WOODS v. SECRETARY OF HOUSING & URBAN DEVELOPMENT et al

Filing 7

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 10/16/2017. 10/16/2017 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARCIA WOODS, et al.
Plaintiff,
v.
SECRETARY OF HOUSING & URBAN
DEVELOPMENT, et al.
Defendants.

:
:
:
:
:
:
:
:
:
:

CIVIL ACTION

NO. 17-1903

Goldberg, J.

October 16, 2017
MEMORANDUM OPINION

Plaintiff Marcia Woods brings this action, pursuant to the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 2671, seeking personal injury damages against Defendants, the Secretary
of Housing and Urban Development and the U.S. Department of Housing and Urban
Development (“HUD”). Defendants have moved to dismiss the Complaint, under Federal Rule
of Civil Procedure 12(b)(1), for lack of subject-matter jurisdiction. For the following reasons, I
will grant the motion and dismiss the case.
I.

FACTS IN THE COMPLAINT AND PROCEDURAL HISTORY
According to the Complaint, on May 18, 2015, Plaintiff was a pedestrian at or near 7245

N. 21st Street, Philadelphia, Pennsylvania, which is a property operated, controlled, and/or
managed by Defendants.

(Compl. ¶¶ 8, 10.) Plaintiff allegedly suffered injuries to her hands

and fingers due to a broken, loose, and/or detached handrail located at the exterior of the
premises. (Id. ¶¶ 9, 12.)

Plaintiff initiated suit on April 25, 2017, alleging negligence against Defendants. On
June 23, 2017, Defendants filed the current Motion to Dismiss for Lack of Jurisdiction, and
Plaintiff responded on July 5, 2017. The case was reassigned to my docket on October 5, 2017.
II.

STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the power

of a federal court to hear a claim or a case. Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d
Cir. 2006). When presented with a Rule 12(b)(1) motion, the plaintiff “will have the burden of
proof that jurisdiction does in fact exist.” Id. at 302 n.3 (quotation omitted).
There are two types of Rule 12(b)(1) motions.

A “facial” attack assumes that the

allegations of the complaint are true, but contends that the pleadings fail to present an action
within the court’s jurisdiction. Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891
(3d Cir. 1977). A “factual” attack, on the other hand, argues that, while the pleadings themselves
facially establish jurisdiction, one or more of the factual allegations is untrue, causing the case to
fall outside the court’s jurisdiction.

Mortensen, 549 F.2d at 891.

In such a case, “no

presumptive truthfulness attaches to plaintiff’s allegations” and the court must evaluate the
merits of the disputed allegations because “the trial court’s . . . very power to hear the case” is at
issue. Id. With a factual attack, the Court is free to consider evidence outside the pleadings and
weigh that evidence. Petruska, 462 F.3d at 302 n.3; see also Gould Elecs., Inc. v. U.S., 220 F.3d
169, 176 (3d Cir. 2000). “[T] he existence of disputed material facts will not preclude the trial
court from evaluating for itself the merits of jurisdictional claims.” Petruska, 462 F.3d at 302 n.3
(quoting Mortenson, 549 F.2d at 891).

2

III.

DISCUSSION
Defendants argue that, under the doctrine of sovereign immunity, the Court lacks subject-

matter jurisdiction over this case. They contend that because the claims at issue do not fall
within the FTCA’s waiver of sovereign immunity, the Complaint must be dismissed.1 Plaintiff
responds that HUD was responsible for the property in question and therefore can be held liable.
The United States enjoys sovereign immunity from suits and, accordingly, may be sued
only if it has waived that immunity. Beneficial Consumer Disc. Co. v. Poltonowicz, 47 F.3d 91,
93–94 (3d Cir. 1995).

“[W]aivers of federal sovereign immunity must be unequivocally

expressed” in the statutory text and “[a]ny such waiver must be strictly construed in favor of the
United States.” U.S. v. Idaho ex rel. Director, Idaho Dep’t. of Water Res., 508 U.S. 1, 6–7
(1993) (internal quotation marks omitted). If there is no waiver, then the court does not have

1

The FTCA generally permits claims against the United States for damages:
for injury or loss of property, or personal injury or death 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). Claims brought under the FTCA, however, may only be brought against
the United States; federal agencies are never appropriate defendants. 28 U.S.C. § 2679(a); see
also Feaster v. Fed. Bureau of Prisons, 366 F. App’x 322, 323 (3d Cir. 2010). Likewise, federal
employees cannot be sued in their official capacities “because a suit against a federal official in
his official capacity is, in fact, a suit against the United States.” Goodson v. Maggi, No. 08–44,
2010 WL 1006901, at *5 (W.D. Pa. Feb. 22, 2010) (citing Kentucky v. Graham, 473 U.S. 159,
165–67).
Here, Plaintiff has brought suit under the FTCA against HUD and HUD’s Secretary in his
official capacity. As they are not proper defendants, I will, for purposes of this motion, construe
Plaintiff’s claims as being brought against the United States.

3

subject matter jurisdiction over the case. United States v. Bein, 214 F.3d 408, 415 (3d Cir.
2000).
The Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq. constitutes one type of
such waiver. Matsko v. U.S., 372 F.3d 556, 558 (3d Cir. 2004). The FTCA waives the United
States’ sovereign immunity as to money damage claims for injury caused by the negligent or
wrongful act or omission of an “employee of the government” acting within the scope of his
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.”
Beneficial, 47 F.3d at 95–96 (quoting 28 U.S.C. § 1346(b)). The definition of “employee of the
Government” specifically excludes “any contractor with the United States,” thereby creating the
“independent contractor exception.” Norman v. U.S., 111 F.3d 356, 357 (3d Cir. 1997) (citing
28 U.S.C. § 2671). Under this exception, the United States has not waived its sovereign
immunity and cannot be sued if the claim alleges a negligent or wrongful action by an
independent contractor. See United States v. Orleans, 425 U.S. 807, 814 (1976).
The application of the independent contractor exception, particularly in a personal injury
case, turns on whether the United States “control[s] the physical conduct of the contractor in
performance of the contract.” Logue v. United States, 412 U.S. 521, 527 (1973). Stated
differently, the question is “whether [the contractor’s] day-to-day operations are supervised by
the Federal Government.” Orleans, 425 U.S. at 815. “Broad governmental oversight is not
sufficient to elevate a government vendor or service provider from independent contractor to
employee status for the purpose of the FTCA.” Smiley v. Artisan Builders, No. 13-7411, 2015
WL 3948044, at *4 (E.D. Pa. June 26, 2015). Rather, to make this determination, courts “have
looked to the contract between the United States and the contractor to determine whether the

4

United States exercised day-to-day supervision over the work of the contractor.” Dugan v.
Coastal Indus., Inc., 96 F. Supp. 2d 481, 483 (E.D. Pa. 2000). “Only convincing proof that a
federal employee exercised supervisory control over an independent contractor’s daily operations
will subject the Government to liability for the negligence of its contractor.” Courts v. U.S., No.
15-7303, 2016 WL 4521687, at *3 (D.N.J. Aug. 29, 2016).
The United States Court of Appeals for the Third Circuit addressed the independent
contractor exception in Norman v. United States, 111 F.3d 356 (3d Cir. 1997). The plaintiff in
that matter had fallen on water and ice on the floor at the entrance of a federal building. Id. at
351.

The District Court found that an independent contractor had been given broad

responsibility for the daily maintenance of the federal building—including the area where the
plaintiff allegedly fell—under a contract that specified the location and frequency of the
maintenance requirements and the quality requirements for the contractor’s work. Norman v.
U.S., No. 95-4111, 1996 WL 377136, at *2 (E.D. Pa. July 3, 1996). Although the contract
required that the contractor comply with the government’s maintenance and inspection standards,
it did not authorize the government to physically supervise the contractor’s employees. Id. at *3.
On this record, the District Court determined that the contractor was an independent contractor,
thereby exempting the United States from liability and depriving the federal court of subject
matter jurisdiction. Id. The Third Circuit affirmed the Rule 12(b)(1) dismissal, concurring that
the contractor “was given broad responsibilities for daily maintenance” and the contract
explicitly stated that “Government direction or supervision of contractor’s employees directly or
indirectly, shall not be exercised.” Norman, 111 F.3d at 357–58.
In Smith v. Steffens, 429 F. Supp. 2d 719 (E.D. Pa. 2006), the district court reached an
identical outcome on similar facts. The plaintiffs were injured when the basement steps of a

5

property owned by HUD collapsed under them. Id. at 720. The government sought a Rule
12(b)(1) dismissal and produced a copy of a contract with an independent contractor to “manage,
market and oversee the sales closing activity” for the property. Id. The court found that, under
the contract, HUD had turned over the day-to-day management of the property to the
independent contractor. Id. at 721. The mere fact that the government retained some limited
oversight power was not enough to deem the independent contractor an “employee” of the
government.

Id. at 722.

On that record, the court found that the independent contractor

exception applied and dismissed the complaint against the United States for lack of subject
matter jurisdiction.2 Id. at 723.
Here, like the foregoing cases, the evidence establishes that an independent contractor
had broad responsibilities for maintenance of the subject property and that the contractor was not
subject to any day-to-day management, supervision, or control by HUD. Under HUD’s Single
Family Property Disposition Program, HUD disposes of properties acquired by the Federal
Housing Administration through foreclosures of insured mortgages. (Defs.’ Mot. to Dismiss, Ex.

2

Other cases within the Third Circuit have also applied the independent contractor exception
based almost exclusively on the contract between the United States and the contractor. See, e.g.,
Courts v. U.S., No. 15-7303, 2016 WL 4521687, at *5 (D.N.J. Aug. 29, 2016) (holding that
where a lease turned over responsibility for janitorial services of premises to independent
contractor and plaintiff produced no evidence that government employees supervised day-to-day
operations, independent contractor exception applied); Jackson v. Grondolsky, No. 09-5617,
2012 WL 960450, at *9 (D.N.J. Mar. 20, 2012) (dismissing case for lack of subject matter
jurisdiction where the plaintiff failed to contradict the clear language of the agreement between
the contracting doctor and the Bureau of Prisons, which “overwhelmingly indicate[d]” that the
doctor was an independent contractor); Balkonis v. U.S., No. 01-5541, 2002 WL 32348285, at
*3 (E.D. Pa. Aug. 14, 2002) (dismissing case for lack of subject matter jurisdiction because,
under the terms of a HUD management contract, the management company “was responsible for
preventing and correcting any dangerous conditions on the property”); Brimfield v. U.S. Dept. of
Hous. & Urban Dev., No. 02-3684, 2002 WL 31513375, at *3 (E.D. Pa. Oct. 17, 2002) (finding
that, under the terms of the HUD management contract, the management company was
responsible for the removal of any safety hazards as of the effective date of the contract, thereby
precluding a waiver of sovereign immunity).
6

1, Decl. of Michael Curry (“Curry Decl.”) ¶¶ 3, 7.) In connection with that program, HUD
contracts with field service managers who are responsible for property maintenance and
preservation. (Id. ¶ 6.)
HUD entered into a contract with A2Z Field Services, LLC (“A2Z”) on June 1, 2010.
(Id. ¶ 7.) Pursuant to the contract, A2Z was responsible to “take proper health and safety
precautions to protect workers, the public and the property of others” and was to “be responsible
for any and all injuries/damages to any and all individuals . . . that occur as a result of the
Contractor’s performance under this contract.”

(Id., Ex. A, § H.1.)

Further, the contract

provided that property management responsibilities under the contract included inspections,
preservation of property from conveyance to sale, maintenance and preparation of properties
intended for sale, management of rental properties, and management and maintenance of
properties in the custody of, but not owned by HUD. (Id., Ex. A, § 5.1.) The contract mandated
that:
The Contractor shall maintain all properties in a manner that
results in properties that are clean, safe, sanitary and secure. The
Contractor shall be liable for damages to all acquired properties
due to failure to inspect or secure property or other act, neglect,
failure, or misconduct of the Contractor, a Subcontractor, or any
Management Official of any of the foregoing. The Contractor
shall indemnify HUD for losses due to any act, neglect, failure or
misconduct of the Contractor, a Subcontractor, or any Management
Official of any of the foregoing.
(Id., Ex. A., ¶ 5.2.3.) The contract also explicitly stated that the contractor was responsible for
maintaining and implementing a comprehensive quality control plan, including “a detailed
inspection oversight program covering all general and specific tasks.” (Id., Ex. A, § 5.1.7.1.)
Further, the contractor was to conduct routine inspections to ensure the properties are “free from

7

health and safety hazards,” subject only to quality assurance inspections by HUD. 3 (Id., Ex. A,
§§ 5.2.3.2, 5.2.3.3.)
On May 14, 2015, HUD assigned the specific property at issue to A2Z for property
maintenance and preservation services. (Curry Decl. ¶ 10, Ex. C.) Michael Curry, the Director
of the Real Estate Owned Division of the Philadelphia Homeownership Center of the United
States Department of HUD averred that “[n]either HUD as an agency, nor any of its employees,
exercised daily, detailed control over A2Z’s maintenance of the subject property or any other
execution of its duties” under the contract.

(Id. ¶ 14.)

A2Z was responsible for routine

inspections of the subject property as part of its duties. (Id. ¶ 15.) In fact, on May 14, 2015 and
May 20, 2015, A2Z completed such inspections and found no hazardous condition involving an
exterior handrail. (Id. ¶¶ 15–16 & Ex. D.)
Given this record, the undisputed evidence establishes that A2Z had control over the
maintenance and safety of the subject property where Plaintiff was injured, was required to
conduct routine safety inspections at the property, actually conducted an inspection of the subject
property just prior to Plaintiff’s injury, and assumed liability for any losses to individuals as a
result of undiscovered hazardous conditions at the property. Plaintiff has produced no evidence
that Defendant had any day-to-day supervisory responsibility at the subject property. As such,
this case falls within the independent contractor exception to the FTCA.
Without addressing any of the aforementioned facts or case law, Plaintiff offers two
responsive arguments, neither of which offer a reprieve from the foregoing conclusion.

3

Although the contract does not explicitly deprive the government of day-to-day supervisory
responsibility, “[a] contract between the Government and an independent contractor need not
expressly state that the Government ‘will refrain from exercising supervision for an independent
contractor relationship to exist.’” Courts, 2016 WL 4521687, at *5.
8

First, Plaintiff mistakenly contends that the Court must accept as true the Complaint’s
allegations, which assert that Defendants’ direct actions caused Plaintiff’s injury. Upon a factual
attack under Rule 12(b)(1), the Court need not presume the truth of the allegations and “is free to
weigh the evidence and satisfy itself as to the existence of its power to hear the case.”
Mortensen, 549 F.2d at 891. Based on the uncontroverted evidence produced by Defendants,
Plaintiffs’ unsubstantiated allegations about Defendants’ responsibility for the property need not
be credited.
Second, Plaintiff urges that the motion to dismiss is premature because she has not had
the opportunity to take discovery regarding the management of the site and the nature of the
relationship between Defendants and any third party contractors. She speculates that, “[t]here
are hundreds if not thousands of possibilities which would give rise to the Defendant’s liability
under the [FTCA] . . . [f]or example, the contract may not be accurate, valid, or enforceable.
Alternatively, it may have been the negligence of the defendants in their care of the property
prior to the contract with a third party which gave rise to Plaintiff’s cause of action.” (Pl.’s Resp.
Opp’n at p. 6.)
This argument fails for several reasons. Primarily, as set forth above, courts in the Third
Circuit have repeatedly dismissed cases under the independent contractor exception, without
additional discovery, based upon the language of a contract between the government and the
contractor. Moreover, the mere possibility that Defendants’ negligence could have been the
cause of the dangerous condition is irrelevant. To the extent Defendants may have created any
hazardous condition prior to the contract—which was in place and in effect at the time of the

9

accident—A2Z bore full responsibility to identify and correct it.4 Finally, Plaintiff’s mere
speculation that “the contract may not be accurate, valid, or enforceable,” without more, does not
adequately provide a basis on which to grant jurisdictional discovery.

See Jasper v. Fed.

Emergency Mgmt. Agency, 414 F. App’x 649, 652 (5th Cir. 2011) (finding that government’s
submission of entire contract between government and contractor to be sufficient for a finding
that the independent contractor exception applied; [v]ague assertions of the need for additional
discovery are as unavailing as vague responses on the merits”).
In short, the operation of the independent contractor exception in this case precludes
Defendants’ waiver of their federal sovereign immunity. Consequently, this Court lacks subject
matter jurisdiction over this case, and I will grant Defendants’ Motion and dismiss the case
pursuant to Federal Rule of Civil Procedure 12(b)(1).

4

See Brimfield, 202 WL 31513375, at *3 (finding that management company was responsible
for removal of any safety hazards as of effective date of contract).
10