Woodruff v. Covington

• Decision Date: 17 November 2004
• Docket Number: No. 02-7040.,No. 02-7051.,02-7040.,02-7051.
• Citation: 389 F.3d 1117
• Parties: John Alton WOODRUFF, Plaintiff-Appellee, and United States of America, Defendant-Appellee, v. C. Thomas COVINGTON, M.D.; Jihad Ahmad, M.D.; Central Oklahoma American Indian Health Council, Inc., an Oklahoma Nonprofit Corporation d/b/a Oklahoma City Indian Clinic; Oklahoma City Indian Clinic; Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

389 F.3d 1117

John Alton WOODRUFF, Plaintiff-Appellee, and United States of America, Defendant-Appellee, v. C. Thomas COVINGTON, M.D.; Jihad Ahmad, M.D.; Central Oklahoma American Indian Health Council, Inc., an Oklahoma Nonprofit Corporation d/b/a Oklahoma City Indian Clinic; Oklahoma City Indian Clinic; Defendants-Appellants.

No. 02-7040.

No. 02-7051.

United States Court of Appeals, Tenth Circuit.

November 17, 2004.

Gary S. Pitchlynn (Patrick A. Morse and O. Joseph Williams, Pitchlynn & Morse,

P.A., Norman, OK, and Stephen Peterson and Michael S. McMillin, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, OK, with him on the briefs), Pitchlynn & Morse, P.A., Norman, OK, for Defendants-Appellants Central Oklahoma American Indian Health Council, Inc. and Jihad Ahmad, M.D.

Perry T. Marrs, Jr. and William C. Medley IV, Short Wiggins Margo & Butts, Oklahoma City, OK, on the briefs for Defendant-Appellant C. Thomas Covington, M.D.

Madeline Henley, (Robert D. McCallum, Jr., Asst. Attorney General, Sheldon J. Sperling, United States Attorney, Jeffrey Axelrad, Director of Department of Justice Torts Branch, with her on the briefs) Department of Justice Torts Branch, Washington, D.C., for Defendant-Appellee United States of America.

H. Buckmaster Coyne, Jr., George W. Braly, Braly & Braly and Coyne, Ada, OK, on the briefs for Plaintiff-Appellee John Alton Woodruff.

Before EBEL, ANDERSON, and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

After receiving allegedly substandard medical care, John Alton Woodruff ("Plaintiff") brought a malpractice action against Drs. C. Thomas Covington and Jihad Ahmad, as well as the Central Oklahoma American Indian Health Council ("COAIHC"), the Carl Albert Indian Health Facility ("Carl Albert Hospital"), and the United States of America (named as defendant for Carl Albert Hospital). Dr. Covington filed a motion to dismiss on the grounds that he was a federal employee under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), and thus the United States was the only proper defendant. The COAIHC and Dr. Ahmad then filed a motion to substitute the United States for them on the grounds that the COAIHC was a federal agency and Dr. Ahmad was a federal employee under the FTCA. The district court denied both of these motions under the rationale that these defendants were not federal employees and that Congress did not expressly extend the FTCA to them. We now AFFIRM the court's finding that Appellants are not "federal employees" under the FTCA and that Congress did not extend FTCA immunity to Appellants in enacting 25 U.S.C. § 1660b(a) of the Indian Health Care Improvement Act ("IHCIA").

BACKGROUND

Defendant Central Oklahoma American Indian Health Council, Inc. ("COAIHC") is an Oklahoma non-profit corporation that was organized for the purpose of providing health services to Indians residing in the Oklahoma City area. COAIHC operates the Oklahoma City Indian Clinic ("the Clinic") in Oklahoma City, Oklahoma, which was created to serve as a demonstration project for providing health care to Indians living in urban areas with unmet health needs. 25 U.S.C. § 1660b(a). COAIHC was created as a part of the implementation of Title V of the Indian Health Care Improvement Act (IHCIA), 25 U.S.C. §§ 1651 and 1660. Dr. Covington and Dr. Ahmad are employees of COAIHC and the Clinic.

Plaintiff John Alton Woodruff ("Plaintiff") sought examination, diagnosis, and treatment of hematuria from the Clinic, Carl Albert Indian Hospital, and Drs. Covington and Ahmad. On October 18, 2001, Plaintiff filed a complaint in the Eastern District of Oklahoma against the Clinic, Carl Albert Indian Hospital, Dr. Covington, Dr. Ahmad, and the United States of America,¹ alleging that their negligence resulted in the surgical removal of his bladder.

On November 26, 2001, Defendant Dr. Thomas Covington filed a motion to dismiss on the grounds that he was a federal employee under the Federal Tort Claims Act (FTCA), and thus the United States was the only proper defendant. The district court denied this motion on January 23, 2002, finding that Dr. Covington was not entitled to immunity as a federal employee.

On January 31, 2002, Defendants COAIHC and Dr. Jihad Ahmad then filed a motion to substitute the United States for them, on the grounds that the COAIHC was a federal agency and Dr. Ahmad was a federal employee under the Federal Tort Claims Act. The district court denied this motion on March 1, 2002, finding that neither defendant was entitled to immunity under the FTCA "for substantially the same reasons set forth in the court's 1-23-02 order" denying Dr. Covington's motion to dismiss.

Defendants COAIHC, Covington, and Ahmad ("Appellants") now appeal these orders denying FTCA immunity.

DISCUSSION

A. Jurisdiction

Before delving into the merits of Appellants' claims of FTCA immunity, we first address the issues of whether Dr. Covington's appeal was timely under Federal Rule of Appellate Procedure 4, and whether the two district court orders were "final" under the "collateral order" doctrine so as to allow our exercise of jurisdiction under 28 U.S.C. § 1291.²

1. Was Dr. Covington's Notice of Appeal Timely?

The government argues that Dr. Covington's notice of appeal was untimely filed, and that we thus lack jurisdiction. We disagree and hold that the notice of appeal was timely under Rule 4(a)(3).

The time limits of Rule 4 are "prerequisite[s] to our jurisdiction." Utah Women's Clinic, Inc. v. Leavitt, 75 F.3d 564, 566 (10th Cir.1995). Under Rule 4, an appellant in a civil case where the United States is a party has sixty days after the order is entered in which to file a notice of appeal. Fed. R.App. P. 4(a)(1)(B). However, if one party timely files a notice of appeal, any other party may file a notice of appeal within fourteen days after the date when the first notice was filed. Fed. R.App. P. 4(a)(3).³

On March 25, 2002, the COAIHC and Dr. Ahmad filed their notice of appeal from the order dated March 1, 2002. Their notice of appeal was thus timely under Rule 4(a)(1)(B). Dr. Covington then filed his notice of appeal from the January 23, 2002 order on April 1, 2002. Because he filed his notice of appeal within fourteen days of the COAIHC and Dr. Ahmad's notice of appeal, Dr. Covington's notice was timely under Rule 4(a)(3).

The government argues that Dr. Covington's notice of appeal should not be covered by Rule 4(a)(3)'s additional fourteen days because he appealed a different order than the one appealed by the COAIHC and Dr. Ahmad. However, we have clearly held that the application of Rule 4(a)(3) is not restricted to circumstances in which the second party's appeal is taken from the same order appealed by the first party. See Bridgestone/Firestone, Inc. v. Local Union No. 998, 4 F.3d 918, 924 (10th Cir.1993). In Bridgestone/Firestone, we stated that "the history of Rule 4(a)(3) shows that such a technical interpretation [as advocated by the government] is not in accord with commentary on the time extension provisions." Id. Specifically, we cited the commentary to the rule's predecessor, which provided:

The added time which may be made available by the operation of the provision is not restricted to cross appeals in the technical sense, i.e., to appeals by parties made appellees by the nature of the initial appeal. The exception permits any party to the action who is entitled to appeal within the time ordinarily prescribed to appeal within such added time as the sentence affords.

Id. (quotation, emphasis omitted); see also Murphy v. Arkansas, 127 F.3d 750, 753 n. 2 (8th Cir.1997) (rejecting the defendants' argument "that the cross-appeal is untimely because Rule 4(a)(3) is limited to a cross-appeal from an unfavorable part of the judgment or order initially appealed.").

Before Rule 4 was enacted,

[a] party who desired to appeal only if some other party took an appeal either had to forego his desire not to appeal and file a notice of appeal, thereby possibly provoking other appeals that might not have been taken if his had not been; or he had to keep watch at the clerk's office during the final days of the time for appeal in order to be sure that he would learn of the fact of the appeal of another in time to take his own.

Jackson Jordan, Inc. v. Plasser Am. Corp., 725 F.2d 1373, 1375 (Fed.Cir.1984) (quotation omitted). The purpose behind this broad interpretation of Rule 4(a)(3) is to give effect to the rule's purpose of "eliminating the necessity for so-called protective appeals and the wasteful practice of keeping watch at the office of the clerk." Id. (quotation omitted). This policy is furthered by allowing any party to file a notice of appeal from any order within fourteen days after another party appealed a decision of the district court.

Because Dr. Covington filed his notice of appeal within fourteen days after another party in his case filed a timely notice of appeal, Dr. Covington's filing was timely under Rule 4(a)(3), even though the notice designated appeal from a different order in the case.⁴ See Bridgestone/Firestone, 4 F.3d at 924.

2. Does This Court Have Jurisdiction Under the "Collateral Order" Doctrine?

The government argues that we lack jurisdiction over both of the appeals at hand because neither of the district court's orders were "final" under 28 U.S.C. § 1291. We disagree and find that both orders fall under the "collateral order" doctrine set forth by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

Section 1291 provides for appeal "from all final decisions of the district courts." 28 U.S.C. § 1291. The Supreme Court has "repeatedly interpreted § 1291 to mean that an appeal ordinarily will not lie until after final judgment has been entered in a case." Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 203, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999). Typically, a judgment is not "final" unless it "ends...