Unpublished Disposition, 920 F.2d 936 (9th Cir. 1990)

ORDER

We affirm the district court's judgment dismissing Madsen's FTCA claim. The court lacked subject matter jurisdiction, given its finding that Madsen failed to allege the United States has the ability to control the day-to-day activities of Dr. Morrell and Mr. Woodland.

The district courts have "exclusive jurisdiction of civil actions on claims against the United States ... for personal injury or death 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." 28 U.S.C. § 1346. Madsen claims that Dr. Morell and Woodland were de facto employees of the government because they received payments through Medicare and Medicaid and were subject to government control through regulation.¹ 

A contractor will be deemed to be an agent of the government if a federal authority can control and supervise the detailed physical performance and day-to-day operations of the contractor. Agency is not determined by whether the contractor must comply with federal standards and regulations. Ducey v. United States, 713 F.2d 504, 516 (9th Cir. 1983) (citing United States v. Orleans, 425 U.S. 807, 814-15 (1976)). Dr. Morrell and Woodland had to comply with federal regulations to receive payments from Medicare and Medicaid, but this alone does not equal control by the government. See id. Congress also expressly provided that "nothing in the [Medicare and Medicaid] subchapter shall be construed to authorize any federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided...." 42 U.S.C. § 1395.

Dr. Morrell and Woodland were not de facto government employees. The district court had no jurisdiction to hear Madsen's FTCA claim.

AFFIRMED.