                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 ROBERT HALE,

                Plaintiff,

        v.                                                 Civil Action No. 13-1390 (RDM)

 UNITED STATES OF AMERICA,

                Defendant.



                             MEMORANDUM OPINION AND ORDER

       This matter is before the Court on the motion of the United States to dismiss for lack of

subject-matter jurisdiction. The complaint includes a single claim, brought under the Federal

Tort Claims Act (“FTCA” or “the Act”), 28 U.S.C. § 1346(b), alleging that Plaintiff Robert Hale

sustained serious and lasting injuries when he fell through the ceiling of a building at the

Washington Navy Yard while servicing equipment. The complaint alleges that the United

States, as owner of the building where the injury occurred, owed Hale a duty to maintain the

premises in a safe condition and that Hale’s injuries were the direct and proximate result of the

government’s negligent failure to satisfy that duty. The United States, in turn, argues that the

waiver of sovereign immunity contained in the FTCA does not extend to the negligent acts of

government contractors and that it was Hale’s employer, EMCOR Government Services

(“EMCOR”), and not the United States, that was responsible for maintaining safe working

conditions at the site. The United States, accordingly, contends that the complaint should be

dismissed under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction.
       For the reasons explained below, the Court concludes that the complaint adequately

alleges subject-matter jurisdiction and that, to the extent the government’s motion to dismiss

turns on disputed facts regarding the allocation of responsibility and fault among those involved,

it is premature. The motion to dismiss for lack of subject-matter jurisdiction is therefore

DENIED without prejudice.

                                       I. BACKGROUND

A. Factual Background

       Although the parties disagree about who bears responsibility for the accident that led to

this suit, for present purposes the events immediately preceding the accident are not disputed.

Robert Hale worked for EMCOR, an independent contractor hired by the United States to

provide base operations support at the Washington Navy Yard in Washington, D.C. Dkt. 11-1 at

1–2; Dkt. 20 at 1. On May 12, 2011, Hale was servicing equipment at a building at the Navy

Yard and was working in a space between a drop ceiling and the roof, an area navigable only by

walking along a catwalk consisting of plywood laid over steel beams. Dkt. 1 at 1–2 (Compl. ¶¶

5–7). This area, the complaint alleges, was devoid of “railings, markings, or other warnings to

indicate to [Hale] where it was safe to step,” and the lighting was “inadequate for [him] to

determine where it was safe to walk.” Id. at 2 (Compl. ¶ 7). As a result, Hale “stepped off the

plywood floor and fell through the ceiling below,” sustaining “serious and permanent injuries,

including a fracture to [his] right wrist.” Id. (Compl. ¶¶ 8–9). According to the complaint, these

injuries have “significantly affected [Hale’s] ability to perform his customary daily activities,”

and have resulted in—and will continue to result in—substantial medical expenses, lost wages,

and pain and suffering. Id. at 3 (Compl. ¶ 14).




                                                  2
       Hale filed this action on September 12, 2013, alleging one count of negligence against the

United States under the FTCA, see Dkt. 1, and the United States moved to dismiss for lack of

subject-matter jurisdiction on June 10, 2014, see Dkt. 11. Along with its motion to dismiss, the

United States filed a declaration from Raymond Connor, a Performance Assessment

Representative at the Department of the Navy, see Dkt. 11-2 (“Connor Decl.”), and a copy of the

contract that governed the relationship between the Department and EMCOR, see Dkt. 11-3

(“EMCOR Contract”). The government argued that these materials, taken together, showed that

EMCOR was responsible for maintaining the safety of the work site and that the Department of

the Navy did not supervise or exercise control over EMCOR or any of its employees. See Dkt.

11-2 at 2 (Connor Decl. ¶ 7); Dkt. 11-3 at 69 (EMCOR Contract at 66, Spec. Item 2.9).

According to the government, because the FTCA does not waive the sovereign immunity of the

United States for the negligence of government contractors, the Court lacks jurisdiction to

consider this case.

       In opposition, Hale argued, among other things, that the government’s motion to dismiss

for lack of jurisdiction was premature because Hale had “not yet been afforded the opportunity to

conduct discovery sufficient to oppose [the] motion.” Dkt. 15 at 2. The Court agreed and

granted the parties leave to take “discovery related to jurisdictional issues only.” Minute Order,

July 7, 2014. After taking that discovery, Hale filed his opposition to the government’s motion

to dismiss, in which he relied on his own declaration, excerpts from two depositions taken of

Department of the Navy employees, an accident report apparently prepared by the Department of

the Navy, and the minutes of a Department of the Navy meeting. Hale’s declaration explains

that, prior to the accident, he “had no knowledge of the danger posed by” the catwalk where the

accident occurred. Dkt. 20 at 15 (Hale Decl. ¶¶ 3, 6). The deposition excerpts, in turn, indicate



                                                 3
that the two Department of the Navy witnesses did not know when the catwalk was installed or

whether others in the Department were aware of the catwalk before the accident. Id. at 18–20

(Watts Dep. at 21–23); id. at 34–37 (Altenbach Dep. at 12–15). The accident report does not

address whether any Department of the Navy employee was aware of the catwalk, but it does

include a section captioned “ACCOUNTABILITY,” which states: “It is the government’s

responsibility to ensure safe working conditions for all employees.” Id. at 41 (Hale Ex. 4 at 3).

       The government’s reply largely repeats the arguments made in its opening brief, and,

indeed, simply cuts and pastes a number of paragraphs that appeared in the opening brief. It

does, however, attach some additional excerpts from the depositions of the same two Department

of the Navy witnesses. In these excerpts, the Department’s witnesses suggest that Hale should

have used personal safety equipment, Dkt. 21-2 at 3–4 (Altenbach Dep. at 71–72), and should

have reported the poor lighting conditions or other safety concerns before proceeding into the

workspace, Dkt. 21-1 at 7–8 (Watts Dep. at 85–86). They also testified—based on photographs

they were asked to review—that the catwalk did not “look like . . . something the government

would build,” id. at 12 (Watts Dep. at 90), that it “look[ed] . . . like something a maintenance

contractor would put in place,” id. at 13 (Watts Dep. at 91), and that the catwalk would not have

met Navy specifications, Dkt. 21-2 at 4 (Altenbach Dep. at 72).

B. Statutory Background

       Under settled principles of sovereign immunity, the United States is subject to suit only if

Congress waives that immunity. See United States v. Sherwood, 312 U.S. 584, 586 (1941). The

scope of any such waiver, moreover, must be “strictly construed . . . in favor of the sovereign.”

Lane v. Peña, 518 U.S. 187, 192 (1996). Absent a clear waiver, the Court is without jurisdiction

to adjudicate a claim against the United States. See FDIC v. Meyer, 510 U.S. 471, 475 (1994).



                                                 4
       Hale relies on the waiver of sovereign immunity contained in the FTCA. The FTCA

allows those who suffer injuries as a result of the negligence of “any employee of the

[g]overnment” acting within the scope of his or her employment to bring suit against the United

States where “the United States, if a private person, would be liable to the claimant in accordance

with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). An

“employee of the government” includes “officers or employees of any federal agency,” but—

central to the government’s argument—the operative phrase “federal agency” does not include

government contractors. Id. § 2671. Thus, the United States has not waived its sovereign

immunity for suits arising from the negligence of government contractors, and courts lack

jurisdiction to consider claims against the United States based on their negligence. See United

States v. Orleans, 425 U.S. 807, 813–14 (1976).

       Courts refer to this principle as the “independent contractor exception” to the FTCA.

Orleans, 425 U.S. at 814. The exception “adopt[s] the common-law distinction between the

liability of an employer for the negligent acts of his own employees and his liability for the

employees of a party with whom he contracts for a specified performance.” Logue v. United

States, 512 U.S. 521, 526–27 (1973). Thus, where the government cedes daily operations to a

contractor, it is not responsible for injuries caused by the negligence of the contractor or the

contractor’s employees. See, e.g., Logue, 412 U.S. at 527.

       Accordingly, to the extent Hale’s claim is premised on the negligence of EMCOR or its

employees, the waiver of sovereign immunity contained in the FTCA does not apply, and the

Court is without jurisdiction. Conversely, however, to the extent Hale’s claim is premised on the

negligence of the Department of the Navy or its employees, the waiver applies, and the Court has

jurisdiction to adjudicate the dispute.



                                                  5
                                         II. DISCUSSION

A. Standard of Review

         Although the Court permitted the parties to take limited discovery on jurisdiction, the

present dispute arises in the context of a motion to dismiss the case at the threshold, pursuant to

Rule 12(b)(1). In this posture, as at other stages in the litigation, the plaintiff bears the burden of

establishing that the Court has jurisdiction. See In re Swine Flu Immunization Products Liability

Litigation, 880 F.2d 1439, 1442–43 (D.C. Cir. 1989); see also Lujan v. Defenders of Wildlife,

504 U.S. 555, 561 (1992). But unlike challenges to jurisdiction raised later in a proceeding, a

Rule 12(b)(1) motion may take one of two forms. First, it may raise a “facial” challenge to the

Court’s jurisdiction, which contests the legal sufficiency of the jurisdictional allegations

contained in the complaint. See Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006).

When framed in this manner, the Court must accept the allegations of the complaint as true and

must construe “the complaint in the light most favorable to the non-moving party.” Id.; see I.T.

Consultants, Inc. v. Republic of Pakistan, 351 F.3d at 1184, 1188 (D.C. Cir. 2003). In this sense,

the Court must resolve the motion in a manner similar to a motion to dismiss under Rule

12(b)(6). See Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 93 (D.C. Cir.

2002).

         Alternatively, a Rule 12(b)(1) motion may pose a “factual” challenge to the Court’s

jurisdiction. Erby, 424 F. Supp. 2d at 182–83. When framed in this way, the Court “‘may not

deny the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and

disputed by the defendant,’ but ‘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.’” Id. (quoting

Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)). In this



                                                   6
context, the factual allegations of the complaint are not entitled to a presumption of validity, and

the Court is required to resolve factual disputes between the parties. Id. at 183. The Court may

consider the complaint, any undisputed facts, and “‘the [C]ourt’s resolution of disputed facts.’”

Id. (quoting Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992)).

       A factual challenge to the jurisdictional allegations of a complaint, however, is subject to

a significant limitation. Where resolution of disputed jurisdictional facts “requires a ruling on

the underlying substantive merits of the case, the decision should await a determination of the

merits either by the district court on a summary judgment motion or by the fact finder at the

trial.” 5B Charles Alan Wright, et al., Federal Practice & Procedure § 1350 (3d ed. 2004 &

Supp. 2015) (internal footnotes omitted). As the D.C. Circuit has admonished, although a

district “court may rule on disputed jurisdictional facts at any time, if they are inextricably

intertwined with the merits of the case it should usually defer its jurisdictional decision until the

merits are heard.” Herbert, 974 F.2d at 198. This proviso to the usual rule ensures that, where

jurisdictional defenses and the merits of a dispute overlap, the jurisdictional defense is not

used—in the absence of special considerations—to short-circuit the factual development and

adjudicative process to which a plaintiff is generally entitled.

       Considered against this background, the government’s challenge to the Court’s

jurisdiction can be viewed as a facial challenge or a factual challenge. Either way, however, the

United States has failed to demonstrate that dismissal for lack of jurisdiction is warranted at this

early stage of the proceeding.

B. Facial Challenge to the Complaint

       To the extent that the United States poses a facial challenge to the complaint’s

jurisdictional allegations, that challenge fails. The United States correctly notes that the FTCA



                                                  7
waives the government’s sovereign immunity for claims arising from the negligent acts or

omissions of government employees acting within the scope of their employment. See Dkt. 11-1

at 5 (citing 28 U.S.C. § 1346(b)(1)). The government also correctly observes that this waiver

does not apply to the negligent conduct of independent contractors and that an independent

contractor is “a person who contracts with another to do something for him but who is not

controlled by the other nor subject to the other’s right to control with respect to his physical

conduct in the performance of the undertaking.” Id. (quoting Cooper v. GSA, 225 F. Supp. 2d 1,

3 (D.D.C. 2002) (internal quotation marks and citation omitted)). And, at least for present

purposes, it is undisputed that EMCOR and its employees were serving as independent

contractors and not as agents or employees of the United States.

       Thus, according to the United States, the complaint must be dismissed because the FTCA

does not waive sovereign immunity for EMCOR’s negligent acts or omissions. The

government’s argument, however, misses one fundamental point: The complaint does not claim

that EMCOR’s negligence caused Hale’s injuries but instead alleges that the United States failed

to maintain its premises in safe manner. It alleges, for example, that the United States, “as the

property owner, owed [Hale], as an invitee on the premises, a duty to maintain the premises in a

safe condition, including the areas on or about the mezzanine level where [Hale] was injured,”

Dkt. 1 at 2 (Compl. ¶ 11), and that the United States failed to maintain adequate lighting, failed

to mark or warn where it was safe to step, failed to install a railing or boundary to prevent falls,

failed to ensure that the mezzanine level floor was “secured,” and failed to comply with federal

safety standards, id. at 2–3 (Compl. ¶ 12).

       That formulation of Plaintiff’s claim, moreover, finds support in District of Columbia

law, which imposes a duty on landowners to show reasonable care to all persons lawfully present



                                                  8
on the landowner’s property. Smith v. Arbaugh’s Rest., Inc., 469 F.2d 97, 100 (D.C. Cir. 1972). 1

A plaintiff seeking to recover for a breach of this duty must show “that the defendant had

notice—either actual or constructive—of the present existence of an allegedly dangerous

condition.” Smith v. Washington Sheraton Corp., 135 F.3d 779, 782 (D.C. Cir. 1998) (internal

quotation marks and citation omitted). 2 Thus, under Hale’s theory of the case—which is not

separately challenged in the present motion—if the United States, as the property owner, had

actual or constructive notice of the allegedly hazardous condition at the Navy Yard, then it is

potentially subject to suit under the FTCA.

       The government may well be able to show that Hale’s injuries resulted from the

negligence of EMCOR employees, and Hale’s claim is thus closely related to a potential

negligence claim against EMCOR. But the fact that the FTCA does not waive sovereign

immunity for claims against independent contractors does not preclude claims based on closely

related acts committed by government employees. In Logue v. United States, for instance, a

federal prisoner committed suicide while being held at a county jail that had contracted to hold

federal prisoners. 412 U.S. at 525. The Supreme Court held that the prisoner’s family could not

bring a claim under the FTCA based on the allegedly negligent acts of the employees of the

county jail because they were employees of a “contractor” and not employees or officers of the

United States. Id. at 526, 530. But it left open the possibility that the family might still have an

FTCA claim based on the related failure, if any, of a federal deputy marshal, who was

indisputably an employee of the United States, to make “specific arrangements . . . for constant



1
 In applying the FTCA, the Court “look[s] to the law of the local jurisdiction.” Hornbeck
Offshore Transp., LLC v. United States, 569 F.3d 506, 508 (D.C. Cir. 2009).
2
  A defendant is charged with constructive notice “when or if the danger is . . . notorious
or . . . long-continued.” Smith v. D.C., 189 F.2d 671, 674 (D.C. Cir. 1951).
                                                  9
surveillance of the prisoner,” while he was in the custody of the employees of the county jail. Id.

at 532–33 (internal quotation marks and citation omitted).

       The same logic applies here. Hale cannot sue the United States based on the negligence

of EMCOR or its employees—nor has he attempted to do so. But to the extent he seeks to prove

that the United States, acting through one of its employees or officers, caused his injuries

through a negligent act or omission, he can proceed. He can do so, moreover, even if the acts of

EMCOR employees, which the FTCA does not cover, overlap with any covered acts of

government employees responsible for maintaining the safety of the premises.

       In response, the United States asserts that “[a]lthough [Hale] has styled his Opposition to

concentrate on who controlled the premises or the land[,] that is not the issue under consideration

related to jurisdiction.” Dkt. 21 at 5. But that is exactly the issue under consideration related to

jurisdiction. The complaint focuses on the government’s responsibility “as the property owner,”

Dkt. 1 at 2 (Comp. ¶ 11), to maintain a safe premises—a duty D.C. law imposes on all property

owners. It is against the allegations of the complaint as Hale has framed them that the Court

must consider the government’s facial challenge to the Court’s jurisdiction. That Hale could not

have brought a claim against the United States based on EMCOR’s negligence says nothing

about the claim he has actually brought based on the government’s alleged negligence.

       The Court, accordingly, rejects the government’s facial jurisdictional challenge.

C. Factual Challenge to the Complaint

       Because the government relies on EMCOR’s contract with the United States, a brief

declaration, and a handful of deposition excerpts, it is also necessary to consider whether it has

mounted a sufficient factual jurisdictional challenge. The government’s principal argument is

“that Hale[’]s injuries were the result of the negligence of EMCOR, that EMCOR was an



                                                 10
independent contractor of [the United States], and that [the United States] is therefore immune to

suit under the independent contractor exception to the Federal Tort Claims Act’s waiver of

sovereign immunity.” Dkt. 21 at 2. Framed in this manner, the government’s motion fails for

two reasons.

       First, as explained above, the government’s motion attacks a straw man. The motion

asserts that “[t]he issue” presented in this case “is who supervised and controlled the

employment/work of [Hale] and that was EMCOR.” Dkt. 21 at 5. But that is not the case that

Hale has brought. Despite the government’s assertions to the contrary, this case is about whether

the government maintained the premises in a safe manner and whether it is responsible for any

dangerous conditions that may have existed at a facility it owned. Dkt. 1 at 2 (Compl. ¶¶ 11–13).

       The only instance where the United States addresses the claim that Hale is actually

pursuing is in a single footnote in the reply brief. See Dkt. 21 at 5 n.2. In that footnote, the

government relies on a quote from Cooper v. GSA, where the district court observed that under

D.C. law “a landowner must have actual or constructive notice of a dangerous condition before

she may be held liable for failing to correct it.” 225 F. Supp. 2d at 5. The government then

argues that “[t]he evidence identified during the jurisdictional discovery period has shown [that]

the ‘catwalk’ was apparently built by a contractor without the knowledge or permission of any

government employee.” Dkt. 21 at 5 n.2. Cooper, however, offers no support for the

government’s position. Unlike the present case, Cooper arose on summary judgment, and the

plaintiff had failed to identify “any evidence that the federal defendants had any advance notice

of the allegedly dangerous conditions that ultimately injured her.” 3 Cooper, 225 F. Supp. 2d at



3
  Some district courts in other jurisdictions have rejected FTCA claims based on common law
premises liability theories. See Hall v. United States, 825 F. Supp. 427, 433 (D.N.H. 1993)
(“New Hampshire common law duties cannot imbue the defendants with liability under the
                                                 11
5. Here, in contrast, the government merely mentions the issue of actual or constructive

knowledge in a footnote in a reply brief in support of a threshold motion. The government, of

course, is not entitled to summary judgment based on an argument that was raised for the first

time on reply in a footnote in a motion to dismiss. See Jones v. Mukasey, 565 F. Supp. 2d 68, 81

(D.D.C. 2008) (“As the D.C. Circuit has consistently held, the Court should not address

arguments raised for the first time in a party’s reply.” (citations omitted)). But even if the

government had properly raised the issue in its opening brief, it has failed, unlike in Cooper, to

meet the summary judgment standard of showing that there is no genuine dispute of material fact

with respect to the government’s actual or constructive knowledge. At best, the evidence shows

that neither of two witnesses was personally aware of the dangerous catwalk and otherwise

merely offers speculation about who may have built the catwalk and whether other Department

of the Navy employees were aware that it was there. See Dkt. 21-1 at 23–26 (Watts Dep. at 101–

04); Dkt. 20 at 34, Dkt. 21-2 at 4–5 (Altenbach Dep. at 12, 72–73). That would not be enough

on summary judgment, and it is not enough here.

       Second, the government’s motion to dismiss simply previews a number of factual issues

going to the ultimate merits of Hale’s claims. The government asserts, for example, that the

EMCOR Contract made EMCOR responsible for ensuring that the work site was safe, that its


FTCA . . . .”); Flanagan v. United States, 430 F. Supp. 2d 106, 114 (W.D.N.Y. 2006) (relying on
Hall to conclude that “the FTCA does not permit liability based on nondelegable duties allowed
by the common law”). The courts in both Hall and Flanagan, however, understood the
landowner’s duty as imposing strict liability. See Hall, 825 F. Supp. at 432; Flanagan, 430 F.
Supp. 2d at 113. The FTCA, meanwhile, allows suits only for negligence. See 28 U.S.C.
§ 1346(b)(1) (granting district courts jurisdiction to hear certain claims “caused by the negligent
or wrongful act or omission” of any government employee acting within the scope of
employment); see also Laird v. Nelms, 406 U.S. 797 (1972). Here, the Court must “look to the
law of the local jurisdiction,” Hornbeck, 569 F.3d at 508—that is, the District of Columbia—and
the District of Columbia has adopted a negligence standard for premises liability. See, e.g.,
Washington Sheraton, 135 F.3d at 782. Hall and Flanagan are thus inapposite.

                                                 12
employees had the proper training and equipment, and that any safety concerns were promptly

brought to the attention of the Department of the Navy. See Dkt. 11-1 at 3; Dkt. 21 at 2–3. Hale,

in response, argues that this overstates the scope of EMCOR’s responsibility, which was limited

to ensuring that EMCOR’s work was performed in a safe manner—as opposed to “ensuring the

safety of the property in general.” Dkt. 20 at 4. Similarly, the government contends that the

accident was the product of Hale’s negligence and that he should have proceeded with greater

caution when working in a poorly lit space and should have used appropriate safety equipment.

Dkt. 21 at 3. Hale, in turn, observes that the government’s own accident report concluded that it

was “‘the government’s responsibility to ensure safe working conditions for all employees,’”

Dkt. 20 at 8 (quoting Hale Ex. 4 at 3), that the safety of the catwalk was the government’s

responsibility, and that “the danger of falling through the ceiling was not apparent to [Hale] or

EMCOR until the accident had occurred.” Dkt. 20 at 9.

       The limited deposition testimony appended to the parties’ briefs does not come close to

resolving these disputes. To the contrary, it consists largely of speculation about what may have

happened and suppositions about what the government might, or might not, have approved. See

Dkt. 21-1 at 23–26 (Watts Dep. at 101–04); 21-2 at 4–5 (Altenbach Dep. at 72–73). Although

courts must, at times, resolve factual disputes raised in threshold jurisdictional motions, the

disputed jurisdictional facts at issue here are indistinguishable from the central question on the

merits of who was at fault. This is, in short, precisely the type of case where a court “should . . .

defer its jurisdictional decision until the merits are heard.” Herbert, 974 F.2d at 198. To hold

otherwise would, in effect, transform virtually every FTCA merits dispute into a threshold

jurisdictional contest. There is no reason to conclude that Congress intended for courts to

resolve the merits of garden-variety FTCA cases in the context of Rule 12(b)(1) motions or that



                                                 13
principles of sovereign immunity require adjudication of fault at the threshold, before the parties

have had the opportunity fully to develop the facts and their respective cases.

         At trial—or even on a summary judgment motion filed after the completion of

discovery—the government is free to argue that it was not at fault, that it was not aware of the

dangerous condition at the site, or that Hale or EMCOR was at fault. But those arguments turn

on factual disputes that are central to the merits of Hale’s claim, and their resolution requires that

the parties first be afforded a more complete opportunity to discover and to dispute the relevant

facts.

                                        III. CONCLUSION

         For the reasons discussed above, the government’s motion to dismiss under Fed. R. Civ.

Pro. 12(b)(1) is DENIED without prejudice.

         SO ORDERED.

                                                       /s/ Randolph D. Moss
                                                       RANDOLPH D. MOSS
                                                       United States District Judge




Date: December 2, 2015




                                                 14
