White v. United States of America

MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim

W.D. Okla.March 31, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA MARY BETH WHITE, ) ) Plaintiff, ) ) v. ) 16-CV-1265-D ) UNITED STATES OF AMERICA, ) ) Defendant. ) THE UNITED STATES’ MOTION TO DISMISS Defendant, United States of America, respectfully moves for an Order dismissing this action pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The Defendant states as follows: STATEMENT OF THE CASE Plaintiff brings this action pursuant to the Federal Tort Claims Act. [Doc. 1, ¶ 1]. She alleges that on November 12, 2013, she walked into the Post Office in Newalla, Oklahoma where she fell on a wet floor. [Doc. 1, ¶ 7]. She alleges the United States was “acting by and through its agents, servants and employees known to Defendant and unknown to Plaintiff.” [Doc. 1, ¶8]. She further alleges the United States “created a hazard,” “maintained the aforesaid area in a dangerous condition,” failed to “warn” of the condition, and “failed to remove or correct said condition.” [Doc. 1, ¶ 9a-d]. Though the factual allegations are sparse in the Complaint, the nature of Plaintiff’s theory of negligence is more clearly articulated in her administrative claim. In submitting her claim, she stated: Case 5:16-cv-01265-D Document 11 Filed 03/31/17 Page 1 of 14 2 Upon stepping through the entrance, Mrs. White slipped and fell due to water covering the floor and the threshold of the door/entrance, resulting in injury to her left ankle and foot and her right foot. There is evidence that there was a man standing across the customer area with a mop, although there were no warning signs present to indicate the floor was wet and slippery. Mrs. White did not see this worker until after she fell and as she was gathering her wits and recognizing that her clothing was wet from the water on the floor where she fell. [Exh. 1, Tort Claim 001-003, p. 003]. Thus, the nature of Plaintiff’s claim is that she fell on a wet floor due to the custodian mopping. Mr. Patrick Ryan, an independent contractor, was the “man standing across the customer area with a mop.” He acknowledges he was mopping at the time of Plaintiff’s accident. [Exh. 4, Statement of Patrick Ryan]. On April 22, 2013, about seven months before the accident, the United States Postal Service (USPS) entered into a “Cleaning Services Agreement” with Mr. Ryan. [Exh. 2, Signed Cleaning Agreement, 001-002]. The Agreement states that Mr. Ryan is a “self- employed individual,” and he signed his name above the line that reads “Contract Cleaner.” [Exh. 2, p. 001]. The Cleaning Agreement further provides as follows:  “Cleaning services will be of the kind and quality offered and sold in the commercial marketplace under commercial terms and conditions.” [Exh. 2, p. 002] [Exh. 3, Clean Copy of Cleaning Agreement].1  “The supplier, by signing this form, certifies that he/she is not a postal employee or a member of the immediate family…of a supervisory postal employee. The supplier agrees and acknowledges that he/she is performing this service as an independent contractor and not an employee of the Postal Service for any purpose, and that the terms of this agreement shall not be construed to create any further relationship between the parties other than an independent contractor status.” [Exh. 2, p. 002] [Exh. 3]. 1 The Agreement signed by Mr. Ryan, while readily identifiable, is of poor quality. The United States has attached a clean copy of the same document as Exhibit 3 so the Court and Plaintiff can read the language easily. Case 5:16-cv-01265-D Document 11 Filed 03/31/17 Page 2 of 14 3  “Permits and Responsibilities: The supplier is responsible, without additional expense to the Postal Service, for obtaining any necessary licenses and permits, and for complying with any applicable federal, state, and municipal laws, codes, and regulations in connection with the performance of this contract. The supplier is responsible for all damage to persons or property, including environmental damage, that occurs as a result of its omission(s) or negligence. The supplier must take proper safety and health precautions to protect the work, the workers, the public, the environment, and the property of others.” [Exh. 2, p. 002] [Exh. 3]. The United States has not waived sovereign immunity for the alleged negligence of an independent contractor, which is clearly the root of Plaintiff’s allegation. Accordingly, the Court lacks subject matter jurisdiction, and Plaintiff’s Complaint must be dismissed. Alternatively, Plaintiff’s Complaint fails to state a claim on its face and must be dismissed. ARGUMENT AND AUTHORITY THE UNITED STATES HAS NOT WAIVED SOVEREIGN IMMUNITY FOR ACTS OR OMISSIONS OF INDEPENDENT CONTRACTORS Motions under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction may take two forms. Such motions may be facial attacks on the sufficiency of jurisdictional allegations in the complaint or challenges of the facts upon which subject matter jurisdiction depends. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). Regarding a facial challenge to jurisdiction, the Court looks at the face of the complaint. Regarding a factual challenge, the Court may look at documents other than the face of the complaint and doing so does not convert the Rule 12(b)(1) motion to dismiss to a Rule 56 motion for summary judgment. Davis ex rel. Davis v. United States, 343 F.3d 1282, 1296 (10th Cir. 2003). With respect to the United States’ claim of lack of subject matter jurisdiction, the United States submits a factual attack. Case 5:16-cv-01265-D Document 11 Filed 03/31/17 Page 3 of 14 4 Federal courts do not automatically possess the authority to hear and determine every type of action conceivably authorized by the U.S. Constitution. Nolan v. Boeing Co., 919 F.2d 1058, 1064 (5th Cir. 1990). It is axiomatic that the United States is immune from suit except where its sovereign immunity has been expressly waived, and that waivers of sovereign immunity are to be strictly construed. Lehman v. Nakshian, 453 U.S. 156, 160 (1981); U.S. v. N.Y. Rayon Importing Co., 329 U.S. 654, 659 (1947). Only Congress may waive the sovereign immunity of the United States. Block v. North Dakota, 461 U.S. 273 (1983). The courts have uniformly pronounced that, absent a waiver of its immunity, the Government is immune from claims for attorney's fees, costs, and damages. See, e.g., United States v. Testan, 424 U.S. 392, 399-400 (1976); Alyeska Pipeline Co. v. Wilderness Security, 421 U.S. 240, 266-268 and n. 42 (1975). Where a limited waiver of sovereign immunity has been provided by Congress, not only must that waiver be strictly construed but it must, in fact, be construed, in favor of the sovereign. Library of Congress v. Shaw, 478 U.S. 310, 319 (1986); McMahon v. United States, 342 U.S. 25, 27 (1951). The Federal Tort Claims Act (“FTCA”) provides a limited waiver of the United States’ sovereign immunity to permit persons injured by federal-employee tortfeasors to sue the United States for damages in federal district court. 28 U.S.C. § 1346(b)(1). The FTCA defines “employee of the government” as: officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty…, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States…. 28 U.S.C. §2671. The FTCA defines “federal agency” to include: Case 5:16-cv-01265-D Document 11 Filed 03/31/17 Page 4 of 14 5 The executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States. 28 U.S.C. §2671 (emphasis added). “Since the United States can be sued only to the extent that it has waived its immunity, due regard must be given to the exceptions, including the independent contractor exception, to such waiver.” United States v. Orleans, 425 U.S. 807, 814 (1976). “The FTCA does not authorize suits based on the acts of independent contractors or their employees.” McDaniel v. United States, 53 Fed. Appx. 8, 10-11 (10th Cir. 2002). The United States is similarly not liable under the FTCA based on a theory of strict liability. 28 U.S.C. §1346(b). In Williams v. United States, 50 F.3d 299 (4th Cir. 1995), the plaintiff slipped and fell on a wet floor in a building leased by the United States. She alleged the United States’ negligence in “maintaining the premises” caused her injuries. She subsequently sued the United States under a general theory of premises liability, and she alleged the United States’ employees’ were negligent because they should have observed this slippery condition and they permitted it to exist. She further alleged the United States failed to post “wet floor warnings” inside the premises. Id. at 307. The court noted that, prior to plaintiff’s accident, the United States had entered into a “comprehensive contract” with Meridian Management Corporation under which Meridian would provide custodial and maintenance services. Id. at 302. The contract was broad and provided Meridian with obligations with respect to repair, cleanliness, and safety. The contract provided Meridian was charged with “day-to-day” inspection and monitoring of the work performed and to Case 5:16-cv-01265-D Document 11 Filed 03/31/17 Page 5 of 14 6 “take all necessary precautions to prevent injury to the public, building occupants, or damage of property to others.” Id. The contract demanded Meridian have an engineer on duty at all times to ensure the premises was in a safe condition, required it to provide all labor, materials, and supervision, and required it to comply with OSHA regulations. Id. at 302-303. Although the district court’s granting of summary judgment on the merits was affirmed, the Fourth Circuit noted the case should have been dismissed for lack of subject matter jurisdiction because the United States had not waived immunity for actions or omissions of independent contractors, and any ambiguities are resolved in favor of the United States. Id. at 302-303. The court held that “by contract, the Government may fix specific and precise conditions to implement federal objectives without abjuring its immunity.” Id. at 306 (citing United States v. Orleans, 425 U.S. 807, 816 (1976)). The court held that Meridian was an independent contractor, not an agent or employee of the United States, and that the contract was a comprehensive document providing Meridian was responsible for the maintenance of the premises. Id. at 307. The Fourth Circuit also rejected plaintiff’s contention that 1) safety was non- delegable, and that 2) the United States was itself negligent. Id. at 307-308. First, although noting that Virginia law provided for a non-delegable duty for premises safety, the court held that “whether a state tort law can be applied against the United States is exclusively a matter of federal law, and thus to prevail on his assertion that Virginia law applied to render the United States liable, [plaintiff] had to prove that federal law permitted the application of Virginia law to the United States.” Id. at 308 (Court’s emphasis) (citing Berkman v. Case 5:16-cv-01265-D Document 11 Filed 03/31/17 Page 6 of 14 7 United States, 957 F.2d 108 (4th Cir. 1992)). The court held that, for jurisdictional purposes, federal law controls, and forecloses the applicability of state law. Id. “[T]he independent contractor exception of §2674 shields the United States from tort liability which might otherwise arise from performance of duties which were reasonably delegated to the contractor. Hence, Williams’ contention that liability can be imputed to the United States via Virginia law must fail.” Id. Second, the court rejected Plaintiff’s contention the United States was liable for its own negligence because it allowed weather stripping to remain unrepaired and knew of the floor’s condition but failed to post warning signs. Id. at 308-309. The court held the United States was not liable because the “discretionary function exception to the FTCA insulates the United States from liability for its agents and employees’ performance of duties involving discretionary functions.” Id. at 308. The court held: The decision to hire an independent contractor to render services for the United States is precisely the type of decision that the exception is designed to shield from liability because it involves exercising judgment based on consideration of policy, and the case law clearly establishes that the award of contracts falls within the ambit of the discretionary function exception. Id. at 310. “Given that the decision to engage Meridian falls within the ambit of the discretionary function exception, we find that in this case Williams’ assertions that the United States was negligent in inspecting and not posting warning signs cannot prevail because these decisions are embraced by the overarching decision to engage Meridian.” Id. The Sixth Circuit came to a similar conclusion when a civilian contractor’s employee was killed after a gutter fell from a liquor store on an Army base. Berrien v. Case 5:16-cv-01265-D Document 11 Filed 03/31/17 Page 7 of 14 8 United States, 711 F.3d 654 (6th Cir. 2013). Plaintiff’s decedent was killed while working for TECOM, a contractor hired by the Army to conduct maintenance, inspection, and repair activity at the base. The court noted TECOM was tasked under contract to perform all maintenance for all buildings and structures on the base, as well as perform all preventive and recurring maintenance tasks. Id. at 655-656. The plaintiff alleged the United States was liable for failing to properly and timely inspect, repair, and maintain the gutter, and for failing to warn business invitees on the premises that the gutters were not secure. Id. at 656. The court held the “law is clear that the government may delegate its safety responsibilities to independent contractors in the absence of federal laws or policies restricting it from doing so.” Id. at 658 (internal citations omitted). It further held that the state’s “nondelegable duty doctrine cannot render the United States liable for TECOM’s negligence; imposing such liability would permit state law to abrogate the FTCA’s contractor exception.” Id. at 658. Because safety was properly delegated to TECOM, the United States could not be liable under the independent contractor exception to the FTCA. Like Williams, the Berrien Court also found the discretionary function exception also barred liability. Id. at 661. The decision to hire a contractor and the decision to spot check for safety compliance fell squarely within the exception. Id. “An FTCA claim that the government negligently failed to discover a latent defect after it properly delegated its inspection duties would essentially be a challenge to the government’s decision to delegate its inspection duties; this is precisely the type of challenge that is precluded by the discretionary function exception.” Id. Case 5:16-cv-01265-D Document 11 Filed 03/31/17 Page 8 of 14 9 In Carroll v. United States, 661 F.3d 87 (1st Cir. 2011), a three-year-old child was struck in the head by a projectile which was thrown from a lawnmower operating in an adjacent lot. At the time, the child was at a childcare facility near a federal facility. The landscape company had contracted with the Government to provide maintenance and landscaping services for the federal property, including the childcare center. Id. at 92. The plaintiff’s argued the United States was liable for its failure to “coordinate the contractors’ activities to ensure the safety” of the children. However, the Carroll court noted that the contract between the Government and the landscaping company stated “it is the policy of the GSA that Government direction or supervision of the contractor’s employees, either directly or indirectly, will not be exercised.” Id. at 96. The contracts in question expressly assigned responsibility for safety to the contractors stating, inter alia, they will “comply with all Federal, State, or local safety policies;” “procure liability insurance and maintain accident insurance;” and to “take all necessary precautions to prevent injury to the public, building occupants, or damage to property.” Id. at 97. Like its sister circuits, the court held the United States cannot be liable for acts or omissions of independent contractors, and that its decision to delegate safety was a discretionary function. Id. at 99-100. “As a matter of course, GSA’s permissible judgment to delegate to the contractors the day-to-day responsibility for safety in the performance of their activities meant that the government had the discretion not to prescribe lawn-mowing and outdoor play schedules. The contractors, not the United States, bore responsibility for implementing procedures to ensure safety of the Rainforest Kids children.” Id. at 103. “[T]he benefits of engaging independent contractors would be lost if the government Case 5:16-cv-01265-D Document 11 Filed 03/31/17 Page 9 of 14 10 needed to take the time to make judgments about, and provide guidance on, every aspect of every task to be performed.” Id. 104. See also Upton v. United States, 2015 WL 5472502 (W.D. OK 2015) (14-cv-270-M) (Order Sept. 17, 2015) (unpublished and attached) (Judge Miles-LaGrange dismissed plaintiff’s action based on independent contractor exception when contractor’s employee drove forklift off the edge of a platform due to it allegedly being poorly marked); Cerrone v. United States, 2006 WL 2795614 (W.D.N.Y. 2016) (unpublished and attached) (dismissing on independent contractor and discretionary function grounds when contractor’s employee slipped through a grid of steel bars after safety had been delegated to contractor); Andrews v. United States, 121 F.3d 1430,1440 (11th Cir. 1997) (“The law is clear that the government may delegate its safety responsibilities to independent contractors in the absence of federal laws or policies restricting it from doing so.”); Guile v. United States, 422 F.3d 221, 231 (5th Cir. 2005) (“Supervision of a contractor’s work, including a degree of oversight to exercise, is inherently a discretionary function.”); Kirchmann v. United States, 8 F.3d 1273, 1276 (8th Cir. 1993) (“Where no statute or regulation controls the government’s monitoring of a contractor’s work, the extent of monitoring required or actually accomplished is necessarily a question of judgment, or discretion, for the government.”). This case is remarkably similar to those cases cited above in which the courts unanimously held the United States cannot be liable for acts or omissions of an independent contractor, and the United States may properly delegate safety responsibilities to independent contractors within the discretionary function exception. Plaintiff alleges (in her administrative claim) she slipped on a wet floor because a man was mopping, and he Case 5:16-cv-01265-D Document 11 Filed 03/31/17 Page 10 of 14 11 allegedly failed to warn about the wet floor. The “man” was unquestionably an independent contractor. To the extent the wet floor was a “hazard,” it was created by the independent contractor, not the United States. Further, to the extent he negligently failed to “warn” about the wet floor, the contract explicitly states that he was “responsible for all damage to persons…that occurs as a result of its omission(s) or negligence. The supplier must take proper safety and health precautions to protect…the public.” [Exh. 2, p. 002] [Exh. 3]. The United States properly delegated the duty to “warn” of wet floors due to the cleaning services to Mr. Ryan. The United States has not waived sovereign immunity for the acts or omissions of independent contractors. As such, the Court lacks subject matter jurisdiction, and Plaintiff’s Complaint must be dismissed. PLAINTIFF HAS FAILED TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED In considering a 12(b)(6) motion, the truth of a plaintiff’s well-pled factual allegations must be viewed in the light most favorable to the plaintiff. Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005). In this regard, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Furthermore, a plaintiff’s factual allegations must be enough to raise a right to relief above the speculative level. Id. The complaint must possess enough heft to show that the pleader is entitled to relief. Id. The court need not credit bald assertions or legal conclusions. Anspach v. Philadelphia Dept. of Public Health, 503 F.3d 256, 260 (3rd Cir. 2007) (citations omitted). “Legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Id. It is not enough for a plaintiff to plead Case 5:16-cv-01265-D Document 11 Filed 03/31/17 Page 11 of 14 12 facts which are “merely consistent” with the defendant’s liability, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Although the merits of Plaintiff’s tort claim turns on Oklahoma state law, whether she has sufficiently stated facts to substantiate a claim is subject to Iqbal and Twombly. The facts of Iqbal itself are instructive to this case. In Iqbal, the plaintiff, a Muslim and a Pakistani citizen, was detained and held in isolation by the FBI as a person “of high interest” to the investigation of the events of September 11, 2001. He alleged he was designated as “a person of high interest” on account of his race, religion, or national origin, in contravention of the First and Fifth Amendments. Id. at 669. The plaintiff alleged the FBI, under the direction of defendant FBI Director Mueller, “arrested and detained thousands of Arab Muslim men…as part of its investigation of the events of September 11.” Id. Specifically, he alleged “the policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants Ashcroft and Mueller in discussions in the weeks after September 11, 2001.” Id. Importantly for this case, he further plead that Mueller and Ashcroft “each knew of, condoned, and willfully and maliciously agreed to subject” him to harsh conditions of confinement “as a matter of policy, solely on account of his religion, race, and/or national original…” Id. The Supreme Court began its analysis “by identifying the allegations in the complaint that are not entitled to the assumption of truth.” Id. at 680. It noted that plaintiff’s allegation Ashcroft and Mueller “knew of, condoned, and willfully and Case 5:16-cv-01265-D Document 11 Filed 03/31/17 Page 12 of 14 13 maliciously agreed to subject him to harsh conditions of confinement as a matter of policy,” as well as their being “instrumental” in the execution of the policy were nothing more than “bare assertions” and “formulaic recitation of the elements” of the cause of action. Id. at 680-81. The Court held that such bare allegations were “conclusory and not entitled to be assumed true.” Id. at 681. It further stated, “To be clear, we do not reject these bald allegations on the ground that they are unrealistic or nonsensical…It is the conclusory nature of respondent’s allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.” Id. The only factual assertion in Plaintiff’s Complaint is that she “was walking on Defendant’s premises…in an area where she was permitted to walk when she fell on a wet floor and was injured.” [Doc. 1, ¶ 7]. The remaining paragraphs are “legal conclusions masquerading as factual conclusions.” Anspach at 260. Plaintiff provides no factual allegations substantiating “Defendant was acting by and through its agents, servants, and employees.” [Doc. 1, ¶ 8]. She provides no facts the United States “created a hazard” or “maintained…a dangerous condition.”2 [Doc. 1, ¶ 9]. Like Iqbal, Plaintiff provides no facts the United States’ employees “knew or should have known” about a hazardous condition. Plaintiff has provided nothing more than a “formulaic recitation of the elements” which will not survive a motion under Fed. R. Civ. P. 12(b)(6). Plaintiff’s Complaint must be dismissed. 2 Although the administrative claim is clear Plaintiff blames the wet floor on the mopping done by an independent contractor, Plaintiff’s Complaint is vague enough she could arguably change her theory in an attempt to avoid jurisdictional problems. The Complaint is silent as to the source of the moisture on the floor. Case 5:16-cv-01265-D Document 11 Filed 03/31/17 Page 13 of 14 14 Respectfully submitted, MARK A. YANCEY United States Attorney /s/ Daniel J. Card DANIEL J. CARD, OBA No. 30034 Assistant U.S. Attorney United States Attorney=s Office 210 Park Avenue, Suite 400 Oklahoma City, OK 73102 (405) 553-8700 - (fax) 553-8885 daniel.card@usdoj.gov CERTIFICATE OF SERVICE X I hereby certify that on March 31, 2017 true copy of this pleading was electronically transmitted to the Clerk of the District Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to these parties and counsel registered on ECF: Kelly Bishop 900 NE 63rd Street Oklahoma City, OK 73105 405-239-7046 Fax: 405-418-0833 kbishop@abellawfirm.com Attorney for Plaintiff. I hereby certify that on March 31, 2017, the attached document(s) were served by U.S. Mail on the following, who are not registered participants on the ECF System: /s/ Daniel J. Card Case 5:16-cv-01265-D Document 11 Filed 03/31/17 Page 14 of 14 CLAIM FOR DAMAGE, INJURY, OR DEATH INSTRUCTIONS: Please read carefully th<- . 31ructions on the reverse side and supply information requested on ooth sides of this form. Use additional sheet(s) if necessary. See reverse side for additional instructions. FORM AFPROVED OMB N0.1105-0008 ------------------ ·---.---------------'-----------1 ·1. Submit to Appropriate Federal Agency: 2. 'iamo, address of claimant, and claimant's personal representative if any. •,Sc~e in~tructions on reverse). Number, Street, City, State and Zip code. United States Postal Service 475 L'Enfant Plaza SW Washington, D.C. 20260- 1101 Mary Beth White, Kelly Bishop, 900 N.E. 63 St., Okla. City, OK 73105 is my attorney. 3. TYPE OF EMPLOYMENT ]4. DAI'F: OF BI!HH 5. MARITAL STATUS 6. DATE AND DAY OF ACCIDF:NT 7. TIME (A.M. OR P.M.) D MILITARY (gJ CIVILIAN 11/12/2013 9:10a.m. ----·-· D. BASIS or- CLAIM (Stato in detail t110 l(H ~ . '~ ·..: 9. PROPERTY DAMAGE r-.,· :,, ... · .. NAME AND ADDRESS OF OWNI'R, II' OTHER THAN CLAIMANT (Number, Street, City, State, and Zip Code). 1,:_ 1 N/A ___ _ BRIEFLY DESCRIBE THE PIWPEIHY, NATURI: AND EXT!: NT OF THE DAMAGE AND THE LOCATION OF WHERE THE PROPERTY MAY BE INSPECTED. (Sec instructions on reverse side) . . N/A 10. PERSONAL INJURY/WRONGFUL DEATH 1--------- STATE THE NATURE AND EXTioNT OF EACH INJURY OR CAUSE OF DEATH, WHICH FORMS THE BASIS OF THE CLAIM. IF OTHER TI·IAN CLAIMANT, STATE THE NAME OF TilE INJURED PERSON 011 !KCEDENT. Due to the fall at the Newalla Post Office Mary Beth White sustained a broken metatarsal on her right foot, two broken metatarsals on her left foot and a brolNALTY FOR PRmNT'"G :~~~~:,~:~ FllAUDULENT CLAIM . ------. , CLAIM OR MAKING FALSE STATEMENTS ___ ,. __ .... ~ .. ,~,-·- \' -.\\,. \i _-. ,., \ The claimant is liable to the United States Government for a civit.pana1T£pfnot',less t~~n ' ---· -Ftfte, im[1rispnment, or both. (See 18 U.S.C. 287, 1001.) $5,000 and not more than $10,000, plus 3 times tho am~da~a-.g· eS;_susJa_~~~d ....... · --· · ; : \ by the Government. (Sec 31U.S.C. 3729). \'-\\, ·::·.~-- --- .1 \ Authorized for Local Reproduction Y_· \ NSN 7540-00-6'34-40~G- \ Previous Edition is not Usable \ "'(\\I - b.. .. \ \ . . ,,. v' ' 95-109 '\· > \. ', -------- ....-·-::~-.,r\ \ . \ ------~-,-t,.'h_:_\ _j ~ ..... __.....,_,..... • - ~ "i f \. ""'\. "' \ .-., ,_. \ I c 'l r f / .,_ ~ \ \, __ :.···~ --l---- STANDARD FORM 95 (REV. 2/2007) PRESCIPCrils de:t" ~,, ~n- ·f- or the supplier's agent or other reprosentat1vc (1) Offered or gavo a gratu•ty or g1ft (as dofmod I· 1 ~ l> H. ,h-.b employee of tho Postal Sorvtco, and (2) Intended by the gratwty or gtft to obtatn a con;r;w'. L'! r,\, under a contract. b. The nghts and remedtes of the Postal Serv1ce tJrov:dp~i q~ f"':o •• '. •,( ,""; additton to any other nghts and remedtes provtded b\ 1,1\\ eli . n,,l~ •:.,,, • Clause 9·11, Service Contract Act. Short Form (March 200bl Except to the extont that an oxemphon, varlattun, 01 tort.'rc1tWt; \\,'ttl contract were more than $2,500, the supphor and ;my subC'l''>f'!r:lc;,, employees engaged in porforming work on the contr.1l'l at lt>.t'>' ttl\' .,, specified in section 6(a)(1) of the Fau Labor Stanclu'tls Acl ,,, '.•1:1:. ,. Regulations and interpretations of the s~rv,ce Contratil Acl ol '9ti.·, ,., are contained 1n 29 CFR Part 4 See Privacy Act Statement Termination on Notice Either the Postal Service or the supplier may U.:Hmtnatn ltlts Cll!l!t,h written notice to the other. Termination for Cause The Postal Service may torm1nate this contract rot Ull!SO 11 tnn ·;up:~l1: perform all of the servtces required 1n the contract, or falls tn m,lt•1Wt,- ,l:\' standards of personal conduct whde on Postal promtses ·1 t'P ~l'l·,~;~t('l the right to terminate lhis contract for cause See Privacy Act Statement on Reverse. EXHIBIT 2 002 Case 5:16-cv-01265-D Document 11-2 Filed 03/31/17 Page 2 of 2 Cleaning Agreement The supplier named below agrees to perform cleaning services at the _______________________________________ postal facility for the sum of $_______________ per annum for a ____________ period. Payment will be made bi-weekly from the United States Postal Service® San Mateo Accounting Service Center. The Postal Service™ will not withhold taxes or take any other kind of deduction from these payments. Supplier payment information is reported to the Internal Revenue Service via IRS Form 1099. Cleaning service will be of the kind and quality offered and sold in the commercial marketplace under commercial terms and conditions. The Postal Service reserves the right to reject any work it finds to be unsatisfactory. The supplier, by signing this form, certifies that he/she is not a postal employee or a member of the immediate family (see USPS Supplying Principles and Practices/General Practices/Contracts with former Postal Service Officers, Executives, and Employees, and Employees and their Immediate Families) of a supervisory postal employee. The supplier agrees and acknowledges that he/she is performing this service as an independent contractor and not an employee of the Postal Service for any purpose, and that the terms of this agreement shall not be construed to create any further relationship between the parties other than an independent contractor status. Unless otherwise agreed, the Postal Service will provide reasonable quantities of cleaning equipment and supplies. The supplier will hold harmless and indemnify the Postal Service and its officers, employees, agents and representatives, from all claims, losses, damages, actions or causes of actions resulting from the negligent acts or omissions of the supplier, his/her agents, employees or representatives. Supplier Name Supplier's Taxpayer Identification No. (TIN)/Social Security No. (SSN) Supplier's Telephone No. (Include area code) Agreement Start Date Postmaster's Signature and Date Supplier's Signature and Date PS Form 7355, October 2006 (Page 1 of 2) Street Address (No., suite/apartment no.) City, State, and ZIP + 4® i. Simple interest on claims will be paid at a rate determined in accordance with the Interest clause. j. The supplier must proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the contracting officer. Clause B-30, Permits and Responsibilities (March 2006) The supplier is responsible, without additional expense to the Postal Service, for obtaining any necessary licenses and permits, and for complying with any applicable federal, state, and municipal laws, codes, and regulations in connection with the performance of the contract. The supplier is responsible for all damage to persons or property, including environmental damage, that occurs as a result of its omission(s) or negligence. The supplier must take proper safety and health precautions to protect the work, the workers, the public, the environment, and the property of others. Clause 1-5, Gratuities or Gifts (March 2006) a. The Postal Service may terminate this contract for default if, after notice and a hearing, the Postal Service Board of Contract Appeals determines that the supplier or the supplier's agent or other representative: (1) Offered or gave a gratuity or gift (as defined in 5 CFR 2635) to an officer or employee of the Postal Service; and (2) Intended by the gratuity or gift to obtain a contract or favorable treatment under a contract. b. The rights and remedies of the Postal Service provided in this clause are in addition to any other rights and remedies provided by law or under this contract. Clause 9-11, Service Contract Act. Short Form (March 2006) Except to the extent that an exemption, variation, or tolerance would apply if this contract were more than $2,500, the supplier and any subcontractor must pay employees engaged in performing work on the contract at least the minimum wage specified in section 6(a)(1) of the Fair Labor Standards Act of 1938, as amended. Regulations and interpretations of the Service Contract Act of 1965, as amended, are contained in 29 CFR Part 4. See Privacy Act Statement. Termination on Notice Either the Postal Service or the supplier may terminate this contract on 30 days' written notice to the other. Termination for Cause The Postal Service may terminate this contract for cause if the supplier fails to perform all of the services required in the contract, or fails to maintain appropriate standards of personal conduct while on Postal premises. The supplier does not have the right to terminate this contract for cause. See Privacy Act Statement on Reverse. Terms and Conditions Clause B-9, Claims and Disputes (March 2006) a. This contract is subject to the Contract Disputes Act of 1978 (41 U.S.C. 601-613) ("the Act" or “CDA”). b. Except as provided in the Act, all disputes arising under or relating to this contract must be resolved under this clause. c. "Claim," as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract. However, a written demand or written assertion by the supplier seeking the payment of money exceeding $100,000 is not a claim under the Act until certified as required by subparagraph d.2 below. A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under the Act. The submission may be converted to a claim under the Act by complying with the submission and certification requirements of this clause, if it is disputed either as to liability or amount is not acted upon in a reasonable time. d. (1) A claim by the supplier must be made in writing and submitted to the contracting officer for a written decision. A claim by the Postal Service against the supplier is subject to a written decision by the contracting officer. (2) For supplier claims exceeding $100,000, the supplier must submit with the claim the following certification: "I certify that the claim is made in good faith, that the supporting data are accurate and complete to the best of my knowledge and belief, that the amount requested accurately reflects the contract adjustment for which the supplier believes the Postal Service is liable, and that I am duly authorized to certify the claim on behalf of the supplier." (3) The certification may be executed by any person duly authorized to bind the supplier with respect to the claim. e. For supplier claims of $100,000 or less, the contracting officer must, if requested in writing by the supplier, render a decision within 60 days of the request. For supplier-certified claims over $100,000, the contracting officer must, within 60 days, decide the claim or notify the supplier of the date by which the decision will be made. f. The contracting officer's decision is final unless the supplier appeals or files a suit as provided in the Act. g. When a claim is submitted by or against a supplier, the parties by mutual consent may agree to use an alternative dispute resolution (ADR) process to assist in resolving the claim. A certification as described in d(2) of this clause must be provided for any claim, regardless of dollar amount, before ADR is used. h. The Postal Service will pay interest in the amount found due and unpaid from: (1) The date the contracting officer receives the claim (properly certified, if required); or (2) The date payment otherwise would be due, if that date is later, until the date of payment. EXHIBIT 3 Case 5:16-cv-01265-D Document 11-3 Filed 03/31/17 Page 1 of 2 PS Form 7355, October 2006 (Page 2 of 2) Privacy Act Statement: To the extent that the information you provide is about an individual, the Privacy Act will apply. Your information will be used to enter into an agreement to perform cleaning services. Collection is authorized by 39 USC 401, 404, 410, and 2008. Providing the information is voluntary, but if not provided, we may not process the agreement. We may only disclose your information as follows: in relevant legal proceedings; to law enforcement when the USPS® or requesting agency becomes aware of a violation of law; to a congressional office at your request; to entities or individuals under contract with USPS; to entities authorized to perform audits; to labor organizations as required by law; to federal, state, local or foreign government agencies regarding personnel matters; to the Equal Employment Opportunity Commission; to the Merit Systems Protection Board or Office of Special Counsel; and to financial entities regarding financial transaction issues. For more information regarding our privacy policy visit us at usps.com. EXHIBIT 3 Case 5:16-cv-01265-D Document 11-3 Filed 03/31/17 Page 2 of 2 ness EXHIBIT 4 Case 5:16-cv-01265-D Document 11-4 Filed 03/31/17 Page 1 of 1 Upton v. U.S., Not Reported in F.Supp.3d (2015) 2015 WL 5472502 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2015 WL 5472502 Only the Westlaw citation is currently available. United States District Court, W.D. Oklahoma. Randy L. UPTON and Victoriana Upton, Plaintiffs, v. UNITED STATES of America, Defendant, The Travelers Indemnity Company as Subrogee of Downs Electric, LLC, Intervener. No. CIV–14–270–M. | Signed Sept. 17, 2015. Attorneys and Law Firms Matthew D. Reinstein, Michael J. Moore, Lawter & Pitts, Oklahoma City, OK, for Plaintiff. Matthew P. Anderson, U.S. Attorney's Office, Oklahoma City, OK, for Defendant. ORDER VICKI MILES–LaGRANGE, Chief Judge. *1 Before the Court is defendant United States of America's (“United States”) Motion to Dismiss, filed November 26, 2014. On May 29, 2015, plaintiffs and intervener 1 filed their joint response, and on June 2, 2015, the United States filed its reply. On June 25, 2015, Plaintiffs filed their joint supplemental response to the United States' motion to dismiss, and on June 29, 2015, the United States filed its sur-reply. Based upon the parties' submissions, the Court makes its determination. I. Introduction On August 8, 2011, plaintiff Randy Upton was performing electrical work for Downs Electric, LLC, a subcontractor for Bhate Environmental Associates (“Bhate”). Bhate had a contract with the United States to tear down building 369 and perform some renovations at building 394 at the Altus Air Force Base. Mr. Upton was severely injured when he drove a scissor lift off the edge of a loading dock located on the southwest side of building 394. The loading dock was constructed of white concrete, which matched the light colored concrete on the ground below, and allegedly failed to have any visible markings, bollards, or signs identifying the edges of the loading dock. On June 26, 2013, Plaintiffs submitted administrative claims to the United States based on the August 8, 2011 accident. On December 6, 2013, the United States denied any liability for the claims. As a result, plaintiffs filed the instant action on March 18, 2014, and on April 2, 2014, intervener filed its Petition in Intervention. The United States now moves, pursuant to Federal Rule of Civil Procedure 12(b)(1), to dismiss this action for lack of subject matter jurisdiction. II. Discussion The United States Congress has waived sovereign immunity for tort actions against the United States subject to the limitations and exceptions contained in the Federal Tort Claim Act (“FTCA”). The United States asserts, in part, that this Court lacks subject matter jurisdiction over Plaintiffs' claims because it has not waived sovereign immunity for the acts or omissions of independent contractors. Specifically, the United States contends that it delegated responsibility for safety matters and accident prevention to Bhate and because it was Bhate's responsibility to maintain a safe working environment and protect against accidents, any failure to make the worksite safe was a failure on the part of Bhate, an independent contractor. Thus, the United States contends that Plaintiffs' suit is outside this Court's jurisdiction. Plaintiffs, on the other hand, assert that the contract in which the United States contends it delegated responsibility for safety matters and accident prevention to Bhate does not cover the site, scope of work, and loading dock where Mr. Upton was injured. Plaintiffs further assert that the site and loading dock were maintained by the United States and it was the responsibility of the United States to maintain the loading dock in a safe manner. Plaintiffs, therefore, contend that their claims fall within the FTCA and this Court has subject matter jurisdiction. *2 The FTCA provides a limited waiver of sovereign immunity for damages “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, under circumstances where the United States, if a private person, would be liable to the claimant Case 5:16-cv-01265-D Document 11-5 Filed 03/31/17 Page 1 of 3 Upton v. U.S., Not Reported in F.Supp.3d (2015) 2015 WL 5472502 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). Further, the FTCA defines an “employee of the government”, in pertinent part, as follows: officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty ..., and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States.... 28 U.S.C. § 2671. Additionally, the FTCA defines a federal agency as follows: the term “Federal agency” includes the executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the Unites States, but does not include any contractor with the United States . 28 U.S.C. § 2671 (emphasis added). “Since the United States can be sued only to the extent that it has waived its immunity, due regard must be given to the exceptions, including the independent contractor exception, to such waiver.” United States v. Orleans, 425 U.S. 807, 814 (1976). In the case at bar, the parties do not dispute that Bhate was an independent contractor. What the parties dispute is whether Bhate was responsible for safety matters and accident prevention at the loading dock where the accident happened—Plaintiffs assert the United States' delegation of responsibility for safety matters and accident prevention did not include the loading dock as it was not part of Bhate's scope of work, and the United States asserts that its delegation of responsibility did include the loading dock. The contract between the United States and Bhate provided that Bhate would do the following work in relation to building 394: renovate building 394 to accept material stored in hangar 503 and building 296 and relocate the dock and ramp. See Modification of Contract, attached as Exhibit 2 to the United States' reply, at 6. Additionally, Bhate was responsible for providing “all travel, plant, supervision, materials, design, and labor necessary to demolish Buildings 503 and 296, and consolidate all storage from these facilities into facility 394 at Altus Air Force Base, Oklahoma .” See Exhibit 2 to the United States' motion to dismiss at 34. However, Salvatore Torcivia, a corporate representative for Bhate, testified at his deposition that the loading dock was outside the scope of the work to be performed by Bhate under the contract and that Bhate did not contractually agree to keep the loading dock safe . 2 See deposition of Salvatore Torcivia, attached as Exhibit 3 to Plaintiffs' response, at p. 24, lns 15–22; p. 25, ln 25–p. 26, ln 5. *3 Further, the contract incorporated various provisions of the Federal Acquisition Regulations, codified at 48 C.F.R. See Contract, attached as Exhibit 4 to the United States' Motion to Dismiss, at 18–20. Specifically, the contract incorporates 48 C.F.R. § 52.236–7, which provides, in pertinent part: The Contractor shall, without additional expense to the Government, be responsible for obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes, and regulations applicable to the performance of the work. The Contractor shall also be responsible for all damages to persons or property that occur as a result of the Contractor's fault or negligence. 48 C.F.R. § 52.236–7, and incorporates 48 C.F.R. § 52.236–13, which provides, in pertinent part: The Contractor shall provide and maintain work environments and procedures which will (1) safeguard the public and Government personnel, property, materials, supplies, and equipment exposed to Contractor operations and activities;.... Case 5:16-cv-01265-D Document 11-5 Filed 03/31/17 Page 2 of 3 Upton v. U.S., Not Reported in F.Supp.3d (2015) 2015 WL 5472502 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 48 C.F.R. § 52.236–13(a)(1). Having carefully reviewed the parties' submissions, the Court finds that the United States' delegation of responsibility for safety matters and accident prevention to Bhate did include the loading dock where the accident occurred. Specifically, the Court finds that under the contract, Bhate's scope of work included the loading dock. At the time of the accident, the contract provided that Bhate would relocate building 394's dock and ramp. Additionally, the contract provided that Bhate was responsible for all travel necessary to demolish buildings 503 and 296 and consolidate all storage from these facilities into building 394. Mr. Torcivia testified that the loading dock was the only way to get any kind of equipment into the building. See deposition of Salvatore Torcivia, attached as Exhibit 1 to the United States' reply, at p. 27, lns 17–19. Thus, the use of the loading dock to consolidate all storage from buildings 503 and 296 into building 394 would be necessary, and under the contract Bhate would be responsible for the safety of the loading dock. Further, the Court finds that even if the loading dock were not within Bhate's “scope of work”, the United States' delegation of responsibility for safety matters and accident prevention to Bhate set forth in the contract would still include the loading dock. Bhate was responsible for maintaining work environments and procedures which will safeguard the public and government personnel, property, materials, supplies, and equipment exposed to Bhate's operations and activities. See 48 C.F.R. § 52– 236–13(a)(1). “The span of a construction site is not limited to the precise area where the construction is taking place; it includes adjacent areas as well .” Roditis v. United States, 122 F.3d 108, 110 (2d Cir.1997). A loading dock an employee of a subcontractor was using to move equipment from building 394 to conduct renovations in another facility clearly would fall within the span of the construction site and would fall within Bhate's operations and activities. *4 Accordingly, because this Court finds that the United States' delegation of the responsibility for safety matters and accident prevention to Bhate included the loading dock where the accident occurred, any failure to make the loading dock safe was a failure on the part of Bhate, an independent contractor. Thus, the United States has not waived sovereign immunity for the acts or omissions alleged by Plaintiffs in this case, and this action, therefore, is outside this Court's jurisdiction. III. Conclusion For the reasons set forth above, the Court GRANTS the United States' Motion to Dismiss [docket no. 24] and DISMISSES this action for lack of subject matter jurisdiction. IT IS SO ORDERED. All Citations Not Reported in F.Supp.3d, 2015 WL 5472502 Footnotes 1 Because the claims of plaintiffs and intervenor all arise out of the same alleged duty and the same alleged conduct, the Court will refer to these parties generally as “Plaintiffs” for purposes of this Order. 2 To the extent Mr. Torcivia's testimony relates to the work actually performed by Bhate, the Court finds the testimony is admissible. However, because there are no technical terms in the contract that need clarifying, the Court finds the testimony is inadmissible to the extent Mr. Torcivia is interpreting the contract language. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 5:16-cv-01265-D Document 11-5 Filed 03/31/17 Page 3 of 3 Cerrone v. U.S., Not Reported in F.Supp.2d (2006) 2006 WL 2795614 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Kwitek v. U.S. Postal Service, W.D.N.Y., February 18, 2010 2006 WL 2795614 Only the Westlaw citation is currently available. United States District Court, W.D. New York. Anthony CERRONE, Plaintiff, v. UNITED STATES of America, Defendant. No. 03-CV-848S. | Sept. 26, 2006. Attorneys and Law Firms Russell T. Quinlan, Paul William Beltz, P.C., Buffalo, NY, for Plaintiff. Lynn S. Edelman, U.S. Attorney's Office, Buffalo, NY, for Defendant. DECISION AND ORDER WILLIAM M. SKRETNY, District Judge. I. INTRODUCTION *1 Plaintiff Anthony Cerrone commenced this action against Defendant United States of America under the Federal Tort Claims Act (“FTCA”). Presently before this Court is Defendant's Motion to Dismiss Plaintiff's Complaint pursuant to Rules 12(b)(1) and (6), and alternatively, Rule 56 of the Federal Rules of Civil Procedure. 1 Having considered the parties' written submissions and the applicable law, this Court will grant Defendant's motion and dismiss Plaintiff's Complaint. II. BACKGROUND A. Facts On or about May 10, 1999, the Army Corps of Engineers (“the Corps”) issued a Solicitation for Bid for the construction of a Consolidated Maintenance Facility at the United States Air Base located in Niagara Falls, New York. (Defendant's Statement, ¶ 1. 2 ) On June 30, 1999, the Corps awarded Sicoli and Massara (“Sicoli”), a local contractor, the contract to build the new facility. (Defendant's Statement, ¶ 3.) Under the terms of the contract, Sicoli was required to, among other things, procure and maintain proper insurance (Defendant's Statement, Exhibit B, pp. 214, 244 3 ), to superintend the worksite (Defendant's Statement, Exhibit B, p. 231), to comply with all applicable laws, regulations and codes (Defendant's Statement, Exhibit B, p. 231), and to be generally responsible for worksite safety and accident prevention (Defendant's Statement, Exhibit B, pp. 229-230). Plaintiff worked as a laborer for Sicoli on the construction of the new maintenance facility. (Defendant's Statement, ¶ 4.) On August 16, 2000, Plaintiff fell and injured himself while pouring concrete. (Defendant's Statement, ¶ 5.) At the time, Plaintiff was standing on a grid of steel bars approximately 12 inches apart raking concrete when he slipped. His feet dropped into the opening between the bars and his upper body fell backwards onto the bars. (Plaintiff's Statement, Exhibit E, pp. 39-41. 4 ) Plaintiff suffered multiple injuries as a result of this accident. B. Procedural History Plaintiff filed his Complaint in the United States District Court for the Western District of New York on November 12, 2003, seeking damages in the amount of $20,000,000 on each claim. Defendant filed an Answer to the Complaint on April 22, 2004, and an Amended Answer on August 18, 2004. Thereafter, Defendant filed the instant motion on November 16, 2005. After full briefing, this Court took the motion under advisement on February 10, 2006, without oral argument. III. DISCUSSION Defendant's motion, although brought under various provisions of the federal rules, principally seeks dismissal of Plaintiff's Complaint based on lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Case 5:16-cv-01265-D Document 11-6 Filed 03/31/17 Page 1 of 6 Cerrone v. U.S., Not Reported in F.Supp.2d (2006) 2006 WL 2795614 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). *2 In considering a Rule 12(b)(1) motion, the allegations contained in the Complaint are deemed true, and the court may consider affidavits and other material beyond the pleadings to resolve the jurisdictional question. 5 See id. (citing Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986)). It is the plaintiff's burden to establish proper jurisdiction by a preponderance of evidence. Lunney v. United States, 319 F.3d 550, 554 (2d Cir.2003); Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996). A. Plaintiff's First Cause of Action Plaintiff's first cause of action is brought under the FTCA and alleges that Defendant acted negligently by failing to (1) provide Plaintiff a safe place to work, (2) ensure the existence of adequate safety devices, such as planking, and (3) provide adequate supervision. (Complaint, ¶¶ 9-11.) Defendant argues that this Court lacks subject matter jurisdiction over these claims because sovereign immunity shields the United States from liability with respect to negligent acts by its independent contractors and the discretionary function exception to the FTCA applies. It is beyond cavil that the principle of sovereign immunity shields the United States from being sued without its consent and that the existence of consent is, consequently, a prerequisite for jurisdiction. See United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Adeleke v. United States, 355 F.3d 144, 150 (2d Cir.2004). In the FTCA, Congress waived sovereign immunity for suits arising from injury “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.” 6 l28 U.S.C. § 1346(b)(1). This waiver must be “strictly construed in favor of the government.” Akutowicz v. United States, 859 F.2d 1122, 1125 (2d Cir.1988). The FTCA defines government employees as including officers and employees of “any federal agency,” but excludes “any contractor with the United States.” 28 U.S.C. § 2671; United States v. Orleans, 425 U.S. 807, 813-14, 96 S.Ct. 1971, 1975-76, 48 L.Ed.2d 390 (1976). In addition to statutory exceptions to the government's waiver of immunity under the FTCA, “[e]xceptions to government liability ... include the independent contractor exception and causes of action which allege government negligence based on claims of nondelegable duties or which sound in strict liability.” Flanagan v. United States, 430 F.Supp.2d 106, 112 (W.D.N.Y.2006) (citing Roditis v. United States, 122 F.3d 108, 111-12 (2d Cir.1997) (per curiam) and Forshaw v. United States, No. 96-CV-150, 1998 WL 641357, *3-*4 (N.D.N.Y. Sept. 14, 1998)). “Thus, as a general rule, sovereign immunity precludes suits against the United States for injuries caused by its independent contractors.” Roditis, 122 F.3d at 111; see also Fisko, 395 F.Supp.2d at 62 (“If the injuries alleged in a complaint were caused by an independent contractor, the FTCA does not waive sovereign immunity for that claim, and it must be dismissed for lack of subject matter jurisdiction.”). *3 In addition, the FTCA bars “claim[s] based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty ... whether or not the discretion involved be abused.” 7 28 U.S.C. § 2680(a). Consequently, “the United States cannot be held liable for the selection and supervision of independent contractors, because the selection and supervision of contractors is a discretionary function.” Shivcharan v. United States, No. 04 CV 1296, 2005 WL 408046, at *2 (E.D.N.Y. Feb. 15, 2005) (citations omitted); see also United States v. Varig Airlines, 467 U.S. 797, 819-20, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984) (“When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind .”); Lituma v. United States, No. 04 Civ. 8955, 2005 WL 1705088, at *2 (S.D.N.Y. July 18, 2005) (finding the plaintiff's negligent supervision claim barred by the discretionary function exception to the FTCA). The most significant factor in distinguishing an independent contractor from an employee of the government is whether the United States “control[s] the detailed physical performance of the contractor.” See Logue v. United States, 412 U.S. 521, 527-28, 93 S.Ct. 2215, 2219-20, 37 L.Ed.2d 121 (1973). “The critical factor ... is whether the government retained the authority to control the detailed physical performance of the work or whether the worker's day-to-day operations in fact were Case 5:16-cv-01265-D Document 11-6 Filed 03/31/17 Page 2 of 6 Cerrone v. U.S., Not Reported in F.Supp.2d (2006) 2006 WL 2795614 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 supervised by the federal government.” Abrams-Fogliani v. United States, 952 F.Supp. 143, 145 (E.D.N.Y.1996) (citations omitted). The question of whether an entity is an independent contractor is one of law, not fact. See Leone v. United States, 910 F.2d 46, 49 (2d Cir.1990) (citing Logue, 412 U.S. at 528). In the present case, Plaintiff argues that this Court has jurisdiction because Defendant retained sufficient responsibility over the worksite such that it is subject to suit under the FTCA. The contract between Defendant and Sicoli, however, reveals otherwise. Shivcharan, 2005 WL 408046, at *2 (contract should be examined to determine whether it provides for detailed day-to-day supervision by the government, or rather grants the contractor autonomy in the performance of the work); see also Moreno v. United States, 965 F.Supp. 521, 524 (S.D.N.Y.1997) (court must focus on terms of the contract to determine the nature of the relationship between the United States and the contractor). As previously noted, the terms of the contract required Sicoli to, among other things, procure and maintain proper insurance (Defendant's Statement, Exhibit B, pp. 214, 244), to directly superintend the worksite at all times (Defendant's Statement, Exhibit B, p. 231), to comply with all applicable laws, regulations and codes (Defendant's Statement, Exhibit B, p. 231), and to be generally responsible for worksite safety and accident prevention (Defendant's Statement, Exhibit B, pp. 229-230). The contract also delegated to Sicoli the obligation to “provide and maintain work environments and procedures which will ... safeguard the public and Government personnel.” (Defendant's Statement, Exhibit B, p. 230.) *4 In contrast to Sicoli's specific obligations, Defendant reserved general oversight over the project “to ensure strict compliance with the terms of the contract.” (Defendant's Statement, Exhibit B, p. 223.) It also reserved the right to inspect for non-compliance and advise Sicoli of the same if discovered. (Defendant's Statement, Exhibit B, p. 230.) Defendant further reserved the option of halting work if Sicoli refused to rectify any noncompliance discovered by Defendant's Contracting Officer. (Defendant's Statement, Exhibit B, p. 230.) These rights retained by Defendant were a check on Sicoli, which in the first instance had the responsibility to “maintain an adequate inspection system and perform such inspections as will ensure that the work performed under the contract conforms to contract requirements.” (Defendant's Statement, Exhibit B, p. 223.) Importantly, the presence or absence of a government inspector did not relieve Sicoli of its obligations under the contract. (Defendant's Statement, Exhibit B, p. 223.) The existence of contract provisions such as those discussed above and others contained in the contract weigh against a finding that Defendant retained day-to- day management of the worksite or controlled Sicoli's physical performance of the work. First, “[t]he fact that the contract required compliance with federal standards and contract specifications does not constitute day-to-day control by the government.” Corey v. United States, No. 95-CV-393, 1996 WL 406842, at *2 (N.D.N.Y. July 11, 1996). Second, it is well settled that the government's reservation of broad supervisory power does not establish the agency relationship necessary for FTCA jurisdiction. See, e.g., Roditis, 122 F.3d at 111 (government's retention of a right to inspect does not convert a contractor into a federal employee); Leone, 910 F.2d at 50 (no FTCA jurisdiction where government acts as an overseer); Fisko, 395 F.Supp.2d at 63 (finding that entity was a contractor because the government did not control physical performance of duties or retain day-to-day control); Brown v. United States, No. 92-CV-82, 1994 WL 319015, at *14 (W.D.N.Y. June 8, 1994) (“the fact that the United States retained the right to inspect the work under construction to see that the provisions of the contract were carried out and also retained the right to stop work if they were not is not sufficient in itself to make the United States liable for damage resulting from negligence of the contractors in their performance of the contract.”). Third, the government's action in conducting inspections and its reservation of the right to notify Sicoli of suspected violations is insufficient to constitute day-to- day supervision. See Forshaw, 1998 WL 641357, at *3. Finally, the existence of a contractual requirement for the contractor to obtain and maintain insurance, which Sicoli was obligated to do, serves as evidence that Sicoli is an independent contractor. See Fisko, 395 F.Supp.2d at 66. *5 Moreover, as a factual matter, Sicoli supervised the day-to-day operations of the worksite. William Case 5:16-cv-01265-D Document 11-6 Filed 03/31/17 Page 3 of 6 Cerrone v. U.S., Not Reported in F.Supp.2d (2006) 2006 WL 2795614 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 Hoffman was the project superintendent and Doug Williamson was the project quality control manager. (Defendant's Statement, Exhibit D, p. 47. 8 ) Both were Sicoli employees. (Defendant's Statement, Exhibit D, p. 47.) Plaintiff testified at his deposition that he had at least daily contact with Hoffman and did not receive instructions regarding the performance of his work from anyone but Hoffman. (Plaintiff's Statement, Exhibit H, pp. 10-11.) In particular, he testified that although the Corps' project engineer, Michael Hrywnak, advised him to comply with safety guidelines on several occasions, Hrywnak never directed him to do a particular job or instructed him on how to perform his job duties. (Plaintiff's Statement, Exhibit H, pp. 13-14.) On the date of his injury, Plaintiff received instruction from either Hoffman or Russell Trenzo, another Sicoli employee. (Plaintiff's Statement, Exhibit H, pp. 34-35.) Plaintiff did not see Hrywnak on the day of the accident. (Plaintiff's Statement, Exhibit H, p. 36.) All equipment, including safety equipment, that was used at the worksite was provided by Sicoli. None of the equipment was provided by the Corps. (Plaintiff's Statement, Exhibit H, p. 22-23.) Considering the above, this Court finds no basis in either law or fact to conclude that Sicoli was anything other than an independent contractor. 9 Consequently, because sovereign immunity precludes suits against the United States for injuries caused by its independent contractors, Roditis, 122 F.3d at 111, and because negligent supervision claims are barred by the discretionary function exception to the FTCA, 10 see Schivcharan, 2005 WL 408046, at *2, this Court lacks subject matter jurisdiction over Plaintiff's first cause of action and it will therefore be dismissed. B. Plaintiff's Second Cause of Action Plaintiff's second cause of action alleges that Defendant failed to provide Plaintiff with a safe place to work in violation of New York Labor Law §§ 200, 240 and 241, and unspecified provisions of the Occupational Safety and Health Act (“OSHA”). (Complaint, ¶¶ 12-15.) Defendant argues that it has not waived its sovereign immunity for alleged violations of state laws that impose strict liability on property owners. It further argues that by its terms, OSHA does not apply to the federal government. Section 200 of the New York Labor Law codifies the common-law duty of owners to furnish a safe work place. New York Labor Law §§ 200, et seq. (McKinney 2002); see Kaczmarek v. Bethlehem Steel Corps., 884 F.Supp. 768, 774 (W.D.N.Y.1995) (citing Lombardi v. Stout, 80 N.Y.2d 290, 590 N.Y.S.2d 55 (1992)). A property owner is liable under § 200 “for incidents which occur in areas over which the owner maintains control.” Kaczmarek, 884 F.Supp. at 774 (citing Bidetto v. New York City Housing Auth., 25 N.Y.2d 848, 303 N.Y.S.2d 695 (1969)). *6 As discussed above, Defendant was not in control of the worksite and did not contribute to and is not responsible for the circumstances leading to Plaintiff's injury. All equipment, including safety equipment, that was used at the worksite was provided by Sicoli, and only Sicoli's employees supervised Plaintiff. None of the equipment was provided by the Corps. (Plaintiff's Statement, Exhibit H, p. 22-23.) Consequently, Defendant is not liable under § 200. See Forshaw, 1998 WL 641357, at *4 (“There is no liability under § 200 when the injury arises out of a defect in the subcontractor's own plant, tools and methods, or through negligent acts of the subcontractor occurring as a detail of the work.” (quotation and citation omitted)); Persichilli v. Triborough Bridge & Tunnel Auth., 16 N.Y.2d 136, 262 N.Y.S.2d 476, 480 (1965). Section 240 of the New York Labor Law imposes a non-delegable duty on property owners to provide specified safety devices. New York Labor Law § 240 (McKinney 2002); Haimes v. New York Tel. Co., 46 N.Y.2d 132, 412 N.Y.S.2d 863 (1978). Section 241 of the New York Labor Law also imposes a non-delegable duty on property owners to comply with various safety measures in connection with construction, excavation and demolition work. New York Labor Law § 241 (McKinney 2002); Forshaw, 1998 WL 641357, at *4. It is well settled that the United States may not be held liable for violations of §§ 240 and 241 because these sections impose absolute liability, and the FTCA's limited waiver of sovereign immunity does not extend to claims based on liability without fault. See Laird v. Nelms, 406 U.S. 797, 802-03, 92 S.Ct. 1899, 1902, 32 L.Ed.2d 499 (1972); Forshaw, 1998 WL 641357, at *5. In addition, these sections impose non-delegable duties upon property owners, which directly conflicts with the federal government's authority under the Federal Acquisition Regulations, 48 C.F.R. Part I, et. seq., to Case 5:16-cv-01265-D Document 11-6 Filed 03/31/17 Page 4 of 6 Cerrone v. U.S., Not Reported in F.Supp.2d (2006) 2006 WL 2795614 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 delegate responsibilities to general contractors. See Doud, 797 F.Supp. at 143; McCutcheon v. United States, No. 94- CV-596, 1996 WL 607083, at *5 (W.D.N.Y. Oct. 15, 1996) (imposing non-delegable duty on the federal government would exceed the waiver of its sovereign immunity as contained in the FTCA). “Since §§ 240 and 241 ... create non-delegable duties which would allow the imposition of liability on a non-negligent defendant, they cannot be applied against the United States.” Moody, 753 F.Supp. at 1048 n. 9. Accordingly, Plaintiff's §§ 240 and 241 claims will be dismissed. See Roditis, 122 F.3d at 111 (“any state law nondelegable duty cannot, on its own, override the United States' sovereign immunity from suits for injuries caused by its independent contractors”). Finally, Plaintiff's second cause of action includes an unspecified violation of OSHA. Further clarification of Plaintiff's claim is unnecessary, however, because OSHA does not apply to the federal government. OSHA imposes certain minimum workplace standards on employers. See 29 U.S.C. §§ 651, et. seq. However, the statutory definition of “employer” specifically excludes the United States. See 29 U.S.C. § 652(5) (the term employer “does not include the United States”). Consequently, OSHA does not provide a basis for liability against the United States. Corey, 1996 WL 406842, at *6. IV. CONCLUSION *7 For the foregoing reasons, Defendant's motion will be granted. V. ORDERS IT HEREBY IS ORDERED, that Defendant's Motion to Dismiss (Docket No. 26) is GRANTED. FURTHER, that the Clerk of the Court shall take the steps necessary to close this case. SO ORDERED. All Citations Not Reported in F.Supp.2d, 2006 WL 2795614 Footnotes 1 In support of its motion, Defendant filed a memorandum of law, a Statement Of Material Facts As To Which There Is No Issue To Be Tried, with appendix, and a reply memorandum of law. In opposition, Plaintiff filed a memorandum of law and a Statement Of Material Facts As To Which There Is No Issue To Be Tried, with attached exhibits. 2 Referring to Defendant's Statement Of Material Facts As To Which There Is No Material Issue To Be Tried, which contains citations to the record evidence. 3 Exhibit B to Defendant's Statement is a copy of the Solicitation and Contract. 4 Referring to Plaintiff's Statement Of Material Facts As To Which There Is No Material Issue To Be Tried. Exhibit E thereto is a copy of Plaintiff's deposition. 5 This Court's consideration of facts relevant to the jurisdictional issue presented does not necessarily convert Defendant's motion to one for summary judgment. See Fisko v. U.S. Gen. Servs. Admin., 395 F.Supp.2d 57, 60 (S.D.N.Y.2005) (citing Perezic v. Crespo, No. 94 Civ. 8238, 1996 WL 233687, at *3 (S.D.N.Y. May 7, 1996)). 6 I n FTCA actions, the court is bound to apply the law of the place where the accident occurred. See Makarova, 201 F.3d at 114 (citing Richards v. United States, 369 U.S. 1, 10-15, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962)). 7 Commonly referred to as the discretionary function exception, its purpose is to “prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic and political policy through the medium of an action in tort.” United States v. Gaubert, 499 U.S. 315, 323, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (citation omitted). 8 Exhibit D is an excerpt of Michael Hrywnak's deposition testimony. Hrywnak was the Corps' project engineer. 9 Plaintiff relies principally on three cases-Phillips v. United States, 956 F.2d 1071 (11th Cir.1992), Camozzi v. Roland/Miller & Hope Consulting Group, 866 F.2d 287 (9th Cir.1989), and Pelham v. United States, 661 F.Supp. 1063 (D.N.J.1987). In this Court's view, none of these cases is persuasive. First, these cases arise outside of the Second Circuit and are of no precedential value. Second, the cases are factually distinguishable because the government's oversight obligations at issue in this case were not specific, nor mandatory. This Court, and others, have previously recognized this distinction. See Brown, 1994 W L 319015, at *16; Doud v. United States, 797 F.Supp. 138, 145 (N.D.N.Y.1992); Moody v. United States, 753 F.Supp. 1042, 1054-55 (N.D.N.Y.1990). Case 5:16-cv-01265-D Document 11-6 Filed 03/31/17 Page 5 of 6 Cerrone v. U.S., Not Reported in F.Supp.2d (2006) 2006 WL 2795614 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 10 To the extent Plaintiff claims that the Corps was negligent in exercising its retained power to oversee Sicoli's compliance with the contract as it related to its safety provisions, that claim is barred by the discretionary function exception to the FTCA. See Varig Airlines, 467 U.S. at 819-20 (“When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind.”). End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 5:16-cv-01265-D Document 11-6 Filed 03/31/17 Page 6 of 6