Davis v. Transportation Security Administration

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TRACEY DAVIS, :
individually and as parent guardian of :
A.D., a minor, : Civil Action No.: 15-0135 (RC)
:
Plaintiff, : Re Document Nos.: 12, 15
:
v. :
:
UNITED STATES, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR
SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
AMEND THE COMPLAINT AND/OR CONDUCT DISCOVERY
I. INTRODUCTION
Plaintiff Tracey Davis, 1 individually and as parent and guardian of her minor child, A.D.,
(collectively, “Plaintiff” or “Ms. Davis”), brought this action against the Transportation Security
Administration (“TSA”). Ms. Davis alleges that a canine owned by the TSA attacked and
injured her child, and her Complaint asserts a negligence claim against the TSA under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq.
Defendant 2 has moved to dismiss or, in the alternative, for summary judgment.
Defendant argues that Ms. Davis’s Complaint is barred by sovereign immunity and that it fails to
1
The Court notes an inconsistency in Plaintiff’s spelling of Ms. Davis’s first name.
Compare Compl., ECF No. 1 (“Tracy Davis”), with Pls.’ Opp’n Def.’s Mot. Dismiss and/or
Summ. J. & Mot. Leave Amend Compl. and/or Conduct Discovery (“Pls.’ Opp’n”), ECF No. 15
(“Tracey Davis”). The Court uses the spelling found in Plaintiff’s more recent filings.
2
Although the Complaint named the TSA as Defendant, see Compl. at 1, the
Government correctly notes that the United States is the only proper defendant in an action under
state a claim upon which relief can be granted. In her opposition to Defendant’s motion, Ms.
Davis moves for leave to file an Amended Complaint and to conduct discovery. Among other
changes, the proposed Amended Complaint would add the Washington Metropolitan Area
Transit Authority (“WMATA”) as a defendant. Defendant argues that the amended negligence
count against the United States is futile because it would not survive a dispositive motion and
that Ms. Davis has not justified the utility of discovery.
For the reasons stated below, the Court finds that the independent contractor exception to
the FTCA applies to the negligence claim found in the Complaint, and the Court will therefore
dismiss the Complaint for lack of subject matter jurisdiction. At this time, the Court finds that it
would be premature to determine the application of the discretionary function exception to Ms.
Davis’s amended claim against the United States. Instead, the Court will grant leave to file the
Amended Complaint and permit jurisdictional discovery. Discovery will be limited only to the
question of whether a mandatory directive governed the training of the TSA canine and, if such a
directive existed, whether TSA employees followed its command. Finally, the Court will permit
Plaintiff to amend the complaint to add WMATA as a defendant.
the FTCA. See Def.’s Mem. P & A Supp. Mot. Dismiss or for Summ. J. at 6 n.2 (“Def.’s
Mem.”), ECF No. 12 (citing 28 U.S.C. § 2679); see also Johnson v. Veterans Affairs Med. Ctr.,
133 F. Supp. 3d 10, 16 (D.D.C. 2015) (“FTCA suits ‘must name the United States as
defendant.’”) (quoting Goddard v. D.C. Redevelopment Land Agency, 287 F.2d 343, 345–46
(D.C. Cir. 1961)). Here, the Government “does not object to amendment of the caption
substituting the United States as the sole defendant.” Def.’s Mem. at 6 n.2; see also Pls.’ Opp’n
at 1 n.1 (noting the consent of the United States to be substituted as Defendant). The United
States is therefore substituted for the TSA as Defendant in this action.
2
II. BACKGROUND
According to the Complaint, Plaintiff Tracey Davis and her minor daughter, A.D.,
attended the presidential inaugural parade in Washington, D.C. on January 21, 2013. See Compl.
¶ 8; Def.’s Mem. at 7, ¶ 3. Following the parade, Ms. Davis and her daughter approached an
escalator in a WMATA Metro station to board a train and return home. See Compl. ¶ 9; Def.’s
Mem. at 7, ¶ 4. A law enforcement officer was standing in the station handling a canine that was
owned by the TSA. See Compl. ¶ 10; Def’s Mem. at 7, ¶ 5; Decl. of Matthew DeMoss
(“DeMoss Decl.”) ¶¶ 11–12, ECF No. 12-1. According to the Complaint, “the K-9 suddenly and
ferociously attacked A.D., biting her head and causing her injuries.” Compl. ¶ 12; see also
Def.’s Mem. at 7, ¶ 6 (“As Plaintiffs were about to step onto the escalator to enter the subway
station, A.D. and the K-9 had an encounter, from which Plaintiff asserts injuries.”)
Defendant attaches to its motion the Declaration of Matthew DeMoss. See DeMoss
Decl. 3 Mr. DeMoss is employed by the TSA as a Field Canine Coordinator in the TSA’s
National Explosives Detection Canine Team Program (“Program” or “NEDCTP”). Id. ¶ 1. At
the time of the incident at issue in this case, Mr. DeMoss was the Field Canine Coordinator
responsible for the Greater Rochester Regional Airport and the associated canine units handled
3
When considering a motion to dismiss for failure to state a claim or for lack of subject
matter jurisdiction, a court “accepts the allegations of the complaint as true.” Banneker
Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (citations omitted). If
necessary to resolve a challenge to subject matter jurisdiction under Rule 12(b)(1), a court may
“consider the complaint supplemented by undisputed facts evidenced in the record.” Id.(quoting Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992)). In this case,
Ms. Davis has not objected to the facts found in Mr. DeMoss’s Declaration or to the attached
Cooperative Agreement. In fact, Ms. Davis has attached both documents to her opposition to
Defendant’s motion, see Pls.’ Opp’n, Exs. 2–3, and included new facts from these materials in
her opposition and proposed Amended Complaint, see Pls.’ Mem. Law Supp. Pls.’ Opp’n Mot.
Dismiss and/or Summ. J. & Mot. Leave Amend Compl. and/or Conduct Discovery (“Pls.’
Mem.”) at 4–5. Thus, for the purposes of resolving the jurisdictional challenge, the Court will
rely on facts found in those documents.
3
by the Monroe County Sheriff’s Office (“Sheriff’s Office”). See id. ¶ 2. Mr. DeMoss attaches to
his Declaration an NEDCTP Cooperative Agreement and a related Statement of Joint Objectives
(collectively, the “Agreement”), that defines the relationship between the TSA, the Sheriff’s
Office, and the Greater Rochester International Airport. See id. ¶ 2; see also Coop. Agreement at
1, ECF No. 12-2; Statement of Joint Objectives (“SOJO”) at 1, ECF No. 12-2. The Statement of
Joint Objectives is signed by representatives of the TSA and the Sheriff’s Office. See SOJO at
10.
Under the terms of the Agreement, TSA-certified canine teams, made up of a Sheriff’s
Office handler and a TSA-owned canine, “will be available to respond to Monroe County
Sheriff’s Office, 24 hours a day, 7 days per week, with the intent to provide maximum coverage
during peak operating hours.” Coop. Agreement at 2; see also DeMoss Decl. ¶¶ 5-6. The
Agreement lists additional responsibilities for the Sheriff’s Office, including that the canine
teams will spend at least 80% of their annual duty time “in the transportation environment.”
SOJO at 3. Although the TSA owns the canines involved in the Program, see id. at 6, the
Sheriff’s Office maintains day-to-day custody and control over them pursuant to the Agreement.
See SOJO at 3–4; DeMoss Decl. ¶ 10. Among other things, the TSA is responsible for training
handlers entering the Program, providing a subsequent “[o]n-site training mission” and
certification for canine teams, and evaluating the canine teams on an annual basis. See SOJO at
1–2; see also Pls.’ Mem. at 4–5. 4
The Agreement states that the participants may “jointly determine that it is appropriate to
use . . . canine teams to assist another agency/entity in the event of a critical local, state, national,
4
Because Plaintiff’s memorandum is not separately paginated, the Court will rely on the
page number of the full document filed on the Court’s ECF system (ECF No. 15).
4
or international matter.” SOJO at 9; see also Pls.’ Mem. at 5. Mr. DeMoss asserts that the
canine team in question in this case was voluntarily assisting WMATA during the inauguration
events in Washington, D.C. on January 21, 2013. See DeMoss Decl. ¶ 11; see also Pls.’ Mem. at
5; Am. Compl. ¶ 15, ECF No. 15. The canine handler involved in the incident was a Monroe
County Sheriff’s Office employee. See DeMoss Decl. ¶ 12; see also Pls.’ Mem. at 4; Am.
Compl. ¶¶ 13–14.
Ms. Davis filed suit in this Court in January 2015, individually and as parent and
guardian of A.D. See generally Compl. Her Complaint includes a single negligence count
against the TSA, brought pursuant to the FTCA, 28 U.S.C. §§ 1346(b), 2671 et seq. See Id. ¶¶
13–16. Defendant moves to dismiss Ms. Davis’s claim, or, in the alternative, for summary
judgment. See Def.’s Mot. Dismiss or for Summ. J. (“Def.’s Mot.”), ECF No. 12. Specifically,
Defendant argues that Ms. Davis’s negligence claim is barred by sovereign immunity, see Def.’s
Mem. at 8–10, and that the Complaint fails to state a claim upon which relief can be granted, see
id. at 11–12. Ms. Davis opposes the motion, and also moves for leave to file an Amended
Complaint and to conduct discovery. See generally Pls.’ Opp’n. The Court addresses the
pending motions in turn.
III. DEFENDANT’S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
Defendant moves to dismiss the Complaint on two grounds. First, Defendant argues that
the Court should dismiss the Complaint for lack of subject matter jurisdiction because Ms.
Davis’s negligence claim falls within the independent contractor exception to the FTCA and is
therefore barred by sovereign immunity. See Def.’s Mem. at 8–10. Second, Defendant argues
that the Court should dismiss the Complaint for failure to state a claim upon which relief can be
granted because Ms. Davis has failed to plead the necessary elements of negligence. Id. at 11–
5
12. In the alternative, Defendant moves for summary judgment. Id. at 1. The Court must begin
its analysis by determining whether it has jurisdiction. Because the independent contractor
exception to the FTCA applies to Ms. Davis’s negligence claim against the United States, the
Court will dismiss the Complaint for lack of subject matter jurisdiction. 5
A. Legal Standard
Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of an action for lack
of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). Federal courts are courts of limited
jurisdiction, and the law presumes that “a cause lies outside this limited jurisdiction.” Rasul v.
Bush, 542 U.S. 466, 489 (2004) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994)); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a
court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). It is
the plaintiff’s burden to establish that the court has subject matter jurisdiction. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). When considering whether it has jurisdiction, a
court must accept “the allegations of the complaint as true.” Banneker Ventures, LLC v.
Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (citing Herbert v. Nat’l Acad. of Sciences, 974
F.2d 192, 197 (D.C. Cir. 1992)). In this context, a court may also “consider the complaint
supplemented by undisputed facts evidenced in the record, or the complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts.” Id. (quoting Herbert, 974 F.2d at
197).
5
The Court, therefore, does not reach Defendant’s arguments under Rule 12(b)(6) or for
summary judgment pursuant to Rule 56(a). See Simpkins v. Dist. Columbia Gov’t, 108 F.3d 366,
371 (D.C. Cir. 1997) (“[T]he rule is strict that once a court determines that it lacks subject matter
jurisdiction, it can proceed no further.”).
6
B. Analysis
Defendant argues that the Court lacks subject matter jurisdiction over Ms. Davis’s
Complaint because her claim falls under the independent contractor exception to the FTCA’s
waiver of sovereign immunity. The Court agrees and will therefore dismiss the Complaint’s
negligence claim against the United States pursuant to Federal Rule of Civil Procedure 12(b)(1).
Sovereign immunity shields the federal government and its agencies from suit and is
“jurisdictional in nature.” Am. Road & Transp. Builders Ass’n v. EPA, 865 F. Supp. 2d 72, 79
(D.D.C. 2012) (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)) (other citations omitted). The
government may waive immunity, but such a waiver “must be unequivocally expressed in
statutory text, and will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citations
omitted). “If sovereign immunity has not been waived, a claim is subject to dismissal under Rule
12(b)(1) for lack of subject matter jurisdiction.” Clayton v. District of Columbia, 931 F. Supp.
2d 192, 200 (D.D.C. 2013) (citing Meyer, 510 U.S. at 475). The plaintiff bears the burden “of
establishing both the court’s statutory jurisdiction and the government’s waiver of its sovereign
immunity.” Am. Road & Transp. Builders Ass’n, 865 F. Supp. 2d at 80 (citations omitted).
Once a court “determines that it lacks subject matter jurisdiction, it can proceed no further.”
Simpkins v. Dist. Columbia Gov’t, 108 F.3d 366, 371 (D.C. Cir. 1997).
The FTCA contains a limited waiver of sovereign immunity that allows the United States
to be sued for the negligent acts or omissions of its employees acting within the scope of their
employment. See 28 U.S.C. § 1346(b)(1); see also United States v. Orleans, 425 U.S. 807, 813
(1976). Specifically, the FTCA waives sovereign immunity based on an “injury . . . caused by a
negligent or wrongful act or omission of any employee of the Government while acting within
the scope of his office or employment . . . if a private person would be liable to the claimant.” 28
7
U.S.C. § 1346(b)(1) (emphasis added). The FTCA’s definition of “employee of the government”
includes “employees of any federal agency,” but the definition of “federal agency” explicitly
excludes “any contractor with the United States.” 28 U.S.C. § 2671. Based on this language, the
Supreme Court has recognized an “independent contractor exception” to the FTCA. See
Orleans, 425 U.S. at 814. Following Orleans, courts “routinely hold that the United States
cannot be sued where the alleged duty of care has been delegated to an independent contractor.”
See Hsieh v. Consol. Eng’g Servs., Inc., 569 F. Supp. 2d 159, 176 (D.D.C. 2008) (first citing
Cannon v. United States, 645 F.2d 1128, 1133–39 (D.C. Cir. 1981); and then citing Cooper v.
United States Gov’t, 225 F. Supp. 2d 1, 4 (D.D.C. 2002)).
When considering whether the independent contractor exception to the FTCA applies, a
court must evaluate the level of control that the United States exercises over the contractor.
Under this exception, the government can only be liable for a contractor’s acts, if the contractor’s
“day-to-day operations are supervised by the Federal Government.” Orleans, 425 U.S. at 815.
The Supreme Court has further explained that a “critical element in distinguishing an agency
from a contractor is the power of the Federal Government ‘to control the detailed physical
performance of the contractor.’” Id. at 814 (quoting Logue v. United States, 412 U.S. 521, 528
(1973)). The D.C. Circuit has made clear that “the government may ‘fix specific and precise
conditions to implement federal objectives’ without becoming liable for an independent
contractor’s negligence.” Macharia v. United States, 334 F.3d 61, 68–69 (D.C. Cir. 2003)
(quoting Orleans, 425 U.S. at 816). The United States is also permitted to “reserve the right to
inspect the contractor’s work and monitor its compliance with federal law without vitiating the
independent contractor exception.” Hsieh, 569 F. Supp. 2d at 177 (citing Orleans, 425 U.S. at
815).
8
The Court agrees with Defendant that the independent contractor exception applies to
Ms. Davis’s negligence claim and that the Court therefore lacks subject matter jurisdiction over
the Complaint. The Complaint alleges that TSA, “[t]hrough its agent, servant, and/or
employee, . . . owed a duty to the Plaintiffs to control its K-9 and to otherwise act in a reasonable
manner to avoid injuring A.D.” Compl. ¶ 14. On the Complaint’s own terms, the negligence
claim against Defendant relies on the actions of a Monroe County Sheriff’s Office employee. An
employee of the Sheriff’s Office is not an “employee of the government” for the purposes of the
FTCA. 28 U.S.C. § 1346(b)(1).
Nor does the affiliation between the TSA and the Sheriff’s Office exceed the usual
bounds of an independent contractual relationship for the purposes of the FTCA. To be sure, the
Agreement between the federal and local agencies does give the TSA a degree of supervision
over the canine teams in the Program. Among other things, the Sheriff’s Office must draft a
written plan explaining how TSA-provided canine teams will respond to critical threats in less
than forty-five minutes, see SOJO at 4, and ensure that handlers and canines meet training
requirements, including “TSA-mandated proficiency training,” id. at 4–5. Additionally, a TSA
Field Canine Coordinator is “responsible for overseeing and evaluating the [Sheriff’s Office’s]
compliance with the conditions of the” Agreement. Id. at 3. The Agreement also places general
conditions on how the canine teams can be deployed. For instance, canine teams must “maintain
the ability to promptly respond to threats at” various forms of transportation infrastructure and
they are required to spend at least 80% of their annual duty time “in the transportation
environment.” Id. at 3. Similar terms require a percentage of each canine team’s duty time to be
spent searching cargo. Id.9
These contractual terms do not, however, constitute supervision of “day-to-day
operations . . . by the Federal Government.” Orleans, 425 U.S. at 815. Nor does the TSA
“control the detailed physical performance of the contractor.” Logue, 412 U.S. at 528. The
Agreement provides only operation parameters and guidelines, such as training requirements and
minimum standards of coverage. For instance, instead of TSA exercising direct control over the
canine teams or mandating its own response plan, the Agreement requires the Sheriff’s Office to
maintain its own plan for how canine teams “will respond to threat incidents . . . within a
maximum of 45 minutes.” SOJO at 4. Similarly, the Agreement sets minimum operational
expectations, but leaves it to the Sheriff’s Office to determine how those standards are
accomplished in practice. See, e.g., id. at 3 (setting percentage targets for use of operational time
in different settings). The fact that TSA and its Field Canine Coordinator monitor the canine
teams and enforce the terms of the Agreement is not enough to sidestep the independent
contractor exception to the FTCA. The federal government is permitted to “‘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).
Similarly, it may “reserve the right to inspect the contractor’s work and monitor its compliance
with federal law without vitiating the independent contractor exception.” Hsieh, 569 F. Supp. 2d
at 177 (citing Orleans, 425 U.S. at 815).
The Supreme Court’s decision in Logue, 412 U.S. 521, is instructive here. In Logue, the
Court held that employees of a county jail were not employees of the United States for the
purposes of the FTCA, even though the jail housed federal prisoners subject to a contract with
the Federal Bureau of Prisons. Id. at 532. The Court rejected federal liability even though the
contract required compliance with the Bureau’s “rules and regulations,” even dictating the
10
“methods of discipline, rules for communicating with attorneys, visitation privileges, mail,
medical services, and employment.” Id. at 530. The contract gave the Bureau the right to
inspect the jail and determine the conditions of the prisoners, but did not give the right “to
physically supervise the conduct of the jail’s employees.” Id. The Agreement at issue here is the
same. The Agreement fixes specific conditions and objectives and allows the TSA to monitor
the Sheriff’s Office’s performance, but it does not give the government direct, physical control
over the day-to-day operations of the canine teams.
For these reasons, the Court finds that the independent contractor exception to the FTCA
applies to the negligence claim found in the Complaint. Thus, sovereign immunity bars the
claim and the Court will dismiss the Complaint for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1).
IV. PLAINTIFF’S MOTION TO AMEND THE COMPLAINT AND SEEK DISCOVERY
In her opposition to Defendant’s motion, Ms. Davis moves for leave to file an Amended
Complaint and to conduct discovery on a number of issues. See Pls.’ Opp’n at 1. Specifically,
Ms. Davis argues that, if “the Complaint does not contain sufficient facts to defeat the United
States’ Motion, the Court should grant Plaintiffs leave to amend . . . to add necessary parties and
provide sufficiently pled facts that would defeat the Motion.” Pls.’ Mem. at 9. Among other
changes, the proposed Amended Complaint names WMATA as an additional defendant. See
Am. Compl. ¶¶ 18–21. Plaintiff also argues that she should “be permitted to perform discovery,
pursuant to [Federal Rule of Civil Procedure] 56(d).” Pls.’ Mem. at 10. For the reasons stated
below, the Court will grant Plaintiff leave to file the Amended Complaint and will permit limited
jurisdictional discovery. Finally, the Court will grant leave to amend the Complaint to add
WMATA as a defendant.
11
A. Legal Standard
Under Federal Rule of Civil Procedure 15(a)(1), a party may amend her pleading once as
a matter of course within twenty-one days after effecting service, or twenty-one days after the
service of a responsive pleading under Rule 12(b), (e) or (f). See Fed. R. Civ. P. 15(a)(1). After
that time, a party “may amend its pleading only with the opposing party’s written consent or the
court’s leave.” Fed. R. Civ. P. 15(a)(2). Hoping to amend her complaint, and not having
obtained Defendant’s written consent, Ms. Davis now seeks the Court’s leave to do so. See Pls.’
Mem at 9.
Typically, leave to amend a complaint should be freely given “when justice so requires.”
Fed R. Civ. P. 15(a)(2). In deciding whether to allow a party to amend a complaint, however,
courts may consider “undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Harris v.
Sec’y, U.S. Dep’t of Veterans Affairs, 126 F.3d 339, 344 (D.C. Cir. 1997) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)). “An amendment would be futile if it merely restates the same
facts as the original complaint in different terms, reasserts a claim on which the court previously
ruled, fails to state a legal theory, or could not withstand a motion to dismiss.” Robinson v.
Detroit News, Inc., 211 F. Supp. 2d 101, 114 (D.D.C. 2002). A court considers the proposed
amendments “under the same standard as would be applied to a motion to dismiss.” Oladokun v.
Corr. Treatment Facility, 5 F. Supp. 3d 7, 13 (D.D.C. 2013).
B. The Amended Complaint’s Allegations against the United States
Plaintiff briefly argues the she should be permitted to amend the Complaint “to add
necessary parties and provide sufficiently pled facts that would defeat” Defendant’s motion.
12
Pls.’ Mem. at 9. The proposed Amended Complaint includes a single negligence count against
the United States. See Am. Compl. ¶¶ 22–25. Specifically, the Amended Complaint alleges that
the United States “breached its duty to the Plaintiffs and caused injury to A.D., by failing to
properly train, supervise and/or control its dog which constitutes the tort of negligence.” Id.
¶ 24. Defendant argues that amendment would be futile, because the Amended Complaint could
not survive a dispositive motion. See Def.’s Reply Supp. Def.’s Mot. Dismiss or for Summ. J.
(“Def.’s Reply”) at 5–10, ECF No. 16. Specifically, Defendant argues that the Court does not
have subject matter jurisdiction because the new training aspect of the amended claim against the
United States falls under the discretionary function exception to the FTCA. 6 Id. at 7. At this
time, the Court finds it would be premature to determine that the amended negligence claim is
barred by the discretionary function exception and therefore futile. Instead, the Court will permit
limited jurisdictional discovery for the purpose of resolving that question.
1. The Independent Contractor Exception to the FTCA
The Amended Complaint’s negligence count against the United States is based on TSA’s
alleged failure to train, supervise, and control the canine in question. See Am. Compl. ¶ 24
(alleging that TSA failed “to properly train, supervise and/or control its dog”). The Court has
already decided, however, that the independent contractor exception to the FTCA bars federal
liability for the actions of the Sheriff’s Office employee handling the canine at the time of the
incident. Although the TSA owns the canine, the Sheriff’s Office is responsible for its day-to-
day supervision and handling. See SOJO at 3–4; DeMoss Decl. ¶ 10. An amendment is futile “if
it merely restates the same facts as the original complaint in different terms” or “reasserts a claim
6
Defendant also renews its argument on the merits that TSA “does not owe any duty to
Plaintiff.” Def.’s Reply at 6.
13
on which the court previously ruled.” Robinson, 211 F. Supp. 2d at 114. Thus, for the reasons
previously stated, the independent contractor exception makes amendment futile to the extent
that the Amended Complaint seeks to hold the United States liable for the actions of the Sheriff’s
Office or for TSA’s failure to supervise or control the canine.
2. The Discretionary Function Exception to the FTCA
The Amended Complaint does include one new aspect—an allegation that the United
States is liable to Plaintiff for the negligent training of the canine. See Am. Compl. ¶ 24.
Specifically, the Amended Complaint alleges that the United States failed “to properly train . . .
its dog.” Id. Defendant argues that this addition to the Complaint is also futile because “the
discretionary function exception to the FTCA’s general waiver of sovereign immunity applies.”
Def.’s Reply at 7. For the reasons stated below, the Court finds that additional facts are
necessary to resolve the application of the discretionary function exception.
The discretionary function exception is another exclusion from the FTCA’s general
jurisdictional grant and waiver of sovereign immunity. See Sloan v. U.S. Dep’t of Hous. &
Urban Dev., 236 F.3d 756, 759 (D.C. Cir. 2011) (citations omitted). Under this exception, the
United States expressly retains its immunity for “any claim . . . based upon the exercise or
performance or the failure to exercise or perform a discretionary function or duty on the part of a
federal agency or an employee of the Government, whether or not the discretion involved be
abused.” 28 U.S.C. § 2680(a). Because the purpose of the exception is to shield discretionary
policy decisions from liability, the exception applies even when an employee’s alleged acts are
negligent. See United States v. Gaubert, 499 U.S. 315, 323 (1991). “If the discretionary
function exception applies, the district court lacks subject matter jurisdiction over the case.”
Sloan, 236 F.3d at 759 (quoting Cope v. Scott, 45 F.3d 445, 448 (D.C. Cir. 1995)).
14
In United States v. Gaubert, the Supreme Court created a two-step test to determine if the
discretionary function exception applies to a government action. 499 U.S. 315 (1991). First, the
exception “covers only acts that are discretionary in nature” and “‘involv[e] an element of
judgment or choice.’” Id. at 322 (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1954)).
The exception will not apply where a “federal statute, regulation or policy specifically prescribes
a course of action for an employee to follow.” Id. at 322 (quoting Berkovitz, 486 U.S. at 536)).
In the case of a specific prescription, “no discretion is employed and the only remaining inquiry
. . . is whether the employee did, or did not, do what was prescribed by the applicable statute,
regulation, or policy.” Daisley v. Riggs Bank, N.A., 372 F. Supp. 2d 61, 82 (D.D.C. 2005)
(citations omitted).
Second, even if “the challenged conduct involves an element of judgment,” that judgment
must be “of the kind that the discretionary function exception was designed to shield.” Gaubert,
499 U.S. at 322–23 (quoting Berkovitz, 486 U.S. at 536). The exception is intended to “prevent
judicial ‘second guessing’ of legislative and administrative decisions grounded in social,
economic and political policy,” so it only protects “governmental actions and decisions based on
considerations of public policy.” Id. at 323 (quoting Berkovitz, 486 U.S. at 537). When
evaluating the governmental action or decision, a court’s decision should not turn on “what the
decisionmaker was thinking, but [rather] the type of decision being challenged.” Loughlin v.
United States, 393 F.3d 155, 163 (D.C. Cir. 2004) (quoting Cope, 45 F.3d at 449) (alteration in
original).
The Court will begin its analysis with the second prong of the Gaubert test, which asks
“whether the type of decision being challenged is grounded in social, economic, or political
policy.” Macharia v. United States, 334 F.3d 61, 67 (D.C. Cir. 2003) (quoting Cope, 45 F.3d at
15
449). Defendant argues that the TSA exercises discretion when creating its training methods and
procedures, and that it necessarily considers policy implications when deciding how to train its
canines. See Def.’s Reply at 9. The critical question is “whether the ‘nature’ of the decision
implicates policy analysis.” Cope, 45 F.3d at 449 (citations omitted). In other words, what
matters is the “type of decision being challenged” not “what the decisionmaker was thinking” at
the time. Id.Several courts in this Circuit have found that training decisions are grounded in public
policy and satisfy the second prong of Gaubert. Following Gaubert, the D.C. Circuit held that
“hiring, training, and supervision choices that WMATA faces are choices ‘susceptible to policy
judgment.’” Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1217 (D.C. Cir.
1997). 7 On the issue of training, the court elaborated:
The extent of training with which to provide employees requires consideration of
fiscal constraints, public safety, the complexity of the task involved, the degree of
harm a wayward employee might cause, and the extent to which employees have
deviated from accepted norms in the past. Such decisions are surely among those
involving the exercise of political, social, or economic judgment.
Id. In Macharia, the D.C. Circuit affirmed the district court’s dismissal of claims arising from
the terrorist attack on the United States Embassy in Nairobi, Kenya. 334 F.3d at 69. In its
analysis of Gaubert’s second prong, the court agreed with the district court that “how much
training should be given to guards and embassy employees . . . necessarily entails balancing
competing demands for funds and resources.” Id. at 67. Applying these principles, other district
courts have reached similar conclusions in the law enforcement context. See, e.g., Bostic v. U.S.
Capitol Police, 644 F. Supp. 2d 106, 110 (D.D.C. 2009) (“The [Capitol Police’s] training and
7
Although Burkhart dealt with WMATA’s sovereign immunity, instead of the FTCA’s
waiver of federal sovereign immunity, the court made clear that it was interpreting Gaubert and
that the WMATA and FTCA rules were analogous. See Burkart, 112 F.3d at 1216.
16
supervision of employees is exactly the kind of discretionary function that is not subject to
judicial second-guessing.”); Tookes v. United States, 811 F. Supp. 2d 322, 330 (D.D.C. 2011)
(“[T]he governing case law in this Circuit firmly supports a finding that the supervision and
training of deputy marshals are discretionary governmental functions grounded in social,
economic, and political policy.”).
TSA faces a range of difficult choices when allocating its limited resources and pursuing
its important objective of protecting transportation in the United States. The same policy
concerns described in other negligent training cases also shape the TSA’s decisions with regard
to training canines in the Program. Just as with human employees, creating a training program
for canines “requires consideration of fiscal constraints, public safety, the complexity of the task
involved, the degree of harm a wayward [canine] might cause, and the extent to which [canines]
have deviated from accepted norms in the past.” Burkhart, 112 F.3d at 1217. Decisions of that
type require the exercise of political, social, or economic judgment, id., and it is not necessary
for the government to provide details of the actual rationale for the training decisions implicated
by the Amended Complaint, See Loughlin, 393 F.3d at 163 (citations omitted).
Resolving the second Gaubert prong in the Defendant’s favor does not resolve the issue,
however. Under the first prong, the United States could still be liable if “the injury resulted from
a government employee’s failure to follow a specific, mandatory policy requiring a particular
course of action.” Singh v. S. Asian Soc’y of The George Washington Univ., No. 06-0574, 2007
WL 1521050, at *6 (D.D.C. May 21, 2007) (citations omitted). If the allegedly negligent act was
controlled by any statute, regulation or established policy, it cannot be discretionary because “the
employee ha[d] no rightful option but to adhere to the directive.” Berkovitz, 486 U.S. at 536.
Defendant argues that Plaintiff has failed to “point to any federal statute, regulation, directive, or
17
policy that specifically prescribes TSA’s training methods and procedures for the NEDCTP
canines.” Def.’s Reply at 9. Although it does not appear that Ms. Davis has identified any
regulation or policy, she has sought broad permission to conduct discovery. For the reasons
explained below, and in light of Plaintiff’s request and this Circuit’s liberal approach to
jurisdictional discovery, the Court finds that it would be premature to resolve the first Gaubert
prong without giving Plaintiff an opportunity to conduct limited, jurisdictional discovery.
3. Plaintiff’s Request for Discovery
Plaintiff moves for discovery in order to:
[D]evelop facts regarding the relationship between the TSA and the [Greater
Rochester Regional Airport/Monroe County Sheriff’s Office]; to determine the
history of the canine in question; to determine what training was provided by the
TSA to its canine and to the canine teams; to determine the sufficiency of the
training; to determine whether the TSA’s training, oversight, guidance and/or
direction of the canine and canine teams met applicable standards of care; and to
obtain other information on the issue of the TSA’s actions or inactions
contributing to the incident under suit.
Pls.’ Mem. at 10. Defendant argues that Plaintiff has not “offered specific reasons to
demonstrate the necessity and utility of discovery.” Def.’s Reply at 11. In light of this Circuit’s
liberal approach to jurisdictional discovery in this context, the Court will permit limited
discovery.
At the outset, the Court notes that Defendant has not only moved to dismiss on the basis
that this Court lacks subject matter jurisdiction and that Ms. Davis has failed to state a claim
upon which relief can be granted, but has also moved, in the alternative, for summary judgment.
See Def.’s Mot at 1. Plaintiff’s request for discovery, which cites only Federal Rule of Civil
Procedure 56(d), does not distinguish between these arguments or specify why discovery is
necessary to defeat any specific component of Defendant’s motion. See Pls.’ Mem. at 10.
Because the Court does not reach the summary judgment analysis, it is not clear that Rule 56(d)
18
applies in the context of a jurisdictional challenge under Rule 12. 8 Courts in this Circuit
considering requests for jurisdictional discovery related to exceptions to the FTCA have not
relied on Rule 56(d). See, e.g., Loughlin, 393 F.3d at 166–68; Ignatiev v. United States, 238
F.3d 464, 466–67 (D.C. Cir. 2001); Donahue v. United States, 870 F. Supp. 2d 97, 114–15
(D.D.C. 2012); Sledge v. United States, 723 F. Supp. 2d 87, 92–98 (D.D.C. 2010). 9 The Court
will follow the path of other courts in this Circuit, and will treat Plaintiff’s argument under Rule
56(d) as a request for jurisdictional discovery.
“This Circuit’s standard for permitting jurisdictional discovery is quite liberal.” Diamond
Chemical Co., Inc. v. Atofina Chemicals, Inc., 268 F. Supp. 2d 1, 15 (D.D.C. 2003). The D.C.
Circuit has stated that “if a party demonstrates that it can supplement its jurisdictional allegations
through discovery, then jurisdictional discovery is justified.” GTE New Media Services, Inc. v.
BellSouth Corp., 199 F.3d 1343, 1351 (D.C. Cir. 2000). “The district court retains considerable
latitude in devising the procedures it will follow to ferret out the facts pertinent to jurisdiction,”
but, “[i]n order to avoid burdening a sovereign that proves to be immune from suit . . .
jurisdictional discovery should be carefully controlled and limited.” Phoenix Consulting Inc. v.
Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000) (citations and quotation marks omitted).
8
Certainly, if the Court lacks subject matter jurisdiction, Plaintiff is not entitled to
conduct discovery on the merits of her claim. See Macharia, 334 F.3d at 68 (stating that merits
discovery is “entirely irrelevant to the jurisdictional issue raised by the government’s motion” to
dismiss based on the discretionary function exception).
9
While other Circuits have looked “to decisions under Rule 56 for guidance in
determining whether to allow discovery on jurisdictional facts,” they have relied on those
decisions only by analogy. Johnson v. United States, 534 F.3d 958, 965 (8th Cir. 2008); see also
Gualandi v. Adams, 385 F.3d 236, 244 (2d Cir. 2004) (“Although a motion to dismiss for lack of
jurisdiction cannot be converted into a Rule 56 motion, a court may nonetheless look to Rule
[56(d)] for guidance in considering the need for discovery on jurisdictional facts.”) (citations
omitted).
19
In the FTCA context, courts in this Circuit frequently grant jurisdictional discovery
where plaintiffs have challenged the application of exceptions to the FTCA. See, e.g., Ignatiev,
238 F.3d at 467 (reversing the district court’s decision to prohibit discovery regarding whether
non-public, mandatory guidelines existed); Loughlin, 393 F.3d at 166–68, 172 (finding that the
district court erred in suggesting that jurisdictional discovery is limited to the first prong of the
discretionary function exception test); Sledge, 723 F. Supp. 2d at 94–95 (permitting limited
jurisdictional discovery); Singh, 2007 WL 1521050, at *6 (same). When considering an
exception to the FTCA, the D.C. Circuit has “recognized that where ‘facts [are] necessary to
establish jurisdiction,’ plaintiffs must be afforded the opportunity for discovery of [such] facts . .
. prior to’ the granting of a motion to dismiss for lack of subject matter jurisdiction.” Loughlin,
393 F.3d at 167 (D.C. Cir. 2004) (alterations in original) (emphasis added) (citing Ignatiev, 238
F.3d at 467).
The Court finds that limited discovery is warranted in this case. In order to determine
whether the discretionary function exception applies to Plaintiff’s FTCA claim, the Court must
consider factual matters outside the Amended Complaint. Although Plaintiff does not explicitly
allege that TSA employees violated any specific mandatory directive, Ms. Davis does argue that
“the TSA trained [the] canine handlers ‘using established TSA proficiency/certification
standards.’” Pls.’ Mem. at 4–5 (citing SOJO at 2). Based on the current record, it is not clear,
and the Court does not decide, whether those standards constitute a mandatory directive that
could implicate the first prong of Gaubert. Discovery may clarify the significance of those
standards and whether TSA employees adhered to them, if they were required to do so. The
Court also notes that the Statement of Joint Objectives found in the Agreement refers to the
“Program’s Standard Operating Practices and Procedures (SOPP).” See SOJO at 2. Limited
20
jurisdictional discovery may reveal whether those practices and procedures constitute binding
direction for TSA employees. At this time, the Court does not decide the significance of the
“proficiency/certification standards” or the Program’s SOPP, and Plaintiff is not limited to
seeking discovery on these examples.
Of course, Plaintiff’s discovery will be strictly limited to jurisdictional issues. 10 The
Court recognizes that “jurisdictional discovery should be carefully controlled and limited” to
avoid burdening a sovereign who may be immune from suit. Phoenix Consulting, 216 F.3d at
40. To the extent Plaintiff’s motion seeks leave to conduct discovery on non-jurisdictional
issues, the motion is denied without prejudice. At this time, Ms. Davis will not be permitted to
seek discovery on the merits of her case. For example, several issues listed in Plaintiff’s request
for discovery, including “whether the TSA’s training, oversight, guidance and/or direction of the
canine and canine teams met applicable standards of care,” see Pls.’ Mem. at 10, are irrelevant to
the threshold jurisdictional question at issue here. The only issues subject to discovery at this
time are whether a mandatory directive governed the training of TSA canines in the NEDCTP
10
The D.C. Circuit has clarified that discovery may be permitted for the second prong of
the Gaubert test. See Loughlin, 393 F.3d at 167 (“No bright line rule confines discovery to
prong one of the discretionary function exception.”). The Louglin court also noted, however,
that “[b]ecause the prong-two inquiry looks to the type of decision whether to warn, irrespective
of considerations that factored into the actual decision, . . . it may often be the case that
discovery is unnecessary to determine whether prong two of the discretionary function exception
extends to any particular act or omission.” Id. at 166 (citing Cope v. Scott, 45 F.3d 445, 449
(D.C. Cir. 1995)). This is not a case where “the factual predicate is critical to an accurate
analysis of the nature of the decision made.” Id. 166–67. Instead, the Court’s analysis of the
second prong is relatively straightforward. Creating a training program, as other courts have
found, requires the consideration of social, economic and political policy. See, e.g., Burkhart v.
Washington Metro. Area Transit Auth., 112 F.3d 1207, 1217 (D.C. Cir. 1997). Because the
Court’s analysis focuses on the type of decision, rather than the actual decision-making process,
discovery is not necessary to resolve the second prong.
21
and whether TSA employees violated that directive. Following the completion of jurisdictional
discovery, Defendant may renew its motion to dismiss or again seek summary judgment. 11
C. The Addition of WMATA as a Defendant
The Court will next consider Plaintiff’s request to add WMATA as an additional
defendant. Ms. Davis argues that she “should also be allowed to amend the Complaint to include
WMATA as a Defendant since WMATA may have also owed a duty to Plaintiffs at the time of
the alleged incident.” See Pls.’ Mem. at 9. The proposed Amended Complaint includes a single
negligence count against WMATA based on the same factual allegations brought against the
United States. See Am. Compl. ¶¶ 18–21.
Plaintiff moves to amend the Complaint pursuant to Federal Rule of Civil Procedure
15(a), which “allows a party to amend its pleading to add a new party.” 12 Amore ex rel. Estates
of Amore v. Accor, 529 F. Supp. 2d 85, 91 (D.D.C. 2008) (citations omitted); see also 6 Charles
A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1474 (3d ed. 2016) (“[A] party
may make a Rule 15(a) amendment to add, substitute, or drop parties to the action.). The
decision to grant or deny leave to amend is within the court’s discretion. See Firestone v.
11
The Court appreciates the security implications of allowing discovery about the
training of canines employed in airport security. Accordingly, discovery will be further limited
to directives concerning training with respect to discipline, safety, and interactions with the
public, not training concerning the detection of contraband and/or explosives.
12
The Court notes that amending a complaint to add a party could, in some instances,
implicate the joinder rules found in Federal Rules of Civil Procedure 20 and 21. See Amore ex
rel. Estates of Amore, 529 F. Supp. 2d at 91 n.2. After a responsive pleading has been filed,
however, the “standard for adding a party is the same regardless of the rule under which the
motion is made: the decision lies within the discretion of the court.” Id. (first citing Wiggins v.
Dist. Cablevision, Inc., 853 F. Supp. 484, 499 n.29 (D.D.C. 1994); and then citing Oneida Indian
Nation v. County of Oneida, 199 F.R.D. 61, 72 (N.D.N.Y. 2000)); see also 6 Charles A. Wright
& Arthur R. Miller, Federal Practice and Procedure § 1474 (3d ed. 2016) (“[T]he same basic
standard for adding or dropping a party will apply whether the pleader moves under Rule 15(a)
or Rule 21.”).
22
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). Leave to amend, however, “shall be freely
given when justice so requires.” Fed. R. Civ. P. 15(a). A denial must be supported by sufficient
reasons, “such as undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing
party . . . , [or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962).
Here, the Court is not aware of any evidence of undue delay, bad faith, or dilatory
motive. Plaintiff seeks to add WMATA as a defendant based on information provided by the
United States in its motion to dismiss. Plaintiff’s motion for leave to amend, included in her
opposition to the motion to dismiss, followed soon after the United States provided information
about WMATA’s possible connection to the incident at issue in this case. As Plaintiff notes, the
request for leave to file the Amended Complaint was filed within the District of Columbia’s
three-year statute of limitations for negligence claims. See D.C. Code § 12-301 (setting a three-
year limitation period for causes of action “for which a limitation is not otherwise specially
prescribed”); see also Carney v. Am. Univ., 151 F.3d 1090, 1096 (D.C. Cir. 1998) (noting that
the residual, three-year statute of limitations applies to personal injury claims). The timing of
Plaintiff’s request suggests that WMATA is unlikely to face undue prejudice if it is added as a
defendant in this case. 13 For these reasons, the Court will grant Plaintiff’s motion for leave to
amend her Complaint to add WMATA as a defendant.
13
As previously discussed, leave to amend may be denied where the amendment would
be futile because the new claims could not survive a motion to dismiss. See Robinson v. Detroit
News, Inc., 211 F. Supp. 2d 101, 114 (D.D.C. 2002). The Court notes the possibility that
sovereign immunity may bar the negligence claim against WMATA, see Beebe v. Washington
Metro. Area Transit Auth., 129 F.3d 1283, 1287 (D.C. Cir. 1997), but, without the benefit of
argument by the parties, the Court does not find that amendment is necessarily futile.
23
V. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss or, in the Alternative, Motion
for Summary Judgment (ECF No. 12) is GRANTED and Plaintiff’s Motion to Amend the
Complaint and/or Conduct Discovery (ECF No. 15) is GRANTED IN PART AND DENIED
IN PART. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: July 20, 2016 RUDOLPH CONTRERAS
United States District Judge
24