Unpublished Disposition, 896 F.2d 555 (9th Cir. 1988)

MEMORANDUM^* 

Mary Black appeals the district court's grant of appellee Captain Glenn Rych's motion to dismiss for lack of subject matter jurisdiction certain common-law tort claims asserted by her against him. Appellant Black originally filed a complaint in district court against both the United States and Captain Rych, in which she alleged that Rych made improper sexual advances towards her while ostensibly conducting a medical examination of her. Federal jurisdiction for the claims against the United States was based on the Federal Tort Claims Act, 28 U.S.C. § 1346 and Sec. 2671 et seq., as well as on 10 U.S.C. § 1089, which provides for the defense of certain suits by the United States arising out of medical malpractice. Black's complaint additionally enumerated several common-law tort claims against Rych in his individual capacity.

On May 9, 1986, the district court dismissed the claims against the United States, concluding that Captain Rych was not acting within the scope of his employment during the alleged sexual advances and that no negligent supervision was present. Black appealed this decision to the Ninth Circuit, which affirmed it. Rych then maintained that there was no longer any federal basis for the district court to maintain jurisdiction over the tort claims remaining against him. The district court agreed, and on June 30, 1988, dismissed these claims for lack of subject matter jurisdiction. We affirm.

This case is directly controlled by the Supreme Court's recent decision in Finley v. United States, 109 S. Ct. 2003 (1989), which held that the Federal Tort Claims Act does not permit the exercise of pendent party jurisdiction. The fact that the alleged acts of medical malpractice made the provisions of 10 U.S.C. § 1089 applicable does not change the result. Section 1089 does not provide an independent basis for federal jurisdiction. Instead, it adds certain procedures for medical malpractice cases properly before a federal court under the Federal Tort Claims Act. None of these procedures demonstrates a congressional desire to have state law tort claims against physicians tried together with Federal Tort Claims against the United States. Indeed, the statute specifies that both claims can never be tried together: the Federal Tort Claims remedy against the United States is the exclusive remedy when the physician acts within the scope of his employment. 10 U.S.C. § 1089(a). There is certainly no indication in 10 U.S.C. § 1089 that Congress intended federal courts to hear such state tort claims once the federal claim has been dismissed. Cf. Owen Equip. & Erection Co. v. Kroger, Adm'x, 437 U.S. 365, 382 n. 4 (1978) (White, J., dissenting) (" [T]he dismissal prior to trial of the federal claim will generally require the dismissal of the nonfederal claim as well.") (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)).

Indeed, Sec. 1089 provides for a suit originally brought against a physician in state court to be removed to federal court and tried under the Federal Tort Claims Act when the Attorney General determines that the physician acted within the scope of his employment; and it also provides for the same suit to be remanded to state court in the event that the district court determines that the physician actually was not acting within the scope of his employment. 10 U.S.C. § 1089(c). Although the district court in the instant case was powerless to remand the dispute to state court because suit had not originally been filed there, Sec. 1089(c) illustrates the congressional design: either a federal remedy against the United States, or a state remedy against the physician, will be the proper result.

In any event, this circuit continues to maintain that it is without authority from Article III of the Constitution to hear pendent party claims absent an independent basis of subject matter jurisdiction. See, e.g., Ayala v. United States, 550 F.2d 1196, 1199-1200 (9th Cir. 1977), cert. dismissed, 435 U.S. 982 (1978); see also Carpenters S.Cal.Admin.Corp. v. D & L Camp Constr. Co., Inc., 738 F.2d 999, 1000 (9th Cir. 1984). We have previously noted that the Supreme Court's pendent party jurisprudence, focusing on statutory analysis, avoids the ultimate constitutional issue. See Ayala, 550 F.2d at 1200. The recent Finley decision avoids this issue as well. See Finley, 109 S. Ct. at 2006-07 ("We may assume, without deciding, that the constitutional criterion for pendent-party jurisdiction is analogous to the constitutional criterion for pendent-claim jurisdiction....").

AFFIRMED.