Delgado v. Akins
| Decision Date | 11 December 1964 |
| Docket Number | Civ. No. 4817-Phx. |
| Citation | 236 F. Supp. 202 |
| Parties | Henry DELGADO and Maria Delgado, husband and wife, Plaintiffs, v. Ronald G. AKINS and the United States of America, Defendants. |
| Court | U.S. District Court — District of Arizona |
W. Roy Tribble, Chandler, Ariz., for plaintiff.
Elsing and Crable, National Association of ASCS County Office Employees, Phoenix, Ariz., amicus curiae for plaintiffs.
Wm. J. Knudsen, Asst. U. S. Atty., Phoenix, Ariz., for defendant.
This is an action under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b) and 2671 et seq. The complaint alleges that on March 16, 1963 the plaintiff Maria Delgado was injured while riding in an automobile as a passenger, when it was struck by an automobile operated by defendant Ronald G. Akins. It is alleged that Akins was an employee of the United States of America, Department of Agriculture, and acting within the scope of his employment.
An order was entered on stipulation for a separate trial of one issue as follows:
It is admitted for the purpose of this separate trial that the defendant Ronald G. Akins was an employee of the Yuma County ASCS (Agricultural Stabilization & Conservation Service). He was a field reporter and operating his automobile which collided with the one plaintiff was in.
The only question is whether the defendant Akins was an "employee of the Government" as that term is defined in 28 U.S.C.A. § 2671.
At the separate trial held pursuant to the terms of Rule 42(b), Federal Rules of Civil Procedure, 28 U.S.C.A., testimony was taken and exhibits were introduced. There is no substantial dispute in the facts. The only dispute is in the effect to be given the evidence as bearing on whether or not the defendant Akins was an employee of the Government.
The Secretary has issued regulations governing ASC County and Community Committees (Ptfs' Exh. 1). They were issued under the authority of the Soil Conservation and Domestic Allotment Act of 1936, as amended, 16 U.S.C.A. § 590a et seq. Under that Act as last amended it is provided that (§ 590h) "* * * the Secretary shall make such regulations as are necessary relating to the selection and exercise of the functions of the respective committees, and to the administration, through such committees, of such programs. * * *" The regulations (Ptfs' Exh. 1) were published March 23, 1961, with a Supplement of March 1, 1963.
Mr. Akins was an employee of the Yuma County Committee. An employee may be removed under certain circumstances for violation of rules and regulations promulgated by the Secretary of Agriculture. Exhibit 1 generally defines the duties and obligations of all the ASCS employees whether of the County Committee, of the State Committee or of the Department of Agriculture.
The Department of Agriculture has issued a booklet consisting of 32 pages, entitled "Responsibilities of the ASC County Committee Responsibilities of the County Office Manager County Committee Meetings." (Ptfs' Exh. 3). It states that the committee is peforming a "governmental function" and that the laws, regulations and procedures are binding on the committee and that the committee and the County Office are instrumentalities of the Department of Agriculture. The Department of Agriculture publication (PA-576) called "The Farmer Committee System" was issued August 1963 and defines in general terms the program. (Ptfs' Exh. 4).
Administrative Bulletin No. 134 contains a copy of material to be delivered to each employee. It is distributed as part of Federal Personnel Manual issued by the Department of Agriculture, Arizona ASCS State Office. (Ptfs' Exh. 5). It provides a general standard of employment, standard of conduct and other similar matters affecting employees.
Bulletins were submitted regularly to the various offices. Notice—Administrative 73, which is entitled "Ref: Notice Book A 5", was transmitted to County Offices from Washington. It is called "Instruction No. 344-5", on the subject "Types of Misconduct which Subject an Employee to Disciplinary Action." The nine page bulletin (Ptfs' Exh. 7) is an exhaustive listing of conduct which constitutes malfeasance or misfeasance of employees.
Another bulletin issued December 10, 1958 provides, with reference to County Offices, "Inasmuch as ASC State and County offices are Federal agencies and instrumentalities, respectively, they should not endorse any nongovernmental function either directly or indirectly." (Ptfs' Exh. 8).
In a portion of the County Administrative Handbook (Ptfs' Exh. 9) it is provided that the County Committee shall be listed under the heading of in the U. S. Government section of the directory, otherwise to be listed under the U. S. Department of Agriculture. The bulletin contains information concerning the request for treatment of injury under the United States Employees' Compensation Act.
Identification Cards, Oath of Office, Employee Handbook and Motor Vehicle Accident Report Kit, all issued by the Department of Agriculture, are furnished to the employees, including the defendant Akins. (Ptfs' Exh. 10). The stationery of the County Committee is under the heading of "United States Department of Agriculture." (Ptfs' Exh. 11).
A bulletin assigning defense responsibilities in United States Department of Agriculture and signed by the Secretary lists the County Committee under Agricultural Stabilization and Conservation Service. (Ptfs' Exh. 12).
A "Report of Spot-Check" of the reporter Ron Akins (Ptfs' Exh. 13) is a report form of the United States Department of Agriculture. It is used for the purpose of evaluating the work of the reporter, defendant Akins.
There are two handbooks containing white and pink sheets. The white sheets are from the office in Washington, D. C., and the pink sheets from the Office of the State Committee. The handbook is loose leaf, voluminous and cumulative, defining duties of all of the departments under the Agricultural Stabilization and Conservation Service, all headed "United States Department of Agriculture." (Ptfs' Exh. 15).
On the exhibit entitled "Notification of Personnel Action" there is a heading "Notice to Employee." It provides that "The personnel action identified on the face of this form is subject to all applicable laws, rules, and regulations governing Federal employment and may be subject to investigation and approval by the Civil Service Commission." (Ptfs' Exh. 16).
It was developed in the testimony that the applicants for employment by the County Committee must meet the standards provided by the handbooks. The application when made must be approved by the State Committee. The work of the field reporter, Mr. Akins, was under the County Committee. He was, however, one of the employees referred to in the handbook and the bulletins, rules and regulations promulgated by the Department of Agriculture. Salary range and steps are controlled by the handbook. The payments of...
To continue reading
Request your trial
-
Marival, Inc. v. Planes, Inc., Civ. A. No. 12189.
...The decision on this matter in the instant case is anything but clear, particularly on the barren record before us. See, Delgado v. Akins, 236 F.Supp. 202 (D.Ariz.1964); Gibbs v. United States, 251 F.Supp. 391 (E.D.Tenn. 1965); French v. Civil Aeronautics Board, 378 F.2d 468 (10th Cir. 1967......
-
Wollman v. Gross, Civ. 79-4031.
...Tort Claims Act. Duba v. Schuetzle, 303 F.2d 570 (8th Cir. 1962); Gross v. Sederstrom, 429 F.2d 96, 98 (8th Cir. 1970); Delgado v. Akins, 236 F.Supp. 202 (D.Ariz.1964); Myers v. Cromwell, 267 F.Supp. 12 (D.Kan.1967). Contra, Lavitt v. United States, 177 F.2d 627 (2d Cir. Jake Gross, Jr., wa......
-
Officers and Employees—Volunteers—Federal Tort Claims Act (28 U.S.C. § 2679(b))—Operation of Motor Vehicles-Liability
...employee even though unpaid or paid by a third person. See, e.g., Provancial v. United States, 454 F. (2d) 72, 75 (8th Cir. 1972); Delgado v. Akins, supra; Martarano v. States, supra. As stated by the court in Martarano, at p. 807: This does not mean, however, that only a person officially ......
-
Gross v. Sederstrom
...exercised by the Secretary of Agriculture and his appointees. Our decision in Duba has been followed and relied on in Delgado v. Akins, 236 F.Supp. 202 (D.Ariz.1964), and United States v. Rasmussen, 222 F.Supp. 430 (D.Mont.1963). In Delgado, the court, in holding the office manager of the C......