Roberts v. Case Pro Incorporated et al
Filing
79
ORDER granting in part and denying in part 48 Motion to Dismiss for Lack of Jurisdiction or, in the Alternative, Motion to Dismiss for Failure to State a Claim. Signed by Honorable David C Norton on 7/28/2015.(cahe, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
LATTANNISHA ROBERTS,
Plaintiff,
v.
THE UNITED STATES OF AMERICA,
Defendant.
CHRISTOPHER D. MILLER,
Plaintiff,
v.
THE UNITED STATES OF AMERICA,
Defendants.
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No. 9:13-cv-3394-DCN
No. 9:13-cv-3395-DCN
ORDER
This matter is before the court on identical motions to dismiss for lack of subject
matter jurisdiction filed by the government.1 For the reasons set forth below, the court
grants in part and denies in part the government’s motion.
I. BACKGROUND
On February 24, 2012, Kalvin Hunt (“Hunt”), a Marine on involuntary leave
while appealing his dishonorable discharge, was accompanied to the Beaufort Naval
Hospital (“the naval hospital”) by Edward Ray (“Ray”), an employee of the Beaufort
1
The government also moved to dismiss for failure to state a claim in the same
motions. That portion of the government’s motions is addressed in the conclusion of this
order.
1
County Office of Veteran’s Affairs.2 When Hunt and Ray arrived at the naval hospital,
Nurse Saundra Smith (“Smith”) came to offer assistance and meet with Hunt. While
Smith was in the process of interviewing Hunt and scheduling an appointment for him to
see a doctor the following Monday, Hunt began to rock back and forth in his chair and let
out an exasperated kind of moan. When Smith asked Hunt if he wanted to hurt himself,
he said that he did. At that time, Smith took Hunt and Ray to the emergency department.
Once in the emergency department, Hunt first saw triage nurse Janice McDonald
(“Janice”). When Janice asked Hunt whether he had thoughts about hurting himself, he
responded that he did, although he had no plan to hurt himself at that time. Janice
informed Hunt that he would be evaluated by a psychiatrist and, depending on her
judgment, a decision would be made whether to admit him. Janice turned Hunt over to
her husband Joe McDonald (“Joe”), who is also a registered nurse in the emergency
department. Joe accompanied Hunt to be evaluated by Dr. Christian Jansen (“Dr.
Jansen”). Dr. Jansen noted that Hunt had suicidal thoughts and thoughts of hurting
others, but no specific plans. At that time, Dr. Jansen called for a psychiatric technician
from the naval hospital’s mental health unit to evaluate Hunt.
Arthur Manning (“Manning”), a psychiatric technician, evaluated Hunt and
recommended that Hunt be admitted. The on-duty psychiatrist, Dr. Beverly Hendelman
(“Dr. Hendelman”), accepted the recommendation and made the decision to hospitalize
Hunt. Dr. Hendelman then relayed her decision to Dr. Jansen. The plan was to admit
Hunt to nearby Beaufort Memorial Hospital because the naval hospital did not provide
in-patient mental health treatment.
2
Ray is now deceased.
2
About the time that Dr. Jansen was in the process of determining bed availability
at Beaufort Memorial, Ray asked Joe if he and Hunt could go outside for some fresh air,
and Joe said that they could. Once outside, Hunt removed some items of clothing and ran
towards the front gate. A security guard saw Hunt running but did not stop him. Ray
attempted to pursue Hunt, but was unable to catch him. Ray approached the front gate
and described the events that had just occurred to a group of security guards. A security
guard called the Beaufort County Sheriff’s Department to report the incident.
At the same time, the Town of Port Royal Fire Department was responding to an
emergency call at a nearby apartment complex. Hunt got into the still-running and
unattended fire truck and began driving it down Ribaut Road at high speed. Hunt
collided with many cars, including one driven by plaintiff Lattannisha Roberts
(“Roberts”). Hunt also struck and killed pedestrian Justin Miller, whose brother, plaintiff
Christopher Miller (“Miller”), was nearby.
On December 4, 2013, Miller and Roberts filed the present actions, alleging
causes of action against the government for negligence and negligent undertaking of
duty.3 On November 14, 2015, the government filed a motion to dismiss in both cases.
Miller and Roberts each responded on December 19, 2014, and the government filed a
reply on May 22, 2015. These motions have been fully briefed and are ripe for the
court’s review.
3
Plaintiffs’ complaints name the United States Naval Hospital as a defendant.
Plaintiffs agree that the United States should be substituted for the United States Naval
Hospital. Roberts’s Resp. 6 n.1; Miller’s Resp. 6 n.1; see See Ross v. Fed. Bureau of
Alcohol, Tobacco, & Firearms, 807 F. Supp. 2d 362, 369 (D. Md. 2011); 28 U.S.C. §
2679. Therefore, the court substitutes the United States as the defendant for all causes of
action asserted against the United States Naval Hospital.
3
II. STANDARD
Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss for
“lack of subject-matter jurisdiction.” The determination of subject matter jurisdiction
must be made at the outset before any determination on the merits. Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83 (1998). “The plaintiff bears the burden of persuasion if
subject matter jurisdiction is challenged under Rule 12(b)(1).” Williams v. United States,
50 F.3d 299, 304 (4th Cir. 1995). If the plaintiff cannot overcome this burden, the claim
must be dismissed. Welch v. United States, 409 F.3d 646, 651 (4th Cir. 2005). In ruling
on a Rule 12(b)(1) motion, “the court may consider exhibits outside the pleadings” and
“is free to weigh the evidence and satisfy itself as to the existence of its power to hear the
case.” Williams, 50 F.3d at 304 (internal citations and quotations omitted).
III. DISCUSSION
The government moves to dismiss plaintiffs’ claims against it for lack of subject
matter jurisdiction pursuant Rule 12(b)(1).4 The government contends that the plaintiffs’
claims are barred by the doctrine of sovereign immunity. Gov’t’s Mot. 8.
It is well settled that the United States, as a sovereign, is immune from suit except
to the extent that it has consented to be sued. Frahm v. United States, 492 F.3d 258, 262
(4th Cir. 2007) (citing United States v. Sherwood, 312 U.S. 584, 586 (1941)). Absent a
waiver, sovereign immunity shields the federal government and its agencies from suit.
4
In both cases, the government filed an answer shortly after the cases were filed
and did not file the present motions until sometime later. Rule 12(b) provides that
motions filed pursuant to that subsection “must be made before pleading if a responsive
pleading is allowed.” Therefore, the government’s motions are untimely as filed.
Nonetheless, the court will consider the government’s motions under Federal Rule of
Civil Procedure 12(h)(3), which provides that “[i]f the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the action.”
4
FDIC v. Myer, 510 U.S. 471, 475 (1994). Sovereign immunity is jurisdictional in nature
and the terms of the government’s consent to be sued in any court define that court’s
jurisdiction to entertain suit. Meyer, 510 U.S. at 475.
A waiver of sovereign immunity “cannot be implied but must be unequivocally
expressed.” United States v. King, 395 U.S. 1, 4 (1969). Waivers must be construed
strictly in favor of the sovereign and may not be enlarged beyond what the statutory
language requires. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685–86 (1983). “[I]t is the
plaintiff’s burden to show that an unequivocal waiver of sovereign immunity exists.”
Welch v. United States, 409 F.3d 646, 651 (4th Cir. 2005)
The Federal Tort Claims Act (“FTCA”) provides that district courts
have exclusive jurisdiction of civil actions on claims against the United
States, for money damages, . . . for injury or loss of property, or personal
injury or death caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the 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.
28 U.S.C. § 1346(b)(1). The FTCA, therefore, provides for a limited waiver of the
United States’ sovereign immunity, but this waiver restricts liability to acts or omissions
of agents or employees of the United States. “Congress has not waived the sovereign
immunity of the United States for injuries resulting from the actions of independent
contractors performing work for the government.” Robb v. United States, 80 F.3d 884,
887 (4th Cir. 1996).
The government contends that the court lacks subject matter jurisdiction over
these actions because: (1) the alleged negligent acts were not performed by employees of
the United States within the meaning of the FTCA; and (2) the FTCA does not waive
5
sovereign immunity based on the exercise of a discretionary function. The court will
consider each of these arguments in turn.
A.
Employees of the United States
The government first argues that Dr. Jansen, Joe, and Janice—all of whom
worked in the emergency department at the hospital during the incident in question—are
not federal employees within the meaning of the FTCA. Gov’t’s Mot. 11.
Whether a person is a contractor or an employee for purposes of the FTCA is
determined under federal law. Logue v. United States, 412 U.S. 521, 528 (1973). Title
10 U.S.C. § 1091 provides that “[t]he Secretary of Defense, with respect to medical
treatment facilities of the Department of Defense . . . may enter into personal services
contracts to carry out health care responsibilities in such facilities, as determined to be
necessary by the Secretary.” The United States, through the Navy Medical Logistics
Command, entered into a contract with CasePro, a Texas-based healthcare staffing
company, to provide healthcare workers to the hospital’s emergency department under
personal services contracts. There is no dispute that Dr. Jansen, Joe, and Janice are
healthcare workers serving under a personal services contract. Under Department of
Defense regulations,
The appearance of an employer-employee relationship created by the DoD
supervision of a personal services contractor will normally support a
limited recognition of the contractor as equal in status to a DoD employee
in disposing of personal injury claims arising out of the contractor's
performance. Personal injury claims alleging negligence by the contractor
within the scope of his or her contract performance, therefore, will be
processed as claims alleging negligence by DoD military or civil service
personnel.
32 C.F.R. § 107.5(b) (emphasis added).
6
The parties seemingly agree up to this point. The parties disagree, however, about
the application of the Gonzalez Act. “The Gonzalez Act provides that in suits against
military medical personnel for torts committed within the scope of their employment, the
Government is to be substituted as the defendant and the suit is to proceed against the
Government under the FTCA.” United States v. Smith, 499 U.S. 160, 162–63 (1990).
The Gonzalez Act specifically provides:
The remedy against the United States provided by sections 1346(b) and
2672 of title 28 for damages for personal injury, including death, caused
by the negligent or wrongful act or omission of any physician, dentist,
nurse, pharmacist, or paramedical or other supporting personnel (including
medical and dental technicians, nursing assistants, and therapists) of the
armed forces [or] the Department of Defense . . . in the performance of
medical, dental, or related health care functions . . . while acting within the
scope of his duties or employment therein or therefor shall hereafter be
exclusive of any other civil action or proceeding by reason of the same
subject matter against such physician, dentist, nurse, pharmacist, or
paramedical or other supporting personnel . . . whose act or omission gave
rise to such action or proceeding. This subsection shall also apply if the
physician, dentist, nurse, pharmacist, or paramedical or other supporting
personnel (or the estate of such person) involved is serving under a
personal services contract entered into under section 1091 of this title.
10 U.S.C. § 1089(a) (emphasis added).
The government contends that §1089 “operates as the limited waiver of sovereign
immunity allowing an FTCA claim to be brought against a personal services healthcare
worker for medical malpractice.” Gov’t’s Mot. 13–14. Therefore, the government
argues, § 1089 is “the exclusive remedy against the United States for conduct by
healthcare workers under a personal services contract.” Gov’t’s Reply 2. The
government essentially claims that because §1089 is titled “Defense of certain suits
arising out of medical malpractice,” the only cause of action the government can be sued
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for with regard to the negligent actions of healthcare workers serving under personal
service contracts is medical malpractice.
The government fundamentally misunderstands the Gonzalez Act. The Gonzalez
Act is neither a waiver of sovereign immunity nor a remedy. Rather, it provides that the
remedy and waiver of sovereign immunity contained in the FTCA is the exclusive
remedy for damages due to personal injury caused by a negligent act of any military
healthcare provider and that individual healthcare providers themselves may not be sued
for such conduct. The Gonzalez Act, therefore, does not provide a remedy to an injured
party nor does it limit any remedy an injured party may have against the government
under the FTCA, but rather limits remedies against individual healthcare providers.5 A
recent Supreme Court decision confirms this interpretation of the Gonzalez Act:
Originally, the FTCA afforded tort victims a remedy against the United
States, but did not preclude lawsuits against individual tortfeasors. . . . In
time, Congress enacted a series of agency-specific statutes designed to
shield precisely drawn classes of employees from the threat of personal
liability. One such measure was the . . . the Gonzalez Act. That Act,
controlling in this case, makes claims against the United States under the
FTCA the “exclusive” remedy for injuries resulting from malpractice
committed by medical personnel of the armed forces and other specified
agencies.
Levin v. United States, --- U.S. ----, 133 S. Ct. 1224, 1228–29 (2013) (internal citations
omitted).
In a similar case, a district court in North Carolina analyzed the Gonzalez Act and
32 C.F.R. § 107.5(b) and determined that “pursuant to the Gonzalez Act, health care
providers who serve under a personal services contract authorized by the U.S. Secretary
5
The fact that § 1089 does not provide a remedy makes it somewhat curious that
plaintiffs go out of their way to assert that their claims are “not brought pursuant to 10
USC § 1089 and do[] not allege acts of medical negligence.” Roberts Compl. ¶¶ 40, 52;
Miller Compl. ¶¶ 40, 52. Nonetheless, the court does not find plaintiffs’ pleadings
relevant to its jurisdictional analysis.
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of Defense are deemed to be employees of the government for the purpose of disposing
of personal injury claims.” Glenn, Sr. v. Performance Anesthesia, P.A., 2010 WL
3420538, at *5 (E.D.N.C. Aug. 27, 2010); see also Robb, 80 F.3d at 889 n.3 (holding that
health care personnel “may be deemed employees of the government for FTCA purposes
because they were hired pursuant to an act of Congress which designates them as such”).
Glenn was appealed and the Fourth Circuit, in an unpublished decision, held that “[i]n
enacting the [Gonzalez Act], Congress unambiguously placed the government’s
professional healthcare contractors on an equal footing with its similarly situated armed
services personnel.” Hancox v. Performance Anesthesia, P.A., 455 F. App’x 369, 372
(4th Cir. 2011).
The court briefly notes an issue arising out of the Gonzalez Act’s heading
referring to “medical malpractice” and, as discussed above, plaintiffs’ assertion that their
claims do not allege medical negligence. While the title of § 1089 mentions medical
malpractice, nothing in the text of the section limits its application to medical malpractice
cases. In fact, the plain language of § 1089 appears to apply directly to the cases here:
“[T]he remedy against the United States provided by [the FTCA] for damages for
personal injury, including death, caused by the negligent or wrongful act or omission of
[a healthcare provider] . . . shall hereafter be exclusive of any other civil action or
proceeding by reason of the same subject matter against such [healthcare provider,
including one serving under a personal services contract].” 10 U.S.C. § 1089. Moreover,
the Supreme Court has long held that “the heading of a section cannot limit the plain
meaning of the text,” and that headings “are of use only when they shed light on some
ambiguous word or phrase.” Bhd. of R.R. Trainmen v. Baltimore & O. R. Co., 331 U.S.
9
519, 528–29 (1947); see also Lawson v. FMR LLC, --- U.S. ----, 134 S. Ct. 1158, 1169
(2014) (noting that headings are “but a short-hand reference to the general subject matter
of the provision, not meant to take the place of the detailed provisions of the text.”
(citation and internal quotation marks omitted)). Because the Gonzalez Act is not
ambiguous, the court does not read the title to limit the application of the Act to claims
for medical malpractice.6
Because “[t]he contract between the government and [CasePro] in this case meets
the statutory requirements [of § 1091] . . . , [Dr. Jansen, Joe, and Janice] are, in effect,
employees ‘of the armed forces’ for liability purposes.” Hancox, 455 F. App’x at 372.
Therefore, the court denies the government’s motion to dismiss to the extent it asserts
that the trio are not government employees within the meaning of the FTCA.
B.
Discretionary Function Exception
The government also argues that the court lacks subject matter jurisdiction over
some of plaintiffs’ claims because of the discretionary function exception to sovereign
immunity. Gov’t’s Mot. 15–16. The government only advances this argument with
respect to “claims relating to Hunt leaving the Base without inquiry and that the sentries
6
Even if the Gonzalez Act only applied to medical malpractice claims and was
not applicable here, it would not follow that Dr. Jansen, Joe, and Janice are not federal
employees. Rather, the court would need to analyze the control the government exerted
over them to determine whether they are federal employees under the FTCA. See
Williams v. United States, 50 F.3d 299, 306 (4th Cir. 1995) (holding that “the United
States will not liable under the independent contractor exception of the FTCA by virtue
of entering contracts and demanding compliance with federal standards, unless the United
States actually supervises the ‘day-to-day operations’ of the endeavor” and finding that
an important factor in that analysis is whether the government has the authority “to
control the detailed physical performance of the contractor”). While this issue has not
been directly briefed by the parties, the court notes that its prior order granting CasePro’s
motion to dismiss found that the government had essentially exclusive control over Dr.
Jansen, Joe, and Janice pursuant to the government’s contract with CasePro.
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and security personnel failed to follow policies and procedures in place, and failed to
implement adequate training, supervision, safety procedures and policies.” Id. at 16.
Title 28 U.S.C. § 2680 sets forth exceptions to the FTCA’s waiver of sovereign
immunity. One such exception provides that the FTCA does not apply to “[a]ny claim
. . . based upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a).
The discretionary function exception is designed to “prevent judicial ‘second-guessing’
of legislative and administrative decisions grounded in social, economic, and political
policy through the medium of an action in tort.” United States v. Varig Airlines, 467
U.S. 797, 814 (1984). It “marks the boundary between Congress’ willingness to impose
tort liability upon the United States and its desire to protect certain governmental
activities from exposure to suit by private individuals.” Id. at 808.
Courts follow a two-step analysis to identify protected discretionary functions in
FTCA actions. First, the exception covers only acts that “involv[e] an element of
judgment or choice.” United States v. Gaubert, 499 U.S. 315, 322 (1991) (quoting
Berkovitz v. United States, 486 U.S. 531, 536 (1988)) (alteration in original). “The
requirement of judgment or choice is not satisfied if a federal statute, regulation, or policy
specifically prescribes a course of action for an employee to follow, because the
employee has no rightful option but to adhere to the directive.” Id. (citation and internal
citation marks omitted). Even if the challenged conduct involves an element of
judgment, it must also be determined “whether that judgment is of the kind that the
discretionary function exception was designed to shield.” Id. at 322–23. At this second
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prong, the court must determine whether the governmental action was “based on
considerations of public policy.” Id. at 323. “The focus of the inquiry is not on the
agent’s subjective intent in exercising the discretion conferred by statute or regulation,
but on the nature of the actions taken and on whether they are susceptible to policy
analysis.” Id. at 325. Plaintiffs bear the burden of proving that the discretionary function
exemption does not apply. LeRose v. United States, 285 F. App’x 93, 96 (4th Cir. 2008).
The government’s motion is not the model of clarity when it comes to what
actions they allege fall within the discretionary function exemption. To the extent
plaintiffs allege that the government was negligent by failing to “implement adequate
training, supervision, safety procedures and policies,” Gov’t’s Mot. 16, the court agrees
with the government that the decision to promulgate certain procedures falls within the
discretionary function exemption because such a decision involves judgment and is
susceptible to a policy analysis. See Zielinski v. United States, 89 F.3d 831, *3 (4th Cir.
1996) (table decision) (recognizing that “extent and manner of base security measures in
general fell within the discretionary function exception” and finding that the decision to
what extent a base should be open or closed is within the commander’s discretion).
However, plaintiffs’ allegation that naval hospital employees failed to comply with
existing policies and procedures does not fall within the discretionary function
exemption. See Gaubert, 499 U.S. at 322 (“The requirement of judgment or choice is not
satisfied if a federal statute, regulation, or policy specifically prescribes a course of action
for an employee to follow, because the employee has no rightful option but to adhere to
the directive.” (emphasis added)).
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Therefore, the court grants the government’s motion to dismiss to the extent
plaintiffs allege that the government was negligent by failing to have sufficient policies in
place at the naval hospital, but denies the motion to the extent plaintiffs allege that naval
employees failed to comply with policies and procedures already in place.
IV. CONCLUSION
For the foregoing reasons, the court GRANTS the government’s motions to
dismiss for lack of subject matter jurisdiction in part and DISMISSES plaintiffs’ claims
to the extent they allege that the government was negligent by failing to have sufficient
policies in place at the naval hospital. The court DENIES the government’s motions to
dismiss for lack of subject matter jurisdiction in all other respects.
Additionally, the court DENIES the government’s motions to dismiss for failure
to state a claim without prejudice. Because the parties discuss matters outside the
pleadings, those motions are more properly considered as motions for summary judgment
once discovery has been completed.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
July 28, 2015
Charleston, South Carolina
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