                                                                 June 2 3 , 1978



78-36     MEMORANDUM OPINION FOR THE COUNSEL
          TO THE VICE PRESIDENT

          Officers and Employees— Volunteers— Federal Tort
          Claims Act (28 U.S.C. § 2679(b))— Operation of
          Motor Vehicles— Liability


   This is in response to your request for our answers to seven questions
concerning liability and insurance coverage for Government employees and
other persons who use automobiles in connection with the official travel of the
President and Vice President. The vehicles involved may be Government-
owned, leased for the occasion, or privately owned. The persons involved
include:
      — Regular full-time Government employees.
      — Individuals who work on an irregular basis and receive compensa­
      tion as consultants and travel and subsistence expense reimbursement.
      — Individuals who volunteer their time but receive travel and
      subsistence expense reimbursement.
      — Individuals who volunteer their time and receive no reimbursement
      for their expenses.
Vehicles may be rented in the name of the United States or in the name of the
individual involved.
   The seven questions you presented are as follows:
   1. What liability coverage is provided by the Government for its employees?
   2. Which of the above-described “ staff” are covered by such protection?
   3. Is the coverage the same regardless of the nature of the vehicle involved,
i.e., Govemment-owned, leased, or privately owned?
   4. In the event that not all of the “ staff” described are covered by the
protection provided for regular Government employees, what are the minimum
employment-related steps that must be taken to insure that an individual will be
covered?
   5. When renting a car, an option is provided to purchase insurance covering
the deductible under the policy carried by the rental agency. Can and should
this option be exercised affirmatively when the rental will be paid for with
Government funds?
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   6. What is the Government’s responsibility if a person for whom liability
coverage is provided by the Government uses the vehicle for a personal frolic
and an accident occurs?
   7. On those occasions when the trip is a mixed official/political trip, what
effect is there on the coverage that is provided by the Government?

                            I. General Principles
   The liability of the Government and the individuals involved is governed
primarily by the Federal Tort Claims Act, 28 U.S.C. § 2679(b), which provides
as follows:
      The remedy against the United States provided by sections 1346(b)
      and 2672 of this chapter for injury or loss of property or personal
      injury or death, resulting from the operation by an employee of the
      Government of any motor vehicle while acting within the scope of his
      office or employment, shall hereafter be exclusive of any other civil
      action or proceeding by reason of the same subject matter against the
      employee or his estate whose act or omission gave rise to the claim.
The cited sections provide, with exceptions not relevant here, that the
Government is liable for the negligence of its employees in the same manner as
a private person. Thus, the effect of § 2679(b) is to make a suit against the
United States under the Federal Tort Claims Act the sole remedy for damages
arising from an automobile accident involving a Government employee acting
in the course of his employment. See, e.g ., Thompson v. Sanchez, 539 F. (2d)
955, 958 (3d Cir. 1976); Carr v. United States, 422 F. (2d) 1007, 1009-10 (4th
Cir. 1970). Under the Act, it is the employee’s duty to provide the Department
of Justice with copies of any pleadings or process in a suit against him and the
Department defends such suits. See 28 U.S.C. § 2679(c); 28 CFR § 15.1(a).
   The protection provided employees by the Act is in lieu of any liability
insurance furnished by the United States. The Comptroller General has held
that appropriated funds are not available to pay for liability insurance for the
Government or its employees unless a statute expressly so provides. 19 Comp.
Gen. 798 (1940); cf. 42 Comp. Gen. 392 (1963); 22 Comp. Gen. 740 (1943).
This holding is based on the view that it is ordinarily cheaper for the United
States to self-insure than to purchase insurance. See 19 Comp. Gen. 798
(1940). The legislative history of § 2679(b) points out that suit against the
United States was made the exclusive remedy because it is less expensive than
having the Government either carry liability insurance for its drivers or
reimburse them for their own insurance. See S. Rept. 736, 87th Cong., 1st
sess., at 2-4 (1961); 107 Cong. Rec. 18499-500 (1961). In the light of the
legislative history, we believe that the purchase of liability insurance for
persons covered by the Act is unnecessary.
   For the purpose of the Federal Tort Claims Act, an “ employee of the
government” is defined, 28 U.S.C. § 2671, as:
      [0]fficers and employees of any federal agency. . . and persons
      acting on behalf of a federal agency in an official capacity, temporar­

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      ily or permanently in the service of the United States, whether with or
      without compensation.
The courts have consistently held that the test of employment under this statute
is the common law principle of respondeat superior, particularly the “ power to
control the detailed physical performance of the individual.” Logue v. United
States, 412 U.S. 521, 527-28 (1973); see also, United States v. Becker, 378 F.
(2d) 319, 321-23 (9th Cir. 1967); Prater v. United States, 357 F. Supp. 1044,
1045 (N.D. Tex. 1973); Delgado v. Akins, 236 F. Supp. 202 (D. Ariz. 1964);
Martarano v. United States, 231 F. Supp. 805, 807 (D. Nev. 1964); cf., United
States v. Orleans, 425 U.S. 807, 814-15 (.1976). The question of control turns
on the facts of the particular case, and the courts are guided by the criteria set
forth in Restatement, Agency 2d, §§ 2(l)-(2), 212. See, e.g., Logue v. United
States, supra; Becker v. United States, supra. If the power of detailed
supervision over the person exists, he is an employee even though unpaid or
paid by a third person. See, e.g., Provancial v. United States, 454 F. (2d) 72,
75 (8th Cir. 1972); Delgado v. Akins, supra; Martarano v. United States,
supra. As stated by the court in Martarano, at p. 807:
      This does not mean, however, that only a person officially on a
      federal payroll may come within the definition of federal employee.
      The usual rules of respondeat superior are to be applied. This is quite
      plainly recognized in the statutory definition of employee of the
      Government by apt words encompassing persons “ acting on behalf
      of a federal agency, temporarily or permanently,” whether with or
      without compensation.

                            II. Specific Questions
   Applying these principles to your questions, our conclusions are as follows:
   1. The United States assumes liability for the negligence of an employee
operating any motor vehicle in the course of his official duties. Any other
action against the employee arising out of an automobile accident occurring in
the course of his employment is barred.
   2. The status of an individual as full time, part time, paid, or unpaid, does
not determine whether he is an “ employee” of the Government. The
significant fact is whether the Government agency involved has the power to
exercise detailed supervision and control over the individual’s performance of
his duties. Indicia of this power are: setting personal qualifications for the
individual; that he is required to perform the services himself; and that he may
be discharged by the agency. See, e.g ., Becker v. United States, 378 F. (2d)
319, 322-23 (9th Cir. 1967); Prater v. United States, 357 F. Supp. 1044, 1045
(N.D. Tex. 1973); Delgado v. Akins, 236 F. Supp. 202, 203 (D. Ariz. 1964).
See generally. Restatement, Agency, 2d § 220. Under these criteria, we believe
that all of the individuals involved here would fall within the Federal Tort
Claims Act when their official functions on behalf of the Vice President require
them to operate a motor vehicle.
   3. Section 2679(b) applies to “ any” motor vehicle. It has been held to

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include privately owned vehicles driven on official business. See, e.g., Levin v.
Taylor, 446 F. (2d) 770 (D.C. Cir. 1972); Nistendisk v. United States, 225 F.
Supp. 884 (W.D. Mo. 1964). While we are not aware of any case involving
rented vehicles, we see no reason why the statute would not apply to them as
well.
   4. All of the enumerated individuals are “ employees” as long as the Office
of the Vice President has the power of detailed supervision over the perform­
ance of their official duties.
   5. The Act makes the Government liable for both personal injury and
property damage. As noted above, its legislative history indicates that this was
intended to substitute for the procurement of liability insurance. In view of this
legislative history and the Comptroller General’s opinion that specific statutory
authority is needed to procure insurance, optional insurance for rented vehicles
may not be procured with Government funds.1
   6. The Act makes the Government liable only for accidents that occur when
an employee is “ acting within the scope of his office or employment.” The
scope of employment and the extent to which the Government remains liable
where the employee deviates therefrom is determined by the law of respondeat
superior at the place of the accident. See 28 U.S.C. § 2674; and, e.g ., Williams
v. United States, 350 U.S. 857 (1955); Platis v. United States, 409 F. (2d)
 1009 (10th Cir. 1969); Guthrie v. United States, 392 F. (2d) 858 (7th Cir.
 1968). As a general rule, driving would appear to be within the scope of
employment “ if the Government’s interest was a substantial factor in the trip.”
Guthrie v. United States, supra, 392 F. (2d) at 860; see, Levin v. Taylor, 464
F. (2d) 770 (D.C. Cir. 1972); United States v. Romiti, 363 F. (2d) 662 (9th Cir.
1966). See generally, Restatement, Agency 2d, § 236 and comments, 523.
However, the decisions emphasize that the facts of each particular case are
controlling. E .g., Guthrie v. United States, supra; United States v. Romiti,
supra. While we can say as a general rule that the Government would not be
liable for an accident during a “ frolic” or “ diversion” for the personal benefit
of the driver,2 the application of this rule to any particular incident depends
both on the specific facts and the law of the State where the accident may occur.
   7. The liability of the United States is determined not by the nature of the
President’s or Vice President’s travels but rather by the purpose for which the
employee in question is driving. In a previous memorandum, we pointed out
that even on political trips the President and Vice President require staff and
assistance to perform their official functions. This, we stated, “ would
ordinarily include full provision for comfort and safety of the party; communi­
cations facilities for control and administration of the Armed Forces and other


   'W e note that the C om ptroller G eneral perm its the purchase o f casualty or liability insurance on
leased private property if the ow ner requires it as a condition o f the lease. See 42 Comp. G en. 392
(1963). T hus, there is no restriction on paying any part o f the rental fee attributable to mandatory
insurance.
   2See, e.g.. Van Houten v. Ralls, 411 F. (2d) 940 (9th Cir. 1969); Binn v. United States. 389 F.
Supp. 988 (E .D . W is. 1975); Tavolieri v. Allain, 222 F. Supp. 756 (D. M ass. 1963). See also H.
Rept. 297, 87th C o n g ., 1st sess., at 4 , 8-9 (1961).

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agencies of the Government; clerical, logistical, and other administrative
support; staff assistance in the management of paperwork and the records of
decisions; and those staff members, advisers, and other persons who may
reasonably be required for consultation or advice during the period of travel.”
We believe that driving in relation to these functions is for the benefit of the
official functions of the Vice President, regardless of the reason he is
traveling,3 and thus within the scope of a driver’s official duties. However,
there has never been any litigation on this point. In view of the case-by-case
approach the courts take to scope-of-employment questions, we cannot predict
where they would draw the line between official and political functions of
employees traveling with the Vice President.

                                  III. Additional Comments
   Your memorandum also requested any additional comments we considered
appropriate. We therefore call your attention to the procedures by which
employees receive the protection of the Federal Tort Claims Act. Under 28
CFR § 15.1(a), any employee sued for personal injury or property damage on
account of his driving a motor vehicle in the scope of his employment must
promptly deliver all papers and pleadings to his immediate superior or a person
designated by the agency. He must also immediately notify this person by
telephone or telegraph. The agency in turn must notify and provide copies of
the litigation papers to the United States Attorney for the judicial district in
which the accident occurred and to the Chief, Torts Section, Civil Division, of
the Department of Justice.
   Under 28 CFR § 15.2(a), the agency must provide the U.S. Attorney and the
Torts Section with a report “ containing all data bearing on the question whether
the employee was acting within the scope of his office or employment” at the
time of the accident.
   The U.S. Attorney may have a State court suit against an employee removed
to the Federal district court by certifying that the employee was acting within
the scope of his employment, 28 U.S.C. § 2679(c); 28 CFR § 15.3(a). If the
district court determines that the driver was not an employee acting within the
scope of his employment, the case will be remanded to the State court. See,
e.g., Binn v. United States, 289 F. Supp. 988 (E.D. Wis. 1975); Tavolieri v.
Allain, 222 F. Supp. 756 (D. Mass. 1963).




  3T he cited m em orandum also states that travel by the Vice President is "p o litic a l” if its prim ary
purpose involves his status as a party leader, e.g., fund-raising, cam paigning for particular
candidates, and appearing at party functions. T ravel to obtain public confidence and support for the
m easures o f the A dm inistration, on the other hand, is part o f the official functions o f the Vice
President.

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  We suggest that you inform part-time or volunteer drivers of their duty to
report suits and to forward the papers in order to obtain the protection of the
Federal Tort Claims Act. We further suggest that you consult the Torts Section
about the form and content of the report required by 28 CFR § 15.2(a).

                                               L eo n U   lm an

                                     Deputy Assistant Attorney General
                                                   Office o f Legal Counsel




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