Opinion
ACTION NO. 4:20cv2
2020-07-28
Marta FRECHETTE, Plaintiff, v. UNITED STATES of America, Defendant.
Counsel for Plaintiff: Julie Amrie Pagotto Currin, W. Ware Morrison PLC, 2628 Barrett Street, Suite 100, Virginia Beach, VA 23452. Counsel for Defendant: Sean Douglas Jansen, Assistant United States Attorney, 101 W. Main Street, Suite 8000, Norfolk, VA 23510.
Counsel for Plaintiff: Julie Amrie Pagotto Currin, W. Ware Morrison PLC, 2628 Barrett Street, Suite 100, Virginia Beach, VA 23452.
Counsel for Defendant: Sean Douglas Jansen, Assistant United States Attorney, 101 W. Main Street, Suite 8000, Norfolk, VA 23510.
MEMORANDUM FINAL ORDER
REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE
This matter comes before the court on the Motion to Dismiss ("Motion") and Memorandum in Support ("Gov. Br.") filed by Defendant United States of America on April 27, 2020. ECF Nos. 14, 15.
I. Procedural and Factual History
The Plaintiff filed a Complaint in this court on November 15, 2019, and an Amended Complaint on January 2, 2020. ECF Nos. 1, 5. The Amended Complaint seeks damages of $175,000 in connection with an incident that allegedly occurred at the Commissary of Fort Eustis ("the Commissary") on January 14, 2017. Am. Compl., ECF No. 5. According to the Amended Complaint, the Plaintiff slipped on a liquid in the Commissary's produce aisle and "sustained severe and permanent injuries" to her arms and hands, requiring "hospitalization, surgery, medical treatment and rehabilitative care" and resulting in continued "great pain and mental anguish." Id. ¶¶ 18, 19. The Amended Complaint alleges that these injuries were caused by the United States' negligent failure to inspect and maintain its premises or to warn customers of the spilled liquid. Id. ¶¶ 16–20.
The United States filed the instant Motion and Memorandum in Support on April 27, 2020. ECF Nos. 14, 15. The Motion argues that the court should dismiss the case under Federal Rule of Civil Procedure 12(b)(1), because the suit is barred by sovereign immunity. Gov. Br. at 1. In support of the Motion, the United States submitted documentation showing that, at the time of the alleged accident, the Commissary was operated by the federal Defense Commissary Agency ("DeCA"), which contracted with a private company called Goodwill Services, Inc. ("Goodwill") to provide custodial services at the Commissary. ECF No. 15-1. The Plaintiff filed a Brief in Opposition on May 13, 2020. ECF No. 19. The United States filed a Reply on May 19, 2020. ECF No. 21. The Plaintiff filed a Motion for Hearing on May 20, 2020. ECF No. 22.
The United States initially argued that the suit should also be dismissed under Federal Rule of Civil Procedure 12(b)(6), because the suit was time-barred. Gov. Br. at 1. However, the United States later dropped that claim. Reply at 1 n.1, ECF No. 21.
II. Legal Standard
The United States seeks dismissal of the Amended Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Rule 12(b)(1) permits a defendant to challenge the factual basis of the complaint's allegations of jurisdiction. Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014). In considering such a motion, the court does not have to accept the jurisdictional allegations in the complaint as true, and may consider other evidence if presented by the parties. Arbaugh v. Y&H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ; Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995). The plaintiff bears the burden of persuasion when the defendant challenges the existence of subject matter jurisdiction in fact under Rule 12(b)(1), and the plaintiff must prove subject matter jurisdiction by a preponderance of the evidence. United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009).
The Plaintiff's Response makes the conclusory statement that the case should proceed to discovery because the facts cited by the United States as grounds for dismissal are "intertwined" with the merits of the Plaintiff's negligence claim. Response at 6–7. This is incorrect as a factual matter. As discussed infra Part III, the jurisdictional issue turns on the contractual relationship with Goodwill, which does not overlap with the negligence claim. The Plaintiff has not offered any argument as to why these sets of facts are "intertwined" beyond bald assertion. See Vuyyuru, 555 F.3d at 349.
III. Analysis
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, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The United States has consented to damages suits under the Federal Tort Claims Act ("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)(1). However, the FTCA is only a "limited waiver of sovereign immunity," and several exceptions apply. United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 48 L.Ed.2d 390 (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) ; see Williams, 50 F.3d at 305.
The United States argues that this suit falls under two statutory exceptions to the FTCA: First, the United States 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 Commissary. Gov. Br. at 8. Second, the United States 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." Id. at 10. If either of these exceptions apply, then the court must dismiss the case for lack of subject matter jurisdiction to the extent it seeks to hold the United States liable for conduct covered by the exceptions.
A. Independent Contractor Exception
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." 28 U.S.C. § 1346(b)(1). "Employee of the Government" is defined to mean "officers or employees of," or those "persons working on behalf of ... in an official capacity," "any federal agency." 28 U.S.C. § 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, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973) ; Wood v. Standard Prod. Co., 671 F.2d 825, 829 (4th Cir. 1982). Therefore, the court lacks jurisdiction over this case if the Plaintiff's injury was caused by the act or omission of a government contractor, and the contract did not give the agency control over the contractor's day-to-day operations.
In this case, the United States has provided unrebutted evidence that the federal agency in charge of the Commissary, DeCA, contracted with Goodwill to provide "shelf stocking and custodial operations for the Fort Eustis Commissary." ECF No. 15-1 at 58. These "custodial operations" included cleaning up or removing any unclean or unsafe conditions in the Commissary, performing "floor spot cleaning," and generally completing day custodial tasks. See id. at 167, 174, 233 (describing Goodwill's responsibilities); id. at 3 (declaration of Jason Nuckols, Supervisory Contract Specialist at DeCA, that the Performance Work Statement and contract were in effect at the time of the Plaintiff's alleged injury). The Performance Work Statement and contract provide that the Government shall not "exercise any supervision or control over Contractor personnel performing services under this contract," but do state that the Government will "monitor" and "observe" Goodwill's performance, including during formal quality insurance inspections. Id. at 38, 110, 147–48. This record makes clear that DeCA contractually delegated its custodial operations at the Commissary to Goodwill, and that Goodwill, not DeCA, retained authority over the Commissary's day-to-day custodial operations.
The Performance Work Statement was a document laying out the specific duties of the contractor, and was incorporated by reference into the contract. See, e.g., ECF No. 15-1 at 19, 27.
The Plaintiff argues that several provisions in the contract and Performance Work Statement rebut the Government's claim that Goodwill was an independent contractor. These arguments are not convincing or supported by the record before the court. Contrary to the Plaintiff's assertions, Goodwill's authority over the Commissary's day-to-day custodial operations was not undermined by the fact that DeCA reserved the right to occasionally inspect the Commissary. See Response at 2. The Performance Work Statement stated that inspections would occur during specific Quality Assurance Evaluator inspections, and did not contemplate daily inspections, much less daily control. ECF No. 15-1 at 147. Likewise, Goodwill's day-to-day control over the custodial operations was not affected by DeCA's right to inform Goodwill about any unclean or unsafe conditions, nor by Goodwill's corresponding duty to timely respond. See Response at 2; ECF No. 15-1 at 167 (requiring Goodwill to clean up any unclean conditions, including spills, within five minutes of being notified by the Government). This provision of the Performance Work Statement, much like the Government's inspection rights, did not convert Goodwill and its employees into agents or employees of the United States, but rather added "procedural safeguards to ensure compliance with the terms of the agreement." Berkman v. United States, 957 F.2d 108, 114 (4th Cir. 1992) ; see Viault v. United States, 609 F. Supp. 2d 518, 525 (E.D.N.C. 2009) ("[N]either a ‘right to inspect’ nor a right to demand compliance with specific contractual provisions ... would transmute the independent contractor into an agent of the United States.").
Moreover, the provision makes clear that Goodwill, not the United States, was the party responsible for cleaning spills and warning customers about them, and it did not state that DeCA could direct the manner in which Goodwill did so. ECF No. 15-1 at 167; see Berkman, 957 F.2d at 113–14 (finding that the independent contractor exception applied to a custodial contract even though the government retained the right to direct contractor employees to perform certain tasks).
When confronted with similar negligence claims for acts done by federal custodial contractors, courts in this circuit agree that the independent contractor exception bars jurisdiction. In Graham v. United States, the court considered a nearly identical custodial contract that also involved DeCA. No. 2:16-cv-03863, 2018 WL 1124284, at *4 (D.S.C. Mar. 1, 2018) (Norton, J.). The court found that the independent contractor exception blocked jurisdiction over the case, despite evidence that DeCA employees occasionally directed the contractor's employees to perform certain tasks. Id.; see ECF No. 15-1 at 174, 233 (delegating the same to Goodwill). By contrast, the record in this case contains no evidence that the Government ever directed Goodwill to perform specific tasks, and thus presents an even clearer argument that the contractor retained control over the physical performance of its day-to-day work. Likewise, in Williams v. United States, the Fourth Circuit found the independent contractor exception applied in a slip-and-fall case involving a building used by the United States Marshal Service and Drug Enforcement Agency. 50 F.3d 299 (4th Cir. 1995). In particular, the Fourth Circuit cited the facts that the contract provided that the contractor was responsible for maintenance of the premises, that the contractor had specific obligations to ensure the floors were free of debris, and that the contractor was responsible for having an engineer on call to respond to any problems at the site. Id. at 307. While the contract between Goodwill and DeCA differed from the one involved in Williams, it similarly constituted "a comprehensive instrument providing that [the contractor] was responsible for the maintenance of the Premises." Id.
For these reasons, the court finds that the independent contractor exception applies in this case, and any suit against the United States on the basis of acts or omissions committed by Goodwill or its employees is barred by the independent contractor exception.
Of course, it is possible that the United States would 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. See, e.g., Berkman v. United States, 957 F.2d 108, 114 (4th Cir. 1992) ("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."). However, the Plaintiff in this case makes no claim of causation or contribution by a United States employee, and the only evidence in the record on this point is the contract delegating the custodial duties to Goodwill. This delegation of duties falls within the discretionary function exception, discussed infra Part III.B.
B. Discretionary Function Exception
To the extent the Amended Complaint seeks to hold the United States liable for its decision to outsource its custodial duties to Goodwill, that claim is barred by the discretionary function exception to the FTCA. 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, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988).
Courts typically engage in a two-step inquiry when evaluating whether the discretionary function exception applies. First, the court considers whether the challenged action involved a matter of "judgment or choice" by looking at whether "a federal statute, regulation, or policy specifically prescribe[d] a course of action for an employee to follow." Id. at 536, 108 S.Ct. 1954 (emphasis added). Second, the court considers whether the challenged action specifically involved a policy judgment by asking "whether that decision is one which we would expect inherently to be grounded in considerations of policy." Baum v. United States, 986 F.2d 716, 721 (4th Cir. 1993). The existence of a statute or regulation allowing the government agency to exercise discretion on a matter creates a strong presumption that the agency's actions were grounded in policy considerations. United States v. Gaubert, 499 U.S. 315, 324, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). In such cases, a complaint will not survive a motion to dismiss unless the Plaintiff specifically "allege[s] facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime." Id. at 324–25, 111 S.Ct. 1267.
In this case, the discretionary function exception prohibits suit against DeCA for its decision to contract with Goodwill. Federal regulations require DeCA to "operate facilities under standards consistent with those used for commercial food stores," and authorize it to "[p]rescribe procedures, standards and practices" for the operation of such stores. 32 C.F.R. §§ 383a.5(a)(3), 383a.7(b). Moreover, DeCA is specifically permitted to "[e]nter into and administer contracts ... for supplies, equipment, and services required to accomplish the mission of the DeCA." Id. § 383a.7(a). But the regulations do not prescribe a "course of action" for DeCA to mechanically follow in carrying out these duties, thereby permitting DeCA to exercise discretion in carrying out its duties and functions. Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954 ; see Gaubert, 499 U.S. at 324, 111 S.Ct. 1267 ("[I]f a regulation allows the employee discretion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations.").
The Amended Complaint does not specifically raise DeCA's decision to contract with Goodwill as a ground for negligence. ECF No. 5. However, the Amended Complaint's allegations "are embraced by the overarching decision" to contract with Goodwill for custodial services. Williams v. United States, 50 F.3d 299, 310 (4th Cir. 1995).
In sum, DeCA had a regulatory duty to operate the commissary but had discretion in how to do so, including whether to engage a third-party contractor. Carrying out this duty required a weighing of the various policy considerations involved, including issues of "expense, administration, payment, access to the Premises, and a veritable plethora of factors." Williams, 50 F.3d at 310. The decision to contract with Goodwill and delegate custodial duties to it was thus "precisely the type of decision that the [discretionary function] exception is designed to shield from liability because it involves exercising judgment based on considerations of policy, and the case law clearly establishes that the award of contracts falls within the ambit of the discretionary function exception." Id.
IV. Conclusion
For the foregoing reasons, the United States' Motion is GRANTED and the Amended Complaint is DISMISSED . The Plaintiff's request for a hearing is DENIED , as a hearing is not necessary for disposition of the matter.