UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Normand Dumais, Jr., et al.
v. Case No. 22-cv-112-PB Opinion No. 2024 DNH 007 United States of America, et al.
MEMORANDUM AND ORDER
Normand Dumais and his spouse, Amanda Ames, have filed a
complaint against the United States pursuant to the Federal Tort Claims Act
(FTCA) seeking damages arising out of injuries Dumais suffered while
working as a New Hampshire firefighter at the Pease Air National Guard
Base. The government has responded with a motion to dismiss for lack of
subject matter jurisdiction.
A federal court has subject matter jurisdiction to consider an FTCA
claim only to the extent that “the United States, if a private person, would be
liable to the claimant in accordance with the law of the place where the act or
omission occurred.” 28 U.S.C. § 1346(b)(1). The government argues that the
court lacks subject matter jurisdiction because it would be considered
Dumais’ “borrowing employer” under New Hampshire law if it were a private
person and thus immune from suit under the exclusivity provision of New Hampshire’s workers’ compensation law. I agree, and therefore grant the
government’s motion to dismiss.
I. BACKGROUND 1
Dumais was hired by the State of New Hampshire to work as a
firefighter at the Pease Fire Department, which is located on the Pease Air
National Guard Base in Newington, New Hampshire. Doc. 34-2 at 2-3.
Firefighters assigned to the department provide firefighting services to the
base as well as an adjacent civilian airport. Id. at 3. They also occasionally
provide support to surrounding communities if called for mutual aid by other
fire departments. Id. When the events that give rise to this action occurred,
the only federal employee within the fire department was the base fire chief. 2
Doc. 29-3 at 3. All other members of the department were state employees,
including two assistant fire chiefs and several captains and lieutenants. Id. at
4-5. The captains and lieutenants reported to the assistant fire chiefs, who in
turn reported to the fire chief. Id. at 4-5, 20, 23. The fire chief did not exercise
control over the firefighters and instead entrusted supervisory
1 I focus my discussion on the facts most relevant to the instant motion, but incorporate the facts more fully laid out in my prior order. See Dumais v. United States, 2023 DNH 101, 2023 WL 5237904 (D.N.H. Aug. 15, 2023).
2 In 2021, the New Hampshire National Guard transitioned all firefighters at Pease to federal employees. Doc. 29-5 at 5. 2 responsibilities to the assistant fire chiefs, captains, and lieutenants. Id. at 4-
5.
The fire department was funded and operated pursuant to an
Operations and Maintenance Master Cooperative Agreement (MCA) through
which the United States agreed to provide funding in exchange for New
Hampshire’s agreement to provide certain services in support of the National
Guard. Doc. 29-4 at 3, 13. The MCA consists of two parts. Id. at 16. The first
part outlines “standard terms and conditions” that apply to the MCA as a
whole. Id. It states, as relevant here, that New Hampshire “shall exercise its
best efforts to supervise, manage, operate and/or maintain all activities or
projects within the scope of this MCA . . . according to the terms, condition[s],
and specifications of this MCA and its Appendices.” Id. at 47. The second part
includes various appendices that outline “specific terms and conditions” for
each service that the state has agreed to provide. Id. at 16. Appendix 24
pertains to the state’s “Air National Guard Fire Protection Activities
(ANGFPA) Program,” through which the firefighting services at Pease were
operated. Id. at 70. One provision in Appendix 24 provides that “ANGFPA
employees, work under the day to day supervision of the Base Fire Chief or
his/her designee.” Id. at 74.
Dumais was hired by the state pursuant to Appendix 24 to serve as a
full-time firefighter at the Pease Fire Department. Doc. 44-2 at 3. While
3 working at the department, Dumais suffered serious injuries from a piece of
federally-owned firefighting equipment that malfunctioned. Doc. 43 at 5. He
received compensation for his injuries through the state’s workers’
compensation insurance plan. Doc. 29-2 at 47.
Pursuant to the FTCA, Dumais and Ames brought suit against the
United States for negligence and loss of consortium. Doc. 43 at 5, 7. The
government responded with a motion to dismiss for lack of subject matter
jurisdiction, arguing that the plaintiffs’ claims fall outside the FTCA’s narrow
waiver of sovereign immunity because the government would not be liable
under state law if it were a private person. In the government’s view, it was
Dumais’ borrowing employer and therefore immune from suit pursuant to
New Hampshire’s workers’ compensation law.
II. STANDARD OF REVIEW
A defendant may attack the court’s subject matter jurisdiction through
a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1)
either by challenging the facial sufficiency of the plaintiff’s jurisdictional
claim or by questioning its factual basis. Torres-Negron v. J&N Records,
LLC, 504 F.3d 151, 162 (1st Cir. 2007). Facial challenges are evaluated using
the familiar plausibility standard that applies to motions to dismiss for
failure to state a claim. Gordo-Gonzalez v. United States, 873 F.3d 32, 35 (1st
Cir. 2017). Factual challenges, however, require different treatment. If the
4 relevant jurisdictional facts have no bearing on the merits of the parties’
dispute, “the trial court is free to weigh the evidence and satisfy itself as to
the existence of its power to hear the case.” Torres-Negron, 504 F.3d at 163
(quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). But if
the jurisdictional facts are intertwined with the merits, the court ordinarily
must borrow the standard used to resolve summary judgment motions and
may grant the motion “only if the material jurisdictional facts are not in
dispute and the moving party is entitled to prevail as a matter of law.” Id.
(quoting Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553,
1558 (9th Cir. 1987)). Otherwise, the case must proceed to a trial, at which
point jurisdiction will be reevaluated. Id.
In this case, the government has mounted a factual challenge to the
court’s subject matter jurisdiction and the jurisdictional facts are intertwined
with the merits of the plaintiffs’ FTCA claims. See Brownback v. King, 141 S.
Ct. 740, 748 (2021) (noting that a lower court’s determination that the United
States would not be liable under state law passed on the merits of an FTCA
claim as well as the court’s subject matter jurisdiction). While this would
ordinarily require the court to analyze the issue using the summary
judgment standard, because the court acts as the ultimate finder of fact in
FTCA cases, see 28 U.S.C. § 2402, it may exercise its discretion to make
independent findings on the jurisdictional issue so long as the parties have
5 “an opportunity for discovery and for a hearing that is appropriate to the
nature of the motion to dismiss.” Williamson v. Tucker, 645 F.2d 404, 414
(5th Cir. 1981); see Crawford v. United States, 796 F.2d 924, 929 (7th Cir.
1986) (“where there is no right to jury trial the judge may, if the jurisdictional
issue requires for its sound disposition pretrial discovery and a full oral
hearing, make that hearing the first stage of the trial.”). Here, both sides
agree that the issue is ready for resolution and neither seeks an evidentiary
hearing. Accordingly, I determine the court’s jurisdiction to hear the case by
drawing on the record the parties have compiled and making any factual
findings that may be required to resolve the issue.
III. ANALYSIS
The FTCA “allows a plaintiff to bring certain state-law tort suits
against the Federal Government.” Brownback, 141 S. Ct. at 745. The
government has waived its immunity to suits brought under the FTCA and
granted subject matter jurisdiction to federal district courts to hear FTCA
claims, but only to the extent that a private person would be liable under
state law for the same conduct. 28 U.S.C. §§ 1346(b)(1), 2674. Accordingly, “if
a private person under ‘like circumstances’ would be shielded from liability
pursuant to a state statute, lower courts must decline to exercise subject-
matter jurisdiction.” In re FEMA Trailer Formaldehyde Prods. Liab. Litig.,
668 F.3d 281, 289 (5th Cir. 2012).
6 The government asserts that New Hampshire’s workers’ compensation
law, N.H. Rev. Stat. Ann. § 281-A:8, confers such a shield. Section 281-A:8
provides that workers’ compensation is the exclusive remedy for injured
employees, thereby immunizing employers from tort claims brought by
employees or their spouses. In re N.H. Dep’t of Corrs., 162 N.H. 750, 753-754
(2011); see also O’Keefe v. Associated Grocers of New England, Inc., 117 N.H.
132, 134 (1977). The immunity provided by the statute applies to both
“general employer[s]” and “borrowing employer[s].” LaVallie v. Simplex Wire
& Cable Co., 135 N.H. 692, 694, 697 (1992). A borrowing employer is one who,
for a particular purpose or period of time, obtains the rights to the services of
another employer’s employee, although the employee remains employed by
his general employer. See id. at 694. Stated differently, “the servant of A
may, for a particular purpose or on a particular occasion, be the servant of B,
though he continues to be the general servant of A and is paid by him for his
work.” Indemnity Ins. Co. v. Cannon, 94 N.H. 319, 320 (1947).
To determine whether an entity is a borrowing employer under § 281-
A:8, New Hampshire employs a multiple factor test substantially similar to
the test enumerated in § 220 of the Restatement (Second) of Agency.
LaVallie, 135 N.H. at 695; see also Petition of City Cab of Manchester, Inc.,
139 N.H. 220, 221 (1994). Under this test, the court must consider “all
relevant factors” given the “totality of the circumstances,” including (1)
7 whether the employer enjoyed the right to control the details of the
employee’s work, (2) whether the employee was “engaged in a distinct
occupation or business,” (3) whether the employee’s occupation was one in
which his work would generally be supervised by an employer, (4) the level of
skill required for the employee’s position, (5) whether the employer supplied
the “instrumentalities, tools and the place of work,” (6) whether the employee
was paid “by the time, or by the job,” (7) whether the work performed by the
employee was “part of the regular business of the employer,” (8) whether the
parties believed that they were creating an employment relationship, (9)
whether the employer enjoyed the right to “summarily discharge[]” the
employee, and (10) whether the employee explicitly or impliedly consented to
an employment relationship with the employer. LaVallie, 135 N.H. at 695-
696; see Appeal of Longchamps Elec., Inc., 137 N.H. 731, 735 (1993)
(hereinafter Longchamps). Whether an entity is an employer within the
meaning of § 281-A:8 is a question of fact, see Cont’l Ins. Co. v. N.H. Ins. Co.,
120 N.H. 713, 716 (1980); on which the defendant bears the burden of proof,
see Leeman v. Boylan, 134 N.H. 230, 234 (1991).
Although the parties agree that New Hampshire was Dumais’ “general
employer,” the government contends that it is immune from suit under § 281-
A:8 because it was his “borrowing employer.” The government argues that, by
placing Dumais under the “day to day supervision” of a federal employee, the
8 MCA provided the government with the right to control the details of
Dumais’ work. In the government’s view, this contractual delegation of
control, along with the remaining LaVallie factors, indicates that it was
Dumais’ borrowing employer.
The plaintiffs object, arguing that the language of the MCA is
ambiguous and that the evidence, viewed as a whole, demonstrates that the
government did not have the right to control Dumais. The plaintiffs further
contend that, even if the MCA did provide the government with a contractual
right to control, it should be disregarded in light of the undisputed fact that
the government did not ever exercise its right to control Dumais. Finally, the
plaintiffs assert that the majority of the remaining LaVallie factors support
their assertion that Dumais was not the government’s borrowed employee.
A. Applying the LaVallie Factors
As both parties recognize, the historical facts of the case are largely
undisputed. The parties’ dispute, therefore, centers on how those facts inform
the LaVallie test. Because it is at the center of the parties’ dispute, I begin
with the right to control before proceeding to the remaining LaVallie factors.
1. Right to Control
The right to control factor looks to “[t]he extent of control which, by the
agreement, the employer may exercise over the details of the work.” LaVallie,
135 N.H. at 695. This factor weighs in favor of finding an employment
9 relationship where the purported employer has “the right to control not only
the results sought but also the means by which those results are achieved.”
See NLRB v. Amber Delivery Serv., Inc., 651 F.2d 57, 61 (1st Cir. 1981)
(discussing the Restatement test); accord Longchamps, 137 N.H. at 736. In
determining whether an employer enjoys such a right, courts will often look
to the employment contract. See, e.g., LaVallie, 135 N.H. at 695-696; see also
Lex K. Larson, 5 Larson’s Workers’ Compensation Law § 61.05 (Matthew
Bender, Rev. Ed. 2023) (hereinafter Larson) (collecting cases and describing
“the employment contract itself” as “the best possible evidence” of the right to
control).
Appendix 24 of the MCA specifically provides that “ANGFPA
employees, work under the day to day supervision of the Base Fire Chief or
his/her designee.” Doc. 29-4 at 74. The government has offered evidence, and
the plaintiffs do not dispute, that Dumais was considered an “ANGFPA
employee[]” under the MCA. 3 Doc. 44-2 at 3; Doc. 44-3 at 3.
The plaintiffs assert that this provision is contradicted by the MCA’s
“standard terms and conditions” section, which states that New Hampshire
3 To be clear, the plaintiffs do not agree that Dumais was an “employee[]” of the federal government. They do not, however, dispute that he would be considered an “ANGFPA employee[]” as that phrase is used in the MCA. My analysis focuses solely on the degree of control conferred by the MCA, and is in no way impacted by the contract’s use of the term “employee[].”
10 has the general duty to “supervise . . . all activities or projects within the
scope of th[e] MCA.” Doc. 29-4 at 47. That supervisory power, however, is not
in conflict with the fire chief’s supervisory power outlined in Appendix 24
because the MCA provides that the state’s supervisory power must be
exercised “according to the terms, condition[s], and specifications of this MCA
and its Appendices.” Id. Even if the two provisions were in conflict, the more
specific provisions of Appendix 24 would control. 4 See Lawson v. FDIC, 3 F.3d
11, 17 (1st Cir. 1993) (“it is a familiar precept of contract interpretation that
the specific controls the general.”); accord Restatement (Second) of Contracts
§ 203(c). Thus, the MCA unambiguously gives the fire chief—a federal
employee—the right to exercise “day to day supervision” over Dumais’ work.
The phrase “day to day supervision” connotes, not merely the right to
assign tasks, but also the right to control the manner and method of
executing those tasks. See Bravo v. United States, 403 F. Supp. 2d 1182,
1194-1195 (S.D. Fla. 2005) (concluding that a contractual provision allowing
an employer to exercise “day-to-day direction” over an employee
4 The plaintiffs’ reliance on NGR 5-1, a regulation issued by the National Guard Bureau and incorporated into the MCA, is unavailing for similar reasons. NGR 5-1 states that grantees, such as New Hampshire, are responsible for “[s]upervising and managing all activities or projects within the scope of the [MCA] in accordance with sound business practices.” Doc. 29- 4 at 14. These general terms, which apply to all cooperative agreements entered into by the government, necessarily give way to the more specific terms of Appendix 24. See id. at 9. 11 unambiguously conferred a right to control the “detailed physical
performance” of the employee). Indeed, it is a phrase most frequently
associated with an employment relationship, to which the right to control is
central. See, e.g., United States v. Orleans, 425 U.S. 807, 815 (1976) (noting
that an employee is one whose “day-to-day operations are supervised by the
Federal Government”). Accordingly, with the benefit of the parties’ briefing
on the matter, it is clear that the MCA’s delegation of “day to day
supervision” to the fire chief provided the government with the right to
control the details of Dumais’ work.
The plaintiffs assert that the MCA’s delegation of control should
nonetheless be disregarded in light of the undisputed fact that the
government did not actually exercise control over the details of Dumais’
work. In support of their argument, the plaintiffs cite to Kowalski v. Shell Oil
Co., 588 P.2d 811 (Cal. 1979), and Schmidlkofer v. Industrial Commission, 61
N.W.2d 862 (Wis. 1953), as examples of cases where the court found that a
purported employer did not enjoy the right to control, notwithstanding a
contractual delegation of control.
Those cases, however, do not support the plaintiffs’ contention that the
MCA should be disregarded. Each case turned on direct evidence that the
employer did not, in reality, retain the right to control seemingly provided for
by the contract. See Kowalski, 588 P.2d at 814 (testimony from the
12 defendant’s employees that they had no right to control the plaintiff’s work);
Schmidlkofer, 61 N.W.2d at 865 (evidence that the employer did not have the
right to control important aspects of the employee’s work). Read in context,
neither case stands for the proposition advanced by the plaintiffs that
contractual delegations of control must be entirely disregarded where the
right to control is not exercised. 5 Rather, the cases simply recognize that
5 Even if the plaintiffs are correct that Kowalski and Schmidlkofer hold that courts ought to disregard contractual delegations of control where no control is exercised, the New Hampshire Supreme Court is unlikely to follow suit. Although the New Hampshire Supreme Court cited to Kowalski in Longchamps, it did so only for the purpose of drawing factual comparisons. 137 N.H. at 736. Because it had no bearing on the case at hand, the court did not discuss Kowalski’s conclusion that the jury was justified in finding that the defendant did not enjoy the right to control the plaintiff notwithstanding a contractual delegation of control, let alone indicate support for the proposition that contractual delegations of control ought to be disregarded. To the contrary, the court in Longchamps emphasized the importance of contractual delegations of control by directing courts to consider “[t]he extent of control which, by the agreement, the employer may exercise over the details of the work.” Id. at 734 (quoting LaVallie, 135 N.H. at 695). While it is true that the “naked right to control” is insufficient to establish an employment relationship standing alone, New Hampshire precedent makes clear that a contractual right to control is nonetheless an important consideration. See id. at 736 (citing to Barajas v. USA Petroleum Corp., 229 Cal. Rptr. 513, 518 (Cal. Ct. App. 1986)). Moreover, turning a blind eye to contractual delegations of control would render New Hampshire an outlier: Far from disregarding contractual delegations of control, courts generally afford significant weight to such terms when determining who possesses the right to control. See In re FedEx Ground Package Sys. Inc. Emp. Pracs. Litig., 283 F.R.D. 427, 490 (N.D. Ind. 2008) (analyzing the law of several states and noting that “courts looking for either a right to control or actual exercise of control . . . needn’t look further [than the employment agreement] if the agreement creates a right to control”); see also Larson § 61.05 (“When the
13 factfinders faced with conflicting evidence on the right to control are not
obligated to elevate the terms of the contract over contrary evidence. See
Kowalski, 588 P.2d at 816 (“a contract is not conclusive evidence of the
existence of the right to control . . . .”); Schmidlkofer, 61 N.W.2d at 865
(“Writings attempt to define the status of the parties are important as
evidence, but they are not controlling.”).
That principle has little application to the instant case. Here, there is
no evidence that the government did not have the right to “day to day
supervision” over Dumais; rather, there is only evidence that the government
did not directly exercise that right. 6 While the fact that the government did
not actually exercise control over the details of Dumais’ work may impact
degree of control is spelled out in the agreement, there are usually only two remaining questions: first, whether the extent of control so created indicates employment . . . and second, whether the agreement is bona fide and can be taken at its face value . . . .”).
6 The plaintiffs point to deposition testimony by Lieutenant Colonel Ricker, the base civil engineer who supervised the fire chief, as evidence that the government did not have the right to control seemingly provided for by the MCA. In response to a question as to whether the chief would be “ultimately responsible” “if a state firefighting employee was not doing something properly,” Ricker stated: “No. They’re state employees. The fire chief only has a certain level of control, and ultimately personnel decisions are taken by the state.” Doc. 46-2 at 9-10. Contrary to the plaintiffs’ assertion, the testimony does not indicate that the fire chief lacked the right to exercise “day to day supervision” over the state firefighters; indeed, Ricker explained that the chief had a “certain level of control.” Rather, the testimony stands only for the uncontested fact that the state was ultimately in charge of personnel decisions. 14 other factors in the analysis, it does not contradict or otherwise call into
question the government’s assertion that the MCA gave it the right to such
control. Cf. Volkswagen Interamericana, S.A. v. Rohlsen, 360 F.2d 437, 442
(1st Cir. 1966) (concluding that, where a principal had a contractual right to
control an agent, the trial court did not err in excluding evidence as to
whether the principal actually exercised that control because “[w]hat matters
[under the Restatement test] is that it had the power”). After all, an employer
may retain a right it chooses not to exercise. See Restatement (Second) of
Agency § 220 cmt. d. And it is the right to control, rather than the exercise of
control, that matters to the analysis. See Langfitt v. Fed. Marine Terminals,
Inc., 647 F.3d 1116, 1121 (11th Cir. 2011) (noting that, under the
Restatement test, “it is the right and not the actual exercise of control that is
the determining element of employment”); Rohlsen, 360 F.2d at 442. For
these reasons, “the absence of exercise of control has seldom been given any
weight in showing absence of right to control,” particularly where, as here,
there is a contractual delegation of control. Larson § 61.05 (collecting cases)
(emphasis in original).
Thus, I conclude that the government enjoyed the right to control the
details of Dumais’ work, which weighs heavily in favor of finding an
employment relationship.
2. Remaining LaVallie Factors
15 In addition to the right to control, several of the other LaVallie factors
support the government’s contention that it was Dumais’ borrowing
employer. For example, Dumais was not “engaged in a distinct occupation or
business.” LaVallie, 135 N.H. at 695. He did not own his own business or
otherwise seek to contract out his labor to multiple entities, but rather
worked full-time at the Pease Fire Department. Doc. 29-3 at 42. See
Restatement (Second) of Agency § 220 & cmt. h (noting that “full time
employment by one employer” is indicative of an employment relationship);
cf. Suskovich v. Anthem Health Plans of Va., Inc., 553 F.3d 559, 569 (7th Cir.
2009) (applying the Restatement test and noting that an individual was
engaged in a “distinct occupation or business” where he “started his own
business” and “contract[ed] his work out to a number of companies”); Briggs
v. Lawrence, 281 Cal. Rptr. 578, 584 (Cal. Ct. App. 1991) (applying the
Restatement test and noting that attorneys were not “engaged in a distinct
occupation or business” where they “devoted their full time to their duties as
public defenders for Monterey County”).
Furthermore, Dumais was paid by the hour, rather than by the job.
Doc. 29-4 at 5. See Restatement (Second) of Agency § 220 & cmt. h (noting
that “payment by hour or month” indicates an employment relationship).
And, given the hierarchical structure of fire departments, it would be
customary for firefighters such as Dumais to work under the supervision of
16 their superiors, rather than be expected to make independent decisions about
their work. 7 See Restatement (Second) of Agency § 220 & cmt. h (noting that
“close supervision of the servant’s work” is indicative of an employment
relationship).
In addition, Dumais’ services were part of the “regular business” of the
federal government insofar as there was a “continuous, essential connection”
between his work and the operation of the military base. Petition of City Cab
of Manchester, Inc., 139 N.H. at 222. Air force installations, such as Pease,
require firefighting services in order to ensure the safe and effective
operation of aircraft. Doc. 29-3 at 3-4. Given the critical nature of fire
protection services, either state or National Guard firefighters were always
present at the base. Id. at 4; Doc. 46-3 at 3. In the absence of an MCA
7 The plaintiffs argue that whether Dumais was engaged in a distinct business, paid by the hour, or in an occupation that is typically subject to supervision goes to “whether a person is an employee or an independent contractor” and “does not seem to inform the analysis under the borrowed servant doctrine.” Doc. 46-1 at 14-15. Although the Restatement test is frequently used to distinguish between employees and independent contractors, the New Hampshire Supreme Court adopted its factors in a borrowing employer case, without any indication that those factors apply differently in such a case. LaVallie, 135 N.H. at 695-696. Moreover, the New Hampshire Supreme Court has subsequently applied those same factors in a different borrowing employer case, where it explicitly analyzed the employee’s payment scheme and level of supervision. Longchamps, 137 N.H. at 733, 737. Accordingly, there is no basis on which to conclude that such factors are irrelevant or otherwise less important to the borrowing employer analysis at issue here. 17 providing for firefighting services, fire departments at other air force
installations are staffed by federal employees. Doc. 29-5 at 6. And where, as
here, firefighting services are provided by the state pursuant to an MCA,
state firefighters’ salaries are fully reimbursed by the federal government,
reflecting the government’s determination that the firefighters “directly and
completely support the National Guard’s mission.” Doc. 29-4 at 3-4.
Nonetheless, the plaintiffs assert that this factor should not weigh
heavily in favor of finding an employment relationship because the fire
department also served the adjacent civilian airport and responded to calls
for mutual aid in the surrounding community. In the plaintiffs’ view, that the
department “did not exclusively serve the United States” undercuts the
inference that Dumais was a federal employee. Doc. 46-1 at 13.
Contrary to the plaintiffs’ argument, the evidence indicates that
Dumais’ work off-base was not separate and apart from his work for the
federal government, but rather part and parcel of it. Appendix 24 requires
the state to provide firefighting services, not only to the base, but also to
other entities pursuant to “Mutual Aid/Reciprocal Agreements established at
the local level.” Doc. 29-4 at 71. There is no indication that the sort of
“mutual aid” to the surrounding community referenced by the plaintiffs fell
outside this provision of Appendix 24. Doc. 34-2 at 3. To the contrary, if it
were the case that responding to emergencies off-base was performed at the
18 state’s direction rather than pursuant to Appendix 24, the state would have
been obligated to pay for such services. Doc. 29-4 at 72 (“Fire Department
services deemed necessary by the [state] beyond the scope of services listed
[in Appendix 24] will be supported by State . . . funds”). The state did not,
however, pay for any portion of the state firefighters’ salaries, which were
fully reimbursed by the federal government. Id. at 4. Furthermore, the
department continued to serve the civilian airport and surrounding
community after transitioning all firefighters to federal employees, which
indicates that such services fall within the scope of the federal government’s
work. See Doc. 29-5 at 4-5. Accordingly, Dumais’ work was part of the
“regular business” of the government, even if entities other than the
government ultimately benefitted from that work.
The government’s assertion that it was his borrowing employer is
further supported by the fact that the federal government supplied Dumais’
place of work and many of his tools, including firefighting equipment of
substantial value. Doc. 29-3 at 4. This is a strong indication of an
employment relationship because, as the comments to the Restatement point
out, “if [a] worker is using his employer’s tools or instrumentalities, especially
if they are of substantial value, it is normally understood that he will follow
the directions of the owner in their use.” Restatement (Second) of Agency
§ 220 cmt. k.
19 The plaintiffs do not dispute that the fire department was located on
federal property and utilized federally-owned equipment, but nonetheless
contend that this factor does not weigh in favor of finding an employment
relationship. In the plaintiffs’ view, that the government owned the
firefighting equipment is of little value where, as here, it did not exert control
over the use of that equipment. But, contrary to the plaintiffs’ assertion,
Dumais averred that state firefighters were not permitted to perform
maintenance work on federal equipment, which indicates that the
government placed at least some restrictions on the use of its equipment.
Doc. 34-2 at 4. In any event, that the government owned the equipment and
had a contractual right to exercise “day to day supervision” over the state
firefighters indicates that the government was entitled to direct the use of its
equipment, even if it seldom exercised this right.
Finally, the evidence indicates that Dumais consented to an
employment relationship with the government. The test for consent “is an
objective one, and the employee may be shown to have consented either
expressly or impliedly.” Langfitt, 647 F.3d at 1126 (emphasis in original);
accord Longchamps, 137 N.H. at 737. Implied consent “may be gleaned from
the employee’s conduct and the nature of the employee’s relationship with the
borrowing principal,” regardless of whether the employee subjectively
believed that he was entering into an employment relationship. Langfitt, 647
20 F.3d at 1126.
Implied consent is most frequently evinced by an employee’s acceptance
of his employer’s direction which, as the plaintiffs note, is lacking here
because the government concedes that it did not exercise control over
Dumais. Nonetheless, the nature of the parties’ relationship and Dumais’
conduct within it indicates that Dumais impliedly consented to an
employment relationship with the government.
It is not the case that Dumais was hired by the state and then
temporarily assigned to work on a military base. Cf. Longchamps, 137 N.H.
at 737 (finding no implied consent where the employee was sent by his
general employer to perform work for a third party on a temporary basis).
Rather, Dumais resigned from his prior position with the state so that he
could specifically pursue a permanent, full-time position at Pease. Doc. 29-3
at 42; Doc. 46-3 at 3. Dumais proceeded to work at the fire department for
over a year which is, in and of itself, indicative of consent. See Langfitt, 647
F.3d at 1126 (“A long-term employment relationship with a borrowing
principal strongly suggests that the employee consented to being a borrowed
servant.”); accord Restatement (Second) of Agency § 220 cmt. h (noting that
“employment over a considerable period of time with regular hours” is
indicative of an employment relationship).
Furthermore, given Dumais’ training and experience, he was
21 undoubtedly aware that fire chiefs customarily enjoy the right to issue
commands to subordinate firefighters. Cf. N.H. Rev. Stat. Ann. § 154:2, I
(providing that, in fire departments organized under the laws of New
Hampshire, “fire chiefs shall have the authority and the control of all
firefighters and officers”). Dumais had no reason to believe that the Pease
Fire Department departed from this practice, particularly given that the chief
of the department was an experienced firefighter who possessed the
knowledge and expertise needed to command firefighting operations. Doc. 29-
3 at 2, 34. Cf. Longchamps, 137 N.H. at 733 (finding that a company was not
a worker’s borrowing employer where there was no evidence that any of the
company’s agents were qualified to direct the worker’s electrical work). Thus,
Dumais was likely aware that the fire chief had the power to issue orders
through the fire department’s chain of command.
Moreover, given that the fire chief was a uniformed member of the
military, Dumais was likely aware that the chief was a federal employee.
Doc. 46-3 at 1. Accordingly, Dumais knew or should have known that he
worked under the ultimate control of a federal employee. Dumais’ continued
employment under these circumstances indicates that he objectively
consented to federal employment, even if he did not subjectively believe that
he was doing so. See Prodanic v. Grossinger City Autocorp, Inc., 975 N.E.2d
658, 664 (Ill. App. Ct. 2012) (“Implied consent exists where the employee
22 knows that the borrowing employer generally controls or is in charge of the
employee’s performance.”).
While most of the LaVallie factors support the government’s argument
that it was Dumais’ borrowing employer, three of the factors counsel against
finding an employment relationship. First, Dumais did not subjectively
believe that he was a federal employee. Doc. 34-2 at 2. Second, although the
fire chief had the right to “be involved in all personnel actions concerning the
State employees,” he did not have the right to unilaterally fire Dumais. Doc.
29-4 at 75. Third, firefighting is a skilled occupation. See Longchamps, 137
N.H. at 737 (concluding that an electrician apprentice was in a skilled
occupation, even though he was still in training).
The question then becomes whether the LaVallie factors, on balance,
indicate that the government was Dumais’ employer.
B. Balancing the LaVallie Factors
As I explained, the determination of whether an entity is a borrowing
employer requires a consideration of the totality of the circumstances, in
which no one factor is necessarily determinative. Nonetheless, some factors
necessarily carry more weight than others. See Wilson v. Nooter Corp., 475
F.2d 497, 502 (1st Cir. 1973).
In the context of this case, many of the factors that counsel against
finding an employment relationship should be afforded comparatively little
23 weight. While it is true that working in a skilled occupation generally
counsels against a finding of employment, “if the occupation is one which
ordinarily is considered . . . an incident of the business establishment of the
employer, there is an inference that the [worker] is a servant,” particularly
where the worker is “regularly employed.” Restatement (Second) of Agency
§ 220 cmt. i. Such is the case here: Dumais worked full-time at a fire
department that performed the work of the federal government in a role that
is often (and presently) filled by federal employees. Similarly, although
Dumais did not believe that he was in an employment relationship with the
government, such beliefs are only relevant “insofar as [they] indicate[] an
assumption of control by the one and submission to control by the other.” Id.
at cmt. m. Thus, Dumais’ beliefs fall into relative insignificance where, as
here, there is a contractual delegation of control and implied consent. Finally,
although the fire chief could not personally terminate Dumais, his right to
“be involved in” and “provide input into” the state’s termination decisions
tempers the force of this factor. Doc. 29-4 at 75; Doc. 29-3 at 5.
In contrast, many of the factors that weigh in favor of finding an
employment relationship are afforded significant weight. For example,
utilizing the government’s equipment is a strong indication of employment,
particularly where, as here, the equipment is of substantial value. See
Restatement (Second) of Agency § 220 cmt. k; Larson § 61.07 (“When the
24 employer furnishes valuable equipment, the relationship is almost invariably
that of employment.”).
It is also notable that Dumais impliedly consented to an employment
relationship with the government. While consent is not a necessary
prerequisite to an employment relationship under New Hampshire law, it is
nonetheless an important consideration in cases such as this, where the issue
is whether the employee forfeited the right to sue by entering into a new
employment relationship. See Longchamps, 137 N.H. at 735. The presence of
consent here is, therefore, compelling.
Similarly, that the government had the right to control the details of
Dumais’ work is a particularly forceful consideration. Indeed, courts have
recognized that the right to control is among the most important factors and
warrants significant weight. See Cont’l Ins. Co., 120 N.H. at 717 (quoting
Hunter v. R.G. Watkins & Son, Inc., 110 N.H. 243, 246 (1970)) (“When a case
involves borrowed servants . . . ‘control may be a decisive factor’”); Swiezynski
v. Civiello, 126 N.H. 142, 145 (1985) (“The dispositive characteristic of an
employer’s status is his right to control the employee’s work performance”);
see also Restatement (Second) of Agency § 220 cmt. d (“control or right to
control the physical conduct of the person giving service is important and in
many situations is determinative . . . .”); Thompson v. Grumman Aerospace
Corp., 585 N.E.2d 355, 357-358 (N.Y. 1991) (noting that, although “[m]any
25 factors are weighed in deciding whether a special employment relationship
exists, and generally no one is decisive . . . a significant and weighty feature
has emerged that focuses on who controls and directs the manner, details and
ultimate result of the employee’s work”).
These three factors in particular distinguish the instant case from
Longchamps, where the New Hampshire Supreme Court affirmed an
administrative decision finding that an apprentice electrician temporarily
assigned to perform work for a construction company was not a borrowed
employee. 137 N.H. at 732-733. In that case, as in this case, the company did
not exert control over the worker, the worker’s occupation required
significant skill, and the company could not fire the worker. Id. at 736-737.
However, unlike the instant case, the company did not supply the worker’s
tools or enjoy the right to control the details of his work, and the worker did
not consent to an employment relationship with the company. Id. at 735-737.
Instead, this case is more in line with LaVallie, where the New
Hampshire Supreme Court affirmed a grant of summary judgment finding
that a temporary laborer was a borrowed employee of the defendant. 135
N.H. at 696. There, as here, an employment contract placed the plaintiff
under the control of the defendant, the plaintiff impliedly consented to an
employment relationship with the defendant, and the plaintiff was paid by
the hour. Id.; see also Longchamps, 137 N.H. at 735 (noting that, although
26 the court in LaVallie did not explicitly discuss consent, it was nonetheless
clear that the plaintiff impliedly consented to an employment relationship).
Considering the balance of the LaVallie factors under the totality of the
circumstances, I conclude that the government was Dumais’ borrowing
employer. Because the plaintiffs’ claims would be barred by § 281-A:8 if
brought against a private actor under like circumstances, they fall outside
the FTCA’s waiver of immunity and must be dismissed for lack of
jurisdiction.
IV. CONCLUSION
For the foregoing reasons, the government’s second motion to dismiss
(Doc. 44) is granted and the United States is dismissed as a party from this
action.
SO ORDERED.
/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge
February 2, 2024
cc: Counsel of record