Vallier

MEMORANDUM *

Jet Propulsion Laboratory (“the laboratory”), California Institute of Technology (“Caltech”) appeals the district court’s denial of its petition for certification as a government employee pursuant to the Westfall Act, 28 U.S.C. § 2679 (d)(3). Cal-tech operates the laboratory through contracts with the federal government. The underlying action is a tort action by neighbors of the laboratory who claim that they or their predecessors in interest were harmed by the laboratory’s tortious release of toxic chemicals into the air, soil, and groundwater from 1940-1969.

The district court concluded in a well-reasoned decision that Caltech was an independent contractor, not a government employee. On appeal, the only issue the appellant raises is whether the district court erred in applying what the appellant terms the “actual control” standard rather than a “right to control” standard in making this determination.

The problem with the appellant’s position that the “right to control” standard applies is that appellant can point to no regulation, contractual provision, or practice on the job suggesting that the government had the authority to control day-today activities. See…