Brief for the United States — Maryland Ex Rel. Levin v. United States (No. 345)

Supreme Court brief1964

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Opinions below _ ____---- reenter wel eee vi daees phe

Cb ehs ivich ncetb inn sede eres SGA ea one

Question presented________.-__-.- Doateaiacaden ssiioae

- Constitution, statutes and vegalitions niiual arn e leis

Statement pret ae te Ruan Vga ene en, A

oo. oe United States is not liable for the pilot? 8 neg-

ligence because civilian Guard personnel are

_not “employees of the government” within the

meaning of the Federal Tort Claims Act__--_-

A. The Guard is basically | a State-controlled —

and Stute-operated militia_-________-

B. Civilian personnel of Guard‘ units are

under the control and direction of the

State and were regarded - by ——

_as State employees_....2-.---------+ >

(1) The statute and-regulations.___ -

(2) History of the statute______- aie

(3) Administrative practice and in--

terpretation eS riaiaeee aint gid

na ee (4) Other legislative consideration _ -

C. There is no rational distinction, for Tort

Claims Act purposes, between military

‘ and civilian personnel of the Guard___

* (1) State supervision and control__—”

(2) The language and purpose of the ©

PP etikckakonww anne co awe

tye

e 763-226-- 65--—1.

SONnNNNeE

— pj

- Feres vy. United States, 340 U. RS coc ewnaneewen .

Argument-—Continued : Os Peas

II. In all events, the United States is not liable for

_ the pilot’s negligence because he was acting in

a military capacity, under the direction ‘and

control of the State of, Maryland, at the time

" Gi RE bik pcb tciiee os nsaudvenceas 47

‘i A. Under the applicable a only the em-

ployer having the right to control the

pilot’s flight may be held liable_-_-__- : @

‘B. The flight was conducted’ primarily in the

pilot’s military capacity and it was

subject to the exclusive control of State

Ga sri icsescenss balcwetowdens 52

IH. The doctrine of collateral estoppel is inapgieaibs .

in the circumstances of this case___-_--...-~- - 66

ae ‘The collateral estoppel claim comes too —

Raia cnc kcan ce cancun ana ek waren 56

B. The collateral estoppel claim is unsound *

te Se vecaceccconssecedotious 57

nc dedaciewviedeumes seep end asewanenadonanall 59

RIGUEEE <2 oo. ccd paececcdcenaseecnecenencsevewcetc 61

Te: CITATIONS ; o

Cases: | '

Anselmo vz Ailes, 235 F. EERE geese sr as 33

‘Baldwin v. Towa State svneeting Men’s Association,

S—, RI IN a hig Gece hs Sax ticle wake irl oe 6 58.

Barr, Eleanor H., In the Matter of, etc., 10 ECAB 206... 33

Bauer v. Calic, 166 Md. 387, 171 Atl. i Ses 49

Bernhard v. Bank of America, 19 Cal. 2d 807__------ 59

Blackwell v. United. States, 321 F. er 15

Bristow v. United States, 309 F. 2d 465_---_..--.--- 15

California-v. Taylor, 353 U.S. 553-.--.------------- ae

: Callaway v. Garber, 289 F. 24 171___-----_.-------- 48

Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469---.. 38

Courtney v. United States, 230 F. od } | en he 16, 41, 44.

Cromwell v. County of Sac, 94 US. 351_.____-- ee

* _ Dalehite v. United States, 346 U.S. 15____-- pane cheese 40

Dover v. United States, 192 F. 2d 431____- Rie Sy fed Fi 15

Elder v. New York Pa. Motcr Express fat... 284 N.Y.

Se Fee ss ovo vn cohen tibunne oo 59

- Elmo v. United Siates, 197 F.2d 230__ ~~. ------- .. 16,44

°.

Cases Continued Pas

Fries v. United States; 170 F. 2d 726, certiorari denied, :

en. oka ttebnweuelneswne’ « 48, 50

Gallagher's Estate v. Battle, ag Md. “592; 122 A. 2d 93,

certiorari denied, 352 U.S. 894___.....-..-.----- oe 48 -

Glasgow v. United States, 95 F. ae Se 15

Gross v. United States, 177 F. Supp. 766--.'.-.--- ee 16

Harris v. Boreham, 233 F. 2d 110_.----. ------ bas 21

Henkelmann. v. Metropolitan. Life Insurance Co., 180

Md. 501, 26 A. 2d 418..........-----.------2--- 48, 50

Hyde v. United States, 139 F. Supp. 752. ------ Pen 20

Indian Towing Co. v. United States, 350 U.S. 61- -- - - 40

Keitz v. National Paving & Contracting Co., 219 Md. |

479, 134 A. 2d 296._~._.----! ENTS 48,49, 52

Larkin v. United States, 118 F. Supp. 435------- ----- 15

Lavitt v. United States, 177 F. 2d 627. ------.----- 21

Lawlor v. National Screen Service, 349 U.S. 322_____- 58

Lawn v. United States, 355 U.S. 339_---------+----- 57

Layne v. United States, 295 F. 2d 433, certiorari denied,

«368 US. 990. _,--:-----+--------------+------- —

Leachman v.-Belknap Hardware & Mfg. Co., 260 Ky. *

193, 84. S.W..2d 46......-....------------------ * 50

McCranie v. United States, 199 F. 2d 581__--------- 15

Mackay v. United States, 88 F. Supp. 696~-- -------- 15

NLRB v. Hearst Publications, 322 U.S. 111-.------- om 33

Nevarov v. Caldwell, 161 Cui. App. 2d 762, 327 ‘P. 2d

re eK caecescnaaeanes I 59

O’ Leary v. Brown-Pacifie-Mazon, 340 i: een 33

O’ Toole v. United States, 206-F. 2d 912__-_--------- _ 16

Partmar Corp. v. Paramount, Corp., 347 U.S. 89----- 58

“* Pattno v. United States, 311 F.2d 604, certiorari parry

I a says ohvenscnanens 15, 16, 50, 51

Salowitch v. Kres, 147 Md. 23, 127 Atl. 643__--- .--- 49

Satcher v. United States, 101 F. Supp. 919-:--------- 15

Singer Mfg. Co. ‘v. Rahn, 132 U.S. 518.---.--------- 17

Southern Pacific Railroad. Co. v. United States, 168

TN ee sg ague Kea nme ae eee fee

State v. Industrial Conmnionion, 186 Wis. 1, 202 N.W a

RA reg ea Ais, Oe Oe EEE een 34

Storer Broadcasting Co. v. United States, 251-F. 2d:

268. certiorari denied, 356 U.S. 951__---+----- oa ae

mney v. United States, 211 F. 2d 305... Sere se 22:

Cases—Continued — Sate

United Air Lines v. Wiener, 335 F. 2d 379_-_---- a. 59

United States v. Duncan, 197 F.2d 233 oe

United States v. Gilman, 347 U.S. 507___-.----- PRES. 40

- United States v. Holly, 192 F.2d 221_ 16, 26, 31, 44, 45, 46, 47

United States v. Silk, 331 U.S. 704. _....----------- oe

_ United States v. State. of Maryland, for the Use of

Meyer, 332 F: 2d 1009, certiorari denied, 375 U.S.

954, pending ‘on motion for leave to file petition

for rehearing, No. 543, O.T. 1963._...-----.------ 8,

13, 44, 45, 46, 51, 52, 54, 57

United States v. Wendt,-242 F. 2d 854-._--.-------- 16

Williams v. United States, 189 F: 2d 607_-.-.------- 15

Williams v. United States, ‘350 U.S. 857__.-.------- 48

‘Constitution, statutes, rules and regulations:

Constitution:

Art. I, Sec. 8: .

Re a etc oe cane ice inate aerate Veueewn 17,61 .

«Ric eR paar ensayo aka Dem ne 17, 20, 30, 61

BG TE, OOO. Ba. oop eat esdienddasacdovenbanmee 61

Statutes: ; :

Act of May 8, 1792, 1 Stat. 271___.___- ees 20

‘Act of September 1, 1954, 68 Stat. 1059, (gnend- '

| eee eres > 36

Act of June 15, 1956, 70 Stat. 283, 5 U.S.C. 84d_ _ - 36

Federal Tort Claims Act: i‘ |

ea EG BS Sera aeRO IS Met ok (1,61

RS oe ee oe cien 56,08

28 US. C. Sa OW wecaes pieten IAS Pe me oe eo 22, 25, 62

Ey ers NEO lh ce ve carotene qn den d AS re eee tenn 62

National Defense Act of 1916, 32. US.C. 101, et seq. “Go ,

ee oe nC avedeuseeuts 18,19

_ Section 58,10 U SC: 3078, 3495, 8079, 8495 (formerly

iy ree Cees ck ae awd oun ecdeeaee 25

Section 61, 32 U.S.C..109...2.......--- Pa eens aes ‘19, 65

EN th OOo ak Ss enw cs ence dacs 20, 21, 65

Sections 03-63, 39 USDC. 10. ...<.....- 2-2-6526. 19, 66

Sections 82-89, 32 U.S.C. “105(a)(1), 702(a)(d),

TEI Bevo cacao neces esesscncen .-~ 29, 43, 47, 54, 63, 66

emia OO er ee, TNs is 5 es Co hi nescence xs 25, 29, 30

-. Section 90, as amended, 32 U.S.C. 709-_..-.--------- ,

16, 26, 27, 28, 31, 33, 42, 43, 49, 51, 66

“> e o . Vv o

National Defense Act—Continued

’ Acts amending Section 90: ;

Act‘of June 4, 1920, ch. 227, subch. I, §46, 41 Page

ee ee eee ti 29

Act of March 1, 1922, ch. 90, 42 Stat. 401-.---~-- 29

Act of June 6, 1924, ch. 275, 43 Stat..471__.----- 29

_ Act of May 28, 1926, ch. 417, § 1, 44 Stat. 673__- 29, 30

Act of April 21} 1928, ch. 397, 45 Stat. 440..-... 29

Act of June 19, 1935, ch. 277, 49 Stat. 391. -..-- 29,31

Act of October 14,; 1940, ch. 875, § 1, 54 Stat.

SR io uaa becca cwnckadeduec seelepenree - 29

Act of August 10, 1956, ch. 1041, § 2, 70 A Stat.

RDU IEE Spe estoten eam ae ac ire” oy tees 29

Section 91, 32 U.S.C. 501__...--.--..-- nse 20, 30, 54, 66

Gestene OF. BO ew. GOR. 6. 53 cers si sac ssasvers 19, 32

Slee 0 USC. WE oes k ee 12-19, 63

Sestien 006, OP DBO. 10s. .22.-- 22.25... 19, 34, 63

Section 147, 32 USC. 101(4), at anak aaa 17, 20, 62

Section 136, SEU BL. Ti. nto eee sn enon ces 19

Pub. L. 86-740, 32 U.S.C. (Supp. II) 715_-------- 37, 40, 44, 69

Pub. L. 87-224, Sept. 13, 1961, 75 Stat. 496, 5 U.S.C.

(Supp IV) 84d, and 32 U.S:C. (Supp. IV) 700(0. eo ety ae 33,37

SUA Oe: ....<- Re Pat Rena WAR Ah Y> Mol Sea ae Se ae

OU i ios oot nn cde eae ca beeseneenneaseses 33

0.80. We... ...:.:,- eth here eee se Ginee 64

MUSE. ME. ..050 <0 ‘Seen Phe dee pen rere tte |

SCS PS oa cen Relea Be Soate te "34

| ES | oh ae eeeapep eae sen eure oan cere 34

42 US.C..418()......-.----. 2b----------- wa ae

Act of Maryland General Assembly, 1678, 7 Archiv es of

Maryland (Md. Hist. Society 1889) 59_-:..-----.----- 18

Maryland Constitution:

‘Att. ms nt ca ad we Oa Bae alee Maras 21, 70

Md. Ann. Code, Art. 65:

BO ctdesdasu oust Cie niweddbacntnetineyccuunn 21

BAe ae tee at aS o 7

OG cndaig cwlivces Vas ceun ches euedauwernenens 20, 2

PG ccdcabhedenda buleeicnwsessivewen act laeys 20, 21

Md. Rev. Code of 1878, det. 18, §§ 28-33.:...------

: ea VI

Rules:

Revised Rules of the Supreme Court of the. United Page

"tI 22 cece ccaawocesaaawes 57

Federal Rules of Civil Procedare:

ND et ie aa a tathae 66

PED Sasiessseewans Se on tee eh SE 56

ra ee nnn Oe eae

Regulations: i

_ Air National Caaed Regulations (ANGR) 40-01____- “4, 27,

_—- 28, 32, 34, 35, 42, 73

National Guard Regulations (NGR) 51__---------- mee

28, 32, 33, 34, 35, 42

. National Guard: Regulations (NGR) 79-_-_---------- 3il

National Guard Regulations (NGR) 75-16. _-- Pa 46

Miscellaneous:

A Description of Twenty- five. Federal Grantin-hid

Programs, a report submitted to the Commission of

Intergovernmental Relations, June 1955, p. 178--, - 23

27 Comp. Dec. 344,345 (1920). .....---.-.----s<-3 29, 35

21 Comp. Gen. Dec. 305 hs oe ee StF a 35

OC SI ks Fo se kb ie eh ees ‘19

53 Cong. Rec. 4906. ........:--..-..- cena wee "19, 32

91 Cong. Rec. App. 1006-1008 __»-_-..----=------ a ae

-95 Cohg. Rec. 1323, 1764, 2215, 2976-2977, 3434-3435,

4906, 5015, 5090, 5288, 7215, 7468-7469, 7565-7566,

- %200-7211._.-- Wi sidnvitewnundadintndedddees ae

- Hearings before the Subcommittee of the House Ap-

propriations Committee, 84th Cong., 2d Sess. (1957),

WU Mia 3 de canedudanccenesdeuaelesius 32, 35, 36 -

Hearings before Subcommittee No. 2 of the House |

Committee on the Judiciary on H.R. 5435 and 9315,

- 86th Cong., 2d Sess__........---- eee” MASS 24, 37, 38, 39

H. Rep. 297, 64th Cong., Ist Sess_..........__-- cane 18

H. Rep. 1031, 69th Cong., Ist Sess.__.:....----- ees

H. Rep. 1698, 83d: Cong., 2d Sess_'.-.--.-----.----- 33, 36

H. Rep.-1928, 86th Cong., 2d Sess__.__------ 24, 37, 38, 39

H. Rep. 786, 87th Cong., Ist Sess____-_.-.-.-:.--- 33, 37

Report of the Commission gn Intergovernmental Rela-

- tions, 84th Cong., Ist Sess., = ane 23

_ Miscellaneous---Continued Page

.S. Rep. 785, 69th Cong., Ist Sess_ _ - -- Srtigs PAA a

S. Rep. 635, 74th Cong., Ist Sess__-.-.-.-----.----- 31, 41

S. Rep. 1795, 82d Cong., 2d Sess... ../..-..-------- 32

S. Rep. 1987, 83d Cong., 2d Sess__--- - pean PCE: HN 33, 36

S. Rep. 2045, 84th Cong., 2d Sess... . <72_.-------- 93,37

S. Rep. 1502, 86th Cong., 2d Sess---._--------- .24, 38, 39 ©

S.. Rep. 709, 87th Cong., Ist Sess_---------- sain stp 33

Restatenient, Agency 2d:

§ 219, comment a_-------- Lee a SLs rina ahes 17

I CARINE roe oe moe —-

G2, comment €.......-.....- 2-52-22 2 0e ene 48

_ § 226, comment b._------ Cecnineigpevuseeowew 49

SS a eee Reaciusw ia esd on beanie aes ’ 48

' Restatement, Judgments: ae ie

§ 93(b), comment d_-__.------------- gicwnaaen 58

ee ere aur cwiiie baw enabanweweat 59

-: i kawadedakusthiie sibacenndanweened OEE

Wiener, The Militia Clause of the Constitution, 54

Mase. In, Bev. 108 GORD)... 2 concn encccesetex- 18

. an the Supteme our of the Bred its

Octosrt Tena, 1964 _

‘No. 345

STATE OF MAnYLAND, FOR THE Use or NADINE Y. LEVIN,

' ET AL, AND STATE OF MaryLaNnD FOR THE USE OF

Swxey L. J OHNS, ET sk. PETITIONERS .

UNITED STATES OF AMERICA ,

Coo

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD OIRCUIT |.

BRIEF FOR THE UNIT“D SEATES

OPINIONS BELOW

The opinions of the court of appeals (R. 708) ‘are

reported at 329 F. 2d 722. The opinion of the district

court (R. 691) is reported at 200 F. Eupp. 475.

JU RISDICTION

whe judgments of the court of appeals were aendl: |

on April 1, 1964, and a timely petition for rehearing ~

was denied on April 28, 1964 (R. 731-732, 733). On

- June 23, 1964, Mr. Justice Brennan extended the time ~

for filing a petjtion for a writ of certiorari to and

including September 25, 1964 (R. 734),/ The petition

-was filed on August-3, 1964, and was granted on Oc-

(1) / te

tober 19, 1964 (R. 734; 379 U.S. 877). The jurisdiction

‘of this Court rests on 28 U.S.C, 1254(1).

rz UMSTION PRESENTED —

” Whether the United States i is liable under the Fed- —

ts eral. Tort Claims Act for the negligence of .a pilot .

who is both a commissioned officer and a civilian em-

_ployeé of the Maryland Air National Guard.

._ CONSTITUTION, STATUTES AND REGULATIONS ‘INVOLVED ©

| The pertinent provisions 6f the Constitution, .

statutes and regulations involved are set forth in the

appendix to this brief, pp. 61-67, infra. _

STATEMENT

On May 20, 1958, a passenger airplane pwned by

_ Capital Airlines collided’ over Brunswick, Maryland, ©

with a jet trainer airplane owned by the . United:

States and assigned to the Air National Guard of

Maryland. Both airplanes were destroyed and all of

the passengers and crew were killed: except for the.

pilot of the National Guard /aircraft, J ulius RB.

McCoy. At the time of the hiabhed: McCoy was both

a commissioned officér in the Mary land Air National

Guard and a civilian employee of the National Guard

receiving pay from federal funds‘under Section 90 of

_ the National Defense Act of 1916, as amended, 32 U.S.C.

~~ 709. These suits were brought under the Federal Tort

~ Claims Act by survivors of two of, the Capital passen-

gers seeking to impose liability upon the United States

; because of MeCoy’s negligence. A finding of liability

in the district. court, 200 F..Supp. 475, was reversed ia

the court of appeals 329 F. 2d 722.

“In this Court the United States does not challenge

the finding of the district court that McCoy’s negligence

. was responsible for the acéident. The issue here, as

in the court of appeals, is whether, assuming McCoy

to have been negligent, he was, under the Tort

Claims Act, an “employee” of the United States “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” Maryland. The relevant facts, therefore,

- principally concern (1) the extent of the supervision ° .

and control exercised, by the federal government over —

National Guard officers and caretakers in general, and

(2) the particular dutiés performed by. pilot McCoy

at the time of the accident. They may be briefly

summarized as follows: ee

Julius R.. McCoy held a commission from the Gov-

ernor of Maryland as a Captain in the Air National ,

Guard of Maryland (R. 92, 660).- A rated pilot:on.

flying status, he was assigned as a jet fighter pilot to

the 104th Fighter-Interceptor . Squadron of the

Guard, stationed at Martin Field, near Baltimore

(R. 37, 661). He served in that capacity as aircraft

maintenance officer of the squadron (R. 38). At no

relevant time was that squadron in active federal serv-

ice (R. 283). a mee

Captain McCoy was also employed’ as a civilian

air technician with the title of Aircraft Mainte-

/nance Chief and Acting Maintenance Supervisor. In-

this position he was responsible for the proper main-

' tenance of the 28 airplanes owned by the United

States Which were assigned to the 104th Squadron,

‘ and had authority over the 60 to 65 employees, who

‘were engaged in the’ maintenance and care of the

28 airplanes (R. 681). Although the Air Mainte-

nance Chief was not required to be .a rated pilot on

flying status (nor Was such a qualification listed as |

“desirable” [ANGM 40-41, p. 107; R. 118, 218]),

Captain MeCoy had performed functional flight tests

or flight checks after major maintenance work on

airplanes assigned to his wnit (Rt. 70-71).

As a pilot member of. the National Guard, Captain

McCoy was required to fly: 100 hours annually to.

maintain proficiency (R. 161-162, 300-301). Al-

though that requirement was a federal one, the times, -

routes and methods of performing such flights were

controlled by State officers acting under authority -

delegated from the governors (R. 283-285, 337-338).

. Proficiency flights of the 104th Squadron were often

made sepatately from the organized drills (which —

were on alternate Saturdays), both by those officers

who were air technicians and by other pilots of

the unit (R. 68). Although air technicians were,

on civilian. pay status during their regular work-

ing week, if they flew .proficiency flights at such times

they received flight pay in their military capacity —

(and none in their civilian capacity ), unless they had

alreaaly qualified for all the flight pay they were en-

_ titled to receive for the period (R..153-154).. Should

a pilot fly after he had already qualified for all of his

flight pay, he was, when flying, considered to be on

military duty training status’ without military pay,

although he was permitted to receive civilian pay for

_ oO

the period of the flight (R. 127, 155, 156). Only offi-

eers of the Air National Guard and other. military,

personnel were permitted to fly airplanes assigned to

it and they were authorized to-fly only. on valid mili-

‘tary orders (R. 304), The commanding officer and .—

' pilots of the 104th Squadron, and a ranking officer of

the Air National. Guard, understood that’. when

‘an officer pilot who was also a civilia air technician .

flew a National Guard airplane, he did so in his mili-

tary eapacity (R. 332, 117-118, 147, 149).”. »

The flight which resulted in the accident involved

in the present case came about, as «follows. Captain

McCoy .had’ requested permission from his ecommand-

ing officer, Lt. Col. Kilkowski,* to take an acquaint-_

anee, Donald Chalmers, as a passenger on a flight,

with a view t6 increasing his interest in joining: the

Maryland Air National Guard (R. 68, 83,139), The

' day of the crash, May 20, Col. ‘Kilkowski authorized

Captain MeCoy to make such a flight with Chalmers

1 Captain’ MeCoy’s testimony ‘is illustrative. When asked

- what functions he performed “(djurine proficiency flight as a

maintenance chief” air technician, he replied, “I would rot be

on a flight in duty as a maintenance jehief. I would be on the

flight in my duty as.a captain in the Air National Guard * * *”

(R. 117). ; ' ; ” ele

* Petitiqners’ assertion that McCoy took his orders in his

- military status ‘from, Major Scott’-(Pet. Brief, p. 16). is in-

accurate. Fle ‘concededly took his orders in that capacity from_

the commanding oflicer. of the 104th Squadron, and it is clear

from the record that ‘Col. Kilkowski was .the commanding

‘ offi@er of the squadron’ at all times material to this case, as

well as Base Detachment Conmander in charge of air tech-

nicians on the base (R. 122, 578-579, 594; compare R. 42).

As Base ‘Detachment Commander, -as well as commanding

_ officer of the squadron, he recdived orders from and was re-

sponsible to the Adjutaiit General of Maryland’ (R. 145). .

(R. 139, 151). The flight order was ‘aiid by au-

thority of the commanding officer of the 104th Fighter

Squadron. It directed Captain McCoy to make:a pro-

». ficiency or training flight and specified the date of dé-

“parture, ‘the airplane to be used,. and the. destina- .

tion (R. 209, 108, 1: 50-151, 586-587, 161-162; see R.

~. 207).’ “Because of the. passenger, the flight was made

in one of: the unit’s two training auieiesniia rather 3

than ina fighter (ibid.).

- Captain MeCoy had already qualified for all of the

military flight pay which he was entitled to receive:

fe for: the pay period in question. “Since the: flizht oc-

erred during a day in which he was employed as an

‘air’ -technician, he drew ¢ompensation during ; the

peried_of- the flight in his civilian capacity as an air |

technician (R. 599).’ ‘Accordingly, he flew. the air-

plane on military training duty status, without mili-

*. Petitioners’ assertion that the flight “was not. a training

mission” (Pet. Brief, p. 17) is ineerrect, ‘as shown ‘above. The —

pages of the reedtd cited by’ petitioners for. that statement

a as they relate to the subject at all - (R. 136, 152-153,

586-587) support ‘only the proposition that the flight was not _

‘a flying training period * * * for military pay purposes”

(Ro 136), The ev idence of. record discloses .that a “flying

training period” is a pay keeping term (R. 154), and as we

have shown above, the flight here would have been ‘such a

period for pay purposes except for the fact that Captain

McCoy had qualified for the maximum number of flight pay

periods for the period of time in question (R. 154-155).

‘Pilots whe- are. air technicians receive flight pay in their

military, father. than their civilian, capacity ‘for any profi-,

ciency flights they undertake, even during their regular civil-

lan working hours, unless ‘they have already. received the maxi-,

| _ mum‘ amount. of flight ayer the period (R. 153-155; see

/PP- +), —

_ the air strips as “a secondary ‘portion of any =. a

¢ Cd

‘tary pay (R. 127, 155; p. 45, supra): —The flight had

--——no-specific maintenance function or purpose (R. 163)

and no cheek flight or other maintenance flight would

have been authorized with a passenger aboard (R.

164). As a maintenance officer, however, Captain

McCoy observed matters such as the quality of the

performance of-the aircraft and its instruments, and

(R. 163-164).

Before the present actions w ere begun, similar ac-

tions (the ‘Meyer cases’) had been brought against

the United States on the same theory in the United

States District Court for the District of Columbia by

Capital Airlines and the survivors of the pilot and

copilot of the Capital airplane.’ That court found

that at the time ‘of-the accident “Captain McCoy was

at least in part carrying out his civilian work as Air-

eraft Maintenance: Chief and Acting Maintenance.

Supervisor” (R. 687). The court ruled as a matter

of law that a “person employed a§ an air technician |

(caretaker) ina non-activated National Guard Unit

is an employee of the United States within the mean-

ing of the Federal Tort Claims Act’’ (R. 688)»

By agreement of the parties, the record made in |

the Meyer cases on the issue of the responsibility of

the United States for the conduct of Captain Me Coy

was filed in these cases. Petitioners did not, however,

: assert that the rulings or judgment inthe Meyer cases

were . binding upon the government “under principles

of res judicata or collateral, estoppel. The district

®* Actions arising out of the same ‘COllisio.1 have also been

filed in Hlinois, Ohio and New York.

court in these eases did not consider the judgment in

the Meyer cases to be binding, nor did it refer to that

judgment. een in holding the United States

. liable.

The United States appealed to the Court of Appeals

for the Third Circuit from the judgments in these

- eases and to the Court of Appeals for the District of

Columbia Circuit from the judgments in the Meyer

eases. “The Court of Appeals for the District. of Co-

lumbia Circuit rendered its decision first and affirmed ,

on the issue of liability, holding that Captain McCoy

was an employee of the United States, and that the.

very existence of an employer-employee telationship

gave the United States the inp to control his activi- .

ties “in an ulimit sense.”” United States v. State

of Maryland, fot the Use of Meyer, 322 F. 2d 1009.

"A timely petition for certiorari from that decision.

was denied on December 16, 1963, 375 U.S. 954, but

the case is presently pending upon the government’s

motion for leave to file petition for rehearing, No.

543, O.T. 1963.

The Court of “Appeals for the Third Circuit, Judge

Staley dissenting, reversed the judgments of the dis-

- . trict court in the present cases (R. 708-732). Judge

Smith’s opinion held that civilian employees of the

National Guurd are not employees of the fed-

eral government within the meaning cof the Tort

Claims Act, since they, like the Guard’s military

employees, are subjeet to the supervision and direc-

tion of State officials who are, in turn, responsible. to.

‘the directions of State governors (R. 714-721).

Alternatively, Judge Smith held that Captain Mc-

Coy was flying the airplane ‘within his line of duty

as a member of the Guard,” and was acting at that

time, “under the control and supervision of. the. au-"

thorized military personnel of the Maryland Air

National Guard.’ Consequently, the United States

would not be liable for Captain . MeCoy’ s conduct

‘under the Maryland doctrine of respondeat superior

since that doctrine applies only if the employer directs

and eontrols. the employee with respect to } the very

activity from’ which ‘the injury arises (R. 721-722,

723).° In a concurring opinion, Judge Hastie agreed

that the “basic character” of the flight in question

was that-of a training flight “undertaken by Captain

McCoy in his capacity as an officer of the Maryland

Air National Guard,” but did not reach the question

whether civilian employees are to be treated differ-

ently from military employees of the National Guard

(R. 725). Judge Staley dissented primarily upon the

‘The opinion of the court noted that less than usual weight

should be given to the findings of the district court in this .

: ? . P .

-ease because the district court record consisted of the record

_- made in the District of Columbia which, in turn, consisted pri-

marily of depositions and written exhibits (R. 709-710). The

court did not, however, find it necessary to set aside any

specific district court finding. ‘We believe that the factual

analysis made by the court of appeals is consistent with the

basic findings made by the District Court for the District of

Columbia in the Meyer cases and with those of the district

court in these cases, except insofar as the district ‘court in

these cases implied that Captain McCoy was flying the air-

plane exclusively or primarily as an air technician. Insofar

as they so implied, they were inconsistent with the findings

of the district court and the ruling of the court bad appeals -

in Meyer, and were clearly erroneous. — .

763-326—65—— 2

reasoning of the Court of Appeals for the District of

Columbia Circuit in the Meyer cases (R. 726-730).

Petitioners’ timely petition for rehearing en banc was >

~ . denied by a vote of six-to-one (R.%33).

SUMMARY OF ‘ARGUMENT

The United States may. be held liable under the

Federal Tort Claims Act for the negligence of Cap-

tain McCoy only if he was an “employee of the Gov-

ernment”’ and if his conduct in that capacity was such.

as to impose. ability under State law upon a private

employer in the United States’ position. We con-

tend that Captain McCoy was not, under the applicable

. principles of ageney law, an employee of the United

States in his capacities as a military member and

civilian technician of the Maryland National, Guard.

. Alternatively, even if he was an employee of the

federal gov ernment for some purposes, he was not »

subject to any federal direction or control or engaged

in any function of the federal government while per-°

forming the flight which-gave rise t6 petitioners’ claims.’

1. Article I, Section 8 of the Constitution reserves

to the States the right to appoint officers and to train

the “Militia.” .The Army and Air Force National

Guard are nothing more than the “Militia” referred

to in that clause. “The National Guard as we know

it today isea State-controlled arid State-operated mili- -

tia which is subsidized, in large part; by federal

funds and which’ may be called into federal service’

by the President: ‘As a condition of such federal

subsidies, ‘the governing ‘statute authorizes the es-

tablishment of federal standards which must be met

by the’State agencies, but the actual supervision and

ye,

- eisions which had held that military Gua

such employees, as well

direction of each State’s Guard units remain with

- State officials. The ranking officers are the adjutants

general of the States, and they are responsible ‘only

to the State governors. Consequently, the relation-

ship between the United States and .the Guard of

each. State, like the relationship between the federal.

government and a host of other State agencies per-

forming local functions with the assistance of. fedeyal”

funds, is essentially that of a party and ‘an’ ihae.) py

pendent contractor. Just as the employees of inde

pendent contractors who. deal with\the Uni éd tites

are not employees of the government tor fort @lains

' ’ Aet purposes, so, too, members of the N vation |; Guard -

are outside the ‘coverage of the Tort Claims Act.

In providing an. administrative and ibe remedy

in 1960 for injuries caused by the negligent ‘act: of:

all Guard personnel, Congress approved vA court de- —

d personnel

were State and not federal employées he¢ause they were

“under the “command and control’? of State authorities.

. There is’a line of court of a ppews’ decisions (which

we challenge) holding that civifian Guard personnel

are employees of the United %tates for purposes of

, Viearious tort liability.- Howfver, the history of the

statuté authorizing payment(/from federal funds for.

s he regulations issued

thereunder, the actual administrative unde? standing. ,

and practice, and other Gongressional legislation’ all.

indicate that Congress ¢ nsidered civilian’ personnel

as Staté’ employees and that they are actually -as

much under State *“‘command and control’’ as military

rata :

eee ae je ae

Guard members. Indeed, by including civilian per-

sonnel among those for whose negligence an ‘admin-

‘istrative remedy was’ supplied in 1960,. Congress

_ demonstrated that civilian and military personnel. of

the Guard should be treated alike and that no remedy

under the Tort Claims Act should be available for the

conduct of such ei: iployees.

2. Alternatively, even if Captain MeCoy was an.

employee of the United States in his capacity as: a

civilian technician of the Guard, he was employed

by the State of Maryland insofar as he _ per-

-formed military duties. Hence. he - was at most

_a “shared” or. .“borrowed” servant. The : flight .

_ “which produced the accident on which these claims

~ are based was a military flight because only military -

personnel were authorized to make it, and because

it was done under military orders. Only the State |

of Maryland could direct the pilot when, where ana |

how to fly; hence only the State of Maryland could,

be held liable—under that State’s law ef respondeat

su perior—for cunduet negligently performed while it

had the power to, control such conduct. The inci- »

. dental civilian technician functions performed by ,

_ Captain ‘MeCoy while in the air did not detract ; from

the primary capacity in which the flight was’ made,

-and, in any event, even the civilian duties were car-

_ ried out under the direction and control of the State.

_ 8. Finaity, there is no merit ‘to petitioners’ claims

_ that they are entitled to prevail because other litigants

suing in the District of Columbia for damages aris-

ing out of this accident obtained final judgments

against the United States in their cases. This elaim

was not timely asserted. Moreover, the novel doctrine

of collateral estoppel which petitioners now raise

would produce patently unfair results and should’ be

rejected. ,

: ARGUMENT ;

' This case concerns the liability of the United Sines

under the Federal Tort ‘Claims Act and the doctrine .

of respondeat superior, for the conduct of Captain

Julius R.-MeCoy, a pilot who was, at the same time, a

commissioned officer and a civilian employee of the

Maryland Air National Guard. Because of a consist-

ent line of decisions in the courts of appeals which

have distinguished, for Tort Claims Act purposes,

between military and civilian employees of ‘the Na- |

tional Guard and have held only the latter to be em-"

ployees of the United States for purposes of that

Act, the district court inthis case—as in United

States v. State of Maryland, for the Use.of Meyer,

322 F. 2d 1009 (C.A. D.C.), pending as No. 543, O.T.

1963 (which arose out of the same-mid-air collision)—

believed it essential to determine whether Captain

_ McCoy was acting in a civilian or military capacity at

the time of the collision. The majority of the court |

‘of appeals ruled that McCoy was acting primarily _

in his military capacity and was acting under the ex- .’

| clusive control and direction of State officials (R. 723-_

124; 12: A),

' We contend first that the decisions holding, ‘the

‘ Enited States liable for acts committed by eiWilian’

employees of the Guard are in error, and that the

14:

atte

distinction drawn between these cases and those ‘in-

- volving military personnel is, as Judge Smith ob-

"served. below, “untenable” (R. 716). (In using the

term “Guard” throughout the brief, we refer to units

of the National Guard not in active federal service.)

Consequently, it is immaterial whether Captain Mc--

Coy was engaged in civilian‘or military duties while

piloting the trainer plane involved in this collision.

- In either event, his negligence is not attributable to

the United States. For, as in his military capacity,

McCoy as a civilian was under the direction and con-.

> trol of the State of Maryland.at the time of the col-

lision dnd was not, therefore,. an “employee of the

Government”’ within the meaning of the Tort Claims

Act. | *;

Alternatively, we submit What the court of appeals

was correct in ruling thafCaptain McCoy was €n-

/gaged primarily in military duties when he-was flying

the jet trainer airplane, , and was under the exclusive

direction ‘and supervision of State officials. Accord-

ingly, even if he was an employee of the United States

for purposes of the Tort Claims Act because of his

civilian duties; no fedéral official had ‘the right to:

- diregt him to fly or to éontrol him in the performance

of his flight: Since, under Maryland law, the em-

ployer who has the right fo control the ‘partie ular

activity which results in the aecident is the only/ one

who may be held , lable under the doctrine of -

respondeat su perior, and since the State and not the

federal government ‘directed the pilot’s military activi-

ties,, liability’ for “the pilot’s negligence in this case

cannot attach to the United .States.

I 4 «

THE UN ITED STATES Is NOT LIABLE FOR THE PILOT’S NEGLI-

GENCE BECAUSE CIVILIAN GUARD PERSONNEL ARE NOT

“EMPLOYEES OF THE GOVERNMENT’? OWITHIN. THE

.» MEANING OF THE FEDERAL, TORT CLAIMS ACT

Under the Federal Tort Claims Act, 28 U.S. C. 1346

., . (b) (pp. 61-62, infra), the United States has assumed

liability for negligent acts or omissions of any ‘‘em-

_. ployee of the Government” who is “acting within the

' scope.of-his office or employment, under circumstances

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.” In ...

applying this statute to military persommel of the

‘National. Guard, the federal courts have uniformly

- . held that so Jong as such personnel are not in active

federal service and therefore are not under the imme-

diate direction of federal officials, they are to be con-

sideréd employees of the States rather than employees

of the United States. Williams'v. United States, 189

F. 2d 607 (C.A. 10); Dover v. United States, 192 F.2d .

431 (C.A. 5): MeCranie v. United States, 199 F. 2d 581

(C.A. 5); Storer Broadcasting Co. v. United States,

251 F, 2d 268 (C.A.'5), certiorari denied, 356 U.S.

951; Bristow v. United States, _ F, 2d 465 (C.A. 6):

Pattno v. United States, 311 F. 2d 604 (C.A.: 10),

certiorari denied, 373 U.S. 911; Blackicell v. United

States, 321 F. 2d 96 (C.A.5) ; Mackay v. United States, —

88 F. Supp. 696 (D. Conn.) ; Glasgow v. United States,

95 F. Suipp. 213 (N.D, Ala.) ; Satcher v. United’ States,

101 F. Supp..919 (W.D.. 52) ; Larkin v. United

; 16

States, 118 F. Supp. 435 (N.D. N.Y.) ; Gross v. United ©

States, 117 F. Supp. 766 (E.D. N.Y.).’ ee

In* this’ respect the courts have distinguished be-

tween military and civilian’ personnel of the Guard.

_ Civilian employees, who receive compensation from

* federal funds pursuant to 32 U.S.C. 709¢f), have

been held to be federal employees for Tort Claims Act

purposes. United States v. Holly, 192 F. 2d 221 (C.A.

10); Elmo’ v. United States, 197 F. 2d 230 (C.A. 5);

United States. v. Duncan, 197 F. 2d 233 (C.A. 5);

Courtney Vv. ‘United States, 230 F. 2d 112°(C.A. 2);

United States v. Wendt, 242 F. 2d 854 (C.A. 9); ef. -

Pattno v. United States, 311 °F. 2d 604 (C.A..10),

certiorari denied, 373 U.S. 911. We believé, for tie

. reasons stated below, that this distinction is unsound,

and that the general structure ‘of the. National Guard,

the legislative history of the caretaker provision, sub-

sequent Congressional enactments and the actual ad-

ministrative practice and interpretation all establish

that civilian employees of the Guard, liké military

personnel, ‘are not employees of the United State for

_-] purposes of vicarious tort oe a

A. THE “GUARD. IS’ BASICALLY A STATE- CONTROLLED AND" STATE-

OPERATED MILITIA 2

: Shee Gilroions line of decisions which hive held tliat

non-civilian members of Guard units are not employees

7 O'Toole v. United. States, 206 F. 24.912 (CA; 3), was a case

in which members of the National’ Guard. of ‘the District of Co-

' lumbia were held to be federal employees, because that orga-

nization’ is under the direct command of the President, who

appoints its officers and who,through a direct chain of com-

“mand, ‘controls its activities.

tries

47.

of.the United States (pp. 15-16, supra) rests upon ordi-: ~ |

nary principles of agency law which have been ap- -

proved and considered applicable to this situation 1:.

‘the course, of Congress’ consideration of the problem.

The common-law principle of vicarious tort liability -

_ upon which are based the United States’ obli-

gations under the Tort Claims Act is rooted in

_the employer’s “right to control his employees’ |

activities.. E.g., Restatement, Agency 2d, § 219, com-

ment a. Liability for tort under the doctrine of re- ;

spondeat superior is premised upon the employer’s

_ right to control and supervise the manner in which his

employees’ duties are to be- -performed as well as to —

direct the ultimate result to be achieved. Id., § 220.-

(1) ; Singer Mfg. Co. v. Rakn, 132 U.S. 518. The his-

tory of the National Guard, its present function, and

its organizational structure demonstrate that although

the Guard is supported in large part by federal funds, *

it is administered, controlled and supervised by the

‘States. Hence, under the applicable master-servant

principles, its employees’ negligent conduct may be

attributed to the States ee not to the federal govern-

ment. : - , ©

1. The Army National ree and Air Force Na-

tional Guard are the “Militia’’ authorized by Article

I, Section 8, of. the Constitution’”’ *

The Congress shall have saci, IA

To provide for calling forth the Militia to

. execute the Laws of the Union, suppress Tnsur-

rections and repel Invi asions ;

° 32 U.S.C. 101(4), (6). (p. 63, infra).

oy Wand | the Authorit:

Gs .BTess; :

In first ‘exercising the militia iowa, Congress | pre-

costal’ only the, organization: sand discipline of the

militia, but it subsequently supplied arms and equip- ©

~ment, Since the beginning of this century, when the -

_ term “Ngtional Guard” «ame into use, Congress has ©

* also provigga

_members and. civilian erhployees.* The basic structure

.of the National “Guard asiit is known today was for- _

mulataéd ‘by the National Defense Act of 1986, aon

‘U.S.C; 101, et. seq: - na ;

ae The 1916 enactment. first embodied” pana fun-

damental decision to use-the organized State militia

as a basic source of reserve. military strength for the

nation in place of a standing regular army or ational 7

foree’ of volunteer reserves.

Cong, » 1st Seis. (1916); ; Pp. 2-9, 14; see Wieser, The

M ilitia Clause of the Constitution; 54 War. L. Rev. 181,

Congress notynly provided for the |

arming, organization, and discipline of, the National _

~ Guard;*but* ‘authorized the use of- federal funds for

the compensation of its officers if members of the

i ‘

“196-203 (1940).

% There were, of course, civilian employees of the militia

*before ‘Congress ‘authorized the use of federal-funds for their .

E..g., Act. of Maryland General“Assembly, 1678, 7 Archives:

of of Ma

_ of 1878

= ; ‘ jay ;

be Does : o

x - @ sy

% b He

‘ : "Sy ie .

& ye 8 18

“To provide for organizing. ovine, ai dis-

ae e Milifia, -and for aie such

~ Part of them’as may be employed i

of the United States, resexyi

_yespectively, the Appointment “of -the Offic ers,

ef training the Militia ac-

scipline. — by Con-

cording to the .

** *

fun for the compensation of militia

H. Rep. No. 297, 64th

land (Md. Hist. Society 1889) 59; Maryland Rev. Code

rt. 16, $8 28-33, shag . We, .

- a o “+ oR.

, om oe Ll SS Sees a . sie ck hes :

» °

UIS.C. 105,408, 50

19/ °

Guard units wed their ofc met federally speuenaas

standards.” :

‘The 1916 act scedeniplatgi that ‘the National Guard

would be (1)7a State militia under the command and

direction of the State except when called into federal

service, and | (2) a reserve ‘component of the national “

_forees which, when ordered into active federal service,

would constitute an integral part. df the Army of the

United States. ‘The Act made it perfectly : clear that’

the States are to retain command. and control over the

National Guard when itis. not in active federal serv-

e.° Thg basic features of the. National Guard and ©

ame ea relationship to the State and national go pents

have remained substantially the same as rescribed by

-. the National Defense Act of 1916. é&

Guard units qualify for federal support niet the

. Act only if they maintain “federal récognition”’ by

_ participating in federally prescribed drills and train-

ing and by passing inspections designed to assure, that ai

their members, organizations, training, instruction and "

pons Nee pr ‘<— federal standards. 32

Equipment arid supplies as- _

signed to the Guard remain the property of the United

States, but the States have the: ‘responsibility for Hoeir

maintenange and care. “32_U.S.C.,-105(a)(1), 702,

- T10(e); J. 287-288. “Both. the Coilstitution and the

® See, e.g. 53 Cong: Rec. 4356. ; ;

10 Sae, ¢.g., Section 61, now 32 U.S.C. 109(6), infra, p. 65.: The

~ Act, as described by one of its supporters, “allows the State to re-

tain control of its organization whilethe Government aids in pre-_ .

paring it in efficiency.” 53 Cong. Rec. 4356. Oné of its oppo-

nents remarkéd that, under the propeséd legislation, “the |

_ State governors shall ‘continué to #dmmand these 48 little armies

while the Nation pays. a big share of the bill.’ ” 58 Cong. Rec. —

. = .

°é ‘ .. e Ne ae

; 4341.

aw “2 - * Tee ern OF eer, y'

Mito PORE RE {ews we GEO gE EEL Gh Eee

' gees A ; J oe. = . ° : 5 ‘

iw jh pee ty -

we, bs ad :

governing statute provide that the selection and re- _ |

eruitment of Guard personnel and the direet-supervi- . “

sion of their training and activities‘ are reserved to. the” ee »

States and to State officials, except for those parts of:

the militia “employed. in the. Service of the United |

States.’”’ * Constitution, } ‘Art. I, Sec. 8, Ch. 16; 32: ices

- UBC. 101(4) and (6); 501; R. 290. ih ae

In actual practice, therefore, State officials pete

ed the right to select and hire Guard personnel, to pro- .

Ne mote: and rete —* to determine. the amount of

TUTE EEE eee, j-

er Te ee ee 2 ee

- all Guard pee: : ,

Tha ranking officer of each State Guard is insanity

—ealled the adjutant general, who is a State official ap-

_ _ pointed under State law.. E. g., Md. Code, Art. 65,

/ + §4 9-10, p. 71, infra; see Hyde'v. United, States, 139 F.

Supp: 752 (Ct. Cl.). While the officé of attabend gen- °

eral of the State militia has been preseribed by federal- ©

_ statute since 1792,” the s statute itself makes elear that.

the office is a State office, with almost exclusively State

duties. 32 U.S.C. 314, pp. 65-66, infra. In its present”

form it’ provides that “There shall be’ an_adjutant

general in each ‘State * * *- [who] shall perfrom the e

duties: prescribed by the laws of that jurisdiction.” SS ee

32 U.S.C. 314(a), p. 65, infra,* “The statute provides

that the President shall appoint the adjutant general

of each territory -and_of the District: of - Columbia, °

thereby implying that. each State i iS -to aie ide itsown, *

* ™ Act of May'8, 1792, | Stat. 271. 3 .

.% ™ Originally, the statute provided that it would.be’ tie duty

} “to distributeall orders from’ the commander; -ini-chief of the

State to the several corps.” 1 Stat. 271, —_ a °

21 es

= ater to fill the post. 32 GS. €. 314 (b), _ Tie

only federal fae upon. A este ew

is to make retu

In mést States, the adjutant gen-

-eral is the advisor to, the governor on matters pertain-

ing to the tard (R. 294), and in’ many instafiees the

adjutant. sion is an officer Who is not federally ree-

ognized and who ‘receives pay exclusively from the 7m

State (R. 288-291).

The laws of Maryland illustrate the duties of the .

adjutants general and their relationship to the ®ov-

-emor. The office of adjutant general Yay be filled in

Maryland only by, appointment ‘of the governor with |

advice and consent of the State Senate (2 Md. Code, Art.

65, §9).°,The governor, who ‘is commander -in-chief

of the militia (Const. Art. II; Md. Code, Art.65,,5 6) -

may appoint the adjutant getieral to be chief of staff *.

(id. $9) or ranking line officer (id. § 10), in which

‘eapacity he would be “in. control of the Military De-.

partment of the State, and subordinate only to the:

Governor in matters pertaining to said department.”

Ibid. Thus, in Maryland, as elsewhere, the adjutant

general is subordiriate only to the governor of the ~

State, and not to any federal. official. And since the

., governor has the ultimate responsibility for the super-

, vision, diréction and control of Guard members in his

State, such military personnel cannot be considered

employees of the federal government for Tort Claims

Act purposes. ‘See Harris v. Boreham; 223 F. 2d 110°

(C.A. 3); Lavitt v. United States, 177 F. 2d 627

(C.A. =. ° “* ) ;

s and reports. to thes Seeretaries,.

which are, in — to be made available- to Congress...

» 82 U.S.C. 314(d).

—

| .- The ‘fact that the federal : ‘govérnment prescribes

‘conditions for federal support. does: not, mean ‘that .

Guard personnel are employees of the United: States

Sty "for Tort Claims: Act: purposes. For the federal gov- °

re erin rin out many of its objectives by means

of arran nts with independent contractors where-

by not only the. object to be attained and tke work

to -be-done_is prescribed but-stringent Standards and

detailed specifications are also enumerated. Notwith-

standing such indirect. governmental “eontrol’”’ over a -

contractor’s efaployees, the Tort Claims Act excludes

inne ents from the definition of “em-

* Nployee[s] the government.” 28 U.S.C. 2671, p. 62, -

infra; Strangi_v. United States, 211 F. 2d 305, 308 «.

_(C.A.-5) 5 see United States v. Silk, 331 U.S. 704, 712.

State employees under federally subsidized pro- *

y grams such as the Guard are analogous to employees

of independent contractors under cost-reinibursable

-eontracts. “In both situations the federal government

furnishes the funds, prescribes the objectives, fixes

standards and Specifications, and retains the right of.

inspection. -But both States and” independent con-.

basis, and retain the rights to/ supervise and direct

'tactors administer their nea on a day;to-day

their employees, to give work assignments,.to fix work-

ing conditions, and to select, promote and on

_ the employees.

There are a host of programs in ohiak the ‘fedeval

government supplies all- or most of the funds, but

which are administered by the States in accordance,

-- 23

with federal standards.” As J udge ‘Smith noted be-

low, the Guard is a “classic” example of a program

. in which. the Congress. has undertaken the financial »

‘. support of a state activity, in the national interest, on —

condition that the activity: conform. to the congressional :

.* enactments and the. regilations promulgated there-

under’’ (R. 720). The fact that a State employee’s

a] 1 Agricultural-research. “

___..| 9, Cooperative-agricaltural extension wetli s es

| 3. Agricultural sal eauigoaa ——

4. Donations of surplus agricultural commodities. “».

» 5. Resident instruction at oe colleges.

) 6. Airport construction. ;

7. Highways.

8. Civil defense equipment and supplies.

mye 9. Natural disaster relief. - © Hf

o] \10,, , School lunches. _

3 11. School construction Wi federally affected areas. ,

12. School operation and maintenance in ‘federally affected

areas. . | ~

13. Vocational education. Adee ty es 1

14, Public health services. &

"15. Construction of health facilities.

16. Crippled children’s services.

17. Maternal-and child ‘health services. ° .

18. Poliomyelitis vaccination. . een .

19. Public assistance. .

20. Child welfare services; «

21. Vocationa] rehabilitation.

22: Employment security. + Sb .

23. Low-rent public housing. oe | ; vere

24.°Slum clearance and urban renewal. :

y 25. Fish and wildlife restoration and management.

26. State and private forestry’ cooperation.

Seo Report of the Commission on Intergovernmental Rel,

tions, sh Cong., 1st. Sess., H. Doc. 198, June 28, 1955, p. 301;

AD ion of weidy-fide Federal Grant-in-Aid Progeans,

a report submitted | Commission on .Intergovernmental Re-

lations, June 1955, p. 178.

‘

income is derived from. federal funds should not make

him an employee of the United States for purposes of

vicarious liability under the Torp Claims Act.

_: 3. In rejecting a bill to extend the coverage of. the

Tort Claims; Act to Guard parsonnel, } Congress, in

— 1960, approved the decisions which fad held that the —

‘United States was not vicariously liable fo the negli-.

gent conduct of Guard: employees. The Béenate Re- -

id eee eae “pent iesath-abasiemealall a substitute-prepesal ‘te-pre-—--

ae ~ vide an administrative procedure: for the settlement

of tort claims arising out*of Gard activities observed

that “mentbers ‘of the National Guard not in tive

' Federal service, have been held not to be emplavees |

of the Unfted States within the meaning of the Fed-

eral Tort Cfaims Act * * *.” "8. Rep. No. 1802, 86th .

ee __,Cong., 2d- Sess. 100) of ram The committee ex-

= plained that “Tt]he ‘erunvet tKis matter lies iti’, the

fact that the National Guard is primafily under.

State control, ag opposed to Federal sontrol.” The

training of its members is primaiily that that. of the State, es]

except, of. course, when: the National Guard i is federal- .

‘ized or called into Federal service.” Jd. at p.4. The:

House Committee alsotobserve that.“‘it is not appro-

priate to grant. judiciak; relief against the Unit

States under the Federal” Tort Claims Act” in (this

situation because “Federal authorities do not have

command and control over. National Guard units and

members not in active Federal Service. ”** H. Rep. No. .

1928, 86th Cong., 2d Sess.. (1960), p. 4; see Hearings

before: Subcommittee No. 2 of the Hobe Committee on

the Judiciary on H.Ry 5435 and H.R. 9315 (1960).

Hence -Congress ratigied. the previous understangtig

5 or a , y .

of the oan that military personnel of the . ¢ Guard

‘were not covered .by the Tort Claims Act. ss

Indeed, the terms of the Port Claims ‘Act itself e

denionstraté that Guard members are ‘excluded. from

' its scope. That statute defines “employee of the gov-

ernment” to include “officers arid employees of any

]

y Federal agency, members of the military or naval:

R forcestot the United States” and others “in the Serv- .

_. __ __iee-of -the United. States. 28 U.S.C. 2671. At -the

| “time of the passage of jhe Tort Glaims Act, Section

38 of the National Defense Act, as amended, provided

that members “of the vai, ¢ Guard “shall jniot be in®™ *

the, active service of’ the ited . States except when

ordered therete” and that they were otherwise to be

Sdministered, armed and trained in their status as

the National _Guard—ef the various States." | * Since.

a the, present 10 U.S.C. 3078 expressly makes the-Army —

National Guard a “component of the Atmy”\only

“while in the service of the United States,” it seems

clear that Guard niembers are not “members of the :

military or naval forees of the United States” or

,°. otherwise “in the service of the United States.’’ The

* ¢larity of the statutory language, as,Aell as Congress’

adoption of the rule applied consistently. in the fed-

eral eourts beforé 1960, barS any claim (see Pet. Br. .

- 56-58) that military personnel, of the Guard are “em-

ployees of the governmen ” for Tort Claims Act |

| purposes. | } :

14 These’ provisions, formerly 32 U.S.C. 4, now appear in

somewhat: revised form in 10 U.S.C. 3495, 3079, 8495 and: 8079.

- 763-326—65-——-3 ,

B. CIVILIAN PERSONNEL OF ‘GUARD’ ‘UNITS ARE UNDER THE CONTROL _

, AND DIRECTION OF: THE, STATE AND WERE REGARDED ‘BY CONGRESS

AS STATE EMPLOYEES. a ;

In his civilian: capacity, inten McCoy was em-

ployed to supérvise the maintenance and care of ‘28

had been ‘assigned to’ the 104th Fighter-Interceptor

Squadron of ‘the Maryland Air National Guard (R.

. 681). Pay from federal funds’ for. employment in

this capacity was authorized by 32 U.S.C. 109, which

. Was originally enacted : ‘as Section 90° of the,National |

- Defense Act*of 1916 dnd which h has come to be known

airplanes which were owned. by the United States and a

as the “‘care akey” statute. Adine of decisions begin- +

ning with United States v. Holly, 192 F. 2d 221 (C.A.

10) has held that Guard personnel employed under this

Ey statute, ‘unlike military personnel, are ‘employees of

the United States for Tort Claims Act purposes, e See -

eases cited.at p. 16, supra. We believe that this dis-

tinction is - unsound, and that Guard personnel—

whether military or civilian—are, like other. State

_employees, outside the coverage of the Tort Claims

_ Act. Consequently, even if Captain McCoy had been -

acting solely im a civilian: capacity during the flight .

’ intvolved in this ease, his negligence would. not be at-

tributable to the United States.

. (1) The _statute and | regulations. afin. its present

foes, the “caretaker” statute authorizes the Secretary

“of the Army (for the Army National Guard). or the —

"Secretary of the Air Force (for the Air Force Na-

tional Guard) to spend funds allotted. for the Guard

“for the-compensation of competent persons to care .

for material, armament, and equipment’’ of the Guard,

and to perform ‘‘clerical” and “other duties.” 32 —

eo ©

US.C. 109(a), pp. 66-61: gL

———~as well as enlisted men may be sd employed ( $2 U.S.C.

os 709(@), p. ” 6T, infra) and the Sec atatries are author-

‘ized to “fix the salaries’? of such! ‘employees, and to’

“designate the . person. to employ thém.” 32 U.S.C. :

709(f), pp. 67-68, infra, ” Captain McCoy received pay ies

. under this statute as an air tecl#fician (R.-681).

- The regulations promulgated by the Secretaries pur- re

syant to the caretaker statute designate the ‘adjutants

general of=thée States , the°persons authorized ,to

employ. personnel the statute. NGR 51,’ par.

3; ANGR 40-01, p + ane , pp. 73-74, infra. The regula~

tions refer to the ployees so hired as “civilian person-

nel” of the’Guard. See ANGR 40-01, par. 5a; NGR

' 51,"par. 4b. “They. are utilized in the, administration,

supply, o raion, training, and maintenange of the’

Guard,’ ANGR 40-01, par. 2a. The authority to

" supervise and to discharge such employees, to

fix their rates of pay and to establish work ‘hours

As placed in the State adjutants — general, and .

* State: officials also determine promotions, grade and

~ status for the individual employees. NGR 51, par.

3; ANGR 40-61, par. 3b.* Federal officers haye

no eommand authority or control over these employees

and no federal officers or. agencies have authority to

"promote or discharge them, to give them orders, or to.

contro] or superyise-or pe their daily work (R.”.

_ 295-296). Civilian. personnel ofthe Guard hired un-

der the caretaker statute are not covered. by the fed-

a ptt

'. eral civil service statutes or the Federal Civil Service. ~-

Retirement System: The regulatiéns’ declare these

civilian employees of the. Air National Guard “to be

‘employees of the-State.” ANGRepar. 4; see also par.

aa, 2la. Accord NGR 51, ak Ab..

sence wiih —

With minor sy the sapiens rovide hit -

the civilian personnel of the Guard hiry under the’

caretaker statute are to be selected fron members of |

the National Guard of the State: They are to occupy

the military table of organization position most com-

parable to their civilian-positiop SO that they will per-

_. ° form duties in their civilian employment which they _

would be required. to perform in their military: status

if mobilized and: ordered into active service. N GR’

‘51, ‘par. 5a and de ;, ANGR 40-61, "See. \ par. 2b and

7 2c. These civilian personne? constitute, approximate-

ly 19 percent of the total personnel of the Air Na-

tional Guard and are generally “key personnel’” (BR. ,

292-293). A majority “of them are enlisted men, but

‘officers hold positions as base commanders, ‘training

supervisors, and supply and aagimevial a sore

(R. 298). , a

(2) History of- the statute. _'The ‘qcitae pro-

vision was. initially adopted as a part of the plan

y to. provide federal funds for the equipment and com-..

“pensation of the Guard when, in the National Defense

Act of 1916, it was determined to set federally ‘pre- :

serihed standards for the State. militia’ ‘and to use it

in place of a, federal reserve force. Section 90 of the |

1916 Act provided (39 Stat. 205-206) :

0° fe

'. Funds allottéd by the Secretary of War for thee ‘

: support of the National Guard shall be avail-

able * * * for the compensation of competent :

help for the care of the material, animals, and

equigment thereof, under such tegulations as

' the Secretary of War may prescribe :- Provided,

That the men to be eompensated, not to exceed °

five for each battery ee shall be duly en-

X :

sm ‘

<— . .

phe;

ing officer in ak ‘State, Tamir, ana’ the Dis-

: tri /of Columbia. 5;

It. ap ears om this initial ensetment that thé

caretaker statiite contemplated the use of federal

funds for the compensation of énlisted. members of

units of the Guard, who “were to be selected (“de-

. tailed”) by the commanding officer of each unit for

. full-time employment in caring for the unit’s equip- ~

ment. While ptoyiding for the expendituge of fed-

eral funds under federal regulations, the . statute

Se that ‘the persons: receiving tliem were to be-

members of the State. militia ‘selected: by a State offi-

cial (the commanding officer) to pef¥erm a State ©

function : (the maintenance and care. of the unit’s

equipment; Secs. 82-89, 39 Stat. 203-205, now found at

32 U.S.C. 105(a), 702 (a), (d), 710(e)). As originally

drafted, therefore, Section 90 clearly related only to

enfployees of the State. .That was the ruling of those

administering the Act .when its was new. 27 ee: ‘

Dee. 344, 345 (1920). ) Ss

~ Section 90 was amended sever ral times in is two

_ decadeés following its enactment to’inerease thé num-

ber of eal etakers and their finetions," but the -basie

~ 19 Act’ of ‘June 4, 1920, ch. 227, subeh. I, §-46, 41 Stat. 7835

_ Act of March 1, 1922,:ch. 90, 42 Stat. 401; ;-Act6F June 6,

1924, ch. 275, 85, 43 Stat, “471; ‘“Act-of "May 28, 1926, ch. 417;

$1, 44 Stat. 673-674; “Act of April- 21, :1928, ch. 397, 45 Stat.

440; Act. of June 29, 1935, ch. 207, 49 Stat. 392; Act of October

14,° 1940, ch. 875, $1, 54 Stat.” 1134. The Provisions were -

_ mevised and codified by’ thé Act of August 410, 1956, ch. 1041,

82, TOA Stat. G14. 3

om ‘ °

R : «

<i oe “30

relationships established by~ the statute ‘remain un--* |

} changed. “Two of the amendments are pertinent. to -

the problem presented here., In 1926 Congress au-—

_ thorized, _for - the first time, the compensation. of

‘squadrons, and to. one. officer per squadron. ‘The

Guard | officers for full-time civilian . employment.

Ny |

"Act, of May 28, 1926, ch. 417, §1, 44 Stat. 673, 32. /

- U. S.C. 709(d).. ‘The authorization. “was limited to air, .

purposes of the amendments: were to secure the more

. “efficient maintenance_and care ‘of airplanes, and .fo |

_ ‘provide “an officer constantly on duty * * * for the

supervision -of flying training.” H. Rep. No. 1031,

69th .Cong., 1st Séss., p. 3; .S. Rep..-No. 1785,

69th Cong., 1st Sesy,, P. 1. Thus, ‘thé first officers

- of the Guard to ie ‘a civilian or air ‘tech-

nician ‘status were to perform in that capacity

a function. (conduct of training) rescevéd to the

States by the Constitution. (Art. I, See. 8, el. 16) and ..

by statute (Section 91 of the National Defense Act of © _

‘1916, 39 Stat, 206, now 82 U.S.C. 501(b )). - Nothing |

in the--statute—or— -legislative—history indicates. that

Corigres3intended this State function to be: per- -

formed by a federal employee. It is, therefore, most —

reasonable ‘ to assume that in 1926, as in 1916; Con- .: -

gress considared’ the members of the Guard “de- = |

tailed” for caretaker employment’ “by -their organiza- ve

tion commander to be full-time civilian employees of

the. State, and not agents of the federal government.

The second. relevant amendment dealt with the’ stat-

“detailed’’ by thé’ commander of the organization

having custody of the equipment. In 1935, at the |

‘utory provision that the “caretakers” were to. be. -.

negok. . ‘

cettneicanpnitstmzsih Men traninipateinninigianitnaiatie

31\ ae

: “request of ‘the National quake Assépigtion wii the

adjutants general of the States, Congress ‘authorized .

the pooling of caretakers by providing that the Secre- _

- tary designate “by whom they shall be employed. oy

Act of Tyme 19, 1935, ch. 277, 49. Stat. 391, 392. The

legislative history of this amendment: shows that Con-

S 5 gress intended to allow the Secretary to designate only.

‘dated January 4, soe g par. 1. =

practice’ ‘and inter pr ation.—

the au-.

—— b U.S.C. 709 to engage ae | ¢

a5; for all pr on purposes, wide aa

State officials to ernployethe caretakers. The Senate

* committee report makes this intention clear (S. Rep.

. No: 635, ‘74th Sei Ist Sess. (1986), Pp. 2-2) came

: | phasig added) : ay

at + Section. 6 of S. 2710 will authorize the ad

i ing of National Gyard--caretakers. Under .

_. present law States are required. to select the

_. -earetakers from the junits that have the ma- |

., terial. Section 6 will permit. the. ‘handling

* under the: adjutant’ general or other proper

State official of the caretakers as a pool. * * *

% thing in the history . of, the amendment supports

_ thé inference (erroneously d awn by the Tenth Cir-

cuit in United States v. Holly,\192 F. 2d 221) that the |

' Secretary was thereby empov ered to choose: ‘eare-

‘ takers himself or, to designate a féderal official. to

‘engage in the selection of caretakers. , /And the pra

tice has consistently been for the appropriate Seeye-

tary to designate the adjuta general or some other |

2 |

an]

State official to perform this function, Eg, ie

(3) Administrativ

The actiial facts inxivolving the exercise

eiviliah. employe¢s onstrate that these Core

rol and

j ; % ¢ /

p= Jf fe: |

- we 32 - | 8

supervision of. the State. It should first be “noted

that the _full- time civilian employees of the Air Na- —

tional Guard constitute almost one-fifth of its total

personnel, and that they are utilized for the day-to-_

day | “administration, supply, operations, training and

maintenance’? of the ‘Guard. ANGR 40-01;.par. 2a;

NGR 51, par. 4b; R 293. The caretakers are char-.

acterized as the ‘Key personnel” of the Guard; and

they have bee authoritatively described as its “back-

+ bone.” * They are on duty in their civilian capacity

for a 40-hour work week, whereas the military mem‘

bers of the Guard meet only. for 8 or 16 hours’a month, ..

and ‘for a fifteen-day summer training period.”. Con- ©»

es. ' sequently, caretakers are the only active personnel of.

the Guard for the greater part of every year.

The National Defensé Act was intended to allow

“the State to retain control & of the Guard organiza-

-» tion. 53 Cong. Ree. 4356. DBater Congressional en-

actments were designed te maintain that relationship.

E.g., 8. Rep: No. 1795, 82d Cong., 2d Sess., p. 11.

If civilian enfployees of the Guard are to be considered

* Hearings be the Subcommittee of the House Appropgia-

- tions Committee, 8tth ig., 2d Sess., (1957) val. 4, p. 1303..

* 37 See, 92, 32 U.S.C. 502. Most Air National @uard units meet.

for tavo-days a month. The Maryiand 104th Fighter Squadron,

for example, met on alternate Saturdays (R. 695).

18 The retention of State control over some of the nation’s

armed forces has -been’ one of the -principal considerations in

favor of ret: lining the Guard in its present form, rather than

federalizing it. See Proceedings of 1944 Governors’ Conference,

91 Cong. Rec. App. 1006-1008; see also State memorials against

~ \ _ federalizing the National Guard..7 95 Cong. Rec. 1323, 1764,

\" 9915, 2976-2977, 3434-3435, 4906, 5015 5, 5090, 5288, 7215, 7468-

T1469, 7 565-1566; ef, 95 Cong. Ree. 7209-7211.

employees of the..federal government, as petitioners

contend, the federal government would ‘be in control -

of\the Guard of every State for much the. greater

portion of every year. Such a reading of Section-90

_ ef-the National Defense Act would be inconsistent —

- with the dorainant Congressional intent underlying ©

that Act. . emer o.

The Congressional desire to retain civilian Guard

-_persormel as State employees is also -demonstratef by

the fact that caretakers are deemed to be State? em-

ployees for Social Security purposes * and for pur-

poses of the payroll deductions for State retirement _

funds,” and for purposes of the laws administered . wae

the Civil Service ‘Commission."" Because they are not

within the federal civil service\ they are ineligible to

receive the disability, death and retirement benefits

provided by the Civil: Service Retirement System.”

— * 1942: U.S.C. 418(b) (5); H. Rep, No. 1698, 83d Cong.,

- Sess., p. 50; S. Rep. No. 1987, 83d Cong, 2d Sess., pp. 45-46.

“205 U.S.C. 84d; S. Rep. No. 2045, 84th Cong., 2d Sess4 p: 1;

see also.5.U.S,C. (Supp, TV) 84d and 32°U.S.C pp. IV)-

709(f) (concerning federal contribution to—State retirement

’ funds) ; H. Rep. No. 786, S. Rep. No. 70987th Cong., 1st Sess.

1 Anselmo Vv. Ailes, 235 F. Supp. 209 (E.D.N.Y.),. pending on

appeal as C.A. 2, No. 29428. Like other State employees receiving

pay in,whole or in part from federal funds, however, the-Hatch

Act does apply to them. 5 U.S.C. 118k, NGR 51, par. 8.-

2'To be sure, the Bureau of Employees’ Compensation awards -

such employees benefits under the Federal Employees’ Compen-

sation Act... However, the concept of employment under work,

men’s compensation acts and other remedial legislation is much

broader than the relationship which imposes vicarious. liability

under common-law agency principles. NLRB. Hearst Publica-

tions, 322 U.S. 111, 120-122; Cardillo v. Liberty Mutual Ins.

Co., 3380 U.S, 469, 481; O'Leary v- Brown-Pacifie-Maxon, 340. *

U.S. 504, 506-507. For similar reasons, Layne v. United States,

_— ae ee ~

Nor do, the civilian employees of the Guard con-

stitute a ‘ad separable group of employees. which

may appropriately be -assumed to be subject to some |

control other than that of the State. Civilian per-'

sonnel of the Guard’ receiving pay from federal

funds are, with a few minor exceptions, selected |

from members and officers of the Guard to perform

the same functions that they would perform in their

' military capacity. .ANGR 40-01, 1 2b; NGR : a

{ 5b; R. 296. ° The federal government sets standards

of federal recognition for both military and ‘civilian

employees which the Guard units and personnel must.

meet in order to receive’ federal support, “put the only ©

federal ‘sanction for failure to meet those standards

is the withdrawal, of federal support for the unit. R.

284, 289-290; 32 U.S.C. 108, 301, 305-307, 323.- State

v. Industrial ‘Commission, 186 Wis. 1, 6, 202 N.W. 191,

193. Unless and until the unit is called into. féderal

service, State officials operating under the State ad- -

jutants general have the exclusive right to command

and control the Guardsmen, both in their military | and —

civilian capacities (R. 312-317; see pp. 19-21, 26, 27,

supra). In each capacity, na adjutant general and

~ other State officials acting under the supervision and

direction of the governor, select from among qualified

candidates the person, to be enlisted and employed, and

they have the exclusive right to supervise and direct

295 F. 2d 433 (C he 7), certiorari Uenied, 368 47.S. 990, is not. in

point. Indeed, federal compensation uyder the. Act is awarded to

Guardsmen training in summer camp their military capacity -

(In the Matter of Eleanor? H. Barr, claiming as wigow of Ist Lt.

_ Robert A. Barr, deceased National Guardsman, 10 ECAB 206),

in circumstances where the United States would clearly not be *

held liable for:their conduct under the Tort Claims Act:

a“

- MVR

activities,.and to promote, demote, or discharge the

men. R. °95; ANGR 40-01, 13; NGR 51,13. In

_ neither capacity does any: federal dion or official have

‘ “:authority to give them orders, to control or supervise

or assign their daily work, or to promote or discharge

. them (R. 295-296).

. (4) Other'legislative considerations —Those charged .

with the administration of the caretaker program

have, from the time of its enactment, consistently con-

sidered civilian personnel, of the Guard to be em-

ployees of the States, and not employees of the United

States. 27 Comp. Dec. 344, 345 (October 12, 1920) ;

21 Comp. Gen. 305 (1941). This consistent admin-

. istrative interpretation has been. ‘commhunicated to Con- .

gress in various forms, “ineluding testimony pefore

appropriations committees. For example, in 1957, the

ranking air officer in the National Guard Bureau,

General Wilson, described the air technician program

as follows (Hefrings before the Subcommittee of the

‘House. Appropr lations Committee, eg Cone 2d Sess.

(1957), vol. 4, p. 1303):

. Our full-time employees ‘which we aie air tech-

_hicians are the backbone of our: ofganization.

They serve in a dual gapacity; as military |

members of the Air National Guard and. as

civilian employees of their respective States.

* & &

Similar ly; in regard to.a proposed air technician .

program for the United States Air Force Reserve, —

one general testified that it would be * ‘practically a

diiplication of the Air National Guard’ 's air technician

plan’? except for ‘‘the basic difference” that “the Air

N ational Guard technician is a State employee; but in

the Reserve, inasmuch as+this is a Federal job, he-

"36 i.

would be a civil service employee. ” Td. at PP. 998~-

Statutes fave ‘been passed on the basis of this ad-

‘‘nibiiatrative understanding. In 1954, for example,

_ the Social Security Act was amended so as to provide ~

" a’separate coverage group for “civ ilian employees of

National Guard units ofa State who are employed

- pursuant to section 90,” and to state that for such

_ purpose such. employees: shall -“‘be--deemed -to .be em- --

_ployees of the State.” Act of September 1, 1954, 68 ~

Stat: 1059, ameriding 42 U.S.C. 418(b)(5). That».

. * amendment was expressly: based upon the consistent ad-

ministrative interpretation that civilian personnel of

the Guard are employees of the States; both committee

» reports noted that “[t]he Department of Defense

: a not regard these-employees as Federal employ-)

-H. Rep. No. 1698, 83d Cong., 2d Sess: (1954, p.

ie: -g. Rep. No. 1987, 83d Cong., 2d Sess.’ (1954), a.

45-46. *

E ellie ‘even more indicative of the Congressional

_ understanding is the legislative history ‘of a- 1956.

statute which. authorized federal disbursing officers

to make®payroll -deductions for such employees for

State retirement programs. Act of June 15, 1956, .

70 Stat. 983, 5 U.S.C. 84d. - Although decisions of

two courts of appeals holding that such employees

_ were employees of the federal government for pur-_

. poses of the Tort Claims Act avere called to its .at- i

tention, as well: as the probahility that’ that issue

might some day be resolved by-this Court, Congress

- adopted the legislation because “[t]hese employees, al-*

. though paid from Federal funds, are considered to

be State rather than Federal employees.” S. Rep.

. No. 2045, 84th Cong;, 2d Sess. (1956), pp. 1, 4-5. See.

also Pub. L. 86-740, 32 US. ‘C. (Supp. IT) 715; Pub. L.

87-224, Sept. 13, 1961, 75 Stat. 496, 5 U.S.C. ( Supp.

IV) 84d and 32 U.S.C. (Supp. IV) 709(f) (concern-

ing contribution to State retirement funds) ; H. Rep.

No,.786, S. Rep. ‘No. 709, 87th Cong., Ist Sess.

In 1960 Congress adhered to its consistent policy |

of treating the civilian, as well as_ military ry, members- _———

of the-Guard, as employees. of. the States. It did so © -

in the very context of the Federal ‘Tort Claims: Act.

For the bill which it: refected (see pp, 24-24, sup -

* would have extended the cover age of: that Act to make

the “United States responsible for. the conduct of

civilian: as well as military, per sonnel of the Guard,” =

In adopting i inst’ “ad the recommendation of the Depart- -

ment of ‘the Army that the federal gov ernment meet

its moral obligations for the conduct of all Guard per-

sonnel, Congress euiacted legislation’ providing a com- .

_prehenhsive administrative, and legislative remedy. In —

effect, the amendment Authorized the Secretary of the

Air Force or Army to pay claims based upon the con- .

duct of military or civilian personnel of the Guard up-

to an amount of $5,000, and to certify claims in excess

of that amount to Congress for payment. Pub.. L.

86-740, 32 U.S.C. (Supp. = 715(a), 715(d), pp.

69-70, infra).

The legislative history of the bill makes it clear that

Congr ess deliberately chose to make the new amend- .

ment applicable to ‘‘civilian employees-of the National

Guard. ” H. Rep. No, 1928, 86th Cong.,- 2d Séss.

"8 Hearihgs before Subcommittee No. 2 of the House Committee

on the Judiciary on H.R. 5435.and 9315, 86th Cong., 2d Sess., p. 12:

“*

(1960), p. 4. and. the Congressional jshaiiniliil ttead

liability under the Tort Claims Act would be inappro-

priate because “‘the National Guard is primarily” :

under State control, as opposed to Federal con-

_ trol * * * ” (S.-Rep. No. 1502, 86th Cong., 2d_Sess.,

3 p. 4; H. Rep. ‘No. 1928, supra, p. 4) *—applies alike

to all Guardsmen, whatever their capacity. |

Petitioners rely—as did the Court of Appeals for

the’ Distict of Columbia Circuit—upon a statement

made by ‘the then Deputy Attorney General, in ¢on-

. nection with this legislation (Pet. Br. 48-49). A Iet-

ter of thes Deputy Attorriey General as well as the oral

; : testimony of a Department of Justice ‘official stated

that. any~ Jegiplation would be “unnecessary”’ with re-

spect to ‘Civilian employees because of the “unbroken

series of court decisions”’ holding the United States.

é liable for torts committed by civilian National Guard

employees. S: Rep. No. 1502, 86th Cong:, ., 24 Sess.

(1960), p. 11; Hearings before Subcommittee No. 2 of

the House Committes on the J udiciary on H.R. 5435 and

9315, 86th Cong., 2d Sess. (1960), p. (fe But the com--

mittees also had before them a-recommendation from

the Secretary of the Army which stated that the: cases

holding the United States Jiable for the negligence of -

N ational Guard caretakers were “at apparent variance

. * The Congouisiengil determination that the States, rather than

the federal povernment, had control over the National Guard —

- not in active federal service was made despite vigorous efforts

of the sponsors of the original bill to show that there was sufli- -

cient. federal control 'to warrant the imposition of tort liability

upon: the United States. Hearings before Subcommittee No. 2

of the House Committee on the Judiciary on H.R. 5435 and —_ Se.

86th Cong., 2d Sess. (1960) ; PP- 11-20.

! 4

Vee:

gS ENA

fr n

with the long-held views of the Somptriller General of

the United States *** * that such National Guard —

civilian employees * we are State rather than Federal:

employees,’’ and that “[t]he Supreme Court of the

United States has not- considered the question”’ so:

that “[t]here mo uncertainty as to -the status

of such employees with respect to coverage by [the

Federal Tort Claims Act].”” S. Rép. No: 1502, 86th |

_ Cong., 2d Sess. (1960), p. 6; H. Rep. No. 1928, 86th

Gong., 2d Sess. (1960), p. 6; Hearings before Subcom-

No. 2 of the House Committee on the J udiciary.

on H.R. 5435 and 9315, 86th Cong., 2d Sess. (1960),

p. 54. ‘The committee reports demonstrate that the

resulting legislation was based on the recommendations _

_of the Department of the Army. S. Rep. No. 1502, .

supra, p. 2; H. Rep. No. 1928, supra, p. 2. Hence it

cannot be : Said: that i in enacting the 1960, egislation Con-

gress presumed that the decisions pe itting recovery

“against the United States for the negligence of care-

takers were correct. Had Congress agreed. with the.

“ Holly cases that negligence of civilian personnel of the

National Guard-was covered by the Federal Tort Claims

-», Act, it would not have found it necessary:to provide ap

a administrative remedy for. claims- based: on such neg-

ligenee+—a remedy supplied by the 1960 legislation. In

according the same treatment to military and civilian’

- personnel, upon the reasoning that the Guard was under

State, rather than federal, control,"Congress apparently

did not accept the Holly line of decisions. |

In. providing that meritorious claims in excess of

$5.00 chased upon Ge conduct of Guard. a

federal government’s relationship to the National r

» Guard: through non-jyidicial remedies. °

. be certified to it for its consideration (32 U. S.C. ‘Supp.

IT) 715(4), p..70, infra), Congress has demonstrated

its preference w. handling’ such matters through, a

‘process akin to thé enactmerit of private bills. It

took this step despite the fact that a major purpose.

of the Federal Tort Claims Act has been to reduce the .

- burden caused by the introduction of private bills.”

Congress concluded, in short, that clairns founded

upon the“conduct of Guard personnel pl esented. a

special problem.

The issue presented by this casé——whether the

United States has assumed responsibility under the

- Tort Claims "Act for the conduct of National Guard

personnel, or has assumed it through some non-judicial :

remedy—is, of. course, a question of policy to be de-—

.termined by Congress. See United States v. Gilman,

347° US. 507, 511-513. In our view, the enactment

of 32°U.S.C. (Supp. IT) 715 shows ‘that Congress

decided to-meet the moral obligations created”by the.

(. THERE 18 N ION: AL.DISTINCTION, FOR TORT CLAIMS ACT PUR-

POSES, BETWEEN . ILITARY AND CIVILIAN PERSONNEL OF THE

GUARD " 7 | hee

As we have demonstrated at pp. 15-25, supra, mili-

tary personnel of ‘the: Guard have always been* char-

acterized by the: courts as State employees for pur-

‘poses of vicarious tort liability. This: characteriza-

tion is supported by the actual facts regarding the

- ® Feres vy. United States, 340 U.S. 135, 140. See also Dalehite

v. United States, 346 U.S, 15, 24-25; Indian Towing sc v. United

States, 350 U.S. 61, 68.

direction and control of National Guard members, by

the . language and: purpose .of the National Defense

-Act of 1916. and its subsequent amendments, and by

~ Congressional , approval of the rule that -such ‘per-—

sonnel are not employees of the United States. The

very same considerations apply with equal vigor to

civilian employees. of the National Guard. There is _.

" ‘no, material distinction, so far as Tort Claims Act ~

liability is concerned, between military — civilian

Guard personnel.

pe (1) State’ supervision and contra. —Civilian . em *

_ployees of the Guard are, as we have.shown (pp. 27-28, »

81-35, sup ‘a), employed, supervised and discharged by

. . . . officials responsible to the adjutants general ’of the.

* oe States or by the adjutants genera] themselves, who’

are, in turn,,. respansible solely to the State. governors.

They are answerable to no different authority than

are inilitary personnel of the Guard. The power —

_ granted. to the Secretaries of the Army and the Air

Force. to “designate the person to employ’? care-.

takers: is nething more than a limited authority to

. select from among State officials to act in-that capac-

ity. See pp. 30-31, supra; S- Rep. No. 635, 74th

Cong., Ist Sess. (1935), pp. 2-3." And the fact that

caretakers ate paid from federal funds certainly

does not distinguish them from military Guardsmen

- whose compensation comes from the same source.

The actual facts regarding direction and control of ~

caretakers fully supports the conclusions reached by .> ..

the dissenting judge in Courtney y v. United States,

230 F. 2d 112, 115 (C.A. 2): ,

766-326—65——4 - ae ‘ ‘A

[E]xamingtion of the’ Duteuse Act itself. re-

-veals that the special authority of. the Secre-

tary of the Army with respect to caretakers

- extends only to the power to fix their salaries

. and designate by whom they: are to be em- ©

ployed. 32. U.S.C.A. -§ 42. Apart from these

‘powers_he has no greater control. over care-"

. takers than -over enlisted men and. officers -of

~@ ° the Nationakiuard. -With respect to all mem-

bers of thé federally recognized National

Guard the Secretary has wide powers. to pre-'

- seribe regulations, but ‘these are merely , pur-

- guant to se federal government’s power to at-

tach conditions to the use 6f federal funds;

they do not indicate that members of the Guard

- have come under such control of the federal

government as to be its servants. The Secre-:

tary of the Army himself. would have no. au-

thority to issue an order directly to an officer

or member of the Guard nor to the caretaker

- involved here. He may merely prescribe regu-

lations to which the States must adhere if-they .

wish to continue to receive federal funds for

the employment of such caretakers.” * * *

In.shoxt, the relationship between the federal gov-

ernment and Guard caretakers employed ‘under 32:

U.S.C. 709 is similar to the relationship between the

* government and military personnel of the Guard, and ~

both are analogous to employees of independent con-

- tractors svho do work for thie government. The au-

*6 Indeed, even tltis description érrs in favor of federal con- 7

trol. While the amount of federal. funds payable to certain

Guard personnel ‘under 32 U.S.C. 709 .is fixed by the Secre- *

tary, State officials have the authority - “to fix” the actual

“salaries” paid to such employees, and do in fact: fix that sum in

- amounts different from the amount of: fedefal=funds authorized.

ANGR 40-01, par. 3b; NGR 51, par. 3a; R.. 293-294.

43 Shey

: thority ¢ to prescribe cunditidne and minimum stand-

.. ards is entirely different from the authority to puper-

vise and control, .

(2) The language and purpose. e the. statute.—

Nothing in’ | Section bad of the National Defense Act

“

oq a ttt

nel which the courts have drawn. The. aauialene: pro-

vision “was adopted not to create positions for the

execution of federal functions but to authorize pay- .

fhent from federal funds for the. administration of

State duties, just as the federal payment of military

personnel was a means of “subsidizing the’ State-con-

‘trolled militia. " Although title to the equipment and —

_ supplies which was to ‘be administered by caretakers —

remained in the United States, the statute contem-

ie plated the States’ assumption of responsibility for its

- maintenancé .and. care. See Sections 82-89 of - the |

"National Defense. Act of 1916, 39 Stat. 203-205, 32

U.S.C. 105(a) (1), 702 (a) (d), 710(¢). This appears .

clearly from the original legislation which empowered

~ the States’ unit “commanders” to select the caretakers .

from among the enlisted.men in their unit. In ad-

dition, the legislative history indicates that Congress —

-- intended that the caretakers would carry out “func-

tions which could only be performed constitutionally

by the States, sucheas the’ “supervision” or “training” ©

‘of Guard members. H. Rep. No. 1031, 69th; Cong.;

Ist Sess. (1926), p. 3; S. Rep. No. 785, 69th -Cong.,

1st Sess. (1926), p. 1. Hence there is no implication

in the language or purpose of the caretakér provision

that those employed under the authority of that statute

44 w

_ would be employees of the United States for any pur-

- pose: ~whatéver.

(3)- ‘Subsequent Clohigieetiondt action Congress has :

never indicated: that it‘consideéred civilian Guardsmen ;

to be anything other than State employees, just as it

‘has for military Guard personnel. in enacting 32

U.S.C. 715 in 1960, it provided an administrative, "ia

' Yemedy for tort ‘claims against. the United Stat

‘attributable to the negligertce of military or ‘civilian

personnel of the Guard; it did not distinguisk be- -/ *

— tween caretakers and other Guardsmen, although the ‘

cases drawing a. distinction were-called to. its atten- _

tion. .For. other purposes'as well, as we have demon-

strated, (pp. 35-40, supra), Congress has gr ouped éare-

é takers with military personnel -and considered b

to be State employees." |

(4) The court decisions —Having no basis at alli in

“the actyal’ administration of the ‘techni¢ian program

or in the. prior or subsequent legislative consideration

of the caretaker provision,. the dichotomy between

military and @vilign Guard personnel is traceable ~

entirely to a gingle decision of the Court. of Appeals’

_ for the Tenth Cireait—United States v. Holly, 192 -

“F. 2d 221—which, proceeding from erroneous assump-

tions, held that civilian personnel were meant to be dif- _

«ferent. from military Guardsmen: and that. tliey were

employiges of the United States. The gfolly ease hag

- been followed : ‘in: four other circuits.” We -believe

21 Elmo v. United States, 197 F. 2d 230 (C.A. 5); titi

States v. Duncan, 197 F. 2d 233 (C.A. 5); Courtney v. United

States, 230 F. 2d 112 (C.A. 2); United States v. Wendt, 242

F. 2d 854 (C:A. 9): United, States v. State of. Meryient, for

. A

(ei he without any

rning statute / ‘or

government to thes employ¢ es,”

was its, assumption/ t

f tant Gen¢ral, the Secretary of the rmiy and the

fr og he Nation ye

a. ~ over ‘the work / of the’ caretaker, Aneluding his em-

. ployment ane ‘discharge. ” 192 F. 2d at: 223. The

same. err ‘oftegus assertion was im aie by the District’

Nc gaaN Ie, Bl et 1013) +The. functions lodged by th

of 2 a Cireuit in’ its opinion in the Meyer case

‘+ United States in the State Adjutant General ‘did. not

dependent i of the gov- by

the relationship of the ‘toperal ;

' The. basic mis oat of the Holly Ancintt a7

en “ft ]hroug] . the, te yaya 6

ard ureau have/eomplete aos ie

serve to supplant this right of control. in the. United ws

States, though it may be said to have been aneillary

‘thereto.”’. As we. have demonstrated at pp. 20-21

‘supra; the adjutants: general of th¢ States are ot

responsible to the Secretaries of thie Army or

Air Force; their sole responsibility’ i is to the ¥e

or other executive official’ of the - State.

supervision exercised by ‘the adjutant ge eral is ex-

¢lusively State supervision. * \ fe

‘The court in Meyer, supra also relied upon: its

belief that, because, a civilian £m oyee of the Guard

is ‘paid by” the United States, “the ultimate right of

. control over him”. is-in the ited States (322. ¥F; 2d

at 1013). But that ar t goes too far. For the

the Use of Meyer, 322 F.2d A009" (C.A.D.C.), paitine no mo~-

“tion for leave to file peti on, for rehearing of denial of portent,

— 543, O.T. 1963.

gy °

oe A

ye , ‘ultimate ae of eater” lodged’ in the United

"States ‘by virtue of its paying me bill on’ specified

- conditions is no greater in ‘of civilian per-

sonnel than’in the case of Guard personnel in their

. military capacity, or in a host of other federally subsi-.

dized programs administered through the ‘States or

through independent contractors. And, as we have

shown above, the employees éf the®States or of.

independent contractors are not empl®yees of, the

United’ States within the meaning of the Tort Chims

Act, notwithstanding the right of control ‘‘in an ulti-

mate sense”. (322 F. 2d at 10135 which alw aye rests

in the party who pays thebill. _

The Tenth Circuit in Holly also. apparently -believed

that the authority to employ caretakers was. initially .

vested in the Secretary of the. Army or the Secretary ;

_of.the Air Force and that ‘it was “‘delegated”’ to the

adjutants general of the State by regulation. 192 F. |

* "2d at 222.*. This is simply”a mistake of fact. The

_ statute authorized the Secretaries to “designate” the

‘persons to employ the caretakers, and, as we have

shown (pp. 30-31, supra), this authority was limited to

. designations of State officials. The. federal officials"

were never granted authority to employ the care-

takers or to appoint other federal officers to carry out

~ that frinction. Lastly, we note that the maintenance

_ and eare of federal property assigned to the Guard is

not, as the court i in Holly apparently believed, a federal

ee eS Ss a

* This misconception may have been due in part to an; un-

- fortunate choice of Janguage in the regulations themselves.

See, NGR 75-16, par. 1, Pet. Br. p. A-5. Similar language is.

used in ANGR 40-01, par. 3b.

function, but j As the function and responsibility o of the

States. 32, U.S.C. 105(a), 702 (a), (d), 710(c). :

‘We submit, in summary, that the Holly case was

wrongly decided, as were the ‘subsequent decisions re- -

lying on Holly as authority. Neither Holly nor any :

later decision articulates a. rational basis -for distin-

guishing between military’ civilian National

Guard personnel for Tort Glaims Act purposes. Pe-

titioners’ brief in this Court suggests no reason’ for

Such a distinction, and we ‘believe that none exists.

| IL. | <

_IN ALL EVENTS, THE UNITED STATES IS NOT LIABLE FOR.

THE PILOT’S NEGLIGENCE BECAUSE HE WAS ACTING IN

A MILITARY CAPACITY, UNDER THE DIRECTION AND CON-

. TROL OF THE STATE OF MARYLAND, AT THE TIME OF y

THE. COLLISION

We have argued above that members of. the Guard

are not federal employees in the sense of the Tort

Claims Act, whatever the activity, military or ¢i-

vilian, in- which they may he engaged. Even if they

could properly be deemed fedetal employees in some

limited ‘or. special sense, .¢.g., becatise they .are ulti-

mately paid out of federal funds, that would not

answer'the qriestion of the United States’ responsi-

-bility for torts committed’ while they were under

the actual direction and supervision of State of-

‘ficials. We have adverted in Point I to the con-

siderations which make plain that State officials do

control members of the Guard in the per rormanee of

their various duties. In addition, it is clear, as a

matter of Maryland law, that an employer is liable

)

F P 7

> ra

6 eine

> fe

for the acts of his servant only: on those occasions

when he has the right, to supervise and direct him.

This reenforces the argument that in no meaningful

sense was Captain McCoy a federal employee. -

Here, we argue additionally that even if it could

be said that, he was a federal empityee at such times

as he performed in his civilian capacity, the fact of

the matter is that the flight which led to the collision

“was conducted primarily in his military capacity |

_and was under the exclusive control of State officials

s and officers of the Maryland Guard. Hence, under the

Maryland law of. respondeat superior, which contrels——*—_

this aspect of the case,” the United States i is not liable. |

- A. UNDER THE APPLICABLE LAW, ONLY THE EMPLOYER HAVING THE

RIGHT TO CONTROL THE PILOT'S FLIGHT MAY BE HELD LIABLE ~

The law of Maryland, “like the law of most other .

States, imposes vicarious tort liability on-an employer

only if he has the right to supervise his employee

in the very activity. which gives rise to the accident.

E.g., Henkelmann v. Metropolitan Life Instance Co.,

180 Md. 091, 26 A. 2d 418; Gallagher’s Estate v. Battle,

209 Md. 592, 122 ‘A. 2d 93, certiorari denied, 352 U.S._-

894; Keitz v. National Paving &: Contracting Co. -

214 Md. 479, 491, 134 A. 2d 296; Restatement, Agency

2d, \ 220, comment d; zd. § 9977, This rule ts based

upon the unfairness of imposing liability upon one

person for the activities of.someone over whom. he

has no control... Henkelmann vy. Metropolitan Life

Ins. Co., supra, 180- Md. at 598-599. Consequently,

if an employee is loaned. by his regular employer.

2? See Williams v. United States, 350 US. 8573. Fries v.

_United States, 170 F. 2d 726 (C.A. 6), certiorari’.denied, 336

US. 954: Callaway vy. Garber, 289 F. 24171 (C.A. 9).

49°

‘

to another employer, and the latter has the exclusive

‘right to supervise and direct the employee’s activi-

ties, the regular employer is not responsible for the

injuries arising out. of such activities. Bauer v. Cakic,

" 166 Md. 387, 401, 171 Atl. 713; Salowitch v. Kres,

147 Md. 23; 127 Atl. 643. Sinnilactiy. if an employee is

shared. by two employers who agree that control: -

the’ employee is to alternate between them, the em-

ployee “‘is the servant only of the one for whom

- he is acting at the moment.” Restatement, Agency ~

2d, § 226, comme at b, illustration 5.” ‘

Assuming, for purposes of the present argument,

that Captain MeCoy was an employee of’ the United

States when he .was engaged’ in caretaker duties, he

was also—under the consistent line of , decisions ‘pre-

viously discussed (pp. 15-25; supra)—an employee of:

the State of Maryland while engaged in a military ca-

pacity. Hence he Was a **shared servant,’’ with the

United States and Maryland alternating as em-

ployer. Or he might equally be treated as a

servant of the federal government for the greater

portion of each week (while executing his ful -time

duties as a civilian employee hired under 32 ®S.¢.

709), but on loan to the State of Maryland whenever

needed for military duties. In either event, thé de-

terminative fact in imposing liability under the

doctrine of respondeat superior would be whether: —

the federal government or the State had. the right

If both employers retain concurrent authority to “control

the activities of, the employee and the manner of their per-

formance, liability may. be imposed on bot employers for the

same conduct. "Keita Vv. National -Paving & C ontracting Co.,

214 Md! 479, 134 A. 2d 296; see se ttc a » Agency 2d, § § 226,

comment b, illustration 4.

to control and direct the particular activity which

" gave rise to the accident. |

The decision -in Fries v. United States, 170 F. 2d

.726 (C.A:+ 6), certiorari denied, 336 U.S. 954; ilius- .

tratés this principle. In that case, an employee of

the Public Health Service of the United States was —

loaned to a health project, which was to be carried out

under the direction and supervision of a local health _

officer. It was conceded that the employee, was gen-

erally, in the employ of the United States within the

méaning of the Tort Claims Act and that federal

funds had been utilized in carrying out the project.

The court held, however; that because he was under -

the exclusive direction and supervision of the local

__ official, he was on loan to the local government. Ac-

~ cordingly, under the applicable Kentucky law, the

United States was not liable for > his _ negligent |

conduct. wp 5

Also in point is the recent débision in Pattno v.

United States, 311. F. 2d 604 (C.A. 10), -gertiorari

denied, 373° U.S. 911. In that case, the plaintiff

sought to impose liability for a mid-air collision upon

‘the United States for the asserted negligent acts of

two pilots of jet fighter airplanes owned by the United . 7

States ‘but assigned to the Wyoming. Air National _

Guard. One of the pilots, in addition to being an offi--

“The relevant respondeat superior law of Maryland is the ,

‘same as the law of Kentucky. Beth condition’ the imposition

of vicarious tort liability on a right to control the very activity

giving rise to the injury. See Henkelmann v. Metropolitan

Life Insurance’ Co., 180 Md. 591, 601, 26 A. 2d 418, 423, relying

upon Leachman. vy. Belknap ‘Rerdwere & Mfg. Co. 260 Ky.

123, 84 S.W. 2d 46.

Men a

cer in the.Guard, was a full-time civilian air tech-

nician employed in that capacity av 1°flying training

instructoy” 311 F. 2d at 606; P. R, 32." At the time

of the accident he was engaged in a training flight, |

Was receiving pay as a civilian employee (311 F. 2d at

605), and was performing the function for which he

had been employed in a civilian _capacity—flying

training (P.R. 60-61).

While holding that a civilian employee of the Guard

réceiving pay pursuant to 32 U.S.C. 709 is’a federal

employee," the court refused to impose liability upon

thé United States. it. said that the pilot was _ per-

forming the flight under the exclusive control: and

command of the State and was carrying on the busi-

ness of the State. Hence, under the respondeat su-

perior principles of the law of Wyoming, the State

' was the only employer which could be held vicariously

liable for the pilot’s negligence, ee

The only decision: to the contrary is United» States

| Vv. State of Maryland for the Use of Mer yer, 322 F. 2d

1009 (C.A. D.C.), certiorari denied, 375 U.S. 954,

pending on motion for leave to file petition for

Tehearing, .No. 543, O. T. -1963, which is the com-

panion decision to this case -and arose out of the

‘ same collision. The District of Columbia Cireuit

*? The other pilot was an officer of the Guard, and not a

civilian employee. In accord with the consistent holdings cited

at pp. 15-16, supra, the court held that. he.was an employee of the

State and not of the United States. 311 F.2d at 605-606.

8 “P.R.” references are to the printed record in Pattno, a

“copy of which has been made available to counsel for _—

tiorier iri this case. +:

**We disagree with that holding ‘for ‘reasons stated at

pp. re supra. ° °

aaa the ‘lente of liability on the United States

in that case on.the misapprehension that “‘in an ulti-

mate sense the right of control was in the Federal

* Government at the time and in the circ uneces of

this accident.” 322 F. 2d at 1013. - It’ stated, i in that

connection, that the United States’ control over Na-

tional Guard employees is analogous to the direction

which a plant owner has over his employees through

tt foreman. . Ibid. Actually, however, the regula-

“tion imposed. by the United States over the activities

of Guard units is similar to the type of control exer-

ah . eised, by’a* party ov er the conduct of the employees of _

an. independent contractor. The State officials—be~

they: the governor or the adjutant general—are like

the executive. officers of an independent contractor

which has been given certain specifications to meet

but retains ultimate control over the superv ision and

direction of its employ ees, as well as over their hire

and discharge and _ their working conditions. See

pp. 22-24, supra; R. 294-295. Since, as we shall show,

no federal official -had_ the right to direct Captain - —

McCoy’s superiors ‘‘in the performance of his work

’ and the. manner in which the.work -is to be done”.

7 ¢Keitz v. National Pauing & Contracting Co., 214 Md.

479, 491, 134 A. 2d 296) with respect to the flight

_ which resulted in the collision, the United States did

not have any “ultimate right of eontrol.’”’

B. THE FLIGHT WAS CONDUCTED PRIMARILY IN THE PILOT'S MILI-

TARY CAPCITY AND IT WAS SUBJECT TO — EXCLUSIVE CONTROL .-

OF ST. ATE OFFIC I ALS

Captain MeCoy, who sought permission to make the

flight in question, and Lieutenant Colonel Kilkowski,

}

,, ~ — . ‘

Se ve she ee "

53 )

his commanding officer, who authorized and directed

it, intended and understood that it was “a proficiency

flight’’ (R. 108, 150-151). That-understanding was

confirmed’ by the: flight order, which was signed by

order of the commander of the 104th Squadron (R.

209), and by the flight clearance, which revealed. that

the purpose of the flight was ‘general training, Op-

erational training” (R. 207, 595-596). The district

court so recognized, ‘and found that a purpose of the

uncontroverted testimony is that “proficiency” i is mili-

tary: terminology for “training,” and a proficiency

flight is the same as a training flight (R. 161-162).

Accordingly, the*findings of the district court them-

selves establish that the satatl in 1 question was a train-

ing flight.

It is equally clear (and is’ apparently con-

ceded by petitioners) that when an officer pilot of

the Guard who is also a civilian air technician flies

an airplane on a training mission, he does so primarily

in his military capacity.” Only officers of the Air

National ‘Guard and other military personnel are

—

flight was to maintain proficiency (R< 695, 697). The

authorized to fly their airplanes, and these may fly —

only on valid military orders *(R. 304, 697). Indeed,

the only reason Captain McCoy was paid in a civilian

rather than military capacity for the flight in-question

was that he had already flown the maximum number

* Captain McCoy, Col. Kilkowski,, and a ranking. officer of the

*Air National Guard all so understood and testified. ‘See p. 5,

supra. Captain McCoy’s testrmony is ty pical (R. 117-118): “I

would not be on a flight in duty as & maintenance chief. I would

be on the flight i in my duty asa captain in the Air National Guard

* * *. It is my belief that as an air technician, when I get in an

airplane I become’ a Captain in the Air Ni ational Guard aoe ee

ee eh ae he iy

of bien for which military pay was available R

697 ; see R. 153-154). ;

The order authorizing the flight in question and

' directing the route and time of departure and

was signed. by order of the , er of the 104th

S an officer of the Maryland Air

National Gianni and whose authority was derived from —

the Governor of Maryland through the adjutant gen-

eral (R. 209, 293-295). No federal officer or em- -

ployee was empowered to authorize or direct the flight,

prescribe ‘its route or time of departure, or otherwise

control‘or supervise Captain MeOoy’s piloting of the

airplane.

2 qué orenee =,

- While the flight in wecailins had no specific mainte- ~ 3

_ nance function or purpose, it is: true that Captain

- McCoy, in his: civilian capacity as ‘air technician,

observed the performance of «the aircraft and its

equipment, as well as other mechanical aspects of the |

- flight. This, as his commanding officer stated, was “a

secondary portion of any flight’”’ (R. 163-164 696-697).

This ‘‘secondary’’ feature was related to his. position

as a civilian employee of the Guard. The district court

(and the court of appeals in the Meyer cases) relied

upon this dual aspect in imposing liability upon the -

United States. 322 F. 2d 1009; R. 697; 699..

This circumstance does: ake however, suffice to~

‘render the United States liable for the pilot's negli-

gence. For both the training and the maintenance .

‘aspects of the flight were the responsibility and business

of the State. 32 U.S.C. 501(b), 105(a), 702 (a); (d),

710(e). And, as we have shown, the critical question

1 2

: ay -

under Maryland-law (as under the Jaw of most States)

eS Seas: “is whether the employer on whom liability is sought to

be imposed ‘has the right to direct and control the —

.» performance of the task which gave rise to the in-

jury. Only State officials, acting in their capacity as

officers of the Maryland National Guard, had the au-

| “ _ thority to tell Captain McCoy when, where and how to

fly the airplahe (R. 304). Moreover, the primary ‘an

official purpose of the flight was as a military train”

ing flight—to maintain Captain McCoy’s proficiency. -

As Judge Hastie observed below, the fact that Cap-

tain McCoy might put to use in his, civilian mainte-

nance capacity the information he obtained on the

flight “did not change the basié character of this

training flight” (R. 725.) : hg

*° Petitioners’ contention that the Maryland “presumption of -

agency arising out of the ownership -of the airplane imposes

liability upon the United States (Pet. Br. 51-52) is wholly un-

tenable.. In the first place the presumption was rebutted by

the conceded fact that the airplane in question here’ was perm- |

anently assigned to the Maryland ‘Air National Guard upon

- manufacture, more than one and a half years before the acci-

dent in question (R. 678). Secondly, the uncontradicted _

_ ®vidence as to the command ‘and controf over Captain McCoy

would, under any circumstances, rebut the presumption.

* Petitioners’ reliance upon the certification by Col. Ebaugh -

~ _ to the Bureau of Employee Compeihsation of the Department

of Labor that Captain McCoy was, working as a civil employee

of the United States and: not as a member of the Maryland:

National Guard. The court of appeals properly ruled that”:

this admission was not binding or conclusive {R. 724). ‘Moreover,

Col. Ebaugh conceded that he had no personal knowledge of the

facts concerning the flight in question (R. 243). Regardless of

the admissibility of the certification, therefore, it clearly had no

probative weight in face of the uncontradicted testimony . of.

persons who did have personal knowledge of the facts in question.

" - In this claim, petition

who are the plaintiffs in the Meyer cases. Brief of °

Amici Curiae, pp,17-21.- “This newly asserted claim is.

TIl

. *

THE DOUSEINE OF COLLATERAL ESTOPPEL IS INAPPLICABLE

- "IN THE. CIRCUMSTANCES OF THIS CASE,

In their brief on the merits in this Court, peti-

tioners assert’ that, under the doctrine of collateral -

_ estoppel, the judgment i in the Meyer cases determined

judgment be entered for petitioners (Pet. Br. 59-60).

are supported ‘by the amici,

all the material. mae this case and required that

insubstantial both because it is untimely and because

_ it is based on erroneous. premises regarding the law

of collateral estoppel. .

A, THE COLLATERAL ESTOPPEL cuavit COMES too LATE |

A‘claim of estoppel by j judgment, like the assertion

of res judicata or the defenses of release or statute

of limitations, is not jurisdictional and must be as- -

serted at the appropriate time in order to be heard.

Rules 8(c), 12(a) and 12(h),: Federal Rules of Civil

Procedure. The final district court judgment in the >

Meyer cases preceded the judgments in this case by.

. ‘Several, days, and the decision of the, District of

Columbia Cireuit\was issued nine months before the

' Third Cireuit’s decision in this case. Petitioners

did not, however, assert that they. were entitled ‘to

‘judgment because of the collateral estoppel effect alt\

the Meyer judgments in. either the district court or in’

the court of appeals Xuntil ‘after the decision of

the court of appeals. - . Indeed, in requesting permis- —

sion to proceed on the basis of the record ‘printed in

. 57

the Meyer cases, petitioners expressly; disavowed any

‘such elaim. They said, ina motion filed with the

Third: Circuit, that ‘they “do not eoncedé that the.

decision in the other cases are res judicata here.” *

Moreover, although the ‘petition for a writ of cer- -

tiorari alluded to the doctrine of collateral éstoppel,.

. the.two questions” presented. for review were not at

_ all related to its application to the facts of this case.

(Petition, p. 3). The failure to raise >the question in ..

the court of appeals in a timely rhanner and squarely

to present it to this Court: bars petitioners | from as-

serting it at this late hour. See California v. Taylor,

353 U.S. 553, 556, n. 2; Lawn v. United States, 355 U.S.

339, 362, n. 16; Rule ACT) (ce) of the Revised neat: of

this Court. ihe

B. (THE COLLATERAL ESTOPPEL CLAIM IS UNSOUND ON THE MERITS

Petitioners’ contention is that the United States

is bound by the judgments inthe Meyer cases. on all -

issues of fact and law resolved there, notwithstanding —

the faet that the plaintiffs in those, cases-are total |

- strangers to the petitioners here. Petitioners acknow]-

edge that a judgment favorable to the United States -

~-would not have bound them’ in this litigation, but

. they contend that “mutuality” is no longer an ‘essen-_

tial*element for collateral estoppel. Pet. Br. 59-60;

_ Brief of Amici Curiae, pp. 18-20. ets

- petitioners’ conténtion is valid, it would have an ;

' obviously unfair “effect: on defendants in multiple

injury accidents. Passengers in a bus involved in a

= Appellees’ motion for leaveto file five photocopies of ex- -

hibits, to consolidate the appeals and for a twenty-day exten-.

sion, in C.A. 3, Nos. 14041-14042 —— 11, 1963), P 3.

* 768-826— 65—— ff : .

2 treo ‘ a

‘ 658

_. highway accident might, for example, sue the driver of 7

the other vehicle individually. A. judgment exoner- /

1 08

ating therdefendant: from liability i in any. one or more

actions would nét ber a subsequent suit by other pas-

- gengers. But once ‘the defendant lost any one action,

othe remaining passengers, according to petitioyers,

could assert that j ent as binding in their a¢tions.

under the principli s advocated hers by petitioners.

There can. bé! If e justification fpr such a nove

rule, at least.:in ile broad form suggested: by | oat

tioners. The very cases cited ‘by petitioners and the

<- ici curiae demonstrate that “the right, question or

'- fact determin in the first proceeding should “be

taken as concl sively established”’ only “in a subse-

2°

Southern: Pacific Railroad Co. v. United-States, 168°

U.S. 1, 48-49. (Emphasis added:) Seé Partmar —

quent suit be sho the ‘same parties or their privies.”

Corp. v. Paramount Corp.,.347 U.S. 89, 91, 101-103;

Lawlor v./National Séereen Service, 349:U.S. 322;Crom- -

well v. County of Sac, 94 U.S. 351, 352. _ The operation

of collateral estoppel is justified only when the policy.

“that there he an end to litigation’’ overrides further ~

iry into. the facts or law; its primary justifica-

tion is that “matters once tried shall be considered for- -

ever settled as between the-parties.”” Baldwin v. Iowa .

State Traveling Men’s Association, 283 U.S. 522, 525.

; (Emphasis added.) See Restatement, Judgments,

§ 93(h), comment d.

| / The cases that have held that lack’ of etibatins is

not a bar to the assertion of estoppel by judgment

"have; by and large, involved the defensive’ use of col-

/lateral- estoppel-ahere the second defendant derived

‘v

a p , \

; Oe op 7 ae a |

his alleged liability from the exonerated defendant—

—OGn, a master being sued after his servant was" ex- / -

onerated. or ani indemnitor after’ the indemnitee was

. found not liable. E.g., Bernhard y. Bank of a.

19 Cal. 2d 807, 812-814; Restatement, Jud

-§ 96, 99. The same rule , would not appl yee etmit

" affirmative uise‘of a judgment by a stranger against a

‘defendant. Who has once been held liable. E g., Ne-

varov Vv. Caldwell, 161 Cal. App. 2d 762, 327 P. 2d 1 on

“Elder v. New York Pa. Motor Express Inc., 284 N.Y.

350, 31 N.E. 24 188." -° | :- 5

CONCLUSION

' For ‘the foregoing reasons, it is respectfully sub- ;

mitted that.the judgment of. the court of t appeals :

should be affirtived. ;

“Arcipatp Cox; => hk

es Solicitor General.

BES eR “JouHN W. Dovaras, ~

& } _- Assistant Attorney General.

2 Naraan LEWIN, ; >. auee

. Assistant to the Solicitor General. i:

| Morton HOLLANDER, =

Davy L; Ross,

: Attorneys.

/asnvany 1965,

*° We have substantial doubts about the validity of ‘the rul-

ing in regard to ‘collateral estoppel in United Air Lines v.

Wiener, 335 F. 2d 379, 404405, (C.A. 9): - But even the deci-

sion in that case did not deprive the defendant of its right

to appeal on mee: questions.

763 326—-65——-4

APPENDIX

jie The Constitution of the United States provides

in pertinent part:

Art. I, Sec. &

The Congress shall have Sow we * 7

To provide, for calling forth the Militia to

execute the Laws of thé Union, suppress Inisur-

rections and. repel Invasions ; ;

To provide for organizing, arming, and i

eiplinthg the Militia, and for governing. such

Part of them as may be employed 1 in the Service

of the United States, reserving to the States

respectively, the Appointment of the Officers,

and the Authority of training the Militia ac- —

cording to. the discipline prescribed by Con-

yoress; ***

Art. TI, See. 2

The President shall be Cimmniiiniihes in Chief

of the Army and Nayy of. the, United States,

and of the Militia of the several States, when

ealled into the actual Merve. of the United

States; * * *

2. The Federal Tort a 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 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 or toss of property, or personal Pi.

injury or death caused by the negligent ‘or

wrongful act,or-omission of any a a of the

! (61)

Government while acting within the scope of his

office or employment, under circumstances

‘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 omis-

sion occurred. a

§ 2671. Definitions:

As- used in this chapter aid sections 1346 (b) and

2401(b) of this title, the term—

“Federal agency” includes the executive de-

partments and independent establishment of

the United States, and corporations primarily

acting as, instrumentalities or agencies of the

tractor with the United States.

‘‘Employee of the government”’ includes of-

‘ficers or employees of any federal agency, mem--

bers of: the military or naval forces of the ~

- United States; and persons acting on behalf of

a federal agency in an official capacity, tempo- -

rarily or permanently in the. service of the

United States, whether with or without -com-

—-

: . a * ag *

§°2674. Liability of United States. ,

. The United States shall be liable, respecting.

' the provisions. of this title relating to tort

¢laims, in the same manner and to the same ex- -

tent as a private individual under like cireum-’

stances, but shall not be liable for interest prior

to judgment or for punitive damages. —

* * * * ad

3. The National ‘Defense Act of 1916 (39 Stat.

166 et seqg.),.as amended, provides in pertinent part

(Title 32, United States Code) :

a. Section 101. Definitions.

* * —< 3% % *

(4) “Army. National. Guard’’ means that

part of the organized militia of the several

States and Territories, Puerto Rico, the Canal

Zone, and the District of Columbia, active and

inactive, that— =e

(A). is'‘a land force; " $5 :

(B) is trained, and has its officers ap-

pointed, under the sixteenth clause of sec-

_tion 8, article I, of the Constitution ;

wholly or partly at Federal expense; and

(D) is federally recognized..

* * * * *

_ (6) “Air National Guard’”’ means that part

of the organized militia of the several States

. and Territoriés, Puerto Rico, the Canal Zone,

and the District of Columbia, active and in-

active, that— a

(A) is an air foree;

(B) is trained, ard has its officers ap- -

* — pointed, under the sixteenth clause of sec-

tion 8, article .I of the Constitution ;

{C) is organized, armed, and equipped

wholly or partly at Federal expense; and

(D) is federally recognized.

* “ae Dee * *

Section 105. Inspection..

(a) The Secretary of the Army shall have an |

inspection made at least once a year by inspec-

tors general, or, if necessary, by any other

commissioned officers of the Regular Army

detailed for that purpose, to determine

whether— oe :

{1) the amount and condition of prop-

erty held by the.Army National Guard are

satisfactory; eee

(2) the Army National Guard is orga-

nized as provided in’ this title; =

(3) the members of the Army National

: Guard meet prescribed physical and other

Gta qualifications ; »

‘" (4) the Army National Guard ” on its

organization are properly uniformed, |

‘ armed, and equipped and are being trained

and instructed for active duty in the field, -

(5) Army N ational Guard records are

- being kept in accordance with ‘this title.

The Secretary of the Air Force has a similar duty -

with respect to the Air National Guard.

(b) The reports of inspections under subsec-

the National Guard is entitled to the issue of

military. property as authorized under this title

and to retain that property; and for deter-

_ mining which organizations and persons con-

stitute units-and members of the. National

Guard. ;

* . * * * 7

oe Section 106. Annual appropriations. :

. Sums will be appropriated annually, out of

- any money in the Treasury nef otherwise ‘ap-

propriated, for the ‘support of the Army Na-

tional Guard and the Air National Guard,

including the issue of arms, ordnance stores,

quartermaster stores, camp equipage, and other

military supplies, and for the ‘payment of other

expenses authorized by law.

* * ‘ . + * *

Section 108. Forfeiture of Federal. benefits.

If, within a time to be fixed by the President,

a State does not comply with or enforce a

requirement of, or regulation prescribed under,

this title its °'N ational. Guard is barred, wholly

or partly as the President may prescribe, from

receiving money or any other aid, benefit,, or

privilege authorized by law.

. 65

Section 109. Maintenance of other troops.

: * _* _* *

(b) Nothing in this title limits the right of

a State or Territory, Puerto Rico, the Virgin

Islands, the Canal Zone, or the District of

‘Columbia to use its National Guard or its de-

fense forces authorized by subsection (c) within .

its borders in time of peace, or prevents it

from organizing ‘and maintaining police. or

constabulary. por. oe

(c). In addition to its National Guard, if any,

a State or Territory, Puerto Rico, the Virgin

Islands, the Canal Zone, or the District of .

Columbia may, as provided by its laws, organize

and maintain defense forces. A defense force ’

established under. this ‘section may’ be used |

within the jurisdiction concerned, as its chief :

executive (or commanding general in the case.

of the District of Columbia) ‘considers neces-

"sary, but it may not be called, ordered, or

drafted into the armed forces. * * * — -

* * * * a

. Section 314. Adjutants general. |

(a) There shall be an adjutant general in

‘each State and Territory; Puerto Rico, the

Canal Zone, and the District of Columbia. He

shall perform the duties prescribed by the laws

of that jurisdiction.

+ a * * *"

Territory, Puerto Rico, the Canal Zone, “and

the District of Columbia, and officers of the

National Guard, ‘shall make such returns and

reports as the Secretary of the Army. or the

. Secretary of the Air Force may prescribe, and

shall make those returns: and reports to the

Secretary concerned or to any officer designated

‘by him. Each Secretary shall” send with his

ee). 66

annual ‘report to Congress an abstract of the |

returns and reports of the adjitants. general |

and such comments as he considers necessary

for the information of Congress.

* a * _ *

Section 501. Training generally.

_ (a) The discipline, including training, of the

Arniy National Guard shall conform to. that of

the Army. The discipline, including training,

of the Air National Guard shall conform to that

- of the Air Force.

_ (b) The training of the National Guard shall

be conducted by the several States and Terri-

tories, Puerto Rico, the Canal Zone, and the

District of Columbia in conformity with this

title. |

* * * ; * *

"Section 702. ‘Issue of supplies.

(a) Under such regulations as the President

may prescribe, the Secretary of the Army and

the Secretary of the Air Force may buy or:

manufacture and, upon requisition of the gov-

ernor of any State or Territory, Puerto Rico,

*- or the Canal Zone, or the commanding general

-of the National Guard of the. District of. Co-

) lumbia, issue to its Army National Guard and

Air National Guard, respectively, .the supplies

necessary to uniform, arm, and equip that

Army National Guard or Air N ational Guard

for field duty.

* * . ae, * *

- (a) No property may be issued to the Na-

tional Guard of a State or Territory, Puerto

Rico, the Canal Zone, or the District of Co-—

lumbia, unless _ that jurisdiction -makes pro-

vision, satisfactory to the Secretary concerned,

for its protection and care.

* Ts, * * * *

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 per-

sons to care for material, armament, and equip-

ment of the Army ‘National Guard: Under

such regulations*as the Secretary of the Air

Force may prescribe, funds allotted by him for

the Air National Guard may be spent for the

compensation of competent pérsons to care for

material, armament, and equipment of the Air -

National Guard. A caretaker employed under .

this subsection may also perform clerical

duties ‘incidental to his employment and other

duties that do not interfere with the perform-

ance of-his duties as caretaker. ;

(b) Enlisted members of the -National Guard

and civilians may be employed as caretakers

under this section. However, if a unit has more

than one caretaker; one of them must be an

enlisted member. Compensation under this sec-

tion is in addition to: compensation otherwise

provided for a member of the National Guard.

Secretary concerned, material, armament, and

equipment of the Army National. Guard or Air

National Guard of a State or Territory, Puerto

Rico, the Canal Zone, or the Distvict of Colum-

‘bia may be placed in a common. pool for care,

. Maintenance, and. storage.- Not more than 15

caretakers may be employed for each of those

pools. . - a)

(d) Under regulations to be prescribed by the

Secretary concerned, one commissioned officer

of the National Guard in a. grade below major: «

. may be employed for each pool set up under

subsection (¢) and for each squadron of the Air

National Guard. Commissioned officers may

not be otherwise employed under this section.

« (e) Funds appropriated by Congress for the

National Guard are in addition to funds appro-

priated by the several States and Territories,

‘Puerto Rico, the Canal Zone, and the District

of Columbia for the National Guard, and are

available for the hire of caretakers and clerks.

- (f) The Secretary concerned shall fix the

| 7

68 ae

- salaries of — and ¢ caretakers authorized to -

be employed under this section, and shall desig-

nate the person to employ them. -

_* * * * *

‘Gute: 710. Reports of survey.

(a) All military property issued by the

United States to the National Guard remains

the property | of the United States.

* # ¥ * ;

() ‘The Secretary ORES or, his: desig-

nated representative may relieve the State or

Territory, Puerto Rieo, the Canal Zone, or the

District of. Columbia, whichever is concerned, of

further accountability and pecuniary liability.

‘for the property. However, if it was lost, dam-

aged, or destroyed through negligence, the

money value of the property or the damage

thereto shall be. charged (1) tothe State or

.Territory, Puerto Rico, the Canal Zone, or the -

District of Columbia, whichever is éoncerned,.to

be paid from its funds or from any non-Federal

funds; or (2) to the member tp whom the loss,

damage, or destruction is charged. from pay

_ due kim for duties performed in his status as

a member of the National Guard.

* * * * P *

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

as amended, provides in ashame part (Title 10,

United States Code) :

| § 3079. Army National Guard of United States:

status when not in Federal service.

When not on aetive duty, nseembers of the

Army National Guard of the United States _

‘shall be administered, armed, equipped, : and

trained in their status as members of the Army

N ational Guard. . cay

_& ¥ ¥ ~ *

§ 3495. Army National Guard of. the United

States: status.

Members of the Army National Guard of the

United States are not in active Federal service

@. a. : . . -*

_ except when ordered thereto under law.

* * - . * *

§ 8079. Air National Guard of United States:

_ Status when not in Federal service,

When not on active duty, members of ‘the Air

National Guard of the United States shall “be

administered, armed, equipped, and trained in

their status as members of the Air National

Guard. frat “4

* ee \ # ee Oa.

§ 8495. Air National Guard ‘of United States:

status, _-~ : 3 ald

Members of the Air. National. Guard of the -

_ United States are not ‘in active Federal service

except when ordered thereto under law. | :

5, Public Law 86-740, September 13, 1960 (74 Stat.

878) provides in pertinent part ( Title 32, ‘United

States Code, Supp. IT): °

§ 715. Property loss; personal injury or death;

activities under certain sections of this

title. 7 :

(a) Under such regulations as the. Secretary

of the Army or Secretary of the Air’ Force may

prescribe, he or, subject to appeal to him, the

Judge Advocate Gei:eral of the armed force un-—

der his jurisdictio., ‘f designated by him, may

Settle, and pay in an amount. not more than

$5,000 a claim against the United States for—__-

(1) damage to, or loss of, real property, _

' including’ damage or loss incident to use

and occupancy; yj.

(2) damage to, or loss of, personal prop-

erty, including property bailed to the

9° United States .or-the National ‘Guard and.

including registered or insured mail dam-

aged, lost, or destroyed by a criminal act .

while in. the possession of the National -

Guard; or | es

(3) personal’ injury or death; either

caused by a member of the’/Army National

Ciard or the Air National Guard, as the

70 —

_ &

case may be, while engaged in training or

duty under ‘section 316, 502, 503, -504, or

505 of this title or any ‘other provision of

law for which-he is entitled/to pay under: |

section :301 of title 37; or for which he has

“waived that pay, and acting within the

scope of his employment; caused by a per-

son employed under section 709 of this title

acting within the scope of his employment ;

or otherwise incident to noncombat activi-

~ ties of the Army National/Guard or the Air | *

National Guard, as: the gase may be, under

one of those sections.

* ° * * + aoe

(a) If the Secretary of tlte military depart-

. ‘ment concerned considers that a claim in excess

ie of $5,000 is meritoriaus and would otherwise be

- covered by this section, he may ~ the clairn-

. ant $5,000 and report the excess to Congress

for its consideration. :

* 2 . % ; * * -

(g) Notwithstanding any other. provision of

law, the settlement of a claim under this section

is final and conclusive.

(h) In this section,, “settle”? means consider,

ascertain, adjust, determine, and dispose. of a

claim, whether by full or. partial allowance

or disallowance.

6. The Constitution of the State of patent pro-

vides in pertinent part (Article II, Section 8): ,

The Governor shall -be the Commander. in

_ Chief of the land and naval forces of the State;

~and may call out the militia to repel invasions,

suppress insurrections, and enforce the execu-.

tion of ‘the Laws; but shall ‘not take the com-

mand in person, withow the consent of the

Legislature..

7. The Maryland Code Ann:, Article a pr “ovides i in

pertinent part; me

§ 6: Governor to be commander-in-chief.

The Governor of -the State, by virtue of his.

: \y Office, shall be the commander-in-chief of the

‘. militia of the State, except’ as of such portions

as may at times be in-the service of the U nited

States. ,

-The Governor shall have power to make such

~ rules and regulations and issue orders forthe

enlistment, discharge, organization, discipline,

training and equipment of the militia from time

.to time as may become necessary in ‘order to

conform to-this article and the National De-

fense Act, and amendments thereto ‘and regu-

lations made in pursuance thereof.

* * : ce * *

§ 8. When ondated into service of State.

The Governor shall have the power in case |

of: insurrection, invasion, tumult, riot, breach .

of peace or imminent danger thereof, or to en-

P force the laws of this State, to order into.serv-

ice of the State any part of the militia that he

may deem preper. * * * >.

§ 9. Adjutant General; assistant odjuieait gen-

eral; Governor’s staff. .

The. ‘Adjutant General shall-be appointed by

the Governor by and with the advice and con-

sent of the Senate. * * *

$10. Ranking line officer—In ei.

The ranking line officer shall be on active

duty status and his salary shall be-as stated

inthe annual budget; provided, that should the

ranking line officer be also appointed the Ad-

jutant General, he shall receivé only the salary -

providéd by law for the ranking line. officer ;

and provided further, that,-should the raz

line officer be called or ordered’ into the atte.

military service of the United States, under:

the Constitution and laws of the United States,

’ the Governor may designate an acting ranking

line officer,.who will exercise all the duties of

the oftice, during such period. ——w

~ _—_e«~

~ #y TW

ene

The tanking line officer shall be in control: -

' the Military Department of the State, and sub-

ordinate only to the Governor in matters, ye

taining to said department. * * *

$11. Same—As Q ermaster General.

The-ranking line officer, a:

General, shall be’ responsible to the. Governor

for the care, preservation and safekeeping of all

military ‘property. He shall prepare returns

of all federal military property at the time and

in the manner prescribed. by the Secretary of

War Spiceuaed of the Army]. Forres

* * * * ts _*

§ 16. hdd S compensation insurance.

The ranking line: officer is“ authorized and

directed to take out and thereafter maintain a

policy or policies of insurance with the State

Accident Fund. or with’ any stock corporation

or, mutual association authorized to transact:

thé business of workmen’s compensation .insur-

ance in this. State, to secure compensation .

under the Workmen’s Compertisation Law to all -

- officers and enlisted men of the org&nized mili-

. tia of the State of Maryland; provided that, .

whenever and so long as provision equal:to or

better than’ that given under the’ terms of this

icle is made by the federal government for

*/an officer or enlisted man or employee of. the

Military Department of Maryland injured in

the course of employment, such officer, enlisted

manor employee shall-not be entitled to the

benefits of this section.

The ranking line officet is : authorised and

directed to pay the necessary premium or

preziums for said policy or policies of insur-~

ance out of appropriations for the militia to be-

included in the State budget by the Governor. -

of the pene ;

*% ok * .* _

73;

§ 20. Sdme—A ppointment and ‘commission,

All officers shall be appointed and commis- |

Sioned by the Governor * * *,

* cy Sees a es *

§ 26; Responsibility of rganizetion. com-

———$+__—_———maniers;responsihility of officers and

7 ; enlisted men, to commanding officers ;

‘inspections, ey ae eters

Organization commanders may ‘cause those

under their ‘command to perform any military

ares duty, and shall be responsible to the Governor -

for the general éfficiency of the -units of the

organized militia under their commands. Coin: °” Satie

manding’ officers of units shall be responsible

to their immediate commanders for the equip-

- ment, drill, instruction, movements, and effi-

‘ ¢iency of their respective commands. All] offi-

cers and enlisted men shall ®e responsible to

‘their immediate commanding officers . for 7

prompt and’ unhesitating obedience, proper

’ . drill and the preservation and proper use of

the property of [the] State and of the. United

States, or organization, in their posses-—

oi iaiahe

* *- * * -*

8. The Air National Guard Regulations (ANGR) F

40-01 provide in pertinent,part:

_, SECTION. I—GENERAL

es * > eae Le +

2. Poliey: © |

a. Air National Guard civilian personnel

: shall be utilized to effect maximum efficien-

- ¢y in administration, supply, :operations,

, ‘training, and maintenance of the Air Na-

7 tional Guard. ie eee r

_ . b. Air National Guard civiliar personnel

must be federally recognized members of

the Air National Guard of the State, Ter-° -

o .. Columbia: except for the employment of—

74, re }

(i) Females (teens specifically au- . |

thorized by the bs ae National Guard_

Bureau). :

» (2) Temporary pe a paid from

funds other than those designated for

the pay of.air technicians.

c. Officers will not be appointed to Air

National Guard civilian . personnel - posi- —

. tions: authorized for airmen, nor. will air-

men be appointed to positions. authorized

for officers. |

* : & 2% *

i. Air N ational Guard civilian personnel |

will occupy the T/O vacancy most. ¢om- |

parable to their civilian position.

- 3, Authority? \

; a. Basic authority for. the employment

of Air National. Guard civilian personnel

is contained in Section 90, National De-

fense Act, as amended.

b.. Authority ° is delegated to the adju-

' tants general ‘of the. several States, Terri-

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 regula-

tion; subject to the provisions of law and

such instructions. as’may be subsequently

* issued. by -the Chief, National Guard

Bureau. ee P Noy

4. Status. Air National Guard civilian |

_personnel are considered to be employees

“of the State, Territory, Puerto Rico, or the

District of: Columbia “(21 Comp. Gen. Dee.

° : Definitions. For the’ purpose of this

Regulation:

a. “Air National Guard civélian personnel”

prs 0 any’ and all civilians emploved by the

several States, Territories, Puerto Rico, and

the District of Columbia, permanent or tempo-

rary, male or female, supported wholly or in

' *

- .

4 °

2 yeas mentee pa t

: ES Ly eae

. SEES

75 ag

part by Federal funds appropriated for that.

purpose, including but not limited fo the fol-

‘ployed for the performance of the duties :,_ eae

lowing :, oe es Rated

(1) “Air technician’? means a person em-

positions listed on the manning guide and paid

from funds designated for the pay of air tech-’

nicians. e, : ph ee

A * : ee * ’ ‘» a ~

- 6. Qualifications. Air National. Guard -

—— personnel shall be qualified as fol-

- lows: A28 7

a. Technically qualified to perform the

duties of the position for which being em- °

“ ployed without further schooling or train-

ing at the expense of the government ; and

b. Physically qualified for active Federal °

service if the position for which employed

requires membership in the Air National

Guard. ie =

7. Appointment :

a. Authority. ‘Appointment of Air Na-

tional Guard civilian’ personnel is a func-

tion of the adjutant genera]. °

* v * * * *

_ SECTION IT—FINANCIAL |

o fag *

le¢ each base.

8. Air National Guard Civilign Man

Months. and Funds. Man months and funds

will normally be authorized and published _

_ prior to the beginning of each fiscal year.

a. The number of man. months pro- -

grammed for each State, Territory, Puerto.

Rico, or the District of Columbia, is

basically computed upon.the following: — |

(1) The number of military person-° ‘

nel assigned to each base. *s

(2) The number and type of aircraft

projected for assignment to each hase.

(3) Number of positions, per unit,

organization. or office authorized’ for

* (4) Availability of man months. . -

ae.

b. Funds for temporary personnel pro-

grammed are based upon the following: .

~ (1) Availability of funds.”

. * . ~ :

10. Pay and Per Diem: ave

a. Salary and Wages. Federal funds

paid to Air National Guard civilian per-

sonnel shall not exceed the rates established

by the Chief, National Guard Bureau. ~

Any payments in excess of the established —

rates must be from: other than Federal |

funds. Air National Guard civilian per-

sonnel may be paid either semi-monthly |

or monthly, as directed by the adjutant

general. District of Columbia employees

may be paid bi-weekly. Payment will be

made by ‘the USAF finance officer desig-

nated in AFM 1732-20, as amended, to pay

commercial accounts and civilian pay rolls -

‘for the Air National Guard.

* * * * . @

SECTION III—BENEFITS

12. Social Security. Air National Guard

civilian personnel are eligible to be cov-

ered by the provisions of the Social Secu-

rity Act, as amended, unless such personnel

are under an existing retirement system.

Employer’s cuntribution may be paid from

. the same funds used for the pay of the

_ individual. |

| 13. Employees Compensation.’ Current

policy of the Bureau of Employee’s Com-

‘ pensation, United States ‘Department of

Labor permits. compensation to be paid

for injuries or death incurred by Air Na-

tional Guard civilian personne! in the per-

fermance of their. official duties.

_ 14. Retirement. Air National Guard ci- *

vilian personnel are not included in the

Federal Civil Service Retirement System.

* * * * \ * ,

~~ \

U.S. GOVERNMENT PRINTING OFFICE. 1968

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.