Section 21.5 Determining Factor

• Library: Tort Law 2016

3. (§21.5) Determining Factor

The critical element in determining when someone is a federal employee for purposes of the FTCA is the power of the federal government to control the detailed physical performance of the employee’s duties. See Wollman v. Gross, 484 F. Supp. 598 (D.S.D. 1980), aff’d, 637 F.2d 544 (8^th Cir. 1980), reh’g denied, 646 F.2d 1306 (8^th Cir. 1981), cert. denied, 454 U.S. 893 (1981).

Consistent with this analysis, a federal district judge trying cases as a member of the independent judiciary is not under the control of the United States and, therefore, is not an employee of the government within the meaning of the FTCA. Foster v. MacBride, 521 F.2d 1304 (9^th Cir. 1975); see also McQuade v. United States, 839 F.2d 640...