Riley v. USA

Filing 26

ORDER granting 14 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Jay C. Zainey on 10/24/2018. (ajn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MONIQUE RILEY

CIVIL ACTION

VERSUS

NO: 17-9135

The UNITED STATES of AMERICA

SECTION: "A" (3)

ORDER AND REASONS
Before the Court is a Motion to Dismiss (Rec. Doc. 14) filed by Defendant, The United
States of America (“the Government”). Plaintiff, Monique Riley, opposes the motion (Rec. Doc.
15) and Defendant has replied. (Rec. Doc. 18). The motion, set for submission on September 19,
2018, is before the Court on the briefs without oral argument. Having considered the motion and
memoranda of counsel, the record, and the applicable law, the Court finds that Defendant’s
Motion to Dismiss (Rec. Doc. 14) is GRANTED for the reasons set forth below.
I.

Background

On September 18, 2015, Plaintiff visited the St. John Veterans Affairs Outpatient Clinic
(“VA”) for a check-up. (Rec. Doc. 1, Complaint ¶ 13). Plaintiff had recently undergone a left
ankle reconstruction requiring a left ankle and foot cast and crutches. (Id., ¶ 14). During her visit,
Plaintiff had to provide a urine sample for a routine analysis. (Id., ¶ 16). A VA lab tech indicated
that the custodian had just mopped the nearby restroom and suggested that Plaintiff use an
alternative restroom. (Id.). The custodian interjected that the floor in the nearby restroom was in
fact dry and ready to use. (Id. ¶ 17). Plaintiff used the nearby restroom, and after washing her
hands, her crutch slipped and she fell. (Id. ¶ 21). Once on the floor, Plaintiff noticed there were
water streaks on the floor allegedly from the mop. (Id. ¶ 22).

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As required by 28 U.S.C. § 2671, as a prerequisite to filing suit in federal court under the
FTCA, Plaintiff filed an administrative claim on March 17, 2017, which was denied by the VA
on August 31, 2017. Thereafter, Plaintiff filed the instant lawsuit pursuant to the Federal Tort
Claims Act (“FTCA”) 28 U.S.C.A. §§ 1346(b); 2671, et seq. (Id., ¶ 5). Plaintiff alleges that the
employees of the Government were acting within the scope of their employment with the VA;
thus, the Government is liable under the doctrine of respondeat superior under federal and
Louisiana law. (Id., ¶ 2).
The Government files the instant motion to dismiss the case pursuant to the Federal Rules
of Civil Procedure 12(b)(1). Plaintiff previously identified a VA employee Harold Breaux
(“Breaux”) as the custodian, but the Government asserts that discovery reveals that Breaux was
on leave the day of the incident. (Rec. Doc. 14-1, p. 2). The Government states that Lionel
Campbell (“Campbell”), a veteran participating in the VA’s Compensated Work Therapy
program (“CWT”), was the individual that assured Plaintiff the floor in the restroom was dry and
ready for use. (Id.). The Government argues that veterans participating in the CWT are not
considered employees of the United States. (Id.). Since Campbell is not an employee of the
United States, the FTCA waiver of sovereign immunity does not apply. (Id.). The Government
secondly asserts that Campbell is not a borrowed servant or presumed employee of the United
States because the CWT program is a discretionary function, and discretionary functions are
specifically barred by the FTCA. (Id.).
II.

Legal Standard

Federal courts are courts of limited jurisdiction and may only hear those cases authorized
by the United States Constitution and federal statutes. Coury v. Prot, 85 F.3d 244, 248 (5th
Cir.1996). Federal Rule of Civil Procedure 12(b)(1) provides that a party may assert that a court

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lacks subject matter jurisdiction. Upon the determination that the court lacks subject-matter
jurisdiction, the court must dismiss the action. Fed.R.Civ.P. 12(h)(3).
“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, Miss., 143 F.3d 1006, 1010 (5th Cir.1998). “Courts may dismiss for lack of
subject matter jurisdiction on any one of three different bases: (1) the complaint alone; (2) the
complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by
undisputed facts plus the court's resolution of disputed facts.” Clark v. Tarrant Cnty., 798 F.2d
736, 741 (5th Cir.1986). The burden of proof on a 12(b)(1) motion is on the party asserting
jurisdiction over the claim. Ramming v. United States, 281 F.3d 158 (5th Cir.2001).
III.

Law and Analysis

In the instant matter, the Government asserts that the FTCA waives sovereign immunity
for claims that arise out of the negligent acts of federal employees. (Rec. Doc. 14, p. 2). The
Government states that this Court lacks subject matter jurisdiction because the tortfeasor is not
considered an employee of the United States. (Id.) The Government asserts that discovery
identified Campbell as the tortfeasor (it was originally alleged by Plaintiff that Harold Breaux
was the tortfeasor). (Rec. Doc. 14, p. 2). Campbell works at the VA through participation in the
Compensated Work Therapy program (“CWT”). The Government cites 38 U.S.C. § 1718 to
support its position that as a participant of the CWT, Campbell is expressly not an employee of
the United States. (Id.). 38 U.S.C. § 1718 states,
In providing rehabilitative services under this chapter, the Secretary, upon the
recommendation of the Under Secretary for Health, may use the services of
patients and members in Department health care facilities for therapeutic and

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rehabilitative purposes. Such patients and members shall not under these
circumstances be held or considered as employees of the United States for any
purpose.
Plaintiff counters that she does not concede to the fact that the custodian at issue is
Campbell and not Breaux. (Rec. Doc. 15, p. 2). In the event the custodian is in fact Campbell,
Plaintiff argues that the Government is vicariously liable for Campbell’s negligence. (Id.).
Plaintiff cites 28 U.S.C. § 1718 to assert that the FTCA’s definition of “employee of the
government” extends to include individuals such as Campbell. (Id., p. 3). Plaintiff argues that
questions of vicarious liability under the FTCA are determined by state law and Louisiana state
law principles of respondeat superior apply. (Id.).
As a threshold issue it is necessary for the Court to first determine whether the custodian
in question was an “employee of the government.” Before the Court can address the legal
standards pursuant to the FTCA, it is necessary to first determine the individual who is the
subject of the analysis. In light of the discovery conducted, the Court necessarily finds that
Campbell was the custodian who informed Plaintiff that the restroom was ready for use. Breaux
stated in his deposition that he was on vacation on the day of Plaintiff’s incident. (Rec. Doc. 14,
Exhibit A p. 2). Valona Cole, the VA nurse who took Plaintiff’s statement on the date of the
incident, stated in her deposition that she recalls seeing Campbell but not Breaux on the date of
the incident. (Id., Exhibit B p. 1). In his deposition, Campbell stated that on the date of the
incident not only was he at work and not Breaux, but he specifically recalls seeing Plaintiff. (Id.,
Exhibit C, p. 3). Campbell further stated that he mopped the floor of the bathroom at issue and
directed her to use it. (Id.). Lastly, Alvin Thomas, the VA’s supervisor of the CWT program,
stated in a sworn declaration that Campbell was working in the housekeeping program on the

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day of Plaintiff’s incident. (Id., Exhibit D, p. 1). As Plaintiff does not identify any discovery that
counters the above depositions and declaration, the Court finds that Campbell was the custodian
on duty, not Breaux.
Pursuant to the FTCA, Congress grants a limited waiver of sovereign immunity of
government employees. 28 U.S.C. § 1346. Under the FTCA, district courts shall have exclusive
jurisdiction of civil actions on claims against the United States for personal injury “caused by the
negligent or wrongful act or omission of any employee of the Government while acting within
the scope of his 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.” Id. Federal law controls who is a federal employee, and the law of the state where the
act of omission occurs determines the inquiry into the “scope of the employment.” Pendergast v.
U.S.,1999 WL 983827, (E.D. La. 1999), citing William s v. United States, 350 U.S. 857(1955).
Pursuant to 38 U.S.C. § 1718, the Secretary has the authority to develop contracts or
other arrangements as an element of the Department of Veterans Affairs to provide therapeutic
work for patients and members in the Department’s health care facilities. Such arrangements
include the CWT program. Section (a) of § 1718 expressly states that “patients and members
shall not under these circumstances be held or considered as employees of the United States for
any purpose.” As cited by the Government, an Arizona district court is the only court which
discusses the direct issue of whether a CWT worker is a federal employee within the limits of the
FTCA. (Rec. Doc. 14, p. 5). The court affirmed an unopposed magistrate report and
recommendation which relied on 38 U.S.C. § 1718. Foster v. U.S., 2015 WL 727933 at *1 (D.
Ariz. 2015).

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Plaintiff asserts that the language in 38 U.S.C. § 1718 stands in contrast to the FTCA’s
definition of employee. The FTCA in part defines an “employee of the government” as “officers
or employees of any federal agency, members of the military or naval forces of the United States,
members of the National Guard…and persons acting on behalf of a federal agency in an official
capacity, temporarily or permanently in the service of the United States, whether with or without
compensation.” 28 U.S.C. § 2671. Plaintiff argues that this Court should extend by analogy the
analysis established by the Supreme Court and Fifth Circuit in the “independent contractor”
cases. The Court notes that the Government replied contending that it is inappropriate to extend
“independent contractor” cases that Plaintiff cites in evaluating a CWT worker. (Rec. Doc. 18, p.
5). The Government reasons that unlike independent contractors, Congress has clearly excluded
CWT participants as federal employees. (Id.).
The Court holds that the case is dismissed for lack of subject matter jurisdiction. Waivers
of the Government's sovereign immunity, to be effective, must be “unequivocally expressed.”
Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 457, 112 L.Ed.2d 435
(1990) (quoting United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d
607 (1980), and United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52
(1969)). A waiver of the Government's sovereign immunity will be strictly construed, in terms of
its scope, in favor of the sovereign. Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135
L.Ed.2n 486 (1996) (citing United States v. Williams, 514 U.S. 527, 531, 115 S.Ct. 1611, 1616,
131 L.Ed.2d 608 (1995)). District courts should construe any ambiguity in favor of sovereign
immunity. Library of Congress v. Shaw, 478 U.S. 310, 318, 106 S.Ct. 2957, 2963, 92 L.Ed.2d
250 (1986).

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Though Congress expressly and unequivocally waives sovereign immunity via the
FTCA, Congress also expressly invokes sovereign immunity concerning individuals participating
in the CWT program. As determined above, Campbell was the custodian on duty who notified
Plaintiff that the restroom was ready for use. Campbell, a CWT worker, is defined pursuant to 38
U.S.C. § 1718 as a patient that “shall not under these circumstances be held or considered as
employees of the United States for any purpose.” The Court strictly construes this definition and
any ambiguity presented by the FTCA in favor of the sovereign to hold that Campbell is not
considered an employee of the United States. Therefore, this Court lacks subject matter
jurisdiction and the Motion to Dismiss (Rec. Doc. 14) is GRANTED.
IV.

Conclusion

Accordingly;
IT IS ORDERED that Defendant’s Motion to Dismiss (Rec. Doc. 14) is GRANTED.
October 24, 2018
_______________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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