577 F. App'x 394
6th Cir.2014Background
- Zanecki, as personal representative, sues under FTCA for his father’s death following a wingspan stent procedure.
- Plaintiff sued Health Alliance Plan of Detroit (HAP), an MA organization, and the United States.
- Plaintiff’s 2012 amended complaint alleged negligent approval of the procedure and failure to warn, plus a conclusory assertion that HAP was an agency or instrumentality of the United States.
- Magistrate judge recommended dismissal for lack of FTCA subject-matter jurisdiction and lack of agency/instrumentality pleading; district court adopted.
- On appeal, Plaintiff challenges only the dismissal of the United States; no direct challenge to HAP’s status as a proper FTCA party is raised.
- The court holds that HAP is not an agency or instrumentality of the United States under the FTCA and affirms the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether HAP is a federal agency or instrumentality for FTCA purposes | Zanecki contends HAP acts as the United States’ agent due to CMS oversight. | The United States argues MA plans like HAP are not federal agencies or instrumentalities under the FTCA. | HAP is not a government agency or instrumentality; FTCA vicarious liability does not apply. |
| Whether Plaintiff adequately pleaded agency/instrumentality status of HAP | Alleges HAP is an instrumentality of the United States. | Allegations insufficient to show day-to-day government control of HAP. | Amended complaint fails to plead government control over HAP’s detailed operations; dismissal proper. |
| Whether Plaintiff waived a direct negligence claim against the United States by appealing | Plaintiff asserts direct negligence by United States remains viable. | Direct-negligence claim was not raised below and is waived on appeal. | Direct-negligence claim waived; not considered. |
Key Cases Cited
- United States v. Orleans, 425 U.S. 807 (1976) (control of day-to-day operations determines FTCA agency status)
- Stocker v. United States, 705 F.3d 225 (6th Cir. 2013) (FTCA sovereign immunity and agency status principles)
- Chase Bank USA, N.A. v. City of Cleveland, 695 F.3d 548 (6th Cir. 2012) (de novo review for facial attacks on jurisdiction)
- United States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.3d 702 (10th Cir. 2006) (MACs; agency status considerations in FTCA context)
- Kuntz v. Lamar Corp., 385 F.3d 1177 (9th Cir. 2004) (federal regulation or funding alone does not make an entity a federal agency)
- Leone v. United States, 910 F.2d 46 (2d Cir. 1990) (designation of certain professionals as government actors not dispositive)
- RenCare, Ltd. v. Humana Health Plan of Texas, Inc., 395 F.3d 555 (5th Cir. 2004) (Part C structure and government risk transfer to MA organizations)
- Schweiker v. McClure, 456 U.S. 188 (1982) (MA program relationships and agency-like functions)
- Edgewater Hosp., Inc. v. Bowen, 857 F.2d 1123 (7th Cir. 1988) (intermediaries as the Secretary’s agents)