E.D. v. UNITED STATES OF AMERICA
MEMORANDUM/OPINION THAT THE COURT WILL GRANT THE GOVERNMENT'S MOTION TO DISMISS ON THE BASIS OF THE INDEPENDENT CONTRACTOR EXCEPTION BECAUSE THE GOVERNMENT HAS NOT WAIVED SOVEREIGN IMMUNITY FOR THIS CLAIM. THE COURT WILL ENTER A SEPARATE ORDER. SIGNED BY HONORABLE EDWARD G. SMITH ON 2/9/18. 2/9/18 ENTERED AND COPIES E-MAILED. (ky, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
CIVIL ACTION NO. 17-2691
February 9, 2018
The defendant, through the Immigration and Customs Enforcement agency, has a
contract with a county immigration family center for the center to act as a detention facility and
house immigration detainees and their children. The plaintiff was a detainee at the center when
she became a victim of institutional sexual assault by a center staff member. The plaintiff has
sued the United States under the Federal Tort Claims Act for the purported negligence of federal
employees in (1) failing to protect her from the institutional sexual assault, and (2) preventing
her from further harm after she reported the unlawful conduct.
The Federal Tort Claims Act provides that district courts have exclusive jurisdiction
against claims for monetary relief against the United States “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.” 28 U.S.C. § 1346(b)(1). The Government moves to have the court dismiss this
case on the basis of an exception to this grant of jurisdiction, namely the Act’s independent
contractor exception. This exception generally provides that the Government is not responsible
for the torts of independent contractors. As discussed further below, the court finds that the
county was an independent contractor with the United States and, therefore, this court lacks
subject-matter jurisdiction over this lawsuit.
On June 16, 2017, the plaintiff, E.D., filed a complaint alleging a single count of
negligence under the Federal Tort Claims Act (“FTCA”) against the United States of America. 1
See Compl. at 11, 12, Doc. No. 3. E.D. generally alleges that the Government owed her a duty
of safekeeping, that the Government breached this duty, and that the Government should be
monetarily liable for its negligence. See id. at 11-12.
The Government filed a motion to dismiss on August 31, 2017. Doc. No. 9. The
Government asserted that four grounds supported dismissing the case: (1) the failure to exhaust
administrative remedies; (2) the FTCA’s independent contractor exception; (3) the FTCA’s
discretionary function exception; and (4) the failure to state a claim. See The United States’ Mot.
to Dismiss Pl.’s Compl. Pursuant to Rules 12(b)(1) and 12(b)(6) at 1, Doc. No. 9. E.D. filed a
response to the motion on September 29, 2017. Doc. No. 11. The Government filed a reply to
the response on October 11, 2017. Doc. No. 12. On October 17, 2017, the court held a
telephone conference on the record to discuss the motion to dismiss. Doc. No. 15.
After the telephone conference, the court concluded “that the motion to dismiss, to the
extent that the defendant argues that the independent contractor exception under the Federal
Torts Claims Act bars the plaintiff’s claims, raises a factual challenge to the court’s subjectmatter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure.” Oct. 25, 2017
Order at 1, Doc. No. 18. Accordingly, the court ordered the parties to engage in limited
jurisdictional discovery on two issues: (1) “Did Berks County have day-to-day control of the
E.D. filed a companion case with this court in 2016 asserting causes of action against various employees at BCRCIFC, ICE, and various ICE officials. See E.D. v. United States Immigration and Customs Enforcement, et al., No.
operations at Berks County Residential Center-Immigration Family Center (‘BCRC-IFC’)? (2)
Did the United States Immigration and Customs Enforcement agency delegate its safekeeping
duties of detainees at BCRC-IFC to Berks County?” Id.
The parties have concluded jurisdictional discovery. Both E.D. and the Government
submitted supplemental briefs to the court on January 12, 2018. Doc. Nos. 25, 26. The motion
to dismiss is now ripe for adjudication.
In 2014, Immigration and Customs Enforcement (“ICE”) detained E.D. at the Berks
County Residential Center-Immigration Family Center (“BCRC-IFC”). Compl. at 2. During the
course of her detention at BCRC-IFC, Daniel Sharkey, a BCRC-IFC employee, engaged in
unlawful sexual activity with E.D. Compl. at 2–9.
Berks County operated BCRC-IFC pursuant to a contract with ICE called the
“Intragovernmental Service Agreement” (“IGSA”).
See Supplemental Br. Addressing
Jurisdictional Disc. in Further Supp. of the United States’ Mot. to Dismiss Pl.’s Compl. (“Def.’s
Suppl. Br.”) at Ex. 2, Intragovernmental Service Agreement (“IGSA”), Doc. No. 25-3. ICE and
Berks County entered into the IGSA on March 30, 2010. See id. at 1. The IGSA provided that
“The Service Provider shall provide residents/detainees with safekeeping, housing, subsistence,
medical services that are not provided for elsewhere and other services in accordance with this
Agreement.” 2 Id. at 3.
Although ICE retained legal custody over detainees at BCRC-IFC, Berks County
maintained physical custody of detainees. See Def.’s Suppl. Br. at Ex. 3, Family Residential
Facility, Statement of Work at 1 (“Statement of Work”), Doc. No. 25-4. The IGSA requires
Berks County to “house residents/detainee[s] and perform related residential/detention services
Berks County is noted as the “Service Provider” in the IGSA. See IGSA at 1.
in accordance with the most current edition of ICE/DRO residential standards.” IGSA at 6
(alteration to original). Additionally, the IGSA provides that “ICE inspectors will conduct
periodic inspections of the facility to assure compliance with the most current edition of the
ICE/DRO Residential Standards.” Id.; see id. at 7 (“The Government has the right to inspect and
test all services called for by the Agreement, to the extent practicable at all times and places
during the term of the Agreement.”).
Pursuant to the IGSA’s inspection provisions, the contracting officer’s representative
(“COR”), Patricia Reiser (“Reiser”), exercised compliance supervision over BCRC-IFC. 3 See
Plaintiff’s Suppl. Resp. to Def.’s Mot. to Dismiss (“Pl.’s Suppl. Resp.”) at Ex. 8, Contracting
Officer’s Representative Appointment Letter, Doc. No. 27-5. 4 Reiser spent about fifty percent of
her time in 2014 on site at BCRC-IFC. See Pl.’s Suppl. Resp. at Ex. 1, Tr. of Dep. of Patricia
Reiser (“Reiser Dep. Tr.”) at 12, Doc. No. 26-2.
In her role supervising compliance, Reiser would occasionally note a deficiency in Berks
County’s performance of its duties. See id. at 24, 25–28. On these occasions, Reiser would
either bring up her observations with BCRC-IFC managers or inform the contracting officer. See
id. Reiser’s testimony reveals that her role was to ensure compliance and provide BCRC-IFC
with suggestions on ways to ensure compliance; her role was not to control and/or supervise
See, e.g., id. at 108 (discussing a checklist that she gave to BCRC-IFC
managers and stating that her purpose in using checklist was to “give [BCRC-IFC managers]
assistance in the steps to not forget . . .”); id. at 131 (“Q. Who controls the day-to-day operations
at the Berks County facility? A. Ultimately the Berks County administrator. Excuse me, the
Patricia Reiser is also occasionally referred to in the record as the “Contracting Officer Technical Representative”
(“COTR”). See, e.g., Def.’s Supp. Br. at Ex. 11, Tr. of Dep. of Diane Edwards (“Edwards Dep. Tr.”) at 90–91, Doc.
This document was filed under seal and is not available on ECF.
Berks County director.”).
Additionally, the Nakamoto Group, Inc. (“Nakamoto”) regularly
performed compliance audits of BCRC-IFC on behalf of ICE. See, e.g., Pl.’s Suppl. Resp. at Ex.
9, Compliance Review Summ. Report. 5
However, while ICE put mechanisms in place to ensure compliance, ICE did not control
or supervise day-to-day operations at BCRC-IFC. See Statement of Work at 1. Numerous
BCRC-IFC employees testified ICE did not supervise or control their day-to-day responsibilities.
See, e.g., Def.’s Suppl. Br. at Ex. 4, Tr. of Dep. of Daniel Sharkey at 249–50, Doc. No. 25-5 (“Q.
Is it also correct that ICE officials did not control or dictate what you did on a day-to-day basis?
A. No, they didn’t.”); id. at 252 (“[I] barely even talked to immigration officials in that building
ever.”); Def.’s Suppl. Br. at Ex. 6, Tr. of Dep. of Brittany Rothermel at 174, Doc. No. 25-7 (“Q.
[A]side from times when Mr. Petrey may have asked you to locate a resident for him, were there
any other times when ICE officials directed you in how to go about doing your job? A. No.”).
Supervisors and managers at BCRC-IFC also testified that ICE did not supervise or control their
day-to-day responsibilities. See, e.g., Def.’s Suppl. Br. at Ex. 9, Tr. of Dep. of Brandon Michael
Witmer at 129, Doc. No. 25-10 (“Q. [W]hen you [made duty post] assignments you were not
taking any directions from any ICE employee, were you? A. No.”); Def.’s Suppl. Br. at Ex. 10,
Tr. of Dep. of David Smith at 252, Doc. No. 25-11 (“Q. You were not supervised by any ICE
employees in your day-to-day responsibilities, were you? A. No.”). Even Diane Edwards,
executive director of BCRC-IFC, testified that ICE did not supervise or control her day-to-day
responsibilities. See Edwards Dep. Tr. at 90–91, Doc. No. 25-12 (“Q. Does that technical
representative [Patricia Reiser] direct you in the day-to-day management of the facility? A.
No.”). Edwards also testified that Patricia Reiser’s primary function was to oversee Berks
County’s compliance with the IGSA. See id. at 91 (“Q. Is it fair to say that [the] Contracting
This document was filed under seal and is not available on ECF.
Officer Technical Representative’s role was primarily to facilitate Berks County’s compliance
with the IGSA? A. Yes.”).
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 12(b)(1), the Government asks the court to
dismiss on the basis of the independent contractor exception. See The United States’ Mot. to
Dismiss Pl.’s Compl. Pursuant to Rules 12(b)(1) and 12(b)(6) at 1, Doc. No. 9.
Government’s use of Rule 12(b)(1) is proper because the independent contractor exception is a
jurisdictional rule. See Norman v. United States, 111 F.3d 356, 356–57 (3d Cir. 1997); see also
Smiley v. Artisan Builders, No. 13-cv-7411, 2015 WL 996366, at *1–2 (E.D. Pa. Mar. 4, 2015)
In this case, the Government’s motion to dismiss on the basis of the independent
contractor exception was a factual, rather than a facial attack on the court’s jurisdiction. See Oct.
25, 2017 Order at 1, Doc. No. 18. As the Third Circuit has explained, “[w]here a motion
constitutes a factual (as distinct from a facial) attack on the existence of subject matter
jurisdiction, no presumption of truthfulness attaches to the plaintiff’s allegations.” Tucker v.
Sec’y of Health & Human Servs., 487 F. App’x 52, 54 (3d Cir. 2012). Indeed, “[i]f the factual
record is adequate, the District Court may weigh the evidence presented by the parties to
determine if subject matter jurisdiction exists.” Id. Ultimately, the plaintiff bears the burden of
proving the court has subject matter jurisdiction. See Mortensen v. First Fed. Sav. & Loan
Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).
The FTCA is a limited waiver of sovereign immunity and allows for monetary claims
against the United States in a limited set of circumstances. See 28 U.S.C. § 1346(b)(1); see also
28 U.S.C. § 2671. The FTCA waives sovereign immunity for the actions of federal agencies, but
not for those of independent contractors. See Norman v. United States, 111 F.3d 356, 357 (3d
Cir. 1997) (“Title 28 U.S.C. § 2671 explains that ‘Federal agency’ and ‘Employee of the
government’ do not include any contractor with the United States.
Thus, there is an
independent-contractor exemption in the Federal Tort Claims Act.”). 6 In other words, the United
States cannot be held liable under the FTCA for torts committed by independent contractors. See
United States v. Orleans, 425 U.S. 807, 814–15 (1976).
The first issue in this case is whether Berks County is an independent contractor. The
answer to this question hinges on an analysis of whether “the government has the power to
control the detailed physical performance of the contractor.” Norman, 111 F.3d at 357 (internal
citation and quotation marks omitted).
In analyzing whether the Government has the power to control, the court should consider
whether “day-to-day operations are supervised by the Federal Government.” Orleans, 425 U.S.
at 814. (“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.” (internal
quotation marks and citation omitted)). For example, in United States v. Logue, 412 U.S. 521
(1973), the Supreme Court found that, despite the fact that the Government retained the right to
inspect the county jail to ensure compliance with the contract and federal regulations, the county
jail was still an independent contractor because, inter alia, “the agreement [gave] the United
States no authority to physically supervise the conduct of the jail’s employees.” Id. at 529-30
(alteration to original). Thus, the Government could “take action to compel compliance with
28 U.S.C. § 2671 provides in relevant part as follows:
As used in this chapter and sections 1346(b) and 2401(b) of this title, the term “Federal agency”
includes the executive departments, the judicial and legislative branches, the military departments,
independent establishments of the United States, and corporations primarily acting as
instrumentalities or agencies of the United States, but does not include any contractor with the
Id. (emphasis added).
federal standards, but it did not supervise operations.” Orleans, 425 U.S. at 815 (discussing
Also, although a lack of on-site Government employees supports a determination that a
particular entity is an independent contractor, see id. at 817, the fact that Government employees
may be stationed on-site does not compel a contrary conclusion. In Gibson v. United States, 567
F.2d 1237 (3d Cir. 1977), the Office of Economic Opportunity (“OEO”), contracted with Federal
Electric Company (“FEC”) to run the “Kilmer Center.” See id. at 1239. The Kilmer Center was
a Job Corps center. See id. at 1239–40. “[M]any aspects of the Camp’s operation were subject
to OEO approval” and there was a permanent OEO representative on site. Id. at 1240–41.
Notwithstanding the OEO’s heavy involvement with the Kilmer Center, the Third Circuit
affirmed the district court’s conclusion that the FEC was an independent contractor because,
inter alia, “[t]he fact of broad, supervisory control, or even the potential to exercise detailed
control, cannot convert a contractor into an agent, nor can it be the basis for imposing vicarious
liability on the United States.” Id. at 1242; see id. at 1246 (“Because FEC was an independent
contractor . . . .”).
Additionally, the Government may require detailed compliance with regulations and
contract provisions without turning an entity that would otherwise be an independent contractor
into a federal agency. Orleans, 425 U.S. at 816 (“[T]he Government may fix specific and
precise conditions to implement federal objectives. Although such regulations are aimed at
assuring compliance with goals, the regulations do not convert the acts of entrepreneurs or of
state governmental bodies into federal governmental acts.”). Thus, “the question . . . is not
whether the community action agency receives federal money and must comply with federal
standards and regulations, but whether its day-to-day operations are supervised by the Federal
Government.” Id. at 815 (alteration to original). Indeed, the Government may routinely inspect
the independent contractor to ensure compliance without supervising day-to-day operations. See
Fraser v. United States, 490 F. Supp. 2d 302, 311 (E.D.N.Y. 2007) (“The fact that the
Government retained the right to inspect Cooper’s work via its employee, the COTR, does not
negate the Government’s immunity. The Government is immune to liability even where it
retains the right to inspect a contractor’s work or its compliance with regulations.”); see also
Brooks v. A. R. & S. Enters., Inc., 622 F.2d 8, 12 (1st Cir. 1980) (“The right to inspect does not
nullify the general rule that the government is not liable for torts of independent contractors.”).
Here, Berks County is an independent contractor. In fact, E.D. likely conceded this issue.
In the telephone conference held on October 17, 2017, the court asked E.D.’s counsel: “I believe
from the plaintiff’s standpoint, that you are conceding that [Berks County] is an independent
contractor, is that correct?” Def.’s Suppl. Br. at Ex. 1, Tr. of Telephone Conference at ECF p. 3,
Doc. No. 25-2. Counsel for E.D. responded and stated, “[t]hat’s correct, your Honor, although
that doesn’t negate any responsibilities or duties of the United States Government under the
[FTCA].” 7 Id. (alteration to original).
Notwithstanding E.D.’s likely concession, the court will analyze the merits of whether
Berks County was an independent contractor. First, the terms of the IGSA demonstrate that ICE
broadly delegated its duties to BCRC-IFC: “The Service Provider shall provide
residents/detainees with safekeeping, housing, subsistence, medical services that are not
provided for elsewhere and other services in accordance with this Agreement.” IGSA at 3. This
broad delegation of duties strongly implies that the Government did not control day-to-day
operations at BCRC-IFC. But not only does the IGSA indicate that the Government did not
Notably, in her supplemental brief, Doc. No. 26, E.D. argues that Berks County is not an independent contractor.
The Government, believing that E.D. improperly changed her position from the one she took in the telephone
conference, filed a reply to the plaintiff’s supplemental response. Reply to Pl.’s Suppl. Resp., Doc. No. 32.
control daily operations, the record created by the parties underscores the fact that ICE did not
control day-to-day operations at BCRC-IFC.
Essentially every employee at BCRC-IFC deposed by either party testified that ICE did
not control his or her day-to-day activities and responsibilities. See supra at 2. In fact, E.D. has
not offered a single example of a BCRC-IFC employee who was supervised and controlled, on a
daily basis, by ICE.
The fact that the United States retained generalized compliance supervision over Berks
County at BCRC-IFC does not change the conclusion that the Government did not control
operations daily. E.D. points to Reiser’s supervision and Nakamoto’s inspection audits to argue
that the Government controlled day-to-day operations. See Pl.’s Suppl. Resp. at 6–7. This
argument is unpersuasive. Nakamoto did not supervise daily operations; instead, it inspected
BCRC-IFC and then reported its findings to ICE. See Compliance Review Summ. Report.
Similarly, Reiser’s role was also compliance oriented. She ensured Berks County’s compliance
with the IGSA and provided BCRC-IFC management with suggestions on ways they could
ensure compliance with the IGSA. See Reiser Dep. Tr. at 103, 131. Reiser did not to control or
supervise daily operations at BCRC-IFC. See id.; see also Contracting Officer’s Representative
Compliance measures, such as those exemplified by Reiser and Nakamoto are standard in
Government contracting. 8 E.D. essentially asks the court to create a rule that would open the
Government to monetary damages under the FTCA anytime it attempts to ensure compliance
All of E.D.’s other alleged instances of daily supervision and control are also fairly characterized as compliance
measures. See, e.g., Pl.’s Suppl. Resp. at 6 (arguing that the detainee complaint process also indicated that ICE
maintained daily supervision and control). Additionally, while E.D. highlights in her complaint that ICE employees
such as Jeremiah Petrey had “frequent contact and interaction with Berks County employees,” Compl. at 5, she has
not here argued that Berks County is not an independent contractor because of the involvement of those employees
at BCRC-IFC. Moreover, she has not provided the court with any instances where those ICE employees exercised
control over any Berks County employee’s day-to-day duties.
with a Government contract through a COR and an auditing group. Such a rule would unduly
broaden the scope of the Government’s waiver of sovereign immunity under the FTCA.
Moreover, E.D.’s argument conflates ensuring compliance with operational supervision.
The test is whether the Government supervises and controls day-to-day operations; not whether
the Government implements measures to ensure compliance. See Orleans, 425 U.S. at 815
(discussing Logue and noting that the Federal Bureau of Prisons could take steps to ensure
compliance without supervising daily operations). Finally, the fact that Berks County is required
under the IGSA to comply with federal regulations also does not change this conclusion. See id.
at 816 (“[T]he Government may fix specific and precise conditions to implement federal
E.D. understandably attempts to avoid the consequences of the independent contractor
exception by arguing that the Government was directly negligent. See Pl.’s Resp. to Def.’s Mot.
to Dismiss at 4–7, Doc. No. 11. In other words, E.D. contends not that the Government should
be held vicariously liable for Berks County’s negligence, but that the Government should be held
directly liable for its own negligence. Thus, she argues that the independent contractor exception
is not triggered. See id.
This is argument is unavailing. The Government cannot be held directly liable under the
FTCA for breaching a duty that it has delegated to an independent contractor. See Verizon
Wash., D.C., Inc. v. United States, No. 16-cv-1925 (RC), 2017 WL 2483725, at *5 (D.D.C. June
8, 2017) (collecting cases and noting that “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” (citation and internal quotation marks omitted)); see also Harper v.
United States, 515 F.2d 576, 578–79 (5th Cir. 1975) (affirming district court’s rejection of
plaintiff’s “attempts to charge the government with a negligent failure periodically to inspect and
supervise the jail for safety and competency on the part of county officials” because the
Government delegated duties to independent contractor). But see Lin Li Qu v. Cent. Falls Det.
Facility Corp., 717 F. Supp. 2d 233, 240 (D.R.I. 2010) (denying motion to dismiss on the basis
of the independent contractor exception because the plaintiff alleged that the United States was
In Gibson, the Third Circuit addressed the plaintiff’s contention that the Government was
directly negligent. See id. at 1245 (“The crux of this argument would necessarily be OEO’s
supposed failure, in light of the character of enrollees admitted to the program, to construct or
require construction of adequate security facilities, or to give FEC’s security officers arrest
authority by deputizing them as Deputy U.S. Marshals.”).
The Third Circuit rejected the
plaintiff’s argument because “it [was] clearly evident [from the District Court’s findings] that the
duty to provide adequate security measures devolved not upon the Government, but rather upon
FEC.” Id. at 1246. Therefore, the court concluded that the Government could not be held liable
for breaching a duty it delegated to an independent contractor. See id.
The direct negligence argument advanced in Gibson is very similar to the argument
Like in Gibson, the dispositive inquiry here is whether the Government
delegated the duty that the plaintiff alleges it breached. In Gibson, the duty was the “duty to
provide adequate security measures.” See id. Here, the alleged duty is safekeeping. See Compl.
at 11–12. Thus, the question is whether the Government delegated its safekeeping duties to
Here, the record shows that the Government delegated its safekeeping duties to Berks
County. This is evident from the face of the IGSA, which states: “The Service Provider shall
provide residents/detainees with safekeeping, housing, subsistence, medical services that are not
provided for elsewhere and other services in accordance with this Agreement.” IGSA at 3.
Safekeeping is specifically listed as a duty that Berks County contracted with ICE to provide.
This contractual language, together with the the record developed by the parties, makes it clear
that the duties of safekeeping were delegated to Berks County. See, e.g., Reiser Dep. Tr. at 133–
34 (“Q. Did any ICE employees have day-to-day responsibility over the safekeeping of detainees
housed at the Berks County facility? A. No.”).
The court will grant the Government’s motion to dismiss on the basis of the independent
contractor exception because the Government has not waived sovereign immunity for this
claim. 9 Berks County is an independent contractor, and the Government, through ICE, delegated
its safekeeping duties of detainees to Berks County. Both of these conclusions are supported by
the IGSA and the record presented by the parties to the court. As a result, the court lacks
jurisdiction to hear E.D.’s claim that the United States violated the duty of safekeeping it owed
her while she was detained at BCRC-IFC. Accordingly, the court grants the Government’s
motion to dismiss.
The court will enter a separate order.
BY THE COURT:
/s/ Edward G. Smith
EDWARD G. SMITH, J.
Because the independent contractor exception applies in cases where the Government has not waived sovereign
immunity under the FTCA, it is a jurisdictional rule. See Orleans, 425 U.S. at 813 (“The Federal Tort Claims Act is
a limited waiver of sovereign immunity . . . .”); see also Smiley, 2015 WL 996366, at *1–2 (discussing jurisdictional
nature of FTCA independent contractor exception). Because the court finds that the independent contractor
exception applies, the court lacks jurisdiction over this case. Accordingly, the court does not need to address the
other arguments raised by the Government in its motion to dismiss, i.e., (1) whether E.D. exhausted her
administrative remedies; (2) whether the FTCA’s discretionary function exception applies; and (3) whether E.D.
stated a plausible claim.
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