UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-50566

KIM J. LINKOUS, Individually and as next friend of Joshua

Linkous, Kirsten Linkous, and Justin Linkous, minor children,

Plaintiff-Appellee,

VERSUS

UNITED STATES OF AMERICA,

Defendant-Appellant,

LYDIA SIMS, M.D.,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

June 9, 1998

Before KING, BARKSDALE, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

The Plaintiffs, Kim J. Linkous, individually and on behalf of

her minor children, sued the Defendants, the United States and

Lydia Sims, M.D., under the Federal Tort Claims Act (“FTCA”), 28

U.S.C. § 1346(b), for injuries received during medical treatment at

Darnell Army Community Hospital (“DACH”). The United States

appeals from an order of the district court certifying that Dr.

Sims was an employee of the United States operating in the course2

and scope of her office or employment when treating Linkous. After

reviewing the briefs and record on appeal, we reverse the decision

of the district court.

I.

The Defendant, Dr. Lydia Sims, contracted with DACH to provide

obstetrics/gynecological (“ob/gyn”) services to beneficiaries of

the Civilian Health and Medical Program of the Uniformed Services

(“CHAMPUS”), a statutory health benefits prog ram that provides

medical and dental benefits for dependants of active-duty military

service members and military retirees. See 10 U.S.C. §§ 1076-79.

Fed eral law authorizes the Secretary of Defense to enter into

partnership agreements which provide “for the sharing of resources

between facilities of the uniformed services and facilities of a

civilian health care provider.” 10 U.S.C. § 1096. Pursuant to

this statutory authorization, the Department of Defense promulgated

regulations permitting the type of agreement at issue here, whereby

private practitioners provide health care services within military

facilities. See 32 C.F.R. § 199.1(p).

The terms of the partnership agreemen t between DACH and Dr.

Sims were set forth in a Memorandum of Understanding (“MOU”). The

MOU described Dr. Sims as a “participating health care provider”

and indicated that Dr. Sims was to be compensated on a fee-forservice basis. Because Dr. Sims used DACH facilities, she received

seventy percent of the rate paid to private practitioners who3

provide CHAMPUS health care services outside DACH. Dr. Sims did

not determine the fees charged for her services. The MOU required

Dr. Sims to provide full professional liability insurance covering

acts or omissions committed by Dr. Sims or her support personnel,

who are not covered by th e Gonzalez Act, 10 U.S.C. § 1089. The

Gonzalez Act renders FTCA remedies exclusive with respect to torts

committed by military health care personnel. The MOU also required

Dr. Sims to obtain insurance for the purpose of indemnifying the

United States for any liability resulting from her exercise of

clinical privileges at DACH. The MOU acknowledged the government’s

liability for the acts of its “employees” but indicated that DACH

was not liable for the acts of “participating health care

providers.” Although Dr. Sims had access to support personnel and

facilities at DACH, she hired her own nurse-chaperone to assist her

with patients. In contrast, military physicians use only military

personnel or Red Cross volunteers as nurse-chaperones. Dr. Sims,

however, used DACH personnel to schedule her appointments, accepted

all referrals from DACH practitioners, and only refer red her

patients to other DACH practitioners.

The MOU further provided that Dr. Sims was required to adhere

to all hospital bylaws and Army regulations to the same extent as

Army health care providers. For example, Dr. Sims was required to

adhere to the policy of obtaining informed consent at least thirty

days prior to performing a tubal ligation. Dr. Sims, however, was

not subject to other supervisory controls imposed on military

health care personnel. Dr. Silver, the former Chief of the4

Dep artment of Obstetrics and Gynecology at DACH, stated that he

lacked authority to assign Dr. Sims a schedule, require Dr. Sims to

attend morning meetings, or conduct routine performance evaluations

of Dr. Sims. Additionally, the MOU required Dr. Sims to undergo a

credentia ling procedure, similar to the type utilized at private

hospitals, in order to obtain privileges at DACH. While Dr. Sims

had no admitting privileges at any other hospital and did not

maintain an office or see patients outside her practice at DACH,

the ter ms of the MOU did not prohibit Dr. Sims from practicing

outside DACH. Finally, as a prerequisite to receiving CHAMPUS feefor-service p ayments, Dr. Sims certified that she was not an

employee of the United States on the CHAMPUS application.

As a military dependent, the Plaintiff, Kim Linkous, sought

gynecological services from DACH and was referred to Dr. Sims.

While performing a laparoscopic tubal ligation on Linkous, the

plaintiff alleges that Dr. Sims acted negligently by l acerating

Linkous’s right common iliac artery, thereby causing sign ificant

and continuing injury. Linkous brought suit on behalf of herself

and her minor children, seeking recovery for her injuries under the

FTCA, against Dr. Sims and the United States. The United States

moved for dismissal, contending that Dr. Sims was not an employee

of the government. The Plaintiffs and Dr. Sims opposed the motion

to dismiss, and Dr. Sims asked the district court to certify that

she was an employee of the United States acting within the scope of

her emplo yment and to substitute the United States as defendant

pursuant to 28 U.S.C. § 2679(d)(3). The district court denied the5

government’s motion to dismiss, certified Dr. Sims as an employee

of the United States acting within the scope of employment, and

substituted the United States for Dr. Sims as the sole defendant.

On motion of the United States, the district court certified for

interlocutory appeal, pur suant to 28 U.S.C. § 1292(b), that the

previous order turns on “a controlling question of law as to which

there is substantial ground for difference of opinion and that an

immediate appeal from the order may materially advance the ultimate

termination of the litigation.”

II.

“It is elementary that the United States, as sovere ign, is

immune from suits save as it consen ts to be sued . . . and the

terms of its consent to be sued in any court define that court’s

jurisdiction to entertain the suit.” U nited Stat es v. Mitchell

,

445 U.S. 535, 538 (1980); Broussard v. United States

, 989 F.2d 171,

1 74 (5th Cir. 1993). The FTCA constitutes a limited waiver of

sovereign immunity. S ee 28 U.S.C. § 1346(b); United States v.

Orleans , 425 U.S. 807, 813 (1976). Courts must strictly construe

all waivers o f the federal government’s sovereign immunity, and

must resolve all ambiguities in favor of the sovereign. S ee United

States v. Nordic Village, Inc.

, 503 U.S. 30, 33 (1992). Under the

FTCA, Congres s has waived sovereign immunity and has granted

consent for the government to be su ed for acts committed by any

“employee of the Government while acting within the scope of his1 “Employee of the Government” is defined to include “officers

or employees of any federal agency, members of the military or naval forces of the United States, . . . and persons acting on

behalf of a federal agency in an official capacity, temporarily or

permanently in the service of the United States, whether with or without compensation.” 28 U.S.C. § 2671.

6 office or employment.” 1 28 U.S.C. § 1346(b). The FTCA, however,

does not extend to acts of independent contractors. See Orleans,

425 U.S. at 813-14; Broussard, 989 F.2d at 174. Therefore, if the

act was not committed by an “employee of the Government,” then the

court mus t dismiss for lack of subject matter jurisdiction under

Fed. R. Civ. P. 12(b)(1). See Broussard

, 989 F.2d at 177. We apply

a de novo stand a rd of review to the question of whether an

individual is an “employee of the government” for purposes of the

FTCA. S ee Rodriguez v. Sarabyn, 129 F.3d 760, 765 (5th Cir. 1997);

Williams v. United States , 71 F.3d 502, 504 (5th Cir. 1995).

The critical factor in determining whether an individual is an

employee of the government or an independent contractor is the

power of the federal government to contro l the detailed physical

performance of the individual. See United States v. Orleans , 425

U.S. 807, 814 (1976); Broussard

, 989 F.2d at 174; see also Logue v.

United States

, 412 U.S. 521, 527 (1973)(“[T]he distinction between

the servant or agent relationship and that of independent

contractor turn[s] on the absence of authority in the principal to

c ontrol the physical conduct of the contractor in performance of

the contract. ”). Although “control of the detailed physical

performanc e may be the most critical factor in identifying an

employee, it is not necessarily the only factor.” Broussard , 9897

F.2d at 175. As the court in B roussard recognized, if control were

the only factor, then no prof essional who exercises professional

judgment could be considered a federal employee under the FTCA.

Id. T herefore, in Rodriguez v. Sarabyn

, 129 F.3d 7 60, 765 (5th

Cir. 1997), in addition to control, this court cited the factors

listed in § 220 of the Restatement (Second) of Agency to

differentiate between an employee and independent contractor under

the FTCA. Section 220 lists the following factors as relevant in

determining whether an individual is an employee or an independent

contractor:

( a) the extent of control which, by the agreement, the

master may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

(c) the kind of occupation, with reference to whether, in

the locality, the work is usually done under the

dir ection of the employer or by a specialist without

supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the

instrumentalities, tools, and the place of work for the

person doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the

job;

(h) whether or not the work is a part of the regular

business of the employer;

(i) whether or not the parties believe they are creating

the relation of master and servant; and

(j) whether the principal is or is not in business.2 In Rodriguez v. Sa rabyn , the court referenced the

explanatory comments to the Restatement of Agency, which lists the

following factors, in addition t o control, as evidence of the

existence of an employee relationship:

(1) the work does not require one who is highly educated

or skilled; (2) the work is typically done by an employee

in the locale, rather than an independent contractor; (3)

the employer supplies the tools, instrumentalities, or

place of work; (4) the employment is for a considerable

period of time with regular hours; (5) the method of

payme nt is by the hour or month; (6) the work is fulltime employment by one employer; (7) the work is part of

the employe r’s regular business; and (8) the parties

believe they have created an employment relationship.

See Rodriguez v. Sarab yn , 129 F.3d 760, 765 (5th 1997)(citing

RESTATEMENT (SECOND) OF AGENCY § 220(2) & cmt. h)).

8 RESTATEMENT (SECOND) OF AGENCY § 220 (1958). 2 S ee also Rodriguez v.

Sarabyn , 129 F.3d at 765 (citing RESTATEMENT (SECOND) OF AGENCY §

220). If the government lacks the power to directly control an

individual, then the court must l ook at other factors before

deciding the individual’s stat us as employee or independent

contractor. S ee Rodriguez

, 129 F.3 d at 765. Although such a

determination does not require mathematical precision, if the

government lacks the power to control an individual, plus several

factors listed in § 220 weigh in favor of independent contractor

status, then a court must conclude that the individual is an

independent contractor. Consequently, we look to the factors

listed in § 220 of the Restatement of Agency in order to determine

whether Dr. Sims was an employee of the government or an

independent contractor at the time of Linkous’s tubal ligation.

Factor (a), the extent of control which the employer exercises

over the details of the work, weighs in favor of independent

contractor st atus because DACH exercised no control over the9

medical services that Dr. Sims provided to her patients. Although

DACH exercised some control over the administrative aspects of Dr.

S ims’s practice, such as scheduling appointments and determining

fees, DACH exercised no control over the day-to-day rendition of

medical services. The appellees argue that requiring Dr. Sims to

abide by the informed consent policy established control over Dr.

Sims’s physical performance. While the informed consent policy may

affect the doctor-patient relationship by subjecting Dr. Sims to

some minimum requirements regarding notification and consent, this

policy did not intrude on the daily rendition of medical services

or override Dr. Sims’s medical judgment regarding diagnosi s and

treatment. Although the lack of control is of critical importance,

we must consider t he remaining factors to determine the

relationship between Dr. Sims and DACH.

The next two factors also support Dr. Sims’s status as an

independent contractor. As an ob/gyn at DACH, Dr. Sims was

“engaged in a distinct occupation” (factor (b)) of the type usually

done “by a specialist without supervi sion” (factor (c)).

Additionally, factor (d) weighs in favor of independent contractor

status because Dr. Sims’s occupation required a high degree of

skill. Factor (g) also indicates independent contractor status

because Dr. Sims was paid on a fee-for-service basis, like all nongovernment doctors participating in the CHAMPUS program, rather

than an annual salary like military doctors. Finally, factor (i)

supports independent contractor status because the record shows

that the parties did not believe that they were creating an10

employer-employee relationship. As noted earlier, Dr. Sims

indicated on her application for CHAMPUS reimbursement that she was

not an employee of the federal government. Furthermore, under the

terms of the MOU, Dr. Sims agreed to obtain professional liability

insurance covering the acts or omissions of Dr. Sims, as well as

any support personnel that she hired. If Dr. Sims believed she was

becoming an emplo yee of DACH, then there would have been no need

for her to indemnify the government for her negligence.

Conversely, factors (e), (f), (h), and (j) support the

conclusion that Dr. Sims was an employee of DACH. DACH provided

the “instrumentalities, tools, and the place of work” for Dr. Sims

(factor (e)). Dr. Sims worked at DACH for a period of several

years (factor (f)). DACH is in the business of providing a wide

range of medical services, including the ob/gyn services provided

by Dr. Sims (factors (h) and (j)). After considering the factors

listed in § 220, we conclude that Dr. Sims was an independent

contractor rather than an employee of the government. We reach

this conclusion because the g overnment exercised no control over

the detailed physical performance of Dr. Sims, plus the balance of

remaining factors weighs in favor of independent contractor status.

The Appellees contend that Dr. Sims could not have been an

independent contractor b ecause she contracted directly with the

government, rathe r than with an intermediate medical facility or

physician group which in turn contracted with the government. Both

the Plaintiffs and Dr. Sims cite to Broussard

, where the defendantphysician was employed by an independent contractor to the federal11

government, which in turn hired and paid the doctor as an employee.

See Broussard

, 989 F.2d at 173. Unlike the defendant in B roussard

,

Dr. Sims contracted directly with the go vernment (ie. she was

selected by the Chief officer at DACH, and she was paid directly by

the government through CHAMPUS reimbursement). We fail to see the

relevance of this distinction. According to the Appellees’

argument, individuals cannot be i ndependent contractors. In

Rodriguez

, the appellant made a similar argument to no avail. S ee

Rodriguez

, 129 F.3d at 766. Individuals can contract directly with

the government and remain independent contractors, as long as the

agreement between the parties does not grant the government control

over the detailed physical performance of the individual, and the

remaining factors weigh in favor of independent contractor status.

Consequently, the district court erred by certifying that Dr. Sims

was acting within the scope of her employment when treating

Linkous.

III.

Alternatively, the Appellees contend that the government

should be equitably estopped from denying Dr. Sims’ status as a

governmen t employee. Equitable estoppel is rarely valid against

the government. S ee United States v. Bloom

, 112 F.3d 200, 205 (5th

Cir. 1997). Courts have applied estoppel to the federal government

only in the narrowest of circumstances. I d. In order to establish

estoppel against the government, a party must prove affirmative

m isconduct by the government in addition to the four traditio nal12

elements of the doctrine. S ee id

. See also Broussard, 989 F.2d at

177 (“At a minimum, the government would have to engage in

affirmative misconduct before it could be estopped, and even then

affirmative misconduct may not be sufficient to prevent dismissal

for lack of subject matter jurisdiction.”). The four traditional

elements of estoppel are: (1) that the party to be estopped was

aware of the facts, and (2) intended his act or omissio n to be

acted upon; [and] (3) that the party asserting estoppel did not

have knowledge of the facts, and (4) reasonably relied on the

conduct of the other to his substantial injury. S ee Bloom

, 112

F.3d at 205.

The Appellees argue that the traditional elements of estoppel

have been met. First, the party to be estopped, the United States,

was aware of the facts surrounding the employment relationship with

Dr. Sims. Second, DACH held Dr. Sims out as an employee by

purporting to be a full service hospital, requiring Dr. Sims to

wear the same uniform and identification as military phys icians,

and using the same receptionist to schedule appointme nts for

military physicians. Third, the Plaintiff was unaware that Dr.

Sims was not an employee of DACH. And fourth, the Plaintiff

relied, t o her detriment, on the government’s actions in holding

Dr. Sims out as an employee. The United States responds that the

government cannot be equitably estopped. The United States argues

that in the unlikely event estoppel is available agai nst the

government, the Plaintiff must at least show that the government

engaged in affirmative misconduct. Furthermore, the government3 In support o f their claim of equitable estoppel, the

Appellees rely on Utterback v. United States

, 668 F.Supp. 602, 607

(W.D. Ky. 1987) and Gamble v. United States

, 648 F.Supp. 438, 441-

42 (N.D. Ohio 1986). In these two cases, the district courts held

that the government was estopped from denying the employee status

of negligent physicians because the government hospitals had held

themselves out as full-service hospitals. As the Ninth Circuit has

noted, “ Gamble and Utte rback confuse affirmative action with

affirmative misconduct.” C arrillo v. United States

, 5 F.3d 13 02,

1306 (9th Cir. 1993).

13 contends the Plaintiffs have failed to allege any facts supporting

the necessary element of detrimental reliance because Linkous has

not indicated that she would have acted differently had she known

that Dr. Sims was not an employee of the government.

The Appellees have failed to demonstrate any affirmative

misconduct on the part of the government. 3 “Affirmative

misconduct” requires an affirmative misrepresentation or

affirmative concealment of a material fact by the government. S ee

Carrillo v. United States

, 5 F.3d 1302, 1306 (9th Cir. 1993). The

Plaintiffs contend that DACH has committed affirmative misconduct

by holding Dr. Sims out as an employee of the government and by

requiring CHAMPUS benefic i aries to seek medical services from

military hospitals in an effort to save m oney. We do not agree.

Merely requiring Dr. Sims to wear the same uniform and

identification as military doctors and using the same receptionist

to schedule appointments for Dr. Sims and military doctors does not

amount to “affirmative misco nduct.” DACH did not affirmatively

conceal Dr. Sims’s status as an independent contractor or

affirmatively misrepresent to Linkous that Dr. Sims was an employee

of DACH. Although DACH may have created the circumstances that14

allowed Linkous to incorrectly assume that Dr. Sims was an employee

of the hospital, we cannot say that this rises to t he level of

“affirmative misconduct.” Furthermore, requiring CHAMPUS

beneficiaries to seek medical services at military facilities in an

effort to save money does not constitute affirmative misconduct.

The Appellees cite no authority for the proposition that such costsaving efforts of themselves constitute affirmative misconduct, and

we see no reason to conclude that such measures amount to

affirmative misconduct. Additionally, the Plaintiffs have failed

to demonstrate that Linkous detrimentally relied upon the belief

that Dr. Sims was a government physician. Although the Plaintiffs

baldly assert that Linkous “relied on the government’s actions in

holding Dr. Sims out as its employee to her detriment,” the

Plaintiffs fail to indicate w hat Linkous would have done

differently had she known that Dr. Sims was a government

contractor.

The Appellees have failed to show affirmative misc onduct by

the government or detrimental reliance by Linkous. Consequently,

t he Appellees have failed to establish the necessary elements of

equitable estoppel.

IV.

For the foregoing reasons, the order of the distr ict court

certifying that Dr. Sims was acting in the course and scope of her

employmen t is REVERSED. Accordingly, the case is DISMISSED for

lack of subject matter jurisdiction.