United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS, UNITED STATES DISTRICT JUDGE.
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.
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).
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 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).
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 ...