Palmer v. Flaggman
| Decision Date | 03 September 1996 |
| Docket Number | No. 93-1955,93-1955 |
| Citation | 93 F.3d 196 |
| Parties | Thomas E. PALMER and Delores Palmer, Plaintiffs-Appellees, v. Paul D. FLAGGMAN, D.O., et al., Defendants, and Marcus NEWTON, D.O., et al., Defendants-Appellees, v. UNITED STATES of America, on Behalf of Dennis N. GRAHAM, D.O., Movant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bonnie Keith Wulff, Dallas, TX, for plaintiffs-appellees.
Brenda Neel Hight, Dallas, TX, James Wade Birdwell, Shannon, Gracey, Ratliff & Miller, Fort Worth, TX, for defendant-appellee Marcus Newton, DO.
Daniel A. Foster, Bruce S. Campbell, McLean & Sanders, Fort Worth, TX, for defendant-appellee Bedford Northeast Community Hospital, Inc.
Roger Dean Einerson, Washington, DC, Steven Kenneth Forjohn, U.S. Dept. of Justice, Torts Div., Washington, DC, for movant-appellant U.S. on behalf of Graham.
Appeals from the United States District Court for the Northern District of Texas.
Before WISDOM, KING, and DUHE, Circuit Judges.
In this case, we decide whether under Texas law, a federal employee who acts as the "borrowed servant" of a private employer may simultaneously act within the scope of his federal employment in such a way as to make him immune from suit under the Westfall Act. Because we conclude that Texas law defining an individual's scope of employment is a separable inquiry from Texas law regarding the ultimate liability of the individual's employer, we find that a federal employee may obtain immunity under the Westfall Act, even while working as the borrowed servant of a non-federal employer. We therefore REVERSE the decision of the district court and REMAND the case for additional proceedings consistent with this ruling.
This case originated in a Texas state court as a medical malpractice action brought by the plaintiffs-appellees, Thomas and Delores Palmer, against the defendant-appellant, Dr. Dennis Graham, the defendant-appellee, Bedford-Northwest Community Hospital, Inc. ("NCH"), and several other medical care providers. At the time of the alleged negligence, Dr. Graham was an active-duty commissioned officer in the United States Air Force, and was assigned to NCH to complete a residency in orthopedic surgery. Dr. Graham's salary was paid by the Air Force, and, after the completion of his residency, he was committed to serving an additional four years of active duty in the military.
When Dr. Graham began his service at NCH, he personally entered into a contract with the hospital which provided that he would "observe all rules and regulations of the hospital pertaining to residents." In addition, the Air Force and NCH entered into a "Medical Residency Agreement," which provided that:
[A]lthough Fellow is an Air Force Officer, for the purposes of liability the Fellow is a servant of the institution. This is because the Fellow will be performing duties under the exclusive control and for the primary benefit of the institution. Therefore, the institution agrees to provide, at its own expense, liability insurance in an amount that will satisfy all foreseen or reasonably foreseeable claims made against the Fellow, as well as sufficient coverage to reimburse the United States for any indemnification required under 10 U.S.C. 1089(f). 1
In March 1993, pursuant to 28 U.S.C. § 2679(d)(2), 2 the United States Attorney General certified that Graham was acting within the scope of his federal employment at the time of the alleged malpractice. The Attorney General then removed the case to federal court and substituted the United States as party defendant. 3 The United States then moved to dismiss the action on the grounds that the Palmers had failed to file an administrative claim within two years of the incident, as required by 28 U.S.C. § 2675(a). 4
On September 16, 1993, the district court ruled that, under Texas law, Graham was not acting within the course and scope of his federal employment. The district court therefore denied the United States's motion to dismiss, ordered that Graham be reinstated as party defendant in place of the United States, and remanded the action back to state court for lack of subject matter jurisdiction. The United States filed a timely notice of appeal.
This court conducts a de novo review of an Attorney General's scope of employment certification. 5 We give no judicial deference to the Attorney General's findings. 6 Nonetheless, the burden of proof lies with the plaintiff to show that the Attorney General's initial decision was incorrect. 7
To determine whether or not a federal employee was acting within the course and scope of his employment, we apply the law of the state in which the alleged misconduct occurred. 8 Therefore we begin our analysis with the Texas Supreme Court's stated test for "scope of employment" enunciated in Robertson Tank Lines, Inc. v. Van Cleave. 9 According to Robertson, an employee acts within the course and scope of his employment when his actions are: 1) within the general authority given to him by his employer; 2) in furtherance of the master's business; and 3) for the accomplishment of the object for which he is employed. 10
Applying the Robertson test to the present case, it appears Dr. Graham was acting within the course and scope of his employment with the Air Force. He was on active military duty in the United States Air Force, and was ordered to enter into the NCH residency program. That residency program furthered the business of the Air Force by providing specialized training to its physician. By completing his residency training, Dr. Graham was accomplishing the object of his employment by obtaining the necessary training to serve as an orthopedic specialist for the Air Force at the end of his residency.
Our inquiry is not so simple as the Robertson test, however. In this case, the agreements entered into between the Air Force and NCH, and between Dr. Graham and NCH, give NCH full control over Dr. Graham's actions in his residency. As such, Dr. Graham is the "borrowed servant" of NCH, and the Air Force cannot be liable for his conduct. 11
The appellees argue, and the district court agreed, that under Texas law, the scope of employment inquiry also includes this larger issue of control and ultimate liability. Appellees therefore maintain that because the Air force did not retain control over Dr. Graham's activities at NCH, Dr. Graham could not have been acting within the scope of his federal employment at the time of the alleged misconduct, and is not eligible for immunity under the Westfall Act.
To analyze the appellees' argument, it is helpful to first examine the federal laws that relate to Dr. Graham's employment. Three related federal immunity statutes bear on the resolution of this case: the Federal Torts Claims Act ("FTCA"); 12 the Medical Malpractice Immunity Act ("the Gonzalez Act"); 13 and the Federal Employees Liability Reform and Tort Compensation Act of 1988 ("the Westfall Act"). 14
The FTCA provides a remedy for persons injured by an employee of the Government who was "acting within the course and scope of his office or employment, under circumstances 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 or omission occurred." 15 Thus, where the FTCA applies, the United States's waiver of sovereign immunity is limited by the same defenses available to private citizens, including the "borrowed servant" doctrine relevant in the present case.
The Gonzalez Act provides immunity to military medical personnel acting within the scope of their employment. 16 The Act provides this immunity to individual employees by requiring injured plaintiffs to proceed against the United States under the FTCA. 17
Finally, the Westfall Act was enacted in 1988 to amend the FTCA. It was intended to provide absolute immunity to any federal employee acting within the "scope of his office or employment." 18 Like the Gonzalez Act, it provides such immunity by making an action against the United States under the FTCA the exclusive remedy for the injured party. 19
In 1991, the Supreme Court examined the interaction between the Westfall Act, the Gonzalez Act, and the FTCA in United States v. Smith. 20 That case presented a medical malpractice suit filed in the Ninth Circuit against a military doctor stationed overseas. It was undisputed that the military doctor acted within the course and scope of his federal employment at the time of the alleged misconduct, thereby arguably giving him immunity the Westfall Act, and requiring the substitution of the United States as the defendant and the continuation of the suit under the FTCA. An exception to the FTCA, however, prevented the plaintiffs from obtaining recovery against the United States for injuries sustained abroad. 21 And at that time, the Ninth Circuit had also ruled that Gonzalez Act immunity did not apply to torts committed overseas. 22 This interplay between the statutes therefore eliminated the plaintiffs' remedy. Seeking to avoid this result, the Ninth Circuit ruled that the Westfall Act was not intended to apply to federal employees in situations where the FTCA precluded a remedy against the United States. 23
The Supreme Court reversed that decision, holding that the Westfall Act provided immunity to the military doctor acting in the course and scope of his employment, even though the FTCA exception precluded recovery for the plaintiffs. 24 The Court reasoned that while section five of the Westfall Act makes the FTCA the exclusive means of recovery for any federal employee acting within the course and scope of his employment, 25 section six of the Act provides that the corresponding FTCA action "shall be subject to the limitations and exceptions applicable to those actions." 26 This language, coupled with the Westfall Act's express inclusion of exceptions to immunity, led the court to its...
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