Jason Krembel v. United States ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-6774
JASON KREMBEL, Executor of the Estate of Michael L. Krembel,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Louise W. Flanagan, District Judge. (5:16-ct-03018-FL)
Argued: October 28, 2020 Decided: December 1, 2020
Before KING, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished opinion. Judge Thacker wrote the opinion, in which Judge King
joined. Judge Wynn wrote a dissenting opinion.
ARGUED: Bruce W. Berger, KNOTT & BOYLE, LLP, Raleigh, North Carolina; James
B. Craven, III, Durham, North Carolina, for Appellant. Rudy E. Renfer, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
Robert J. Higdon, Jr., United States Attorney, Joshua B. Royster, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
THACKER, Circuit Judge:
Jason Krembel (“Appellant”), representing the estate of Michael L. Krembel
(“Krembel”), appeals the district court’s grant of summary judgment on his Federal Tort
Claims Act (“FTCA”) claim. Appellant contends that the Bureau of Prisons (“BOP”) was
negligent because Krembel did not receive timely, necessary surgery while incarcerated in
the Federal Correctional Complex at Butner (“FCC Butner”).
We conclude an independent contractor -- not the BOP -- was responsible for
scheduling Krembel’s surgery pursuant to a contract with FCC Butner. Therefore, we
affirm the judgment of the district court that the United States is not liable for Krembel’s
injuries. However, we conclude that rather than granting summary judgment, the district
court should have dismissed the suit for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1).
I.
A.
Krembel’s Care During Imprisonment
The BOP transferred Krembel from the Federal Correctional Institution at Fort Dix,
New Jersey to FCC Butner after he was diagnosed with squamous cell carcinoma of his
scalp on June 6, 2013. Inmates at FCC Butner receive specialty medical care pursuant to
a contract between FCC Butner and the University of Massachusetts Medical School
2
(“UMass”). 1 On July 8, 2013, Krembel was examined by Dr. Stanley Katz, an independent
contractor, 2 who “strongly recommend[ed]” Krembel receive Mohs micrographic surgery
“as soon as possible.” J.A. 214. 3 By precisely targeting small areas of cancerous skin,
Mohs surgery does minimal damage to surrounding healthy tissue and prevents more
invasive future surgeries. The surgery could not be conducted, however, if the carcinoma
was permitted to spread beyond a certain threshold. It is clear Dr. Katz assumed that the
surgery could be done quickly because he noted Krembel “[would] return for follow up in
approximately one month for evaluation, assuming the Mohs surgery is done.” Id. Dr.
Katz discussed his recommendation with Krembel’s family physician, who concurred with
the suggestion. Two days after his examination, on July 10, 2013, the BOP approved a
surgical consultation for Krembel.
Despite Dr. Katz’s recommendation and the BOP’s prompt approval, Krembel did
not see a consulting surgeon until three months later, on October 15, 2013. The consulting
surgeon, who was also an independent contractor, 4 agreed that the surgery had “the highest
probability of local tumor control.” J.A. 218. Of note, the consulting surgeon did not
indicate that the carcinoma had spread so much that the surgery could not be conducted at
1
UMass provides various medical care services, including administrative duties
such as scheduling offsite appointments.
2
Dr. Katz provided services as a contract physician pursuant to the contract between
FCC Butner and UMass.
3
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
4
The consulting surgeon also provided services as a contract physician pursuant to
the contract between FCC Butner and UMass.
3
that point. The BOP was provided with the consulting surgeon’s notes, and the BOP
approved the surgery the same day. Nonetheless, Krembel was not seen again until nearly
two months later, on December 2, 2013, two days after he expressed concern to a BOP
clinical director. By that point, the cancer on Krembel’s head had spread so much that he
was no longer a candidate for Mohs surgery. As a result, Krembel underwent a series of
more invasive surgeries and radiation treatment which ultimately left him with
complications including physical deficiencies and disfigurement.
B.
Relationship Between the BOP and UMass
Pursuant to the contract between FCC Butner and UMass, UMass provides
physicians and other non-medical staff to deliver a variety of medical services to inmates.
The BOP has the authority to approve or deny referrals for treatment recommended by
UMass contracting physicians, but, significantly, it is undisputed that neither FCC Butner
nor the BOP exercise day-to-day control over the medical judgment of the UMass
contractors. Likewise, the BOP does not exercise control over UMass scheduling of offsite
medical appointments.
FCC Butner asserts that it does “not have the time, resources, or available staff, to
effectively undertake the responsibilities currently provided by UMass and the contract
onsite scheduling coordinators.” J.A. 149. Further, “the onsite scheduling coordinator is
compensated by UMass.” Id. at 146. In order for an inmate to receive specialty treatment
at an offsite facility, BOP employees enter a consultation request into the BOP electronic
medical records system. The consultation request “is then forwarded to a BOP employee
4
who is responsible for ensuring that the request is reviewed by the institution’s Utilization
Review Committee (“URC”).” Id. “Once the URC approves a consultation request, the
request is then forwarded to the UMass contract onsite scheduling coordinator to schedule
the appointment with the specialty provider.” Id. at 147. Pursuant to the contract, “UMass
selects [the] onsite scheduling coordinator who is responsible for the scheduling of all
offsite community medical appointments.” Id. at 146. UMass is also responsible for
cancellations and rescheduling offsite specialty appointments.
C.
Procedural History
Krembel filed a negligence action pursuant to the FTCA, asserting that the BOP
negligently delayed his treatment. 5 The Government filed a motion to dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Government argued that
Krembel’s claims were barred by the independent contractor exception to the FTCA.
Concluding the record should be more fully developed, the district court denied the motion
to dismiss. Discovery ensued.
The contract between FCC Butner and UMass came to light during discovery.
Because the contract identified UMass as the party solely responsible for scheduling offsite
appointments, the Government filed a motion for summary judgment, renewing its
independent contractor exception argument. Relying on the newly discovered contract, the
district court granted the motion for summary judgment. The district court concluded that
5
Krembel died during the pendency of this appeal, and Appellant took over the case.
5
UMass was responsible for any delays in Krembel’s treatment. Therefore, the district court
held it did not have subject matter jurisdiction because the independent contractor
exception to the FTCA applied.
II.
Determining the appropriate standard of review requires analysis of the procedural
disposition of the case. The district court erred when it simultaneously concluded that it
lacked jurisdiction to hear the claim and granted the Government’s motion for summary
judgment. See Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995).
If the independent contractor or discretionary function exceptions apply to an FTCA
claim, then the presiding court lacks subject matter jurisdiction to hear the claim. See
Williams, 50 F.3d at 304. Thus, in Williams, we “observe[d] that rather than granting
summary judgment pursuant to Rule 56(c), the district court should have dismissed the suit
for want of jurisdiction under Rule 12(b)(1) if the United States [was] not liable for
Williams’ injury” pursuant to FTCA exceptions. Id. The distinction has “procedural
ramifications” that are “more than academic.” Id. “[D]ismissal under Rule 12(b)(1) has
two consequences: one, the court may consider the evidence beyond the scope of the
pleadings to resolve factual disputes concerning jurisdiction; and two, dismissal for
jurisdictional defects has no res judicata effect.” Id.
“If, therefore, [UMass] is an independent contractor,” and is the party responsible
for the alleged breach, “the United States has not waived its sovereign immunity;
accordingly the case should be dismissed for want of jurisdiction under Rule 12(b)(1).”
Williams, 50 F.3d at 304. The same principle applies regarding the discretionary function.
6
See id. at 305. In Williams, we concluded that the independent contractor and discretionary
function exceptions both applied and, thus, affirmed and modified the district court’s order
to a Rule 12(b)(1) dismissal. See id. at 311.
Here, because the district court held it lacked jurisdiction pursuant to the FTCA
independent contractor exception, we review the decision pursuant to a Rule 12(b)(1)
standard. The standard of review for a Rule 12(b)(1) dismissal is de novo. See Robb v.
United States, 80 F.3d 884, 887 (4th Cir. 1996).
III.
A.
By passing the FTCA, Congress waived the United States’ sovereign immunity
under limited circumstances where injury is “caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his office
or employment.” 28 U.S.C. § 1346(b)(1); see also United States v. Sherwood, 312 U.S.
584, 586 (1941) (explaining that the United States is immune from suit unless it waives
that immunity and consents to be sued). But the FTCA explicitly does not permit suit for
liability resulting from the actions of “any contractor with the United States.” 28 U.S.C.
§ 2671. Thus, “Congress has not waived the sovereign immunity of the United States for
injuries resulting from the actions of independent contractors performing work for the
government.” Robb v. United States, 80 F.3d 884, 887 (4th Cir. 1996). The FTCA waiver
of immunity is strictly construed. See id. Consequently, “ambiguities are resolved in favor
of the sovereign.” Id.7
The Supreme Court has instructed that the independent contractor exception should
be applied when “the day-to-day operations of the contractor’s facilities [are] in the hands
of the contractor.” Logue v. United States, 412 U.S. 521, 529 (1973). We have strictly
construed this principle, explaining the Government’s control over the “primary activity
contracted for” is the relevant analysis. Williams v. United States, 50 F.3d 299, 307 (4th
Cir. 1995). Indeed, the “critical element in distinguishing an agency from a contractor is
the power of the Federal Government ‘to control the detailed physical performance of the
contractor.’” United States v. Orleans, 425 U.S. 807, 814 (1976) (quoting Logue, 412 U.S.
at 528).
B.
Here, the contract between FCC Butner and UMass establishes that the UMass
scheduling coordinator is an independent contractor who is solely responsible for
scheduling offsite care. Indeed, a BOP clinical director declared that pursuant to the
contract, the BOP does not compensate the UMass scheduling coordinator and does not
oversee the scheduling coordinator or the scheduling process. Specifically, the BOP
clinical director declared, “It is the responsibility of UMass [to] establish administrative
systems to ensure smooth scheduling, administration of procedures, and reporting and
transcription of results for appointments.” J.A. 148. “The contract between UMass and
FCC Butner does not require the FCC Butner medical staff to follow-up with the onsite
scheduling coordinator once a request for an appointment has been transmitted to the
scheduling coordinator.” Id.8
Contrary to Appellant’s assertion that no newly discovered evidence warranted the
district court’s decision, the contract and declaration are critical developments in the record
that occurred during discovery, especially when combined with the fact that the BOP
employees promptly reviewed and approved the recommendations for Krembel to receive
the recommended surgery. Because the contract does not provide for BOP control or
supervision over the UMass scheduler’s contractual duties, we have little trouble
concluding that UMass was acting as an independent contractor. Furthermore, the
evidence in the record demonstrates that the UMass scheduling coordinator was the party
responsible for scheduling Krembel’s surgery, albeit upon the BOP’s approval.
Because the BOP diligently discharged its contractual duties when it promptly
approved the recommended surgery while the UMass scheduling coordinator delayed
scheduling such surgery, UMass was the party at fault here. Thus, the United States cannot
be held liable pursuant to the independent contractor exception to the FTCA.
C.
Appellant attempts to avoid this conclusion primarily by relying on the BOP’s
statutory and constitutional duties. Appellant essentially argues that because the standard
of care for the BOP is fixed by 18 U.S.C. § 4042 and the Eighth Amendment, the BOP
retained a duty owed to Krembel beyond the duties outlined in the contract with UMass.
Specifically, Appellant relies on § 1983 cases and argues that allowing the BOP “to
contract out all services which it is constitutionally obligated to provide . . . leave[s] its
citizens with no means for vindication of those rights.” Opening Br. 15–16 (quoting West
9
v. Atkins, 487 U.S. 42, 56 n.14 (1988)). But these arguments mistake the nature of an
FTCA claim as well as the independent contractor exception.
1.
Regarding the Eighth Amendment, Appellant correctly argues “[c]ontracting out
prison medical care does not relieve the State of its constitutional duty to provide adequate
medical treatment to those in its custody, and it does not deprive the State’s prisoner of the
means to vindicate their Eighth Amendment rights.” West, 487 U.S. at 56. But this does
not necessarily lead to a cognizable FTCA claim. The Supreme Court explained the
distinction between FTCA claims and constitutional tort claims in FDIC v. Meyer, 510
U.S. 471 (1994). Indeed, to be actionable pursuant to the FTCA, the claim must allege
“the United States would be liable to the claimant as a private person in accordance with
the law of the place where the act or omission occurred. A constitutional tort claim . . .
could not contain such an allegation.” Meyer, 510 U.S. at 477–78 (internal quotation marks
omitted). Therefore, “the United States simply has not rendered itself liable under
§ 1346(b) for constitutional tort claims.” Id. at 478.
2.
Regarding the BOP’s statutory duty, Appellant’s theory of the case would
significantly undermine the independent contractor exception. Appellant claims that
because the BOP has a statutory duty to provide care to its inmates, the BOP has a duty to
“follow up” with its independent contractors even though the BOP acted diligently in
approving the surgery and the contract between UMass and the BOP required no BOP
oversight of the UMass scheduler. Taken to its logical conclusion, such a theory would
10
effectively disallow the Government from hiring independent contractors because the
Government would be obligated to exercise supervision and control over its independent
contractors. Requiring such supervision is at odds with the definition of an independent
contractor. See Orleans, 425 U.S. at 814 (emphasizing that the “critical element in
distinguishing an agency from a contractor is the power of the Federal Government to
control the detailed physical performance of the contractor” (internal quotation marks
omitted)). Thus, our mandatory “broad construal” of the independent contractor exception
does not allow us to hold that a general statutory duty cannot be effectively discharged by
hiring an independent contractor and then diligently acting pursuant to the responsibilities
outlined in the contract. 6 See Robb, 80 F.3d at 887. By the same reasoning, Appellant’s
attempt to rely on the BOP’s policies that incorporate the general statutory duty is equally
misplaced.
3.
However, the existence of a contract between FCC Butner and UMass standing
alone does not necessarily preclude a conclusion that the BOP was negligent regardless of
the independent contractor exception. As Appellant’s reliance on Knowles v. United States
6
The district court also held the discretionary function exception precluded a claim
that the BOP was negligent in contracting with UMass in the first instance. See Krembel
v. United States, No. 5:16-CT-3018-FL, 2019 WL 1429585, at *6 (E.D.N.C. Mar. 29,
2019) (citing 28 U.S.C. § 2680(a)). Appellant does not challenge this determination on
appeal. Nonetheless, we find the fact that the discretionary function exception
contemplates that statutory duties will be discharged by contracting with independent third
parties persuasive in reaching our independent contractor conclusion. See Williams, 50
F.3d at 310 (emphasizing that the “decision to hire an independent contractor . . . is
precisely the type of decision that the exception is designed to shield from liability”).
11
illustrates, the BOP could still be negligent in upholding its end of the contract. No. 5:12-
CT-3212-F, 2015 WL 13214314 (E.D.N.C. Dec. 14, 2015). In Knowles, the plaintiff lost
all vision in his right eye because the BOP failed to deliver the plaintiff to an appointment
that had been scheduled by an independent contractor working for the BOP. See Knowles,
2015 WL 13214314 at *2. Thus, in Knowles the BOP failed to discharge its duty. In
contrast, here, the BOP acted diligently while the independent contractor failed to
adequately discharge its duty. Given these facts, we agree with the district court that
Knowles is distinguishable from the present case.
4.
Finally, Appellant argues that the district court’s rejection of the Government’s
independent contractor exception argument in the initial motion to dismiss constituted the
law of the case that could not be subsequently overruled. But the law to which Appellant
refers explicitly emphasized that the government’s independent contractor exception
argument could be renewed “on a more developed record in a fully briefed motion for
summary judgment.” Krembel v. United States, No. 5:16-CT-3018-F, 2017 WL 1058179,
at *3 (E.D.N.C. Mar. 20, 2017). Furthermore, as the Government points out, we have
recognized “denials of motions to dismiss[] remain open to trial court reconsideration, and
do not constitute the law of the case.” Plotkin v. Lehman, No. 98-1638, 1999 WL 259669at *1 (4th Cir. Apr. 30, 1999) (per curiam) (quoting Perez-Ruiz v. Crespo-Guillen, 25 F.3d
40, 42 (1st Cir. 1994)). Therefore, the initial denial of the Government’s motion to dismiss
did not preclude the district court’s subsequent decision to grant summary judgment.
12
IV.
For the reasons set forth herein, 7 the decision of the district court is modified to a
Rule 12(b)(1) dismissal without prejudice and
AFFIRMED.
7
In closing, we note that while briefing and arguing the case, Appellant repeatedly
noted that the contract between FCC Butner and UMass was essentially hidden. Indeed,
the contract was filed under seal in this case. It is unclear to us how claimants could
successfully bring their claims against negligent independent contractors if government
contracts are not open and notorious. Even though dismissing an FTCA claim does not
necessarily disturb any potential state law claim against an independent contractor, a
meritorious claim could be lost if such a contract could not be discovered until after the
statute of limitations has run. It is equally likely that the independent contractor would not
be on notice sufficient to allow a pleading amendment to relate back to the original
complaint. See Fed. R. Civ. P. 15(c)(1)(C). The Government should be concerned with
this inequity, even if the discretionary function insulates it from liability “whether or not
the discretion involved be abused.” 28 U.S.C. § 2680(a).
13
WYNN, Circuit Judge, dissenting:
While I agree with my colleagues in the majority that the independent-contractor
exception prevents the estate of Michael Krembel from holding the Bureau of Prisons liable
for the failure of UMass to properly schedule Krembel’s much-needed surgery, I believe
that the Bureau of Prisons violated the statutory duty of care it owed Krembel. Accordingly,
I must dissent.
The duty of care “owed by the Bureau of Prisons to federal prisoners is fixed by 18
U.S.C. § 4042, independent of an inconsistent state rule.” United States v. Muniz, 374 U.S.
150, 164–65 (1963); see also Parrott v. United States, 536 F.3d 629, 636 (7th Cir. 2008)
(same). In relevant part, § 4042 states that the Bureau of Prisons shall “provide suitable
quarters and provide for the safekeeping, care, and subsistence of all persons charged with
or convicted of offenses against the United States.” 18 U.S.C. § 4042(a)(2) (emphasis
added). Courts have interpreted § 4042 to require prison officials to exercise “ordinary
diligence under the circumstances.” Johnson v. U.S. Gov’t, 258 F. Supp. 372, 376 (E.D.
Va. 1966); see also, e.g., Abuhouran v. United States, 595 F. Supp. 2d 588, 594 n.4 (E.D.
Pa. 2009) (explaining that § 4042 requires the Government to “exercise ordinary diligence
to keep prisoners safe and free from harm” (quoting Jones v. United States, 534 F.2d 53,
54 (5th Cir. 1976))); Smith v. United States, 207 F. Supp. 2d 209, 214 (S.D.N.Y. 2002)
(same).
Importantly, the Bureau of Prisons owes this duty of care to prisoners irrespective
of its decision to contract with independent contractors to provide certain services. See
Edison v. United States, 822 F.3d 510, 518 (9th Cir. 2016) (“[T]he independent contractor
14
exception . . . has no bearing on the United States’ FTCA liability for its own acts or
omissions.”). Accordingly, the Bureau of Prisons owed Krembel a duty of ordinary
diligence under the circumstances.
Here, separate and apart from UMass’s failure to properly schedule Krembel’s
surgery, I believe the Bureau of Prisons breached its duty to act with ordinary diligence
under the circumstances. The basic facts are remarkable. Krembel was supposed to undergo
surgery in the summer of 2013, but by the time he was finally seen by a doctor in December
2013, his cancer had spread so significantly that he was no longer eligible for the needed
surgery. During those long intervening months when Krembel was not receiving the
medical care he needed, the cancerous mass on his head “gr[ew] quite rapidly,” causing a
painful wound to emerge from his scalp, spewing forth a “continuous[,] smelly discharge”
that required him to receive medical care every morning. J.A. 72, 223, 342. During these
daily appointments with the medical staff, Krembel regularly requested the surgery he had
been prescribed. [J.A. 315, 342.] Yet the Bureau of Prisons’s medical staff apparently did
nothing at all to determine the cause of delay in his care, much less to remedy it.
This months-long period of delay and indifference is made all the more remarkable
by several circumstances that, one hopes, will prove unique to this case. First, the Federal
Medical Center at Butner, where Krembel was incarcerated, is a specialized medical center
whose very purpose is to address the medical needs of its inmates. Second, Krembel was
suffering from a particularly aggressive form of cancer. See Balter v. United States, No.
3:09-cv-1409, 2014 WL 1365905, at *26 (M.D. Pa. Apr. 7, 2014) (finding the Bureau of
Prisons’s duty of care to be “heightened where an inmate is known to have a rare condition
15
requiring special treatment”). Third, there was no dispute that Mohs surgery was the best
way to treat Krembel’s cancer and that he needed it as soon as possible. Considering these
circumstances, I would hold that the Bureau of Prisons did not exercise ordinary diligence
under the circumstances when it moved with alacrity to approve Krembel’s requested
consultations—but then did nothing further to ensure that he received the surgery he needed
while his cancer spread and worsened.
In response to Krembel’s argument that the Bureau of Prisons breached its statutory
duty of care, the majority concludes that the Bureau of Prisons can have no general “duty
to ‘follow up’” on its independent contractors because such a duty “[t]aken to its logical
conclusion. . . would effectively disallow the Government from hiring independent
contractors.” Maj. Op. at 10–11. I agree that foisting a general “duty to follow up” on the
Bureau of Prisons would be inconsistent with the independent-contractor exception and
that in many—perhaps most—cases, the Bureau of Prisons’s “general statutory duty can[]
be effectively discharged by hiring an independent contractor and then diligently acting
pursuant to the responsibilities outlined in the contract.” Id. at 11. However, it does not
follow from the premise that the Bureau of Prisons has no general “duty to follow up” that
it reasonably cared for Krembel, as required by law. The facts of this matter show that the
Bureau of Prisons’s treatment of Krembel fell short of ordinary diligence under the
circumstances. Accordingly, I respectfully dissent.
16