from Lexington on either the evening of May 9, 1969, or the following day, May 10, 1969.
In determining whether the court has jurisdiction under the Federal Tort Claims Act it must be decided whether 1) Smits was an employee of the United States at the time of the accident, and 2) if that issue is resolved in the affirmative, whether Smits was acting within the scope of his employment at the time of the accident.
It is the opinion of the court that Smits was not an employee of the United States at the time of the accident. The fact of employment is determined under federal law. Fisher v. United States, 356 F.2d 706 (6 Cir. 1966), and O'Brien v. United States, 236 F.Supp. 792 (D.C.1964).
At the time ofthe accident Smits was a member of the Army National Guard of Kentucky. It could be argued that inasmuch as the Army National Guard is a component of the United States Army that Smits was a member of the Armed Forces of the United States. However, a National Guardsman is only considered to be an employee of the United States if the National Guard unit of which he is a member is in active federal service. 10 United States Code 3078 reads as follows:
"The Army National Guard while in the service of the United States is a component of the Army."
10 United States Code 3079 reads as follows:
"When not on active duty, members of the Army National Guard of the United States shall be administered, armed, equipped, and