                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 ADELE O. CONNELL,

         Plaintiff,
                 v.                                         Civil Action No. 09-1159 (JDB)
 ANNESLEY W. COPELAND, M.D., and
 UNITED STATES OF AMERICA

         Defendants.


                            MEMORANDUM OPINION & ORDER

       Adele Connell, a Colonel in the United States Army, alleges that Dr. Annesley Copeland

committed medical malpractice while performing surgery on her. The United States seeks to

substitute itself for Dr. Copeland, asserting that because Dr. Copeland was a federal employee

during the alleged incident, Connell's exclusive remedy under the Federal Tort Claims Act, 28

U.S.C. § 2671 et seq., is a suit for damages against the United States. The government also seeks

to dismiss the case, contending that the Feres doctrine bars Connell's suit because any injuries

she suffered "ar[o]se out of or [were] in the course of activity incident to [military] service."

Feres v. United States, 340 U.S. 135, 146 (1950). For the reasons detailed below, the Court will

substitute the United States for Dr. Copeland, and will grant the government's motion to dismiss.

                                   FACTUAL BACKGROUND

       Connell was diagnosed with breast cancer in her left breast in November 2008. Compl.

¶¶ 1.2, 5.1. To treat the cancer and to prevent it from spreading, Connell's doctors at Walter

Reed Army Medical Center planned to perform mastectomies on both breasts. Compl. ¶ 5.1.


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They also planned to remove the lymph node on each side of her chest closest to the tumor in her

left breast in order to determine whether the cancer had spread. Compl. ¶ 5.1.

       Connell alleges that Copeland, who was supervising and directing a surgical team of

active duty Army physicians, entered the surgery believing that the cancer was located in

Connell's right breast, rather than in her left breast. Compl. ¶ 5.5. When the surgical team could

not locate the lymph node on Connell's right side closest to the tumor, they proceeded to remove

seventeen other lymph nodes from her right side. Compl. ¶ 5.2. Connell contends that removing

these lymph nodes from the side of her body where no breast cancer had been diagnosed was

"erroneous and unnecessary," and constitutes medical malpractice. Compl. ¶ 6.1.

                                          DISCUSSION

       The Westfall Act, 28 U.S.C. § 2679, "accords federal employees absolute immunity from

common-law tort claims arising out of acts they undertake in the course of their official duties."

Osborn v. Haley, 549 U.S. 225, 229 (2007); see also 10 U.S.C. § 1089 (suits against the United

States under the Federal Tort Claims Act are the exclusive remedy for the negligence, wrongful

act, or omission of any armed forces physician). "When a federal employee is sued for wrongful

or negligent conduct, the Act empowers the Attorney General to certify that the employee 'was

acting within the scope of his office or employment at the time of the incident out of which the

claim arose.'" Osborn, 549 U.S. at 229-30 (quoting 28 U.S.C. § 2679(d)). "Upon the Attorney

General's certification, the employee is dismissed from the action, and the United States is

substituted as defendant in place of the employee." Id. at 230.

       Connell insists that "Defendant Copeland is a non-Government employee who performed

negligent surgery as a civilian physician contractor." Pl.'s Opp'n to Defs.' Mot. to Dismiss ("Pl.'s


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Opp'n") [Docket Entry 8], at 2. In other words, Connell argues that Dr. Copeland was acting not

as a federal employee, but rather as an independent contractor. In response, the United States

Attorney's Office for the District of Columbia1 has certified that Dr. Copeland "was acting within

the scope of her employment as an employee of the United States at the time of the alleged

incidents." Defs.' Mot. to Dismiss ("Defs.' Mot.") [Docket Entry 6], Exhibit 2. The government

thus asks that it be substituted as defendant in place of Dr. Copeland.

       The government's certification does not end the matter, however. Although this so-called

Westfall certification "'constitute[s] prima facie evidence that the employee was acting within the

scope of his employment,'" Wuterich v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009) (quoting

Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006) (per

curiam)), it "does not conclusively establish as correct the substitution of the United States as

defendant in place of the employee," Gutierrez De Martinez v. Lamagno, 515 U.S. 417, 434

(1995). Rather, a plaintiff may rebut the Westfall certification by "'alleg[ing] sufficient facts that,

taken as true, would establish that the defendant['s] actions exceeded the scope of [his]

employment.'" Wuterich, 562 F.3d at 381 (quoting Stokes v. Cross, 327 F.3d 1210, 1215 (D.C.

Cir. 2003)). In such cases, if necessary "the district court may permit limited discovery and hold

an evidentiary hearing to resolve a material factual dispute regarding the scope of the defendant's

employment." Stokes, 327 F.3d at 1214.2


       1
        The Attorney General has authorized the United States Attorney for the relevant district
to make the statutory certification. See 28 C.F.R. § 15.4.
       2
         Connell's primary challenge is to the government's certification that Dr. Copeland was a
federal employee, and not to whether Dr. Copeland was acting within the scope of any such
federal employment. There is no reason, however, why the standards articulated in Stokes and
                                                                                     (continued...)

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       In evaluating whether a plaintiff has rebutted a Westfall certification, courts apply

traditional notice pleading standards. See Wuterich, 562 F.3d at 383. Hence, for Connell to

obtain discovery, her complaint "must contain sufficient factual matter, accepted as true, to state

a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

(internal quotation marks omitted). The complaint must, in other words, contain "factual content

that allows the court to draw the reasonable inference" that Dr. Copeland was an independent

contractor and not a federal employee when she performed Connell's surgery. Id.

       To determine whether an individual is an independent contractor under these

circumstances, the critical inquiry is the power of the federal government "to control the detailed

physical performance of the" individual. Logue v. United States, 412 U.S. 521, 527-28 (1973).

In evaluating whether physicians working for the government are employees or independent

contractors, courts have also looked to the terms of the doctor's employment contract, the

statutory authorization for the doctor's appointment, and various other conditions of employment.

See, e.g., Woodruff v. Covington, 389 F.3d 1117, 1127 (10th Cir. 2004) (collecting cases);

Ezekiel v. Michel, 66 F.3d 894, 900-01 (7th Cir. 1995); Limo v. United States, 852 F. Supp. 50,

53 (D.D.C. 1994).

       Here, Connell has failed to rebut the government's certification that Dr. Copeland was a

federal employee and not an independent contractor. Connell's complaint alleges only that Dr.

Copeland "was a civilian independent contractor of the United States," Compl. ¶ 4.2, and that the

"United States did not have the authority to control and supervise Defendant Copeland's detailed


       2
        (...continued)
Wuterich would not apply equally when a plaintiff seeks discovery concerning the nature of an
individual's employment relationship.

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physical performance and day-to-day activity at Walter Reed." Compl. ¶ 4.5. Even assuming

that this would render Dr. Copeland an independent contractor, these assertions are no more than

"'legal conclusion[s] couched as . . . factual allegation[s],'" which the Court is "not bound to

accept as true." Iqbal, 129 S. Ct. at 1949-50 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)). They are certainly not the "'specific facts rebutting the [Westfall] certification'"

required to obtain discovery. Ballenger, 444 F.3d at 662 (quoting Stokes, 327 F.3d at 1214).

       In fact, Connell's complaint merely tracks in a conclusory fashion the Supreme Court's

test for whether an individual is an employee or an independent contractor. Compare Logue, 412

U.S. at 528 (question is whether the government can "control the detailed physical performance

of the" individual), with Compl. ¶ 4.5 ("Defendant United States did not have the authority to

control and supervise Defendant Copeland's detailed physical performance and day-to-day

activity at Walter Reed."). But the Supreme Court has made clear that a "formulaic recitation of

the elements of a cause of action" does not properly plead a claim. See id. at 1949 (internal

quotation marks omitted). So too here, and hence Connell's allegations are insufficient as a

matter of law to rebut the government's Westfall certification.3

       "[T]here is no right to even limited discovery unless and until a plaintiff alleges sufficient

facts to rebut the Government's certification." Wuterich, 562 F.3d at 382 (citing Stokes, 327

F.3d at 1215-16); see also Stokes, 327 F.3d at 1216 ("Not every complaint will warrant further

inquiry into the scope-of-employment issue."). Accordingly, because Connell has failed to rebut


       3
         The government has supplied several of Dr. Copeland's employment records which, it
argues, establish that Dr. Copeland is a federal employee and not an independent contractor. See
Defs.' Reply in Supp. of Mot. [Docket Entry 10], at 4-5. In light of Connell's failure to rebut the
government's Westfall certification, the Court need not address whether these documents
affirmatively establish, as a matter of law, that Dr. Copeland was a federal employee.

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the government’s certification that Dr. Copeland was a government employee acting within the

scope of her employment during the alleged medical malpractice, “[Dr. Copeland] is dismissed

from the action, and the United States is substituted as defendant in place of the employee."

Osborn, 549 U.S. at 230.4

       With the United States the sole remaining defendant, the Court turns to the government's

motion to dismiss. "[T]he Government is not liable . . . for injuries to servicemen where the

injuries arise out of or in the course of activity incident to service." Feres v. United States, 340

U.S. 135, 137 (1950); accord United States v. Johnson, 481 U.S. 681, 692 (1987). In

determining whether a particular injury occurred "incident to service," the D.C. Circuit examines

three factors: "the injured service member's duty status, the site of the injury and the nature of the

activity engaged in by the service member at the time of his injury." Schnitzer v. Harvey, 389

F.3d 200, 203 (D.C. Cir. 2004). "None of the three factors is itself dispositive; each contributes

to [the] assessment of the totality of the circumstances in determining whether the injury is

properly understood as 'incident to service' within the meaning of Feres." Id.

       Here, these factors leave no doubt that Feres bars Connell's suit against the United

States.5 Connell was on active duty at the time of the injury. See Defs.' Mot., Ex. 1 (army

document ordering Connell to active duty). The injury occurred at Walter Reed Army Medical


       4
         To the extent Connell asks for discovery as to whether Dr. Copeland was acting within
the scope of any federal employment, see Pl.'s Opp'n at 5, the Court will deny this request as
well. Connell has alleged no facts that "would establish that the defendant['s] actions exceeded
the scope of [her] employment." Stokes, 327 F.3d at 1215.
       5
         Indeed, Connell does not dispute that Feres bars her suit against the United States.
Instead, she argues that Feres was wrongfully decided and should be overturned. See Defs.'
Opp'n at 6-19. The continuing viability of Feres, however, is not a question for this Court to
examine.

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Center, a military medical facility. And Connell was receiving medical care by active duty

military personnel at the time of her injury. This is more than sufficient to render her injury

"incident to service." See, e.g., Johnson v. United States, 1994 U.S. Dist. LEXIS 21632, at *12

(D.D.C. 1994) ("The Supreme Court has consistently held that claims from active duty service

members arising out of medical care received in military hospitals are incident to service.");

Antoine v. United States, 791 F. Supp. 304, 305-06 (D.D.C. 1991) ("'[T]he fact that [plaintiff's]

injury occurred as a result of medical treatment by military doctors, . . . conclusively

demonstrates that the injury was incident to service.'" (quoting Appelhans v. United States, 877

F.2d 309, 311 (4th Cir. 1989)).

       Accordingly, it is hereby

       ORDERED that the United States's motion to substitute is GRANTED; it is further

       ORDERED that the United States's motion to dismiss is GRANTED; and it is further

       ORDERED that this case is DISMISSED.

       SO ORDERED.

                                                                     /s/
                                                              JOHN D. BATES
                                                          United States District Judge

Date: April 20, 2010




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