The FTCA defines government employees as including officers and employees of “any federal agency,” but excludes “any contractor with the United States.” 28 U.S.C. § 2671; United States v. Orleans, 425 U.S. 807, 813-14, 96 S.Ct. 1971, 1975-76, 48 L.Ed.2d 390 (1976). In addition to statutory exceptions to the government's waiver of immunity under the FTCA, “[e]xceptions to government liability ... include the independent contractor exception and causes of action which allege government negligence based on claims of nondelegable duties or which sound in strict liability.”

If called to testify at a trial of this matter, Williams v. United States of America, Civil Action No. 16-14830, Section "A"(3), U.S. District Court for the Eastern District of Louisiana, I would testify competently and consistently with the statements contained in this declaration. 3. In my capacity as a VA Staff Attorney, I am responsible for the investigation of claims filed against the VA that are assigned to me, usually within the state of Louisiana, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. Accordingly, I have personal knowledge of administrative claims that are within my area of responsibility.

The FPD’s appointment and representation of Plaintiff in his appeal falls within the scope of 18 U.S.C. § 3006. As such, by the terms of 28 U.S.C. § 2671, employees of the FPD, including Ms. Shell, who handled Plaintiff’s case are not considered employees of the government for purposes of liability under the FTCA.3 C. Plaintiff fails to state a claim upon which relief can be granted.

All actions brought pursuant to the FTCA must be brought against the United States of America and not in the name of the allegedly negligent agency, entity or employee. 28 U.S.C. §§ 2671-2680; 28 U.S.C. § 1346(b). The only proper party in an FTCA action is the United States of America.

Plaintiff has not set forth any allegations that show the Secretary violated any terms of the Foreclosure Act. The Court also should dismiss Plaintiff’s Fourth and Fifth claims for negligence and fraud because the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) & 2671, et seq. (“FTCA”), is the exclusive remedy for an individual to recover money damages against the United States for tort liability. While Plaintiff did not expressly reference the FTCA in the complaint, this action – which is premised upon an alleged tort committed by an agency of the United States – only can be brought pursuant to the FTCA. Plaintiff, however, has not set forth allegations that show Plaintiff complied with FTCA prerequisites prior to filing this suit.

See also Mathis v. U.S. WL 4352291, *1-2 (D.Ariz.2011) (vague and conclusory claims asserted against unnamed “medical staff” are insufficient to state a medical malpractice claim under Rule 8(a)(2), Fed.R.Civ.P.; “therefore, claims asserted against unnamed medical staff are dismissed for failure to state a claim.”); Ponders v. U.S., 2014 WL 2612315, *2 (S.D.Fla.2014) (summary judgment granted due to plaintiff’s failure to identify a federal employee who was negligent); Adams v. U.S., supra (the terms “person” and “employee of the government” used in 28 U.S.C. § 2671 do not include institutions such as corporations). Conclusion Count I should be dismissed.

USA’S MOTION TO DISMISS 16-CV-02859 JCS 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Defendant United States of America brings this motion to dismiss plaintiffs’ claims against the United States for two principal reasons. First, the exercise of prosecutorial discretion by United States Immigration and Customs Enforcement (“ICE”) regarding when and how to seek custody of Juan Francisco Lopez-Sanchez is protected by the discretionary function exemption to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. (“FTCA”). ICE does not have the resources to appear at every location where an illegal alien subject to deportation is being released by state or local authorities.

See United States v. Sherwood, 312 U.S. 584, 586 (1941). Congress has created a limited waiver of sovereign immunity in the Federal Tort Claims Act 28 U.S.C. 2671, et seq. (FTCA); suits must comply with the terms and conditions strictly prescribed by Congress. Honda v. Clark, 386 U.S. 484, 501 (1967).

Therefore, the United States cannot be held liable for any alleged negligence resulting from Dr. Barrow’s alleged negligent surgery. Logue v. United States, 412 U.S. 521, 531-32 (1973) (government cannot be held liable under the FTCA for act of those that are not federal employees); Yanez v. United States, 63 F.3d 870, 872 (9th Cir. 1995) (citing 28 U.S.C. § 2671 and Logue, 412 U.S. at 93) (Congress incorporated into the definitions of the Act the exemption from liability caused by employees of a contractor). B. No Doctor at the VA Had a Duty to Obtain Informed Consent. Plaintiff claims Dr. Sim at the VA (Plaintiff’s primary care physician) failed to inform Plaintiff of the risk, before the orthopedic surgery was performed, that he might lose his foot as a result of the surgical procedure.

Sheridan v. United States, 487 U.S. 392, 400–01 (1988). The term “employee” is defined by 28 U.S.C. § 2671, and subject to narrow exceptions, typically does not include contractors or employees of contractors. Here, Plaintiff has not alleged facts identifying a VA employee or tortfeasor.