claims act waives sovereign immunity for the tort actions of federal employees it does not waive sovereign immunity for the acts of independent contractors for almost two decades this court has applied c independent contractor cases and that test was derived from two supreme court cases and from section two twenty of the second restatement of agency and what do you do with the creel case what do i do  i say that the creel case control should have controlled the disposition of this case because it is on all fours factually the district court distinguished it on four grounds which we would say should not have been dispositive those four grounds were that the attorney the the physician in korea who was a an orthopedic surgeon just like the orthopedic surgeon in this case that he contracted in kriol directly with the v a but in fact this court said in the link it's decision that whether or not the physician contracts directly with the government doesn't matter that it's the same whether that physician contracts directly or is hired through intermediary like a staffing company or in the case of peacock through the university of texas at dallas in that case so that should not have weighed in favor the second reason given by the district court was that the individual physician in creole agreed to personally identify the government but in fact in this case the united states had the the only contract the united states had was with the staffing agency and the government actually did require that the staffing company had to provide professional liability insurance the only reason that the at that time unidentified contract physician was not also required to  maintain professional liability insurance because the staffing company was already doing that there was no need to have duplicated coverage the third reason given was that the individual physician in korea was able to hire staff that's a function of the fact that the in this case the prime contractor was the staffing company re not your argument as i understand it boils down to great if i'm wrong all worlds down to whether there was any exercise of control over a doctor's medical judgment that's exactly right your honor in fact the supreme court said you look at whether the government retain control over the detailed physical performance and in this case it's proof is equal performance of those medical services the exercise not simply the services but the exercise of medical judgment the diagnosis and treatment and because then in this case the contract and indeed i believe in every contract that this court has looked at involving a contract physician there has always been language that said that the government does not retain control of the medical professional aspects of the services rendered so that was in this contract the contract that the v a had with the staffing company it was also in the contract in creole and i believe it was in the contra in all four contracts every case this court has decided that was published so creel versus united states peacock versus united states link united states and broussard versus united states i am not aware of any case in any court of appeals in which the contract included that language and nonetheless the contract position was found to be a federal employee and the plaintiff doesn't address any of that the plaintiff does not address the creel decision except to mention it in the standard of review the district court tried to distinguish it on those three grounds i listed and also on one more ground which was that the government had actually exercise control over things like the the hours of work in the day that surgery would be held and where the surgery would be located but that's not the exercise of medical judgment those are cool referral administrative details that's the way the fourth circuit described it in would and they are not part of the exercise of the control over medical judgment so here it's not just it's not just a question of control there was no control by the by the government of the exercise of medical judgment but there were the other factors in the test and we ran through all of them in our opening brief just as this court ran through them in creedal and our point is the balance in this case is exactly the same as it was in creel this there were a couple of things that militated in favor of looking at dr hoffman as an employee but the vast majority weighed in favor finding this person to be an independent contractor so we should have reached the same result in the district court did not that's the legal error we would like this court to reverse if the if the court had it was pacific questions on the application of this court's ten factor test i'd be happy to address them but otherwise i can briefly onto the arguments that the plaintiffs have raised about communities of creative nonviolence versus free time what the the plaintiffs have not argued hoffman was an independent contractor that was a federal employee under this court standard to ten factor test instead they're arguing that ace different standards should apply and that is the standard from taken from community for creative nonviolence versus read that is the focus of their brief so that case is a copyright act case it is not a federal tort claims act case there's some overlap it's a thirteen factor test instead of a ten factor test and there's some overlap with this court's test but it incorporates at least five factors that are specifically addressing copyright concerns the supreme court has never applied to retest in any f t c action and neither has this court in fact the plaintiff doesn't the plaintiffs don't give any reason why this court should suddenly switch its test but as we point out in our reply brief even under that test dr hofmann is an independent contractor now i'd be happy to run through some of the factors in that test if the court would like we did run through them in our reply brief then a couple of the factors are basically not really relevant in this case such as the whether the hiring party has the right to assign additional projects that isn't that has it wasn't really relevant here there was no argument made that the v a tried to assign additional work outside the orthopedic surgery specialty to dr hoffman and then there were a couple of the additional factors which are not generally relevant they actually weigh in favor of finding independent contractor status such as the provision of employee benefits in the tax treatment of the hired part because just as in the case the v a did not provide any employee benefits to dr hoffman it had no relationship with him its only relationship was with the staffing company and the contract with the staffing company it's expressly said this individual does not is not to be treated as a v a employee and more importantly we the government are not responsible for paying his taking care of his so security payments or his tax withholding he doesn't get vacation or sick leave those are all they make weight arguments but but but but they don't really matter do they it's really the control test as you've already and others control as this court has said is a critical factor is not the only factor but as you say is a critical factor and on that point here it's clear the government did not exercise control over his judgment that means that there was never someone overseeing when he did no one was in the room when he decided how to treat mr magically no one was second guessing him no one had to sign off on his way wrote prescriptions when dr hoffman made decisions about whether or not surgery was warranted no one was in the that's true here you do have an intermediary and the government did not have any direct relationship but when the government has employed someone under its statutory authority the entire relationship is changed because suddenly the government is giving this person a pension is the person is entitled to civil service protections he's getting vacation and sick leave and with tax withholding and social security benefits and all of those things are coming to him because he is a federal employee staffing company hired him as an independent contractor rather than their full employee so they pushed some of those responsibilities onto his record roofline yes your honor independent contractor with  yes your honor the second the contract between the staffing company and dr hoffman is in our excerpt of record and it says you are being employed as an independent contractor you i'm talking about what actually did they give them a w two or can that is not in the record but the contract says that the contract says on behalf of the staffing company you have to handle your own withholding you have to handle your own so security payments presumably that occurred again it's not in the record but that was the arrangement they had and there was certainly nothing said by the plaintiffs that contradicted that so he was not even know i didn't i didn't pick up the on last few remarks with clarity but they seem to go to who kept the bar going to vote was the promising united states they would pay withholding payroll tax etc and insure him oh they did because the contract they had signed with him when he became their independent contractor c a g and dr often indicated that they would know in no circumstance worker's comp withholding etc and furthermore when you look at the insurance policy which is in there in the personnel file of dr hoffman you know there's insurance but the insurance is for rain a do it does mention at the end of it that the that they are insured for the acts or omissions giving rise to liability on on the part of dr hoffman but think about it that's not a policy insuring dr hoffman in an earlier version version of a brave or something district court i made the statement that my client was or in dr hofman were equally screwed by the situation the but anyway back to your other point made by not that simple oh i'm not and then i'm challenge for not having briefed it well the vast majority of judge trails approval with modifications of magistrate kirk's recommendation is only modifications or to remove any doubts kirk left by saying that this is a close case judge trail but anyway but i wasn't going to criticize the court in real interlined in reviewing it i picked up something i hadn't noted before they are they stated that with regard to by he was allowed to practice unsupervised the traditional areas of activity in medicine judgment decisions very clear on and it follows the nine hundred fifty eight second restatement of agency and the newer commentary under the third restatement of agency which came hundred ninety six didn't change the text of section to twenty but on the commentaries are added to said you did you don't hold it against them you just don't way it is happily or can you have to have been in a test because of the attenuated aspect of control that doesn't mean it's a negative when you come up with a scorecard that came up with forty three things indicating independent contractor status and what i'm was the lack of control doesn't work that way that's not philosophically logical restatement to in those areas such as to give way to the other considerations as to the other ripon of the ask other aspects of employment but they counted against him as c of independent contractor status it's not it's it's a little bit more difficult a concept than that proposed by opposing counsel it's not heavily weighted and it frankly doesn't weigh one way or the other and i don't remember which case but it should be oh i'm in such situations that this is this deemed irrelevant to the control aspect during the performance of one's duties also the the remark about or there being some rather a leap of faith or there ought to be some recognition of the fact that this court is affirmed every decision holding somebody on an independent contractor when their contracts  say they will reserve and the i owe you lies in the pendant decision making in judgement when it comes to purely medical issues well if they're not going to be an employee or legally and honestly accepted as an employee then yeah you better say that because it's absurd them didn't do an employment contract with the hospital  unanimous knowledge that it is a violation of ethical standards for a physician to yield to any degree of his independence there's no difference what so ever on so they put it in writing if they want to have a sham contract indicating that this guy is somehow not an employee so i'd stick with in fact i assumed when filing this suit given what my client had told me the insignia oh and dr are often v a medical center alexandria office in there in the hospital to meet with even talk about stuff my experience up to this point has been that e r doctors are by and large independent contractors because they're given their own little bailey bailey w within the law campus within the institution and that's always been the case so i was some sort somewhat stunned when i belatedly figured or was informed the way we've discovered he's an independent contractor but i knew better than to argue oh and stop all or prejudice because it requires ill will presenting somebody as a government employee requires ill will on its most intentionally present the guy in the misrepresented fashion to create situations like this and the other thing of course it has always been my thought my goodness with the g i bill of rights isn't this a non delegate built duty of the united states but then i read your love written by justice rehnquist and got a little confused oh in reading it and i sent it to friend of mine a and by the way i think load is on my side it says that there be no control said it was be reasonable to get interested in the theory that traditional government work if completely contracted out that maintains government liability and there's that's no way to escape it but the or the decision in love said lack of control same as in orleans same as in oh i'm low on no element of control whatsoever in th that was his point i don't think he was making it possible or point but i had in fact the united states through opposing counsel is the first that recognize the existence of the need for a modified contro but they always say we don't get to the point where we have to apply such a thing but he's argued in one case in front of this  circuit it was said on just that but i think it is the time it has to be faced a judge dredd always a very intelligent guy and wrote a fifty fifty four page decision on the merits he wrote the poem to kill it our decision on jurisdiction and of course it's a noble matter but it's also manifest error when it comes to his appreciation of the facts on the which if to affix given legal principles on the record said it is more productive when a doctor asked to be able or he's in violation of these ethical babies has to be able to exercise his quiet private thoughtful judgement in matters of diagnosis options treatment and then it is more productive therefore to look at the other aspects of the employment relationship it's been specifically adopted him silly jack and in the other circuits they've just continually come up with the statement we don't have to get into establishing the outer limits or of this modified control standard and i don't think this court does either because i believe that the factual appreciation from law and the evidence is that this guy hears and is real stated as much an employee as he can be be but if it has to be applied or defined then this is the case to do it this is what is it it's a guy comes in the eight o'clock till four o'clock every day on he's given a paid vacation crazy on mercer and creel was given no vacation and paid vacation is something i've never heard of an independent contractor scenario and look at his deposition well it sounds like you're already employed dr hawking is civilized centrally was reviewed haggling over the money on he had applied for oh and tenure ship as an employee before the act of now practice occurred months january of two thousand and eight occurred then he took the job ok i'll look into the record you'll see that he originally they agreed originally in january to three hundred fifty thousand a year with rare doctor out of the picture the final figure in july two thousand and eight was three hundred fifty thousand dollars a year for which he was hired did the statement or by opposing counsel quote page twelve of the reply brief the only relevant question for purposes of this appeal is whether the agency controlled say no sir employee and he keeps on going and somebody gets hurt the owner is sued he's still liable under responding out superior or because the captain had an obligation duty in his independent judgment in command to proceed without third party input from a far off i think the control issue with the doctor well we've covered it i mean to to to make connection a hard between these independent contractor things recognizing that doctors are additional independence and i'd like to address just a couple points that my posting council made and one question that your honor asked about whether the hospital actually employed anyone directly yes it did and it attempted to employ an orthopedic surgeon directly advertise for the position and as is unfortunately the case sometimes in rural areas it was very difficult to get anyone to move there that is why the secretary resorted to using a physician staffing company because the physician staffing company does the legwork they find they locate nationally a candidate they screen them they make sure their credentials are in order and they often will pay to move the person to the location and that's what happened in this case they located dr hoffman who had not responded to the government's solicitation so he was then hired as an independent contractor but my understanding is that this particular v a has quite a number of full time employees it's often the case that the secretary has to make a decision in particular slots about whether or not to hire someone totally different between work and super doctor off just the fact that he was created that's right that's how you to put a contract he's supposed to work your honor but the actual employee relationship and believe me dr hoffman would have experienced this you know he didn't get contra to what the plaintiff's counsel said he did not get paid vacations from the government he did not get sick leave if you look at the contract he did not get those things he did not have his withholding he did not have all the benefits of being a federal employee he had nose civil service protection he got no pension from the government so no matter what dr hoffman may have experienced personally about well nothing changed for me he knows that that's not the case because he also knows that when he was hired he came on full time at the end of july after the events in this case when he was hired full time by the government under statutory authority his income went out he got paid directly by the government which had never happened before and he started getting three  hundred fifty thousand a year before that when he was an independent contractor the government paid four hundred fifty nine thousand dollars a year to that's what it worked out it was an hourly rate that that's what the contract said to the staffing company and dr hoffman said in his deposition he got less than half of that so he knew there was a difference between being an independent contractor and being a full government employee and of the contractor  i believe he was an independent contractor just from my looking at the contract the texas contract seems to refer to him as an independent contractor meaning an independent contractor as to that relationship between the staffing company and the doctor so if i can address a couple of other questions that came up when the plaintiff's counsel says that the governments of the only issue in this case is control in our reply brief i believe that was in reference to plaintiff's argument that that they staffing company did not itself exercise any control over doctor hospital that's because the staffing company c e o was dr hofman was an independent contractor so therefore they did not exercise may control over him either and our point was the question is not who exercised control or why didn't the staffing company exercise control the question is did the government exercise control over his medical judgment in the answer is no so that's a more full description it's not exactly as the plaintiff has has described the plaintiffs mentioned silage jack and salomon as we point out in our brief those are so those are title seven actually said that it wasn't clear that anybody really uses a strict control test that's why you have those other factors and why you do consider them in the individual case so we were not