Courtney v. United States

230 F.2d 112

• Court: Court of Appeals for the Second Circuit
• Decided: February 16, 1956
• Docket: Nos. 157, 158, Dockets 23736, 23737
• Status: Published

Opinions

HINCKS, Circuit Judge.

The sole issue on these appeals is whether a civilian caretaker employee of a federally recognized but nonactivated National Guard unit is an “employee” of the United States within the meaning of the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b). The District Court held that he is not such an “employee in an opinion reported at 126 F.Supp. 217.

Truex, the alleged Government “employee,” was a civilian caretaker of federal equipment loaned to the federally recognized but not activated New York National Guard. The claims sued on arose out of his conduct in driving a military vehicle known as a Tank Retriever M-32 entrusted to his care. His employment depends ultimately on 32 U.S.C.A. § 42 which authorizes the employment of caretakers, under regulations of the Secretary of the Army, for the care and maintenance of material, animals, armament, and equipment belonging to the United States and assigned to National Guard organizations. 32 U.S.C.A. § 47. The Secretary of the Army, pursuant to National Guard Regulations No. 75-16, dated December 29, 1947, “has delegated to the several adjutants general of States, Territories, and the District of Columbia, authority to employ, fix rates of pay, establish duties and work hours (not to exceed 40 hours per week), and to discharge employees within the purview of this regulation ; subject to the provisions of law and such instructions as may from time to time be issued by the Chief, National Guard Bureau.” It was agreed that Truex was paid by the Government.

The adjudicated cases appear to be unanimous in treating caretaker employees of non-activated National Guard units as “employees” within the meaning of the Act. United States v. Holly, 10 Cir., 192 F.2d 221; Elmo v. United States, 5 Cir., 197 F.2d 230; United States v. Duncan, 5 Cir., 197 F.2d 233.1 However, these same courts hold that members of such units are not “employees” within the Act. Williams v. United States, 10 Cir., 189 F.2d 607; Dover v. United States, 5 Cir., 192 F.2d 431; McCranie v. United States, 5 Cir., 199 F.2d 581.²

The Government argues that the same considerations governing treatment of National Guard members should govern classification of National Guard employees since both classes are paid from federal funds, authorized by federal statute, compensated under regulations of the Secretary of the Army, paid on standard U. S. Forms, and federally regulated. However, since there is no controlling precedent in this Circuit establishing the status of National Guard members under the Act, we are unwilling to base our decision on the suggested premise.

We agree with the Holly, Elmo, and Duncan decisions, supra.³ The District Court distinguished those cases because they did not involve the New York National Guard and cited New York authority to the effect that enlisted guardsmen are agents of the State of New York. The appellants vigorously contest the applicability of that authority to civilian employees such as Truex. But we need not decide whether or not Truex is an “employee” of the State of New York. Whether he was an “employee of the Government” is wholly a federal question based upon federal statutory interpretation. 28 U.S.C.A. §§ 1346(b), 2671. Consequently, his status under New York law is irrelevant. Moreover, we know of no rule of law that service to federal and state governments is incompatible or that one cannot be an “employee” for some and not for other purposes.

Reversed and remanded.

2 . Mackay v. United States, D.C.Conn., 88 F.Supp. 696; Larkin v. United States, D.C.W.D.N.Y., 118 F.Supp. 435; Satcher v. United States, D.C.W.D.S.C., 101 F. Supp. 919; Glasgow v. United States, D.C.N.D.Ala., 95 F.Supp. 213. But cf. La Bombard v. United States, D.C.Vt., 122 F.Supp. 294.

3 . In each of those decisions the caretaker was also a member of the Guard. In the instant case the employee, Truex, was not. Therefore, even assuming the validity of Williams, Dover, and McOranie, supra, the case here is stronger for the appellants.

1 . Cf. O’Toole v. United States, 3 Cir., 206 F.2d 912; Watt v. United States, D.C. E.D.Ark., 123 F.Supp. 906.