                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 18, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-50125
                         Summary Calendar



   ELLEN KATHRYN MOORE SUTTON, LILY MOORE, Individually and as
     Executrix of the Estate of Earl K. Moore, Jr., Deceased;
              BEVERLY ANN MOORE; MICHAEL EARL MOORE,

                      Plaintiffs-Appellants,

                              versus

                    JAMES DORMAN, M.D., ET AL.,

                            Defendants,

                        JAMES DORMAN, M.D.,

                        Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                       USDC No. 5:03-CV-248
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Ellen Moore Sutton, Lily Moore, individually and as Executrix

of the Estate of Earl K. Moore, Beverly Moore, and Michael Moore

(the Moores), appeal the district court’s judgment in this medical

malpractice suit.   Finding no error, we AFFIRM.




     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                                   No. 05-50125
                                        -2-

     After the Moores filed suit against Drs. James Dorman and

Kenneth Walton in a Texas state court, the United States removed

the case under the Westfall Act on the basis that Dr. Walton was

acting within      the    scope    of   his    employment    with   the     Veterans

Administration      and    the    Department     of    Veterans    Affairs.        The

district court dismissed the claims against Dr. Walton on the basis

that he was the borrowed employee of University of Texas Health

Sciences   Center     and,      therefore,     the    Government    could    not    be

vicariously liable.        The Moores contend that the dismissal of the

claims against the United States under the borrowed employee

doctrine constituted a determination that Dr. Walton was not acting

in the scope of his federal employment.                  Thus, they argue, the

district   court    lacked       original     jurisdiction    and    should    have

remanded the matter to state court.              We disagree.

     The Moores’ argument rests on the faulty premise that Dr.

Walton could not simultaneously be both the borrowed employee of

UTHSC and acting within the scope of his federal employment.                       We

rejected this identical argument in Palmer v. Flaggman, 93 F.3d

196, 204-05 (5th Cir. 1996), which held that, under Texas law, the

two inquiries are separable.            As Texas law likewise applies to the

determination    of      both    borrowed     employee   status     and   scope    of

employment in this case, we reach the same conclusion that we did

in Palmer.

     We likewise conclude that the district court’s determination

that Dr. Walton was in the scope of his federal employment for the
                             No. 05-50125
                                  -3-

purposes of jurisdiction was not erroneous. Although the Moores do

not     directly   contest   the   district   court’s    certification

determination, we address the issue sua sponte as it implicates the

district court’s jurisdiction.     See Odeco Oil & Gas Co., Drilling

Div. v. Bonnette, 4 F.3d 401, 403 n.2 (5th Cir. 1993).       Given the

facts of this case, which are similar to those in Palmer, we

conclude that the district court’s determination that Dr. Walton

was acting within the scope of his employment was not erroneous.

See Palmer, 93 F.3d at 199.

      Finally, it is clear that the district court had supplemental

jurisdiction over the claims against Dr. Dorman.        See 28 U.S.C. §

1367.    Again, we address this issue sua sponte. Given the absence

of any complex issues of state law and the advanced stage of the

litigation, the district court did not abuse its discretion in

retaining jurisdiction over those claims after dismissing the

claims against the United States. See Smith v. Amedisys, Inc., 298

F.3d 434, 447 (5th Cir. 2005).

      For the foregoing reasons, the judgment of the district court

is AFFIRMED.
