Brown v. United States, Civ. A. No. 81-95-N.

• Decision Date: 26 August 1982
• Docket Number: Civ. A. No. 81-95-N.
• Citation: 573 F. Supp. 740
• Parties: Jane Barber BROWN, individually and as Executrix of the Estate of James W. Brown, deceased, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Alabama

573 F. Supp. 740

Jane Barber BROWN, individually and as Executrix of the Estate of James W. Brown, deceased, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 81-95-N.

United States District Court, M.D. Alabama, N.D.

August 26, 1982.

Ted Taylor, Tom Wright, Prattville, Ala., and Roger Morrow, Whitesell, Morrow & Romine, Montgomery, Ala., for plaintiff.

John C. Bell, U.S. Atty., Kenneth E. Vines, Asst. U.S. Atty., Montgomery, Ala., for defendant.

MEMORANDUM OPINION

HOBBS, District Judge.

On October 6, 1981, this Court dismissed the complaint in this case on the ground that the Court lacked subject matter jurisdiction over the cause of action because the State of Alabama employees acted as independent contractors for the federal government, and the United States could not be held liable for their actions under the Federal Tort Claims Act, 28 U.S.C. § 1346. On January 4, 1982, the Court, on motion by plaintiff, reopened this case for the limited purpose of allowing plaintiff to show that her complaint states a cause of action against actual employees of the United States, Social Security Administration. In that order the Court reiterated that it would not reconsider its finding that the Alabama employees were independent contractors.

Plaintiff filed a motion for extension of time for discovery and a motion to amend the complaint on April 12, 1982. The amended complaint seeks to add the four State of Alabama employees on the basis of pendent jurisdiction as well as assert liability of the United States for their actions. In an order issued April 26, 1982, the Court ruled that as far as the amended complaint sought to base liability of the United States on the actions of employees of the Alabama Department of Education, the amendment would not be allowed. The Court reserved decision on the pendent state claim until it was established that there is a claim in this case over which there is federal jurisdiction. The Court ordered plaintiff to file a brief detailing any evidence developed up to that date that would tend to show that the United States could be liable under any theory of the negligence applicable to employees of the United States. Plaintiff was also directed to outline the discovery which plaintiff would pursue, based on the known information, if further discovery was granted. The Court directed plaintiff to make such a showing by May 14, 1982.

On May 11, 1982, plaintiff filed a brief stating the evidence developed to date. On June 18, 1982, plaintiff filed a supplemental brief with attached affidavits and documentary exhibits. The same day plaintiff filed a memorandum of law in support of its May 11 and June 18 briefs. The United States responded on June 22, 1982 to plaintiff's briefs. Thus, the motion to amend the complaint and the motion to allow further time for discovery are now before the Court.

Despite repeated statements from this Court that it would not reconsider its holding that employees of the Division of Disability Determination of the Alabama Department of Education are independent contractors, plaintiff continues to assert that such personnel are employees of the United States and has directed most of her legal argument and discovery towards this issue. The Court has read plaintiff's affidavits, depositions, and the cases cited in plaintiff's brief and finds nothing therein to cause this Court to reconsider its prior finding. Many of the statements in the affidavits are hearsay and assert conclusions of law based on the affiant's understanding of the financing of the Division. Other statements merely reflect the terms of the contract between the State and the federal government in regard to reimbursement for expenditures and the requirement that determinations be made according to federal regulations and standards. These facts were considered in the Court's opinion of October 6, 1981. Moreover, the deposition of Dr. Shelton (pp. 7 and 67) clearly shows that Disability Determination Service personnel are part of the State Merit System Service, are hired through the State Personnel Department, and the Service Director's immediate supervisor is the State Superintendent of Education.

The Court finds the cases cited by plaintiff unpersuasive on the facts in this case. In Martarano v. United States, 231 F.Supp. 805 (D.Nev.1964), the state employee had been loaned to the federal government under a cooperative project agreement. He was supervised by federal employees out of the district office of the Bureau of Sport's Fisheries and Wildlife and no state employee directed or supervised his work. In other words, he worked on a daily basis with and under the control of federal employees and thus was considered a temporary employee of the United States. In Wollman v. Gross, 484 F.Supp. 598 (D.S.D.1980) aff'd 637 F.2d 544 (8th Cir.1980), cert. den., 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981), the court noted that Mr. Gross was employed by the Agricultural Stabilization and Conservation Service, an agency established under the Secretary of Agriculture and was a full-time federal civil service employee. 484 F.Supp. at 601. Wollman did not involve the employee of a state agency contractor for the federal government. See Duba v. Schuetzle, 303 F.2d 570 (8th Cir.1962) ASC committees established by federal acts, members of state committees are appointed by Secretary of Agriculture. Finally, Griffin v. United States, 637 F.2d 308 (5th Cir.1981) was reversed on the ground that the court should not have decided as a jurisdictional question on a motion to dismiss whether the United States itself owed a duty to the plaintiff. Liability was not predicated on holding that an independent contractor was an employee of the United States.

Far more persuasive is the decision on similar facts in Hill v. Schweiker, 532 F.Supp. 1014 (D.N...