*

Honorable Ann Aldrich, Senior U.S. District Judge for the

Northern District of Ohio, sitting by designation. 

 1The parties consented to proceed to trial before United

States Magistrate Judge Charles R. Wilson. Subsequently, the

case was reassigned to United States Magistrate Judge Tom B.

McCoun III. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-3006.

Luis E. GARCIA, M.D., Plaintiff-Appellant,

v.

COPENHAVER, BELL & ASSOCIATES, M.D.'S, P.A., Defendant-Third

Party Plaintiff-Appellee,

St. Paul Fire & Marine Insurance Company, Third Party Defendant.

Feb. 3, 1997.

Appeal from the United States District Court for the Middle

District of Florida. (No. 94-387-CIV-T-17A), Thomas B. McCoun, III,

Judge.

Before EDMONDSON, Circuit Judge, FAY, Senior Circuit Judge, and

ALDRICH*

, Senior District Judge.

FAY, Senior Circuit Judge:

Appellant, Luis E. Garcia ("Garcia"), filed a complaint

against appellee, Copenhaver, Bell & Associates, M.D.'s, P.A.

("Copenhaver/Bell"), alleging Copenhaver/Bell discriminated against

him on the basis of age in violation of the Age Discrimination in

Employment Act ("ADEA"), 29 U.S.C. §§ 621-634 (1994). At the

conclusion of a jury trial (but before the case was submitted to

the jury), the Magistrate Judge,1

 after hearing the evidence

presented from both sides, made the factual determination that

Copenhaver/Bell was not an "employer" as defined by ADEA and

dismissed the case for lack of subject matter jurisdiction pursuant
 2

Specifically, on appeal, Garcia contends "the district

court erred in directing a verdict for Copenhaver/Bell...." We

assume, because the Magistrate Judge issued its decision at the

end of the trial and because a motion for directed verdict was

pending, Garcia believes the Magistrate Judge entered a directed

verdict in favor of Copenhaver/Bell. Accordingly, Garcia

contends the standard of review in directed verdict cases should

apply and the Magistrate Judge should be reversed. However, for

reasons discussed later in this opinion, Garcia's argument is

procedurally flawed. The Magistrate Judge did not enter a

directed verdict, but rather ruled on Copenhaver/Bell's "notices"

suggesting lack of subject matter jurisdiction filed pursuant to

Rule 12(h)(3) of the Federal Rules of Civil Procedure. 

to Fed.R.Civ.P. 12(b)(1). Moreover, given the facts of this case,

in determining that Copenhaver/Bell was not an "employer," the

Magistrate Judge also indirectly decided that Garcia was not an

"employee," but an independent contractor. Garcia appeals the

Magistrate Judge's ruling dismissing the case for lack of subject

matter jurisdiction.2 Partly based on the procedural confusion

(see supra note 2), the parties' briefs do not fully address the

true issue before the Court.

The issue that emerges on appeal is whether the factual

determination that defendant is or is not an "employer" is an

element of the cause of action in an ADEA case. For purposes of a

motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), Eleventh

Circuit precedent seems to direct the judge, and not a jury, to

decide whether Copenhaver/Bell is an "employer." The importance of

determining whether an "employer" is an element of the claim, is

that it will determine the procedural posture of the Magistrate

Judge's ruling. If we should find that being an "employer" is an

element of an ADEA case, then well established precedent requires

the district court, in ruling on a motion to dismiss, "to find that

jurisdiction exists and deal with the objection as a direct attack
on the merits of the plaintiff's case." Simanonok v. Simanonok,

787 F.2d 1517, 1520 (11th Cir.1986) (quoting Williamson v. Tucker,

645 F.2d 404, 415 (5th Cir.1981), cert. denied, 454 U.S. 897, 102

S.Ct. 396, 70 L.Ed.2d 212 (1981)). The appropriate standard of

review would then be the one applicable to Fed.R.Civ.P. 12(b)(6) or

Fed.R.Civ.P. 56 motions, "both of which place greater restrictions

on the district court's discretion." Williamson, 645 F.2d at 415.

Because in the instant case we hold that whether or not the

defendant is an "employer" as defined in the Act goes to the merits

of an ADEA case, we believe the Magistrate Judge erred in resolving

questions of fact pursuant to Rule 12(b)(1). In finding that being

an "employer" is an element of an ADEA claim, we rely upon

analogous cases within this Circuit, persuasive cases from other

circuits that have found being an "employee" to be an element of

the cause of action, and the unusual factual scenario presented by

this case. In accordance with this holding, the proper procedure

for a district court is to assume jurisdiction and utilize the

standards associated with a 12(b)(6) motion or Rule 56 motion for

summary judgment. Applying these standards to the case at hand,

the motion to dismiss should have been denied on the merits and the

jury allowed to decide the issue of whether Copenhaver/Bell was an

"employer" and consequently whether Garcia was an "employee."

Accordingly, for the reasons discussed below, we reverse the

Magistrate Judge's order dismissing the case for lack of subject

matter jurisdiction and remand the case for a jury trial.

I. BACKGROUND

Garcia is a physician in emergency medicine. In 1991, Garcia
submitted an application to Copenhaver/Bell, an exclusive provider

of emergency room doctors to nine hospitals in Florida.

Copenhaver/Bell matches physicians to hospitals after considering

the physicians' temperaments and the volume of patients and their

acuity. On August 26, 1991, Garcia and Copenhaver/Bell entered

into a "Medical Service Sub-Contract" ("the Contract") pursuant to

which Garcia would provide emergency room services to Mease

Hospital in Dunedin, Florida. The Contract was for one year with

automatic renewal unless terminated by either party.

Paragraph seven of the Contract provides in pertinent part:

[Garcia] shall perform his duties and obligations hereunder as

an independent contractor and not as an employee.

Accordingly, [Copenhaver/Bell] shall not exercise control, or

have the right to control, [Garcia] as to the specific means

or manner in which [Garcia] discharges his duties hereunder

and [Garcia] shall perform his duties at all times in

accordance with the exercise of his independent medical

judgment.... Nothing herein shall be construed to create a

partnership, joint venture, agency or other relationship

between the parties other than an independent contractor

relationship. (Emphasis added).

The Contract contained other limitations on the relationship

between the parties. For instance, the Contract required Garcia to

maintain various certifications and licenses; obligated Garcia and

Copenhaver/Bell respectively to provide at least ninety or sixty

days notice of termination; authorized liquidated damages against

Garcia in the event of his premature termination of the contract;

based Garcia's compensation on an hourly rate; and permitted

Garcia to determine his own schedule in conjunction with the other

physicians at the hospital. Over thirty other physicians entered

into similar contracts with Copenhaver/Bell to perform emergency

work at various Florida facilities.
 3

The two "notices" are virtually the same. 

Garcia was subjected to a six-month probationary period once

he began working at Mease Hospital. On July 14, 1992, Dr. Solomon,

assistant director of the emergency department at Mease Hospital,

informed Garcia that he had successfully completed his probationary

term. On that same day, however, Mr. David Mitchell, an

administrator for Copenhaver/Bell, informed Garcia that

Copenhaver/Bell was forced to replace him due to "hospital

politics." Pursuant to the Contract's termination clause, Garcia

continued to practice at Mease Hospital for an additional sixty

days.

On March 8, 1994, Garcia filed a complaint against

Copenhaver/Bell alleging age discrimination under ADEA. Following

some discovery, Copenhaver/Bell filed a motion for summary judgment

contending there was no disputed issue of material fact and Garcia,

as a matter of law, was an independent contractor. See Daughtrey

v. Honeywell, Inc., 3 F.3d 1488, 1495 n. 13 (11th Cir.1993) ("The

ADEA does not provide relief for discrimination against an

independent contractor."). The Magistrate Judge entered an order

denying Copenhaver/Bell's motion for summary judgment. In denying

the motion, the Magistrate Judge concluded there were questions of

fact as to whether Garcia was an "employee" or an independent

contractor.

Prior to the Magistrate Judge's order denying the motion for

summary judgment, Copenhaver/Bell filed a "Notice of Suggestion of

Lack of Subject Matter Jurisdiction" and then an "Amended Notice of

Suggestion of Lack of Subject Matter Jurisdiction."3 The argument
advanced in these two pleadings was that Copenhaver/Bell did not

employ twenty or more "employees," and therefore was not an

"employer" as defined in ADEA. The court would then lack subject

matter jurisdiction. The Magistrate Judge did not rule on these

notices before commencement of the trial.

On the first day of trial, the Magistrate Judge discussed

preliminary matters with the parties. One of the issues raised was

whether the court had subject matter jurisdiction over the

proceedings. Counsel for Copenhaver/Bell stated, "the issue of

subject matter jurisdiction. If you want, I can do the motion

right now. I might have to dismiss for lack of jurisdiction. I

understood during a status conference, you would discuss that

during the course of the trial." To which the Magistrate Judge

responded: "Correct. At the appropriate time, we will move on the

motions taken under advisement. With regards to that [subject

matter jurisdiction], what amount of evidence deals with that issue

and does not, for instance, relate to Dr. Garcia's claim,...."

Later on, the Magistrate Judge further commented, "[t]he reason it

occurs to me if we are going to get into a series of witnesses that

will take—purely on that issue [subject matter jurisdiction], it

may be necessary to do that outside the hearing of the jury. But

it may not be necessary because it seems to me to a certain extent

I think there's an overlap." Garcia proceeded to present evidence

in front of the jury.

At the conclusion of Garcia's case, Copenhaver/Bell stated it

had two motions to make. Copenhaver/Bell announced it would

reassert its motion to dismiss for lack of subject matter
 4

The parties agreed that if the physicians are considered

independent contractors, Copenhaver/Bell does not employ twenty

or more employees and is not an "employer." 

jurisdiction and also move for a directed verdict pursuant to

Fed.R.Civ.P. 50(a). The motion for directed verdict was premised

on Proud v. Stone, 945 F.2d 796 (4th Cir.1991). In Proud, the

Fourth Circuit affirmed the district court's dismissal of the case

holding that the plaintiff failed to establish pretext. Id. In

other words, Copenhaver/Bell's motion for directed verdict was

based on Garcia's failure to establish pretext, and not subject

matter jurisdiction. The Magistrate Judge did not rule on the two

motions, but stated he would "make a ruling before the matter is

presented to the jury." Copenhaver/Bell then presented its case.

Once it concluded its case in chief, Copenhaver/Bell reasserted the

motion for directed verdict and motion to dismiss on the same

grounds raised previously.

Prior to submitting the case to the jury, the Magistrate Judge

issued a ruling from the bench dismissing the case for lack of

subject matter jurisdiction. The Magistrate Judge determined that

the approximately thirty emergency physicians having contracts with

Copenhaver/Bell were independent contractors and therefore could

not be included in the total number of "employees" employed by

Copenhaver/Bell. If the emergency physicians were not "employees,"

Copenhaver/Bell was not an "employer" since it did not employ the

requisite twenty or more employees required by ADEA.4 The court,

therefore reasoned that it lacked subject matter jurisdiction and

dismissed the case.

Following the trial, the Magistrate Judge issued a written
order on Copenhaver/Bell's two notice pleadings suggesting lack of

subject matter jurisdiction. In the order, the court stated,

"having proceeded forward with the jury trial in this cause and

having taken evidence on the issue of subject matter jurisdiction,

as framed by the Defendant, and ... for reasons more fully stated

on the trial record, Thursday, June 29, 1995, the court finds that

the Defendant does not employ the necessary twenty (20) or more

employees and thus, the court is without subject matter

jurisdiction under the Age Discrimination [in] Employment Act (29

U.S.C. § 621 et seq.)."

II. DIRECTED VERDICT OR MOTION TO DISMISS?

Before determining the applicable standard the Magistrate

Judge should have employed, we must decide the basis upon which the

Magistrate Judge ruled; i.e., did he treat the notices as motions

to dismiss under 12(b)(1), after hearing the evidence, or did he

grant a motion for directed verdict. On appeal, Garcia contends

the Magistrate Judge granted a directed verdict.

From the record before us and after reading the Magistrate

Judge's order disposing of the "notices," it appears that the

procedural posture set forth in the Magistrate Judge's order is

more accurately described as a ruling on a motion to dismiss,

instead of on a motion for directed verdict. It seems the

Magistrate Judge, during the course of the jury trial,

simultaneously conducted an evidentiary hearing on the issue of

subject matter jurisdiction. After hearing both sides present

evidence on the issue, the Magistrate Judge concluded it was

without jurisdiction to hear the case. In addition,
Copenhaver/Bell's motion for directed verdict was based on Garcia's

absence of establishing pretext, and not on the district court's

lack of jurisdiction. Neither in his ruling from the bench nor in

his written order disposing of the notices does the Magistrate

Judge mention pretext. Rather, the substance of his two related

rulings was subject matter jurisdiction. The language contained in

the written order is clear. The Magistrate Judge dismissed the

case for lack of subject matter jurisdiction. Thus, in essence,

the Magistrate Judge treated Copenhaver/Bell's "notices" as motions

to dismiss for lack of subject matter jurisdiction pursuant to Rule

12(b)(1) of the Federal Rules of Civil Procedure. As such, we will

evaluate the case in light of the standards governing Fed.R.Civ.P.

12(b)(1) motions.

III. STANDARD FOR RULE 12(B)(1)

MOTION TO DISMISS

 We begin by observing that it is extremely difficult to

dismiss a claim for lack of subject matter jurisdiction. Simanonok

v. Simanonok, 787 F.2d 1517, 1519 (11th Cir.1986). Attacks on

subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) come in two

forms: "facial attacks" and "factual attacks." Lawrence v.

Dunbar, 919 F.2d 1525, 1528-29 (11th Cir.1990). Facial attacks on

the complaint "require[ ] the court merely to look and see if [the]

plaintiff has sufficiently alleged a basis of subject matter

jurisdiction, and the allegations in his complaint are taken as

true for the purposes of the motion." Lawrence v. Dunbar, 919 F.2d

1525, 1529 (11th Cir.1990) (quoting Menchaca v. Chrysler Credit

Corp., 613 F.2d 507, 511 (5th Cir.1980), cert. denied, 449 U.S.
953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980)) (citing Mortensen v.

First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977)). "

"Factual attacks', on the other hand, challenge "the existence of

subject matter jurisdiction in fact, irrespective of the pleadings,

and matters outside the pleadings, such as testimony and

affidavits, are considered.' " Id.

 The present case involves a factual attack, and not a facial

attack. On a factual attack of subject matter jurisdiction, a

court's power to make findings of facts and to weigh the evidence

depends on whether the factual attack on jurisdiction also

implicates the merits of plaintiff's cause of action. Lawrence,

919 F.2d at 1529. If the facts necessary to sustain jurisdiction

do not implicate the merits of plaintiff's cause of action, then:

[T]he trial court may proceed as it never could under

12(b)(6) or Fed.R.Civ.P. 56. 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.

Lawrence, 919 F.2d at 1529 (quoting Mortensen v. First Fed. Sav. &

Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977)).

 On the other hand, if an attack on subject matter

jurisdiction also implicates an element of the cause of action,

then:

[T]he proper course of action for the district court ...

is to find that jurisdiction exists and deal with the

objection as a direct attack on the merits of the plaintiff's

case.... Judicial economy is best promoted when the existence

of a federal right is directly reached and, where no claim is

found to exist, the case is dismissed on the merits. This

refusal to treat indirect attacks on the merits as Rule
12(b)(1) motions provides, moreover, a greater level of

protection to the plaintiff who in truth is facing a challenge

to the validity of his claim: the defendant is forced to

proceed under Rule 12(b)(6) ... or Rule 56 ... both of which

place great restrictions on the district court's

discretion.... [A]s a general rule a claim cannot be

dismissed for lack of subject matter jurisdiction because of

the absence of a federal cause of action. The exceptions to

this rule are narrowly drawn, and are intended to allow

jurisdictional dismissals only in those cases where the

federal claim is clearly immaterial or insubstantial.

Williamson v. Tucker, 645 F.2d 404, 415-16 (5th Cir.1981), cert.

denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). With

these principles in mind, we will next address whether being an

"employer" implicates an element of a cause of action under ADEA.

In our case, the Magistrate Judge believing that question did not

implicate the merits, weighed the evidence and concluded it was

without subject matter jurisdiction to entertain the case. Should

we find that being an "employer" does not implicate the elements,

then the Magistrate Judge was correct in weighing the evidence and

determining that it was without jurisdiction to hear the case

pursuant to Rule 12(b)(1). If, however, the question of whether or

not the defendant is an "employer" as defined in the Act does

implicate the elements of the plaintiff's claim, then the

Magistrate Judge is forced to proceed under Rule 12(b)(6) or Rule

56, unless Garcia's case is "clearly immaterial or insubstantial."

Id.

IV. ELEMENT OF AN ADEA CLAIM?

A. "Employer"

 Copenhaver/Bell asserts that it is not an "employer" as that

term is defined by ADEA, because it does not employ "twenty or more

employees." Rather, Copenhaver/Bell contends that the majority of
 5

The closest case we were able to locate addressing the

issue is Fike v. Gold Kist, Inc., 514 F.Supp. 722 (N.D.Ala.)

aff'd, 664 F.2d 295 (11th Cir.1981). The Eleventh Circuit's

affirmance is referenced in "Decisions without Published

Opinions." Eleventh Circuit Rule 36-2 entitled "Unpublished

Opinions" states in part that "[u]npublished opinions are not

considered binding, precedent." Accordingly, we are not bound by

Fike.

In Fike, female-plaintiffs filed suit against

defendants alleging violations of Title VII when they were

terminated because of their pregnancies. Fike, 514 F.Supp.

at 723. A defendant moved to dismiss the complaints

pursuant to Rule 12(b)(1), arguing that it did not meet the

statutory definition of "employer" because it did not employ

fifteen or more employees. Id. The district court, after

making findings of fact, granted defendant's motion to

dismiss based on lack of subject matter jurisdiction. Id.

at 723-28. Based on this case, it appears the Eleventh

Circuit affirmed a district court's order that found whether

or not a defendant is an "employer" in a Title VII case is

an issue that can be factually resolved by a judge pursuant

to Rule 12(b)(1). However, we also note that at the time of

this decision Title VII cases were tried non-jury. 

its "employees" are independent contractors. Copenhaver/Bell

further argues that determining if it is an "employer" is solely a

jurisdictional question (and not an element of the claim) that

should be decided by the judge pursuant to the standards connected

with a motion under Fed.R.Civ.P. 12(b)(1). In support of this

position, during oral argument before the Court and in supplemental

filings, counsel for Copenhaver/Bell cited several non-binding

cases. Neither party directed this Court to binding precedent

addressing whether establishing the defendant as an "employer" is

a necessary element to prove an ADEA claim. The issue seems to be

one of first impression in this Circuit.5

The Ninth Circuit has stated that "the question of

jurisdiction and the merits of an action will be considered

intertwined where ... "a statute provides the basis for both the
 6

The parties do not dispute that ADEA's "employer" and

"employee" provide a basis for subject matter jurisdiction. 

Indeed, we agree with the parties that "employer" and "employee"

provide a basis for subject matter jurisdiction. For example, if

from the face of plaintiff's complaint it is apparent that

defendant-employer does not employ more than twenty employees,

then a court could dismiss an ADEA claim for lack of subject

matter jurisdiction, as ADEA only applies to employers who employ

"twenty or more employees." Accordingly, because the parties

agree "employer" is jurisdictional, we only need to consider if

ADEA's "employer" and "employee" also provide a basis for

plaintiff's substantive claim for relief. 

subject matter jurisdiction of the federal court and the

plaintiff's substantive claim for relief.' " Sun Valley Gasoline,

Inc. v. Ernst Enterprises, Inc., 711 F.2d 138, 139-40 (9th

Cir.1983) (quoting Timberlane Lumber Co. v. Bank of America, 549

F.2d 597, 602 (9th Cir.1976)). Thus, initially we will turn to

ADEA to see if the statute provides the basis for both subject

matter jurisdiction and the plaintiff's substantive claim for

relief.6

Congress passed ADEA in 1967 to protect older workers against

discrimination in the workplace. E.E.O.C. v. Chrysler Corp., 759

F.2d 1523, 1524 (11th Cir.1985). More specifically, the portion of

the statute that provides the substantive relief states in part:

(a) Employer practices

It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge any

individual or otherwise discriminate against any individual

with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's age;

29 U.S.C. § 623(a)(1). In its definitions' section, ADEA defines

"employer" in part as "a person engaged in an industry affecting

commerce who has twenty or more employees for each working day in

each of twenty or more calendar weeks in the current or preceding
calendar year:...." 29 U.S.C. § 630(b), and "employee" as "an

individual employed by any employer...." 29 U.S.C. § 630(f). The

section provides no further guidance as to the scope of the

"employee" term. Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1495

(11th Cir.1993).

 From the plain language of the statute, it appears the

elements of an ADEA claim under § 623(a)(1) can be summarized as

follow, a plaintiff must prove: 1) an employer, 2) failed or

refused to hire or to discharge, 3) any individual, 4) with respect

to his compensation, terms, conditions, or privileges of

employment, 5) because of such individual's age. Stated simply, it

seems a plaintiff can only recover if he is able to prove an

"employer" discriminated against him/her on the basis of age. In

order to determine if a defendant qualifies as an "employer" and,

consequently, whether ADEA will even apply, we must turn to ADEA's

definitions' section.

In other words, it seems the section of ADEA that provides the

substantive relief, § 623, is intertwined and dependent on the

section of ADEA that defines the scope of the act, § 630. An

analysis of the two sections is circular as the two sections are

dependent on one another. For a plaintiff to recover under the

act, plaintiff must prove as part of his claim that an "employer"

discriminated against him/her. To prove that a defendant is an

"employer," a plaintiff must satisfy the definition of "employer"

set forth in § 630(b).

In reaching this analysis, we draw comparisons to securities

cases, in which this Court has "specifically held that the
definition of the term "security' in the context of a suit based on

the federal securities laws may reach the merits of the case and

thereby limit the court's discretion to dismiss for lack of subject

matter jurisdiction." Williamson v. Tucker, 645 F.2d 404, 416 (5th

Cir.1981), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d

212 (1981); See also Bell v. Health-Mor, Inc., 549 F.2d 342 (5th

Cir.1977); Hilgeman v. National Ins. Co. of America, 547 F.2d 298

(5th Cir.1977).

For example, in Williamson, plaintiffs, investors in "joint

venture interests," filed suit pursuant to the Securities Act of

1933 and the Securities Exchange Act of 1934 ("the Acts"), alleging

that the "joint venture interests" were securities within the

meaning of the Acts. The district court dismissed the case for

lack of subject matter jurisdiction finding that the "joint venture

interests" were not securities. The Fifth Circuit reversed. In

doing so, it stated, "[i]n this case it is clear that the

jurisdictional issue reaches the merits of the plaintiffs' case;

if the joint venture interests and notes are not securities, there

is not only no federal jurisdiction to hear the case but also no

federal cause of action on the stated facts." Williamson, 645 F.2d

at 416. Since the Court found the issues intertwined, the district

court's dismissal for lack of subject matter jurisdiction was

proper only if plaintiffs' claim was immaterial or insubstantial.

Id.

In order to determine if the "joint venture interests" were

securities covered by the Acts, the parties and the district court

looked to the Acts' definitions of "security" and the Supreme
 7

See also Marine Coatings of Alabama, Inc. v. United States,

792 F.2d 1565, 1566-67 (11th Cir.1986), rev'd on other grounds,

932 F.2d 1370 (11th Cir.1991) (Admiralty case where this Circuit

found that the government's jurisdictional attack under the

statute was also an attack on the merits.). 

Court's analysis of securities in Securities & Exchange Commission

v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244

(1946). Similarly, in this case, in order to determine if

"employers" and "employees" are covered by ADEA, we look to ADEA's

definitions of the terms and case law interpreting the terms. As

the Court found in Williamson, "if [Copenhaver/Bell is not an

"employer,'] there is not only no federal jurisdiction to hear the

case but also no federal cause of action on the stated facts."

Williamson, 645 F.2d at 416.

Although Williamson is helpful in arriving at the conclusion

that whether or not one is an "employer" is an element of an ADEA

claim, we are not sure our discussion can end here. As stated

earlier, the significance in determining whether being an

"employer" is an element of an ADEA claim is deciding which

standard a judge should apply—Rule 12(b)(1) or Rule 12(b)(6).

Under Rule 12(b)(6), a plaintiff is more likely to withstand a

motion to dismiss and the case is more likely to be decided on the

merits by the fact finder. Thus, the ultimate conclusion reached

by our holding that whether or not one is an "employer" is an

element of an ADEA claim, is the belief that the jury, rather than

the judge, should decide the disputed question. In support of this

belief, we draw analogies from Title VII cases and criminal cases

within the Eleventh Circuit.7

In interpreting ADEA's definition of "employer," Title VII
 8

The Civil Rights Act of 1991, which became effective

November 21, 1991, liberalized Title VII by creating a right to

trial by jury. Goodgame v. American Cast Iron Pipe Co., 75 F.3d

1516, 1518 (11th Cir.), reh'g denied and reh'g en banc denied, 86

F.3d 1172 (1996). 

cases are helpful. In addition, most of the cases interpreting the

definition of "employer" are found in Title VII cases. The only

notable difference between the two statutes' definitions of

"employer" is the number of "employees" each statute requires.

Title VII requires fifteen or more employees, while ADEA requires

twenty or more. At a minimum, Title VII cases interpreting the

definition of "employer" are helpful. As the First Circuit has

stated:

As the substantive provisions of the ADEA were derived in

haeca verba from Title VII, (citation omitted), as was the

statutory definition of "employer," (which relates to the

scope of the law's substantive provisions), we may look to the

constructions of the term in the Title VII (and thus the NLRA)

context for guidance. (citations omitted).

Rivas v. Federacion de Asociaciones Pecuarias de Puerto Rico, 929

F.2d 814, 820 n. 15 (1st Cir.1991). Because there is no real

difference (other than numerical) between the definitions in the

two statutes, we turn to Title VII cases for guidance.

In Virgo v. Riviera Beach Associates, Ltd, 30 F.3d 1350 (11th

Cir.1994), plaintiff filed suit against several defendants alleging

sexual harassment in violation of Title VII and several pendent

state law claims. At the time the alleged harassment took place,

Title VII did not permit trials by jury.8 Accordingly, the judge

acted as the fact finder and found that one of the defendants was

subject to Title VII liability, despite its contention it did not

jointly employ fifteen or more employees with another defendant.
The Eleventh Circuit agreed with the district court's findings of

fact and affirmed.

A similar issue has arisen in criminal cases in which this

Court has held that where the jurisdictional element is a material

element of the crime, the jurisdictional issue should be decided by

the jury and not the judge. United States v. Medina, 90 F.3d 459,

463-64 (11th Cir.1996); United States v. Ayarza-Garcia, 819 F.2d

1043, 1048 (11th Cir.), cert. denied, 484 U.S. 969, 108 S.Ct. 465,

98 L.Ed.2d 404 (1987). For example in Medina, defendants allege

the district court erred by deciding as a matter of law that its

vessel was subject to the jurisdiction of the United States. On

appeal, defendants argued that jurisdiction under 46 U.S.C. §

1903(a) was also an element of the offense and should be decided by

a jury. The Eleventh Circuit agreed and vacated the district

court's order. The Court held that where the jurisdictional

requirement is also a substantive element of the crime, the

jurisdictional issue should be determined at trial by the fact

finder. Medina, 90 F.3d at 463-64.

We believe these cases are persuasive in holding that the

question of whether or not a defendant is an "employer" is a

substantive element of an ADEA claim and intertwined with the

question of jurisdiction. That being the case, the resolution of

the question must be made by the fact finder deciding the merits of

the claim.

Finally, the most convincing argument that the question of

"employer" status is an element of an ADEA claim is the factual

situation of the instant case, where both the "employer" and
 9

Given the particular facts in this case, the "employer" and

"employee" issues are intertwined. This is so, because ADEA's

definitions of "employer" and "employee" overlap. ADEA's

definition of "employer" contains the following provision "twenty

or more employees." (emphasis added). Thus, in some instances,

in order to determine whether an "employer" employs "twenty or

more employees," one must look at ADEA's definition of

"employee." Conversely, the issues will not be intertwined in a

case where it is undisputed that defendant-employer employs

"twenty or more employees," thus satisfying the jurisdictional

"employer" requirement under ADEA.

For instance, in a case where there is a dispute as to

whether a certain individual plaintiff, hired by the

defendant-employer is an "employee" rather than an

independent contractor and thus able to assert a claim under

ADEA, but no dispute as to the status of the

defendant-employer, the issues will not be intertwined. See

Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1495 n. 13 (11th

Cir.1993) ("The ADEA does not provide relief for

discrimination against an independent contractor."). 

"employee" issues are synonymous. In order to determine whether

Copenhaver/Bell is an "employer," pursuant to ADEA, the Magistrate

Judge also indirectly decided that Garcia was not an "employee" but

an independent contractor. When the Magistrate Judge ruled the

other subcontracted emergency physicians were independent

contractors and Copenhaver/Bell therefore did not employ "twenty or

more employees," the Magistrate Judge also implicitly found that

Garcia was not an "employee," but an independent contractor.9

Should we determine that being an "employee" in this case is an

element of an ADEA claim, the Magistrate Judge would seem to be

precluded from resolving questions of fact on the "employer" issue.

Stated differently, if the Magistrate Judge were precluded

from conducting an evidentiary hearing to determine that Garcia is

an "employee," then it would seem that the Magistrate Judge also

would be equally precluded from concluding that Copenhaver/Bell is

an "employer." To allow the Magistrate Judge to decide the
"employer" issue, is to allow the judge (and not the jury) to also

indirectly decide the "employee" issue. Of course, this argument

is only applicable if we determine that "employee" is an element of

an ADEA claim.

B. "Employee"

We begin by noting that other circuits cases have found that

whether a plaintiff is an "employee" is both jurisdictional and an

element of a claim. The Tenth Circuit has found that whether a

plaintiff qualifies as an "employee" under ADEA is both a

jurisdictional question and an element of the claim. Wheeler v.

Hurdman, 825 F.2d 257, 259 (10th Cir.), cert. denied, 484 U.S. 986,

108 S.Ct. 503, 98 L.Ed.2d 501 (1987) ("We find that the

determination of whether [plaintiff] qualifies as an employee under

the federal discrimination statutes is both a jurisdictional

question and an aspect of the substantive claim in her

discrimination action.").

Once again, Title VII cases are helpful in making the

determination of whether an "employee" is an element of a cause of

action. Both Title VII and ADEA's definitions of "employee" are

virtually identical. In a Title VII case, the Fifth Circuit found

that the determination of "employee" status was intertwined with

the merits of the Title VII claim. Clark v. Tarrant County, Texas,

798 F.2d 736, 742 (5th Cir.), reh'g denied, 802 F.2d 455 (1986).

In Clark, plaintiffs, female probation officers, sued the

county and the probation department alleging sex discrimination in

pay and promotion. The probation department moved to dismiss for

lack of subject matter jurisdiction, claiming plaintiffs were
 10Title VII's definition of "employee" does not include

individuals who are the personal staff of a person elected to

public office. See 42 U.S.C. § 2000e(f). ADEA contains the same

exemption. 29 U.S.C. § 630(f). 

personal staff of county officials and thus lacked standing.10 The

district court agreed and dismissed the case for lack of subject

matter jurisdiction. The Fifth Circuit reversed the dismissal.

The Court of Appeals found that the application of the personal

staff exemption and the question of employee status provided the

basis for both jurisdiction and a cause of action under Title VII

and thus must be resolved by the fact finder for the merits

disposition.

In a case somewhat similar to Clark, the Eleventh Circuit

found that an assistant state attorney position was not an

"employee" covered by ADEA and dismissed the case. E.E.O.C. v.

Reno, 758 F.2d 581 (11th Cir.1985). In Reno, plaintiff filed suit

against defendant Janet Reno, the then state attorney for Dade

County, alleging age discrimination under ADEA when Reno refused to

hire him. Defendant, relying on Florida state statutes, moved to

dismiss the complaint arguing plaintiff was exempted from the Act's

coverage by virtue of the personal staff exemption provided in

ADEA's definition of "employee." The district court dismissed the

case, concluding "that defendant Reno does not employ any

"employees' within the meaning of the Act, and that therefore the

court lacked jurisdiction to hear the case." Id. at 583. The

Eleventh Circuit affirmed the district court's dismissal of the

case.

The basis of the district court's dismissal was a motion to
 11Whether or not a district court will utilize the 12(b)(6)

standard or Rule 56 standard will depend on whether the district

court considered matters outside the pleadings. Under 12(b)(6),

whether a plaintiff failed to state a claim upon which relief can

be granted must be ascertained from the face of the complaint. 

Once the court considers matters outside the complaint, the

12(b)(6) motion to dismiss converts into a motion for summary

judgment. Fed.R.Civ.P. 12(b)(6). In this case, the Magistrate

Judge considered matters outside the pleadings, converting the

motion to dismiss into one for summary judgment.

Additionally, before a district court may convert a

motion to dismiss into a motion for summary judgment, it

must notify the parties and allow the parties ten days to

submit any relevant evidence and arguments in support or

opposition to the merits. Marine Coatings of Alabama, Inc.

v. United States, 792 F.2d 1565, 1568 (11th Cir.1986), rev'd

on other grounds, 932 F.2d 1370 (11th Cir.1991). However,

as the panel noted in Marine Coatings, this Circuit has

recognized an exception to the ten days notice requirement

when the "parties are aware of the court's intent to

consider matters outside the record and have presented all

the materials and arguments they would have if proper notice

dismiss. Id. at 583 n. 6. More specifically, in the language

cited from the district court's order, it appears the dismissal was

based on lack of subject matter jurisdiction pursuant to Rule

12(b)(1). This 12(b)(1) dismissal is a "facial" dismissal. That

is, the district judge did not resolve questions of fact, but ruled

as a matter of law, that plaintiff was not an "employee" covered by

ADEA.

V. ANALYSIS

 Having determined that the motion to dismiss for lack of

subject matter jurisdiction involved a "factual" attack and the

determination of whether Copenhaver/Bell is an "employer" under

ADEA provides the basis for both subject matter jurisdiction and

the substantive claim for relief, the summary judgment standard

must be applied, unless plaintiff's claim was clearly immaterial or

insubstantial.11
had been given...." Id. (citing Property Management &

Investments, Inc. v. Lewis, 752 F.2d 599, 605 (11th

Cir.1985)).

In this case, it cannot be seriously contested that

despite a lack of notice, the parties did not make all

available arguments and submit all the evidence they would

have if they had received proper notice. 

 12See e.g., Dole v. Elliott Travel & Tours Inc., 942 F.2d

962, 965 (6th Cir.1991). 

 We do not believe, and Copenhaver/Bell does not contend, that

Garcia's claim is clearly immaterial, made solely for the purpose

of establishing jurisdiction, nor is it insubstantial or frivolous.

Therefore, if genuine issues of material fact exist, the motion to

dismiss should have been denied and the question presented to the

jury. The Magistrate Judge had decided that genuine issues of

material facts did exist when it denied Copenhaver/Bell's motion

for summary judgment. Thus, it was improper for the Magistrate

Judge to grant the motion to dismiss.

From the record before the Court, it appears there is a

genuine issue of fact as to whether Garcia is an independent

contractor or an "employee" and conversely then whether

Copenhaver/Bell is an "employer." Courts have adopted three tests

in distinguishing between an "employee" and an independent

contractor: (1) the common-law agency test first set forth in

Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109

S.Ct. 2166, 104 L.Ed.2d 811 (1989) and reaffirmed by the Supreme

Court in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 112

S.Ct. 1344, 117 L.Ed.2d 581 (1992); (2) an economic realities

test;12 and (3) a combination of the agency and economic realities

tests ("hybrid test"). Cobb v. Sun Papers, Inc., 673 F.2d 337,
340-41 (11th Cir.), cert. denied, 459 U.S. 874, 103 S.Ct. 163, 74

L.Ed.2d 135 (1982). This Court, in non-ADEA cases, has relied on

both the hybrid and agency tests. Id. (Title VII case utilizing

hybrid test.); Daughtrey v. Honeywell, Inc., 3 F.3d 1488 (11th

Cir.1993) (Under ERISA claim, Court utilized common-law agency

test.).

In Daughtrey v. Honeywell, Inc., 3 F.3d 1488 (11th Cir.1993)

this Court found it unnecessary to decide which test to apply to a

claim under ADEA, because the Court found the central issue to both

the hybrid test and the agency test is the "hiring party's right to

control the manner and means by which the work is accomplished."

Daughtrey, 3 F.3d at 1495-96. Similarly, for purposes of the ADEA

case before us, we do not need to decide which test to employ.

Under either test, there are disputed facts concerning the amount

of control Copenhaver/Bell exerted over Garcia. For example,

Garcia testified that the medical directors oversaw the medical

care he provided, scheduled his shifts and paid him on an hourly

basis. Construing these facts in favor of Garcia, as we must under

Rule 56, we cannot rule as a matter of law that Garcia is an

independent contractor. Therefore, the proper ruling is to deny

Copenhaver/Bell's motion to dismiss for lack of subject matter

jurisdiction and allow the jury to decide if Garcia is an

"employee" and if Copenhaver/Bell is an "employer."

VI. CONCLUSION

For the foregoing reasons, we hold on the facts of this case

that whether or not the defendant is an "employer" is an element of

an ADEA claim. In dismissing for lack of jurisdiction, the
Magistrate Judge incorrectly resolved questions of fact in a

12(b)(1) motion. The proper procedure would have been to utilize

the standards associated with a 12(b)(6) motion or Rule 56 motion

for summary judgment. Applying the summary judgment standard to

the case before us, we REVERSE the Magistrate Judge's order

dismissing Garcia's complaint for lack of subject matter

jurisdiction and REMAND the case for a jury trial.