Before HASTINGS, Chief Judge, and KNOCH and KILEY, Circuit Judges.
KNOCH, Circuit Judge: Plaintiff, Margaret Layne, Executrix of the Estate of William J. Layne, Deceased, sued under the Federal Tort Claims Act to recover damages for his wrongful death.
The Complaint alleged that on July 2, 1959, the decedent Major Layne, a member of the Indiana Air National Guard, while the pilot of an F-84-F jet fighter aircraft on a training flight, was fatally injured through the negligence of civilian employees of the United States at Hulman Field, Terre Haute, Indiana, where the control tower and all facilities, including safety devices operable from the control tower, were in the exclusive control of the United States, acting through its civilian employees.
The United States moved for summary judgment in its favor on the ground that Major Layne died from a service-connected disability incurred in the active air service of the United States in peacetime (for which Mrs. Layne was receiving compensation pursuant to the provisions of the Veterans' Benefits Act which precluded recovery under the Federal Tort Claims Act. Affidavits, exhibits, and stipulations of the parties were submitted in support of and in opposition to this motion.
The District Court found no genuine issue as to any material fact, and granted the motion for summary judgment, in favor of the United States, from which Mrs. Layne took this appeal.
The pertinent facts may be summarized as follows: Major Layne was in the active service of the Indiana Air National Guard. Both the Guard and Major Layne, individually, were recognized by the United States as part of the reserve components of the United States military establishment, classified as "inactive service." At the time of the injury out of which this case arises, Major Layne was on a duty training flight.
Neither counsel, the District Court, nor this Court, have found any published decision relating to the right of a member of the National Guard to maintain an action against the United States under the Federal Tort Claims Act.
Members of the armed forces of the United States on active duty may not maintain an action against the United States under the Act. In Feres v. United States, 1950, 340 U.S. 135, the Supreme Court said (at page 146):
In a carefully reasoned opinion the learned District Judge traced the history of the National Guard in the United States, from the authority for its existence in the Constitution, Art. 1, § 8 (1787), through its implementation in The National Guard Act, Title 32, U.S.C.A., the amended 1851 Constitution of the State of Indiana, Art. 12, §§ 1-5, the Indiana Military Code, Chap. 187, Burns Indiana Statutes, §§ 45-1801 through 45-2805 (1953). From a close study of these Constitutions and statutes, the District Judge concluded that Major Layne held a dual legal relationship to the United States and to the State of Indiana at all pertinent times in question. Both Constitutions empower the United States and the State to create and maintain a National Guard and its personnel. Thus Indiana National Guard members may be in the "active" or "inactive" service of the respective State and National governments. The District Judge found that:
Major Layne was a commissioned officer who took an oath of office prescribed by both the national and state laws to support and defend the National Constitution against all enemies, foreign and domestic, bear true faith and allegiance to it, obey the orders of the President of the United States, and that he would well and faithfully discharge the duties of his office. Major Layne was at the time in question a part of the reserve components of the defendant's military establishment. Major Layne qualified for and received a regular pay allowance from the defendant under the said national laws. Title 31 U.S.C.A. 698. Major Layne was qualified for and his surviving dependents received the pension and other benefits under said national laws. Title 38 U.S.C.A. 101. With the foregoing factors and others prescribed in the said laws, it cannot be said that the term "Inactive Service" means that he was not in the service of the defendant at the time in question, even though he was at the time following the orders or command of the State of Indiana in his described dual relationship.
Plaintiff relies on a line of cases*fn1 which involve injured civilians who seek to recover under the Federal Tort Claims Act for negligence of National Guardsmen on inactive duty. The District Court distinguished these cases as holding that the United States is not responsible for the alleged negligent National Guardsmen under the rule of respondeat superior because in those cases the National Guardsmen were not employees of the United States.
We agree that the distinction is a valid one. In dealing with the two concepts the Ninth Circuit said:
The cases cited by Plaintiff do not negative the dual relationship of a National Guardsman, who may at a given time be in the exclusive service of the State, or, as in the case before us, in the dual ...