Owens v. United States

• Decision Date: 12 April 2019
• Docket Number: CIVIL ACTION No. 19-485 SECTION I
• Parties: LEONARD OWENS, JR. v. UNITED STATES OF AMERICA
• Court: U.S. District Court — Eastern District of Louisiana

LEONARD OWENS, JR. v. UNITED STATES OF AMERICA

CIVIL ACTION No. 19-485 SECTION I

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

April 12, 2019

ORDER & REASONS

Before the Court is the government's motion to dismiss plaintiff Leonard Owens, Jr.'s ("Owens") complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and the Federal Tort Claims Act. For the following reasons, the motion is granted.

I.

This case arises out of a surgery that Dr. Martin W. Moehlen ("Dr. Moehlen") performed on Owens at Tulane University Hospital and Clinic ("Tulane"). Owens, who is a veteran, alleges that he sought treatment at Tulane through the United States Department of Veterans Affairs (the "VA").¹ On March 31, 2017, Dr. Moehlen performed a liver biopsy on Owens, during which Owens asserts that Dr. Moehlen negligently perforated his gallbladder, causing him injuries and requiring him to undergo an otherwise unnecessary surgery.²

Owens alleges that, at all material times, Dr. Moehlen was a doctor employed and provided by the United States, through the VA.³ He further alleges that Dr.Moehlen was acting in the scope of his employment with the government when he performed the biopsy.⁴ Owens sued the government for medical malpractice under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (the "FTCA").

II.

Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, "[a] case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (citation omitted). "The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). When applying Rule 12(b)(1), a court may dismiss an action for lack of subject matter jurisdiction "on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Spotts v. United States, 613 F.3d 559, 565-66 (5th Cir. 2010).⁵

"A factual attack on the subject matter jurisdiction of the court . . . challenges the facts on which jurisdiction depends and matters outside of the pleadings, such asaffidavits and testimony, are considered." Oaxaca v. Roscoe, 641 F.2d 386, 391 (5th Cir. Unit A Apr. 1981).⁶ If the defendant makes a factual attack on the Court's jurisdiction by "submit[ting] affidavits, testimony, or other evidentiary materials," then the plaintiff "is also required to submit facts through some evidentiary method and has the burden of proving by a preponderance of the evidence that the trial court does have subject matter jurisdiction." Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. May 1981).

The FTCA grants district courts jurisdiction over claims for monetary relief brought against the federal government for the negligent or wrongful act of its employees "where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act . . . occurred." 28 U.S.C. § 1346(b)(1); Spotts, 613 F.3d at 566. In other words, "[t]he FTCA constitutes a 'limited waiver of sovereign immunity,'" making the United States "liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment." Linn v. United States, 281 F. App'x 339, 344 (5th Cir. 2008) (quoting United States v. Orleans, 425 U.S. 807, 813 (1976)). "Courts must strictly construe all waivers of the federal government's sovereign immunity, and mustresolve all ambiguities in favor of the sovereign." Linkous v. United States, 142 F.3d 271, 275 (5th Cir. 1998).

The FTCA is subject to various exceptions, however, including the "independent-contractor exception," which "must be given due regard when a court considers whether jurisdiction exists." Linn, 281 F. App'x at 344. "By its own terms, the FTCA only waives sovereign immunity for injuries caused by an 'employee of the Government,' § 1346(b)(1), but excludes from that waiver injuries caused by 'any contractor with the United States . . . .'" Id. (quoting Orleans, 425 U.S. at 813-14 (quoting § 2671)).⁷

The government asserts that Dr. Moehlen was not acting as a government employee when he performed the liver biopsy on Owens.⁸ It contends, rather, that Dr. Moehlen was a Tulane employee and, therefore, an independent contractor.⁹ As a result, the government argues that the Court must dismiss this action for lack of subject matter jurisdiction.¹⁰

III.

"The critical factor in distinguishing an independent contractor from an employee 'is the power of the Federal Government to control the detailed physical performance of the contractor.'" Rodriguez v. Sarabyn, 129 F.3d 760, 765 (5th Cir. 1997) (quoting Broussard v. United States, 989 F.2d 171, 174 (5th Cir. 1993)) (internal quotations omitted). In addition, the Fifth Circuit has relied on the factors listed in § 220 of the Restatement (Second) of Agency, which are as follows:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is a part of the regular business of the employer; (i) whether or not the parties believe they are creating the relation of master and servant; and (j) whether the principal is or is not in business.

See Linkous, 142 F.3d at 275-76 (citing Rodriguez, 129 F.3d at 765); see also Salazar v. United States, 633 F. Supp. 2d 232, 236 (E.D. La. 2009) (Lemelle, J.); Miller v. McElwee Brothers, Inc., No. 05-4239, 2007 WL 2284546, at *5 (E.D. La. Aug. 6, 2007) (Fallon, J.).

"If the government lacks the power to directly control an individual, then the court must look at other factors." Linkous, 142 F.3d at 276. The determination ofwhether an individual is an employee or an independent contractor "does not require mathematical precision." Id. If, however, "the government lacks the power to control the individual, plus several factors listed in § 220 weigh in favor of independent contractor status, then a court must conclude that the individual is an independent contractor." Id.

The government concedes that Dr. Moehlen is a VA employee.¹¹ It argues, however, that Dr. Moehlen is also a Tulane employee and that he was working in his capacity as a Tulane physician when he performed the biopsy on Owens on March 31, 2017.¹² Having reviewed the evidence in the record, Owens's complaint, the parties' briefs, and the applicable law—including the Restatement factors—the Court agrees: Dr. Moehlen was, in fact, acting as a Tulane employee, and thus as an independent contractor, when he performed the biopsy.

First, and most importantly, there is no evidence that the government exercised any power over Dr. Moehlen that would have allowed it to control the "detailed physical performance" of the surgery. Rodriguez, 129 F.3d at 765 (citation omitted); see also Peacock v. United States, 597 F.3d 654, 659 (5th Cir. 2010) (describing this factor as the "key inquiry in determining whether an individual is an employee of the government or an independent contractor"). Although Owens sought treatment through the VA, he ultimately received the biopsy through services provided by Tulane in accordance with the Veterans Choice Program (the "VCP"),which "furnish[es] hospital and medical services to eligible veterans through eligible non-VA health care providers."¹³ According to Rodney Campbell ("Campbell"), a VA employee in New Orleans, Louisiana, Tulane was participating in the VCP when Owens underwent the biopsy in March 2017.¹⁴ Campbell's statement is supported by a completed Veterans Health Administration Choice Approval for Medical Care Form 10-0386, which shows that an authorized VA representative deemed Owens eligible to undergo the biopsy through the VCP.¹⁵

Therefore, when Dr. Moehlen performed the biopsy on Owens, the Court finds that he did so as a Tulane physician providing services rendered via the VCP—separate and apart from his employment with the VA. See, e.g., Mantiply v. United States, 634 F. App'x 431, 434 (5th Cir. 2015) (finding that a doctor assigned to a VA hospital via a contract between the VA and a third-party company was an independent contractor); Peacock, 597 F.3d at 659-60 (finding that a cardiologist employed by a university which provided services to the VA by contract was an independent contractor).¹⁶ This comports with the time and attendance recordssubmitted by the government, which show that, on March 31, 2017, the date of the biopsy, Dr. Moehlen only worked for the VA between 12:30 and 1:30 p.m.¹⁷ According to Dr. Moehlen's declaration, he performed the surgery at 10:45 a.m.¹⁸ Moreover, the operative notes in the surgical case record reflect that the procedure began at 10:55 a.m. and was completed no later than 11:07 a.m.—outside the window of time during which Dr. Moehlen worked as a VA employee on that date.¹⁹ Thus, if any entity had control over the details of Dr. Moehlen's performance, it would have been Tulane as Dr. Moehlen's employer at the time he performed the surgery.

Restatement factors (b) through (d) also weigh in favor of finding that Dr. Moehlen was an independent contractor. "Due...