MEMORANDUM AND ORDER

This case is before the court on the defendant’s motion for dismissal of the complaint or, in the alternative, for summary judgment.

The plaintiff filed this action against the United States under the Federal Tort Claims Act., 28 U.S.C. § 1346 (b), 2671, et seq., alleging that the United States “acting through its duly authorized employee and agent, one Private Jack Dennis Spears, so negligently, carelessly and unlawfully drove and operated a truck so as to cause the same to collide with plaintiff’s vehicle, thereby proximately causing the herein alleged injuries and damages to plaintiff.”

Accompanying its motion for summary judgment, the United States has submitted affidavits which assert that Jack Spears was an employee of the California National Guard at the time of the accident, that he was acting within the scope of his employment, and that he had not been activated into federal service at the time in question. Plaintiff’s opposition to the defendant’s motion did not set forth any specific facts, as required by Rule 56(e) of the F.R.C.P., which would tend to negate the assertions in defendant’s affidavits and thereby raise any genuine factual issues.

Therefore, this court finds that based on the facts contained in the Government’s affidavits, the defendant is entitled to summary judgment in its favor.

The Federal Tort Claims Act provides in pertinent part:

It is apparent that in order for the plaintiff to recover under the Federal Tort Claims Act, he must show that the alleged tortfeasor was an “employee of the Government” at the time of the accident. In this respect plaintiff has failed. Jack Spears was an employee of the State of California, not the United States Government.

In Maryland, for the use of Levin, v. United States, 381 U.S. 41 , 85 S.Ct. 1293 , 14 L.Ed.2d 205 (1965), the Supreme Court held that both military personnel and civilian caretakers of the National Guard are employees of the States for the purposes of the Federal Tort Claims Act. The Court stated:

The court later concluded:

In an effort to avoid the impact of the Maryland case, supra, plaintiff has posited theories of liability based on state law principles of estoppel and agency. It should be noted at the outset that District Courts lacked jurisdiction to hear tort claims against the United States prior to the passage of the Federal Tort Claims Act. Under the Act the United States waived its immunity from certain suits against it, but only when the injury or loss was caused by the act or omission of an “employee of the Government.” Whether a person is an “employee of the Government” within the meaning of the Act is a question of federal law, not state law. Brucker v. United States, 338 F.2d 427 (9th Cir. 1964); United States v. Hainline, 315 F.2d 153 (10th Cir. 1963); Pattno v. United States, 311 F.2d 604 (10th Cir. 1962).

In Pattno v. United States, supra, the court stated:

Further, the ordinary principle of estoppel is not applied against the Government. Claremont Aircraft, Inc. v. United States, 420 F.2d 896 (9th Cir. 1970). However, even if estoppel was applicable, the facts alleged by the plaintiff would not be sufficient to invoke this equitable doctrine.

Since it is the finding of this court that Jack Spears was an employee of the California National Guard at the time of the accident, the United States is not liable for injuries caused by his negligence. Therefore, it is the order of this court that defendant’s motion for summary judgment be, and it hereby is, granted.