(b) (5); H. Rep. 1698, 83d

Cong., 2d Sess., p..50; Sen. Rep. 1987, 83d Cong., 2d

Sess., pp. 45-46. Similarly, in 1956 Congress au-

thorized federal disbursing officers to make payroil

deductions for such ermpleyees for State retirement -

programs, noting that “These employees, although

paid from Federal funds, are considered to be State

rather than Federal employees.’’ Act of June 15,

- 1956, 70 Stat. 283, 5 U.S.C. 84d; Sen. Rep. 2045, 84th

Cong.. 2d Sess., pil. Accord: Pub. 1. 87-224, Sept. 13, .

1961, 75 Stat. 496, 5 U.S.C. (Supp. 1V) 84d and 32

U.S.C. (Supp. FV) T09(f) Ceoncerning fedéral con-

tribution to State retirement funds); H. Rep. 756,

Sen. Rep. 709, 87th Cong., Ist Sess.

A recent legislative development demonstrates the

_ continuing congressional understanding that National

Guard personnel are employees of the State in their

eivilian, as well as their military, capacity. In 1960,

a bill was introduced, with the backing of the National

Guard Association, whien would have extended the

coverage of the Tort Claims Act to make the United

States liable for the negligence of both eivilian em-

. Y»

plovees and military members of the National Guard.*

The Department of the Army (acting for the Defense

Department) and the Department of Justice opposed:

the bill, chiefly on the ground that. since there was no |

federal control over the National Guard (except .

when in federal sérvice); the federal’ government

should not be held accountable for the torts of Guard

members and «implovees. H. Rep. 1928, 86th Cong.,

2d Sess., p. 7: Sen. Rep. 1502, 86th Congg 2d Sess.,

pp. 8, 11. Me addition, the Department of Justice

opposed the provision in regard to eivilian employees |

on the ground that the Holly line of eases already -

provided for relief... The Seeretary of the Army,

‘however,.in a letter to Representative Celler, Chair-

man of the House Judiciary Committee, pointed, out

that since the view expressed by the federal courts in

Holly and other cases was at variance with the long-

standing administrative Inte rpretation of the Comp-

troller General, and dine e this Court had not

considered tha question, tare, was “uncertainty”? as

to the status gf such emploveés. with respect to cover-

age by the Tort Claims Act. The Secretary went on to

recommend that. instead of extending the reach of the

Tort Claims Act, Congress should provide a limited

administrative remedy for claimants Injured by negli-

gent cenduct of National Guard members. H. Rep.

1928, supra, p. 6.

Congress refused to modify the seope of the Port

Claims Act. Instead, adopting the recommendation

of the Department of the Army, it established a lim-

ited adininistrative remedy for injuries caused by

civilian emplovees, as well as-‘military members of

the Guard. Pub. L. 86-740, 32 U.S.C. (Supp. IT)

715. In effect, the amendment authorized the Secre-

° . ¢

*Hearings on H.R. 5435 and 9515, .before the Howse

Judiciary Committee, 86th Cong... 2d Sess. p.12,

* Sen: Rep. 1502, s6th Cong., 2d Sess. ¢ |

23a

tary of the Arniy or Air Forcé to settle claims against

the United States up to an amount of $5,000, and to

certify claims in excess of that amount to Congress,

for payment. The Senate Conimittee explained its _

refi a jo expand the coverage of the Tort Claims Act

in the following terms (Sen. Rep. ol. 2 2,.S6th Cong., 2d

Sess., p. 4): = Gee

The crux of this matter lies in the fact that

the National Giard is primarily under State

control, as opposed to- Federal control. wis Pate

Similarly, the House Committee believed that it would

be “unwise to extend the teverage”’ of the Act te in-

clude conduct of civilian and military members of

the Guard, singe ‘Federal ‘authorities do not have

command and control over National Guard units and-

members-not in active Federal service.’’ H. Rep. 1928,

S6th Cong., 2d Sess., p. 4.

In declining to’ widen the coverage of the Tort

Claims. Act, Congress ratified the line of cases holding

that members of the Natianal Guard. acting in a mili-

tary capacity are not federal employees. It did not,

however, approve the Holly line -of ‘decisions holding »

the contrary with respect to civilian employees: On,

the contrary, in providing an administrative remedy

for the torts of Guard members performing civilian,

as well as military, € luties, Congress i upliedly rejected

the centention of ‘the Department of Justice that -

those: decisions rendered legislation unnecessary* and

accepted the Defense Department's: view ‘that there

was “uncertainty’’.as to ‘the status of ‘caretakers and

clerks.”” 106 Cong. Reé, 18583. And in aécording

the same treatment to military and ¢ ivilian personnel,

jt. necessarily rejected thé distinction upon which the.

Holly line of decisions was hased. .

Ut COVERNMENT PRINTING orni® tees

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