Opinion
C/A. No. 2:19-1092-RMG
08-07-2020
Patricia Brown, Plaintiff, v. The United States of America, Palmetto Goodwill Services, Defendants.
ORDER AND OPINION
Before the Court is Defendant the United States of America's (the "Government") motion to dismiss for lack of subject matter jurisdiction (Dkt. No. 39). For the reasons set forth below, the Government's motion is granted in part and denied in part.
I. Background
This case arises out of a slip-and-fall accident that occurred at the Charleston Air Force Base Commissary (the "AFB Commissary"), at 103 Lawson Drive, Joint Base, Charleston, SC. Plaintiff Patricia Brown alleges that on April 16, 2017, she was an invitee shopping at the AFB Commissary. Plaintiff allegedly fell on a slippery floor due to water dripping from a fruit display made of cardboard and filled with ice. The AFB Commissary is operated by the Defense Commissary Agency ("DeCA"), a federal agency affiliated with the United States Department of Defense. On January 24, 2014, DeCA contracted with Defendant Palmetto Goodwill Services ("Goodwill") to manage the AFB Commissary and the parties' contract was in effect on the date of Plaintiff's fall. Plaintiff contends that as a result of the fall she suffered significant injuries.
On April 15, 2019, Plaintiff filed a complaint in federal court against the Government under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. (Dkt. No. 1). Plaintiff amended the complaint on March 31, 2020, (Dkt. No. 20), adding Palmetto as a defendant. Plaintiff brings claims sounding in negligence, including the specific claim that Defendants were negligent in "failing to maintain, design or construct [the AFB Commissary] tile floor in a safe manner."
The Government filed a motion to dismiss for lack of subject matter jurisdiction on June 8, 2020, (Dkt. No. 39), which Plaintiff responded to on June 19, 2020, (Dkt. No. 40). The Government replied on June 25, 2020. (Dkt. No. 41). The Government's motion is fully briefed and ripe for disposition.
II. Legal Standard
"Ordinarily, a defendant may challenge the existence of subject matter jurisdiction in one of two ways: (1) by contending that a complaint fails to allege facts upon which subject matter jurisdiction can be based (a 'facial challenge') or (2) by contending that the jurisdictional allegations made in the complaint are not true (a 'factual challenge')." Lutfi v. United States, 527 Fed. App'x. 236, 241 (4th Cir. 2013). In a facial challenge, "all alleged facts are taken as true and the motion will be denied if the complaint alleges facts that, if proven, would be sufficient to sustain jurisdiction." Id. "In a factual challenge, a trial court may . . . go beyond the allegations of the complaint and in an evidentiary hearing determine if there are facts to support the jurisdictional allegations." Id. (internal quotations omitted). However, even with a factual challenge to jurisdiction, where the court considers evidence outside the pleadings, a Rule 12(b)(1) motion is not converted to a motion for summary judgment. See In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333 (4th Cir. 2014) ("When a defendant challenges subject matter jurisdiction via a Rule 12(b)(1) motion to dismiss, the district court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment."). It is "in cases where the jurisdictional facts are 'inextricably intertwined' with those central to the merits of the dispute," that the court assumes jurisdiction and resolves the case on the merits, such as on a motion for summary judgment. Lutfi, 527 Fed. App'x. at 241.
Here, the Government does not contest the factual allegations of the Complaint but argues that the alleged claims fall within the ambit of the discretionary function exception or independent contractor exception to the FTCA. Thus, the Government's motion is in the nature of a facial challenge, and the Court assumes the facts in the Complaint are true. The Government has submitted additional evidence in support of its positions. This evidence is generally—though not wholly—consistent with Plaintiff's factual allegations, Plaintiff has not objected to its consideration, and the Court considers it to the extent relevant.
III. Discussion
Sovereign immunity imposes a jurisdictional bar to suits against the United States, except to the extent that the United States consents to suit. See FDIC v. Meyer, 510 U.S. 471, 475, (1994). The United States has consented to damages suits under the FTCA in situations where the plaintiff's injury was:
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, under circumstances where 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). The FTCA is only a "limited waiver of sovereign immunity," however, and several exceptions apply. United States v. Orleans, 425 U.S. 807, 813 (1976). In evaluating these exceptions, a court must "strictly construe[ ]" the FTCA's waiver of sovereign immunity, resolving all ambiguities in favor of the United States. Radin v. United States, 699 F.2d 681, 685 (4th Cir. 1983).
The Government argues that this suit falls under two statutory exceptions to the FTCA: First, the Government claims that the allegations fall within the "independent contractor exception," because the challenged conduct was performed by an independent contractor hired by the United States to provide custodial services at the AFB Commissary. Second, the Government argues that, because it made a policy decision to delegate the custodial tasks to the contractor, it retained its sovereign immunity under the "discretionary function exception." Relatedly, the Government argues that it retains sovereign immunity under the discretionary function exception as to its decisions regarding the design or construction of the tile floor at the AFB Commissary.
a) Independent Contractor Exception
The contract between DeCA and Goodwill states that DeCA delegates "day custodial" tasks at the AFB Commissary, or "tasks that are normally done during hours when the commissary is open for business," to Goodwill. Award Contract, (Dkt. No. 39-1 at 199). On the date of Plaintiff's fall, the AFB Commissary was operated by Goodwill under said contract. The contract, in a section entitled "day custodial," defined "day custodial" services as "custodial tasks that are normally done during hours when the commissary is open for business, when custodial care is generally limited to rapid response and quick fix action necessary to maintain clean and safe conditions." (Id.). The Government argues that under this contract, it has no authority to control daily custodial activities such as mopping up water from a fruit display. In support, the Government points to multiple portions of the contract that explain the custodial duties of Goodwill employees. For example, the contract states under a section entitled "cleaning without government notification" that "[w]hen Contractor personnel find an unclean or unsafe condition . . . , they shall take whatever action may be necessary to clean up or remove the condition without notification by the Government." (Id.). The contract further states that Goodwill is tasked with determining "the specific techniques and frequency of performance required to maintain these quality standards," including maintaining floors "free of loose cardboard, spills, food residue, or any other debris." (Id. at 204-05).
The FTCA permits suits in cases where the injury was "caused by the negligent or wrongful act or omission of any employee of the Government." § 1346(b)(1). "Employee of the Government" is defined to mean "officers or employees of" or those "persons working on behalf of a federal agency in an official capacity." § 2671. Explicitly excluded from the definition of "federal agency" is "any contractor with the United States." Id. In determining whether the tortfeasor was an employee of the contractor or of the government agency, courts look at whether the contract gave the agency control over "the detailed physical performance of the contractor" or the authority to supervise the contractor's "day-to-day operations." Logue v. United States, 412 U.S. 521, 528 (1973); Wood v. Standard Prod. Co., 671 F.2d 825, 829 (4th Cir. 1982). Pertinently, however, "the United States [may] still face liability in a case where the independent contractor exception applied, if the plaintiff's injury was independently, or additionally, caused by the negligence of a Government employee." Frechette v. United States, No. 4:20CV2, 2020 WL 4335002, at *3 n.4 (E.D. Va. July 28, 2020) (citing Berkman v. United States, 957 F.2d 108, 114 (4th Cir. 1992) (noting "the fact that an independent contractor may have been responsible for [the plaintiff's] fall, however, cannot be viewed as relieving the United States from liability where the plaintiff alleges that federal employees also may have caused or contributed to the alleged tort")).
The Court finds that issues of fact remain as to the cause of Plaintiff's fall and denies the Government's motion to be dismissed from this action pursuant to the independent contractor exception. The evidence before the Court is ambiguous as to whether "federal employees . . . may have caused or contributed to the alleged tort." Berkman, 957 F.2d at 114 (emphasis added). In its answer to Plaintiff's amended complaint, Goodwill asserts that the Government is solely responsible for Plaintiff's fall. See Goodwill Answer, (Dkt. No. 27 at ¶ 22) (raising defense of "sole negligence of other" and implying the Government is responsible for Plaintiff's alleged injuries). The Government, for its part, has put forth documents which likely establish an independent contractor relationship with Goodwill for daily custodial tasks at the AFB Commissary. See, e.g., Award Contract, (Dkt. No. 39-1 at 173 et seq.). Said documents demonstrate, however, that Goodwill is not exclusively responsible for custodial services at the AFB Commissary. AFB Commissary employee Jonathan Gibbs affirms that while Goodwill "Day Custodial workers hours' are 11:00am until 6:00pm, Tuesday through Saturday, and 1:00PM until 5:00PM on Sunday[,] . . . [p]rior to the arrival of the Goodwill Day Custodial workers, DeCA staff workers are responsible for the custodial maintenance." (Dkt. No. 39-2 ¶ 7) (emphasis added). In an accident report Gibbs drafted regarding Plaintiff's fall, Gibbs indicates Plaintiff fell at 12:00PM due to a "water spill on the floor." (Dkt. No. 53-1 at 2). Gibbs' accident report, however, is devoid of details regarding how the alleged "spill" occurred or what caused it. Thus, while Plaintiff's fall may have occurred at a moment of the day where Goodwill was tasked with custodial maintenance, the record is unclear as to whether the Government caused or contributed to Plaintiff's fall.
A discrepancy exists between Gibbs' affidavit describing Plaintiff's accident, (Dkt. No. 39-2), and the accident report—also drafted by Gibbs—cited in Gibbs' affidavit, (Dkt. No. 53) (attaching full copy of said accident report). In his affidavit, Gibbs affirms Plaintiff's fall occurred on April 16, 2017. Gibbs' accident report indicates Plaintiff fell on April 15, 2017. Plaintiff alleges her fall occurred on April 16, 2017, (Dkt. No. 20 at 2), and the Court resolves the above ambiguity in Plaintiff's favor, assuming her accident occurred on April 16, 2017.
Additionally, the Government's own submissions indicate Plaintiff's fall may have occurred at a moment where DeCA was responsible for custodial services. The Court takes judicial notice that April 16, 2017, the day Plaintiff allegedly fell at the AFB Commissary, (Dkt. No. 20 at 2), was a Sunday. See Copeland v. Dapkute, No. 8:17-CV-01566-PWG, 2018 WL 5619672, at *3 n. 4 (D. Md. Oct. 30, 2018) (noting the court may take judicial notice of the day of the week an event allegedly occurred) (citing Brown v. Piper, 91 U.S. 37, 42 (1875) (stating that courts may take judicial notice of "the coincidences of the days of the week with those of the month")). In his affidavit, Gibbs asserts that, on Sundays, DeCA personnel are responsible for custodial maintenance prior to 1:00PM. (Dkt. No. 39-2 at ¶ 7). Gibbs asserts Plaintiff fell around or before 12:00PM on April 16, 2017. (Id. ¶ 8). Thus, Gibbs asserts Plaintiff fell at a time of the day where the Government would have been responsible for custodial maintenance at the AFB Commissary, rendering the independent contractor exception inapplicable.
The above ambiguities require the Court deny the Government's motion to be dismissed from this action under the independent contractor exception. Berkman, 957 F.2d at 114-15 (reversing trial court's grant of dismissal of FTCA action on basis of independent contractor exception because, "[w]hile . . . the district court was correct in dismissing Berkman's claim against the United States insofar as the complaint is construed to allege that [the independent contractor's] negligence in performing the duties assigned to it caused his injuries, we determine that the complaint cannot be dismissed altogether until the claims alleging negligence on the part of [the Government's] employees are resolved").
b) Discretionary Function Exception
i. Legal Standard
Under 28 U.S.C. § 2680(a), the United States does not waive its sovereign immunity over "claim[s] based upon an act or omission of an employee of the Government, exercising due care, in the execution of the statute or regulation" or as part of "a discretionary function or duty" of the agency or employee. The Supreme Court has summarized the exception to cover cases where "the action challenged . . . involves the permissible exercise of policy judgment." Berkovitz v. United States, 486 U.S. 531, 537 (1988).
Determining whether the exception applies involves a two-part inquiry. First, because the exception only covers "acts that are discretionary in nature," the court must determine whether the acts at issue "involve an element of judgment or choice." United States v. Gaubert, 499 U.S. 315, 322 (1991). An act is not discretionary if a "'federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,' because 'the employee has no rightful option but to adhere to the directive.'" Id. (quoting Berkovitz, 486 U.S. 531 at 536).
Then, if the court determines that "the challenged conduct involves an element of judgment," the court must determine "whether that judgment is of the kind that the discretionary function exception was designed to shield." Id. at 322-23. "Because the purpose of the exception is to prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy," the exception "protects only governmental actions and decisions based on considerations of public policy." Id. at 323. In its analysis under this prong, the court should not focus on the "agent's subjective intent" but "look to the nature of the challenged decision in an objective, or general sense, and ask whether that decision is one which we would expect inherently to be grounded in considerations of policy." Indem. Ins. Co. of N. Am. v. United States, 569 F.3d 175, 180 (4th Cir. 2009) (quoting Baum v. United States, 986 F.2d 716, 721 (4th Cir. 1993)). For example, where an employee drives a car in connection "with his official duties and negligently collide[s] with another car, the exception would not apply." Gaubert , 499 U.S. at 325 n.7. "Although driving requires the constant exercise of discretion, the official's decisions in exercising that discretion can hardly be said to be grounded in regulatory policy." Id. Importantly, where a statute or regulation "permits a government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Indem. Ins. Co. of N. Am. v. United States, 569 F.3d at 180 (internal quotations omitted).
"In sum, the discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment." Berkovitz , 486 U.S. at 537. In an FTCA case, the plaintiff has the "burden to prove an unequivocal waiver of sovereign immunity and the existence of subject matter jurisdiction," LeRose v. United States, 285 Fed. App'x. 93, 96 (4th Cir. 2008).
ii. Design of the AFB Commissary's Floor
In her amended complaint, Plaintiff alleges that the Government "fail[ed] to maintain, design or construct [the AFB Commissary's] tile floor in a safe manner." (Dkt. No. 20 at 4). The Government contends that this claim is precluded by the discretionary function exception to the extent Plaintiff attempts to challenge the Government's decisions as to the floor's design or construction. (Dkt. No. 39 at 10-11). The Court agrees.
DeCA is a federal agency affiliated with the U.S. Department of Defense. See 32 C.F.R. § 383a.1. DeCA's mission is to:
(1) Provide an efficient and effective worldwide system of commissaries for the resale of groceries and household supplies at the lowest practical price (consistent
with quality) to members of the Military Services, their families, and other authorized patrons, while maintaining high standards for quality, facilities, products, and service.32 C.F.R. § 383a.3. DeCA must, inter alia, "[p]lan, program, budget, design, manage, and ensure the execution of the commissary facilities' construction, modification, and repair programs" and "[p]rovide and operate facilities under standards consistent with those used for commercial food stores." 32 C.F.R. § 383a.5.
(2) Provide a peacetime training environment for food supply logisticians needed in wartime and, as circumstances dictate, troop issue subsistence support to military dining facilities consistent with Service needs.
Turning to the first prong under Berkovitz and Gaubert, and as shown by the regulations above, the Court finds that the design and construction of the floor at the AFB Commissary is discretionary in nature, involving "element[s] of judgement or choice." See Reynolds v. U.S., No. 9:13-cv-1551, 2015 WL 12817676, at * 3 (D.S.C. Aug. 14, 2015) (finding that the design and construction of a walk-in cooler and its flooring in a DeCA commissary satisfied the first prong under Berkovitz and Gaubert because applicable regulations did not "specifically prescribe[ ] a course of action for [DeCA] to follow in designing walk-in coolers") (internal quotation marks removed).
Having found such conduct discretionary, the Court must now determine whether DeCA's decisions regarding the design and construction of the floor at the AFB Commissary were "based on considerations of public policy." The Court finds they are. See id. (holding as much regarding DeCA's decisions regarding design of walk-in cooler and flooring). The applicable regulations require DeCA to balance efficiency, providing the "lowest practical price," and "maintaining high standards for quality, facilities, products, and service." 32 C.F.R. § 383a.3. Such considerations necessarily involve trade-offs in the design and construction of commissaries and its components. Furthermore, the regulations provide DeCA with discretion on how to "[p]lan, program, budget, design, manage, and ensure the execution of the commissary facilities' construction, modification, and repair programs." 32 C.F.R. § 383a.5. Where a regulation "permits a government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Indem. Ins. Co. of N. Am. v. United States, 569 F.3d at 180; accord Gaubert , 499 U.S. at 324 ("When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion."). In her response in opposition to the Government's motion, Plaintiff does not attempt to rebut the assumption that the Government's decisions as to the design or construction of the tile flooring in the AFB Commissary were discretionary decisions involving considerations of public policy. The Court thus finds that it lacks subject matter jurisdiction over Plaintiff's claims to the extent they are based on the design and construction of the tile floor at the AFB Commissary.
iii. Plaintiff's Remaining Negligence Claims
Lastly, the Government contends that Plaintiff's remaining negligence claims are barred by the discretionary function exception. (Dkt. No. 39 at 2). In effect, the Government argues that "the discretionary function exception insulates it from liability on all claims related to its duty to inspect . . . as well as its duty to warn, because those decisions were embraced by the overarching decision to engage a third-party contractor, which is itself a discretionary decision." Parrish v. United States, 157 F. Supp. 3d 434, 440 (E.D.N.C. 2016). The Court rejects the Government's argument as it is "too broad and, in light of the facts of this case [as known currently], inapplicable." Id. at 440-41.
As noted above, it is undisputed that the Government delegated certain day custodial services to Goodwill. "However, the decision to engage a contractor for a limited purpose does not implicate the discretionary function exception so as to insulate the United States from all claims or in every case." Id. (citing McMellon v. United States, 387 F.3d 329, 348 n. 8 (4th Cir.2004) (en banc) ("We note, however, that determining whether the facts of a case fit within the scope of the discretionary function exception itself involves a cautious case-by-case analysis.")). Central factual issues in this case, which remain unresolved, are: (1) which entity was responsible for custodial services at the AFB Commissary when Plaintiff fell; and (2) which entity or entities created—if at all—the conditions that caused Plaintiff to fall. The Court therefore cannot determine the degree to which Plaintiff's negligence claims implicate custodial tasks which the Government, in its discretion, delegated to Goodwill and which Goodwill was thus responsible for at the moment of Plaintiff's fall. Accordingly, the Court declines to dismiss the Government pursuant to the discretionary function exemption. Parish, 157 F. Supp. 3d at 441 (rejecting the government's assertion that the discretionary function exception "provide[s] a defense against all claims in all cases where an independent contractor was retained for some limited purpose"); Lutfi, 527 Fed. App'x. at 241 (noting that "in cases where the jurisdictional facts are 'inextricably intertwined' with those central to the merits of the dispute" the court assumes jurisdiction and resolves the case on the merits).
IV. Conclusion
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the Government's motion to dismiss (Dkt. No. 39). The Government's motion is GRANTED to the extent Plaintiff's claims are based on the design or construction of the tile floor at the AFB Commissary. The Government's motion is otherwise DENIED.
AND IT IS SO ORDERED.
s/ Richard Mark Gergel
United States District Court Judge August 7, 2020
Charleston, South Carolina