The National Guard Tort Claims Act

Staff present: Kevin O. Faley, chief counsel and executive director, Subcommittee on the Constitution; Jessica J. Josephson, counsel; Christie F. Johnson, assistant clerk; Tom Parry, minority staff, counsel to Senator Hatch; Steve Markman, minority staff, counsel to Senator Hatch; Charles Wood, counsel to Senator Simpson; Eric Hultman, counsel to Senator Thurmond; Gail Bowman, counsel, Administrative Practice and Procedure Subcommittee, Committee on the Judiciary. OPENING STATEMENT OF HON. BIRCH BAYH, A U.S. SENATOR FROM THE STATE OF INDIANA, CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION

Senator BAYH. Gen. Douglas MacArthur once said that "in no other profession are the penalties for employing untrained personnel so appalling or so irrevocable as in the military."

At a time when our Nation is in the process of sending a message to the Soviet Union that our military is prepared to defend the vital interests of the United States, the training, skills, and numbers of our Army and Air National Guard Reserve components are critical elements in our effort to maintain a strong national defense.

The legislation which we are considering here today, S. 1858, the National Guard Tort Claims Act, will make a major contribution to this effort by finally allowing the National Guard component to conduct training which will prepare the men and women of the Guard to play their rightful role as part of the "Total Force" of our military establishment. It will do so by covering the Guard under the Federal Tort Claims Act while in training, thus creating liability in the Federal Government for torts committed by National Guardsmen and women in the scope of their employment. This bill will have the additional effect of encouraging volunteers, today so badly needed in the Reserves.

The States have long expressed serious concern over the liability cast upon them by members of the National Guard engaged in training for Federal missions. There now exists a veritable of possible responses

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from a complete remedy to none at all. Some States deny all liability or limit their liability on the grounds of soverign immunity. Some carry automobile insurance but no general or comprehensive coverage. Into this maze is cast the guardsman or woman who is ordered to perform a given task by the military and then forced to respond in damages for injuries caused by him or her while acting within the scope of employment.

The bill being considered today would extend to the National Guard in training, the same protection under the Federal Tort Claims Act that is already provided for all other members of the Armed Forces as well as all Federal employees. In addition, it would make the Federal Tort Claims Act the exclusive remedy for claims based on the medical malpractice of National Guard medical personnel.

As President Carter recently stated:

Our nation continues to depend for its defense upon our reserve forces, under the "total force" concept, reserve forces would perform critical missions in any future conflict, my administration is committed to ensuring that these vital forces are fully manned, well trained, well equipped and capable of rapid mobilization and integration into the active force in time of national emergency.

We will not have a well trained force, performing critical missions, if a major component of that force cannot use real ammunition in its training nor participate with other military components in realistic training exercises. And I am aware of units in the National Guard which are forbidden to use real ammunition in their training exercises because, and only because, the Federal Tort Claims Act does not apply to the Guard in training.

All members of the Armed Forces, except National Guard members, are recognized as Federal employees under the presently drafted Federal Tort Claims Act. The theory behind the exclusion of the National Guard is feeble at best, given the realities of the present day military situation. The rationale which has been used, and which was articulated most recently by the Supreme Court in Marylard v. United States is that because the National Guard was originally established as a State militia unit by the Constitution, the present day guardsman or woman is, under the theory of respondent superior, really an employee of, and under control of the State, and not the Federal Government.

This particular interpretation of constitutional_text completely ignores not only reality but also another part of the Constitution. The Constitution, however, does something more. It gives Congress the power to "provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress."

Thus, the National Guard is not a State entity, but plays a dual role. But its overwhelming role is Federal. By law, it is a major component of the Federal Armed Forces. In fact, it is given precedence in law over all other reserve components of the U.S. military system. In 10 U.S.C. 263 and at least two other parts of the United States Code, one finds language like this:

Whenever Congress determines that more units and organizations are needed for the national security than are in the regular components of the ground and Air Forces, the Army National Guard of the United States and the Air National

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