Slagle v. U.S.

• Decision Date: 30 January 1980
• Docket Number: Nos. 77-2820,78-1113,s. 77-2820
• Citation: 612 F.2d 1157
• Parties: Larry Michael SLAGLE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1157

612 F.2d 1157

Larry Michael SLAGLE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

Nos. 77-2820, 78-1113.

United States Court of Appeals Ninth Circuit.

Jan. 30, 1980.

Harold J. Truett, III, Hoberg, Finger, Brown, Carlson, Cox & Molligan, San Francisco, Cal., on brief; Richard C. Raines, Hoberg, Finger, Brown, Carlson, Cox & Molligan, San Francisco, Cal., for plaintiff-appellant.

Stephen A. Shefler, Asst. U.S. Atty., San Francisco, Cal., on brief; Charles M. O'Connor, Asst. U.S. Atty., San Francisco, Cal., for defendant-appellee.

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

Before BROWNING, CHOY, and KENNEDY, Circuit Judges.

KENNEDY, Circuit Judge:

The case raises questions concerning the Government's tort liability for the acts of a drug informant. Plaintiff Larry Michael Slagle brought this action against the United States under the Federal Tort Claims Act (FTCA or Act), 28 U.S.C. §§ 1346(b), 2671 Et seq. ¹ Slagle was paralyzed when he was shot in a gun battle. He sued the United States, on the theory that his injuries were caused by the negligence of the Government in the selection and supervision of a drug informant involved in the shooting incident, and by the informant's negligence at the site of the incident. The United States filed both a motion to dismiss for lack of jurisdiction and a motion for partial summary judgment. The district court denied the motion to dismiss, but granted partial summary judgment in favor of the Government. ² Slagle appeals from this order. We affirm.

We state the relevant facts in the manner most favorable to plaintiff, as we are required to do on this appeal. Plaintiff and one Chester Wheeler had undertaken a nonprofit community service project in Richmond, California, with the goal of reducing drug abuse in that area. Upon the recommendation of a local police officer, Wheeler had contacted the Bureau of Narcotics and Dangerous Drugs (BNDD), now known as the Drug Enforcement Administration, and volunteered to make himself available as an informant. Wheeler met with agent Robert Bender of the BNDD. During the meeting, Bender informed Wheeler that BNDD informants must comply with the following general guidelines:

A. If an informant was arrested for possession of drugs and had not received advance approval from BNDD, BNDD would not intervene on his/her behalf.

B. An informant should not carry a gun while actively seeking out information. If an informant was arrested for assault with a deadly weapon, BNDD would not intervene on his/her behalf.

C. An informant was not to contact any "source" without first notifying the agent with whom he worked (in this case Bender). This was established to permit early BNDD involvement in this investigation and to avoid the defense of entrapment.

D. In order to serve as an informant, (Wheeler) should refrain from violating the law and the use of drugs or narcotics.

In return for his services, the BNDD agreed to pay money to Wheeler on a per job basis. ³ Apart from the general guidelines, Wheeler had very broad discretion over the details of his informant activities.

On the day he was injured, Slagle voluntarily accompanied Wheeler at Wheeler's request. A narcotics dealer named "John-John," about whom plaintiff was attempting to secure information, had requested Wheeler to accompany him and another man on a trip to Napa to collect money owed to John-John and to offer illegal drugs for sale. According to plaintiff, Bender was aware generally that Wheeler was attempting to befriend John-John in order to set up a drug transaction between John-John and BNDD agents. Wheeler was carrying a gun, in violation of the BNDD guidelines. ⁴ Before leaving for Napa, Wheeler called the BNDD. Bender, his contact at the agency, was unavailable for reasons which the record does not disclose. Wheeler left a message regarding his plans to travel to Napa and the general purpose of the trip, but did not secure approval for the trip from anyone at the agency.

At the meeting place in Napa, an argument broke out regarding collection of the money, and Wheeler drew a gun. The argument continued and Wheeler struck one of the residents of the house. A shooting ensued, and as Slagle ran toward the car he was shot in the back and paralyzed. He was driven away from the site by John-John, apparently at the direction of one of the residents of the house, and left alongside the highway.

On October 16, 1974, one day before expiration of the mandatory claim period for filing claims, 28 U.S.C. § 2401(b), plaintiff served a purported claim under the FTCA on four government agencies. The agencies either returned plaintiff's claim or took no action on it. ⁵ Receiving no decision from the agencies within six months after filing the claim, 28 U.S.C. § 2675(a), plaintiff filed suit against the United States.

Plaintiff's complaint is vague as to which acts of Wheeler or the Government were negligent. Plaintiff states only that

employees, agents or servants of (the United States) did cause the plaintiff to participate in a narcotics investigation and arrest by going to a certain location in the County of Napa, (and)

That at said time and place defendant (the United States) knew or should have known that an arrest would occur, and knew or should have known that the arrest would be resisted with and met by deadly force and that said meeting which defendant caused plaintiff to make would be extremely hazardous for plaintiff and failed to advise plaintiff of same.

In later proceedings below, plaintiff alleged Wheeler was negligent in various respects, and that the United States is responsible in these circumstances for Wheeler's negligence. Plaintiff states only in vague terms the acts allegedly constituting Wheeler's negligence. He claims Wheeler negligently handled some facet of the transaction in Napa, but fails to elaborate; he claims Wheeler negligently carried a gun to the meeting, although plaintiff was clearly aware of this fact; finally, he claims Wheeler was negligent in some respect in not notifying the BNDD before taking the trip.

Independent Contractor or Employee

The district court concluded that Wheeler was not an employee, but instead was an independent contractor. We disagree with the court's characterization of Wheeler as an independent contractor, but agree with the portion of the court's opinion holding Wheeler was not an employee, as defined in 28 U.S.C. § 2671. With appropriate changes in footnote numbering, we adopt the district court's careful analysis of the employee issue and set it forth as follows:

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); Brucker v. United States, 338 F.2d 427 (9th Cir. 1964), Cert. denied, 381 U.S. 937 (85 S.Ct. 1769, 14 L.Ed.2d 701) (1965). In United States v. Becker, the court followed the Restatement (Second) of Agency, § 220(2) (1958), definition of "servant" in defining "employee." 378 F.2d at 321. That definition reads as follows:

"(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control.

"(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

"(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

"(b) whether or not the one employed is engaged in a distinct occupation or business;

"(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

"(d) the skill required in the particular occupation;

"(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

"(f) the length of time for which the person is employed;

"(g) the method of payment, whether by the time or by the job;

"(h) whether or not the work is part of the regular business of the employer;

"(i) whether or not the parties believe they are creating the relation of master and servant; and

"(j) whether the principal is or is not in business."

Additional criteria applied by the court in Becker to distinguish an employee from an independent contractor were no fixed salary on a regular basis, not subject to tax deductions, can refuse the call for assistance, not required to be available at a particular time, and worked under a contract and was paid by voucher. 378 F.2d at 322.

Beginning with subsection (1) of the Restatement definition, a servant performs services in the affairs of another and is subject to the other's control or right to control in the performance of those services. Plaintiff declares that he understood that Wheeler was recruited "to gain and supply information regarding organized importation and marketing of heroin and cocaine." Declaration of Larry M. Slagle, p. 2 (filed 3/11/77).

Special Agent Bender, Wheeler's BNDD contact, states in his affidavit that he informed Wheeler of the general guidelines which an informant must comply with:

"A. If an informant was arrested for possession of drugs and had not received advanced approval from us, we would not intervene on his/her behalf.

"B. An informant should not carry a gun while actively seeking out information. If an informant was arrested for assault with a deadly weapon, we would not intervene on his/her behalf.

"C. An informant was not to contact any 'source' without first notifying the agent with whom he worked. This was established to permit early BNDD involvement in the investigation and to avoid the defense of entrapment.

"D. In order to serve as an informant, he should refrain from violating the law and the use...