United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE.
the Court is a Motion to Dismiss (Rec. Doc.
14) filed by Defendant, The United States of America
(“the Government”). Plaintiff, Monique Riley,
opposes the motion (Rec. Doc. 15) and Defendant has replied.
(Rec. Doc. 18). The motion, set for submission on September
19, 2018, is before the Court on the briefs without oral
argument. Having considered the motion and memoranda of
counsel, the record, and the applicable law, the Court finds
that Defendant's Motion to Dismiss (Rec. Doc.
14) is GRANTED for the reasons set
September 18, 2015, Plaintiff visited the St. John Veterans
Affairs Outpatient Clinic (“VA”) for a check-up.
(Rec. Doc. 1, Complaint ¶ 13). Plaintiff had recently
undergone a left ankle reconstruction requiring a left ankle
and foot cast and crutches. (Id., ¶ 14). During
her visit, Plaintiff had to provide a urine sample for a
routine analysis. (Id., ¶ 16). A VA lab tech
indicated that the custodian had just mopped the nearby
restroom and suggested that Plaintiff use an alternative
restroom. (Id.). The custodian interjected that the
floor in the nearby restroom was in fact dry and ready to
use. (Id. ¶ 17). Plaintiff used the nearby
restroom, and after washing her hands, her crutch slipped and
she fell. (Id. ¶ 21). Once on the floor,
Plaintiff noticed there were water streaks on the floor
allegedly from the mop. (Id. ¶ 22).
required by 28 U.S.C. § 2671, as a prerequisite to
filing suit in federal court under the FTCA, Plaintiff filed
an administrative claim on March 17, 2017, which was denied
by the VA on August 31, 2017. Thereafter, Plaintiff filed the
instant lawsuit pursuant to the Federal Tort Claims Act
(“FTCA”) 28 U.S.C.A. §§ 1346(b); 2671,
et seq. (Id., ¶ 5). Plaintiff alleges that the
employees of the Government were acting within the scope of
their employment with the VA; thus, the Government is liable
under the doctrine of respondeat superior under
federal and Louisiana law. (Id., ¶ 2).
Government files the instant motion to dismiss the case
pursuant to the Federal Rules of Civil Procedure 12(b)(1).
Plaintiff previously identified a VA employee Harold Breaux
(“Breaux”) as the custodian, but the Government
asserts that discovery reveals that Breaux was on leave the
day of the incident. (Rec. Doc. 14-1, p. 2). The Government
states that Lionel Campbell (“Campbell”), a
veteran participating in the VA's Compensated Work
Therapy program (“CWT”), was the individual that
assured Plaintiff the floor in the restroom was dry and ready
for use. (Id.). The Government argues that veterans
participating in the CWT are not considered employees of the
United States. (Id.). Since Campbell is not an
employee of the United States, the FTCA waiver of sovereign
immunity does not apply. (Id.). The Government
secondly asserts that Campbell is not a borrowed servant or
presumed employee of the United States because the CWT
program is a discretionary function, and discretionary
functions are specifically barred by the FTCA.
courts are courts of limited jurisdiction and may only hear
those cases authorized by the United States Constitution and
federal statutes. Coury v. Prot, 85 F.3d 244, 248
(5th Cir.1996). Federal Rule of Civil Procedure 12(b)(1)
provides that a party may assert that a court lacks subject
matter jurisdiction. Upon the determination that the court
lacks subject-matter jurisdiction, the court must dismiss the
action. Fed.R.Civ.P. 12(h)(3).
case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case.” Home
Builders Ass'n of Miss., Inc. v. City of Madison,
Miss., 143 F.3d 1006, 1010 (5th Cir.1998). “Courts
may dismiss for lack of subject matter jurisdiction on any
one of three different bases: (1) the complaint alone; (2)
the complaint supplemented by undisputed facts in the record;
or (3) the complaint supplemented by undisputed facts plus
the court's resolution of disputed facts.”
Clark v. Tarrant Cnty., 798 F.2d 736, 741 (5th
Cir.1986). The burden of proof on a 12(b)(1) motion is on the
party asserting jurisdiction over the claim. Ramming v.
United States, 281 F.3d 158 (5th Cir.2001).
Law and Analysis
instant matter, the Government asserts that the FTCA waives
sovereign immunity for claims that arise out of the negligent
acts of federal employees. (Rec. Doc. 14, p. 2). The
Government states that this Court lacks subject matter
jurisdiction because the tortfeasor is not considered an
employee of the United States. (Id.) The Government
asserts that discovery identified Campbell as the tortfeasor
(it was originally alleged by Plaintiff that Harold Breaux
was the tortfeasor). (Rec. Doc. 14, p. 2). Campbell works at
the VA through participation in the Compensated Work Therapy
program (“CWT”). The Government cites 38 U.S.C.
§ 1718 to support its position that as a participant of
the CWT, Campbell is expressly not an employee of the United
States. (Id.). 38 U.S.C. § 1718 states,
In providing rehabilitative services under this chapter, the
Secretary, upon the recommendation of the Under Secretary for
Health, may use the services of patients and members in
Department health care facilities for therapeutic and
rehabilitative purposes. Such patients and members shall not
under these circumstances be held or considered as employees
of the United States for any purpose.
counters that she does not concede to the fact that the
custodian at issue is Campbell and not Breaux. (Rec. Doc. 15,
p. 2). In the event the custodian is in fact Campbell,
Plaintiff argues that the Government is vicariously liable
for Campbell's negligence. (Id.). Plaintiff
cites 28 U.S.C. § 1718 to assert that the FTCA's
definition of “employee of the government”
extends to include individuals such as Campbell.
(Id., p. 3). Plaintiff argues that questions of