Federal Tort Claims Liability-Who Are United States Employees?

• Author: By Major James L. Livingston
• Pages: 04

The bas~s or respondent s~~pe~iorlzabilzty of the United

Stntes io? the torts of its employers is the subject of this art;& Seceral theories regardinp the status of poi-irnmrni rnipiogees are dlsmsed, with particular em-ohask on the emblems created bu the irteraetion of ~ ~ n - p o ~ . e r n m e n ~ ~ ! ernp!ogrrs. In c~nelusion, the writ& asserts that the increasing liberalization of court deci-sions tnrolhng the Federal Tort Claims Act has prop-erby fu1,filled ligzslatii e intent.

I. ISTRODUCTIOK

The Pederal Tart Claims Act is a qualified congressional waiv-er of the sovereign immunitr of the United States from tort liability for negligent and iwangful acts of government employees. Subject to certain provisions listed at 28 U.S.C. B 2680,* the feder- 81 district courts were granted exclusive jurisdiction of civil ac- tions on claims .sga.Int the United States: [Flm mom? damages, accruing on and after January 1, 1946, for ~njur? or loss of properr?, or personal injury or death caused by the neg1iger.r or wranpivl act or ommion of any employee of the Goy. Cmmwr while acting xithin the 6eope of his office or emp1o)ment. undei circumstances where the United States, d a pnrate perron, would be liable :o the c:aimant in accordance w t h the law of the place where the act or omi~smn occurred 2

Since the passage of the PTCA, numerous federal cases have arisen in which the courts have decided the issue of status as an employee of the United States Government within the meaning of

-This article wm adapted from B thew presented to The Judge Advocate General's School, U S. Army. Charlattewllle, Virginlaa member af the Seventeenth Ad%-anced Course. The ~ p m o n s and eon~lu?mn% presented herein are those of the author and do not neeersanly represent the iiews of The Judge Adsocare General's School or any other governmental agene>

"JAGC, T.S. Army, Office of the Staff Judge Adiaeate, C.S. Army Prlmar? Helicopter Center, Fort Koltecs Texas' B.S 1961 United States Military Academy; J.D.. 1966. Vmuersity'of Flo;ida &llege)of Law. Member of rhe Bar of the Srate of Flar.da and the American Bar Aiaoc~ai~on.

'Tltle IV Legislative Reorganization Act of 1946 Ch 753 60 Stat 642 amended, 2; U.S.C. ( 3 1291, 1346(bj. (e), 1402. 16d4, 2110, 2401. 2402, 2il1,2412. 2671-60 119641, M omsdud, 26 U S C. 08 2401, 2671, 2672, 2675. 2677-79 (SUPP. IV, 19691 [hereafter elted BJ FTCA].zThirreen ac:irinei are i~eeifieall~exeeoted from the soveremm ~mrmnitu . . .

wmver of the ETCA

128 C.S.C. S 1346(b) 119641, ad amended by 60 Srat. 307 (1966).

A6 MILITARY LAIT- RETIEWthe FTCA. In every ease resulting !n liabi

ployee of the government

wiil be discussed throughout this article.

The FTCA provides the basic statutor, standards for the IxI:. eial determinarion of the issue of government emp!urmeni The context of the phrase. "employee of thp gowrmner.t," er;prrssl. includes.af as? federal aecner rrembeir of t i e ni-rhe h i r e d States, and persans a c n g PT, ber .n an official rapae.ry. ter'pora:.ly or per-ce of the In.fed Starer vhethrr aith m

The term "federal agency" 1s defined in [he same tltle and sectmn of the FTCA to include "the exeiiitive departments. the milltar? departments, independent estahlishmenta of the Vnited States. and corporations primarily acting as instrumentalities or agencies of the United States," ' hut not to include any contractor with the United States.' Judicial interpietation of these starutory definitions has resulted in much clanfication of the meaning of emplovee of the government. The courts faced mth the problem of Identifying government employees have had to consider numerous factors in addition to the abovementioned statutory definitions. which m practice amount to broad generalities requiring refine-ment by application of FTCA decisional law. Since the FTCA definitions of gorernment emplwee and federal agency are not re-statements af common.law concepts. nor sufficient15 definitive Ststutory substitutes for the traditional meaning of emgloyee or

28 U S.C 3 2671, M amended by SO Sta; 30: (1966)s Id

b

Id

FEDERAL TORT CLAIMS

agency, the courts have been confronted with the task of determining whether the FTCA definitions preempt or implement the common-law definitions: Furtheirnore, it has been necessary to resolve the related issue of choice of federal or state la\

Where an alleged employee fads to qualif3- as a government employee under any of the three distinct categories set forth in the definitions section (k,officers and employees of any federal agency, members of the military and naval farces, and persons acting an behalf af a federal agency in an official capacity. wth or without compensation, temporarily or permanently), the courts have had to go beyond the wording of the Act to determine if such a person \%-as intended to be within the comprehension of the Act. During the course of this article conaidesable emphasis will be placed on ca8e analysis showing judicial application of non-statutory, as well as statutory, criteria to the resolution of the issue of government employee status.

11. FACTORS BEARISG ON THE DETERhIINATION OF STATES AS AN FTCA GOVERSXENT EMPLOYEE A. PREFATORY STATEMEYT OF COXSIDERATIOXS TO BE COVERED

In the process of construing the FTCA provisions relating to gatwrnment employee status, the federal courts have with varying frequency analyzed a number of recurring issues that infiuence the judicial process in arriving at a conclusion of FTCA employee status. These consideratmns may be summarized as: Whether state or federal law is controlling in determining FTCA employee status; whether an acti>-itr may be characterized as a federal agency (of which its employees qualify as FTCA employees) or whether it possesses the distinguishing characteristics of an independent contractor (of which its emplol-ees da not qualify as FTCA employees) : whether the "loaned servant" doctrine map be applied to avoid or to establish PTCA employee status; whether the alleged tortfeasor relates to the federal gorwrnment in a dual capacity, as an independent contractor for some purposes, snd as an employee for other puvoses; whether sufficient nexus exists ta

i

JLDICIAL

Thomas Y. United States, 204 F Supp. 896 (D. Vt. 1862). is an example of a court rulmg that due to inauffieient ~Lat~torydefimtion af employee the general pmciples af agene? should be applied.z L. JAYSON, H A ~ D L ~ ~ C

FEDERAL TORI CUJMS: ADWRISIRATIIT

.AXD

REMIEOIES,

$201 (1864) [hereafrer cited as Joysonl

establish FTCA empiwee status baaed on compensation or super. edetd source; whether an inability to iden-dual as an FTCA emplo3ee should preclude

reco\-ei.j- under the FTCA Frequently. these factors combine or interact to iesiilt 111 a deteimination of empiore status. Each of these topics w-111 be discussed below

B IVHETHER STATE OR FEDERAL LAW IS

COSTROLLISG IS DETER.WIVISG THE FTC.1 EUPLOYEE QEESTIOS

An unreaol\ed conflict of opinion exists among the federal state 01 federal lair 1% to be applied in the ju.of status as an employee within the meaning

.vera1 arguments nave been advanced in decisions holding that ng on the issue of employee statuS. One plauEument analogizes the issue of employment status with the whether the tortieasor was rvithin the scape of employ-t a. the time of a negligent or wongful occurrence. Since there is no question regarding state lair applicability to the issue of scope of employment It IS urged that state iav qhould likeam of employee status.' Another argument law contiolling this issue refers to the ch provides that FTCA liability shal: be f the place "here the act or omission occurred." ' It LE rhoughr that this statutory direction to appl! state Ian-. to determine liabilitv Incorporated the determination of empiwee status 11 appears that the underlying logic is that there can be no liability under the FTCA without a dererminanon of employee status and since the Act directs state law to be applied

FEDERAL TORT CLAIMS

in the determination of liability, state law should also be applied in the preliminary determination of employee status." FTCA decisional Ian in the Fourth, Sixth and Eighth Circuits supports the position that state law controls this issue.'?

A number of courts have held ta the contrary on the issue of whether state or federal law must be applied to determme employee status. The major argument advanced in favor of federal law controiiing this issue 1s that the meaning of the phrase, "employee of the government," contained in the PTCA is a matter of statutory construction, and since the FTCA is a feleral statute, federal law should be controlling unless state law 1s expressly designated as controlling the lasue. PTCA interpretations in the Second, Fifth, Ninth, and Tenth Circuits Support this view.'a Although the Supreme Court has discussed this issue and stated in Feres v. United States that the question of government employment is clearly federal ~n character and that it is governed exclusively bs federal law, the federal courts of the Fourth, Sixth, and Eighth Circuits apparently considered this position as mere dicta and not binding law in light af the subsequent holding in Williams U. United States? that state law govern8 the scope of employment issue. It would appear that the view holding federal law applicable to the determination of government employment is the more logical and legally defensible. The government creating the act should not be controlled by unrelated laxus in deciding who is or is not its employee. The likening of the isme of employment status with the xope issue is not a logical categorization since the issue of empioyment has aignificance apart from the imposition of liability under the FTCA. Far Instance, employee status may be determinative of certain rights to wages, medical or retirement benefits, or it may create a legal status subjecting the employee to criminal process such as military courts-martial. As mentioned above, the United

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