# Brief for the United States — Maryland Ex Rel. Levin v. United States (No. 345) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0158%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1964 ## Text 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. i 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 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. ... 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: .... 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 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 2 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. 3 “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 , 3 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 4 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 a _ 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 4 ‘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. ~ . denied by a vote of six-to-one (R.%33). J 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, a) - eisions which had held that military Gua such employees, as well 11 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- a _ 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- 13 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 o 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 a 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 ‘ .. 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 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 Y) 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. bd ie 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. | ra 6 eine > fe é 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. 50 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. ° ° 52 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, es 1 } ,, ~ — . ‘ 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 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 RS . 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 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, i 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) 62 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 ‘United States but does not include any: con- © 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. * * —. § 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 ee ~ _—_e«~ RN ~ #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. * * * $11. Same—As Q ermaster General. The-ranking line officer, a: General, shall be’ responsible to the. Governor for the care, preservation and safekeeping of all military ‘property. He shall prepare returns of all federal military property at the time and in the manner prescribed. by the Secretary of War Spiceuaed of the Army]. Forres * * * * ts _* § 16. hdd S compensation insurance. The ranking line: officer is“ authorized and directed to take out and thereafter maintain a policy or policies of insurance with the State Accident Fund. or with’ any stock corporation or, mutual association authorized to transact: thé business of workmen’s compensation .insur- ance in this. State, to secure compensation . under the Workmen’s Compertisation Law to all - - officers and enlisted men of the org&nized mili- . tia of the State of Maryland; provided that, . whenever and so long as provision equal:to or better than’ that given under the’ terms of this icle is made by the federal government for */an officer or enlisted man or employee of. the Military Department of Maryland injured in the course of employment, such officer, enlisted manor employee shall-not be entitled to the benefits of this section. The ranking line officet is : authorised and directed to pay the necessary premium or preziums for said policy or policies of insur-~ ance out of appropriations for the militia to be- included in the State budget by the Governor. - of the pene ; *% ok * .* _ 73; § 20. Sdme—A ppointment and ‘commission, 4 All officers shall be appointed and commis- | Sioned by the Governor * * *, * cy Sees a es * § 26; Responsibility of rganizetion. com- ———$+__—_———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-° - ' ritery, Puerto Rico, or ‘the District of © o .. Columbia: except for the employment of— a 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 fk ' * - . 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. A ov 76 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0158%3A08. Public record. Not legal advice.