Maryland for Use of Levin v. United States

PETITIONER:Maryland for Use of Levin
RESPONDENT:United States
LOCATION:United States Post Office and Courthouse

DOCKET NO.: 345
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 381 US 41 (1965)
ARGUED: Mar 15, 1965
DECIDED: May 03, 1965

Facts of the case

Question

Audio Transcription for Oral Argument – March 15, 1965 in Maryland for Use of Levin v. United States

Earl Warren:

345 Maryland, for the Use of Nadine Y. Levin, Sydney L. Johns, et al., Petitioners versus United States.

Mr. Wolcott.

Theodore E. Wolcott:

May it please the Court.

These are suits for wrongful death under the Federal Tort Claims Act.

They arise out of the collision of a Capital Airlines Viscount plane and a T-33 military jet owned by the United States and used by the Air National Guard of Maryland.

The crash took place in May of 1958.

This case gets to the Court under rather unusual conditions.

There were two sets of suits started, one in Pittsburgh and the other in District of Columbia.

The District of Columbia suit was heard first on the issue of whether McCoy, the pilot of the jet T-33 was in fact an air maintenance air technician employed by the United States under Section 709 and therefore a caretaker of the aircraft at the time of the accident.

The District of Columbia, through Judge Mathews held a hearing on that, and found that he was, that the United States was liable.

Thereafter judgment was entered for damages and in the meantime the same suit by other passengers, the Capital Airlines plane came out to be heard in Pittsburgh.

Potter Stewart:

All the passenger were killed?

Theodore E. Wolcott:

Yes sir, all passengers were killed, the crew was killed of the Viscount, the T-33 had just the pilot McCoy and a passenger and the only survivor was McCoy.

There is no issue here as to the negligence of McCoy and nor is there any issue here as to the amount of the award for the wrongful death.

Potter Stewart:

The only question is whether or not McCoy was an agent of the United States within the meaning of the Federal Tort Claims Act?

Theodore E. Wolcott:

Yes sir.

[Inaudible]

Theodore E. Wolcott:

Yes sir, the government takes the stand that at the time McCoy was piloting the T-33, he was on a training mission as a military member of the Maryland Air National Guard and that therefore under the usual run of the Air National Guard cases there is no liability, whereas we take the position and the lower courts up to the circuit, Third Circuit held that McCoy at that time was serving in his function as caretaker air technician of the aircraft.

But the interesting thing about this case is that at the trial in Pittsburgh, Judge Gorrelli (ph) by a stipulation of all counsel, including government counsel, stipulated that the record in the District of Columbia would be the record in Pittsburgh and so we have a situation where the record is identical.

Meantime in the District of Columbia the government went up on appeal on this issue of whether McCoy was an air technician, maintenance technician under 709 or that he was purely a military member on a training flight.

The District of Columbia Circuit unanimously affirmed, writing an opinion through Judge Faye, finding that McCoy definitely was a care — acting in a capacity of a caretaker at the time and this was not a training flight.

In the meantime the —

Earl Warren:

That was found by the District Court, didn’t it, in the district —

Theodore E. Wolcott:

Yes sir the District Court plus the Circuit Court of Appeals and – for Washington Circuit and of course the Pittsburgh Court also found it.

In the meantime the government had also appealed from the Pittsburgh decision and I would argue that while the awaiting the decision of District of Columbia.

The District of Columbia decision came down first and I supplied the Third Circuit with copies of that decision.

Then the government applied to this Court for certiorari and certiorari was denied.

I supplied the Third Circuit with a copy of that.

Then a few months later the Third Circuit came down with the decision and this is on exactly the same record Your Honors, and with the District of Columbia Circuit decision before them and they reversed.

It was a split decision and the majority I might say, I think it fairly can be stated that the majority was divided as between themselves.

Theodore E. Wolcott:

Judge Smith wrote an opinion in which he interestingly enough made his own finding of fact, as I point out in the brief, disregarding the rule – on Rule 52, which is the less clearly the erroneous rule.

Judge Smith —

Earl Warren:

Did he find that the findings of the trial court was clearly erroneous in that respect?

Theodore E. Wolcott:

Well, what he did Your Honor was this.

He said that since most of the record was by stipulation, he was in as good position as the trial court to make his own findings and therefore he was not bound by the clearly erroneous rule.

I might comment on that by saying that the trial court had four witnesses, live witnesses before it, that is Judge Mathews here at the District of Columbia, as well as some depositions and it strikes me that if the clearly erroneous rule applies to a Circuit Court of the same circuit reviewing the testimony, it certainly would apply even more so to a court once removed as as the Third Circuit was and furthermore if that rule were to obtain then certainly counsel would be less likely to ever stipulate into the record a situation – as here because then they would be faced with an appellate court disregarding that is clearly erroneous rule and and there would be no incentive to save the time and trial of the Court.

Anyway Judge Smith held — he went on two points; firstly he held, that he would disregard the whole line of caretaker cases, the Holly line of decisions, which hold there where a caretaker maintenance man hired and paid by the United States under a Federal Statute operates a vehicle even though he is a non-activated military member of the State National Guard, the government is nevertheless liable because he is an employee hired to take care of the property and there are the whole line of Holly decisions, about four or five in number.

He also disregarded the Meyer decision.

He stated that he just didn’t see any distinction between a caretaker and a member of the National Guard for the purposes of liability under FTCA.

Then he went further and he said even assuming that McCoy was an employee under Section 709, nevertheless the United States not liable because this he found was not a flight in which he performed any duties as civil air maintenance caretaker, but it was a training flight and as to that point to say that, that is entirely contrary to the findings of both district courts, entirely contrary to the finding of the anonymous court in the District of Colombia Court of Appeals and also totally unsupported by the record and also a situation where the Court decided to the make its own new and contrary findings of fact.

Captain McCoy [Inaudible]

Theodore E. Wolcott:

Yes sir when Captain McCoy steps into that airplane he wears an Air National Guard uniform as a member.

And it’s the same uniform as the U.S Air Force.

Now if I may to go back into the background of this, the organization of the Air National Guard is very detailed and its founded upon a federal statutory structure.

There are a complete set of statutes under which the Air National Guard is setup.

It’s really a part as it is stated in 32 U.S 101 or 102 that the Air National Guard and the National Guard is a part of our first line of defense.

This is not the case anymore gentlemen where you have, when little malicious of the old days where they just stopped riots or worked in that order.

This is a 104th Fighter Interceptor Squadron using high powered, intricate armed aircraft that have as their range over a number of states and are part of a uniform integrated national organization supervised by the National Guard Bureau located in the Pentagon.

And every detail of the training is written in regulations of the Air Force issued by the Secretary of the Air Force and closely supervised in every detail with regular Air Force people stationed at the base supervising.

The United States finances this, every detail from top to the bottom, it supplies the equipment including this aircraft which was owned but the United States.

This aircraft being so intricate, a lot of the instruments of warfare that is supplied by the United States to this National Guard being so expense and intricate, they have to develop a highly specialized and trained force of technicians, so that the weekend warriors when they come can take out this very intricate and expensive equipment and fly it.

In an airplane that is particularly necessary because you need a lot of preventive maintenance, because if something goes wrong and you’re in the air it’s too late, you’ve got to do it before it gets into the air.

So they developed this core of technicians which the United States provided for the care of its own equipment and McCoy was one of them.

Under Section 709, they provide for the creation of this core of maintenance technicians, provide for payment, provide for fixing of hours, and rate of pay and then there is series of intricate detailed regulations which govern these technicians; leave, rates of pay, qualifications, manning schedule and so on.

They can’t just pick anybody out, they have to be qualified.

McCoy was trained under a government program.

He spent nine months at Cannon Air Force Base at government expense, where he was trained as an air technician, so he could qualify to maintain this government equipment.

Now at the time McCoy was at this base in Maryland, he was employed as a full-time civil air maintenance technician –

By Whom?

Theodore E. Wolcott:

By the government sir, paid by the Federal Government.

On government payroll?

Theodore E. Wolcott:

Yes, sir –

[Inaudible]

Theodore E. Wolcott:

He was paid directly by the United States Treasury.

[Inaudible]

Theodore E. Wolcott:

Yes, I would say that he was, because I think they were United States records, that’s right sir.

Byron R. White:

Was he carried on the records of the National Guard as an employee too?

Theodore E. Wolcott:

He was an employee of the Air National Guard as an agency and as an employee of the United States, that’s right sir.

Byron R. White:

So he was employed by two, by both the Air National Guard and by the United States.

Theodore E. Wolcott:

I would say that the most accurate way to put it sir would be that he was employed by the United States to assist the United States take care of equipment and also to assist the National Guard, because the equipment belongs to the United States.

The United States under the statute said that all of this equipment is and shall remain the property of the United States.

Byron R. White:

What if someone in the — some of the officers say that commanding general or whoever it was didn’t want to approve that flight that day, would he have prevented him from flying it?

Theodore E. Wolcott:

Yes sir.

Byron R. White:

Who could have?

Theodore E. Wolcott:

The member of the National Guard could have prevented him from flying that because it had to be approved by the member of the National Guard, in this case it was Colonel Kilkowski.

Byron R. White:

And what if colonel had wanted him to fly another one the next day, could he have ordered him to do it —

Theodore E. Wolcott:

Yes sir.

Byron R. White:

– if he had wanted him to check out some equipment.

Theodore E. Wolcott:

Yes sir, that was his function, to check out equipment.

Byron R. White:

And the colonel had wanted him to check out a particular piece of equipment in a certain way, he could have directed him to do it?

Theodore E. Wolcott:

Yes, sir because Colonel Kilkowski was also an air technician and that was his superior.

So he would know what he was doing sir.

As a matter of fact on that point, I might say that immediately after the accident that Colonel Kilkowski certified and — Colonel Kilkowski certified and had to make out an application for federal workman’s comp — federal compensation under the Federal Compensation Act as a federal employee and Colonel Ebaugh a federal officer, a United States officer, Air Force officer assigned to the State of Maryland as fiscal and property officer, well a federal employee certified to the U.S Department of Labor and interestingly enough he certified with emphasis.

He certified that at the time of this occurring, McCoy was acting in his capacity as air technician, civil air technician and not, and he underlined the word not as it turned out, and not as a member of the Air National Guard.

Byron R. White:

Well that I’m think was in itself, isn’t it?

That doesn’t reach the — does a negative impact as of the time he took off, just before and just after, he took off the Air National Guard that was directing his activities and could have, could have ordered him to land three seconds after he took off.

Isn’t that right?

Theodore E. Wolcott:

Well it’s possible sir that —

Byron R. White:

In performing services of civil — as a maintenance technician could still be under the control and direction of the Guard?

Theodore E. Wolcott:

As a matter of fact sir he was under the ultimate control and direction of the United States and not of the Guard because the United States is that one that over — that oversaw his qualifications, would accept his qualifications, they could hire and fire.

Theodore E. Wolcott:

They fixed his hours, they fixed his rate of pay, they tell exactly what his duties are.

Naturally if they won’t let him work that’s something else sir, but I’m talking about the direct supervision and control and the ultimate right of control which was in the United States.

Byron R. White:

Do you think United States could have come in here and set out that Colonel — he ordered the fellow to check his airplane out that day, he ordered you to do otherwise, they couldn’t have done that, but to nationalize the National Guard.

Theodore E. Wolcott:

Well they could have done that because he their employee.

They had that control over him all the time.

As a matter of fact —

Byron R. White:

[Inaudible]

Theodore E. Wolcott:

Well, may I say this Your Honor, on that point that under Section 709 and under the regulations ANGMR 40-01 which I referred to, they have — they can hire and fire him.

The only — the way that the Adjutant General of Maryland comes into it, he is merely acting under a delegated power, which is reserved be taken away anytime by the Air Force because he has to qualify, he has — and if they, for example, revoke his federal recognition then he is out, he is through, he can’t be paid anymore.

They are ones who pay him directly and they can cut off his pay.

There is every indicia of control.

Byron R. White:

But the Act that, that’s 324, isn’t it, section 324 you are talking about, his recognition?

Theodore E. Wolcott:

Yes sir.

Byron R. White:

Well, that’s not exactly saying if they withdraw recognition and somebody else has to fire him, the National Guard has to fire him?

Theodore E. Wolcott:

Well, there maybe–

Byron R. White:

Is that what it says?

Doesn’t it require his discharge if United States withdrew —

Theodore E. Wolcott:

Not quite sir.

I would put it this way that you maybe referring to the mechanics, but in effect if the United States withdraws its recognition sure there maybe a certain channel for which its effective, but the United States is the one that withdraws its recognition, the United States is the one that grants it.

Earl Warren:

Mr. Wolcott may I ask you this?

The employment of McCoy as a caretaker necessitate his being a National Guard flying officer?

Theodore E. Wolcott:

Yes sir for this reason.

In this particular — in this particular it isn’t necessary generally, but in this particular case, McCoy was Chief of Maintenance, Supervisor of Maintenance and in order to effectively perform his job, he had to be able to fly that aircraft and qualify as a pilot rated on military aircraft, but as it was stated by General Wilson and also by Colonel Kilkowski that in order to perform effective maintenance and to do the job, that it was necessary that he be able to fly the airplane to check the maintenance, see how it was performed, see how the airplane responded and as a matter of fact every time he did fly, he did check the maintenance, that was a part of his function as an air technician.

Earl Warren:

Suppose he had to, suppose he was able to get his efficiency rating through the Reserve Corp rather the National Guard, would that have been adequate for the job as caretaker?

Theodore E. Wolcott:

I would say that would have been as long as he was qualified to fly the airplane?

Earl Warren:

As a matter of fact you had to be qualified to fly as a military flier, but did it require him to — his main employment as a caretaker does that necessitate his being a member of the Maryland National Guard with flying staff?

Theodore E. Wolcott:

Not necessarily, he just had to have —

Earl Warren:

Not necessarily, he did or he didn’t?

Theodore E. Wolcott:

Well, I would say it didn’t except that in the case where he was an officer, a supervisor, as he was, he was in a supervisory maintenance capacity and as a matter of policy they required that he be an officer of the Maryland Air National Guard.

Earl Warren:

It wouldn’t suffice if he was a member of a Reserve Corp?

Theodore E. Wolcott:

Well, in that case it would, yes.

I am sorry, I misunderstood you, if you were a member of Reserve Corp, then you would have the rating.

In other words, he had the aeronautical rating, the ability to fly that aircraft, which was a necessary part of his job as Civilian Maintenance Chief.

As a matter of fact in the job description sir, of Supervisory Maintenance Chief it is stated that it is desirable that he be qualified to fly the aircraft.

[Inaudible]

Theodore E. Wolcott:

His immediate superior sir was Colonel Kilkowski who was the Chief Maintenance Technician for the base.

[Inaudible]

Theodore E. Wolcott:

Yes sir and he was the one who authorized this flight.

He was also — he had a title under the Maryland Air National Guard too.

I might, I might —

[Inaudible]

Theodore E. Wolcott:

Pardon —

[Inaudible]

Theodore E. Wolcott:

Yes sir.

I might add that, that when he took off, McCoy was carrying a passenger by the name of Charmers who was interested in becoming a cadet with the Air Force Flying School and he was in the sense recruiting for the U.S. Air force and Charmers had to sign a release to the United States in the event of any accident.

[Inaudible]

Theodore E. Wolcott:

Yes sir, that’s correct, but I was going to say sir in that connection that in view of the fact that the State of Maryland claims sovereign immunity the practical effect to that was just to the United States and apparently the United States was very much aware of that.

Mr. Wolcott your argument [Inaudible]

Theodore E. Wolcott:

Well, that doesn’t, I would say that’s only a small part of it, that–

[Inaudible]

Theodore E. Wolcott:

Under the regulations, the Air National Guard, the technicians are employees hired under 709 or Section 90, that under the Defense Act, where their duties are to repair, inspection of armament and equipment of the United States, they are highly trained and qualified for that purpose.

[Inaudible]

Theodore E. Wolcott:

It is quite different sir because this is the part of our first line of defense of maintaining a uniform national force and the government retains control, sets forth all the standards in detail, training qualification, use and so on, pays, pays for everything.

For example, here they paid for the buildings, they pay for everything single item of equipment at this base in Maryland.

The only thing they didn’t pay for probably was in janitorial duties and I believe there the State of Maryland has paid about 25%.

Arthur J. Goldberg:

You really draw no distinction between this man’s capacity as a technician and his capacity as a member of the National Guard?

Theodore E. Wolcott:

Well–

Arthur J. Goldberg:

Your case, in another words your case should be the same, your argument would be the same I gather the only–

Theodore E. Wolcott:

I do draw a definite distinction sir, in the sense that this had nothing to do with his duties as a member of the Maryland National Guard.

As an air technician he was employed full time to take care of these air crafts, supervise it, other employees are also paid by the United States from Tuesday to Saturday —

Arthur J. Goldberg:

Supposing you not been a technician at all, but simply a member of the National Guard?

Theodore E. Wolcott:

Then this would be a different case.

Then that would be, then this distinction that I talk about, which is based upon the caretaker line of cases would disappear.

However, I say this Your Honor that even if assuming, but not admitting, that he was not an air technician, I’d say that the structure and I am not original in saying that because it is commented by other appellate court judges that the structure of the Air National Guard is such that it’s a highly intricate, organized, efficient first one in force in our national defense structure supervised from top to the bottom, the qualifications of the men, the equipment, everything financed to the last cent practically.

The control of our government over that through the various defense, air force, army secretary is so detailed and so close, that actually all of these members of the various National Guards, particularly the Air National Guard are really employees of the United States under the FTCA and it is —

Earl Warren:

The cases support you in that.

Theodore E. Wolcott:

No, they don’t Your Honor, for this reason that the — there is a line of cases which hold that with respect to non-activated members of the National Guard that the United States is not liable under FTCA.

However, this however has not been passed upon by this Court.

A number of judges in some of these cases say that they feel that there should be no distinction and that the government should be liable because in essence this is really a national force and the other is really a fiction.

And —

Earl Warren:

You may conclude with a sentence or two.

Theodore E. Wolcott:

Yes sir.

Well, I might say Your Honor, that in addition to the certification by the government agencies that McCoy was an employee at the time, that there is presumption under the Law of Maryland, with presumption we have to heed under the language of the FTCA because if the government is a private person, would be liable under the law, the place it would happen, there is a presumption of the Law of Maryland that the operator of a vehicle is the agent or servant or the owner of the vehicle.

And also that he was acting within the scope of his employment, these are two very strong presumptions and there was no rebuttal, they’re rebuttable but there was absolutely no rebuttal on the part of the government.

Earl Warren:

Mr. Rose?

David L. Rose:

Mr. Chief Justice may it please the Court.

As has been indicated I think from the questions and the presentation of petitioner’s case, the only issue here as we see it, is whether the United States is responsible under the Tort Claims Act for the conduct of the pilot in question, who is both a Captain in the Maryland Air National Guard and an air technician of the Maryland Air National Guard.

Now we think that the decision of the Court of Appeals for the Third Circuit should be sustained on two independent grounds, our first position is that civilian employees of the guard have precisely the same relationship to the federal government as do guardsmen in their military capacity and like guardsmen in their military capacity they are not employees of the federal government within the meaning of the Tort Claims Act.

Potter Stewart:

So under that argument if we accept, it’s unnecessary to determine which of his two hats he was wearing at the time of this collision?

David L. Rose:

Exactly, we think it’s — there is no rational basis for making the government’s liability turn on the capacity in which he was acting at the particular moment.

Alternatively, however we take the position that here —

Earl Warren:

Wouldn’t that have some evidentiary value in a case of this kind or we do have sort of a mixed up situation, part state and part federal ownership and the federal government when this happens recognized clearly and consistently throughout it’s departments that the man was a federal agent, it has — it does have some well there —

David L. Rose:

We take —

Earl Warren:

MIt is not conclusive but it does have some bearings, does it not?

David L. Rose:

Well, we take an alternative position Your Honor, which is that —

Earl Warren:

Well I know, but how about that question?

David L. Rose:

Well, I think that the federal government has taken the consistent position that these are state employees both the tech and as civilian capacity and in his military capacity.

Earl Warren:

You have in the courts, but have you in the departments —

David L. Rose:

Yes, Your Honor.

There has been a consistent administrative interpretation since 1920 that these are state employees and indeed —

Earl Warren:

How about McCoy in this case?

David L. Rose:

Yes.

Earl Warren:

Did they?

David L. Rose:

Pardon?

Earl Warren:

How about the treatment they gave Mr. McCoy?

David L. Rose:

Well, there has only been one exception to this administrative interpretation and that’s in regard to compensation.

The federal — the Bureau of Employees Compensation under the Federal Employees Compensation Act does award compensation to these people, but —

Byron R. White:

[Inaudible] —

David L. Rose:

No.

Byron R. White:

– and the National Guard —

David L. Rose:

Exactly Mr. Justice White, they also grant compensation in certain circumstances to the guardsman acting in his military capacity, so there is —

Byron R. White:

This is pursuant to a general statute applicable to National Guard officers?

David L. Rose:

No Your Honor, it’s under the Federal Employees Compensation Act and that has been interpreted by the bureau to extend to persons who receive pay, the bulk of their pay from federal sources.

Byron R. White:

That applies to National Guard military?

David L. Rose:

Yes, Your Honor.

Yes.

So that the federal government does not draw the distinction that Your Honor adverted to and indeed the regulations here under which this man was employed, stated expressly that he is employed, considered employee of the state.

Byron R. White:

But isn’t there a statute which expressly says the compensation provision shall be applicable to these people or not or is that just an administrative interpretation?

David L. Rose:

That’s just an administrative interpretation as I understand it Your Honor.

Government never challenged [Inaudible]

David L. Rose:

There is no way, no judicial review Your Honor and the bureau’s decision is final, but let me say that Your Honor that the compensation, the coverage or the employment relationship under compensation statutes has traditionally been considerably broader than the employer/employee relationship for carrier’s Tort liability.

In one instance the real question is who foots the bill, that’s the compensation test and if I carry this Tort liability, the question is who has control and that’s usually a narrower test and we think if that dichotomy is followed here that you’ll find that this person was a state employee.

I think it’s fair to start from what I take it to be the established proposition that personnel of the Guard in their military capacity are state employees and not federal employees under the Tort Claims Act.

The National Guard is defined as the federally recognized militia of the states and although the National Guard is paid from federal funds, it’s armed and equipped by the federal government and the discipline and training and organization are in accordance with federally prescribed standards.

The day-to-day direction and supervision and control of the Guard is in the states and the states retain the right to select and appoint the personnel and to supervise and discharge them.

For this reason therefore the courts —

[Inaudible]

David L. Rose:

No, it can’t.

No, approval by the federal — as for officers approval by the federal government as a prerequisite to receiving federal funds but they — the National Guard officers who are not federally recognized and therefore do not receive federal funds are in fact retained by the states.

[Inaudible]

David L. Rose:

Yes, Your Honor.

[Inaudible]

David L. Rose:

Yes, Your Honor.

[Inaudible]

David L. Rose:

Yes.

[Inaudible]

David L. Rose:

Both from the federal government.

And his employment in a civilian capacity was a condition prerequisite — his employment in the military capacitor, his commission as an officer was a condition prerequisite to his employment as a technician.

But the uniform decisions of the courts both state and federal have held that state employees are, excuse me, military personnel of the Guard are not federal employees despite the fact that they are paid from federal funds and despite the fact that they must be federally recognized, because the states control and direct them and select the men for employment.

It’s the states who initiate the selection of officers and indeed at the enlisted man level the federal government can only withdraw a grant recognition on a unit basis.

As for the officers it’s granted on an individual basis.

[Inaudible]

David L. Rose:

Well, I think it was — the relationship was establish basically in 1916, Your Honor by the National Defense Act in which the federal government laid down standards and setup this mechanism of federal recognition in return for granting federal pay.

That changed, but since then the relationship I think is basically the same.

The courts have as I’ve indicated uniformly interpreted this relationship to be that the state, the militia, the state guardsmen in their military capacity are employees of the state and not of the federal government.

And this uniform line of decisions was in effect ratified and approved by Congress in 1960 in the adoption of Public Law 86-740 which is popularly called the National Claims Act.

Congress expressly referred to this line of decisions and stated that it accepted them.

At that time it was proposed to broaden the Federal Tort Claims Act to encompass military members of the Guard as well as — the amendment would be to broaden the Tort Claims Act, to provide for coverage of both military and civilian personnel of Guard.

And Congress rejected that proposal on the ground basically that there was insufficient federal control who warrant the imposition of Federal Tort Claims Act liability.

On page 24 of our brief Your Honor —

[Inaudible]

David L. Rose:

Yes Your Honor.

The Senate Committee said we have decided not to broaden the Tort Claims Act because to encompass such personnel because the crux of this matter lies in the fact that the National Guard is primarily under state control as opposed to federal control.

And House Committee said the same thing and in fact, it’s not appropriate to grant juridical relief against United States under the Tort Claims Act in this situation because and I’m quoting again, Federal Authorities do not have command and control over National Guard Units and members not in active Federal Service.

Byron R. White:

Now, whatever it was — you say that was meant to cover a civilian employee such as we have here as well as the military?

David L. Rose:

Well, the bill that was originally introduced Your Honor would have broaden the act to encompass both civilian personnel and military personnel and Congress rejected that bill and in its place in its entire units, place provided at administrative and legislative remedy for both military personnel of the Guard and civilian personnel Guard.

Now and the legislative history reflects the Congress wish to assume its moral obligation for damage done by guardsmen in either capacity.

The legislative history indicates that because the guard is equipped with modern weapons such as Jet aircraft and tanks and anti-aircraft missiles and it has become a reserve component of the national defense forces that they wish to assume a moral obligation, and wish to handle that obligation administratively and legislatively, if you will.

For claims of less then $5,000, the secretary was authorized to pay them himself, for claims, in excess of that amount, he was authorized to pay $5,000 and refer the matter to Congress in effect for a mechanism comparable to prior bill.

But in short, Congress has ratified the uniform line of decisions holding the personnel in their military capacity are not federal employees and provided this legislation instead.

Do you have [Inaudible]

David L. Rose:

Yes, yes, both lines were considered Your Honor.

One was in effect adopted as a basis for action, the line holding that the military personnel are state employees.

The other was recognized and it was indicated that this Court had not passed upon it and Congress instead of adopting no legislation in regard to the civilian personnel chose to provide this very same administrative and legislative remedy as it did for the military personnel.

[Inaudible]

David L. Rose:

But it wasn’t — it wasn’t a direct repudiation Your Honor.

It was indicated that this line was dubious, because it was in conflict with the uniform administrative interpretation.

It was also what Congress did I think was the most significant thing.

Although the courts that adopted this distinction between military and civilian, Congress declined to do so.

Congress provided the same remedy in regard to both and if it had wished to ratify both lines of decisions, all it had to do is to provide this remedy for the military personnel and not for the civilians, instead they provided it for both, they treated them the same.

[Inaudible]

David L. Rose:

Well, I think this is — this is a possible interpretation Your Honor, but I think that Congress recognized that there was no rational bases for distinguishing between the two and I would like to address myself to the relationships in regard to each.

Byron R. White:

Well, I hope you touch on what theory of the decisions was that distinguished it —

David L. Rose:

Yes, I will attempt to do Your Honor.

In response to the Chief Justice’s question to Mr. Wolcott, all civilian employees with the exception of few typists must be must be selected from members in officers of the National Guard.

This is because they are the key personnel of the guard who keep the units ready on a day-to-day basis and that is found in the regulation on page 73, paragraph 2B.

Earl Warren:

– of the record.

David L. Rose:

On my brief Your Honor of the government’s brief, excuse me.

Page 73 towards the bottom of that page, it says Air National Guard Civilian Personnel must be federally recognized members of the Air National Guard of the state territory etcetera except for females and temporary personnel.

Grade three typists were described in the record as the only personnel who are not military members and the reason for this is that the other guard —

Earl Warren:

Does that includes caretakers?

David L. Rose:

That’s what.

This is the regulation providing for caretaker.

They are called air technicians by the regulation Your Honor.

Earl Warren:

But this National Guard was not recognized, was he federally recognized?

David L. Rose:

He was federally recognized, yes indeed Your Honor.

He was not in in federal service.

Earl Warren:

But not — just not in —

David L. Rose:

Not in active federal service.

This was a regularly recognized National Guard Unit of the Maryland Air National Guard.

David L. Rose:

In order to qualify for civilian employment or so called caretaker employment, you must be a member of the Air National Guard and indeed you must hold the same position in your civilian capacities you do in your military.

Now the so called caretakers perform the very same functions that in their civilian capacity that they do in their military.

They perform training functions, operations and supply and maintenance.

In each capacity the federal government pays most or all of their salary.

In each capacity the checks are drawn on the Federal Treasury.

In each capacity the federal government provides, supplies of equipment.

In each the federal government says minimum standards.

But in each, the only sanction for failure to comply with these standards is withdrawal of federal recognition, cutting off federal funds and in each case Your Honor, the individuals who are to be employed are selected, hired, promoted, and demoted by the Adjutant General of the state or someone acting for him under the policy and direction of the Governor of the State.

Earl Warren:

I notice the petitioner in this case contends that he could be fired directly by the Federal Government.

David L. Rose:

That is incorrect Your Honor.

There is direct testimony to the contrary in the record and it’s also in the regulations themselves which I just referred you to, you refer to page 74.

The authority to employ fixed rates of pay, establish work hours, supervise and discharge employees is in the Adjutant General of the states.

Byron R. White:

[Inaudible]

David L. Rose:

Yes, Yes and that in fact applies only to the military side Your Honor.

The withdrawal of federal recognition is as – his recognition as an officer of the Guard.

Now if he were — if that recognition were withdrawn, he would automatically be disqualified from holding his civilian employment at the same time.

Arthur J. Goldberg:

As far as going back to regulation of the event, is it or is it not of significance that the way it’s formulated, at the start of the beginning of – authority is delegated to the Adjutant General.

David L. Rose:

Yes sir.

Arthur J. Goldberg:

And that looks like an authority delegated by the United States?

David L. Rose:

Yes and this is one of the — this is one the basis that the courts are relied upon.

However, if you refer to the statute itself Your Honor, you will see that it was not — I think that it’s not the statute doesn’t authorize the secretary to delegate any authority.

The authority was always in the state.

If you refer to page 68 of our brief, that is the statute itself is at the very top of that page and they are referring to the — the secretary concern shall fix the salaries and shall designate the person to employ them.

Now originally under caretaker statutes, the individuals were detailed by the unit commanders.

However, in 1935, they wished to allow this to be done on a state wide basis and the legislative history of the 1935 Act which we have set-forth on page 31 of our brief indicates quite clearly the congressional understanding and intent under present law and I am quoting now from the senate report, under present law states are required to select caretakers from the units that have the material.

Section 6 will permit the handling under the Adjutant General or other proper state officials of the caretakers as approved.

In other words, the congressional understanding has always been that state officers are the ones to select the employees, to select them and to supervise them.

Now, if the Court please I would like to–

Earl Warren:

Does the fact that they are required to go to a school for nine months, Federal School where they are paid by the Federal Government in order to qualify as a caretaker have any significance–?

David L. Rose:

Your Honor that was, he was sent to the Federal School in his military capacity as an officer of the Air National Guard as is frequently done in these cases.

David L. Rose:

We think that this indicates that the Federal Government has a close relationship with the Guard, but it’s not a basis for distinguishing between the guard in his military capacity and the guard in his civilian capacity.

In each capacity, they are hired by the commanding officers subject to the approval of the Adjutant General, in each they are supervised and directed by the same person and in each they wear the same uniform, in each capacity, they are a paid by checks drawn on the Federal Government.

But in each capacity, the states acting through the Adjutant General under the direction and supervision of the Governor has the right to select the people, to direct them, to set the working hours and conditions and to tell them when, where, and what to do and when to do it and this we think is the critical test under the Tort Claims Act.

In addition to the lack of a rational distinction between the personnel in their military capacity and those in their civilian capacity, we have a long-standing congressional intent and understanding that they be considered employees of the states rather than — than federal employees.

Ever since 1920 or before when the Act was new this has been the administrative interpretation and as I’ve indicated before, it’s in the very regulations under which this man was hired that he is a state employee.

Moreover, it’s been adopted by Congress as a basis for action.

For example, in 1954 because these persons were not employees, where not considered to be employees within the meaning of the Civil Service Retirement Act, Congress adopted — amended the Social Security Bill and said that for those purposes they shall “be deemed to be employees of the state.”

Similarly retirement legislation allowing payroll deductions for state retirement funds was based and this quote is set forth on page 36 of our brief on the understanding of these employees although paid from federal funds are considered to be state rather than federal employees.

And as I’ve indicated earlier, we think the very adoption the National Guard Claims Act itself, Congress recognized there was no rational basis for distinction.

And in regard to both of these, Congress shows to provide an administrative and legislative remedy rather than a judicial remedy and we think the type of remedy which should be afforded is clearly a policy matter for Congress in that it’s policy decision should be honored by this court.

In both capacities, we think there is a close analogy between a government doing things with the assistance and if you will through the state and the government doing it through independent contractors and the Tort Claims Act although recognizing — the Tort Claims Act shows we think that it was not intended to resume tort liability for persons merely because the government paid the bill and then in ultimate sense controlled the program because Congressmen express exception to the Tort Claims Act for the employees of independent contractors.

Similarly, we think that the program here, the National Guard program is closely analogous Mr. Justice Goldberg to similar programs where the Federal Government supplies part or whole of the money to the state setting forth criterion standards which the states must meet in order to get that Federal money.

If the state did not wish to have National Guard troops or didn’t wish to have a unit, they would be perfectly free to do so.

Arthur J. Goldberg:

[Inaudible]

David L. Rose:

Yes, Your Honor.

Arthur J. Goldberg:

[Inaudible]

David L. Rose:

My understanding is the answer is yes.

I think the— I have in mind the–

Arthur J. Goldberg:

[Inaudible]

David L. Rose:

Yes I think that that program sets forth the standards for the state employees to administer it, I think the vocational educational programs.

Arthur J. Goldberg:

[Inaudible]

David L. Rose:

Yes, Your Honor it furnishes the money.

Arthur J. Goldberg:

[Inaudible]

David L. Rose:

Well, that’s how it’s done here Your Honor, if you look at the statute, it says that the secretary may allot from funds from appropriated funds money, may spend money for these purposes.

Arthur J. Goldberg:

[Inaudible]

David L. Rose:

Yes, but it’s from the funds allotted in the Federal Treasury to the states for National Guard purposes.

Arthur J. Goldberg:

[Inaudible]

David L. Rose:

Well, the easy answer is that they do it in the military side, as well as on the civilian side.

I am not perfectly sure Your Honor.

It is my understanding that there are other programs of this kind, but I am not positive and I wouldn’t want to give you a firm answer.

David L. Rose:

Let me say in the answer to Mr. Justice White’s question a few minutes ago that one of the basis for the Holly Line of decisions which has said that these are civilian employees was that the — that the authority of Adjutant General was delegated to him that was basically a state authority, no a Federal Authority and I think I’ve already refuted that by reference to the legislative history of the 1935 Act.

The other basis for — another basis for the Holly decision was that the Federal Government is supplying these technicians in order to maintain federal property.

But the National Defense Act that which caretaker statutes is a part sets forth expressly the fact that the maintenance of property is the state function and responsibility just as the training and the other operations of the National Guard are.

And lastly the Holly decision rested upon the idea that the Adjutant General was merely acting, the Adjutant General of the state was merely acting as an agent of the Federal Government in administering this caretaker program.

That is wholly incorrect.

The Adjutant General is appointed and subject to the direction and control of the Governor of the state.

Indeed in many instances the Adjutant General is not even a federally recognized officer of the National Guard.

He is appointed and subject to the direction and control of the state government and all his conducts, all his actions are done by order of the Governor as it is indicated in this case in page 662 and 663 of the record.

You’ll see the change of McCoy status from one air technician status to another and it says Adjutant General by order of the Governor, that’s the way the Adjutant General administers this whole program, both the military side and the civilian.

Now, lastly I would like to turn briefly to the question of what capacity he was acting in.

The orders at the moment, this is our alternative position, the orders which are set forth in page 209 indicate that he was ordered to fly in his military capacity as a military member of the guard.

It was assigned by order of the squadron commander that is the person who gave him the direction was the squadron commander.

Similarly–

Byron R. White:

Kilkowski?

David L. Rose:

Kilkowski, yes Your Honor.

Byron R. White:

[Inaudible]

David L. Rose:

Yes, he was but it was clearly — the order was clearly given in his military capacity.

It was given as by order of the squadron commander.

The chain of command in both instances went back to the Adjutant General and to the Governor.

But in giving this military order he was clearly wearing his military hat.

This is also we think clearly a training flight.

The District Court found that it was a proficiency flight and the word proficiency is indicated by the record by everyone who testified on the subject proficiency in training means the same thing and Colonel Kilkowski and Captain McCoy both indicated that these flights which both the air technicians and the weekend warriors, if you will, made during the week because they couldn’t do it all during their regular training period, these proficiency flights were training flights, a function reserved to the state.

Earl Warren:

May I ask you if Colonel Kilkowski or whomever like that wanted McCoy to make a test flight to test the proficiency of the airplane, would he have done it as a member of the National Guard?

David L. Rose:

Captain McCoy indicated that when he made flight checks that this was also done in his capacity as Captain of the — as a Captain and officer in the Maryland Air National Guard.

But this particular flight had no specific maintenance purpose, this was conceded by all.

The general understanding was that was it was a proficiency flight, a training flight, that was the understanding of both captain McCoy and Colonel Kilkowski and that was what the order which directed them to make the flight said.

Earl Warren:

But do you know what the practice was where you just made a test flight, whether that was done by as colonel as a part of the National Guard or whether it was done as a caretaker?

David L. Rose:

There was testimony Your Honor that when a pilot in the Maryland Air National Guard flew an airplane he did so on his capacity as a military member of the Guard.

Earl Warren:

[Inaudible]

David L. Rose:

Yes Your Honor, that was the general testimony.

David L. Rose:

But here it was a training flight.

We think it is even clearer that this was a military type flight.

This military training committed but the constitution and by the statutes to the control of the state and —

Byron R. White:

[Inaudible]

David L. Rose:

That’s my — that was what the record here would indicate.

Byron R. White:

[Inaudible]

David L. Rose:

No Your Honor we think that even if they were other flights that this particular flight was clearly a military flight because it was a training flight.

Byron R. White:

[Inaudible]

David L. Rose:

Yes, there are flight checks for — which have primarily a maintenance function.

But Captain McCoy was both the aircraft maintenance officer in his military capacity as well as being the maintenance chief in a civilian capacity.

Byron R. White:

[Inaudible]

David L. Rose:

Yes Your Honor.

Byron R. White:

[Inaudible]

David L. Rose:

No, no I said it would be.

I think they’re both, but I think it’s clean and clear here —

Byron R. White:

[Inaudible]

David L. Rose:

Not as I understand the record Your Honor, but —

[Inaudible]

David L. Rose:

Yes Your Honor.

[Inaudible]

David L. Rose:

Well Your Honor if you look at his deposition which is further on in the record and I’m afraid I don’t have the page number at my fingertips, but his deposition indicates, he states specifically about these flights that because as an aircraft maintenance chief there was no requirement in his job description as aircraft maintenance chief, there was no requirement for him to fly.

He himself thought that when he perform these functional test flights he was doing so in his military capacity as aircraft maintenance — I’m sorry as squadron maintenance officer which was his military function.

But we don’t think it is necessary to go that far Your Honor, because this was concededly not a functional test flight.

The only function, the only maintenance functions which he performed here were looking at the instruments and seeing how the airplane flew, the same thing any pilot does at anytime and the critical test under Maryland law is who has the right to supervise and direct and control and that test we think here is met only by the state with the right to direct and control was wholly in state officials acting under the general supervision and direction of the Adjutant General and the Governor.

Byron R. White:

Well this throws the — because they add the general functions with regard to the civilian personnel different at all from the function regarding the military personnel.

David L. Rose:

Not in any meaningful sense that I know of Your Honor.

If Your Honor will refer to page 662 and 663 of the record, you can see then kind of the orders that were issued both in his military capacity and in his civilian capacity and you see that they’re exactly the same, page 660 —

Byron R. White:

Well these courts that have held against you on this distinction must have held, saying that the adjutant general for example was acting as the agent of the United States.

David L. Rose:

Yes.

Byron R. White:

– certainly for administering the civilian program.

David L. Rose:

That’s right.

Byron R. White:

They must have thought his position was different than say as agent for the United States during the military program?

David L. Rose:

Yes that’s, right Your Honor, we think they are in basic error and we think there was just a basic misunderstanding of the relationship here.

In each instance the adjutant general asked by order of the Governor for the general supervision and direction and control of the Governor.

Indeed it would be very anomalous Your Honor if I may just conclude on this note, to say that for the entire work week these people are civilian employees and therefore under the control of the federal government and that the only time the state asserts its control over the National Guard is on the weekend when they have a training drill, because 20% of the personnel are they are on the base working in their civilian capacity all during the week and the Governors we think would be very shocked and surprised to learn that they didn’t have control over the National Guard when it was not in active federal service.

We think the relationship is the same for all rational purposes, the only distinction being whether someone is subject to court marshal or not, during the week he would not be, during weekend he would.

But as far as any relevant criteria, we don’t think there are any basic distinctions.

We think that Congress has chosen to prescribe an administrative and legislative remedy and we think the Congressional decision should be honored by this Court.

Earl Warren:

You have completed your arguments.

We gave you a little extra time too.

So if there is no response —