Carter v. Harris, 88-3179

• Decision Date: 01 May 1989
• Docket Number: No. 88-3179,88-3179
• Citation: 875 F.2d 314
• Parties: Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Herman James CARTER, Plaintiff, v. Jack Arthur HARRIS, Defendant & Third Party Plaintiff-Appellant, v. UNITED STATES of America, Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 314

875 F.2d 314

Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Herman James CARTER, Plaintiff, v. Jack Arthur HARRIS, Defendant & Third Party Plaintiff-Appellant, v. UNITED STATES of America, Third Party Defendant-Appellee.

No. 88-3179.

United States Court of Appeals, Fourth Circuit.

Argued March 7, 1989.

Decided May 1, 1989.

Fred Calvin Alexander, Jr. (McGuire, Woods, Battle & Boothe on brief) for appellant.

Paula Potoczak, Assistant United States Attorney (Henry E. Hudson, United States Attorney, Barbara L. Ward, Assistant United States Attorney on brief) for appellee.

Before SPROUSE, Circuit Judge, BUTZNER, Senior Circuit Judge, and YOUNG, Senior District Judge, sitting by designation.

PER CURIAM:

Following a November 1987 automobile accident involving Jack Arthur Harris and Herman James Carter, Carter sued Harris for $750,000 in compensatory and $500,000 in punitive damages. Harris then filed a third party action against the United States seeking defense and indemnification against Carter's claims based on the Federal Drivers Act, 28 U.S.C. Sec. 2679. Harris' third party claim is predicated on his work as an investigator on behalf of a government agency. ¹

The district court dismissed Harris' action against the United States and the underlying suit subsequently was settled. The district court relied upon the language of Harris' employment contract, his part-time and flexible schedule, and the absence of direct government supervision or involvement in the performance of his assignments finding that Harris was neither a statutory nor a common-law employee of the government.

Harris appeals from the district court's dismissal of his indemnification claim against the United States. For the reasons set forth in the district court's opinion and explained below, we affirm.

We have no difficulty concluding that Harris was not a common law employee of the government. As the district court indicated, the contract between Harris and the government agency identified Harris as an "Independent Contractor" and stated explicitly that "nothing contained herein shall be construed as implying the creation of an employee-employer relationship." A separate "Acknowledgment of Independent Contractor Status" statement was also signed by Harris. Moreover, the government did not supervise the performance or execution of Harris' duties, only requiring that he adhere to certain standards of professionalism while conducting the assignments given him: Harris set his own hours and was solely responsible for charting the course of his investigations. He did not receive any pension benefits and the government did not withhold any income or social security benefits on his behalf.

Harris' second argument is that he should be considered a statutory employee under the relevant portions of 28 U.S.C. Sec. 2671 which are set forth in the margin. ² He contends that he falls within the broad inclusionary definition of "employee of the government" because he was a "person[] acting on behalf of a federal agency in an official capacity." Although the provision relied upon by Harris is indeed broad, we believe that two Supreme Court decisions and Circuit precedent dictate a somewhat less expansive reading of section 2671 than urged by Harris.

In Logue v. United States, 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973), the Court held that the United States could not be sued under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Sec. 1346 et seq., for the death of a federal prisoner being detained in a county jail which had contracted to guard federal prisoners. The Court first concluded that county personnel were not employees of a federal agency because they were employees of a "contractor with the United States." Loque, 412 U.S. at 530. The Court then considered whether the "acting on behalf of a federal agency in a official capacity" language of 28 U.S.C. Sec. 2671 is sufficiently inclusive to overcome the "contractor exclusion," and rejected such an interpretation noting that the legislative history, though scant, suggests that the language was intended "to cover special situations such as the 'dollar-a-year man' ..., or an employee of another employer who is placed under direct supervision of a federal agency pursuant to contract or other arrangements." 412 U.S. 531 (emphasis added). Thus, by requiring the existence of government control in addition to the imprimatur of government authority, the Court adopted a narrower construction of the "acting on behalf of a federal agency" provision than that advanced by Harris.

In United States v. Orleans, 415 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976), the Court affirmed a district court's grant of summary judgment in favor of the United States in a case where the negligent actors were employees of a nonprofit community organization which was created to take advantage of federal programs sponsored by the Office of Economic Opportunity ("OEO"), had no source of funds other than OEO, only conducted progams which were...