Reyes-Colon et al. v. United States of America
Filing
28
OPINION AND ORDER: Granting 12 "Motion to Dismiss." The case is dismissed. Judgment shall be entered accordingly. Signed by Judge Pedro A. Delgado-Hernandez on 1/10/2019.(EMJ)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
NELISSA REYES COLON, et al.
Plaintiffs,
v.
CIVIL NO. 18-1225 (PAD)
UNITED STATES OF AMERICA,
Defendants.
OPINION AND ORDER
Delgado-Hernández, District Judge.
This is an action for damages against the United States under the Federal Tort Claims Act,
28 U.S.C. §§ 1346(b) and 2671-2680 (“FTCA”), arising out of a tragic traffic accident involving
a school bus and a truck that Eagle Support, Inc. (“Eagle”), a contractor of the United States Postal
Service, leased from a third party to transport mail for the Postal Service (Docket No. 2-1). Before
the court is the “Federal Defendant’s Motion to Dismiss” on jurisdictional grounds (Docket No.
12), which plaintiffs opposed (Docket No. 17). The government replied (Docket No. 19), and
plaintiffs sur-replied (Docket No. 21). For the reasons explained below, the government’s motion
is GRANTED and the case DISMISSED.
I.
DISCUSSION
As a sovereign, the United States is immune from suit without its consent. See, Evans v.
U.S., 876 F.3d 375, 380 (1st Cir. 2017)(so recognizing). Absent a waiver “unequivocally
expressed in statutory text,” the court lacks subject matter jurisdiction over claims brought against
the United States. Marina Bay Realty Trust LLC v. U.S., 407 F.3d 418, 421 (1st Cir. 2005). The
FTCA includes a limited waiver of immunity for injuries resulting from the negligent or wrongful
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Civil No. 18-1225 (PAD)
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act or omission of any government employee while acting within the scope of his office or
employment, but shields the government from liability based on a government employee’s exercise
or failure to exercise a discretionary function or duty. The government contends these aspects of
the FTCA preclude liability here (Docket No. 13, pp. 2, 4).
A. Independent Contractors
Because the waiver of sovereign immunity applies to the negligent acts or omissions of
federal-agency employees, it does not extend to independent contractors. See, United States v.
Orleans, 425 U.S. 807, 813-814 (1976)(discussing issue). A critical element in distinguishing a
federal agency from an independent contractor is whether the government directs the manner in
which the contractor carries out its obligations under the contract, supervising the contractor’s dayto-day operations. See, Brooks v. A.R. & S Enterprises, Inc., 622 F. 2d 8, 10 (1st Cir. 1980)(so
recognizing).
Eagle provided services to the Postal Service through a Highway Contract Route agreement
it had entered into with the Postal Service (Docket No. 13, pp. 2-3; Docket No. 13-2). Courts have
recognized that drivers hauling mail under similar contracts are not Postal Service employees. See,
Estate of Anderson-Coughlin v. U.S., 2017 WL 6624020, *4 (D.Conn Dec. 28, 2017)(collecting
cases); Jones v. U.S., 2013 WL 2477288, *6 (S.D.Ind. 2013)(same). Plaintiffs, however, assert
that various contract provisions lead to a different conclusion.
First, plaintiffs maintain Eagle had no discretion as to how it performed its work on account
of clauses pursuant to which it agreed to: (1) pick up and unload mail at a certain time each day;
(2) perform additional service trips as needed within 4 hours of notification; (3) modify its delivery
schedule as needed; and (4) use vehicles that meet certain technical specifications (Docket No. 17,
pp. 2 & n.1, 11-12). These contractual requirements do not show the government directed Eagle’s
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Civil No. 18-1225 (PAD)
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day-to-day operations, for contractual reference to schedules and procedures does not erase an
entity’s independent contractor status. See, Carroll v. U.S., 661 F.3d 87, 99 (1st Cir. 2011)(finding
independent contractor status even though the contract allowed the government to specify work
schedules, frequencies and methods).
Second, plaintiffs posit the contract requires Eagle to maintain equipment that “present[s]
a creditable appearance and compl[ies] with applicable Postal Service regulations” (Docket No.
17, p. 4); and that vehicles painted red, white and blue “must have inscribed on their doors in black
letters at least one inch high the following words: ‘United States Mail Contractor’” (Docket No.
17, p. 4). They state Eagle had to present equipment for inspection as instructed by the Postal
Service (Docket No. 17, p. 16). They posit Eagle must submit government forms, background
investigations, fingerprint cards, and color photographs for its employees to have access to postal
facilities, the mail, or vehicles carrying U.S. mail (Docket No. 17, p. 4). And once those employees
go through the screening process, the Postal Service issues “Non Postal Service Contractor
Employee” badges (Docket No. 17, p. 4).
That the contract required Eagle to abide by certain standards in its hiring and vehicle
maintenance or submit to inspections did not transform it into a federal agency. An independent
contractor may be required to comply with “extensive regulations,” guidelines and inspections
without the contracting agency’s “having the power to supervise the daily operation of the
contractor.” Orleans, 425 U.S. at 817-18 (finding that a community action agency was not a federal
agency nor were its employees federal employees within the meaning of the FTCA, even though
it had to comply with regulations, including employment policies and procedures, accounting and
inspection procedures, expenditure limitations, and programmatic limitations); Brooks, 622 F. 2d
at 12 (albeit contract required that contractor’s guards be trained in accordance with a Navy
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security manual and guards received security approval from a United States Naval Office before
begin assigned to the base, the government’s authority did not constitute control within the
meaning of the FTCA); Piñero v. Department of Housing and Urban Development, 592 F. Supp.
2d 233, 237 (D.P.R. 2008)(the right to inspect does not nullify the general rule that the government
is not liable for torts of independent contractors). Consequently, this level of oversight does not
reach the level of day-to-day control and supervision that is required to demonstrate for FTCA
purposes that a contractor is an employee. See, Estate of Anderson-Coughlin, 2017 WL 6624020
at *4 (so noting in applying formulation).
In like manner, the fact the Postal Service requires Eagle to identify itself as a “contractor”
bolsters the conclusion that Eagle was not to be treated as a federal agency or employee, a finding
confirmed by other contract provisions. To this end, the contract charges Eagle with a large degree
of responsibility for its operations in a manner not usually required of an employee. It provides
that Eagle, not the Postal Service, “shall be liable for the cost of all repairs to or maintenance of
equipment furnished by the supplier under this contract….” (Docket No. 2-1, p. 20). It imposes
upon Eagle the obligation to repair its vehicles and equipment (Docket No. 2-1, p. 20). It charges
Eagle with the responsibility to inspect and load vehicles safely (Docket No. 2-1, pp. 21-22). And
it requires Eagle to keep liability insurance on its vehicles (Docket No. 2-1, p. 22).
In this framework, contract clauses expressly assigning liabilities and safety
responsibilities to the contractor support a finding that the contractor is an independent contractor.
See, Larsen v. Empresas el Yunque, Inc., 812 F.2d 14, 16 (1st Cir. 1986)(stating that corporation
leasing restaurant on government property was an independent contractor because, among other
things, it was required to indemnify the United States against liability for damage arising from the
occupancy of the land, maintain “standards of repair… and safety acceptable to the forest officer
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in charge,” and secure property and personal injury or death insurance). Thus, the Postal Service
did not exercise day-to-day control over Eagle’s activities. See, Estate of Anderson-Coughlin,
2017 WL 6624020 at *4 (applying independent contractor provision to support dismissal of claim
arising out of accident attributed to Postal Service contractor); Jones, 2013 WL 2477288 at *7
(similar).
B. Discretionary Functions
Plaintiffs claim the Postal Service is directly liable for having failed to properly fulfill the
non-discretionary duty to inspect Eagle’s vehicles (Docket No. 17, pp. 21-22). The FTCA has a
“discretionary function” exception, which precludes “claims based upon the exercise or
performance or the failure to exercise or perform a discretionary function or duty. . . whether or
not the discretion involved be abused.” 28 U.S.C. § 2680(a). The exception is meant to prevent
“judicial second guessing” of legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action in tort. U.S. v. Gaubert, 499 U.S.
315, 323 (1991). It “marks the boundary between Congress’ willingness to impose tort liability
upon the United States and its desire to protect certain governmental activities from exposure to
suit by private individuals.” United States v. Varig Airlines, 467 U.S. 797, 808 (1984).
In considering whether the exception applies, a court must: (1) identify the allegedly
harmful conduct, (2) determine whether the conduct is discretionary, and (3) decide whether
exercise of that discretion is susceptible to policy-related judgments. See, Carroll, 661 F. 3d at
100 (so stating)(citing in part Gaubert, 499 U.S. at 322-325)). Conduct is non-discretionary when
a federal statute, regulation or policy specifically prescribes a course of action for an employee to
follow, “because the employee has no rightful option but to adhere to the directive.” Berkovitz ex
rel. Berkovitz v. United States, 486 U.S. 531, 536 (1988). By extension, plaintiffs’ argument fails.
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As the courts in Estate of Anderson-Coughlin, 2017 WL 6624020 at *5, and Jones, 2013 WL
2477288 at * 7 observed, “…we know of no federal statute or regulation which dictates the manner
in which the Postal Service is required to oversee its contractors or assure that its contractors
comply with federal regulations and the provisions of the [Highway Contract Route] contracts.”
Plaintiffs do not state otherwise. Instead, they direct the court’s attention to the contract, a
handbook, and a contractor’s representative’s statement.
First, plaintiffs mention Section 2.2.7 (b) of the contract, which provides in part that, “[a]ll
equipment shall be presented for inspection at the location and time indicated by the contracting
officer or authorized representative” and “[e]quipment used on the contract must at all times be
maintained in a condition that reflects favorably on the Postal Service and is acceptable to the
contracting officer or authorized representative for the full term of the contract and any subsequent
renewals” (Docket No. 17, p. 3; Docket No. 3-2, p. 42). Yet the Section does not specify the
conditions under which the Postal Service would have to inspect Eagle’s vehicles, thus making a
federal employee’s determination to inspect discretionary. See, Clark v. U.S., Dept. of Army, 805
F.Supp. 84, 88 (D.N.H. 1992) (finding that the discretionary function exception applied where a
contract did not provide government with a detailed course of action to follow in its oversight
role); Doud v. U.S., 797 F.Supp. 138, 144 (N.D.N.Y. 1992)(noting that contract, which stated that
the contractor “shall” oversee contractor’s safety measures, did not “impose any mandatory
obligations on the United States with respect to the method the Government’s employees use to
detect noncompliance…rather it l[eft] such determinations entirely to the discretion of the
Government’s employees”).
Second, plaintiffs point to Section 43 of the vehicle inspection checklist contained in the
Postal Service’s handbook for highway contractor safety (Docket No. 17-3), which includes
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“sample daily checklist for vehicle safety inspection.” Id. However, Section 13, which describes
the scope of the handbook, expresses that it applies “to all leased and contracted vehicles engaged
in Postal Service business” and not specifically to “vehicles owned by the Postal Service or Postal
employees….”1 Given that the handbook itself applies to contractors, not the Postal Service, it
does not support the theory that the government had a non-delegable duty to inspect Eagle’s
vehicles. The responsibility of inspecting Eagle’s vehicles ultimately rested on Eagle.
Third, plaintiffs rely on an Eagle representative’s affidavit stating that “all drivers were
required to carry out a full inspection of the vehicle before going on their routes” and that a Postal
Service inspector “is supposed” to carry out “this type of inspection” (Docket No. 17, p. 7). The
statement does not show lack of discretion. When an agency determines the extent to which it will
supervise the safety procedures of private individuals, “it is exercising discretionary regulatory
authority of the most basic kind.” Varig Airlines, 467 U.S. at 819-820. A decision to charge a
contractor with the responsibility to inspect vehicles while retaining the right to conduct additional
inspections as well as the choice on whether, and to what extent, to opt for that alternative, are
readily susceptible to a policy analysis. Both “necessarily implicate balancing the allocation of
limited resources against public safety considerations. See, Jones, 2013 WL 2477288 at *7
(acknowledging that Postal Service decision to hire contractor “as well as subsequent decisions
relating to the manner in which [it] supervised and monitored [contractor’s] performance under
the contract involve elements of judgment and choice”). So considered, the Postal Service’s
decisions in question fall within the discretionary function exception to the FTCA. See, Estate of
Plaintiffs only filed Section 43 as an exhibit in support of their opposition to the government’s motion to dismiss. The entire
handbook can be accessed online at United States Postal Service, Handbook PO-515: Highway Contractor Safety (2010),
http://about.usps.com/handbooks/po515.pdf.
1
Reyes Colón, et al. v. United States
Civil No. 18-1225 (PAD)
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Anderson-Coughlin, 2017 WL 6624020 at ** 1, 4-7 (applying discretionary function exception in
dismissing action based on death resulting from collision with contractor’s tractor trailer hauling
U.S. mail); Jones, 2013 WL 2477288 at **1, 7-8 (same, with accident involving contractor’s semitruck with U.S. mail).
II.
CONCLUSION
For the reasons stated, the court lacks subject matter jurisdiction to adjudicate plaintiffs’
claim that the United States is vicariously liable for Eagle’s negligence and/or directly liable for
having negligently failed to inspect Eagle’s vehicles. Sovereign immunity is an immunity from
suit, not merely immunity from liability. With that in mind, the government’s motion to dismiss
(Docket No. 12) is GRANTED and the case DISMISSED. Judgment shall be entered accordingly.
SO ORDERED.
In San Juan, Puerto Rico, this 10th day of January, 2019.
S/Pedro A. Delgado-Hernández
PEDRO A. DELGADO-HERNÁNDEZ
United States District Judge
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