     Case: 12-30284     Document: 00512029170         Page: 1     Date Filed: 10/23/2012




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

                                                                            FILED
                                                                         October 23, 2012

                                     No. 12-30284                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



SALVADORE BATTAGLIA,

                                                  Plaintiff-Appellant
v.

UNITED STATES OF AMERICA,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:10-CV-04311


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Salvadore Battaglia filed suit against the United States for injuries he
sustained from a fall in the trailer provided to him as temporary housing after
Hurricane Katrina. The district court granted the United States’ motion to
dismiss for lack of subject matter jurisdiction. It also denied Battaglia’s request
for additional discovery, finding that he had not alleged negligence by the United
States rising above mere contract oversight. We AFFIRM.


        *
         Pursuant to 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30284    Document: 00512029170     Page: 2   Date Filed: 10/23/2012



                                  No. 12-30284

                                     FACTS
      In the wake of Hurricane Katrina in August 2005, the Federal Emergency
Management Agency (“FEMA”) contracted with B & I Services, Inc., to inspect
and maintain Battaglia’s housing trailer. Though B & I noted a soft spot on the
floor on at least three occasions, it did not make repairs. Battaglia fell through
the floor on June 28, 2007. B & I then completed a temporary repair but
indicated the floor needed to be replaced. Battaglia fell through the floor again
on September 2, 2007.
      Battaglia filed suit against the United States under the Federal Tort
Claims Act (“FTCA”). He alleged FEMA’s negligence contributed to his injuries.
Though B & I was an independent contractor, Battaglia argues that FEMA’s
contract required it to evaluate and inspect B & I’s performance.
                                 DISCUSSION
      We give de novo review to 1a district court’s dismissal for lack of subject
matter jurisdiction. St. Tammany Parish ex rel. Davis v. Fed. Emergency Mgmt.
Agency, 556 F.3d 307, 315 (5th Cir. 2009). The party asserting jurisdiction bears
the burden of proof. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.
2001). A Rule 12(b)(1) motion “should be granted only if it appears certain that
the plaintiff cannot prove a plausible set of facts that establish subject-matter
jurisdiction.”   Castro v. United States, 560 F.3d 381, 386 (5th Cir. 2009).
Generally, in ruling on a Rule 12(b)(1) motion, the court may consider any of the
following: (1) the complaint alone; (2) the complaint along with undisputed facts
in the record; or (3) the complaint, undisputed facts, and the court’s resolution
of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). When
a party challenges the facts on which jurisdiction depends, matters outside the
pleadings, such as affidavits and testimony, are considered. Oaxaca v. Roscoe,
641 F.2d 386, 391 (5th Cir. 1981).



                                        2
   Case: 12-30284    Document: 00512029170       Page: 3   Date Filed: 10/23/2012



                                   No. 12-30284

      The FTCA provides a limited waiver of sovereign immunity for torts
committed by Government employees acting within the scope of employment.
28 U.S.C. § 1346(b)(1). This waiver expressly excludes “any contractor.” 28
U.S.C. § 2671.
      The contract with B & I gave FEMA the authority to monitor compliance,
but that authority does not itself create liability for the United States. See
Alexander v. United States, 605, F.2d 828, 833 (5th Cir. 1979). The contract
provided that “FEMA or government personnel, shall evaluate the Contractor’s
performance in accordance with [its] overall level of compliance with the contract
terms and conditions and the demonstrated quality and timeliness of the
services provided under the contract.” A contractual reservation “to the United
States [of] the right to inspect the work and facilities of the independent
contractor . . . and the right to stop the work, does not in itself override or alter
the general rule of nonliability for the torts of the contractor.”       Id. at 834
(quoting United States v. Page, 350 F.2d 28, 30 (10th Cir. 1965)).
      FEMA contracted with B & I to inspect, maintain, and repair Battaglia’s
trailer. Before a right to inspect and compel compliance can create liability for
the United States, FEMA must have a duty to perform day-to-day supervision.
United States v. Orleans, 425 U.S. 807, 815 (1976). The contract did not require
such supervision or inspection over B & I’s operations. Consequently, there is
no basis for finding the United States liable.
      The district court’s denial of Battaglia’s request to conduct additional
jurisdictional discovery is reviewed for abuse of discretion. Marathon Fin. Ins.,
Inc., RRG v. Ford Motor Co., 591 F.3d 458, 469 (5th Cir. 2009). Ordinarily, a
district court’s discretion in discovery matters will not be disturbed unless there
are unusual circumstances showing a clear abuse. Id.            The district court
reviewed the contract between FEMA and B & I and a sworn affidavit
establishing that FEMA delegated responsibility to B & I for inspecting and

                                         3
   Case: 12-30284    Document: 00512029170      Page: 4    Date Filed: 10/23/2012



                                  No. 12-30284

maintaining Battaglia’s trailer. These documents provided sufficient evidence
on which the district court could conclude that FEMA’s right to inspect did not
expose it to direct liability and that the court lacked subject matter jurisdiction.
      Battaglia sought to depose Thomas Warder, the FEMA employee who
provided the affidavit in support of the United States’ motion to dismiss, and
also requested “various logs and documents” from Warder. Battaglia argued
that fairness dictated he be given an opportunity to conduct discovery on the
issue of subject matter jurisdiction before the court ruled. The district court
found that Battaglia had not identified with any precision what information the
affiant could provide that had not already been provided. A party “may not
simply rely on vague assertions that additional discovery will produce needed,
but unspecified facts.” Beattie v. Madison Cty. Sch. Dist., 254 F.3d 595, 606 (5th
Cir. 2001) (quotation and citation omitted).
      Battaglia argues for the first time on appeal that subject matter
jurisdiction and the claim on the merits are so intertwined that resolution of the
jurisdictional issue is dependent upon the resolution of the merits. This court
generally does not review issues raised for the first time on appeal. Celanese
Corp. v. Martin K. Eby Constr. Co., 620 F.3d 529, 531 (5th Cir. 1993).
      AFFIRMED.




                                         4
