80 F.3d 884 (4th Cir. 1996), 95-1317, Robb v. United States

Docket Nº:95-1317.
Citation:80 F.3d 884
Party Name:John G. ROBB, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Case Date:March 29, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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80 F.3d 884 (4th Cir. 1996)

John G. ROBB, Plaintiff-Appellant,


UNITED STATES of America, Defendant-Appellee.

No. 95-1317.

United States Court of Appeals, Fourth Circuit

March 29, 1996

Argued Jan. 29, 1996.

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Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca B. Smith, District Judge. (CA-94-302).

ARGUED: Judith M. Cofield, Shuttleworth, Ruloff, Giordano & Kahle, P.C., Virginia Beach, Virginia, for Appellant. Anita K. Henry, Assistant United States Attorney, Office of the United States Attorney, Norfolk, Virginia, for Appellee.

Before WILKINSON, Chief Judge, HAMILTON, Circuit Judge, and BLAKE, United States District Judge for the District of Maryland, sitting by designation.

Affirmed by published opinion. Judge BLAKE wrote the opinion, in which Chief Judge WILKINSON and Judge HAMILTON joined.


BLAKE, District Judge:

Plaintiff-Appellant John Robb ("Robb") appeals from the district court's dismissal of a portion of his Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, claim against the United States. Robb argues

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that the United States is liable for the alleged negligence of two physicians, Doctors John F. Stroy and Richard O'Hagan, who failed to diagnose a cancerous lesion on his lung. Dr. Stroy, a family practitioner, was employed by Franklin, Green, and Jamaludeen, Ltd. ("F.G.J."), a provider of primary care medical services which had entered into a Partnership Memorandum of Understanding ("MOU") with the United States Air Force. Under the MOU, F.G.J. agreed to provide primary care services at the 1st Medical Group, Langley Air Force Base in Langley, Virginia. Dr. O'Hagan, a diagnostic radiologist, was employed by Dr. Leo P. O'Connell. Dr. O'Connell contracted with the Air Force to provide radiology services for the 1st Medical Group. The district court held that Drs. Stroy and O'Hagan were independent contractors with, and not employees of, the United States. Accordingly, it dismissed this portion of Robb's claim against the United States for lack of subject matter jurisdiction. We agree with the conclusion of the district court and affirm.


The facts in this appeal are essentially undisputed. The relationship between the United States and the allegedly negligent physicians may be summarized as follows.

On December 23, 1988, the Air Force entered into an MOU with F.G.J., the employer of Dr. Stroy. Under the MOU, F.G.J. was to provide primary care medical services to CHAMPUS beneficiaries at the 1st Medical Group at Langley Air Force Base. 1 The MOU was to last two years, but the parties renewed the agreement on July 3, 1990. The renewed agreement remained effective from July 3, 1990 through June 30, 1992. Dr. O'Connell, the employer of Dr. O'Hagan, executed a service contract with the United States Air Force to perform radiology services for the 1st Medical Group at Langley. The contract was in effect from October 1, 1989 through September 1, 1994.

On November 5, 1990, following a fall, Robb received a medical work-up at the F.G.J. Partnership Clinic at Langley Air Force Base at which Dr. John F. Stroy examined Robb and ordered a chest x-ray. Robb's chest was x-rayed the following day, and the film was read and interpreted by Dr. Richard O'Hagan. Dr. O'Hagan failed to locate a mass in Robb's lungs, noting in his report: "The lungs are expanded and free of infiltrate," and "NEGATIVE CHEST."

Over the following three years, Robb was examined by four active duty military practitioners specializing in ophthalmology, optometry, dermatology, and surgery. The surgeon's examination of Robb was related to pain resulting from gallstones. None of these specialists examined Robb for problems of the neck or lung, and none identified the tumor. On March 24, 1993, Robb commented to an Air Force physician about a lump in his neck. The physician took a chest x-ray and thereafter diagnosed Robb's lung cancer.

On March 16, 1994 Robb filed a complaint in the United States District Court for the Eastern District of Virginia alleging negligence on the part of the United States, its agents and employees. The United States then filed a motion to dismiss and for summary judgment. After briefing and oral argument, a United States Magistrate Judge recommended that the complaint against the United States be dismissed insofar as it alleged negligence on the part of Drs. Stroy and O'Hagan because he determined that the physicians were independent contractors rather than employees of the United States. The magistrate judge recommended denial of the motion for summary judgment with respect to any claims predicated on the acts or omissions of active duty personnel. In an order dated September 23, 1994, the district judge adopted the magistrate judge's recommendation in its entirety. On February 1-2, 1995, a trial was conducted before the district judge on Robb's remaining claims regarding the alleged negligence of the active-duty personnel. On February 2, 1995, the court

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granted the United States's motion for judgment as a matter of law regarding the alleged negligence of the active-duty personnel, thus dismissing the remainder of the action on the merits.

Robb has appealed the dismissal of the action against the United States relating to Drs. Stroy and O'Hagan under two theories. First, Robb argues that Drs. Stroy and O'Hagan are employees of the United States and not independent contractors for the purposes of the FTCA. Second, while he does not appeal the judgment of dismissal related to the active-duty personnel, he argues that the alleged negligence of Drs. Stroy and O'Hagan should be imputed to the United States under Virginia's continuing treatment rule. Robb argues that the failure by the active-duty medical practitioners to diagnose his cancer after the original examination by Drs. Stroy and O'Hagan was a continuation of that alleged negligence, and the United States should be liable for that continuing failure to diagnose.


The district court dismissed Robb's claim, to the extent that it relied on the alleged negligence of Drs. Stroy and O'Hagan, for lack of subject matter jurisdiction. 2 Joint Appendix ("J.A.") at 300. The dismissal of an action under Rule 12(b)(1) is a matter of law reviewed de novo. Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995); Tillman v. Resolution Trust Corp., 37 F.3d 1032, 1034 (4th Cir.1994).

The FTCA contains a limited waiver of the United States's sovereign immunity, allowing a plaintiff to sue the United States for damages in compensation for injuries resulting from certain torts of employees of the government acting within the scope of their employment. 28 U.S.C. § 1346(b). An " '[e]mployee of the government' includes officers or employees of any federal agency, members of the military or naval forces of the United States, ... and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States." Id. § 2671. The term "federal agency" explicitly excludes "any contractor with the United States." Id. Therefore, Congress has not waived the sovereign immunity of the United States for injuries resulting from the actions of independent contractors performing work for the government. See United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976).

The FTCA, as a waiver of sovereign immunity, is strictly construed, and all ambiguities are resolved in favor of the sovereign. See United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 1014, 117 L.Ed.2d 181 (1992); Williams, 50 F.3d at 305. Accordingly, the independent contractor exception to the waiver of sovereign immunity has been construed broadly. See Lurch v. United States, 719 F.2d 333, 338 (10th Cir.1983), cert. denied, 466 U.S. 927, 104 S.Ct. 1710, 80 L.Ed.2d 182 (1984). Although state law governs the substantive duties of the United States under the FTCA, 28 U.S.C. § 1346(b), whether a person is a contractor or an employee is determined under federal law. See Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 2220, 37 L.Ed.2d 121 (1973); Berkman v. United States, 957 F.2d 108, 112 (4th Cir.1992).

The test employed for distinguishing between a contractor and an employee for FTCA purposes was developed by the Supreme Court in Logue and Orleans. In Logue,

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a federal prisoner hanged himself while being held in a county jail. The surviving parents of the prisoner sued the United States under the FTCA alleging that the negligence of employees and agents of the government was the proximate cause of their son's death. Logue, 412 U.S. at 522-23, 93 S.Ct. at 2217. The county jail was one of hundreds that had contracted with the Federal Bureau of Prisons to provide for the safekeeping, care, and subsistence of federal prisoners. The Logue Court concluded that the employees of the county jail were independent contractors and not employees of the United States. In reaching this conclusion, the Court cited approvingly from the opinion of the court below, which had read the FTCA contractor exemption as incorporating the common-law distinction between contractors and employees or agents. Primarily, this distinction turns on "the absence of authority in the principal to control the physical conduct of the contractor in performance of the contract." Id. at 527, 93 S.Ct. at 2219. Guided by this standard, the Court examined the statute which authorized the contracts with county jails, as well as the contract itself. The Court concluded that the jail was an independent contractor because the United States had no authority to "physically supervise the conduct of the jail's employees." Id. at 530, 93 S.Ct. at 2220...

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