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505 of title 32, or any other provision of law for which such a member is entitled to, or has waived, pay under title 37," after "United States"; and

(2) in the third paragraph, by inserting "or a

member of the Army National Guard or Air National Guard" after "United States".

SEC. 2. Section 1089(a) of title 10, United States Code, 8 is amended by inserting "the National Guard while engaged 9 in training or duty under section 316, 502, 503, 504, or 505 10 of title 32 of the United States Code, or any other provision 11 of law for which such a member is entitled to, or has waived, 12 pay under title 37 of the United States Code," after “armed 13 forces".

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SEC. 3. Section 334 of title 32, United States Code, is 15 repealed.

OPENING STATEMENT OF HON. JOHN C. CULVER, A U.S. SENATOR FROM THE STATE OF IOWA

Senator CULVER. Mr. Chairman, today I am pleased to testify in support of S. 1858, legislation which would provide coverage under the Federal Tort Claims Act-FTCA-for National Guard personnel while engaged in certain prescribed activities.

Under existing law, when civilians are injured or killed or their property damaged or lost as a result of Army National Guard or Air Force National Guard activities, compensation must be sought through a special administrative proceeding provided for in the National Guard Act, 32 U.S.C. section 715. Claims exceeding $25,000 require a congressional appropriation. National Guard personnel have not been covered under the FTCA because they have not been considered Federal employees.

This treatment of National Guard personnel separately from other military personnel is deliberate and traditional and is reflective of the unique status of the Guard as a State and Federal entity. The National Guard is the modern-day State militia provided for in article I, section 8, clause 16 of the Constitution. The authority to train that militia is reserved to the States.

However, today's National Guard is paid and equipped by the Federal Government. Under sections of the National Guard Act, the President may prescribe regulations, often with the approval of the Governor of a State, under which National Guard personnel set up encampments, drill, undergo maneuvers and target practice with regular Army and Air Force personnel and attend military service schools. Under the authority of the President, National Guard can be detailed to instruct civilians in the use of firearms.

These kinds of activities are clearly Federal in nature. During this training, National Guard troops are integrated with regular Army and Air Force troops and receive the same instruction. Moreover, the primary purpose of requirements such as inactive duty and annual field training on such equipment as jet aircraft, tanks and heavy artillery, and military school attendance is to ready troops for active Federal service in the event of a national emergency.

It would be much better for the morale of these troops that National Guard personnel be treated as Federal employees under the FTCA while engaged in this preparation for Federal service. With the implementation of the S. 1858 changes, tort liability treatment of all troops engaged in training for Federal missions could be uniform.

I am hopeful that the Judiciary Committee can complete action on this legislation in time for its enactment in the 96th Congress.

Senator BAYH. It has been my good fortune over the years, first as a State legislator, later as a Senator, to have the opportunity to work closely with those who have made our National Guard what it is today. I have tried to look for ways in which we could improve the status and readiness conditions of the Guard, so that the people of this country would be able to rely on the Guard in time of national emergency. When the National Guard is on duty-I think it was Gen. Douglas McArthur who said a long time ago that, "in no other profession are the penalties for employing untrained personnel so appalling or so irrevocable as in the military."

This certainly is true in the Guard. It is critical that we encourage men and women to join the Guard and keep in the Guard people who have the skills and training necessary to serve in a professional national defense unit.

As I said earlier, it has been my good fortune to work as a State legislator with the Guard, and also as a Senator. Sometimes things that you and I are not directly aware of have an impact on the Guard and its ability to train for national defense.

I would like to take the opportunity to introduce S. 1858, which Ideals with the treatment of the National Guard under the Federal Tort Claims Act. Since introducing this bill, we have gotten 33 Senate cosponsors. We have a majority of the Senate Judiciary Committee and a majority of our subcommittee.

I think there is strong recognition of the importance of this particular piece of legislation as far as the role of our National Guard is concerned.

I think the role of the Guard, of course, has always been important. It is even more important today, since the abolition of the draft, that we have the strong backup capability. In discussing the role of the Guard with the folks back home, I have learned that there are several areas where the Guard needs strengthening to perform its mission. One of them is to deal with this particular problem which is before us today. The Justice Department, of course, I understand in the past, has examined this particular effort to deal with the Guard problem. It has reservations about it, reservations, I hope, that can now be dealt with in a more promising way.

We have with us Mr. John J. Farley III, who is the Assistant Director of the Torts Branch of the Civil Division of the Department of Justice to lead off our hearings.

Mr. Farley, it is good to have you here this morning.

TESTIMONY OF JOHN J. FARLEY III, ASSISTANT DIRECTOR, TORTS BRANCH, CIVIL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

Mr. FARLEY. Good morning. I appreciate the opportunity to appear before this subcommittee on behalf of the Department of Justice and to present the views of the administration on S. 1858.

I understand a prepared statement of my testimony has been submitted, and if that is to be included in the record, I will just briefly summarize.

Senator BAYн. We will just put all that in the record.

Mr. FARLEY. Fine. Thank you, Mr. Chairman.

S. 1858, if enacted, would amend the Federal Tort Claims Act and make Air and Army National Guard members Federal employees and thus render the United States liable for their acts or omissions when they are in a training status as defined by the bill.

The Department of Justice is opposed to the enactment of S. 1858. I think at the outset, Mr. Chairman, it is appropriate to note that we are not opposed to the concept of providing compensation for innocent victims who might be injured as a result of the activities of the National Guard while on training, nor are we opposed to protecting the Guard.

Indeed, if I may be permitted a personal note, I would associate myself with Senator Bayh's remarks at the outset as a retired Army officer, retired with disability from Vietnam.

Speaking for the Department of Justice, we are not opposed to the concepts that motivate S. 1858. We are opposed for legal reasons. We believe the legal reasons are indeed significant. They are, in essence, the same as those which have prompted Department of Justice opposition to an identical bill, in 1960 and a similar bill in 1975. When the National Guardsmen are in training, they are not Federal employees in fact, or in law under classic and historical tort law analysis, which is what we are dealing with. In the judgment of the Department of Justice, to legislatively declare them to be Federal employees would be contrary to these traditional tort principles, and to strong, clear and present judicial precedent, and judicial declarations.

It is interesting to note, Mr. Chairman, that in 1975, and this was before the Senate Armed Services Committee, with respect to the medical practitioners who are in the Guard, similar legislation was proposed which would have made National Guard physicians Federal employees. At that time the Senate report clearly stated that the Armed Service Committee did not want to engage in what it termed a legal fiction: To legislatively state that these people were Federal employees. It went to an alternative route, recognizing the problem in the malpractice area, it devised 32 U.S.C. 334 which provided for indemnification of National Guard physicians who had judgments against them.

But again, the precedent is there that the National Guardsmen in training are not Federal employees. The reason, Mr. Chairman, goes back to the fact that an employment relationship, under classic tort analysis depends upon the right of the employer, the master, to detailed day-to-day control over the activities of the servant, the very activities which give rise to the claims.

It is premised upon the duty of the master to control the servant and the opportunity to control the servant. This master-servant relationship is totally consistent with the basic principle of vicarious liability: that a master is responsible for the acts of his servants under the Federal Tort Claims Act.

It is the view of the Department of Justice and the administration that when the National Guard is in the training status that is contemplated by S. 1858, such command and control is absent. The States hire, fire, discharge, promote, and discipline the guardsmen when they are in a training status.

The Assistant Attorney General of the Civil Division met with your staff earlier this week, and we have considered additional materials that have been submitted. We looked at them, discussed them again late last night with the Assistant Attorney General for the Civil Division. We are unable to conclude that there is any basis for changing our recommendation or views on this matter.

We have serious views on this matter. All the indicia that are pointed to as to why guardsmen should be Federal employees, have to do, and we fully concede, with the fact that the Guard is federally funded; that there are strict and stringent Federal regulations and standards governing training; that they take training at military facilities, use military equipment, and that there is Federal inspection.

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We fully agree with this. This is a recognition of reality in furtherence of the mission of the Guard to be able to meld in with the military system. But the fact remains that those identical indicia were examined by the Supreme Court in United States v. Orleans 425 U.S. 807 (1976), on the subject of an HEW program where it was federally funded, where there were restrictive Federal regulations and standards that had to be complied with. Federal funding indeed in that case. Mr. Chairman, was withheld so a certain individual in the State's program would be fired. So the power of the Federal Government in the instance that was before the Supreme Court was extremely strong. As the Supreme Court said there, and as the Department of Justice firmly believes here, the detailed day-to-day control of the potential tort feasor is not within the ability of the United States.

This is the reason that the Department of Justice and the administration oppose the enactment of S. 1858. The detailed day-to-day control of guardsmen when they are in a training status rests in the hands of the State officers, not the Federal Government.

I would be pleased, Mr. Chairman, to answer any questions you might have.

Senator BAYH. Mr. Farley, I would be dishonest with you if I stated at the end of your testimony I understood that we hadn't discussed how we could reconcile these differences and that although the Justice Department might be specifically opposed to this absolute wording, that the concept of changing the tort feasor relationship was in the process of being rethought and that you were not opposed to the concept in my bill.

Is that not true? Was I misinformed on it?

Mr. FARLEY. We are not opposed to the concept, Mr. Chairman, as you said at the outset of your remarks, of providing compensation for people who are injured, who would not receive compensation through the National Guard.

We are not opposed to the concept of providing protection to National Guard members. Indeed, this was done in 1975, with the enactment of 32 U.S.C. S. 334. We have seriously, and in detail reconsidered the views which we have set forth this morning, looked at the submission provided by your staff, but are unable to conclude that it changes the fact that the United States does not have the detailed day-to-day control of the Guard that is required for a Federal employment relationship.

Senator BAYH. Have you ever been to a National Guard training camp? Have you ever been on that program? I know you have had your Army service and served our country with distinction. Have you ever been part of a National Guard training operation?

Mr. FARLEY. No, Mr. Chairman, I have not. I have been to National Guard training centers, but I have not been part of a training exercise.

Senator BAYH. You have admitted that almost all-somewhere between 95 and 99 percent of the moneys that are expended by the National Guard come from the Federal Government?

Mr. FARLEY. Yes, Mr. Chairman, that is right.

Senator BAYH. You don't feel that the old saying has merit: He who pays the piper calls the tune?

Mr. FARLEY. I am compelled to rely on the reasoning of the Supreme Court in United States v. Orleans which says it does not call the tune in defining the Federal employment relationship.