Brandes v. U.S., s. 84-2520

• Decision Date: 25 February 1986
• Docket Number: Nos. 84-2520,84-2604,s. 84-2520
• Citation: 783 F.2d 895
• Parties: Loren Christian BRANDES, Plaintiff/Appellant/Cross-Appellee, v. UNITED STATES of America, et al., Defendants/Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 895

783 F.2d 895

Loren Christian BRANDES, Plaintiff/Appellant/Cross-Appellee, v. UNITED STATES of America, et al Defendants/Appellees/Cross-Appellants.

Nos. 84-2520, 84-2604.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 16, 1986.

Decided Feb. 25, 1986.

Edwin Train Caldwell, Caldwell & Johnson, San Francisco, Cal., for plaintiff/appellant/cross-appellee.

G. William Filley, Frolik, Filley & Schey, San Francisco, Cal., Joan M. Bernott, U.S. Dept. of Justice, Washington, D.C., for defendants/appellees/cross-appellants.

Appeal from the United States District Court for the Northern District of California.

Before SNEED, ANDERSON, and ALARCON, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Loren Brandes appeals from the district court's determination that Brandes was the sole cause of the automobile accident in question and from the denial of his motion for a new trial. Included in this appeal is a cross-appeal from the United States regarding the district court's decision that Rue Dann, the driver of the government vehicle, was a federal employee when the accident occurred. Because we find that Dann was not a federal employee, the district court lacked jurisdiction over the subject matter of the case and its decisions are therefore vacated.

I. FACTS

This suit arose from a traffic accident near Sausalito, California, involving Loren Brandes and Rue Dann. At the time of the accident, Dann was operating a United States Government vehicle. Dann's fiance, Dr. John Ziegler, had accepted a job with the Veterans' Administration (VA) in San Francisco and Ziegler and Dann had come to California to search for a house. To facilitate their househunting, they were issued a United States Government vehicle.

The accident occurred on June 7, 1981, while Dann was househunting. The vehicles collided while traveling in the northbound lane of U.S. 101. As a result of the accident, Brandes was injured and brought suit against the United States Government under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671, et seq., and against Dann individually.

In a series of motions, the government sought a ruling that the government was not responsible for any damages because Dann was not a government employee at the time of the accident. Similarly, Brandes sought a ruling of partial summary judgment, arguing that the district court should consider Dann to be a federal employee for purposes of the FTCA. On February 24, 1983, the district court granted Brandes' motion, finding that under the facts and circumstances of the case, Dann was a government employee within the meaning of the FTCA. The government made a motion for reconsideration of the partial summary judgment. The district court reaffirmed its conclusion in Brandes v. United States, 569 F.Supp. 538 (N.D.CA 1983). ¹

II. DISCUSSION

Under Ninth Circuit precedent, federal courts must apply federal law in determining whether an individual is a federal employee. United States v. Becker, 378 F.2d 319 (9th Cir.1967). To determine whether the government may be held liable, this court must first turn to the language of the FTCA. The FTCA authorizes suits against the United States for damages "under circumstances where the United States, if a private person, would be liable to the claimant...." 28 U.S.C. Sec. 1346(b). The FTCA does not, however, entirely waive the sovereign immunity of the United States: the federal government may only be held liable for damages caused by the negligent or wrongful act or omission of a government employee. 28 U.S.C. Sec. 1346(b); Borquez v. United States, 773 F.2d 1050, 1051-52 (9th Cir.1985).

The FTCA defines an employee of the government as follows:

"Employee of the government" includes officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard ..., and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently, in the service of the United States, whether with or without compensation."

28 U.S.C. Sec. 2671.

From the above definition, it is clear that Dann was not a federal employee. To begin with, she was neither a member of the military or naval forces nor a National Guard member.

Second, she was not an "officer or employee" of a federal agency. Although the term "employee" is not defined by the FTCA, it is a fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning. Therefore, the court must look to the ordinary meaning of the term "employee." Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62...