Opinion
CIVIL ACTION NO. 02-CV-0253.
June 11, 2003.
MEMORANDUM AND ORDER
Presently before the Court is Defendant United States of America's Motion to Dismiss for lack of subject matter jurisdiction. For the reasons set forth below, upon consideration of Defendant's Motion and Plaintiffs' Response, the Court will deny Defendant's Motion.
BACKGROUND
Plaintiff Camille DeJesus, individually and as Administratrix of the Estates of Alejandro DeJesus and Felicia Lynn DeJesus, and Plaintiff Cheryl Faulk, individually and as Administratrix of the Estates of Michael Brandon Faulk and Aaron Ashanti Faulk bring this claim against the United States of America (the "United States") and the Department of Veteran Affairs (the "Department"), for themselves and the estates of their children, seeking damages for the murder of their children by Alejandro DeJesus, Sr. ("Mr. DeJesus"), on March 23, 1999. (Compl. at ¶ 44).
Mr. DeJesus was admitted to the Veterans Affairs Medical Center ("VAMC"), located in Coatesville Pennsylvania, for medical and psychological assessment and was assigned a case manager, Denise Outzs-Cleveland, BSN, Health Science Specialist on September 16, 1997. (Pls.' Br. at 5; Compl. at ¶¶ 16 18). The VAMC admitted Mr. DeJesus into the domiciliary program for substance abuse. (Pls.' Br. at 5). Prior to being admitted to the VAMC, Mr. DeJesus was a homeless United States Veteran. (Pls.' Br. at 5). At the time of his admission, Mr. DeJesus was estranged from his wife and children. Prior to his admission, the Delaware County Court of Common Pleas, signed a temporary ex-parte protective order against Mr. DeJesus for domestic violence against his wife and children on May 5, 1997. (Pls.' Br. at 6). Mr. DeJesus signed a consent agreement not to abuse his son, Alexander DeJesus, Jr., and the Court of Common Pleas signed the Protection From Abuse order the same day on May 8, 1997. (Pls.' Br. at 6 and Pls.' Ex. B).
The parties did not provide the court with information regarding whether Mr. DeJesus was voluntary or involuntarily admitted.
An undated Psychiatric/Psychological report by the Domiciliary Care Program noted that Mr. DeJesus had a history of Domestic violence and anger control. (Pls.' Br. at 6). In fact, Mr. DeJesus even admitted to his shortcomings. (Pls.' Br. at 5).
On or about January 30, 1998, the VAMC favorably discharged Mr. DeJesus from the domiciliary program, and he was accepted into the Landing Zone II ("LZII") Transitional Housing Program, also located in Coatesville. (Compl. at ¶ 23). Mr. DeJesus subsequently became employed by LZII as an Assistant Food Manager. While residing at the LZII facility, he continued to receive medical care and psychological treatment at the VAMC. He also continued to see his case manager, Mrs. Outzs-Cleveland, as an outpatient. (Compl. at ¶ 24; Pls.' Br. at 5). During the months of February, May, June, August, and November of 1998 and January, February, and March of 1999, Mr. DeJesus received some form of care or evaluation by either Mrs. Outzs-Cleveland or other medical personnel. (Pls.' Br. at 5; Pls.' Ex. E at 2-19, 238-245). Plaintiff Camille DeJesus served Mr. DeJesus divorce papers on February 4, 1999. (Compl. at ¶ 27). Upon being served, Mrs. Outzs-Cleveland noted that Mr. DeJesus was very distraught, and he attempted to contact his estranged wife. (Compl. at ¶ 28).
The LZII program is a privately run transitional residential program for the homeless veterans operated by the Philadelphia Veterans Multi-Service and Education Center. (Def.'s Br. at 2). Patients that have successfully completed their stay at the VAMC hospital are admitted into the LZII program. (Def.'s Ex. 2 at 8). The program helps prepare patients to enter society again as productive citizens. (Def.'s Br. tab 2 at 8). Patients are encouraged to work and begin supporting themselves in order to become independent once again. (Def.'s Ex. 2 at 8).
While at LZII, Mr. DeJesus signed a medical responsibility form acknowledging that LZII was not responsible for his medical well being, and it is his responsibility to seek necessary and required medical treatment for any pre-existing or future medical condition. (Def.'s Br. tab 3 at 13 (Medical Care Responsibility Form)). He also signed a Medical Authorization and Emergency Medical Authorization form, authorizing LZII to arrange for medical treatment or emergency medical treatment for Mr. DeJesus if he cannot do so himself. (Def.'s Br. tab 3 at 8 14).
On the morning of March 22, 1999, Mr. DeJesus and another LZII resident, Bill Queen, got into a verbal confrontation in the kitchen. (Pls.' Ex. E at 244). During the altercation Mr. DeJesus picked up a knife and concealed it behind his back.Id. Another LZII resident, Joe Canzara, who observed the altercation, took the knife from Mr. DeJesus, and he wrote up an incident report and reported it to the staff of LZII. Id. The LZII staff and Mrs. Outzs-Cleveland met with Mr. DeJesus around 1:40 p.m. regarding the knife incident. Id. Sandy Miller, the LZII Site Coordinator, Mrs. Outzs-Cleveland, Marsha Four, the Program Director of LZII, and Bruce Newell, Mr. Queen's therapist, decided to involuntarily discharge Mr. DeJesus from the LZII program for "creating a physical threat with a weapon." (Pls.' Ex. O at 2; Pls.' Br. at 8; Ex. N).
In Mrs. Outzs-Cleveland's notes on March 22, 1999, she noted that "This therapist was called over to LZII today to helping a problem with this veteran Mr. DeJesus." (Pls.' Ex. At 244).
Mr. DeJesus was encouraged by his therapist, Mrs. Outzs-Cleveland, to accompany her for an emergency psychiatric evaluation, which she offered to him twice, but he refused. (Pls.' Ex. E at 244). Instead, Mr. DeJesus stated that he was going to leave LZII and walk to New Hampshire or Maine. Id. Mrs. Outzs-Cleveland noted that he could not understand the seriousness of his actions. Id. She further noted that she was concerned by the fact that Mr. DeJesus refused further treatment, since he had a history of wanting to harm himself and others, most notably his wife who recently served him divorce papers and was in a custody battle over their children. Id.
Later that day, the Veteran Administration ("VA") police were notified of the incident and of Mr. DeJesus' discharge. (Pls.' Ex. 0). On March 23, 1999, approximately 18 hours after being discharged, Mr. DeJesus shot and killed his two children, Alejandro DeJesus, Jr. and Felicia Lynne DeJesus. (Compl. at ¶ 35). He also shot and killed two neighbors, Aaron Ashanti Faulk and Michael Brandon Faulk, and himself. (Compl. at ¶ 35).
Now, before this Court is the Defendant's Motion to dismiss Plaintiffs' complaint for lack of federal subject matter jurisdiction based on the independent contractor exception under the Federal Tort Claims Act 28 U.S.C.A. § 2671.
LEGAL STANDARD
A rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction can take two forms: it can attack a complaint on its face, known as a "facial attack," or it can attack the existence of subject matter jurisdiction, a "factual attack."Krumins v. Atkinson, No. CIV.A.95-5737, 1996 WL 432477, at * 1 (E.D. Pa. July 22,1996) (quoting Mortensen v. First Fed. Say. Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)); see also Young v. Francis, 820 F. Supp. 940, 943 (E.D. Pa. 1993).
Furthermore, the United States Court of Appeals for the Third Circuit in Mortensen concluded that:
Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction — its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, 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.Mortensen, 549 F.2d at 891. Moreover, the burden of proving that subject matter jurisdiction exits, lies with the plaintiff.Id. In this case, Defendant United States has made a factual attack, since it is challenging the Court's subject matter jurisdiction over plaintiffs' claims.
DISCUSSION
The issue before this Court is whether the independent contractor exception of the Federal Tort Claims Act ("FTCA") precludes this Court from exercising subject matter jurisdiction over the United States.
Generally, the United States cannot be sued unless it has waived its sovereign immunity. U.S. v. Orleans, 425 U.S. 807, 814 (1976). However, the FTCA does provide for a limited waiver of sovereign immunity and several exceptions to the limited waiver. 28 U.S.C. § 1346(b); Orleans, 425 U.S. at 814. The government is liable for the negligent or wrongful act of any employee acting within scope of his office or employment.Id. Defendant contends that this case falls within the "independent contractor exception." The independent contractor exception means "that the United States has not waived its sovereign immunity — and cannot be sued — if the claim alleges negligent or wrongful action by an independent contractor."Ryan v. USA et al., 233 F. Supp.2d 668,676 (N.J. 2002) (citing Orleans, 425 U.S. at 814).
The independent contractor is one of the exceptions to the limited waiver.
A plaintiff may sue the United States "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b). Moreover an "employee of the government" includes "officers and employees of any federal agency," but excludes "any contractor with the United States." U.S. v. Orleans, 425 U.S. at 814 (citing 28 U.S.C. § 2761).
Whether a person is an independent contractor or an employee is determined under federal law. Logue v. U.S., 412 U.S. 521, 528 (1973). In order to distinguish an independent contractor from a government employee, the dispositive element is whether the government controlled "the detailed physical performance of the contractor." Orleans, 425 U.S. at 814. The relevant question to ask is whether "the day-to-day operations of the individual are supervised by the Federal Government."Orleans, 425 U.S. at 815; Logue, 412 U.S. at 530. However, broad supervisory control or potential to exercise detailed control, does not convert a contractor into an agent.Gibson v. U.S., 567 F.2d 1237, 1242 (3d Cir. 1977).
In fact, the FTCA is to be strictly construed and all ambiguities are resolved in favor of the sovereign. United States v. Nordic Village, Inc. 503 U.S. 30, 33 (1992).
The Third Circuit addressed the independent contractor exception in Norman v. U.S., 111 F.3d 356, 357 (3d Cir. 1997), it held that a plaintiff injured by slipping and falling on federal property cannot sue the government under the FTCA. Since the federal government did not control the day to day operations of the cleaning crew responsible for maintaining the property, the government could not be sued under the FTCA. Id. Similarly, the Third Circuit in Gibson held that the government was not liable for the injuries that the plaintiff received because the government did not have day to day control over the contractor running the job corps center. Gibson, 567 F.2d at 1242-1243.
In the present case, the government argues that it is not liable for the deaths of Mr. DeJesus, his children, and Cheryl Faulk's children under the FTCA because the independent contractor exception applies. (Def.'s Br. at 2). The government also argues that it is not liable because Mr. DeJesus was a homeless man who lived at and was employed by LZII and no longer received medical care and attention from the VAMC when the murders occurred. (Def.'s Br. at 2).
The defendant has omitted several crucial facts in its brief in support of its motion to dismiss. Defendant claims that Mr. DeJesus was no longer a patient at the VAMC, while residing at the LZII program. However, had the defendant properly investigated the case and reviewed its own evidence it would have found that Mr. DeJesus received care and treatment from the VAMC, while a resident at the LZII program. In fact, 18 hours before the murders, Mr. DeJesus met with his therapist, Mrs. Outzs-Cleveland, and discussed whether he should receive psychiatric treatment.
The government argues that the LZII program is an independent contractor, and LZII has assumed all responsibility and liability for any claims arising from its operation because it is a privately run residential program for homeless veterans operated by the Philadelphia Veterans Multi-Service and Education Center ("PVMSEC"). (Def.'s Br. at 2). As a private entity, LZII has no legally recognizable affiliation with the Veteran's Administration ("VA"). (Def.'s Br. at 2). Furthermore as a private entity, the employees of LZII are not federal employees but employees of the PVMSEC, and as such, their negligence cannot implicate the Unites States. (Def.'s Br. at 7). The government argues that it was the employees and/or agents of the LZII program that decided to involuntarily discharge Mr. Dejesus, and it was the LZII program that failed to provide the appropriate psychological treatment or intervention.
Plaintiffs assert that the VAMC at Coatesville, through its employee Dr. Outzs-Cleveland (Mr. DeJesus' therapist) is liable for gross negligence and recklessness. (Pls. Br. at 15). Plaintiffs claim that an employee of the defendant the United States, Mrs. Outzs-Cleveland, failed to render appropriate psychiatric care that could have prevented the deaths of the children and the DeJesus suicide. (Compl. at ¶¶ 6 25). Plaintiffs contend that defendant's employee, Mrs. Outzs-Cleveland, knew that Mr. DeJesus was a threat to himself and others, and the defendant had a duty to inform Mr. DeJesus' family of his discharge. (Compl. at ¶¶ 33 34). Plaintiffs argue that as an employee of the United States, Mrs. Outzs-Cleveland was negligent in treating Mr. DeJesus, and the defendant is therefore liable under the Federal Tort Claims Act ("FTCA"). (Pls.' Br. at 16).
Plaintiffs state that they do not bring suit against LZII, since liability is based on the failure of the VAMC employees to commit Mr. DeJesus, when they knew of his violent behavior. (Pls. Br. at 21). Thus according the plaintiffs the appropriate defendants here are the United States Government, the VAMC and its agents and employees. Id.
It should be noted that Plaintiffs made several omissions. When Plaintiffs responded to defendant's brief, they failed to address the issue of subject matter jurisdiction that defendant claimed was lacking. Rather, Plaintiff assumed jurisdiction and proceeded to argue that negligence was the theory under which they were suing. Plaintiffs merely responded to defendants claim by cutting and pasting several pages of the original claim into the argument, which provided no support to show jurisdiction existed.
In this case, according to the government's own evidence, Mr. DeJesus continued to receive medical and psychological treatment at the VAMC as an outpatient from Mrs. Outzs-Cleveland and other medical professionals. The government produced a document showing that the day of the knife incident, Mrs. Outzs-Cleveland offered Mr. DeJesus a psychological evaluation. The government also produced evidence demonstrating that the LZII program worked in conjunction with the VAMC to provide veterans a place to receive medical attention. LZII referred veterans to the VAMC if the veterans sought or required further medical or psychological treatment.
Def.'s Ex. Tab 5 at 2.
Def.'s Ex. Tab 5 at 2.
Def.'s Ex. Tab 2 at 8 13.
The Court finds that the independent contractor exception does not apply in this case. The LZII program was not responsible for providing Mr. DeJesus medical and psychological care. The LZII program is a transitional living program, providing an adjustment period for veterans to transition from the VAMC back to society. Any medical or psychological attention that veterans required was referred to the VAMC. It was the VAMC that was responsible for the medical and psychological treatment of Mr. DeJesus. At all times, Mrs. Outzs-Cleveland was an employee of the VAMC, a United States agency, and not an employee of LZII. Thus, the Court finds that Mrs Outzs-Cleveland's day to day activities were supervised by the federal government. Therefore, this Court finds that it does have subject matter jurisdiction over this claim and will deny the Defendant's motion to dismiss.
Def.'s Ex. Tab 2 at 13.
CONCLUSION
Based on the foregoing reasons, the Court will deny Government's Motion to Dismiss for lack of subject matter jurisdiction. An appropriate order has been issued.