Liability of United States for Independent Contractors Performing Advance Work in Connection With the Official Travel of the President and Vice President

• Court: Department of Justice Office of Legal Counsel
• Decided: April 6, 1979
• Status: Published

Opinion

April 6, 1979

79-21 MEMORANDUM OPINION FOR THE COUNSEL TO THE VICE PRESIDENT

Advance Personnel—Federal Tort Claims Act (28 U.S.C. § 2671)—Form of Contract

O n June 23, 1978, this Office gave its opinion that compensated or un­ compensated part-tim e advance personnel for the President or the Vice President would be Federal employees under the Federal T ort Claims Act, 28 U .S.C . § 2671, and that the United States would therefore be exclusively liable under 28 U .S.C . § 2679(b) for damages arising out o f automobile ac­ cidents occurring in the course o f their official duties. The form contract o f employment used by the Office o f the President and the Office o f the Vice President for these individuals designates them as independent contractors, and you have asked us to consider the effect o f this language on our pre­ vious opinion. It is our understanding that advance personnel are hired by and act under the close daily supervision o f Presidential or Vice Presidential employees. They perform logistical tasks for official trips that include making hotel, travel and sound-system arrangements. While the more experienced person­ nel have greater independence o f action than do the others, the day-to-day activities o f all are controlled by Governm ent employees through frequent com munication. The selection o f the cities and events the President or the Vice President visit and even the more m inor decisions, in most cases, are the responsibility o f the Presidential or Vice Presidential staff. On the foregoing basis, it is our opinion that personnel performing advance work are employees within the meaning o f 28 U.S.C. § 2671, despite the language o f the employment contract. The Supreme Court has said that employees o f a contractor who are not acting under the close, daily, physical supervision o f the Federal Government are not Federal employees. United States v. Orleans, 425 U.S. 807 (1976); Logue v. United States, 412 U.S. 521 (1973). But individuals who contract with the Federal Government and who act under the close, daily, physical supervision o f Federal employees should themselves be considered employees for purposes o f the Act, regardless o f

138 the form o f the contract. See, e.g., Witt v. United States, 462 F. 2d 1261, 1263-64 (2d Cir. 1972); United States v. Becker, 378 F. 2d 319, 322-23 (9th Cir. 1967). The exclusion o f contractors from the definition of Federal agencies in § 2671 should not defeat application o f the common law o f respondeat superior to individuals who contract for their services with a Federal agency. The critical element for liability is the Governm ent’s power “ to control the detailed physical perform ance o f the contractor.” See, Logue v. United States, 412 U.S. at 527-28. We suggest, however, that the word “ independent” preceding “ contractor” be struck from the language o f the form. As advance personnel do not act in­ dependently, this terminology can only confuse their status under § 2671. It is appropriate to retain the word “ contractor” rather than denominating the advance people “ consultants” when contracting for their services. The authority o f the President and the Vice President to procure the tem porary or intermittent services o f consultants is set forth in Pub. L. No. 95-570, 92 Stat. 2445 (1978). The Civil Service Commission in subchapter 1-2 o f Federal Personnel Manual C hapter 304 states that a consultant who is excepted from the competitive service by statute is “ a person who serves as an adviser to an officer or instrumentality o f the Government, as distinguished from an officer or employee who carries out the agency’s duties and responsibilities.” Advance personnel do not serve as advisers; they simply carry out responsibilities assigned to Presidential or Vice Presidential employees. Finally, we remind you o f our recommendation that you inform those hired to perform advance work o f their reporting responsibilities under the Federal Tort Claims Act. It would seem most appropriate to include this information in the contract.

Leon U lm an D eputy Assistant A ttorney General Office o f Legal Counsel