Willoughby v. United States ex rel. U.S. Dep't of the Army

• Citation: 730 F.3d 476
• Decision Date: 17 September 2013
• Docket Number: No. 12–40915.,12–40915.
• Parties: John E. WILLOUGHBY; Wendy Willoughby, Plaintiffs–Appellants v. UNITED STATES of America, on behalf of the UNITED STATES DEPARTMENT OF THE ARMY, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

730 F.3d 476

John E. WILLOUGHBY; Wendy Willoughby, Plaintiffs–Appellants

v.UNITED STATES of America, on behalf of the UNITED STATES DEPARTMENT OF THE ARMY, Defendant–Appellee.

No. 12–40915.

United States Court of Appeals,Fifth Circuit.

Sept. 17, 2013.

Mark Clyde Burgess, Esq., Attorney, Jonathan Ross Prazak, Boyd, Poff & Burgess, L.L.P., Texarkana, TX, for Plaintiff–Appellant.

Robert Austin Wells, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Tyler, TX, for Defendant–Appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:

Plaintiffs–Appellants John and Wendy Willoughby (together, “the plaintiffs” or “Willoughby”) appeal from dismissal of their Federal Tort Claims Act claim against the United States Army. John Willoughby, an employee of a private Army contractor, was injured on the job when he tripped and fell. Willoughby received workers' compensation benefits through his employer's policy. The employer's contract with the Army required the employer to provide workers' compensation benefits for employees, which were then treated as an expense that the Army would reimburse. Because Willoughby found the benefits he received to be insufficient to cover his needs, he sued the Government for negligence and premises liability.

The Government moved to dismiss, invoking Texas' workers' compensation exclusive-remedy rule. Under Texas law, general contractors who require subcontractors to provide workers' compensation insurance to their employees and who pay for that coverage are “statutory employers” protected by the exclusive-remedy provision. The plaintiffs argued that the Government was unlike a “statutory employer” because the Government did not follow certain Texas regulations governing statutory employers. The district court granted the motion to dismiss, and Willoughby appealed. Finding no error, we affirm.

I.

The plaintiffs allege that on June 8, 2007, John Willoughby was injured while working at the federal Red River Army Depot (“RRAD”) when he tripped over a bundle of cables and fell onto the floor of the Depot, requiring significant medical treatment.¹ At the time of the accident, Willoughby was employed by a government contractor, Lear Siegler Services, Inc. (“LSI”), as a mechanic at RRAD. LSI had contracted with the U.S. Army to provide additional workforce to support the Army's mission at RRAD. Willoughby received workers' compensation benefits for his injury through LSI's workers' compensation insurance plan, which the Government required LSI to provide to its employees working at RRAD. However, because Willoughby found the benefits he received to be insufficient to cover his needs, he sued the Government for negligence and premises liability.

Willoughby filed suit against the Government in the United States District Court for the Eastern District of Texas. The Government moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that it was entitled to assert the state-law defense that recovery against it was precluded by Texas' Workers' Compensation Act's exclusive remedy rule because the Government, through LSI, had already paid Willoughby the workers' compensation benefits he was due.² After a hearing, the district court concluded that the Government was entitled to raise the exclusive-remedy defense as a Texas “statutory employer,” ³ and granted the motion to dismiss. The plaintiffs appealed.

II.

The district court had jurisdiction over this suit under the Federal Tort Claims Act (“FTCA”). 28 U.S.C. §§ 1346(b), 2674. Willoughby timely exhausted his administrative remedies by submitting a claim for personal injury with the Department of the Army, which the Army denied. The question of whether the United States has waived sovereign immunity pursuant to the FTCA goes to the court's subject-matter jurisdiction, see, e.g., In re FEMA Trailer Formaldehyde Prods. Liab. Litig. (Miss. Plaintiffs), 668 F.3d 281, 289 (5th Cir.2012); Spotts v. United States, 613 F.3d 559, 566–67, 573 (5th Cir.2010), and may therefore be resolved on a Rule 12(b)(1) motion to dismiss, see, e.g., Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001).

This Court has jurisdiction to review the final decisions of district courts. 28 U.S.C. § 1291. The district court entered final judgment in favor of the defendant on July 19, 2012, and the plaintiffs filed their notice of appeal on August 13, 2012, making the appeal timely. SeeFed. R.App. P. 4(a)(1)(A).

III.

We conduct a de novo review of orders granting the Government's motion to dismiss an FTCA complaint under Rules 12(b)(1) and 12(b)(6). E.g., Ramming, 281 F.3d at 161. The plaintiffs, as the parties asserting federal subject-matter jurisdiction, bear the burden of proving that its requirements are met. See id. “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Id. (citation omitted).

“In applying Rule 12(b)(1), the district court has the power to dismiss 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. Here, the district court did not resolve any disputed facts, so we ... consider the allegations in the plaintiff's complaint as true. Our review is limited to determining whether the district court's application of the law is correct and, to the extent its decision was based on undisputed facts, whether those facts are indeed undisputed. We then ask if dismissal was appropriate.” Spotts, 613 F.3d at 565–66 (quotation marks, citations, alterations, and footnote omitted).

IV.

A.

The Federal Tort Claims Act (“FTCA”) is the exclusive remedy for suits against the United States or its agencies sounding in tort. 28 U.S.C. § 2679(a). The FTCA grants a limited waiver of sovereign immunity and allows tort claims against the United States “in the same manner and to the same extent as a private individual under like circumstances.” Id. § 2674. “[T]he words ‘like circumstances' do not restrict a court's inquiry to the same circumstances, but require it to look further afield.” United States v. Olson, 546 U.S. 43, 46–47, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005) (citing Indian Towing Co. v. United States, 350 U.S. 61, 64, 76 S.Ct. 122, 100 L.Ed. 48 (1955); S.Rep. No. 1400, 79th Cong., 2d Sess., 32 (1946) (stating that purpose of FTCA was to make the tort liability of the United States “the same as that of a private person under like circumstance, in accordance with the local law”)). All that is required is “a similar analogy” because the plain text of § 2679 uses the modifier “like” rather than “the same,” and that language reflects a deliberate choice on the part of Congress to delimit the scope of the FTCA's limited waiver of sovereign immunity. See id.; Indian Towing, 350 U.S. at 64, 76 S.Ct. 122;see also, e.g., United States v. Nordic Vill., Inc., 503 U.S. 30, 33–34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (“[T]he Government's consent to be sued must be construed strictly in favor of the sovereign[.]”) (citation and quotation marks omitted).

“Whether a private person in ‘like circumstances' would be subject to liability is a question of sovereign immunity and, thus, is ultimately a question of federal law. Because the federal government could never be exactly like a private actor, a court's job in applying the standard is to find the most reasonable analogy. Inherent differences between the government and a private person cannot be allowed to disrupt this analysis. The Fifth Circuit has consistently held that the Government is entitled to raise any and all defenses that would potentially be available to a private citizen or entity under state law. Therefore, if a private person under ‘like circumstances' would be shielded from liability pursuant to a state statute, lower courts must decline to exercise subject-matter jurisdiction.” In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d at 288–89 (citing Olson, 546 U.S. at 44, 126 S.Ct. 510) (other citations omitted).

The government is authorized by Congress to provide workers' compensation insurance for federal employees; ⁴ however, Congress has not granted permission for the government to provide coverage to contractors.⁵ Accordingly, the United States cannot directly pay workers' compensation benefits to non-federal employees or employees of independent contractors. ⁶ Instead, the Army provided in its contract with LSI that LSI must provide workers' compensation coverage for its employees in compliance with Texas law, but the Army agreed to pay the cost of the premiums directly to LSI as an “allowable cost.” ⁷ The government argues that under the Texas Workers' Compensation Act, it is entitled to raise the exclusive remedy defense because Willoughby received workers' compensation benefits that the government contractually required LSI to provide.

The Texas Workers' Compensation Act (“TWCA”) provides that workers' compensation benefits are the exclusive remedy for employees against employers for work-related injuries and deaths.⁸ In some situations general contractors may be liable for the injuries sustained by the employees of their subcontractors if the subcontractor is under-or uninsured. Texas, however, extends its exclusive-remedy protection to general subcontractors who, by written agreement, require their subcontractors to obtain workers' compensation insurance. Tex. Lab.Code § 406.123(a). Section 406.123(a) of the TWCA provides:

A general contractor and a subcontractor may enter into a written agreement under which the general contractor provides workers' compensation insurance coverage to the subcontractor and the...