UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JESSICA GRAY,

Plaintiff,

v. No. 21-cv-2310 (DLF)

THE UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM OPINION

Jessica Gray brought this action under the Federal Tort Claims Act (FTCA),

, 2674, alleging that she suffered permanent injury at the Thurgood Marshall Federal

Judiciary Building because the government failed to maintain its property. See Compl. ¶¶ 1–2,

16–17, Dkt. 1. Before the Court is the government’s Motion to Dismiss pursuant to Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. 11. Because the FTCA’s independent contractor

exception applies here, the Court will dismiss Gray’s complaint under Rule 12(b)(1) for lack of

subject-matter jurisdiction.

I. BACKGROUND

On May 8, 2019, Jessica Gray was employed as a Special Police Officer at the Thurgood

Marshall Federal Judiciary Building in Washington, D.C. Compl. ¶ 7. Gray alleges that she

tripped and fell on the defective metal floor of the guard booth where she was stationed, causing

permanent injury.

. Gray filed an administrative claim for monetary compensation

with the Office of the Architect of the Capitol (AOC) on April 12, 2021.

. The AOC

denied Gray’s claim on August 9, 2021.

. Gray subsequently filed this action on August

31, 2021, on the theory that her injuries resulted from the government’s negligent failure to maintain its premises in a reasonably safe condition.

¶¶ 15–17. The government has since

moved to dismiss the case on multiple grounds, including that it is immune from suit under the

FTCA’s independent contractor exception. See Gov’t’s Mem. in Supp. of Mot. to Dismiss at 5–9,

Dkt. 11-1.

II. LEGAL STANDARDS

“Federal courts are courts of limited jurisdiction,” and it is “presumed that a cause lies

outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994). Under the Federal Rules of Civil Procedure, a defendant may move to dismiss an action

for lack of subject-matter jurisdiction in federal court. See Fed. R. Civ. P. 12(b)(1). The plaintiff

bears the burden of proving that the Court possesses jurisdiction over her claims. Lujan v. Defs.

of Wildlife,

(1992). A court that lacks jurisdiction must dismiss the action. Fed.

R. Civ. P. 12(h)(3).

A defendant can attack subject-matter jurisdiction on either facial or factual grounds. See

Lawrence v. Dunbar,

, 1528–29 (11th Cir. 1990); see also 5A C. Wright & A. Miller,

Federal Practice and Procedure § 1350 (3d ed. 2004); Macharia v. United States,

, 67–

68 (D.C. Cir. 2003). A facial attack challenges only the legal sufficiency of the plaintiff’s

complaint, and the court takes the plaintiff’s factual allegations as true. Phoenix Consulting Inc.

v. Republic of Angola,

(D.C. Cir. 2000). In contrast, when a defendant mounts a

factual attack on subject-matter jurisdiction, the court “must go beyond the pleadings and resolve

any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to

dismiss.”

In that posture, the court may “consider the complaint supplemented by undisputed

facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s

2 resolution of disputed facts.” Herbert v. Nat’l Acad. of Sciences,

(D.C. Cir.

1992).

III. ANALYSIS

Sovereign immunity shields the federal government from suit and is “jurisdictional in

nature.” FDIC v. Meyer,

(1994). “A waiver of the Federal Government’s

sovereign immunity must be unequivocally expressed in statutory text.” Lane v. Pena,

(1996). With the FTCA, the federal government has waived its immunity as to certain

torts of “employee[s] of the Government while acting within the scope of [their] office or

employment.” United States v. Orleans,

(1976) (quoting

(b)).

For this purpose, the phrase “employee of the government” includes “officers or employees of any

federal agency” but specifically excludes “any contractor with the United States.”

. Accordingly, courts “routinely hold that the United States cannot be sued where the

alleged duty of care has been delegated to an independent contractor.” Hsieh v. Consol. Eng’g

Servs.,

(D.D.C. 2008); see also Orleans,

(recognizing

the “independent contractor exception”). In such cases, the suit must be dismissed for lack of

subject-matter jurisdiction.

To determine whether the independent contractor exception applies, courts evaluate the

level of control that the United States exercises over the contractor. See, e.g., Hamilton v. United

States,

, 274 (D.D.C. 2020); Verizon Washington, D.C., Inc. v. United States,

(D.D.C. 2017). The federal government may be liable for the negligence

of its contractor only if the contractor’s “day-to-day operations are supervised by the Federal

Government.” Orleans,

. The government may exercise some control over a

contractor without transforming the contractor into a federal agent. See

at 815–16. For

3 example, the government “may ‘fix specific and precise conditions to implement federal

objectives’ without becoming liable for an independent contractor’s negligence.” Macharia, 334

F.3d at 68–69 (quoting Orleans,

). On the other hand, “[i]f the contractor manages

the daily functioning of the job, with the federal actor just exercising broad supervisory powers,

the contractor is likely an independent contractor.” Hsieh, 569 F. Supp. 2d at 176–177.

By asserting that the independent contractor exception applies here, the government has

raised a factual challenge to subject-matter jurisdiction. See Phoenix Consulting,

.

Accordingly, this Court will resolve the motion based on Gray’s “complaint supplemented by

undisputed facts plus the court’s resolution of disputed facts.” Herbert,

. In this

case, the authenticity of the government’s contract is undisputed, see Pl.’s Opp’n at 6–7, Dkt. 13,

but the parties disagree whether its terms trigger the independent contractor exception. Courts in

this circuit regularly analyze government contracts to determine if the independent contractor

exception applies, see, e.g., Hamilton, 502 F. Supp. 3d at 275; Verizon Washington,

, and the Court will likewise do so here.

The plain terms of the government’s contract with Complete Building Services (CBS)

demonstrate that CBS was an independent contractor responsible for the act or omission at the

heart of Gray’s complaint. See Gov’t’s Mot. Ex. 1, Dkt. 11-2. The contract explicitly states that

CBS was to “properly maintain Government property,” including “identification . . . and

performance of normal and routine preventative maintenance and repair.” Id. at 66. Even more

specifically, the Statement of Work incorporated into the contract states that CBS will “provide

Architectural + Structural Maintenance” and “repair” the “[g]uard booths.” Gov’t’s Mot. Ex. 2

(Statement of Work) at 55–56, Dkt. 11-3. From there, it defines “architectural and structural”

maintenance as “repair and replacement of . . . floor coverings.” Id. at 55. Moreover, the

4 government did not provide day-to-day supervision of CBS, but designated that CBS “provide all

management, supervision, labor, materials, supplies, repair parts, tools, and equipment necessary

for the overall property management responsibilities of the [Thurgood Marshall Building].” Id. at

30 (emphasis added). This language makes abundantly clear that CBS was delegated the duty to

maintain and repair the metal floor coverings of the building’s guard booths.

Gray has failed to show that CBS was not responsible for maintaining the booths’ interior

metal floor coverings. Gray contends that only the exterior maintenance of the booths was

delegated to CBS because the “[g]uard booths” are listed as “exterior items” rather than “interior

items” in the Statement of Work. See Pl.’s Opp’n at 7. However, a natural reading of the Statement

of Work confirms that the guard booths are listed as “exterior items” because they are physically

located on the exterior of the main Thurgood Marshall Building, not because they require only

exterior maintenance. This reading is confirmed by the Statement of Work’s specification that

CBS would provide “architectural and structural” maintenance, which included “repair and

replacement of . . . floor coverings,” for both “interior and exterior items.” Statement of Work at

55–56. Gray fails to present any other evidence that CBS was responsible for maintaining only

the exterior of the booths.

The Court is also unpersuaded that CBS was responsible for maintaining only the HVAC

system on the guard booth’s roof. In arguing to the contrary, Gray relies on a letter from CBS’s

insurer, Travelers Insurance. See Pl.’s Opp’n Ex. B (Travelers Insurance Letter), Dkt. 13-2. That

letter states that the government and CBS had a “Service Agreement” that “includes the

maintenance service of the HVAC system located on the roof top of the involved security booth,”

while “any additional service and/or repair needed” would require the government to “submit [a]

repair service request to CBS.” Id. at 1. But Gray does not present a copy of the referenced

5 “Service Agreement.” See generally Dkt. 13. In addition, the plain terms of the CBS contract and

incorporated Statement of Work require CBS to provide full architectural and structural

maintenance for the guard booths. See Statement of Work at 55–56. Finally, the letter does not

provide direct evidence of CBS’s responsibilities, but instead only summarizes the “position” of a

third-party insurer after the completion of its unspecified “investigation.” Travelers Insurance

Letter at 1. The letter accordingly provides no support for Gray’s argument.

Finally, the Court is unpersuaded that the government had the primary duty to maintain the

guard booths simply because the contract allows the government to submit work requests to CBS,

see Pl.’s Opp’n at 7. The fact that the contract empowered the government to request work from

CBS does not demonstrate that the government had a duty to take the lead in this area. For one,

the Statement of Work specifically contemplates that CBS can initiate repairs as well. See

Statement of Work at 55 (referring to “repair[s] requested by the Contractor”). Moreover, the

contract plainly states that “[t]he Contractor shall provide all . . . management [and] supervision

. . . necessary for the overall property management responsibilities of the [Thurgood Marshall

Building].” Statement of Work at 30 (emphasis added). In Verizon Washington, the court similarly

held that the independent contractor exception applied where the government delegated “all . . .

supervision” of maintenance and repair work to the independent contractor under similar

contractual provisions, even though the contract called for “close coordination” between the

government and contractor on requesting and prioritizing repairs. 254 F. Supp. 3d at 216–17.

Gray has pointed to no other contract provision indicating that the government had the primary

duty to inspect and maintain the guard booths.

For those reasons, Gray has failed to show that the independent contractor exception does

not apply. This Court will accordingly dismiss this case for lack of subject-matter jurisdiction.

6 CONCLUSION

For the foregoing reasons, the defendant’s Motion to Dismiss, Dkt. 11, is granted. A

separate order consistent with this decision accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge August 30, 2022

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