                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 05-1304



ROOSEVELT POLLARD, as surviving spouse, and
as Personal Representative of the Estate of
Veronica Pollard, deceased,

                                                 Plaintiff - Appellant,

          and


VERONICA POLLARD,

                                                              Plaintiff,

          versus


UNITED STATES OF AMERICA,

                                                  Defendant - Appellee,

          and


RAJ R. GUPTA; STERLING MEDICAL CORPORATION;
HUMANA MILITARY HEALTHCARE, INCORPORATED,
a/k/a  Humana   Incorporated,   a/k/a  Humana
Military Healthcare Services, Incorporated,

                                                             Defendants.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CA-02-764)


Submitted:   January 9, 2006                 Decided:   February 2, 2006
Before NIEMEYER, LUTTIG, and KING, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


Bruce J. Klores, Lesley Zork, BRUCE J. KLORES AND ASSOCIATES,
Washington, D.C.; Peter R. Masciola, Washington, D.C.; Robert A.
Graham, Eugene R. Fidell, FELDESMAN TUCKER LEIFER FIDELL, L.L.P.,
Washington, D.C., for Appellant. Rod J. Rosenstein, United States
Attorney, Larry D. Adams, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               -2-
PER CURIAM:

     Sergeant    Roosevelt    Pollard    appeals    the   district   court’s

dismissal of his medical malpractice claims against the United

States.   For the reasons that follow, we reverse and remand.



                                   I.

     This appeal arises out of a medical malpractice action brought

by plaintiff-appellant Sergeant Roosevelt Pollard and his now

deceased wife Veronica Pollard against the United States and

various health care providers at the Dwight D. Eisenhower Army

Medical Center (“DDEAMC”) in Fort Gordon, Georgia.             The relevant

facts are as follows.

     In early October 1998, Veronica Pollard sought treatment at

DDEAMC, complaining of a mass in her right breast.             J.A. 24.   A

biopsy performed that day showed atypical cells, and a surgical

removal and biopsy of the tumor performed on October 14, 1998,

confirmed that the mass was cancerous.             Id.    Immediately after

removal, the tumor was sent to an active duty Army pathologist --

Dr. Stephen Adams -- for further analysis.          Id. at 78-80.

     On October 26, 1998, a team of physicians at DDEAMC met to

discuss Mrs. Pollard’s condition and to decide on a course of

treatment.    Id. at 61-65.   The doctors did not have the benefit of

Dr. Adams’ analysis because he had not yet completed it.                  On

December 1, 1998, Mrs. Pollard was scheduled to meet with a


                                   -3-
civilian oncologist -- Dr. Raj Gupta -- working under contract at

DDEAMC.    However, Dr. Gupta discovered that the pathology reports

necessary to advise Mrs. Pollard were not available and that Dr.

Adams    had   not   yet   sent   samples   of   the   malignant    tissue   for

laboratory testing.        Id. at 78-81.

      When Mrs. Pollard returned for a rescheduled appointment on

December 15, 1998, Dr. Gupta had the pathology reports from Dr.

Adams.    Dr. Adams’ reports described the tumor as .5 centimeters,

but, according to the Pollards, it was more than twice that size

(1.1 centimeters).         Id. at 338, 421.       Dr. Gupta relied on Dr.

Adams’ report in making his recommendations to Mrs. Pollard.                 Id.

at 90.     Dr. Gupta explained to Mrs. Pollard that the tumor was

“very small,” and that “tumors that are this small have a very good

prognosis” and often do not require chemotherapy.             Id.    Dr. Gupta

nevertheless recommended that Mrs. Pollard undergo chemotherapy.

Id.     However, Mrs. Pollard never underwent chemotherapy, due in

part to her relocation to England (where Sgt. Pollard was assigned)

in December 1998.

        In June 2000, Mrs. Pollard was diagnosed with metastatic

cancer in her chest wall and right breast.              She returned to the

United States for treatment at Walter Reed Army Medical Center in

Washington, D.C., where she underwent several major surgeries.

Despite the efforts of the doctors, Mrs. Pollard’s cancer continued

to spread.     She died of metastatic cancer on December 29, 2003.


                                      -4-
     On March 11, 2002, the Pollards filed suit against the United

States, alleging that the DDEAMC physicians negligently diagnosed

and treated Mrs. Pollard’s cancer.          The Pollards later amended

their complaint to include causes of action against Dr. Gupta (Mrs.

Pollard’s    primary    treating     oncologist),       Sterling    Medical

Corporation (Dr. Gupta’s immediate employer), and Humana Military

Healthcare (the general contractor).

     In December 2003, the United States filed a motion for summary

judgment. The majority of the United States’ memorandum in support

of its motion was dedicated to its argument that the district court

lacked jurisdiction over the claims against the United States under

the Federal Tort Claims Act (“FTCA”) because the DDEAMC physicians

were independent contractors, and the FTCA waives the United

States’   sovereign    immunity    only   for   torts   committed   by   its

employees and not for torts of independent contractors. See id. at

382-94.     At places, however, the United States’ jurisdictional

arguments bled over into arguments on the merits, with the United

States asserting that “the surgery and pathology services provided

by DDEAMC . . . did not violate the standard of care or cause [Mrs.

Pollard’s] cancer.”      Id. at 384; see also id. at 389-90.             The

United States’ assertions that its physicians were not negligent

were unsupported by any citations to the record.

     In February 2004, Sgt. Pollard filed a response to the United

States’ motion for summary judgment.        He argued that the district


                                    -5-
court had jurisdiction because Dr. Gupta was an employee rather

than an independent contractor.           Id. at 420-21.         Sgt. Pollard

further   argued    that,   even   if   Dr.   Gupta   was   an    independent

contractor, the claims against the United States could not be

dismissed for lack of jurisdiction in their entirety because the

Pollards had also alleged that Dr. Adams was negligent, and it was

undisputed that Dr. Adams was an employee of the United States.

Id. at 421-22. Sgt. Pollard’s memorandum briefly recited the facts

underlying Dr. Adams’ alleged negligence, including the two-month

delay in producing the reports and the alleged misreporting of the

tumor’s size.      Id.   Sgt. Pollard’s memorandum did not provide any

citations to the record to support these allegations.

       On June 30, 2004, the district court dismissed all of the

claims against the United States for lack of jurisdiction.             Id. at

563.    The district court agreed with the United States that Dr.

Gupta was an independent contractor and that his negligence thus

could not subject the United States to liability under the FTCA.

Id. at 555-58.     As for the claim that Dr. Adams was negligent, the

district court concluded that Sgt. Pollard “proffered no evidence”

in support of his claims and that his “bare allegations” were

“insufficient to overcome a motion for summary judgment.”              Id. at

558. However, rather than entering summary judgment for the United

States with respect to the claims premised upon Dr. Adams’ conduct,




                                    -6-
the district court dismissed the claims against the United States

in their entirety for lack of jurisdiction.

     After the claims against the United States were dismissed, the

remaining claims against Dr. Gupta and the other defendants were

tried to a jury.   The jury returned a verdict for the defendants,

concluding that Dr. Gupta was negligent, but that his negligence

did not cause Mrs. Pollard’s injuries.   Id. at 565.



                                II.

     On appeal, Sgt. Pollard does not contest the district court’s

conclusion that Dr. Gupta was an independent contractor and that

the claims against the United States were therefore properly

dismissed for lack of jurisdiction insofar as they were premised

upon his negligence.   Instead, Sgt. Pollard argues only that the

district court erred in dismissing the claims against the United

States insofar as they were premised upon the actions of Dr. Adams

because Dr. Adams was an employee of the United States.   The United

States does not dispute that Dr. Adams was an employee rather than

an independent contractor.

     The district court clearly erred in dismissing for lack of

jurisdiction the claims against the United States insofar as they

were premised upon allegations that Dr. Adams was negligent.    The

district court appeared to believe that whenever a claim brought

against the United States under the FTCA fails, for whatever


                                -7-
reason,    the   appropriate   course     is    to   dismiss     for    lack   of

jurisdiction.       See J.A. 558 (“When a court concludes that the

United States is not liable for a party’s actions pursuant to the

FTCA, the proper practice is to dismiss the suit for want of

jurisdiction.”).     To the extent that this was the district court’s

understanding, it was mistaken.      Of course, when a court concludes

that the FTCA does not waive the United States’ sovereign immunity

with respect to the claims at issue -- for example, because the

claims allege torts committed by independent contractors rather

than employees -- the proper course is to dismiss for lack of

jurisdiction. See Williams v. United States, 50 F.3d 299, 304 (4th

Cir. 1995).      But where the claims fail, not because they do not

come within the scope of the FTCA’s waiver of sovereign immunity,

but simply because of a lack of proof, the proper course is to

enter judgment for the United States.           Because it was uncontested

that Dr. Adams was an employee of the United States -- and that the

claims    against   the   United   States      premised   upon    his    conduct

therefore fell within the scope of the FTCA’s waiver of sovereign

immunity -- it was error for the district court to dismiss those

claims for want of jurisdiction.

     In its brief on appeal, the United States argues that “[t]he

district court’s decision should be affirmed even if the more

appropriate procedural vehicle would have been summary judgment

rather than dismissal for lack of subject matter jurisdiction.”


                                    -8-
Appellee’s Br. at 14.       The United States fails to grasp that

dismissal for lack of jurisdiction and entry of summary judgment

are distinct dispositions with different consequences.        We cannot

affirm a judgment dismissing claims for lack of jurisdiction on the

“alternate     ground”   that   summary   judgment   would   have   been

appropriate.    At very least, we would be required to reverse and

remand with instructions to enter judgment for the United States.

       Even if the United States had requested that we reverse and

remand with instructions to enter summary judgment in its favor, we

would decline to do so because the United States failed to meet its

burden as the moving party.     The United States points out that the

district court specifically addressed the claims premised upon Dr.

Adams’ conduct and concluded that, in the absence of any citations

to the record, Sgt. Pollard’s “bare allegations” of negligence were

“insufficient to overcome a motion for summary judgment.”           J.A.

558.    However, the district court misapplied the burden-shifting

scheme associated with a motion for summary judgment.        Before the

burden ever shifts to the non-movant to come forward with record

evidence establishing a genuine issue of material fact, the movant

must first carry the initial burden of “pointing out to the

district court” those portions of the record that show “that there

is an absence of evidence to support the nonmoving party’s case.”

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also id. at

323 (“Of course, a party seeking summary judgment always bears the


                                   -9-
initial responsibility of . . . identifying those portions of the

‘pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,’ which it believes

demonstrate the absence of a genuine issue of material fact.”)

(quoting Fed. R. Civ. P. 56(c)); Adickes v. S. H. Kress & Co., 398

U.S. 144, 160 (1970) (“[W]here the evidentiary matter in support of

the motion [for summary judgment] does not establish the absence of

a genuine issue, summary judgment must be denied even if no

opposing   evidentiary   matter   is   presented.”)   (quoting   Advisory

Committee Note on 1963 Amendment to subdivision (e) of Rule 56.).

Because the United States’ assertions that Dr. Adams’ conduct was

not negligent were not supported by any citations to portions of

the record showing a lack of a genuine issue of material fact, the

burden of producing record evidence to the contrary never shifted

to Sgt. Pollard.   We cannot therefore remand with instructions to

enter summary judgment for the United States on the ground that

Sgt. Pollard failed to cite record evidence showing that Dr. Adams

was negligent, for the burden to do so was never properly his, the

United States having failed to carry its own burden.*       Instead, we



     *
      The United States also argues that summary judgment should be
entered in its favor because any error committed by the district
court was harmless in light of the jury’s subsequent finding that
Dr. Gupta’s negligence did not cause Mrs. Pollard’s injuries. We
reject this argument.     The fact that the jury found that Dr.
Gupta’s negligence did not cause Mrs. Pollard’s injuries says
nothing whatsoever about whether Dr. Adams’ negligence, if any
there be, caused Mrs. Pollard’s injuries.

                                  -10-
remand with instructions to adjudicate the summary judgment motion

with respect to the claims premised upon Dr. Adams’ conduct, with

such supplemental briefing as the district court deems necessary.



                           CONCLUSION

     For the reasons stated herein, the judgment of the district

court dismissing the claims against the United States is reversed

insofar as the claims were premised upon Dr. Adams’ actions, and

the case is remanded for proceedings not inconsistent with this

opinion.   We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                            REVERSED AND REMANDED




                              -11-
