57 F.4th 616
8th Cir.2023Background:
- Plaintiff Lonnie Two Eagle was struck by a vehicle driven by Chad Sully, a cook employed at Rosebud Comprehensive Healthcare Facility (an IHS-operated hospital), suffering severe injuries; the district court found the accident occurred off hospital premises.
- Sully had a recent history of seizures in 2019; Dr. Matthew Smith (providing telemedicine through Avera) initially told Sully not to drive for six months, then later cleared him to drive earlier during a July 23 telemedicine visit.
- Sully was driving his personal vehicle returning to work during a lunch break when he had a seizure and struck Two Eagle.
- Two Eagle sued the United States under the FTCA, alleging: (Count I) Sully’s negligence; (Count II) supervisor William Wonnenberg’s negligent supervision; and (Count III) Dr. Smith’s negligent medical clearance.
- The district court granted the United States’ Rule 12(b)(1) motion, dismissing for lack of subject-matter jurisdiction: it held Sully was not acting within the scope of employment; the discretionary-function exception barred the supervisory claim; and Dr. Smith was an independent contractor.
- The Eighth Circuit affirmed, rejecting Two Eagle’s challenges to each jurisdictional ruling.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sully was acting within scope of employment (FTCA waiver) | Sully was on Hospital Drive near the hospital, was paid, and was returning to work so employer should be liable | Sully was on a personal lunch break, driving his own vehicle for personal errands; no employer control or benefit | Held: Not within scope — South Dakota "going and coming" rule applies; accident involved ordinary travel risks and occurred off premises |
| Whether scope-of-employment is a jurisdictional issue decidable on Rule 12(b)(1) | Scope is entwined with negligence merits and requires trial | Scope is a threshold jurisdictional element under FTCA and may be resolved on 12(b)(1) | Held: Scope is jurisdictional; district court properly resolved it on 12(b)(1) |
| Whether supervisor's failure to restrict Sully is actionable (discretionary-function exception) | Supervisor knew of seizures and should have prevented Sully from driving | Supervisor's decisions about monitoring and discipline are discretionary personnel decisions implicating policy | Held: Discretionary-function exception applies; claim barred and jurisdiction lacking |
| Whether Dr. Smith is a federal employee or independent contractor | Privileging and funding provisions show Dr. Smith was treated as a federal employee for FTCA purposes | Telemedicine services were provided via Avera under contracts showing Avera/Dr. Smith were independent contractors; no day-to-day federal control | Held: Dr. Smith was an independent contractor; FTCA waiver does not cover his alleged torts, so jurisdiction lacking |
Key Cases Cited
- Osborn v. United States, 918 F.2d 724 (8th Cir. 1990) (standards for factual attack on jurisdiction under Rule 12(b)(1)).
- Croyle v. United States, 908 F.3d 377 (8th Cir. 2018) (plaintiff bears burden to establish subject-matter jurisdiction).
- Magee v. United States, 9 F.4th 675 (8th Cir. 2021) (scope-of-employment is a threshold FTCA jurisdictional element).
- Brownback v. King, 141 S. Ct. 740 (U.S. 2021) (characterizing "acting within the scope of employment" under FTCA as a jurisdictional element).
- Tammen v. Tronvold, 965 N.W.2d 161 (S.D. 2021) (South Dakota "going and coming" rule and premises exception analysis).
- Buckler v. United States, 919 F.3d 1038 (8th Cir. 2019) (discretionary-function two-step analysis).
- Herden v. United States, 726 F.3d 1042 (8th Cir. 2013) (discretionary-function framework).
- Logue v. United States, 412 U.S. 521 (U.S. 1973) (day-to-day control test for distinguishing federal employees from contractors).
- United States v. Orleans, 425 U.S. 807 (U.S. 1976) (control over detailed physical performance critical to FTCA employee determination).
- Knudsen v. United States, 254 F.3d 747 (8th Cir. 2001) (FTCA waiver does not extend to independent contractors).
- Bernie v. United States, 712 F.2d 1271 (8th Cir. 1983) (contract doctors holding service contracts with the government are not federal employees).