United States v. State of Maryland

• Decision Date: 13 June 1963
• Docket Number: No. 16953-16955.,16953-16955.
• Citation: 116 US App. DC 259,322 F.2d 1009
• Parties: UNITED STATES of America, Appellant, v. STATE OF MARYLAND, for the Use of Mary Jane MEYER, et al., Appellees. UNITED STATES of America, Appellant, v. STATE OF MARYLAND, for the Use of Vance Lewman BRADY, widow, et al., Appellees. UNITED STATES of America, Appellant, v. CAPITAL AIRLINES, INC., a Corporation, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

116 US App. DC 259, 322 F.2d 1009 (1963)

UNITED STATES of America, Appellant, v. STATE OF MARYLAND, for the Use of Mary Jane MEYER, et al., Appellees.

UNITED STATES of America, Appellant, v. STATE OF MARYLAND, for the Use of Vance Lewman BRADY, widow, et al., Appellees.

UNITED STATES of America, Appellant, v. CAPITAL AIRLINES, INC., a Corporation, Appellee.

Nos. 16953-16955.

United States Court of Appeals District of Columbia Circuit.

Argued February 27, 1963.

Decided June 13, 1963.

Mr. David L. Rose, Atty., Dept. of Justice, with whom Acting Asst. Atty. Gen. Joseph D. Guilfoyle, Messrs. David C. Acheson, U. S. Atty., Morton Hollander, John G. Laughlin, Jr., and Enoch E. Ellison, Attys., Dept. of Justice, were on the brief, for appellant.

Mr. Richard W. Galiher,^* Washington, D. C., with whom Mr. William E. Stewart, Jr., Washington, D. C., was on the brief, for appellees.

Before FAHY, DANAHER and BURGER, Circuit Judges.

FAHY, Circuit Judge.

A mid-air collision occurred over Maryland between a jet plane owned by the United States, and used by the Maryland Air National Guard, and a passenger plane of Capital Airlines. The passengers and crew in the Capital plane were killed and the plane was destroyed. A passenger in the jet plane was also killed. The only other occupant of the jet plane was its pilot, Captain McCoy, who was ejected and came down safely by parachute.

The survivors of the pilot and copilot of the Capital plane sued the United States under the Federal Tort Claims Act. Capital also sued the United States under the same Act for damages due to loss of its plane. Negligence of the jet pilot was found at trial and judgment against the United States was entered for all plaintiffs. The United States appeals, but confines its contentions to questions involving the availability to plaintiffs of the Federal Tort Claims Act and the amount of damages awarded Capital for loss of its plane. Neither negligence on the part of Captain McCoy nor the amount of damages awarded to the individual plaintiffs is now contested.

Liability of the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), set forth in the margin,¹ depends upon whether the jet pilot was an "employee of the Government" at the time of the accident, and, if so, was "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," which was Maryland.

Upon the basis of abundant evidence, followed by elaborate findings and conclusions, the District Court answered these questions in favor of plaintiffs. We think this answer was correct.

The Air National Guard of Maryland is part of the State Militia referred to in Article I, Sec. 8, of the Constitution. Congress is there empowered "to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States * * *." Clause 16 of Sec. 8. Article I reserves to the States the appointment of the officers and the authority of training the Militia according to the discipline prescribed by Congress. At all times relevant to this case the Maryland Air National Guard had not been called into the actual service of the United States.

In order to improve the national defense Congress has extensively legislated and appropriated funds with respect to the Militia, which is organized, equipped and disciplined in accordance with Federal standards, though trained and officered by the States. Important equipment is supplied by the United States. The airplane operated by Captain McCoy when this accident occurred was owned by the United States. 32 U.S.C. § 710 (a). It had been allocated by the United States to the Maryland Air National Guard. It was maintained by personnel paid by the United States for that purpose, known as civilian air technicians, and also known as caretakers.

Captain McCoy was paid by the United States pursuant to 32 U.S.C. § 709(a), "to care for" this property. This pay was in addition to his National Guard compensation. See 32 U.S.C. § 709(b). The United States fixed the salary of those authorized to be "employed" as was Captain McCoy. 32 U.S.C. § 709(f) (Supp.1962). Air Force regulations recognize this basic authority for the employment of civilian personnel. Employment under this authority is delegated to state adjutant generals, "subject to the provisions of law and such instructions as may be subsequently issued" under United States authority. Air National Guard Regulation No. 40-01, 20 Dec. 1954. The exercise of this authority is manifested by the Air National Guard Civilian Personnel Manual, issued 1 March 1958 "By Order of the Secretary of the Air Force" of the United States. The Manual prescribes inter alia the duties of civilian personnel in the Air National Guard in the situation of Captain McCoy. It also describes the qualifications, duties and responsibilities of positions which include those of "maintenance supervisor" and "aircraft maintenance chief."

Captain McCoy was also an officer of the National Guard of Maryland, commissioned by the Governor. He was assigned to 104th Fighter-Interceptor Squadron of the Maryland Air National Guard as "aircraft maintenance officer." This was in addition to his civilian job as "base maintenance supervisor," or "aircraft maintenance chief." Among his responsibilities was that of flight-testing of aircraft. This was accomplished by flights called "proficiency flights" which, however, had multiple purposes, including evaluation of maintenance of the equipment, which was a responsibility of Captain McCoy in his employment under 32 U.S.C. § 709.² At the time of the flight that ended in this accident, which occurred on a Tuesday, Captain McCoy's pay status was that of an air technician, a status he bore throughout his normal work period of from eight a. m. to 4:30 o'clock p. m. during the week days. He was actually paid the day of the accident as an air technician, and such pay continued during his disability following the accident.

On this particular flight Captain McCoy was accompanied by the passenger who lost his life. This passenger was interested in joining the Air National Guard and in obtaining flight training. Captain McCoy indicated this to the Commander of the 104th Squadron, who concurred that the passenger could accompany Captain McCoy on the flight. The Commander gave permission for the flight. He explained the reasons for doing so as follows:

"A. The general reason for any flight of this nature is proficiency. You don\'t set up a flight for the express purpose of taking any individual up, the express purpose for flying is for your own general proficiency. If there is a seat available and the man qualifies in accordance with the regulations, it is permissible to take him up on that flight. The Air Force does it all the time.

"Q. Were there other reasons for the flight in question? A. I think as I mentioned before, a third reason for any flight is to insure that the equipment is in proper working order, to — well, as a result of each flight the maintenance officer takes, he has to fill out a form, whether the aircraft was okay, or whether it had even minor discrepancies which would be listed in the form. When he lands and comes back from the flight, this is done; so there is a third reason for the flight, which is to insure the proper maintenance of the equipment which he has general supervision over.

"Q. As an aircraft technician? A. As an aircraft maintenance officer in the squadron and also as an air technician."

We hold with the District Court that in his civilian capacity as a caretaker of property of the United States Captain McCoy when on this flight, which entailed the performance of his caretaker and maintenance duties, was an employee of the United States within the terms of the Federal Tort Claims Act. See United States v. Holly, 192 F.2d 221 (10th Cir., 1951); Elmo v. United States, 197 F.2d 230 (5th Cir., 1952); United States v. Duncan, 197 F. 2d 233 (5th Cir., 1952); Courtney v. United States, 230 F.2d 112, 57 A.L.R.2d 1444 (2d Cir., 1956); United States v. Wendt, 242 F.2d 854 (9th Cir., 1957).³ He was so employed to assist the National Guard, but also to assist the United States. In his property maintenance function he was paid by, and the ultimate right of control over him was in, the United States. The functions lodged by the United States in the State Adjutant General did not serve to supplant this right of control in the United States, though it may be said to have been ancillary thereto. Such supervision as was lodged in the State did not make Captain McCoy an employee of Maryland. A foreman, for example, is not the employer of the one whose work he may in some respects supervise. There is of course a close relationship between the State of Maryland and the United States in the maintenance of federal property allocated to the Maryland National Guard, but this does not tip the balance toward the State on the issue of employment; for too much begins and remains with the United States in the case of these caretakers of federal property.

Perhaps the status of Captain McCoy can be described as an employment divided between Maryland and the United States, varying in relative amounts at different times and in different circumstances. But, in an ultimate sense the right of control was in the Federal Government at the time and in the circumstances of this accident, notwithstanding immediate authority or permission for the flight was given by the State through its militia officers. While such personnel are not within the Federal Civil Service the Federal Bureau of Employees' Compensation of the Department of Labor considers them to be federal employees entitled to compensation benefits under the Act it administers.

The United States contends that Congress,...