UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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,

(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,

. 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.

The distinction has “procedural

ramifications” that are “more than academic.”

“[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.”

“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,

. The same principle applies regarding the discretionary function.

6 See

. 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

.

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,

(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.”

(b)(1); see also United States v. Sherwood,

(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.”

. 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,

(4th Cir. 1996). The FTCA waiver

of immunity is strictly construed. See

Consequently, “ambiguities are resolved in favor

of the sovereign.”

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,

(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,

(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,

(1976) (quoting Logue,

).

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.”

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

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,

, 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,

. 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,

(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,

(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,

. 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,

, at *6 (E.D.N.C. Mar. 29, 2019) (citing

(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,

(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,

(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,

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,

,

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,

at *1 (4th Cir. Apr. 30, 1999) (per curiam) (quoting Perez-Ruiz v. Crespo-Guillen,

(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.”

(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

, independent of an inconsistent state rule.” United States v. Muniz,

, 164–65 (1963); see also Parrott v. United States,

(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.”

(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,

(E.D.

Va. 1966); see also, e.g., Abuhouran v. United States,

, 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,

(5th Cir. 1976))); Smith v. United States,

(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,

(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,

, 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.”

. 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