Liability of United States for Independent Contractors Performing Advance Work in Connection With the Official Travel of the President and Vice President ( 1979 )

April 6, 1979
79-21 MEMORANDUM OPINION FOR THE
COUNSEL TO THE VICE PRESIDENT
Advance Personnel—Federal Tort Claims Act (28
U.S.C. § 2671)—Form of Contract
O n June 23, 1978, this Office gave its opinion that compensated or un­
compensated part-tim e advance personnel for the President or the Vice
President would be Federal employees under the Federal T ort Claims Act,
28 U .S.C . § 2671, and that the United States would therefore be exclusively
liable under 28 U .S.C . § 2679(b) for damages arising out o f automobile ac­
cidents occurring in the course o f their official duties. The form contract o f
employment used by the Office o f the President and the Office o f the Vice
President for these individuals designates them as independent contractors,
and you have asked us to consider the effect o f this language on our pre­
vious opinion.
It is our understanding that advance personnel are hired by and act under
the close daily supervision o f Presidential or Vice Presidential employees.
They perform logistical tasks for official trips that include making hotel,
travel and sound-system arrangements. While the more experienced person­
nel have greater independence o f action than do the others, the day-to-day
activities o f all are controlled by Governm ent employees through frequent
com munication. The selection o f the cities and events the President or the
Vice President visit and even the more m inor decisions, in most cases, are
the responsibility o f the Presidential or Vice Presidential staff.
On the foregoing basis, it is our opinion that personnel performing advance
work are employees within the meaning o f 28 U.S.C. § 2671, despite the
language o f the employment contract. The Supreme Court has said that
employees o f a contractor who are not acting under the close, daily, physical
supervision o f the Federal Government are not Federal employees. United
States v. Orleans, 425 U.S. 807 (1976); Logue v. United States, 412 U.S. 521(1973). But individuals who contract with the Federal Government and who
act under the close, daily, physical supervision o f Federal employees should
themselves be considered employees for purposes o f the Act, regardless o f
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the form o f the contract. See, e.g., Witt v. United States, 462 F. 2d 1261,
1263-64 (2d Cir. 1972); United States v. Becker, 378 F. 2d 319, 322-23
(9th Cir. 1967). The exclusion o f contractors from the definition of
Federal agencies in § 2671 should not defeat application o f the common
law o f respondeat superior to individuals who contract for their services
with a Federal agency. The critical element for liability is the
Governm ent’s power “ to control the detailed physical perform ance o f the
contractor.” See, Logue v. United States, 412 U.S. at 527-28. We suggest,
however, that the word “ independent” preceding “ contractor” be struck
from the language o f the form. As advance personnel do not act in­
dependently, this terminology can only confuse their status under § 2671.
It is appropriate to retain the word “ contractor” rather than
denominating the advance people “ consultants” when contracting for
their services. The authority o f the President and the Vice President to
procure the tem porary or intermittent services o f consultants is set forth in
Pub. L. No. 95-570, 92 Stat. 2445 (1978). The Civil Service Commission
in subchapter 1-2 o f Federal Personnel Manual C hapter 304 states that a
consultant who is excepted from the competitive service by statute is “ a
person who serves as an adviser to an officer or instrumentality o f the
Government, as distinguished from an officer or employee who carries out
the agency’s duties and responsibilities.” Advance personnel do not serve
as advisers; they simply carry out responsibilities assigned to Presidential
or Vice Presidential employees.
Finally, we remind you o f our recommendation that you inform those
hired to perform advance work o f their reporting responsibilities under the
Federal Tort Claims Act. It would seem most appropriate to include this
information in the contract.
Leon U lm an
D eputy Assistant A ttorney General
Office o f Legal Counsel
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