United States Court of Appeals For the First Circuit

No. 22-1213

EMMANUEL THIERSAINT,

Plaintiff, Appellant,

v.

DEPARTMENT OF HOMELAND SECURITY; UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; WILLIAM CHAMBERS, in his individual capacity; SUFFOLK COUNTY SHERIFF’S DEPARTMENT; UNITED STATES,

Defendants, Appellees,

JOHN DOE DEFENDANTS 1-10, unknown ICE Agents, in their individual capacities; JOHN DOE DEFENDANTS 11-16, unknown Officers of the Suffolk County Sheriff's Department, in their individual capacities,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Thompson, Circuit Judges.

Isabelle Barnard, Law Student Intern, and Emma Frank, with whom Anant K. Saraswat, Gregory F. Corbett, Bryan S. Conley, Michelle Nyein, Wolf Greenfield & Sacks, P.C., Muneer I. Ahmad, Kirby Tyrrell, Angela Uribe, Law Student Intern, Kailyn Gaines, Law Student Intern, Talia Rothstein, Law Student Intern, and Jerome N. Frank Legal Services Organization, were on brief, for appellant. Eve A. Piemonte, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee United States. Melissa J. Garand, Assistant General Counsel, with whom Maura Healey, Attorney General, and Allen H. Forbes, Special Assistant Attorney General, were on brief, for appellee Suffolk County Sheriff's Department.

November 6, 2023 BARRON, Chief Judge. Emmanuel Thiersaint, a Haitian

national, appeals the District Court's grant of summary judgment

to the United States on his Federal Tort Claims Act ("FTCA") claims

and to the Suffolk County Sherriff's Department ("SCSD") on his

Rehabilitation Act ("RHA"),

, and Americans with

Disabilities Act ("ADA"),

, claims. All the FTCA

claims concern his alleged mistreatment by officers of the U.S.

Immigration and Customs Enforcement ("ICE") during his detention

and transportation while he was in immigration custody. We affirm

in part and vacate in part.

I.

The following facts are undisputed. Thiersaint has been

a lawful permanent resident of the United States since 1994. After

he was injured in a 1997 car accident, his right leg was amputated

above the knee, and a metal rod was inserted into his right arm.

The rod prevents him from using crutches or otherwise placing

weight on that arm without experiencing pain. Thiersaint, who

also suffers from depression and anxiety, has used a wheelchair to

assist his mobility.

In 2015, Thiersaint was convicted of a state-law offense

in Connecticut and was sentenced to a six-month prison term. Upon

his completion of that sentence in February 2016, he was taken

into immigration custody by ICE officers because he had been

identified by ICE as an aggravated felon who was eligible for

- 3 - removal to Haiti based on his 2015 conviction and earlier

convictions.

Thiersaint was held while in immigration custody in

detention facilities in Massachusetts, Louisiana, and Florida. He

was also transported while in such custody between those facilities

in vehicles that passed through those three states and Connecticut

and New Jersey, as well as in airplanes that flew between New

Jersey, Louisiana, and Florida. Thiersaint was released from

immigration custody on April 1, 2016.

Thiersaint filed this action in the United States

District Court for the District of Massachusetts on November 16,

2018. His operative complaint1 sets forth FTCA claims against the

United States for negligence, negligent infliction of emotional

distress, and intentional infliction of emotional distress based

on the treatment to which he was allegedly subjected while he was

in immigration custody in Connecticut, Massachusetts, New Jersey,

Louisiana, and Florida.2 Specifically, he alleges that he was

subjected to tortious conduct by ICE officers in Connecticut,

Massachusetts, and Florida while he was being transported in

1 This operative complaint amended Thiersaint's original complaint and removed all claims for injunctive relief. 2 One of Thiersaint's FTCA claims named the U.S. Department of Homeland Security ("DHS") and ICE, rather than the United States, as defendants. Thiersaint moved to substitute the United States as the sole defendant on that count. The District Court granted the motion.

- 4 - vehicles that were not wheelchair-accessible and when he was

entering and exiting those vehicles; in New Jersey, Louisiana, and

Florida when he was forced to drag himself in and out of the

various airplanes on which he was transported; and in Louisiana

when he was held in a detention facility that was not accessible

to persons who use wheelchairs. His claims pertain to tortious

treatment that he alleged occurred on specific dates.

Thiersaint's operative complaint also sets forth claims

under the RHA and the ADA against SCSD. He alleges in these claims

that SCSD discriminated against him based on his disability during

his detention at the Suffolk County House of Correction ("SCHC"),

which is a facility operated by SCSD.3

After discovery, the defendants moved for summary

judgment on all the claims, which the District Court granted.

Thiersaint timely appealed.

II.

We review the District Court's summary-judgment rulings

de novo and draw all reasonable inferences in favor of Thiersaint

as the party against whom summary judgment was entered.

3 In addition to claims against the United States, Thiersaint also brought a

claim against six unknown SCSD officers and a claim under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

(1971), against ICE Officer William Chambers and ten unknown ICE officers. He later voluntarily dismissed the unknown SCSD and ICE defendants. The District Court granted summary judgment to Chambers, and Thiersaint does not appear to be appealing that ruling.

- 5 - Pleasantdale Condos., LLC v. Wakefield,

(1st

Cir. 2022). Summary judgment is appropriate if, based on the

record, there remains no genuine dispute of material fact -- that

is, if, based on the record, there is no factual determination

which a "rational factfinder" could make as to the "existence or

nonexistence" of a fact that "has the potential to change the

outcome of the suit" -- such that "the moving party is entitled to

judgment as a matter of law." Borges ex rel. S.M.B.W. v. Serrano-

Isern,

(1st Cir. 2010).

III.

We begin with Thiersaint's challenge to the portion of

the District Court's grant of summary judgment to the United States

that concerns the FTCA claims in which Thiersaint alleges tortious

conduct by ICE officers in Massachusetts; Connecticut; New Jersey;

Florida; and Louisiana, insofar as that conduct pertains to his

air transportation. The District Court based that portion of its

grant of summary judgment to the United States on the United

States's sovereign immunity. See Reyes-Colón v. United States,

(1st Cir. 2020). The District Court held that the

FTCA did not waive the United States's sovereign immunity as to

the claims just described, see

; Fothergill v.

United States,

(1st Cir. 2009), because the

"discretionary function" exception to the immunity's waiver that

is set forth in

applied to some of those claims

- 6 - while the "independent contractor" exception to the immunity's

waiver that is set forth in

applied to the rest

of them.

We start with Thiersaint's challenge to the part of the

District Court's ruling that relies on the discretionary-function

exception. We then address his challenge to the part that relies

on the independent-contractor exception.

A.

The discretionary-function exception excludes from the

FTCA's waiver of sovereign immunity "[a]ny claim . . . based upon

the exercise or performance or the failure to exercise or perform

a discretionary function or duty" by the United States or its

employees.

(a). The District Court determined

that this exception barred Thiersaint's ground-transportation-

based claims for the tortious conduct to which he alleges that ICE

officers subjected him in Florida on March 3 and March 17, 2016,

and Connecticut on February 29, 2016.

To determine whether a claim falls within the

discretionary-function exception, a court first "must 'identify

the conduct that allegedly caused the harm.'" Davallou v. United

States,

(1st Cir. 2021) (quoting Shansky v.

United States,

(1st Cir. 1999)). A court

then "must ask whether that conduct is both 'discretionary' and

- 7 - 'susceptible to policy analysis.'" Id. at 505 (citation omitted)

(quoting Shansky,

).

The District Court determined that the harm-causing

conduct as to these claims allegedly occurred "when

officers . . . 'forced Thiersaint to board vans . . . without

assistance'" in Florida on the two dates in question and when

"Thiersaint . . . was forced to crawl into and out of vehicles

without assistance and [when] ICE officers subjected him to

improper treatment" in Connecticut on the one date implicated.

The District Court then rejected Thiersaint's contention that this

conduct was not discretionary because it was barred by,

respectively, the RHA, the Department of Homeland Security ("DHS")

regulation implementing the RHA,

, and the 2011

version of ICE publication Performance-Based National Detention

Standards ("PBNDS"). See Berkovitz by Berkovitz v. United States,

(1988) ("[T]he discretionary function exception

will not apply 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."). The District Court reasoned that none of

these authorities provided a basis on which a rational juror could

find that the ICE officers had no discretion to engage in their

- 8 - allegedly tortious conduct because each of these measures was "too

broad to mandate conduct." We cannot agree with that reasoning.4

1.

We start with the District Court's ruling insofar as it

concerns the RHA. That statute provides that

"[n]o . . . individual with a disability in the United

States . . . shall, solely by reason of her or his disability, be

excluded from the participation in, be denied the benefits of, or

be subjected to discrimination under any program or

activity . . . conducted by any [e]xecutive agency."

(a).

There is no dispute that ICE officers are subject to the

RHA's requirements, see D.B. ex rel. Elizabeth B. v. Esposito,

(1st Cir. 2012) ("The Rehabilitation Act applies to

federal agencies and recipients of federal funding . . . ."), or

that the RHA requires those subject to it to make reasonable

4 We note that the United States did not advance in its briefing to the District Court or to us any argument that, insofar as Thiersaint relied on the RHA to show that ICE officers had no discretion to decline to provide him with reasonable accommodations, Thiersaint's FTCA claims were barred because the RHA's remedial scheme does not provide for damages against the United States. See Abreu v. United States,

(1st Cir. 2006); Lane v. Pena,

(1996). We need not address the effect, if any, of Abreu on Thiersaint's claims because although "[i]t is well-established law that such jurisdictional defenses cannot be waived by the parties and may be raised . . . by a court sua sponte," it is not required that a court do so. Hydrogen Tech. Corp. v. United States,

, 1162 n.6 (1st Cir. 1987) (emphasis added).

- 9 - accommodations for a person's disability in some circumstances,

see, e.g., id. at 41; Calero-Cerezo v. U.S. Dep't of Just.,

(1st Cir. 2004). The District Court nonetheless

determined that the RHA did not render the allegedly tortious

conduct underlying this set of FTCA claims nondiscretionary as a

matter of law because the RHA was "too broad to mandate conduct."

To support the determination, the District Court relied

solely on three district-court cases and one out-of-circuit

appellate decision: Hooker v. United States, No. 17-cv-345-JNL,

, at *5 (D. Me. Sept. 30, 2019); Chaney v. United

States,

(11th Cir. 2016) (per curiam);

Adetiloye v. Cass Cnty. Warden, No. 3:14-cv-05,

,

at *4 (D.N.D. July 10, 2015), aff'd, No. 15-2682 (8th Cir. Nov. 3,

2015); and García-Feliciano v. United States,

(D.P.R. 2015). But, as we will next explain, these cases do

not show that there is no genuine issue of disputed fact as to

whether the RHA's mandate to make reasonable accommodations for

persons with disabilities in some circumstances barred the

allegedly tortious conduct that is at issue in this set of claims.

To be sure, Chaney did hold that the discretionary-

function exception applied in a case that involved FTCA claims

that a plaintiff had brought against U.S. Bureau of Prisons ("BOP")

officials based on their allegedly tortious mistreatment of him

while he was in their custody and being transported by them. But

- 10 - the court explained in Chaney that the exception applied there

despite the plaintiff's argument to the contrary only because the

plaintiff had "identified no federal statute, regulation, or

policy that required [the BOP official supervising the plaintiff]

to provide physical assistance to inmates entering or exiting a

transportation vehicle."

. Thus, that case

-- which does not address the RHA at all -- does not purport to

address the question that matters for present purposes: is there

record support here for concluding that the RHA's reasonable-

accommodation requirement barred the allegedly tortious conduct

that grounds the claims that are our concern?

García-Feliciano and Hooker each also addressed whether

the discretionary-function exception applied to a claim in which

a person alleged that he had been subjected to tortious conduct by

federal officials while he was in their custody, and each also

held that the exception did not apply despite a plaintiff's

contrary contention. Moreover, each differs from Chaney in that

each involved a plaintiff who had identified a federal policy

document that assertedly imposed a duty on the defendants that

their allegedly tortious conduct violated. See García-Feliciano,

n.4, 146-47 (rejecting plaintiff's claim

because, while the document identified by plaintiff did create

some nondiscretionary duties, the choice that created the

plaintiff's harm fell within the discretion retained by the

- 11 - government employee); Hooker,

, at *5 (holding that

the conduct mandated by the policy document identified by the

plaintiff did not encompass the omission which the plaintiff

claimed caused his injury).

But, like Chaney, neither of these cases purported to

pass on whether the RHA's requirement to provide reasonable

accommodations to persons with disabilities barred, as a matter of

law, the type of allegedly tortious conduct that is at issue in

the claims at hand. Thus, neither case provides support for the

conclusion that there is no record support that would permit a

rational factfinder to determine that the RHA did bar such conduct

here. Thus, these cases, too, fail to show that, as a matter of

law, the discretionary-function exception has no application here

because, as a matter of law, the RHA's reasonable-accommodation

requirement does not bar the allegedly tortious conduct that

undergirds the claims at issue.

The fourth case on which the District Court relied,

Adetiloye, is an out-of-circuit decision that does not concern the

RHA. Rather, it concerns

, which provides that

"United States marshals shall provide for the safe-keeping of any

person arrested, or held under authority of any enactment of

Congress pending commitment to an institution."

Adetiloye held that § 4086 and its accompanying

regulations did not preclude application of the discretionary-

- 12 - function exception.

, at *4. Moreover, Adetiloye

did so on the ground that the provision did "not mandate any

specific course of conduct" when marshals were transporting

prisoners but "rather . . . [gave U.S. marshals] wide discretion"

in how to carry out those tasks.

At first glance, then, Adetiloye might appear to provide

more support -- at least analogically -- for the District Court's

conclusion than any of the other three cases that we have just

considered. Nonetheless, we do not read Adetiloye to hold that

just because § 4086 permits U.S. marshals to exercise wide

discretion in transporting prisoners there are no circumstances in

which that statute imposes a mandatory duty on U.S. marshals in

transporting prisoners. Indeed, Adetiloye cites precedents

holding that statutes and policies that confer broad discretion to

comply with the duties that those statutes and policies imposed

can still suffice in some circumstances to preclude the application

of the discretionary-function exception in cases involving the

treatment of those in federal custody. See McKinney v. United

States,

(N.D. Tex. 2013)

(finding an FTCA claim against the BOP -- which is required by

to provide for the safekeeping of federal prisoners

-- was not barred by the discretionary-function exception when

correctional officers failed to physically assist a fully

restrained, elderly, and ill inmate who was exiting an airplane

- 13 - and whose "safety was very clearly at risk"); García-Feliciano v.

United States, No. 12-1959,

, at *3 (D.P.R. Apr.

23, 2014) (determining that "the discretionary function exception

should not apply where two causes -- one discretionary [whether to

assist a restrained prisoner] and one not [whether to restrain a

prisoner] -- are said to cause the plaintiff's injury, especially

where the nondiscretionary cause is primarily responsible for the

plaintiff's injuries"). Thus, we do not see how Adetiloye supports

the conclusion that, because those who are subject to the RHA's

mandate to provide reasonable accommodations to persons with

disabilities retain discretion to determine how to comply with

that mandate, the RHA cannot, as a matter of law, preclude

application of the discretionary-function exception here. And

thus, we do not see how Adetiloye provides support for the

conclusion that, as a matter of law, the RHA does not preclude the

application of the discretionary-function exception to the

tortious conduct alleged here, insofar as a reasonable factfinder

could find on this record that the allegedly tortious conduct was

barred by the mandate to provide a reasonable accommodation that

the RHA indisputably does impose in some circumstances.

To buttress the District Court's reasoning, the United

States also points to Menolascina v. United States, No. 12-C-90,

, at *2 (N.D. Ill. Feb. 26, 2013) -- an unreported,

out-of-circuit district-court case. In that case, like in

- 14 - Adetiloye, the district court applied the discretionary-function

exception after ruling that § 4086 "[does] not prescribe any

specific course of conduct, but rather allow[s] the marshals wide

discretion." Id. But the district court in Menolascina clarified

that "[t]his is not to say that everything a marshal might do while

transporting a prisoner is beyond the reach of the FTCA[,]" id.

at *3, as it explained that if, for example, "a marshal fell asleep

at the wheel while driving prisoners to the courthouse . . . it

would be difficult to fashion an argument that the discretionary

function exemption would apply . . . ." Id. In fact, the district

court there went on to explain why the actions of the marshals in

Menolascina's case differed from the conduct of falling asleep at

the wheel, and thus why those actions fell within the

discretionary-function exception. Id. Accordingly, Menolascina

does not suggest that Thiersaint's allegations that ICE officers

entirely disregarded the duty imposed by the RHA during his

transportation at issue in the claims at hand is foreclosed by the

discretionary-function exception insofar as a reasonable

factfinder could determine that the allegedly tortious conduct was

barred by the statute's reasonable-accommodations requirement.

The United States advances one additional argument in

support of the District Court's ruling -- namely, that other courts

have found that the discretionary-function exception applies to

cases where incarcerated persons with disabilities have been

- 15 - transported without accommodations. See Cooke v. United States,

No. 5:19-CT-3321-M,

, at *4 (E.D.N.C. May 18, 2021);

Vinzant v. United States,

(5th Cir. 2012)

(per curiam); Roble v. United States Gov’t, No. PX-16-4045,

, at *5 (D. Md. Feb. 22, 2018); Ward v. United States,

No. 5:15-CT-3129-FL,

, at *1-4 (E.D.N.C. Mar. 2,

2017); Crane v. United States, No. 3:10-68-AC,

, at

*7-8 (D. Or. Nov. 29, 2011). But each of those decisions rested

on the plaintiff's failure to identify any specific authority that

prohibited or compelled the way that the relevant government actor

carried out the transport. See Cooke,

, at *3;

Vinzant,

("[The plaintiff] points to no policy

binding on the U.S. Marshals Service requiring Marshals to secure

prisoners with seatbelts."); Roble,

, at *5 ("[The

plaintiff] has not identified any statute or regulation which

compels BOP inmates to be belted during bus transport."); Ward,

, at *4 ("The crux of plaintiff's claim is that BOP

employees did not properly assist him in exiting the transportation

van, a task on which the BOP policy is silent."); Crane,

, at *6. Thus, because the District Court did not hold --

and the United States does not offer any argument for our

concluding -- that no juror could reasonably find that the RHA's

mandate to provide a reasonable accommodation to a person with a

disability in some circumstances would not apply in these

- 16 - circumstances, these decisions also provide no support for the

District Court's ruling. We therefore vacate the District Court's

grant of summary judgment to the United States on Thiersaint's

claims related to his ground transportation in Florida on March 3

and March 17, 2016 and his ground transportation in Connecticut on

February 29, 2016.5

2.

Thiersaint separately contends that, independent of the

RHA, the DHS's regulation implementing that statute,

(a), and four sections of the PBNDS imposed "a

nondiscretionary obligation on ICE officers" that was violated by

ICE officers during Thiersaint's transportation. And each of these

measures, like the RHA, uses the word "shall" in setting forth the

requirement that Thiersaint contends rendered nondiscretionary the

allegedly tortious conduct by the ICE officers that undergirds the

relevant claims. Nonetheless, the District Court was not

persuaded. Instead, it held that each measure was like the RHA

5 We take no view on any of the issues we have not explicitly resolved, including whether the record supportably shows that the ICE officers' conduct at issue here violated the RHA or, if the record does not show as much, whether the record supportably shows that their conduct is not shielded by the discretionary-function exception because their conduct was not subject to policy analysis. We leave it to the District Court to address those questions in the first instance.

- 17 - itself, because each set forth a directive that was itself "too

broad to mandate conduct."

But, given the use of the word "shall" in these measures,

we see no evident text-based reason to conclude that each is in

its nature incapable of imposing a duty that would bar the tortious

conduct this set of Thiersaint's FTCA claims alleges. See Bd. of

Pardons v. Allen,

(1987) (characterizing "shall"

as "mandatory language"); Stein v. Royal Bank of Can.,

(1st Cir. 2001) (same); Muniz v. Sabol,

(1st Cir. 2008) (same); Claudio-De León v. Sistema Universitario

Ana G. Méndez,

(1st Cir. 2014) ("[I]t is axiomatic

that the word 'shall' has a mandatory connotation."). Nor did the

District Court identify any such text-based reason for so

concluding. Instead, the District Court simply relied on the same

precedents above. But, for the same reasons that we conclude that

they fail to show that the RHA does not preclude application of

the discretionary-function exception to the claims in question,

they also fail to show that these other measures do not. Thus, we

also must vacate the District Court's grant of summary judgment as

to this set of claims insofar as that grant rests on the

determination that, as a matter of law, none of these measures

precludes application of the discretionary-function exception as

- 18 - to such claims because each measure is too broad to mandate

conduct.6

B.

We turn, then, to the portion of the District Court's

grant of summary judgment to the United States on the FTCA claims

that rests on the application of the "independent contractor"

exception to the FTCA's waiver of sovereign immunity. That

exception exists because the FTCA's waiver of sovereign immunity

applies only to claims against the United States for "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,"

(b)(1) (emphasis

added), and the definition of a government employee for FTCA

purposes "does not include any contractor with the United States,"

. Accordingly, under the independent-contractor

exception, the United States cannot be held liable for the

negligence of "employees of government contractors whose daily

6We take no position on whether there may be other reasons, not addressed by the District Court, that any or all of these sources may not contain mandatory directives such that conduct violating them falls within the FTCA's discretionary-function exception.

- 19 - operations are not closely supervised by United States officials."

Carroll v. United States,

(1st Cir. 2011).

The District Court relied on this exception in granting

summary judgment to the United States on Thiersaint's FTCA claims

that concern his air transportation in Florida, New Jersey, and

Louisiana on February 29, March 3, March 17, and March 21, 2016.

It also relied on this exception in granting summary judgment to

the United States on Thiersaint's FTCA claims that concern his

ground transportation in Massachusetts and Connecticut on February

18, March 21, and April 1, 2016.7 The District Court reasoned that

the exception applied to all these claims because the record

indisputably established that the allegedly tortious conduct

underlying each claim was caused by a contractor over whom the

7 TheDistrict Court also relied on the independent-contractor exception in granting summary judgment to the United States on Thiersaint's FTCA claims that concern his ground transportation in Massachusetts on February 5, 2016, and March 22, 2016. Because Thiersaint does not appear to challenge the District Court's ruling as to those claims on appeal, we have no occasion to address it. We note that Thiersaint does appear to be appealing the February 5, 2016, transportation-related claim based on a mistaken understanding that the District Court held that the discretionary- function exception barred his claim pertaining to the transportation that occurred on that date. However, the District Court only held that the independent-contractor exception -- and not the discretionary-function exception -- barred the February 5th claim. Moreover, we note that the District Court appears to have ruled on the claim pertaining to the ground transportation that occurred on April 1, 2016, twice (once treating it as a Connecticut ground transport and once treating it as a Massachusetts ground transport). There appears, however, to be one ground transport that occurred on April 1, 2016.

- 20 - United States did not "exercise[] day-to-day supervision and

control."

. Here too, we cannot agree.

1.

There is no dispute that Thiersaint was in ICE custody

during the flights in question. The only dispute concerns whether

it was ICE officers or independent contractors retained by ICE who

were responsible for the tortious conduct alleged to have occurred

in the claims predicated on these flights.

In support of the District Court's ruling that, as a

matter of law, the independent-contractor exception applied to the

flight-related claims, the United States asserts that the record

indisputably shows that Thiersaint's "transportation by air in New

Jersey, Louisiana, and Florida, was pursuant to a contract between

the United States and . . . [contractor CSI Aviation, Inc.

("CSI")]." The United States rests this assertion on the

undisputed evidence in the record that establishes that there was

a contract between the United States and CSI for detainee transport

and the fact that this contract states that CSI will "provide air

charter flight services for . . . flights originating out

of . . . Miami, Florida and Alexandria, Louisiana . . . ." The

United States then contends, based solely on the terms of the CSI

contract, that it delegated to CSI exclusively the task of putting

ICE detainees on and removing them from the aircraft, such that

the record must be deemed to establish that no other actor or

- 21 - entity was responsible for performing that task. See

(explaining that the independent-contractor exception to the FTCA

may not be triggered if the United States "retain[ed]

responsibility for a discrete aspect of [the contractor's]

operations" and injury was caused by the "aspect" over which the

United States exerted control).

The United States does not challenge Thiersaint's

assertion (made in his briefing and at oral argument) that the

United States bears the burden of showing that a claim under the

FTCA is encompassed by the independent-contractor exception to the

FTCA's general waiver of sovereign immunity. Without deciding the

burden-shifting question,8 we follow the parties' lead. See

Hydrogen Tech. Corp. v. United States,

, 1162 n.6

(1st Cir. 1987) (recognizing that some courts have adopted this

burden-shifting approach); see, e.g., S.R.P. ex rel. Abunabba v.

United States,

, 333 n.2 (3rd Cir. 2012) ("[J]ust as

a plaintiff cannot be expected to disprove every affirmative

defense that a defendant could potentially raise, so too should a

plaintiff not be expected to disprove every exception to the

FTCA."); Valdez v. United States,

(9th Cir.

8We note that the Fourth Circuit has read our precedent to say that we have decided that the burden of persuasion to defeat the assertion of an exception to the FTCA waiver is on the plaintiff. Hawes v. United States,

(4th Cir. 2005). We do not read our precedent to have so held. See Hydrogen Tech. Corp.,

n.6.

- 22 - 1995); Stewart v. United States,

(7th Cir. 1952).

But see Autery v. United States,

, 1526 n.6 (11th

Cir. 1993); Kiehn v. United States,

, 1105 n.7 (10th

Cir. 1993). And, as we will explain, the record fails to show

that there is no genuine issue of material fact as to whether the

United States has met that burden.

For one thing, as Thiersaint points out, the contracts

between ICE and CSI that authorize CSI to transport ICE detainees

out of the Miami and Alexandria airports plainly cannot support a

grant of summary judgment on all the claims at issue based on the

independent-contractor exception. Those contracts do authorize

CSI to transport ICE detainees out of the Miami and Alexandria

airports. They do not, however, purport to authorize CSI to

transport ICE detainees out of the Newark, New Jersey airport.

And the United States has failed to provide any other evidence

that CSI conducted air transportation out of that airport. At a

minimum, then, the United States has not conclusively met its

burden -- which we assume it has -- to establish that CSI operated

the Newark flight on February 29, 2016, on which Thiersaint alleges

tortious conduct occurred.

Moreover, the CSI contract does not state that CSI was

the exclusive provider of transportation from even the airports to

which the contract refers, and the record includes a deposition in

which an ICE officer discussed working with a different contractor

- 23 - than CSI to provide flights out of Alexandria, Louisiana, even

though the contract on which the United States relies in concluding

that the record establishes that the independent-contractor

exception applies provides that CSI will operate flights from that

location. Thus, it is not even clear from the record that CSI

provided the transportation at issue on any of the dates in

question, let alone that "CSI was responsible for assisting

[Thiersaint] with embarking and disembarking from airplanes."

Finally, with respect to the duties assigned to CSI under

the contract, it states in relevant part that CSI's "[g]uard crew

duties may normally include, but are not limited to, the following

tasks: . . . loading and unloading alien nationals (including

those handicapped and/or requiring special assistance)." That is

significant because, as Thiersaint argues, the phrase "may

normally include" is ambiguous as to whether the "loading and

unloading" of detainees was undertaken by CSI on every flight in

question. Indeed, as Thiersaint points out, there is record

evidence (in the form of depositions from ICE officers explaining

that they sometimes assisted with the boarding and disembarking of

detainees) that would support a rational factfinder's

determination that the duty of "loading and unloading" detainees

was not exclusively performed by CSI.

The United States disagrees that the contract is

ambiguous in the relevant sense, although it does not dispute that

- 24 - if the contract is ambiguous, the content of that ambiguous term

would be a question of fact. But, beyond asserting that CSI was

responsible for Thiersaint's "embarking and debarking aircraft,"

the United States develops no argument as to why the contract is

clear in the relevant respect. And, like the District Court, the

United States does not grapple with the "may normally include"

language that would seem to condition the delegation of the

relevant duty and thus to contemplate scenarios in which the

relevant duty would not be performed by CSI.

We thus cannot see how we could conclude, on this record,

that, as a matter of law, the United States has met its burden to

show that the relevant duty was delegated to CSI. And, given that

the United States does not contest that it bears the burden to

prove that the independent-contractor exception applies here, we

must vacate the District Court's independent-contractor-exception-

based grant of summary judgment as to these air-transportation-

related claims.

2.

Thiersaint next challenges the District Court's

independent-contractor-exception-based grant of summary judgment

to the United States on his claims related to his ground

transportation in Massachusetts and Connecticut on February 18,

- 25 - March 21, and April 1, 2016.9 Once again, there is no dispute that

Thiersaint was in ICE custody on the dates in question. And, once

again, Thiersaint does not dispute that the "independent

contractor" exception to the FTCA would bar the claims if the

injuries that he alleged that he suffered were solely caused by an

independent contractor acting within the terms of its contract.

But he does argue that the United States has failed to meet its

burden to show, as a matter of law, that it is more likely than

not that the injuries were so caused. And, if he is right about

that, the grant of summary judgment against him as to these claims

cannot stand, insofar as it is based on the independent-contractor

exception.

The United States contends that the grant of summary

judgment on this basis must be affirmed because the record

indisputably establishes that the Franklin County Sheriff's Office

("FCSO") -- and thus, an independent contractor's personnel,

rather than ICE officers -- transported Thiersaint on the dates in

question. Thiersaint responds by arguing that because the evidence

does not indisputably show that it is more likely than not that

the United States had contracted with FCSO to allow for

9We note that Thiersaint stated in one of his filings below, Plaintiff's Opposition to the Government's Statement of Material Facts Pursuant to Local Rule 56.1, that he does not dispute that FCSO transported him on February 18, March 21, and April 1, 2016. However, neither party addresses this issue on appeal, so we have no occasion to address it.

- 26 - transportation of the kind during which the allegedly tortious

conduct occurred, the evidence also fails to establish

conclusively that FCSO personnel rather than ICE officers were

responsible for the conduct alleged to be tortious in these

claims.10

The United States hinges its contention on the terms of

its contract with FCSO for detainee transport. That contract,

however, authorizes FCSO to transport detainees only "upon request

of the Federal Government . . . for federal prisoners housed at

[FCSO's] facility to and from a medical facility for outpatient

care, and . . . for federal prisoners admitted to a medical

facility," and, "upon request of the [United States

Marshals,] . . . to provide transportation . . . for federal

prisoners housed at [FCSO's facility] to and from the U.S.

Courthouse." Moreover, the contract expressly forbids FCSO from

"relocat[ing] a federal detainee from one facility under its

10 As with his air-travel claims, Thiersaint also contends that the United States directly owed him several duties, including a duty to provide "an accessible vehicle" for his ground transportation as well as a duty to train independent contractors on how to transport detainees with disabilities, and that the breach of both duties caused his injuries. Given that the District Court did not address this contention in granting summary judgment to the United States as it relates to either his air travel or his ground transportation, we take no view on its merits and leave it to the District Court to address in the first instance on remand. See LimoLiner, Inc. v. Dattco, Inc.,

(1st Cir. 2016).

- 27 - control to another facility not described in this Agreement without

permission of the Federal Government."

Thus, because the only "facility under [FCSO's] control"

specified in the contract appears to be the Franklin County Jail,

we agree with Thiersaint that the contract would appear to forbid

transportation of a detainee by FCSO to and from the Franklin

County Jail to and from anywhere other than a medical facility or

a U.S. Courthouse "without permission of the Federal Government."

As a result, the terms of the contract itself appear to supportably

show that, absent a request by the United States, the United States

did not contractually delegate to FCSO Thiersaint's transportation

from the Franklin County Jail to SCHC on February 18, 2016,11 from

ICE's office in Hartford, Connecticut to the Franklin County Jail

on March 21, 2016, or from the Franklin County Jail to ICE's office

in Hartford on April 1, 2016. Yet the United States does not

identify anything in the record that shows that such a request was

made for any such transportation of Thiersaint on those three

dates.

Thus, because the United States does not contest that it

is their burden to prove that the independent-contractor exception

11 The District Court referred to Thiersaint's February 18, 2016 transport as a ground-transportation-based claim "in Connecticut." However, we address this claim as a Massachusetts ground-transportation-based claim because it alleges that Thiersaint was transported from a detention facility in Massachusetts to another detention facility in Massachusetts.

- 28 - applies here, the United States cannot rely on the independent-

contractor exception to the FTCA to shield itself on summary

judgment from Thiersaint's claims related to that transportation.12

Accordingly, we vacate the District Court's grant of summary

judgment to the United States on Thiersaint's claims related to

his ground transportation in Massachusetts and Connecticut on

February 18, March 21, and April 1, 2016.

IV.

There remains to be addressed the District Court's grant

of summary judgment to the United States on Thiersaint's FTCA

claims concerning his detention in Louisiana from February 29 to

March 3, 2016 and March 17 to March 21, 2016. Louisiana is a

civil-law jurisdiction, and the District Court determined that

these claims were time-barred under La. Civ. Code Ann. art. 3492,

which states that "[d]elictual actions are subject to a liberative

12 The United States does correctly point out that the contract

had an additional provision that "[f]or administrative convenience" allowed the United States to request that FCSO provide "services not listed in" the contract. But that provision also notes that "[a]ny individual agency orders with [FCSO] shall clearly define the additional services and/or procedures, a reasonable price, if any, and state that all other terms and conditions of this [contract] remain in effect." Because the United States has identified nothing in the record to show that it requested FCSO transport Thiersaint on the occasions in question, it certainly has not identified anything that would meet the additional requirements for "individual agency orders" set out in this provision.

- 29 - prescription of one year," because that state law is a statute of

repose rather than a statute of limitations.13

The District Court relied on out-of-circuit cases that

held that state statutes of limitations, because they are

procedural in nature, are preempted by the FTCA's two-year statute

of limitations, while state statutes of repose are substantive in

nature and thus are not preempted by the FTCA statute of

limitations. See Anderson v. United States,

(4th Cir. 2011); Augutis v. United States,

(7th

Cir. 2013). If those cases are correct and the District Court is

correct that article 3492 is a statute of repose, then this set of

Thiersaint's claims would be time-barred. After all, Thiersaint

did not file them within one year of when his causes of action

accrued. But if article 3492 is a statute of limitations, as

Thiersaint contends is the case, then, even if those cases are

correct, these claims would not be time-barred, because article

3492 would be preempted by the FTCA's two-year statute of

limitations. Indeed, the United States does not contend otherwise.

The United States suggests that Thiersaint has waived his 13

Louisiana detention-based claims by addressing only the time-bar issue and not the merits of them. But the District Court did not base its award of summary judgment on the merits of those claims, and the United States develops no argument as to how we could affirm that grant on the ground that there is no evidence in the record that could permit a rational factfinder to find for Thiersaint on these claims insofar as they are timely.

- 30 - The Supreme Court of Louisiana has held that article

3492 "provides a prescriptive period rather than a peremptive

period," Jenkins v. Starns,

(La. 2012), and a

"prescriptive period" is understood as a statute of limitations in

Louisiana, while a "peremptive period" is understood as a statute

of repose. See In re Med. Rev. Panel for Claim of Moses,

(La. 2001) (describing, in another context, a "hybrid

statute" which contained "both a one-year prescriptive

period . . . and a three-year repose period"). Moreover, article

3492 refers to the time limit that it establishes as a "liberative

prescription of one year," and a "liberative prescription" is, per

Black's Law Dictionary, "essentially the civil-law equivalent of

a statute of limitations." Prescription, Black's Law Dictionary

(11th ed. 2019).

Notably, the United States advances no argument that,

even though Louisiana treats article 3492 as a statute of

limitations rather than a statute of repose, it is a statute of

repose rather than a statute of limitations for purposes of the

FTCA. Thus, because state statutes of limitations are preempted

by the FTCA's statute of limitations, Poindexter v. United States,

(9th Cir. 1981) ("It is long settled . . . that

the statute of limitations in the FTCA . . . governs in FTCA

actions, even when the state period of limitations is longer or

shorter." (citation omitted)), Thiersaint's claims as they pertain

- 31 - to his detention in Louisiana are not time-barred by article 3492,

as that provision is preempted by the two-year FTCA statute of

limitations, and he filed his relevant claims within that period.

Accordingly, we vacate the District Court's grant of summary

judgment to the United States as it pertains to Thiersaint's

Louisiana detention-based claims.14

V.

We come, then, to Thiersaint's challenge to the District

Court's grant of summary judgment to SCSD on his RHA and ADA

claims. In these claims, Thiersaint alleges that SCSD violated

these statutes by housing him in the Medical Housing Unit ("MHU")

during his February 2016 detention at the SCHC.15 But the District

Court determined, as a matter of law, that Thiersaint's detention

in the MHU violated neither statute and granted SCSD summary

judgment on these claims on that basis.

Thiersaint argues to us that the District Court erred in

so ruling because it only considered whether his initial placement

in the MHU violated those statutes and so failed to consider

14 The District Court also granted summary judgment to the United States on Thiersaint's detention-based claims in Florida and in Massachusetts. Thiersaint does not appear to contest those holdings, so we have no occasion to address them here. 15 Thiersaint also claimed below that the United States "violated the Rehabilitation Act by acquiescing to SCSD's discriminatory policies." The District Court granted summary judgment to the United States on this claim, and Thiersaint does not appear to contest this grant on appeal.

- 32 - whether his continued detention in the MHU, even after he was

cleared to be detained in the general population, violated those

same statutes. He further contends that his continued detention

in the MHU did violate both statutes. SCSD contends in response

that the District Court did in fact consider both Thiersaint's

initial placement in the MHU and his "continued" detention in the

MHU in granting summary judgment against Thiersaint and that its

grant of summary judgment was proper.

To survive summary judgment on his ADA claims,

Thiersaint must show that a rational factfinder supportably could

find that he has shown "(1) that he is a qualified individual with

a disability; (2) that he was excluded from participating in, or

denied the benefits of a public entity's services, programs, or

activities or was otherwise discriminated against; and (3) that

such exclusion, denial of benefits, or discrimination was by reason

of his disability." Kiman v. N.H. Dep't of Corr.,

(1st Cir. 2006) (quoting Parker v. Universidad de P.R.,

(1st Cir. 2000)). Similarly, to survive summary judgment

on his RHA-based claims, he must show that a rational factfinder

supportably could find that he has shown "(1) that [he] is

disabled; (2) that [he] sought services from a federally funded

entity; (3) that [he] was 'otherwise qualified' to receive those

services; and (4) that [he] was denied those services 'solely by

- 33 - reason of [his] . . . disability.'" Lesley v. Hee Man Chie,

(1st Cir. 2001) (quoting

(a)).

Thiersaint asserts that the record supportably shows

that the decision to continue to detain him in the MHU even after

he was cleared to be detained in the general population was

discriminatory on the basis of his disability "because it could

only have been based upon 'stereotypes of the disabled rather than

an individualized inquiry into [his] condition'" (quoting Lesley,

). But he points to nothing in the record to support

this contention, and his inability to do so is fatal at the

summary-judgment stage as to both his ADA and his RHA claims. See

Forestier Fradera v. Mun. of Mayagüez,

(1st

Cir. 2006). Thus, the District Court did not err in awarding

summary judgment to SCSD on Thiersaint's RHA and ADA claims.16 See

(affirming an award of summary judgment to the defendant

in an ADA suit when "[t]he record simply lacks any reasonable basis

for an inference" that the alleged discriminatory action was taken

because of the plaintiff's disability).

VI.

We affirm the District Court's award of summary judgment

to SCSD on all relevant counts, but we vacate the District Court's

16For the same reasons, we affirm the District Court's award of summary judgment to SCSD on Thiersaint's claims related to the denial of access to "services, programs, and activities" due to his housing in the MHU.

- 34 - award of summary judgment to the United States on all grounds and

remand to the District Court for further proceedings consistent

with this opinion.17 Costs are to be taxed against the United

States.

17 Thiersaint alleged in his operative complaint that the United States is liable for negligent supervision in Connecticut, Massachusetts, New Jersey, Louisiana, and Florida. The District Court granted summary judgment to the United States on these allegations. Thiersaint does not appear to contest that grant on appeal, so we have no occasion to address it.

- 35 -