Ezekiel v. Michel, No. 94-2838

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before BAUER, COFFEY and KANNE; COFFEY
• Citation: 66 F.3d 894
• Parties: Annamma A. EZEKIEL and Al Ezekiel, Plaintiffs-Appellants, v. Jaime T. MICHEL and United States of America, Defendants-Appellees.
• Decision Date: 26 September 1995
• Docket Number: No. 94-2838

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66 F.3d 894 64 USLW 2222 Annamma A. EZEKIEL and Al Ezekiel, Plaintiffs-Appellants,
v.
Jaime T. MICHEL and United States of America, Defendants-Appellees. No. 94-2838. United States Court of Appeals,
Seventh Circuit. Argued Feb. 7, 1995.
Decided Sept. 26, 1995.

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Brian R. Holman, Jeffrey M. Friedman (argued), Friedman & Holman, Chicago, IL, for plaintiffs-appellants.

Daniel E. May (argued), Office of the United States Attorney, Civil Division, Appellate Section, Chicago, IL, Linda A. Wawzenski, Asst. U.S. Atty., Office of the United States Attorney, Chicago, IL, for defendants-appellees.

Before BAUER, COFFEY and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

Plaintiff Annamma Ezekiel, a nurse employed at the North Chicago Veterans Administration Medical Center (VA hospital), and her husband brought this tort action against Dr. Jaime T. Michel, a resident physician in psychiatry at the VA hospital. Ezekiel alleged that she was accidentally pricked by a contaminated hypodermic needle, which Dr. Michel had failed to properly cap or dispose of. ¹ Finding that Dr. Michel was a federal employee acting within the scope of his employment at the time of the alleged negligent act, the district court substituted the United States as the proper defendant under the Federal Tort Claims Act (FTCA), see 28 U.S.C. Sec. 2671, et seq., and proceeded to dismiss the complaint for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The court ruled that Ezekiel cannot maintain the suit against the United States under FTCA for she was a federal employee injured on the job, and her exclusive remedy is the Federal Employees' Compensation Act (FECA), 5 U.S.C. Sec. 8116(c). The plaintiffs appeal from the dismissal of their complaint. We affirm.

I. BACKGROUND

In July 1991, both Annamma Ezekiel and Dr. Michel were employed by the VA hospital in North Chicago, Illinois: Ezekiel was a nurse and Dr. Michel was a resident physician assigned to a psychiatric residency position. As will be explained more fully below, a resident physician must first complete his medical education, then pass the necessary medical examinations, and be licensed in Illinois to practice medicine before he can receive clinical training in a specialized field

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such as psychiatry. On July 11, 1991, Ezekiel paged for a doctor to draw blood from a patient known to be infected with the hepatitis C virus and the human immunodeficiency virus (HIV). Dr. Michel responded to the page, and after drawing blood from the patient, failed to properly cap or dispose of the contaminated hypodermic needle. Instead, he placed the syringe on top of the empty needle cap on the table. Ezekiel's complaint alleges that when she attempted to dispose of the syringe as part of her duties as a nurse, both of her hands were pricked in several places by the exposed needle. Ezekiel was immediately tested for exposure to blood-borne contaminants, but her test results at that time were negative. More than two years later in November 1993, Ezekiel was diagnosed with hepatitis C. She has not tested positive for HIV.

At the time of Ezekiel's injury, Dr. Michel was in his last year of his medical psychiatric residency program under the auspices of the Chicago Medical School. Dr. Michel was a licensed physician in the State of Illinois, having graduated medical school, passed the necessary qualifying examinations, and been approved by the Medical Licensing Board. ² In order to receive Board certification as a psychiatrist, Dr. Michel had enrolled in the accredited residency program of the Chicago Medical School to receive specialized training and experience. As part of the residency program, Dr. Michel was assigned to work at the VA hospital from July 1, 1991, through June 3, 1992. Although the VA hospital appointed Dr. Michel as a resident in psychiatry, he was not compensated directly by the VA hospital. According to the VA hospital's Chief of Human Resources Management, Robert Grant, residents may rotate through several hospitals as part of their training, but each facility contributes to a fund that pays the residents' salaries. Presumably, the fund is administered by the Chicago Medical School, the institution directing the overall residency program. Further, according to Grant, resident physicians receive specialized training and supervision under VA hospital staff and are considered employees of the VA hospital.

Initially, Ezekiel and her husband sued Dr. Michel in his sole capacity, alleging that his failure to properly handle and dispose of the contaminated hypodermic needle caused Ezekiel to contract hepatitis C, a serious and potentially life threatening disease. The plaintiffs purported to base their action on the parties' diversity of citizenship. ³ See 28 U.S.C. Sec. 1332(a). The Government intervened under the FTCA and sought to have itself substituted for Dr. Michel as the defendant, relying on the Attorney General's certification that Dr. Michel was a federal employee acting within the scope of his employment at the time of Ezekiel's injury. See 28 U.S.C. Secs. 2679(b)(1) and 2679(d)(1). The Government also sought dismissal of the complaint for lack of subject matter jurisdiction, see Fed.R.Civ.P. 12(b)(1), alleging that because the United States is the proper defendant and Ezekiel was a federal employee injured while performing her nursing duties, Ezekiel's action is precluded by the Federal Employees' Compensation Act (FECA), 5 U.S.C. Sec. 8116(c). Alternatively, the Government argued that the plaintiff, Ezekiel, failed to exhaust her administrative remedies, which is a prerequisite to the filing of a tort claim against the United States under the FTCA. See 28 U.S.C. Sec. 2675(a).

Initially, the district court concluded that Dr. Michel was not a federal employee and thus, the suit was not deemed an action against the United States. On reconsideration and based on further submissions by the government, ⁴ the court reversed its previous position and ruled that Dr. Michel was a federal employee at the time of Ezekiel's injury. The trial judge after reviewing the record was influenced by the degree of supervision

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and control the VA hospital's medical staff had over him. At the same time, the court also rejected Ezekiel's argument that the Government should be equitably estopped from asserting that Dr. Michel was a federal employee because, in prior cases, the United States avoided liability under the FTCA by characterizing civilian physicians at VA hospitals as independent contractors. The court substituted the United States as the proper party defendant, and dismissed the complaint for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), recognizing that because Ezekiel was a federally employed nurse injured on the job, her exclusive remedy against the United States was under the FECA, 5 U.S.C. Sec. 8116(c). Nonetheless, the court apparently also based its order dismissing the complaint on Ezekiel's lack of compliance with the jurisdictional prerequisite of filing an administrative tort claim against the Veterans Administration and thus, failure to exhaust her administrative remedies under the FTCA. See 28 U.S.C. Sec. 2675(a); Deloria v. Veterans Administration, 927 F.2d 1009, 1011 (7th Cir.1991).

II. DISCUSSION

A.

When ruling on a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the district court must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff. Rueth v. United States Environmental Protection Agency, 13 F.3d 227, 229 (7th Cir.1993). "The district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Capitol Leasing Co. v. Federal Deposit Insurance Corp., 999 F.2d 188, 191 (7th Cir.1993) (per curiam) (quoting Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979)); see also Rennie v. Garrett, 896 F.2d 1057, 1057-58 (7th Cir.1990). We review de novo the district court's dismissal of an action under Rule 12(b)(1). Bailor v. Salvation Army, 51 F.3d 678, 684 (7th Cir.1995).

B.

The sole issue on appeal is whether Dr. Michel, a licensed physician participating in a psychiatric rotation residency program at the VA hospital and receiving no compensation directly from the VA hospital, was a federal employee within the meaning of the Federal Tort Claims Act. The determination is central to the district court's 12(b)(1) ruling because if Dr. Michel was recognized for his services as an independent contractor rather than a federal employee, the case would proceed as a diversity action. If, however, Dr. Michel was a federal employee, then the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the "Westfall Act"), which amended the FTCA and provided absolute immunity to Government employees for torts committed in the scope of their employment, would nullify Ezekiel's claim against Dr. Michel individually and require that she instead proceed only against the United States. ⁵ 28 U.S.C. Sec. 2679(d)(1). ⁶

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Once the United States is substituted as the defendant, the FTCA no longer applies, nor will the requirement of exhaustion of administrative remedies as the district court has apparently held. Ezekiel's exclusive avenue of redress against the Government for her work-related injures is the Federal Employees' Compensation Act (FECA), 5 U.S.C. Sec. 8101, et seq.. See 5 U.S.C. Sec. 8102(a) ("The United States shall pay compensation ... for the disability or death of an employee resulting from personal injury sustained while in the performance of his duty...."). It is undisputed that Ezekiel's injury was incurred while she was performing her nursing duties at the VA hospital. The liability imposed under FECA supplants all other...