PUBLISH
UNITED STATES COURT OF APPEALS
Filed 10/4/96
TENTH CIRCUIT
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DONALD CURRY and ALMA ORTIZ, )
)
Plaintiffs-Appellants, )
)
v. ) No. 95-2122
)
UNITED STATES OF AMERICA, )
)
Defendant-Appellee, )
)
and )
)
JOE R. ROYBAL, d/b/a )
ROYBAL'S FORESTRY PRODUCTS, )
)
Defendant. )
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Appeal from the United States District Court
for the District of New Mexico
(No. CIV-93-0863 JP)
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Roberto C. Armijo of Civerolo, Wolf, Gralow & Hill, Albuquerque, New Mexico, for
Plaintiffs-Appellants.
John W. Zavitz, Assistant United States Attorney (John J. Kelly, United States Attorney on
the brief), Albuquerque, New Mexico, for the Defendant-Appellee.
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Before KELLY, ENGEL,* and LOGAN, Circuit Judges.
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ENGEL, Circuit Judge.
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Plaintiffs Donald Curry and Alma Ortiz appeal the district court's judgment for the
United States in their suit against the United States and Joe Roybal arising from an accident
involving the plaintiffs and Roybal. The plaintiffs' claim against the United States is based
on the theory that Roybal was an employee of the United States Forest Service ("USFS").
The district court held that Roybal was not an employee of the USFS and entered final
judgment for the United States. We affirm.
I.
The accident occurred when the plaintiffs, husband and wife, were on a motorcycle
on a New Mexico state road in the Santa Fe National Forest. Roybal was operating a road
grader on the same road, driving from one job site to another for work he was doing pursuant
to a contract with the USFS. As the motorcycle and the grader approached each other from
opposite directions on the narrow road, Curry stopped the motorcycle. The plaintiffs alleged
that the grader failed to stop or slow down and caused the motorcycle to tip over, which in
turn caused Ortiz to fall off the motorcycle and into the path of the rear wheels of the grader.
*
The Honorable Albert J. Engel, United States Circuit Judge for the Sixth Circuit Court
of Appeals, sitting by designation.
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Ortiz sued for physical damages, and Curry sued for damages resulting from severe
emotional distress.
The district court determined that the issue of the government's potential liability
should be determined before any proceedings on the merits of the case. The court held a one-
day bench trial on this issue and decided that the United States could not be liable because
Roybal was an independent contractor, not a federal employee. This appeal concerns only
that determination; we do not address any aspect of the plaintiffs' claims against Roybal.
The USFS hired Roybal to maintain and grade a 99.2-mile section of road. It has
regular employees who do this kind of work, but it sometimes hires outside people as well.
Roybal was not a licensed road-grader, but the USFS did not require him to be. Most of the
work he did was for the USFS, under various discrete contracts, but he occasionally did
private jobs as well. His work for the USFS always was the result of a competitive bidding
process: the USFS would solicit bids and choose the lowest one. In this particular instance,
Roybal's bid of $150 per mile for the 99.2-mile section was the lowest of three bids.
A description of exactly what the job entailed was set forth in a detailed contract or
"purchase order." Roybal was to grade the 99.2-mile stretch of road and also perform
maintenance work such as "pulling ditches," cleaning culverts and ditches, and removing
brush. The contract provided that "[a]ll work shall be performed in accordance with these
specifications and in conformity with the attached drawings," and that the USFS would
conduct periodic inspections to verify compliance.
3
Roybal did not receive a salary under this contract; rather, he periodically billed the
USFS for the work he had completed, usually every two weeks. He had several employees,
and he was fully in charge of hiring and firing them, paying their salaries, and paying the
necessary taxes. Under the contract, Roybal was allowed to hire subcontractors, but only
with the USFS's approval. He used his own road-grading equipment, which complied with
the contract's specifications about size and quality.
Joe Cordova represented the USFS as a "COR" (contracting officer's representative).
Cordova was in charge of monitoring Roybal's performance as set out in a "Handbook"
published by the USFS. According to the Handbook,
All dealings with the contractor must be timely so that the Government
maintains control of the work and the contractor is not subjected to
unnecessary and costly rework. Faulty and substandard work must be
promptly rejected since failure to do so could imply acceptance.
Cordova's responsibilities included making payments to Roybal, issuing orders to suspend
or resume work, and maintaining a daily diary. In the diary, Cordova recorded the work
done, the payments made, and any problems encountered. For example, Cordova described
in the diary several instances when he told Roybal that a certain portion of the grading work
would not be approved until the area was cleaned properly. Pedro Aragon was an inspector
for the USFS. He visited Roybal's worksite many times and gave specific orders such as to
remove certain debris or to go back and finish cleaning certain areas, making sure that
Roybal complied with the contract's specifications.
4
Although USFS officials such as Cordova and Aragon had some general supervisory
authority to make sure that Roybal's performance conformed with the contract specifications,
they did not otherwise tell Roybal how or when to do his work. They did not tell Roybal
whom to hire or how to operate his equipment. As far as safety and insurance, Roybal
understood that he was responsible for public safety, although he did not have liability
insurance. Roybal thought of Cordova as his "boss," since Cordova had the power to
terminate the contract, but Roybal did not consider himself to be a USFS employee.
II.
The Federal Tort Claims Act ("FTCA") provides a limited waiver of sovereign
immunity that allows the United States to be sued for damages arising from torts committed
by government employees acting within the scope of their employment. 28 U.S.C. § 1346(b).
"Employees" of the government include officers and employees of federal agencies; "federal
agencies" do not include contractors. Id. § 2671. The FTCA does not authorize suits based
on the acts of independent contractors or their employees. United States v. Orleans, 425 U.S.
807, 814 (1976); Logue v. United States, 412 U.S. 521, 527 (1973).
This appeal turns on the distinction between federal employees and independent
contractors. The Supreme Court has held that the power of the federal government "to
control the detailed physical performance of the contractor" is the critical factor in making
this distinction. Logue, 412 U.S. at 528. In applying this test, we focus on "whether the
Government supervises the day-to-day operations of the individual." Lurch v. United States,
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719 F.2d 333, 337 (10th Cir. 1983), cert. denied, 466 U.S. 927 (1984). In answering this
question, we consider seven factors:
(1) the intent of the parties; (2) whether the United States controls only the end
result or may also control the manner and method of reaching the result; (3)
whether the person uses h[is] own equipment or that of the United States; (4)
who provides liability insurance; (5) who pays social security tax; (6) whether
federal regulations prohibit federal employees from performing such contracts;
and (7) whether the individual has authority to subcontract to others.
Lilly v. Fieldstone, 876 F.2d 857, 859 (10th Cir. 1989) (citing Norton v. Murphy, 661 F.2d
882, 884-85 (10th Cir. 1981)).
The district court followed the above analysis and concluded that Roybal was an
independent contractor rather than a USFS employee. We review the findings of fact
underlying the district court's decision only for clear error. Lurch, 719 F.2d at 338. The
conclusion that Roybal was an independent contractor, however, is a legal one and is
reviewed de novo. Lilly, 876 F.2d at 857.
The plaintiffs argue that the USFS had sufficient control over Roybal's day-to-day
operations and the physical details of his work to make Roybal an employee. The United
States argues that the USFS monitored Roybal's work only to the extent necessary to ensure
compliance with the contract. The plaintiffs recognize that under
Flynn v. United States, 631
F.2d 678, 680 (10th Cir. 1980), the right of the government to inspect work for compliance
with a contract does not automatically make the worker an employee, but they claim that the
"mosaic" of evidence showed that the USFS retained such a high degree of control over
Roybal as to make him an employee under the FTCA.
6
Upon examination of the facts of this case, we do not find that the district court erred
in concluding that Roybal was an independent contractor for the purpose of the FTCA.
Whether viewed as a group of discrete facts or, as urged by the plaintiffs, as an overall
"mosaic," the evidence reveals the same picture: Roybal was an independent contractor who
did some work for private parties and, when he succeeded in the competitive bidding process,
did some work for the government. The USFS monitored his activities to the extent
necessary to ensure that the desired results were achieved, but it otherwise gave Roybal
discretion in choosing how to perform the contract. The district court properly analyzed the
facts in light of the factors listed above, and we affirm on the basis of its opinion.
We note further that the plaintiffs' argument that this case is similar to United States
v. Becker, 378 F.2d 319 (9th Cir. 1967), is misguided. In Becker, the Ninth Circuit affirmed
a finding that a pilot hired by the USFS to fly reconnaissance missions over a forest fire was
a USFS employee for the purpose of the FTCA because he was subject to detailed regulations
and inspections. Unlike Roybal, the pilot was paid by the hour and was told "when and
where to go and what to do." Id. at 322-23. These facts distinguish the case from the one
at bar; furthermore, the Ninth Circuit subsequently recognized that under the Supreme Court
holdings in Logue and Orleans, detailed regulations and inspections are not in and of
themselves evidence of an employer-employee relationship. Letnes v. United States, 820
F.2d 1517, 1518-19 (9th Cir. 1987).
7
In fact, the detailed nature of Roybal's contract with the USFS is consistent with the
finding that Roybal was an independent contractor. InNorton v. Murphy, 661 F.2d 882 (10th
Cir. 1981), we reviewed a district court's finding that a person who contracted with the
United States Post Office Department to deliver mail on certain routes was not an employee
under the FTCA. In affirming this decision, we noted that
the very length and detail of the contract . . . suggests, to us, an independent
contractor relationship between the parties. To us it is doubtful that a master-
servant relationship, where the master tells the servant what to do and when to
do it, would require a contract of the type here involved.
Id. at 884. The USFS exercised considerable control over Roybal to the extent that the
contract was very detailed and specific, but it did not supervise Roybal's day-to-day
operations in a way that made him an employee.
III.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
8