Gere v. United States, Civ. No. 75-3022

• Decision Date: 03 February 1977
• Docket Number: 75-3018.,Civ. No. 75-3022
• Citation: 425 F. Supp. 847
• Parties: Ira GERE, guardian ad litem of Rose Gere, et al. v. UNITED STATES of America. Caroline GERE v. UNITED STATES of America.
• Court: U.S. District Court — District of South Dakota

425 F. Supp. 847

Ira GERE, guardian ad litem of Rose Gere, et al. v. UNITED STATES of America.

Caroline GERE v. UNITED STATES of America.

Civ. Nos. 75-3022, 75-3018.

United States District Court, D. South Dakota.

February 3, 1977.

Wally Eklund, Gregory, S. D., Mark V. Meierhenry, Vermillion, S. D., for plaintiffs.

William F. Clayton, U. S. Atty., Sioux Falls, S. D., for defendant.

MEMORANDUM OPINION

BOGUE, District Judge.

Plaintiffs in the above-entitled Federal Tort Claims Act matter were injured in an automobile accident while they were riding in a vehicle which was being used to transport Rose Gere from her home to a Public Health Service Clinic. The vehicle was owned by one Ellen Moran, who was at that time a Community Health Representative employed pursuant to a contract between the Rosebud Sioux Tribe and the Department of Health, Education and Welfare. The accident occurred on June 11, 1974, and references herein to a "contract" will be to the contract between the Tribe and HEW which was in effect at that time.

The trial of this matter was bifurcated, and the only issue now before the Court is whether Ellen Moran, whose alleged negligence allegedly caused Plaintiff's injuries, was an "employee of the federal government" rather than an employee of a "contractor with the United States" within the meaning of the Federal Tort Claims Act, 28 U.S.C. § 2671 at the time in question. An answer in the affirmative is, of course, a prerequisite to recovery in this action.

The contract in question was entered into July 5, 1973, and was signed by the President of the Rosebud Sioux Tribe and by a "contracting officer" on behalf of the United States. One of the primary purposes of the contract was to "provide an effective transportation system to health resources." Art. I § A.1.(c). Under the contract, the Rosebud Sioux Tribe was to designate a "Community Health Representative" for each community on the Rosebud Indian Reservation. Ellen Moran was the Community Health Representative, hereinafter C.H.R., for the Swift Bear Community, of which Plaintiffs' home was a part. C.H.R.'s had several responsibilities, among which were to: "make home visits and refer to appropriate health workers, people found to be suffering from illness; and transport people who do not have cars or other readily available transportation to clinics and hospitals." Art. I § A.2.(j), (k). The express terms of the contract listed forty other specific duties which the C.H.R.'s were to perform. On the day in question, Ellen Moran was acting as a C.H.R. and was transporting Rose Gere to a Public Health Clinic for treatment of a shoulder injury.

Subject to the availability of funds, the federal government was to provide training to the C.H.R.'s. Art. I § B. The contract suggested that some of the training could be accomplished at the Indian Health Service Training Center in Tucson, Arizona. Id. Although no funds were ever specifically appropriated by the federal government for C.H.R. training, several of the Rosebud C.H.R.'s were trained pursuant to arrangements made by federal government personnel.

Under the contract, the Rosebud Sioux Tribe was required to submit monthly progress reports which were to include "a record of daily activities of the Community Health Representative, including such items as number of visits made, environmental condition corrected, individuals transported, educational conferences held and number of attendees, etc." Art. I § A.4. The contracting officer for the federal government was to perform "review and approval of the work required by the contract." Art. III. The federal government had the right "to inspect, or otherwise evaluate the work performed or being performed" under the contract, § 19, General Provisions. The federal contracting officer selected a representative, who was to be "responsible for the administration of the technical aspects of the contract." Art. IV.

Although the parties to the contract agreed upon a fixed price, it seems clear that the installment payments of the fixed price were conditioned upon the federal government's evaluation of the performance under the contract. Article V of the contract specified that each monthly installment represented the "agreed upon fixed-price for satisfactory performance of work during the respective month." Under the method of payment, the federal contracting officer was "to determine contract compliance prior to forwarding to the Paying Office shown on the face page of this contract for payment." Art. VIII.

The government asserts that this contract was negotiated pursuant to 42 U.S.C. § 2002, which reads in relevant part as follows:

Whenever the health needs of the Indians can be better met thereby, the Secretary of Health, Education, and Welfare is authorized in his discretion to enter into contracts with any State, Territory, or political subdivision thereof, or any private nonprofit corporation, agency or institution providing for the transfer by the United States Public Health Service of Indian hospitals or health facilities, including initial operating equipment and supplies.

However, the contract in question does not appear to be one of the sort envisioned by 42 U.S.C. § 2002, for two distinct reasons: 1) the contract was not entered into with a State, Territory or political subdivision thereof or a private nonprofit corporation, agency or institution, but instead was entered into with the Rosebud Sioux Tribal government; and 2) the contract does not "transfer . . . Indian hospitals or health facilities" but is limited to transportation to, and communication and education about, existing health facilities on the Rosebud Indian Reservation which, at all times relevant to this action, were operated by federal personnel.

This contract appears to be a hybrid type of creature, not specifically envisioned in any of the provisions of 42 U.S.C. §§ 2001-2005. It appears to be a method by which the Department of Health, Education and Welfare chose to discharge the responsibilities it has assumed for itself. 42 C.F.R. § 36.11 reads as follows:

Within the limits of available funds, facilities, and personnel, the Public Health Service will make available, within the area served by the local facility, hospital and medical and dental care, including outpatient services and services of mobile clinics and public health nurses, and preventive care including immunizations and health examinations of special groups, such as school children. (Emphasis added.)

See also 42 C.F.R. § 36.1(a). In short, the contract in question did not remove the operation of the clinics and hospital on the Rosebud Indian Reservation from federal control. This of course does not necessarily mean that the federal government could not contract away control of the transportation of Indian beneficiaries to these clinics and the hospital. See Logue v. United States, 412 U.S. 521, 528 n. 7, 93 S.Ct. 2215, 2220, 37 L.Ed.2d 121 (1973). Cf. 42 C.F.R. § 36.21. The question in this case concerns only the role of the Rosebud C.H.R.'s vis-a-vis the federal government, rather than the character of the entire health program at Rosebud. The primary role of the C.H.R.'s was to make this program available to Indian beneficiaries. Thus the factual issue now to be resolved is whether, in carrying out that role, Ellen Moran was subject to federal control in the detailed physical performance of her duties as a C.H.R. Logue v. United States, 412 U.S. 521, 527-528, 93 S.Ct. 2215, 2219 (1973); United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976).

The Plaintiff in Logue, supra, claimed negligence in the supervision and observation of a federal prisoner who committed suicide while being housed in a county jail pursuant to a contract made under the provisions of 18 U.S.C. § 4002. Under the contract, federal officers were authorized to inspect the county jail to determine the conditions under which federal prisoners were housed. Under 18 U.S.C. § 4002, the rates paid for such contracts were to be high enough to induce county jails to provide good care for federal prisoners. The contract in Logue required that the county adhere to Federal Bureau of Prisons rules and regulations governing incarceration. Logue, 412 U.S. at 529-530, 93 S.Ct. at 2220. These rules and regulations included fairly detailed standards for discipline, visitation rights, mail,...