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Shannon Miller v. Mayers Memorial Hospital; Les Devies


March 31, 2011


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Presently before the Court is a Motion to Dismiss brought by Defendant the United States of America ("United States" or "Government") for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).*fn1 While that motion, (made on grounds that Plaintiff's claim against the United States was not timely filed) was pending, Plaintiff filed a Motion to Decertify Thomas Watson M.D. as a federal employee.

Plaintiff claims that because Dr. Watson should not be considered a governmental employee for purposes of this action, the requirements for presenting claims against the government are irrelevant. Plaintiff also moved to remand the action to state court, where it originated, on grounds that no cognizable federal claim is present. In response to those two motions filed by Plaintiff, the Court continued the United States' motion to dismiss so that all three motions could be heard concurrently. As set forth below, Plaintiff's Motions for Decertification and for Remand will be denied. The United States' Motion to Dismiss will be granted.*fn2


In this medical malpractice action, Plaintiff Shannon Miller ("Plaintiff") seeks redress for a perforated colon she claims to have sustained while undergoing surgery on or about April 2, 2008 for a tubal ligation. Plaintiff further attributes a subsequent infection to improper treatment following the perforation she suffered. Plaintiff's lawsuit, initially filed in the Superior Court of the State of California for the County of Shasta, named Mayers Memorial Hospital ("Mayers" or "Hospital"), the facility where the tubal ligation was performed, Dr. Watson, the surgeon who performed the procedure, and Dr. Leo Devies (Dr. Watson's first assistant), as Defendants.

The United States subsequently substituted as a Defendant on Watson's behalf upon a certification from the United States Attorney's Office that Watson was acting within the scope of his employment with the United States when performing Plaintiff's surgery. Concurrently with that certification, the United States removed the action, pursuant to 28 U.S.C. § 2679(d), on June 15, 2009. The resulting case was assigned a case number of 2:09-cv-01687-MCE-KJM.

The United States moved to dismiss Plaintiff's lawsuit a week after it was removed for lack of subject matter jurisdiction under Rule 12(b)(1), claiming that Plaintiff had not exhausted administrative remedies under the Federal Tort Claims Act, 28 U.S.C. § 1346 et seq. ("FTCA") against Watson, as a government employee, and that consequently Plaintiff could not maintain his action against the United States. By Memorandum and Order filed September 18, 2009, the Court granted the United States' motion and remanded the case back to Shasta County where it had originally been commenced.

On October 2, 2009, the United States Department of Health and Human Services ("HHS") denied Plaintiff's governmental tort claim, which she claims she filed "in an abundance of caution" on April 2, 2009, the day after her lawsuit was initially filed in state court. See Pl.'s Opp'n to Mot. to Dismiss, p. 2, n.1 Nonetheless, although this Court had previously dismissed the United States from the action on September 18, 2009 for failure to exhaust her administrative claims, it is undisputed that Plaintiff thereafter took no action to refile any action against the United States.

Instead, Plaintiff simply took the position that Dr. Watson remained a viable individual defendant despite his certification as a federal employee and the United States' corresponding party substitution in his place.

When Plaintiff continued to pursue Dr. Watson as a defendant in state court, and after she attempted to take his default, the United States re-removed the case to this Court on October 7, 2010. At that time the present case number, 2:10-cv-02723-MCEDAD, was assigned.

The United States' initial certification of Dr. Watson as a federal employee was made on grounds that he was employed by the Mountain Valleys Health Centers ("MVHC"), a federally supported health center. Pointing to a contract between MVHC and Mayers which provided for use of the Hospital for the provision of emergency services to MVHC patients, Plaintiff contends that because her tubal ligation was not an emergency procedure and because the emergency services agreement was the only contract that existed between Mayers and Mountain Valleys, Dr. Watson could not have been operating in his capacity as an MVHC employee when he performed an elective tubal ligation on Plaintiff at the Hospital. Plaintiff instead alleges that Watson was acting as an "independent contractor" for Mayers as opposed to MVHC's employee. Id. at 6:24-26.

The United States has pointed to a number of facts which, it contends, illuminate the unavailability of Plaintiff's argument in this regard. First, according to Dave Jones, the Chief Executive Officer for MVHC, emergency room treatment is not the only connection MVHC has with Mayers. As Jones explains:

"Separate and apart from the Emergency Services Agreement, MVHC doctors, including Dr. Watson, are granted general privileges at Mayers so they may provide medical services and perform procedures for MVHC patients using Mayers' physical facilities. Privileges are not granted to MVHC physicians by way of contract, but instead are granted by Mayers as part of a confidential review process. MVHC bills its patients for all services rendered and procedures performed by its physicians at Mayers pursuant to these privileges, including the April 3, 2008 tubal ligation surgery performed by Dr. Watson for [Plaintiff] at Mayers."

Decl. of Dave Jones, ¶ 8. Indeed, as Jones also points out, because Mayers is located in a very rural area, approximately 90 to 95 percent of the doctors who use its hospital facilities are in fact MVHC employees. Jones Decl., ¶ 4. Significantly, while Dr. Watson is employed by MVHC (which provides all his salary, compensation and benefits) he currently serves as Mayer's Chief of Medical Staff and remains an active staff member of the Hospital. Id. at ¶ 6.

With respect to the care he provided to Plaintiff, the United States has provided evidence that she has been an MVHC patient since 2004, that Dr. Watson followed her throughout her pregnancy in 2007 and 2008, and that Dr. Watson in fact delivered her baby at Mayers on April 2, 2008, the day before he performed Plaintiff's tubal ligation, also at the Hospital. Watson Decl. ¶¶ 10-11; Jones Decl., ¶ 9. According to the United States, the fact that both the birth and Plaintiff's subsequent tubal ligation were performed at the Hospital is not surprising since MVHC is a clinical outpatient facility only. Any deliveries and surgical procedures on MVHC patients consequently have to be performed at hospitals such as Mayers. Jones Decl., ¶ 9.

Dr. Watson's clinical privileges at Mayers, which included privileges in Family Medicine, permitted him to perform the tubal ligation in question. Watson Decl., ¶¶ 6, 12.

Billing for the services performed also points to MVHC as the responsible party. According to Sheral Thorlaksson, MVHC's Chief Operating Officer, MVHC billed Medi-Cal for Plaintiff's April 3, 2008 surgery performed by Dr. Watson, and Medi-Cal paid for the procedure. Thorlaksson Decl., ¶¶ 7-11. Dr. Watson does not bill privately for his services, and did not bill Plaintiff or any third-party payer for any of the services he provided to her, including the tubal ligation. Watson Decl., ¶ 13.

Dr. Watson's declaration makes it clear that the only payment he received for the subject April 3, 2008 procedure was pursuant to his regular compensation as an MVHC employee. Id.

Plaintiff filed no reply memorandum to these assertions, as contained within the materials filed in opposition to Plaintiff's motions. Consequently the Government's factual allegations in this regard are essentially uncontroverted.


A. Certification of a Federal Employee

Certification by the government that a federal employee was acting in the scope of employment at the time of any given incident constitutes prima facie evidence as to that course and scope and is accordingly conclusive unless challenged. See Pauly v. U.S. Dept. Of Agric., 348 F.3d 1143, 1151 (9th Cir. 2003); Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993).

It follows that a plaintiff can seek judicial review of a scope of employment determination like the United States Attorney's Office certification made in this matter. Osborn v. Haley, 549 U.S. 225, 230 (2007). In mounting any such challenge, however, the party seeking review must rebut the presumption of federal employment arising from the certification, and he or she "bears the burden of presenting evidence and disproving the... certification by a preponderance of the evidence." Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1995). Moreover, because such challenges bear on the immunity to suit of a federal employee for claims arising out of their employment, they "should be decided at the earliest opportunity." Osborn, 549 U.S. at 252-53.

B. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Federal Courts are presumptively without jurisdiction over civil actions, and the burden of establishing the contrary rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994). Lack of subject matter jurisdiction is never waived and may be raised by either party or the court at any time. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d. 593, 594-95 (9th Cir. 1996). Lack of subject matter jurisdiction may even be raised by the district court sua sponte: "Nothing is to be more jealously guarded by a court than its jurisdiction." In re Mooney, 841 F.2d. 1003, 1006 (9th Cir. 1988).

In moving to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the challenging party may either make a facial attack on the allegations of jurisdiction contained in the complaint or can instead take issue with subject matter jurisdiction on a factual basis. Thornhill Publ'g Co. v. Gen. Tel. & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3rd Cir. 1977).

If the motion constitutes a facial attack, the Court must consider the factual allegations of the complaint to be true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981); Mortensen, 549 F.2d at 891. If the motion constitutes a factual attack, however, like the present motion (which argues that any claims against the United States are now time-barred), "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 891); see also White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). "In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Safe Air v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).


Plaintiff argues that because she did not enter Mayers Memorial Hospital through the emergency room, the subsequent surgery performed by Dr. Watson could necessarily not have been within the course and scope of his employment with MVHC because the only contract between Mayers and MVHC was for the provision of emergency services.

Contrary to Plaintiff's logic, the existence of a contract for emergency medical services does not per se disqualify any other service performed at the Hospital from being made under the auspices of the MVHC. In and of itself, that argument is insufficient to overcome the presumption in favor of federal employee status that results from the United States Attorney's certification in a case like this one -- a presumption that Plaintiff has the burden to rebut by a preponderance of the evidence. Billings v. United States, 57 F.3d at 800.

The United States has also presented evidence, however, that all the services provided by Dr. Watson to the Plaintiff --including his care over the course of her pregnancy, the delivery itself and the Plaintiff's tubal ligation the following day ---were all performed within the scope of his employment with MVHC. The United States has further produced evidence that all of Dr. Watson's compensation is paid by the MVHC, a federally funded health clinic, and that Dr. Watson's charges incurred for the particular tubal ligation in question were presented to and paid by Medi-Cal through billings generated by MVHC (with no billings submitted by Dr. Watson or any other third party for the procedure).

As already stated above, Plaintiff filed no response to these factual assertions, and for purposes of the motions now before the Court they remain uncontroverted.

Plaintiff's contention that Dr. Watson was not acting as an MVHC employee at the time of her tubal ligation is the foundation of both the two motions she herself has filed (for decertification of Watson's status as a federal employee and for remand to state court on grounds that absent such status this Court lacks jurisdiction) and the opposition she submitted to the United States' motion to dismiss for failure to adhere to the deadlines attaching to a federal claim. As Plaintiff suggests in the motion to decertify itself, the propriety of certification is, in essence, determinative of all three motions: "Once Dr. Watson is decertified, Plaintiff's motion to remand should be granted, and Defendant's motion to dismiss should be denied."

Pl.'s Mot. to Decertify, 10:11-12. Plaintiff describes the "bottom line" for all three motions in an identical fashion as follows:

"The bottom line here is that the federal court does not have and never had subject matter jurisdiction over plaintiff's claims against Dr. Watson, and not because plaintiff failed to exhaust her administrative "remedies", but because Watson was not acting in the course and scope of his federal employment when he negligently perforated plaintiff's colon."

See Pl's Mot. to Decertify, 7:16-19; Pl.'s Mot. to Remand, 6:7-10; Pl.'s Opp. to Mot. to Dismiss, 6:9-12.

The Court rejects Plaintiff's "bottom line" argument that she has demonstrated the impropriety of the United States' certification of Dr. Watson's status as a federal employee.

Since that rejection removes the very underpinning for Plaintiff's decertification request, as well as for her request that once decertified, the matter should be remanded to state court, both Plaintiff's motions in that regard necessarily fail.*fn3

Further, inasmuch as the only opposition Plaintiff makes to the United States' motion to dismiss rests with the Government's allegedly "erroneous premise" that pursuant to Dr. Watson's certification the United States is the proper party against whom the action should be proceeding, the fact that the Court disagrees operates eviscerate Plaintiff's opposition to the motion to dismiss.

The premise upon which the United States moves for dismissal is sound. The United States remains the proper party to this litigation, as opposed to Dr. Watson individually, given the certification of federal employment it issued and its subsequent substitution as a party defendant in place of Dr. Watson.

Inexplicably, while Plaintiff submitted a tort claim to the United States on April 2, 2009 (the day after Plaintiff's state court lawsuit was filed), and although the United States, through its Department of Health and Human Services, denied that claim on October 2, 2009 (after this matter was remanded to the state court the first time for failure to exhaust requisite administrative remedies), Plaintiff never took any action to sue the United States in the wake of its administrative denial.

As the United States points out, its October 2, 2009 denial letter (Ex. D to the Motion to Dismiss) specifically informed Plaintiff's counsel that, if dissatisfied with its denial of Plaintiff's administrative claim, Plaintiff could "file suit against the United States in the appropriate federal district court within six (6) months from the date of mailing of this determination" pursuant to 28 U.S.C. § 2401(b).

Section 2401(b) provides in pertinent part that "a tort claim against the United States shall be forever barred... unless action is begun within six months after the date of mailing, by certified or registered mail, of notice or final denial of the claim by the agency to which it was presented." Given the October 2, 2009 denial, that meant that any lawsuit here by Plaintiffs against the United States had to be commenced by April 2, 2010. It is undisputed that no such action was filed, with Plaintiff simply taking the position that she could continue to pursue Dr. Watson directly in state court because he was not acting within the course and scope of his employment with the MVHC at the time of her tubal ligation. That argument, however, has already been rejected by this Court.

As the Ninth Circuit recently pointed out in Marley v. United States, 567 F.3d 1030, 1038 (9th Cir. 2009), "the six-month statute of limitations in § 2401(b) is jurisdictional and...failure to file a claim within that time period deprives the federal courts of jurisdiction." The Marley court explained that the waiver of sovereign immunity represented by the FTCA is limited and must accordingly be "strictly observed". Id. at 1034, citing Block v. North Dakota, 461 U.S. 273, 287 (1983).

Plaintiff's failure to institute suit within the time constraints of the FTCA following the Government's rejection of her administrative claim consequently mandates that this matter be dismissed with respect to the United States.


For the foregoing reasons, the Government's Motion to Dismiss (ECF No. 6) is GRANTED. Having properly certified Dr. Thomas Watson as a federal employee acting within the scope of his employment at the time of the tubal ligation giving rise to this lawsuit, and given Plaintiff's failure to properly commence an action within six (6) months following the United States' denial of Plaintiff's administrative claim as required by 28 U.S.C. § 2401(b), any claims against the United States or Dr. Watson as a result of the subject incident are forever barred. The remainder of the case is hereby remanded to the Superior Court of the State of California in and for the County of Shasta for further disposition.

Plaintiff's Motion to Decertify Thomas Watson, M.D., as a Federal Employee (ECF No. 13), as well as Plaintiff's corresponding Motion to Remand (ECF No. 12) are DENIED.


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