     Case: 10-30841 Document: 00511394201 Page: 1 Date Filed: 02/25/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                        February 25, 2011
                                    No. 10-30841
                                  Summary Calendar                        Lyle W. Cayce
                                                                               Clerk

GERALDINE JASPER,

                                                  Plaintiff-Appellant,

v.

FEDERAL EMERGENCY MANAGEMENT AGENCY,

                                                  Defendant-Appellee.


                   Appeal from the United States District Court
                for the Eastern District of Louisiana, New Orleans
                             USDC No. 2:09-CV-7177

Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:*
       Geraldine Jasper, plaintiff-appellant in this matter, appeals from the
district court’s dismissal of her claims for want of subject-matter jurisdiction
based on the independent-contractor exception to the Federal Tort Claims Act
(FTCA), and from the district court’s denial of her request to conduct additional
discovery. We AFFIRM.
             I. BACKGROUND AND PROCEDURAL HISTORY




       *
        Pursuant to the 5th Cir. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in 5th
Cir. R. 47.5.4.
     Case: 10-30841 Document: 00511394201 Page: 2 Date Filed: 02/25/2011

                                     No. 10-30841

       After Hurricane Katrina struck New Orleans, Jasper became one of the
many displaced refugees seeking aid. As part of its Katrina relief aid, FEMA
provided Jasper with a travel trailer in which to live. On October 7, 2006, the
refrigerator in Jasper’s trailer quit working. At that time, FEMA had a contract
with AME Janitorial Services (AME) concerning the maintenance and eventual
deactivation of the trailers at the park in which Jasper’s trailer was located.
When Jasper’s refrigerator quit working, AME provided her with a temporary
portable refrigerator to use while it sought a replacement. When AME installed
the refrigerator,1 it connected the appliance to a wall socket by using an
extension cord that it left hanging over the stove. A week later, an explosion
occurred in Jasper’s trailer, allegedly as a result of the extension cord’s
placement over the gas stove.
       Subsequently, Jasper filed the instant lawsuit against FEMA contending
that she suffered post-traumatic stress disorder and damage to personal
property as a result of the explosion.          FEMA filed a Rule 12(b)(1) motion
challenging the district court’s subject-matter jurisdiction. After reviewing the
FEMA–AME contract and an affidavit submitted by FEMA’s Contracting
Officer’s Technical Representative, Thomas Warder, the district court concluded
that FEMA’s relationship with AME was sufficiently disconnected to qualify
AME as an independent contractor. The district court therefore determined that
the independent-contractor exception to the FTCA divested the court of subject-
matter jurisdiction. Jasper appeals arguing that the district court improperly
allowed FEMA’s collateral attack on the merits of her case, failed to apply
Louisiana state law, and improperly restricted her ability to conduct discovery.
                                  II. DISCUSSION




      1
       Jasper originally alleged that FEMA had installed the refrigerator, though it is now
undisputed that AME conducted the actual installation.

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      “It is axiomatic that the United States may not be sued without its consent
and that the existence of consent is a prerequisite for jurisdiction.” See United
States v. Mitchell, 463 U.S. 206, 212 (1983).      The FTCA waives sovereign
immunity and allows private individuals to sue the federal government for the
negligent torts of its employees by granting federal courts exclusive subject-
matter jurisdiction over such actions.      28 U.S.C. § 1346(b)(1).   The FTCA,
however, enumerates a number of exceptions to the waiver of immunity,
including an exception that excludes from its grant of subject-matter jurisdiction
claims brought against the government for the negligent acts committed by its
independent contractors. 28 U.S.C. § 2671. Because a federal court must
determine whether jurisdiction is proper prior to addressing the merits of a case,
a district court must first determine if a party is an independent contractor
within the meaning of the FTCA. See Steel v. Citizens for a Better Env’t, 523
U.S. 83, 94 (1995) (requiring a jurisdictional determination as a “threshold
matter”); Linkous v. United States, 142 F.3d 271, 275 (5th Cir. 1998) (“Therefore,
if the act was not committed by an ‘employee of the Government,’ then the court
must dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P.
12(b)(1).”). Whether the independent-contractor exception bars liability turns
on whether the United States had the right “to control the detailed physical
performance of the contractor” and “whether [the contractor’s] day-to-day
operations are supervised by the Federal government.” Logue v. United States,
412 U.S. 521, 528 (1973); United States v. Orleans, 425 U.S. 807, 815 (1976).
      The district court “has the power to dismiss for lack of subject-matter
jurisdiction on any one of three bases: (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court’s resolution of disputed facts.”
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). If the district court’s
determination involves only the first two categories, this court only reviews the
lower court’s application of the law. Id. If the district court’s determination is

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based in part on the resolution of disputed facts, however, this court accepts the
district court’s findings unless they are “clearly erroneous.” Id. While deference
is given to the lower court’s fact findings, this court reviews de novo whether a
federal court has subject-matter jurisdiction over a dispute. Linkous, 142 F.3d
at 275. Further, in determining whether subject-matter jurisdiction exists,
“[c]ourts must strictly construe all waivers of the federal government’s sovereign
immunity, [resolving] all ambiguities in favor of the sovereign.” Id.
      Jasper contends that FEMA’s Rule 12(b)(1) motion constituted an indirect
attack on the merits of her claim. Quoting at length from the Williamson
decision, she argues that the jurisdictional issue is so interwoven with the merits
of her claim that dismissal on Rule 12(b)(1) grounds was improper. Our holding
in Williamson, however, is distinguishable. The plaintiffs’ claims in that case
were based on various federal acts relating to the sale or exchange of securities.
Williamson, 645 F.2d at 409. The plaintiffs were seeking rescission of a joint-
venture agreement under the theory that the agreements were “securities”
within the meaning of 15 U.S.C. § 77(b)(1) and § 78c(a)(10). Id. at 409-10.
Because the applicability of the statute was the sole basis for jurisdiction,
dismissal for want of subject-matter jurisdiction was premature:
              Where the defendant’s challenge to the court’s
              jurisdiction is also a challenge to the existence of a
              federal cause of action, the proper course of action for
              the district court . . . is to find that jurisdiction exists
              and deal with the objection as a direct attack on the
              merits of the plaintiff’s case.
Id. at 415.
      Unlike Williamson, Jasper’s claims are based on negligence theories
interpreted under Louisiana state law. The merits of her claim depend on
whether the company that installed the refrigerator was negligent in such
installation and whether such negligence proximately caused the injuries that
she sustained. It does not depend on a determination regarding the applicability
of the FTCA’s independent-contractor exception. See Ford v. Am. Motors Corp.,

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770 F.2d 465, 468 (5th Cir. 1985) (holding that where an exception to the FTCA
barred the plaintiff’s negligence claims, “[t]he merits and jurisdictional issue
were not so intermeshed as to prevent the separate consideration and decision
of the jurisdiction question . . . .”).
      Jasper alternatively argues that even if AME is considered an independent
contractor, FEMA should still remain responsible because Louisiana state law
views maintenance on leased premises as non-delegable duties.              When
confronted with this issue, the Fourth Circuit stated: “We note from the start
that, although the threshold inquiry into governmental liability as defined by
the FTCA requires an examination of state law to define tortious conduct, the
question of whether a state law tort can be applied against the United States is
exclusively one of federal law.” Berkman v. United States, 957 F.2d 108, 112 (4th
Cir. 1992). We have held in accord. Levrie v. Dept. of Army, 810 F.2d 1311, 1314
(5th Cir. 1987) (per curiam) (holding that the independent-contractor “exception
to the waiver of sovereign immunity takes precedence over [state] law”).
Louisiana’s imposition of non-delegable duties is therefore preempted by the
independent-contractor exception to the FTCA.
      Finally, Jasper contends that she had inadequate time to conduct the
proper scope of discovery necessary to defend the government’s Rule 12(b)(1)
motion. We review a district court’s denial of additional discovery time for an
abuse of discretion. Rosemound Sand & Gravel Co. v. Lambert Sand & Gravel
Co., 469 F.2d 416, 418 (5th Cir. 1991). Because the only contested issue in the
Rule 12(b)(1) hearing involved the scope of the government’s control over the
contractor, Jasper’s need for discovery is necessarily limited to gathering
information relating to that control. Williamson, 645 F.2d at 414. In its Rule
12(b)(1) motion, FEMA submitted both the Warder affidavit and the entire
FEMA–AME contract. Both documents provided ample material on which the
district court could have determined the scope of FEMA’s control over AME’s
day-to-day activity. While Jasper has asserted her desire to depose Warder, she

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has failed to state any particular reason for needing to do so. She has not stated
what information she seeks to gain from the deposition, which areas she would
like to further explore, or how such areas even relate to the jurisdictional issue
in dispute.   “Vague assertions of the need for additional discovery are as
unavailing as vague responses on the merits.” Reese v. Anderson, 926 F.2d 494,
499 n.5 (5th Cir. 1991) (affirming denial of request for additional discovery prior
to motion for summary judgment hearing). Jasper has also failed to state why
the two and one-half months between her receipt of FEMA’s motion to dismiss
and the district court’s dismissal of her lawsuit was an insufficient time period
in which to take Warder’s deposition. See Rosemound Sand & Gravel Co., 469
F.2d at 418 (holding that the district court’s dismissal for lack of subject-matter
jurisdiction after giving the plaintiff a sixty-day opportunity to conduct discovery
was not an abuse of discretion).
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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