                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0371n.06

                                           No. 19-6290

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                     FILED
                                                )                              Jun 23, 2020
 C.H., A Minor, By and Through his Next Friend, )                          DEBORAH S. HUNT, Clerk
 Natural Guardian, and Parent, Amanda Shields,  )
                                                )
        Plaintiff-Appellant,                    )
                                                                 ON APPEAL FROM THE
                                                )
                                                                 UNITED STATES DISTRICT
 v.                                             )
                                                                 COURT FOR THE WESTERN
                                                )
                                                                 DISTRICT OF KENTUCKY
 UNITED STATES OF AMERICA,                      )
                                                )
        Defendant-Appellee.                     )



       Before: BATCHELDER, BUSH, and LARSEN, Circuit Judges.

       LARSEN, Circuit Judge. Amanda Shields brought this suit on behalf of her minor son,

C.H., naming the United States as the defendant. Suing under the Federal Tort Claims Act

(FTCA), Shields alleged that a physician and two certified nurse midwives negligently treated

C.H. before, during, and after his birth—treatment that resulted in C.H.’s suffering various

developmental and cognitive harms. The government moved to dismiss Shields’s complaint for

lack of jurisdiction, arguing that the United States had not waived its sovereign immunity as to the

three medical professionals because they were not federal employees under the FTCA. Shields

moved for discovery on that jurisdictional question. The district court denied Shields’s motion

and granted the government’s. On appeal, Shields challenges the district court’s dismissal only on

the ground that she should first have been permitted to conduct jurisdictional discovery.

We AFFIRM.
No. 19-6290, C.H. v. United States


                                                 I.

       Shields’s suit stems from her labor and emergency delivery of C.H. at Fairview Community

Health Center in April 2016. While at Fairview, Shields was treated by two certified nurse

midwives, Heather Finney and Leigh Lindsey, and an obstetrician gynecologist, Dr. Devin Trevor.

Shields alleges that these three medical professionals “failed to exercise the appropriate degree of

care and skill expected” of such professionals and that their negligence caused C.H. “to suffer a

hypoxic-ischemic brain injury” which resulted in “cerebral palsy, epilepsy, and developmental

delay and cognitive impairment.”

       Shields sued the medical professionals under the FTCA, asserting that the United States

was vicariously liable for Finney’s, Lindsey’s, and Trevor’s negligence. She alleged that Fairview

received federal funds to provide medical services to underserved populations under 42 U.S.C.

§ 254b and that the FTCA deems such recipients and their employees “Public Health Service

employees” under 42 U.S.C. § 233(g). Once so deemed, suit under the FTCA provides the

“exclusive” remedy for civil harms caused by such employees acting within the scope of their

employment. See 42 U.S.C. § 233(a), (g)(1)(A). Finally, per Shields’s assertion, Finney, Lindsey,

and Trevor were employees of Fairview and were acting within the scope of their employment

when they treated Shields and C.H.

       The government did not quarrel with most of Shields’s reasoning. For example, the

government did not (and does not) dispute that under § 233(g) Fairview is deemed a Public Health

Service employee, nor did it deny that a medical malpractice suit against a Fairview employee may

be brought only under the FTCA. But the government disagreed that Finney, Lindsey, and Trevor

were employees of Fairview. Instead, the government provided evidence—a physician service

contract and billing invoices—that the three medical professionals were actually employed by



                                                -2-
No. 19-6290, C.H. v. United States


Woman’s Health Specialists (WHS), a corporation which in turn contracted with Fairview to

provide prenatal and delivery services. Thus, in the government’s view, the medical professionals

were, at most, contractors with the United States who were not covered by the FTCA. The

government therefore moved to dismiss Shields’s complaint for lack of subject matter jurisdiction

under Federal Rule of Civil Procedure 12(b)(1).

       In response, Shields argued that the government’s motion was premature because she had

not been permitted discovery on the jurisdictional question. Accordingly, she moved for leave to

serve an initial discovery request. In response, the government submitted an affidavit from the

CEO of Fairview that explained that Finney, Lindsey, and Trevor were not employees of Fairview,

that WHS does not bill Fairview for their delivery services, and that Fairview did not control the

day‑to‑day care rendered by WHS.

       The district court denied Shields’s motion, concluding that she had not carried her burden

to demonstrate that discovery would likely produce the facts necessary to withstand the

government’s motion. C.H. ex rel. Shields v. United States, No. 1:19-CV-00017-GNS, 2019 WL

5225464, at **4–5 (W.D. Ky. Oct. 16, 2019). The district court also determined, based on the

limited record before it, that Finney, Lindsey, and Trevor were not employees of Fairview and

granted the government’s motion to dismiss. Id. at **1–4.

       Shields timely appealed.      On appeal, Shields does not challenge the district court’s

“employee” determination on the record as it now stands; instead, she argues only that the district

court erred by granting the motion to dismiss without jurisdictional discovery.

                                                II.

       The United States can be sued for money damages only “to the extent that it has waived its

sovereign immunity.” Milligan v. United States, 670 F.3d 686, 692 (6th Cir. 2012). Put another



                                               -3-
No. 19-6290, C.H. v. United States


way, where the United States has not waived its sovereign immunity, federal courts lack

jurisdiction to entertain claims against the United States. Kohl v. United States, 699 F.3d 935,

939–40 (6th Cir. 2012) (noting that if a claim against the United States does not fall within a

sovereign immunity waiver, “federal courts lack subject-matter jurisdiction, and the claim must be

dismissed”). The FTCA “provides a limited sovereign immunity waiver and subject matter

jurisdiction for plaintiffs to pursue state law tort claims against the United States.” Milligan, 670

F.3d at 692 (citing 28 U.S.C. § 1346(b)(1)).

        Under the FTCA, the federal government is “liable to the same extent as a private party for

certain torts of federal employees acting within the scope of their employment.” United States v.

Orleans, 425 U.S. 807, 813 (1976). As previously mentioned, recipients of § 254b funds—like

Fairview—and their employees are deemed federal employees for purposes of the FTCA. See 42

U.S.C. § 233(g).

        The government argued that the three medical professionals Shields accuses of negligence

were not deemed employees under § 233(g) and thus moved to dismiss for lack of subject matter

jurisdiction under Rule 12(b)(1). Rule 12(b)(1) motions come in two varieties. They either “attack

the claim of jurisdiction on its face, in which case all allegations of the plaintiff must be considered

as true” or they “attack the factual basis for jurisdiction, in which case the trial court must weigh

the evidence and the plaintiff bears the burden of proving that jurisdiction exists.” DLX, Inc. v.

Kentucky, 381 F.3d 511, 516 (6th Cir. 2004), abrogated on other grounds by San Remo Hotel, L.P.

v. City & Cty. of San Francisco, 545 U.S. 323 (2005). All agreed below that the government’s is

a “factual attack” because it contests the complaint’s conclusory allegation that the medical

professionals are employees of Fairview. C.H. ex rel. Shields, 2019 WL 5225464, at *2.




                                                  -4-
No. 19-6290, C.H. v. United States


       Shields does not challenge the district court’s jurisdictional decision on the record it had

before it. Rather, she argues that the record was incomplete because the district court was required

to grant her jurisdictional discovery before it dismissed her complaint. “We review for abuse of

discretion a claim that a case was dismissed prematurely because jurisdictional discovery should

have been afforded.” A.O. Smith Corp. v. United States, 774 F.3d 359, 369 (6th Cir. 2014); see

also KNC Investments, LLC v. Lane’s End Stallions, Inc., 579 F. App’x 381, 385 (6th Cir. 2014)

(“In Chrysler Corp. v. Fedders Corp., 643 F.2d 1229 (6th Cir. 1981), this Court held that whether

or not to allow discovery prior to deciding a motion to dismiss for lack of jurisdiction is within the

discretion of the district court.”) “‘An abuse of discretion occurs when the reviewing court is left

with the definite and firm conviction that the trial court committed a clear error of judgment.’

Therefore, this Court may only reverse the district court’s conclusion as to Defendants’ motion if

it finds that the ruling was arbitrary, unjustifiable, or clearly unreasonable.” F.T.C. v. E.M.A.

Nationwide, Inc., 767 F.3d 611, 623 (6th Cir. 2014) (quoting United States v. Hunt, 521 F.3d 636,

648 (6th Cir. 2008)).

       Although it is true that plaintiffs “must be given an opportunity to secure and present

relevant evidence to the existence of jurisdiction” when “a defendant challenges a court’s actual

subject matter jurisdiction,” plaintiffs must do more than “merely assert” the need for discovery;

they must “explain what evidence relevant to subject matter jurisdiction they [would be] denied

from obtaining.” Gilbert v. Ferry, 401 F.3d 411, 415 (6th Cir.), on reh’g in part, 413 F.3d 578

(6th Cir. 2005). A plaintiff is not entitled to discovery if she cannot, at a minimum, “offer any

factual basis for [her] allegations” and give the district court “a reasonable basis to expect

that . . . discovery would reveal” evidence that supports the claimed jurisdiction. See Chrysler

Corp., 643 F.2d at 1240; see also A.O. Smith Corp., 774 F.3d at 369–70 (holding that district court



                                                 -5-
No. 19-6290, C.H. v. United States


did not abuse its discretion in denying jurisdictional discovery in FTCA case where plaintiffs could

only “speculate” that government documents “might” contain information relevant to jurisdiction);

Davila v. United States, 713 F.3d 248, 264 (5th Cir. 2013) (stating that a plaintiff seeking

jurisdictional discovery is only “entitled to [that] discovery if the record shows that the requested

discovery is . . . likely to produce the facts needed to withstand a Rule 12(b)(1) motion” (quoting

Freeman v. United States, 556 F.3d 326, 342 (5th Cir. 2009))); FC Inv. Grp. LC v. IFX Markets,

Ltd., 529 F.3d 1087, 1093–94 (D.C. Cir. 2008) (“Such a request for jurisdictional discovery cannot

be based on mere conjecture or speculation.”).

       The question before us then, is whether the district court abused its discretion when it

concluded that Shields had failed to show that “the requested discovery [was] likely to produce

facts necessary to withstand the United States’[] motion.” C.H. ex rel. Shields, 2019 WL 5225464,

at *4. We conclude that it did not.

       In the district court, both parties agreed that the jurisdictional question—whether the

medical professionals were deemed Public Health Service employees under § 233(g) because of

their relationship with Fairview—was governed by the “control test” set forth in Logue v. United

States, 412 U.S. 521 (1973), and Orleans, 425 U.S. at 807. Under that test, the “critical factor” in

distinguishing a federal employee, which the FTCA covers, from an independent contractor, which

the FTCA does not, is “the authority of the principal to control the detailed physical performance

of the contractor,” Logue, 412 U.S. at 527–28, that is, “whether [the contractor’s] day‑to‑day

operations are supervised by the Federal Government,” Orleans, 425 U.S. at 815. On appeal,

Shields stands by this framing of the legal test. The government does not, arguing now that the

“control test” should not apply to § 233 cases. We decline to address the government’s new

argument, which is contrary to the one it presented to the district court. Instead, we review the



                                                 -6-
No. 19-6290, C.H. v. United States


district court’s discovery determination in light of the “control test,” but we express no position on

the applicability of the “control test” to § 233 cases going forward.

       In its motion to dismiss, the government argued that Finney, Lindsey, and Trevor were not

deemed employees under § 233(g) and thus did not come within the FTCA’s waiver of sovereign

immunity. To demonstrate that Fairview did not have control or supervision over WHS or the

medical professionals’ day‑to‑day operations, the government appended to its motion a physician

service contract between WHS and Fairview, along with billing invoices. The contract made WHS

the “exclusive” and “sole provider of prenatal and delivery services to Fairview patients.” It

established that Fairview would pay a flat fee for prenatal visits but that WHS would directly bill

the Kentucky Medicaid Program or other third‑party payors for its delivery services. Finally, the

contract explained that Fairview and WHS were responsible to obtain their own liability insurance.

The billing invoices showed that Fairview payed WHS—and not Finney, Lindsey, and Trevor

directly—for the prenatal services the medical professionals provided.

       In response to this motion, Shields sought leave to file an initial discovery request to

“discover any other documents and information which may relate to the relationship between the

United States, WHS[,] and [Fairview].”          She requested the production of two kinds of

evidence: (1) “all contracts, memoranda, or other written agreements” between Fairview and

WHS and the three medical professionals “related to the provision of prenatal and labor and

delivery care to patients” at Fairview and (2) all correspondence between the same parties. She

also made a request for admissions that covered, as relevant here, five topics: (1) whether the

medical professionals were employees of Fairview or the United States; (2) whether Fairview or

the United States billed Shields for the delivery services provided her; (3) whether Fairview or the

United States controlled or supervised the delivery services the medical professionals provided



                                                 -7-
No. 19-6290, C.H. v. United States


Shields; (4) whether Fairview or the United States paid the medical professionals for the delivery

services they provided to Shields; and (5) whether Fairview or the United States provided the

medical professionals with any employee benefits, such as health insurance, worker’s

compensation, etc.

       The government attached a sworn affidavit to its reply that, in combination with the

contract and invoices, addressed virtually all of these requests. “In applying Logue and Orleans

to any contract to perform services on behalf of the United States, the contract and its terms in

fixing the relationship of the offending party are critical.” Wood v. Standard Prods. Co., 671 F.2d

825, 829 (4th Cir. 1982). The contract that Shields requested is in the record and by its own terms,

it is the exclusive contract for prenatal and delivery services provided to Fairview patients. It also

makes clear that WHS and not Fairview would have billed Shields for the delivery care provided

her. The affidavit—from Chris Keyser, the CEO of Fairview—buttresses the conclusions drawn

from the contract. The Keyser affidavit explained that none of the medical professionals was an

employee of Fairview and that “[a]ll obstetrical and gynecological care decisions are made by”

WHS and its employees free from Fairview’s control or oversight. It also reaffirmed that WHS,

and not Fairview, bills patients for delivery services, and that the contract in the record was the

only agreement between the two entities.

       The district court went over all this evidence in its decision and concluded that it supported

a finding that Finney, Lindsey, and Trevor were employees of WHS, not Fairview, and that “there

[was] no reasonable likelihood that discovery would yield information to change that fact.” C.H.

ex rel. Shields, 2019 WL 5225464, at *5. We see no abuse of discretion there.

       Shields argues for something like a per se right to jurisdictional discovery or perhaps to a

preliminary hearing. Although she did not request a hearing in the district court, on appeal she



                                                 -8-
No. 19-6290, C.H. v. United States


points to our opinion in Commodities Export Co. v. United States Customs Service, 888 F.2d 431

(6th Cir. 1989), which set out a “clear rule” that “requires a preliminary hearing or hearing at trial

to determine any disputed facts upon which the [Rule 12(b)(1)] motion or the opposition to it is

predicated.” Id. at 436. But, in that same paragraph, we explained that there is no bright‑line rule

entitling plaintiffs to a hearing; a district court need not hold a hearing “where the facts are

relatively simple[] [and] substantially uncontroverted.”      Id. at 436–37 (second alteration in

original). That appears to be this case.

        Shields failed to offer any “factual basis” or reason to believe discovery would be fruitful.

See Chrysler Corp., 643 F.2d at 1240. Neither the complaint’s bare allegation that Finney,

Lindsey, and Trevor are Fairview employees nor Shields’s assertion that the documents and

information she seeks to discover “may relate” to their employee status demonstrates the need for

discovery. Such “[b]are allegations [and] vague assertions of the need for discovery are not

enough.” Summers v. Leis, 368 F.3d 881, 887 (6th Cir. 2004). Shields did not provide the district

court with a “reasonable basis to expect that . . . discovery would reveal” that Fairview exerted

control or supervision over the medical professionals’ day‑to‑day care decisions, thus making them

“employees” under the “control test.” See Chrysler Corp., 643 F.2d at 1240.

        After reviewing the record and the district court’s reasoning, we are not left with the

definite and firm conviction that the district court committed a clear error of judgment. See E.M.A.

Nationwide, 767 F.3d at 623. Accordingly, we will not disturb the district court’s decision.

                                                ***

        For the reasons stated, we AFFRIM the district court’s dismissal of Shields’s complaint for

lack of jurisdiction.




                                                 -9-
