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POLCARI v. JOHN F. KENNEDY CTR. FOR THE PERFORMING

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


May 3, 1989

Louise Polcari, Plaintiff,
v.
John F. Kennedy Center for the Performing Arts, Defendant

The opinion of the court was delivered by: RICHEY

ORDER

 CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE.

 In the above-entitled suit, plaintiff is suing the John F. Kennedy Center for the Performing Arts for damages associated with injuries she allegedly sustained when she slipped on some water in a restroom at the Kennedy Center. Plaintiff claims that the Kennedy Center's employees acted negligently in failing to discover, block off, remove, or warn of the dangerous condition allegedly causing her injury.

 Now before the Court is defendant's motion to dismiss this suit pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. Defendant maintains that the Kennedy Center is a federal agency within the meaning of the Federal Tort Claims Act ("FTCA") and, therefore, a FTCA claim against the United States is plaintiff's exclusive remedy. Upon consideration of defendant's motion, the supporting and opposing legal memoranda, and the underlying law, the Court will grant defendant's motion.

 Plaintiff does not dispute that the FTCA provides the exclusive remedy for personal injuries caused by the negligent acts or omissions of federal employees while acting within the scope of their employment. 28 U.S.C. § 2679(a). Instead, plaintiff invoked the Court's diversity jurisdiction to file this suit directly against the Kennedy Center because plaintiff was not certain that the Kennedy Center was a "federal agency" within the meaning of the FTCA. *fn1"

 The Court of Appeals for this Circuit has held that the Smithsonian Institution is a federal agency within the meaning of the FTCA. Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institution, 184 U.S. App. D.C. 397, 566 F.2d 289, 296 (D.C. Cir. 1977), cert. denied, 438 U.S. 915, 57 L. Ed. 2d 1160, 98 S. Ct. 3144 (1978). The Court of Appeals reasoned that "although the Smithsonian has a substantial private dimension, . . . the nature of its function as a national museum and center of scholarship, coupled with the substantial governmental role in funding and oversight, make the institution an 'independent establishment of the United States,' within the 'federal agency' definition." Id.2

 Based on the factors relied upon in Expeditions Unlimited, the Court concludes that the Kennedy Center constitutes a federal agency covered by the FTCA. This conclusion logically flows from the reasoning of the Court of Appeals in Expeditions Unlimited since the Kennedy Center was established, by statute, as a bureau of the Smithsonian Institution, which was clearly found in that case to be a federal agency within the meaning of the FTCA. 20 U.S.C. §§ 76h et seq.

 Moreover, even putting aside Kennedy Center's connection to the Smithsonian, the Center nonetheless qualifies as a federal agency because of its national function as well as the Government's substantial funding and oversight of its functions. In addition to being a cultural center for the nation, the Kennedy Center is "the sole national memorial to the late John Fitzgerald Kennedy within the city of Washington and its environs." 20 U.S.C. § 76q. There is substantial government oversight of the Kennedy Center's performance of these national functions as the Center is governed by a Board of Trustees comprised of thirty general trustees appointed by the President of the United States and fifteen ex officio members, the vast majority of whom hold high positions in the federal government. 20 U.S.C. § 76h. This Board must report annually to Congress and the Smithsonian Institution on the Center's operations and finances. 20 U.S.C. § 76l(c) Finally, the Kennedy Center receives funding from the federal government for "maintenance, security, information, interpretation, janitorial and all other services necessary to the nonperforming arts functions of the John F. Kennedy Center for the Performing Arts." 20 U.S.C. § 76l(e).

 Accordingly, it is, by the Court, this 1st day of May, 1989,

 ORDERED that defendant's motion to dismiss the above-entitled suit pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction shall be, and hereby is, granted.


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