Gray v. United States ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JESSICA GRAY,
Plaintiff,
v. No. 21-cv-2310 (DLF)
THE UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION
Jessica Gray brought this action under the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 1346, 2674, alleging that she suffered permanent injury at the Thurgood Marshall Federal
Judiciary Building because the government failed to maintain its property. See Compl. ¶¶ 1–2,
16–17, Dkt. 1. Before the Court is the government’s Motion to Dismiss pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. 11. Because the FTCA’s independent contractor
exception applies here, the Court will dismiss Gray’s complaint under Rule 12(b)(1) for lack of
subject-matter jurisdiction.
I. BACKGROUND
On May 8, 2019, Jessica Gray was employed as a Special Police Officer at the Thurgood
Marshall Federal Judiciary Building in Washington, D.C. Compl. ¶ 7. Gray alleges that she
tripped and fell on the defective metal floor of the guard booth where she was stationed, causing
permanent injury. Id. ¶¶ 8, 9, 10. Gray filed an administrative claim for monetary compensation
with the Office of the Architect of the Capitol (AOC) on April 12, 2021. Id. ¶ 11. The AOC
denied Gray’s claim on August 9, 2021. Id. ¶ 12. Gray subsequently filed this action on August
31, 2021, on the theory that her injuries resulted from the government’s negligent failure to
maintain its premises in a reasonably safe condition. Id. ¶¶ 15–17. The government has since
moved to dismiss the case on multiple grounds, including that it is immune from suit under the
FTCA’s independent contractor exception. See Gov’t’s Mem. in Supp. of Mot. to Dismiss at 5–9,
Dkt. 11-1.
II. LEGAL STANDARDS
“Federal courts are courts of limited jurisdiction,” and it is “presumed that a cause lies
outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). Under the Federal Rules of Civil Procedure, a defendant may move to dismiss an action
for lack of subject-matter jurisdiction in federal court. See Fed. R. Civ. P. 12(b)(1). The plaintiff
bears the burden of proving that the Court possesses jurisdiction over her claims. Lujan v. Defs.
of Wildlife, 504 U.S. 555, 561 (1992). A court that lacks jurisdiction must dismiss the action. Fed.
R. Civ. P. 12(h)(3).
A defendant can attack subject-matter jurisdiction on either facial or factual grounds. See
Lawrence v. Dunbar, 919 F.2d 1525, 1528–29 (11th Cir. 1990); see also 5A C. Wright & A. Miller,
Federal Practice and Procedure § 1350 (3d ed. 2004); Macharia v. United States, 334 F.3d 61, 67–
68 (D.C. Cir. 2003). A facial attack challenges only the legal sufficiency of the plaintiff’s
complaint, and the court takes the plaintiff’s factual allegations as true. Phoenix Consulting Inc.
v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000). In contrast, when a defendant mounts a
factual attack on subject-matter jurisdiction, the court “must go beyond the pleadings and resolve
any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to
dismiss.” Id. In that posture, the court may “consider the complaint supplemented by undisputed
facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s
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resolution of disputed facts.” Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir.
1992).
III. ANALYSIS
Sovereign immunity shields the federal government from suit and is “jurisdictional in
nature.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). “A waiver of the Federal Government’s
sovereign immunity must be unequivocally expressed in statutory text.” Lane v. Pena, 518 U.S.
187, 192 (1996). With the FTCA, the federal government has waived its immunity as to certain
torts of “employee[s] of the Government while acting within the scope of [their] office or
employment.” United States v. Orleans, 425 U.S. 807, 813 (1976) (quoting 28 U.S.C. § 1346(b)).
For this purpose, the phrase “employee of the government” includes “officers or employees of any
federal agency” but specifically excludes “any contractor with the United States.” 28 U.S.C.
§ 2671. Accordingly, courts “routinely hold that the United States cannot be sued where the
alleged duty of care has been delegated to an independent contractor.” Hsieh v. Consol. Eng’g
Servs., 569 F. Supp. 2d 159, 176 (D.D.C. 2008); see also Orleans, 425 U.S. at 814 (recognizing
the “independent contractor exception”). In such cases, the suit must be dismissed for lack of
subject-matter jurisdiction.
To determine whether the independent contractor exception applies, courts evaluate the
level of control that the United States exercises over the contractor. See, e.g., Hamilton v. United
States, 502 F. Supp. 3d 266, 274 (D.D.C. 2020); Verizon Washington, D.C., Inc. v. United States,
254 F. Supp. 3d 208, 216 (D.D.C. 2017). The federal government may be liable for the negligence
of its contractor only if the contractor’s “day-to-day operations are supervised by the Federal
Government.” Orleans, 425 U.S. at 815. The government may exercise some control over a
contractor without transforming the contractor into a federal agent. See id. at 815–16. For
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example, the government “may ‘fix specific and precise conditions to implement federal
objectives’ without becoming liable for an independent contractor’s negligence.” Macharia, 334
F.3d at 68–69 (quoting Orleans, 425 U.S. at 816). On the other hand, “[i]f the contractor manages
the daily functioning of the job, with the federal actor just exercising broad supervisory powers,
the contractor is likely an independent contractor.” Hsieh, 569 F. Supp. 2d at 176–177.
By asserting that the independent contractor exception applies here, the government has
raised a factual challenge to subject-matter jurisdiction. See Phoenix Consulting, 216 F.3d at 40.
Accordingly, this Court will resolve the motion based on Gray’s “complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts.” Herbert, 974 F.2d at 197. In this
case, the authenticity of the government’s contract is undisputed, see Pl.’s Opp’n at 6–7, Dkt. 13,
but the parties disagree whether its terms trigger the independent contractor exception. Courts in
this circuit regularly analyze government contracts to determine if the independent contractor
exception applies, see, e.g., Hamilton, 502 F. Supp. 3d at 275; Verizon Washington, 254 F. Supp.
3d at 211, and the Court will likewise do so here.
The plain terms of the government’s contract with Complete Building Services (CBS)
demonstrate that CBS was an independent contractor responsible for the act or omission at the
heart of Gray’s complaint. See Gov’t’s Mot. Ex. 1, Dkt. 11-2. The contract explicitly states that
CBS was to “properly maintain Government property,” including “identification . . . and
performance of normal and routine preventative maintenance and repair.” Id. at 66. Even more
specifically, the Statement of Work incorporated into the contract states that CBS will “provide
Architectural + Structural Maintenance” and “repair” the “[g]uard booths.” Gov’t’s Mot. Ex. 2
(Statement of Work) at 55–56, Dkt. 11-3. From there, it defines “architectural and structural”
maintenance as “repair and replacement of . . . floor coverings.” Id. at 55. Moreover, the
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government did not provide day-to-day supervision of CBS, but designated that CBS “provide all
management, supervision, labor, materials, supplies, repair parts, tools, and equipment necessary
for the overall property management responsibilities of the [Thurgood Marshall Building].” Id. at
30 (emphasis added). This language makes abundantly clear that CBS was delegated the duty to
maintain and repair the metal floor coverings of the building’s guard booths.
Gray has failed to show that CBS was not responsible for maintaining the booths’ interior
metal floor coverings. Gray contends that only the exterior maintenance of the booths was
delegated to CBS because the “[g]uard booths” are listed as “exterior items” rather than “interior
items” in the Statement of Work. See Pl.’s Opp’n at 7. However, a natural reading of the Statement
of Work confirms that the guard booths are listed as “exterior items” because they are physically
located on the exterior of the main Thurgood Marshall Building, not because they require only
exterior maintenance. This reading is confirmed by the Statement of Work’s specification that
CBS would provide “architectural and structural” maintenance, which included “repair and
replacement of . . . floor coverings,” for both “interior and exterior items.” Statement of Work at
55–56. Gray fails to present any other evidence that CBS was responsible for maintaining only
the exterior of the booths.
The Court is also unpersuaded that CBS was responsible for maintaining only the HVAC
system on the guard booth’s roof. In arguing to the contrary, Gray relies on a letter from CBS’s
insurer, Travelers Insurance. See Pl.’s Opp’n Ex. B (Travelers Insurance Letter), Dkt. 13-2. That
letter states that the government and CBS had a “Service Agreement” that “includes the
maintenance service of the HVAC system located on the roof top of the involved security booth,”
while “any additional service and/or repair needed” would require the government to “submit [a]
repair service request to CBS.” Id. at 1. But Gray does not present a copy of the referenced
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“Service Agreement.” See generally Dkt. 13. In addition, the plain terms of the CBS contract and
incorporated Statement of Work require CBS to provide full architectural and structural
maintenance for the guard booths. See Statement of Work at 55–56. Finally, the letter does not
provide direct evidence of CBS’s responsibilities, but instead only summarizes the “position” of a
third-party insurer after the completion of its unspecified “investigation.” Travelers Insurance
Letter at 1. The letter accordingly provides no support for Gray’s argument.
Finally, the Court is unpersuaded that the government had the primary duty to maintain the
guard booths simply because the contract allows the government to submit work requests to CBS,
see Pl.’s Opp’n at 7. The fact that the contract empowered the government to request work from
CBS does not demonstrate that the government had a duty to take the lead in this area. For one,
the Statement of Work specifically contemplates that CBS can initiate repairs as well. See
Statement of Work at 55 (referring to “repair[s] requested by the Contractor”). Moreover, the
contract plainly states that “[t]he Contractor shall provide all . . . management [and] supervision
. . . necessary for the overall property management responsibilities of the [Thurgood Marshall
Building].” Statement of Work at 30 (emphasis added). In Verizon Washington, the court similarly
held that the independent contractor exception applied where the government delegated “all . . .
supervision” of maintenance and repair work to the independent contractor under similar
contractual provisions, even though the contract called for “close coordination” between the
government and contractor on requesting and prioritizing repairs. 254 F. Supp. 3d at 216–17.
Gray has pointed to no other contract provision indicating that the government had the primary
duty to inspect and maintain the guard booths.
For those reasons, Gray has failed to show that the independent contractor exception does
not apply. This Court will accordingly dismiss this case for lack of subject-matter jurisdiction.
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CONCLUSION
For the foregoing reasons, the defendant’s Motion to Dismiss, Dkt. 11, is granted. A
separate order consistent with this decision accompanies this memorandum opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
August 30, 2022
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