UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50566
KIM J. LINKOUS, Individually and as next friend of Joshua
Linkous, Kirsten Linkous, and Justin Linkous, minor children,
Plaintiff-Appellee,
VERSUS
UNITED STATES OF AMERICA,
Defendant-Appellant,
LYDIA SIMS, M.D.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
June 9, 1998
Before KING, BARKSDALE, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
The Plaintiffs, Kim J. Linkous, individually and on behalf of
her minor children, sued the Defendants, the United States and
Lydia Sims, M.D., under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 1346(b), for injuries received during medical treatment at
Darnell Army Community Hospital (“DACH”). The United States
appeals from an order of the district court certifying that Dr.
Sims was an employee of the United States operating in the course
and scope of her office or employment when treating Linkous. After
reviewing the briefs and record on appeal, we reverse the decision
of the district court.
I.
The Defendant, Dr. Lydia Sims, contracted with DACH to provide
obstetrics/gynecological (“ob/gyn”) services to beneficiaries of
the Civilian Health and Medical Program of the Uniformed Services
(“CHAMPUS”), a statutory health benefits program that provides
medical and dental benefits for dependants of active-duty military
service members and military retirees. See 10 U.S.C. §§ 1076-79.
Federal law authorizes the Secretary of Defense to enter into
partnership agreements which provide “for the sharing of resources
between facilities of the uniformed services and facilities of a
civilian health care provider.” 10 U.S.C. § 1096. Pursuant to
this statutory authorization, the Department of Defense promulgated
regulations permitting the type of agreement at issue here, whereby
private practitioners provide health care services within military
facilities. See 32 C.F.R. § 199.1(p).
The terms of the partnership agreement between DACH and Dr.
Sims were set forth in a Memorandum of Understanding (“MOU”). The
MOU described Dr. Sims as a “participating health care provider”
and indicated that Dr. Sims was to be compensated on a fee-for-
service basis. Because Dr. Sims used DACH facilities, she received
seventy percent of the rate paid to private practitioners who
2
provide CHAMPUS health care services outside DACH. Dr. Sims did
not determine the fees charged for her services. The MOU required
Dr. Sims to provide full professional liability insurance covering
acts or omissions committed by Dr. Sims or her support personnel,
who are not covered by the Gonzalez Act, 10 U.S.C. § 1089. The
Gonzalez Act renders FTCA remedies exclusive with respect to torts
committed by military health care personnel. The MOU also required
Dr. Sims to obtain insurance for the purpose of indemnifying the
United States for any liability resulting from her exercise of
clinical privileges at DACH. The MOU acknowledged the government’s
liability for the acts of its “employees” but indicated that DACH
was not liable for the acts of “participating health care
providers.” Although Dr. Sims had access to support personnel and
facilities at DACH, she hired her own nurse-chaperone to assist her
with patients. In contrast, military physicians use only military
personnel or Red Cross volunteers as nurse-chaperones. Dr. Sims,
however, used DACH personnel to schedule her appointments, accepted
all referrals from DACH practitioners, and only referred her
patients to other DACH practitioners.
The MOU further provided that Dr. Sims was required to adhere
to all hospital bylaws and Army regulations to the same extent as
Army health care providers. For example, Dr. Sims was required to
adhere to the policy of obtaining informed consent at least thirty
days prior to performing a tubal ligation. Dr. Sims, however, was
not subject to other supervisory controls imposed on military
health care personnel. Dr. Silver, the former Chief of the
3
Department of Obstetrics and Gynecology at DACH, stated that he
lacked authority to assign Dr. Sims a schedule, require Dr. Sims to
attend morning meetings, or conduct routine performance evaluations
of Dr. Sims. Additionally, the MOU required Dr. Sims to undergo a
credentialing procedure, similar to the type utilized at private
hospitals, in order to obtain privileges at DACH. While Dr. Sims
had no admitting privileges at any other hospital and did not
maintain an office or see patients outside her practice at DACH,
the terms of the MOU did not prohibit Dr. Sims from practicing
outside DACH. Finally, as a prerequisite to receiving CHAMPUS fee-
for-service payments, Dr. Sims certified that she was not an
employee of the United States on the CHAMPUS application.
As a military dependent, the Plaintiff, Kim Linkous, sought
gynecological services from DACH and was referred to Dr. Sims.
While performing a laparoscopic tubal ligation on Linkous, the
plaintiff alleges that Dr. Sims acted negligently by lacerating
Linkous’s right common iliac artery, thereby causing significant
and continuing injury. Linkous brought suit on behalf of herself
and her minor children, seeking recovery for her injuries under the
FTCA, against Dr. Sims and the United States. The United States
moved for dismissal, contending that Dr. Sims was not an employee
of the government. The Plaintiffs and Dr. Sims opposed the motion
to dismiss, and Dr. Sims asked the district court to certify that
she was an employee of the United States acting within the scope of
her employment and to substitute the United States as defendant
pursuant to 28 U.S.C. § 2679(d)(3). The district court denied the
4
government’s motion to dismiss, certified Dr. Sims as an employee
of the United States acting within the scope of employment, and
substituted the United States for Dr. Sims as the sole defendant.
On motion of the United States, the district court certified for
interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), that the
previous order turns on “a controlling question of law as to which
there is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the ultimate
termination of the litigation.”
II.
“It is elementary that the United States, as sovereign, is
immune from suits save as it consents to be sued . . . and the
terms of its consent to be sued in any court define that court’s
jurisdiction to entertain the suit.” United States v. Mitchell,
445 U.S. 535, 538 (1980); Broussard v. United States, 989 F.2d 171,
174 (5th Cir. 1993). The FTCA constitutes a limited waiver of
sovereign immunity. See 28 U.S.C. § 1346(b); United States v.
Orleans, 425 U.S. 807, 813 (1976). Courts must strictly construe
all waivers of the federal government’s sovereign immunity, and
must resolve all ambiguities in favor of the sovereign. See United
States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992). Under the
FTCA, Congress has waived sovereign immunity and has granted
consent for the government to be sued for acts committed by any
“employee of the Government while acting within the scope of his
5
office or employment.”1 28 U.S.C. § 1346(b). The FTCA, however,
does not extend to acts of independent contractors. See Orleans,
425 U.S. at 813-14; Broussard, 989 F.2d at 174. Therefore, if the
act was not committed by an “employee of the Government,” then the
court must dismiss for lack of subject matter jurisdiction under
Fed. R. Civ. P. 12(b)(1). See Broussard, 989 F.2d at 177. We apply
a de novo standard of review to the question of whether an
individual is an “employee of the government” for purposes of the
FTCA. See Rodriguez v. Sarabyn, 129 F.3d 760, 765 (5th Cir. 1997);
Williams v. United States, 71 F.3d 502, 504 (5th Cir. 1995).
The critical factor in determining whether an individual is an
employee of the government or an independent contractor is the
power of the federal government to control the detailed physical
performance of the individual. See United States v. Orleans, 425
U.S. 807, 814 (1976); Broussard, 989 F.2d at 174; see also Logue v.
United States, 412 U.S. 521, 527 (1973)(“[T]he distinction between
the servant or agent relationship and that of independent
contractor turn[s] on the absence of authority in the principal to
control the physical conduct of the contractor in performance of
the contract.”). Although “control of the detailed physical
performance may be the most critical factor in identifying an
employee, it is not necessarily the only factor.” Broussard, 989
1
“Employee of the Government” is defined to include “officers
or employees of any federal agency, members of the military or
naval forces of the United States, . . . 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.
6
F.2d at 175. As the court in Broussard recognized, if control were
the only factor, then no professional who exercises professional
judgment could be considered a federal employee under the FTCA.
Id. Therefore, in Rodriguez v. Sarabyn, 129 F.3d 760, 765 (5th
Cir. 1997), in addition to control, this court cited the factors
listed in § 220 of the Restatement (Second) of Agency to
differentiate between an employee and independent contractor under
the FTCA. Section 220 lists the following factors as relevant in
determining whether an individual is an employee or an independent
contractor:
(a) the extent of control which, by the agreement, the
master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a
distinct occupation or business;
(c) the kind of occupation, with reference to whether, in
the locality, the work is usually done under the
direction of the employer or by a specialist without
supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the
person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the
job;
(h) whether or not the work is a part of the regular
business of the employer;
(i) whether or not the parties believe they are creating
the relation of master and servant; and
(j) whether the principal is or is not in business.
7
RESTATEMENT (SECOND) OF AGENCY § 220 (1958).2 See also Rodriguez v.
Sarabyn, 129 F.3d at 765 (citing RESTATEMENT (SECOND) OF AGENCY §
220). If the government lacks the power to directly control an
individual, then the court must look at other factors before
deciding the individual’s status as employee or independent
contractor. See Rodriguez, 129 F.3d at 765. Although such a
determination does not require mathematical precision, if the
government lacks the power to control an individual, plus several
factors listed in § 220 weigh in favor of independent contractor
status, then a court must conclude that the individual is an
independent contractor. Consequently, we look to the factors
listed in § 220 of the Restatement of Agency in order to determine
whether Dr. Sims was an employee of the government or an
independent contractor at the time of Linkous’s tubal ligation.
Factor (a), the extent of control which the employer exercises
over the details of the work, weighs in favor of independent
contractor status because DACH exercised no control over the
2
In Rodriguez v. Sarabyn, the court referenced the
explanatory comments to the Restatement of Agency, which lists the
following factors, in addition to control, as evidence of the
existence of an employee relationship:
(1) the work does not require one who is highly educated
or skilled; (2) the work is typically done by an employee
in the locale, rather than an independent contractor; (3)
the employer supplies the tools, instrumentalities, or
place of work; (4) the employment is for a considerable
period of time with regular hours; (5) the method of
payment is by the hour or month; (6) the work is full-
time employment by one employer; (7) the work is part of
the employer’s regular business; and (8) the parties
believe they have created an employment relationship.
See Rodriguez v. Sarabyn, 129 F.3d 760, 765 (5th 1997)(citing
RESTATEMENT (SECOND) OF AGENCY § 220(2) & cmt. h)).
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medical services that Dr. Sims provided to her patients. Although
DACH exercised some control over the administrative aspects of Dr.
Sims’s practice, such as scheduling appointments and determining
fees, DACH exercised no control over the day-to-day rendition of
medical services. The appellees argue that requiring Dr. Sims to
abide by the informed consent policy established control over Dr.
Sims’s physical performance. While the informed consent policy may
affect the doctor-patient relationship by subjecting Dr. Sims to
some minimum requirements regarding notification and consent, this
policy did not intrude on the daily rendition of medical services
or override Dr. Sims’s medical judgment regarding diagnosis and
treatment. Although the lack of control is of critical importance,
we must consider the remaining factors to determine the
relationship between Dr. Sims and DACH.
The next two factors also support Dr. Sims’s status as an
independent contractor. As an ob/gyn at DACH, Dr. Sims was
“engaged in a distinct occupation” (factor (b)) of the type usually
done “by a specialist without supervision” (factor (c)).
Additionally, factor (d) weighs in favor of independent contractor
status because Dr. Sims’s occupation required a high degree of
skill. Factor (g) also indicates independent contractor status
because Dr. Sims was paid on a fee-for-service basis, like all non-
government doctors participating in the CHAMPUS program, rather
than an annual salary like military doctors. Finally, factor (i)
supports independent contractor status because the record shows
that the parties did not believe that they were creating an
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employer-employee relationship. As noted earlier, Dr. Sims
indicated on her application for CHAMPUS reimbursement that she was
not an employee of the federal government. Furthermore, under the
terms of the MOU, Dr. Sims agreed to obtain professional liability
insurance covering the acts or omissions of Dr. Sims, as well as
any support personnel that she hired. If Dr. Sims believed she was
becoming an employee of DACH, then there would have been no need
for her to indemnify the government for her negligence.
Conversely, factors (e), (f), (h), and (j) support the
conclusion that Dr. Sims was an employee of DACH. DACH provided
the “instrumentalities, tools, and the place of work” for Dr. Sims
(factor (e)). Dr. Sims worked at DACH for a period of several
years (factor (f)). DACH is in the business of providing a wide
range of medical services, including the ob/gyn services provided
by Dr. Sims (factors (h) and (j)). After considering the factors
listed in § 220, we conclude that Dr. Sims was an independent
contractor rather than an employee of the government. We reach
this conclusion because the government exercised no control over
the detailed physical performance of Dr. Sims, plus the balance of
remaining factors weighs in favor of independent contractor status.
The Appellees contend that Dr. Sims could not have been an
independent contractor because she contracted directly with the
government, rather than with an intermediate medical facility or
physician group which in turn contracted with the government. Both
the Plaintiffs and Dr. Sims cite to Broussard, where the defendant-
physician was employed by an independent contractor to the federal
10
government, which in turn hired and paid the doctor as an employee.
See Broussard, 989 F.2d at 173. Unlike the defendant in Broussard,
Dr. Sims contracted directly with the government (ie. she was
selected by the Chief officer at DACH, and she was paid directly by
the government through CHAMPUS reimbursement). We fail to see the
relevance of this distinction. According to the Appellees’
argument, individuals cannot be independent contractors. In
Rodriguez, the appellant made a similar argument to no avail. See
Rodriguez, 129 F.3d at 766. Individuals can contract directly with
the government and remain independent contractors, as long as the
agreement between the parties does not grant the government control
over the detailed physical performance of the individual, and the
remaining factors weigh in favor of independent contractor status.
Consequently, the district court erred by certifying that Dr. Sims
was acting within the scope of her employment when treating
Linkous.
III.
Alternatively, the Appellees contend that the government
should be equitably estopped from denying Dr. Sims’ status as a
government employee. Equitable estoppel is rarely valid against
the government. See United States v. Bloom, 112 F.3d 200, 205 (5th
Cir. 1997). Courts have applied estoppel to the federal government
only in the narrowest of circumstances. Id. In order to establish
estoppel against the government, a party must prove affirmative
misconduct by the government in addition to the four traditional
11
elements of the doctrine. See id. See also Broussard, 989 F.2d at
177 (“At a minimum, the government would have to engage in
affirmative misconduct before it could be estopped, and even then
affirmative misconduct may not be sufficient to prevent dismissal
for lack of subject matter jurisdiction.”). The four traditional
elements of estoppel are: (1) that the party to be estopped was
aware of the facts, and (2) intended his act or omission to be
acted upon; [and] (3) that the party asserting estoppel did not
have knowledge of the facts, and (4) reasonably relied on the
conduct of the other to his substantial injury. See Bloom, 112
F.3d at 205.
The Appellees argue that the traditional elements of estoppel
have been met. First, the party to be estopped, the United States,
was aware of the facts surrounding the employment relationship with
Dr. Sims. Second, DACH held Dr. Sims out as an employee by
purporting to be a full service hospital, requiring Dr. Sims to
wear the same uniform and identification as military physicians,
and using the same receptionist to schedule appointments for
military physicians. Third, the Plaintiff was unaware that Dr.
Sims was not an employee of DACH. And fourth, the Plaintiff
relied, to her detriment, on the government’s actions in holding
Dr. Sims out as an employee. The United States responds that the
government cannot be equitably estopped. The United States argues
that in the unlikely event estoppel is available against the
government, the Plaintiff must at least show that the government
engaged in affirmative misconduct. Furthermore, the government
12
contends the Plaintiffs have failed to allege any facts supporting
the necessary element of detrimental reliance because Linkous has
not indicated that she would have acted differently had she known
that Dr. Sims was not an employee of the government.
The Appellees have failed to demonstrate any affirmative
misconduct on the part of the government.3 “Affirmative
misconduct” requires an affirmative misrepresentation or
affirmative concealment of a material fact by the government. See
Carrillo v. United States, 5 F.3d 1302, 1306 (9th Cir. 1993). The
Plaintiffs contend that DACH has committed affirmative misconduct
by holding Dr. Sims out as an employee of the government and by
requiring CHAMPUS beneficiaries to seek medical services from
military hospitals in an effort to save money. We do not agree.
Merely requiring Dr. Sims to wear the same uniform and
identification as military doctors and using the same receptionist
to schedule appointments for Dr. Sims and military doctors does not
amount to “affirmative misconduct.” DACH did not affirmatively
conceal Dr. Sims’s status as an independent contractor or
affirmatively misrepresent to Linkous that Dr. Sims was an employee
of DACH. Although DACH may have created the circumstances that
3
In support of their claim of equitable estoppel, the
Appellees rely on Utterback v. United States, 668 F.Supp. 602, 607
(W.D. Ky. 1987) and Gamble v. United States, 648 F.Supp. 438, 441-
42 (N.D. Ohio 1986). In these two cases, the district courts held
that the government was estopped from denying the employee status
of negligent physicians because the government hospitals had held
themselves out as full-service hospitals. As the Ninth Circuit has
noted, “Gamble and Utterback confuse affirmative action with
affirmative misconduct.” Carrillo v. United States, 5 F.3d 1302,
1306 (9th Cir. 1993).
13
allowed Linkous to incorrectly assume that Dr. Sims was an employee
of the hospital, we cannot say that this rises to the level of
“affirmative misconduct.” Furthermore, requiring CHAMPUS
beneficiaries to seek medical services at military facilities in an
effort to save money does not constitute affirmative misconduct.
The Appellees cite no authority for the proposition that such cost-
saving efforts of themselves constitute affirmative misconduct, and
we see no reason to conclude that such measures amount to
affirmative misconduct. Additionally, the Plaintiffs have failed
to demonstrate that Linkous detrimentally relied upon the belief
that Dr. Sims was a government physician. Although the Plaintiffs
baldly assert that Linkous “relied on the government’s actions in
holding Dr. Sims out as its employee to her detriment,” the
Plaintiffs fail to indicate what Linkous would have done
differently had she known that Dr. Sims was a government
contractor.
The Appellees have failed to show affirmative misconduct by
the government or detrimental reliance by Linkous. Consequently,
the Appellees have failed to establish the necessary elements of
equitable estoppel.
IV.
For the foregoing reasons, the order of the district court
certifying that Dr. Sims was acting in the course and scope of her
employment is REVERSED. Accordingly, the case is DISMISSED for
lack of subject matter jurisdiction.
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