Unpublished Disposition, 876 F.2d 897 (9th Cir. 1989)

MEMORANDUM^* 

Plaintiffs appeal the district court's dismissal of their action under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. The district court dismissed on the ground that the plaintiffs could not demonstrate injury caused by an employee of the United States government as required by the FTCA. The underlying facts are not disputed.

The injuries plaintiffs complain of were caused by an automobile accident involving a truck operated by Hunt Transportation Corp., which had contracted with the United States Postal Service (USPS) to transport mail. In determining whether the government may be sued for the actions of Hunt and its employees, the question is whether the government has the authority "to control the detailed physical performance of the contractor." United States v. Orleans, 425 U.S. 807, 814 (1976). The test is one of control based upon traditional principles of agency. See id. at 814-15. This court has recognized that a person is a government employee for FTCA purposes only if the government has authority to exercise substantial supervision or control over the "detailed daily operations of the contractor's employees." Letnes v. United States, 820 F.2d 1517, 1518 (9th Cir. 1987); Ducey v. United States, 713 F.2d 504, 516 (9th Cir. 1983).

Here, as in Letnes, many of the contractual provisions regarding Hunt's performance are mandated by federal regulations, and none grant the government the kind of detailed physical supervision required to establish employee status. The USPS does not specify the actual road route to be taken by the drivers in transporting the mail; Hunt, and not the government, is required to provide either personal or representative supervision over the operation of the route, and to be available in the event of an emergency to give attention to problems at hand. Hunt makes basic hiring decisions and is responsible for withholding taxes from drivers' pay.

The district court correctly concluded that the relationship between the USPS and Hunt does not provide the requisite degree of control to make Hunt or Hunt's driver a government employee.

AFFIRMED.