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October 20, 1964

Anthony J. ANSELMO et al., Plaintiffs,
Stephen AILES, Secretary of the Army, Department or the Army, et al., Defendants

The opinion of the court was delivered by: ROSLING

Plaintiffs' motion for summary judgment is denied; defendants' cross-motion for summary judgment is granted.

The issue presented is whether the plaintiffs, thirteen in number, were federal civil service employees at the time of their discharge from employment. If they were, then they are entitled to the reinstatement they seek in this mandamus action, *fn1" for in the process of their discharge they were accorded none of the procedural rights and protections enuring to employees possessed of such status. *fn2" The defendants, Cyrus R. Vance, Secretary of the Army (Secretary), Department of the Army (Department) and the Civil Service Commission (Commission) in the proceedings below and in the answer here made to the complaint have denied the federal employment alleged. Unless such relationship is found to exist the question as to whether it is subsumable as civil service is not reached. The Court's view for the reasons set forth in what follows sustains the contention advanced by defendants that the employment is not federal. *fn3"

 The facts as to which there appears to be no controversy are generally as set forth in the following:

 Of the thirteen plaintiffs nine are honorably discharged veterans who have served in the Armed Forces of the United States. With the possible exception of Price and Rosati concerning whose appointment defendants profess a lack of knowledge and information, all plaintiffs were employed at the Federal Missle Base located at Lido Beach, long Island, New York, as civilian technicians by the New York Army National Guard. *fn4"

 The statutory authority for the employment of the plaintiffs is to be found in 32 U.S.C. § 709 which provides in pertinent part as follows:

 ' § 709. Caretakers and clerks '(a) Under such regulations as the Secretary of the Army may prescribe, funds allotted by him for the Army National Guard may be spent for the compensation of competent persons to care for material, armament, and equipment of the Army National Guard. * * * '(f) The Secretary concerned shall fix the salaries of clerks and caretakers authorized to be employed under this section, and shall designate the person to employ them. Compensation authorized under this section may include the amounts of the employer's contributions to retirement systems. Such contributions shall not exceed 6 1/2 per centum of the compensation on which such contributions are based.'

 'Caretakers' -- (the term is of historic, rather than of current significance in its description of the functions of those thus engaged) -- are civilians who are employed as technicians charged with the duty of rendering care to the equipment loaned by the United States Army to the National Guard. The services performed by the plaintiffs in the subject litigation were in connection with the training activities of the National Guard at the Federal Missile Base at Lido Beach, Long Island, New York, an installation equipped to fire missiles at enemy or unknown aircraft approaching the shore lines of the United States.

 Under the authority vested in him by § 709, excerpted above, the Secretary of the Army, through the Chief, National Guard Bureau, promulgated a regulation designating with qualifying language the adjutants general of the several states as the persons empowered to 'employ, supervise and discharge technicians.' *fn5"

 The National Guard Technician Program (see fn. 5) is funded by federal appropriations, with both responsibility and authority for its administration committed to adjutant general of the state in respect of the National Guard in his state. In New York State the adjutant is Chief of Staff to the Governor.

 Plaintiffs argue that whatever authority the adjutant exercises in this context of appointment, supervision, and discharge of the civilian personnel, is a delegated authority implemented vicariously in the right of the principal, the Secretary of the Army, and is, therefore, in law the action of the Secretary. *fn6" Per contra, the position of the Government is that here, as in a multitude of other federal programs, the United States participates not as the responsible superior of a person federally employed, but rather as an interested benefactor whose concern it is that the funds it provides be prudently utilized and disbursed for purposes the Congress stipulated in making the appropriation. Any participation by the United States in the state activities subvened -- (here, the entities subsidized are the State of New York in its constitutional maintenance of a National Guard available for federalization if need should arise) -- is, accordingly, not that of a principal, nor a fortiori that of an employer, unless the controlling statute indicates a specific legislative intent that a relationship of employer and employee be deemed established.

 The position of the government in respect of the plaintiffs' claimed federal employment coincides with that which the United States Civil Service Commission announced in its rejection of plaintiffs' alleged status when they appealed their dismissal successively to the Regional Director and to the Board of Appeals and Review of the Commission.

 The director's opinion ruled that 'the fact that these Technicians were paid by Federal funds and may have handled Federal equipment in their employment is insufficient to establish that they were Federal employees in Federal position.'

 The Board of Appeals and Review in affirming the director's rejection of the claim as one presented by persons lacking the prerequisite status of Federal Employment, noted that they 'were appointed to their positions in the Army National Guard of the State of New York and dismissed therefrom by State officers or employees. * * * National Guard Regulations No. 52, issued by Headquarters, Department of the Army, on April 15, 1961, states that all technicians of the National Guard of the several States and Puerto Rico are considered State employees.' The Commission, accordingly, held that plaintiffs did not meet the traditional conditions of federal employment enunciated in the Federal Personnel Manual, Subchapter S210, p. B-5, that 'to be considered a Federal employee, a person must be:

 '(1) Engaged in the performance of Federal functions under authority of an Act of Congress or an Executive order; and '(2) Appointed or employed by a Federal officer in his official capacity as such; and '(3) Under the supervision and direction of a Federal officer.'

 Cited as confirmatory of its views, and so found by this Court to be, were Stapleton v. Macy, 304 F.2d 954 (D.C.Cir.1962) *fn7" and 21 Comp.Gen. 305.

 Plaintiffs rest their case upon the inadequate prop of a judicial authority which applies under the aegis of the Federal Tort Claims Act and Specifically 28 U.S.C. § 2674 *fn8" the principles of respondeat superior to the government when it is sued for the tortious conduct of its putative employees.

 That National Guard caretaker technicians are federal employees to the extent that injury inflicted on third persons by their negligent operation of the equipment they service subjects the United States to liability under the rule of respondeat superior has been, *fn9" and possibly continues *fn10" to be, the holding of this circuit. It is true that the Courts, in their exposition of the circumstances upon which they ground a finding of coverage under the Tort Claims Act tend to use broad language which out of context might be held to sustain an employer-employee relationship in all its statutory modalities. But to extend the reach of an opinion rendered in the limited context of a cause of action in negligence so as to bring within the ambit of civil service coverage untold thousands of persons not specifically denominated federal employees by Statute, would without warrant in logic be productive of so significant an impact on the federal economy as to persuade that Congressional intent to effect such result would have been manifested by a clear enactment.

 Courtney, finding in the factual context here presented a federal employment of a civilian caretaker within the intent of the Tort Claims Act, prudently marked off a limiting periphery for its holding by commenting that 'we know of no rule of law * * * that one cannot be an 'employee' for some and not for other purposes.'

 It is one thing to rule that employment exists when the statute considered is one under which Congress with liberal intent expressly conceded federal liability on the same terms as would apply were a master sued, with local law controlling, for the act of his servant. It is another matter, however, for a court to find that the status of federal employee exists with respect to persons whose activities merely serve to implement the administration of essentially state functions under federal laws. Congress could have promulgated an employee status for civilian caretakers had it desired, but until it speaks precisely and in overriding fashion, this Court is constrained to recognize as valid and binding the long established holdings of the federal agencies vested with jurisdiction and charged with relevant duties which deny that status to persons circumstances as are the plaintiffs herein.

 Settle order on notice.

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