Compelling Federal Witnesses to Attend State Court under Touhy (Part 2)

Department-of-Veterans-Affairs-logo-300x150     In Forgione v. HCA, Inc. 954 F.Supp.2d 1349 (N. D. Florida 2013), the Government made an unfounded argument that state employees and agents could also be Federal employees for purposes of 28 U.S.C. section 1442.  The Court for purposes of the question at bar stated:

Right to control is the classic factor in determining who is an employee when that question is in doubt. See, e.g., Langfitt v. Fed. Marine Terminals, Inc., 647 F.3d 1116, 1121 (11th Cir.2011) (“The essence of the common law’s test for whether an agent is an employee or an independent contractor is the control of details; that is, whether the principal has the right to control the manner and means by which the agent accomplishes the work.”); see also, e.g., N.L.R.B. v. Steinberg, 182 F.2d 850, 857 (5th Cir.1950)

 

The statute at play is the housekeeping statute at 5 U.S.C. section 301:

The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.

(emphasis added).

The United States often relies on Touhy to ask Courts to hold all persons paid by the Federal government, directly or indirectly, to be Federal employees and immune from subpoena by their overbroad regulations.  This ends up making contractors into employees though they do not fit any definition of employee.  A medical doctor, psychologist or similar contractor should not be held to be the same as FBI agent or a Federal probation officer like Gordon Gsell in State of Louisiana v. Sparks, 978 F.2d 226 (5th Cir. 1992).