United States Court of Appeals
For the First Circuit
No. 10-1152
COURTNEY R. CARROLL, et al.,
Plaintiffs, Appellants,
v.
UNITED STATES, et al.,
Defendants, Appellees.
BOARD OF DIRECTORS OF THE RAINFOREST KIDS CHILD
DEVELOPMENT CENTER, et al.
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Lipez, Siler,* and Howard,
Circuit Judges.
Salvador J. Antonetti-Stutts, with whom Courtney R. Carroll
and O'Neill & Borges were on brief, for appellants.
Ginette L. Milanes, with whom Rosa Emilia Rodriguez-Velez,
United States Attorney, Nelson Pérez-Sosa, Assistant United States
Attorney, Chief, Appellate Division, and Luke Cass, Assistant
United States Attorney, were on brief, for appellees.
October 31, 2011
*
Of the Sixth Circuit, sitting by designation.
LIPEZ, Circuit Judge. This tort action was brought by
the parents of a young child who was seriously injured when she was
struck in the head by an object thrown from a lawnmower as she rode
a tricycle at her childcare center. Separate entities were
providing the lawn maintenance and the childcare on the day of the
accident under contracts with the federal government. Appellants
brought a suit for damages against the United States under the
Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680,
and alleged supplemental claims under Puerto Rico law against other
defendants, including the childcare provider and the maintenance
company. The district court concluded that the FTCA's independent
contractor defense barred liability under the statute, and it thus
dismissed the action for lack of subject matter jurisdiction. We
agree that the case must be dismissed, although we conclude that
the FTCA's discretionary function exception provides the rationale.
I.
On the morning of October 17, 2006, three-year-old V.C.1
was riding a tricycle in the parking lot of the Rainforest Kids
Child Development Center ("Rainforest Kids") in San Juan at the
same time that an employee of Genett Group, Inc. ("Genett") was
mowing the grass adjacent to the lot. A projectile dislodged by
the lawnmower struck V.C. in the forehead, above her right eye.
1
Consistently with the federal rules, we refer to the child
by her initials. See Fed. R. Civ. P. 5.2(a); Fed. R. App. P.
25(a)(5).
-2-
V.C.'s mother, appellant Courtney Carroll, was summoned to the
scene and accompanied her daughter in an ambulance to a nearby
hospital, where the girl had emergency surgery. V.C. was
discharged from the hospital two days later. She will require
ongoing observation to determine whether the injury caused
permanent impairment.
Rainforest Kids operates the childcare facility on land
adjacent to the Federico Degetau Federal Building under a license
from the General Services Administration ("GSA"). Genett has a
contract with GSA to provide maintenance and landscaping services
for the Federico Degetau property, including at Rainforest Kids.
Carroll and her husband, Ricardo Acosta Rodriguez, brought suit
alleging, inter alia, that the United States was liable for V.C.'s
injuries under the FTCA because it failed to coordinate the
activities of the two contractors to ensure the safety of children
enrolled at Rainforest Kids.2 They claimed that their family had
suffered $9.5 million in physical, emotional, and economic damages
as a result of V.C.'s injury.
The United States disputed its liability for the accident
based on two limitations on the jurisdiction granted by the FTCA
2
The other defendants were the corporation doing business as
Rainforest Kids (Corporacion para la Asesoria y Desarrollo de
Proyectos Educativos (CADEPE)), Rainforest Kids' Board of
Directors, the childcare center's director (Aida L. Herrans
Barreras) and insurance company (Universal Insurance Company), and
Genett and its insurer (ACE Insurance Company). This appeal
addresses only the liability of the United States.
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for tort claims against the government: the independent contractor
defense and the discretionary function exception. Under the
former, the government may not be held responsible for negligent
acts or omissions committed by employees of government contractors
whose daily operations are not closely supervised by United States
officials – in essence, eliminating vicarious liability as a theory
of recovery against the federal government. See United States v.
Orleans, 425 U.S. 807, 815 (1976); Wood v. United States, 290 F.3d
29, 36 n.4 (1st Cir. 2002).3 Under the latter, discretionary acts
of government employees are immunized from liability when based on
policy considerations. See 28 U.S.C. § 2680(a); Abreu v. United
States, 468 F.3d 20, 25-26 (1st Cir. 2006). The district court
found that the independent contractor defense required dismissal of
the case and, consequently, did not consider the applicability of
the discretionary function exception. Having rejected federal
jurisdiction under the FTCA, the court also dismissed the
supplemental causes of action under Puerto Rico law.
This timely appeal followed.
II.
The FTCA provides a "carefully limited waiver" of the
federal government's sovereign immunity for certain claims alleging
3
The FTCA waives the government's sovereign immunity for
actions by employees of "any federal agency" or "persons acting on
behalf of a federal agency in an official capacity," but states
that the term "Federal agency" "does not include any contractor
with the United States." 28 U.S.C. §§ 1346(b)(1), 2674, 2671.
-4-
harm caused by United States employees or agents. Bolduc v. United
States, 402 F.3d 50, 62 (1st Cir. 2005). It allows civil actions
against the government "for injury or loss of property . . . 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 in accordance with
the law of the place where the act or omission occurred." 28
U.S.C. § 1346(b)(1). The FTCA expressly does not waive the
government's immunity for claims arising from the acts or omissions
of independent contractors. See supra n.3 (quoting, inter alia,
28 U.S.C. § 2671). The waiver also has exceptions and, where they
apply, "the federal courts lack subject matter jurisdiction over
torts against the United States." Wood, 290 F.3d at 35; see also
Montijo-Reyes v. United States, 436 F.3d 19, 24 (1st Cir. 2006).
Plaintiffs argue on appeal that the district court erred
in dismissing the case based on the FTCA's independent contractor
defense because they do not seek to impose liability on the United
States for the actions of Rainforest Kids' or Genett's employees.
Rather, their target is the government's own failure to coordinate
the contractors' activities to ensure the safety of Rainforest
Kids' young charges. Nor does the discretionary function exception
apply, they assert, because V.C.'s injury did not arise from
policy-related discretionary conduct entitled to protection from
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tort liability. Plaintiffs argue that the government had no
discretion to fail to implement and enforce schedules for lawn
mowing and outdoor play that would have protected Rainforest Kids'
children from the risk of flying objects. Appellants also contend
that the district court erred in relying on the contract documents
submitted by the United States as proof of the terms of the
government's agreement with Genett because they were "unsigned,
incomplete, [and] unauthenticated."4
As we shall explain, the independent contractor defense
and the discretionary function exception are linked in the factual
circumstances of this case. Although we agree with the district
court that Rainforest Kids and Genett are independent contractors,
the discretionary function exception provides the ground for
dismissal because appellants argue that the United States is
directly, rather than vicariously, liable for the injury to V.C.
See Wood, 290 F.3d at 36 n.4 (limiting discussion to the
4
Appellants do not question the adequacy of the documentation
of the agreement between the United States and Rainforest Kids.
The record contains a signed "Revocable License for Non-Federal Use
of Real Property," with an attachment that specifies various
conditions of the relationship, including the childcare center's
responsibility not to "discriminate on the basis of race, religion,
color, national origin or disability with respect to enrollment of
children or employment of staff," to "maintain the facility in a
clean and safe manner," and to report suspected child abuse.
Docket 50-2, at 4, §§ (c), (f), (h).
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discretionary function exception where the plaintiff "fashion[ed]
her argument as one of direct rather than vicarious negligence").5
In evaluating a motion to dismiss under Rule 12(b)(1) for
lack of subject matter jurisdiction, we construe plaintiffs'
complaint liberally and ordinarily "may consider whatever evidence
has been submitted, such as . . . depositions and exhibits."
Aversa v. United States, 99 F.3d 1200, 1209-10 (1st Cir. 1996); see
also Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010).
Our inquiry, however, is tilted toward the government's claim of
immunity: "[T]he FTCA must be 'construed strictly in favor of the
federal government, and must not be enlarged beyond such boundaries
as its language plainly requires.'" Bolduc, 402 F.3d at 56
(quoting United States v. Horn, 29 F.3d 754, 762 (1st Cir. 1994)).
We begin with plaintiffs' assertion that we should not
take into account the Genett contract documents on which the
district court relied.6
5
As our review would in any event be de novo, we see no need
to prolong these proceedings by remanding to the district court to
consider the discretionary function exception in the first
instance. See Limone v. United States, 579 F.3d 79, 101 (1st Cir.
2009) ("We afford de novo review to a district court's
determination that the discretionary function exception does or
does not apply."); see also Del Toro Pacheco v. Pereira, 633 F.3d
57, 62 (1st Cir. 2011) ("We need not adopt the district court's
reasoning, but may affirm on any ground made apparent in the
record.").
6
Appellants also assert in their reply brief that the
district court erred by relying on evidence related to the merits
and by making credibility determinations without providing them an
opportunity to complete the record with "all pertinent evidence."
-7-
A. The Contract Exhibits
The agreement between the United States and Genett is
critical evidence in evaluating the government's relationship with
the contractor and, as will be seen, the nature of that
relationship is an essential component of our analysis of the
discretionary function exception. See Williams v. United States,
50 F.3d 299, 307 (4th Cir. 1995) (examining the contract between
the government and contractor in evaluating contractor's status);
Brooks v. A.R. & S. Enters., 622 F.2d 8, 11 (1st Cir. 1980)
("Contracts typically define the parameters of the contracting
parties' responsibilities."). The status of the documents
evidencing the contract is thus important to our inquiry.
Without question, the contract materials in the record
are less than ideal. The primary item is a comprehensive document
that describes the maintenance and landscaping tasks at the
Federico Degetau complex for which GSA sought to hire a
We reject these contentions, which arguably were belated and in any
event were undeveloped. To the extent these claims of error were
preserved, it suffices to say that the district court addressed
only the jurisdictional question, and it considered only the
materials submitted to it. The plaintiffs do not say that they
requested and were denied an opportunity for further discovery
before the court ruled on the motion to dismiss and, absent such a
request, they have no cause to criticize the court's process.
Indeed, appellants note that they had additional deposition
testimony that they did not submit to the district court,
apparently because they believed it related only to the merits.
-8-
contractor.7 This document, which spans more than sixty pages, is
what the district court treated as the contract, although the
document itself merely presents the government's expectations and
does not refer to Genett by name. Nor is it signed by either
party.8 Included in the same packet of materials, however, are
multiple forms labeled "Amendment of Solicitation/Modification of
Contract," several of which indicate that amendments were made to
an agreement between the government and Genett. One such form
7
The document, Number 50-4 in the district court docket,
begins with a standard government form titled "Solicitation, Offer
and Award" that apparently serves as a cover page. It is followed
by five pages listing specific supplies and services sought by the
government, with adjacent columns in which prospective contractors
presumably are expected to provide price quotations. The next
approximately fifty pages describe in detail various aspects of the
contract solicitation, including the scope of the work, the
responsibility for supervision, what supplies and materials will be
supplied by the government and the contractor, quality and safety
standards, pest management, and specific cleaning requirements for
the childcare center, health unit and physical fitness center.
8
Unfortunately, neither side in this case has been a model
litigant in providing timely and easily accessible supporting
materials. The government did not attach the Genett contract to
its motion to dismiss in the district court, although it later
submitted the documents described above. The government also
submitted an unsworn declaration from Rubin Padilla, a supervisory
GSA contract specialist, who stated that Genett was hired to do
maintenance work, including at Rainforest Kids. Docket 67-11. He
explained that government contracts are formalized when the
contractor signs the Offer (Form 33) and the government signs the
agreement (Form 26). Although his declaration states that those
two signed forms were attached, they were not.
Appellants did not help matters on appeal. They successfully
moved to waive the filing of an appendix, leaving us to cull
through the district court record ourselves for relevant materials.
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bears the signatures of both Genett's president and GSA's contract
specialist. See Docket 50-11.9
Although acknowledging that it may have been "technically
permissible" under Rule 12(b)(1) for the court to consider the
submitted materials, appellants maintain that the court erred in
accepting them as accurate depictions of the government's
relationship with Genett. They argue that the government's failure
to produce "complete and authenticated copies" of the contracts
should have led the district court to reject any defense based on
the contract provisions. Like the district court, however, we are
satisfied that the documents adequately memorialize the agreement
between the United States and Genett. The "contract" contains a
detailed description of the contractor's role and responsibilities,
see infra Section II.C.2.b, and the government has represented in
filings to the court that the document reflects the parties'
agreement. See Fed. R. Civ. P. 11(b)(3) (stating that, by
submitting a pleading or "other paper" to the court, an attorney
certifies to the best of her knowledge and belief, "formed after an
inquiry reasonable under the circumstances," that "the factual
9
The amendment, which was signed by both parties on September
19, 2005, added the requirement to clean the cafeteria dining area
at the Federico Degetau building and increased the monthly contract
amount by about $2,000. Although the identifying numbers on the
Solicitation form and the amendment are not identical, they
substantially overlap. The Solicitation, dated June 22, 2004, was
numbered "GS-02P-04-PFC-0028." The signed Amendment modified a
contract that was numbered "GS-02P-05-PFD-0028" and dated February
24, 2005.
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contentions have evidentiary support"). Appellants do not dispute
that the document depicts Genett's obligations, but suggest that it
may not be complete. Given the substantial document in the record,
the theoretical existence of additional provisions materially
modifying its terms is too speculative a possibility to give us
pause. We thus accept as not clearly erroneous the district
court's implicit finding that the challenged documents provide
sufficiently reliable evidence of the parties' agreement for
purposes of the jurisdictional ruling.
B. The Independent Contractor Defense
1. The Status of Rainforest Kids and Genett
The key factor governing whether an entity providing
services to the United States is an independent contractor is
whether the contractor, rather than the government, exercises day-
to-day supervision and control of its own activities. See United
States v. Orleans, 425 U.S. 807, 814 (1976) ("A critical element in
distinguishing an agency from a contractor is the power of the
Federal Government 'to control the detailed physical performance of
the contractor.'" (quoting Logue v. United States, 412 U.S. 521,
528 (1973))); id. at 815 (holding that independent contractor
status under the FTCA turns on "whether [the contractor's] day-to-
day operations are supervised by the Federal Government"); see also
Williams, 50 F.3d at 307 (finding independent contractor status
based on "a comprehensive instrument providing that [the
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contractor] was responsible for the maintenance of the Premises"
and "the daily operations of the Premises"); Larsen v. Empresas El
Yunque, Inc., 812 F.2d 14, 16, 14 (1st Cir. 1986) (holding that the
independent contractor defense applied where responsible party ran
the "day-to-day operation of [a] restaurant" that was located on
premises "owned and controlled by the United States").
Appellants appear to acknowledge that Genett and
Rainforest Kids were independent contractors and, indeed, there can
be no serious dispute as to that status. Attachment I of the
childcare center's licensing agreement specified that "[t]he
Provider," i.e., Rainforest Kids' board of directors, "is not an
employee or agent of the Government," and that, with certain
exceptions, "decisions and responsibilities with respect to
program, levels of enrollment, fees, tuition, hiring, policy
making, and any and all other aspects of the operation and conduct
of the Center's business shall be the exclusive right, prerogative,
and responsibility of the Provider." Docket 50-2, at 6, § 5
(emphasis added).
Similarly, the Genett contract stated that it was
governed by "performance-based specifications," and the document
explained that, under a performance-based contract, "the
contractor, rather than the Government, determines its own optimal
work schedules, frequencies, resource allocations, and performance
methods for meeting the Government's quality requirements." Docket
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50-4, at 12, § 3.B. (emphasis omitted). The Genett contract also
stated that "[i]t is the policy of GSA that Government direction or
supervision of the contractor's employees, either directly or
indirectly, will not be exercised." Docket 50-4, at 13, § C.4; see
also id. at 53, § B.1 (stating that "[n]either GSA employees nor
other Government employees are authorized to exercise either direct
or indirect supervision over the contractor's employees").
Thus, under the terms of the agreements, the two service
providers were independent contractors with control of – and
responsibility for – the day-to-day management and supervision of
their respective operations. The government argues that such
responsibility logically extends to the scheduling of lawn mowing
and outdoor playtime so as to avoid obvious hazards to the
Rainforest Kids children. Appellants, however, argue that
notwithstanding Rainforest Kids' and Genett's independent status,
the United States could not properly delegate such coordination to
the contractors. They argue, in effect, that the United States
lacked the discretion to leave the responsibility for ensuring
safety in the hands of the contractors. In addition, they appear
to argue that the government did not, in fact, delegate such
authority to the contractors.
On the one hand, appellants' arguments appear
inconsistent with the basic premise of the independent contractor
defense, i.e., that the government may not be held liable for
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injury caused by the acts or omissions of independent contractors'
employees in the day-to-day discharge of the duties the contractors
were hired to perform. On the other hand, we think it possible for
the government to hire independent contractors while retaining
responsibility for a discrete aspect of their operations,
including, for example, safety measures. See, e.g., Whisnant v.
United States, 400 F.3d 1177, 1179 (9th Cir. 2005) (holding that
the government had retained responsibility for safety even though
an independent contractor was responsible for maintenance at a
naval commissary). The government argues that it made no such
safety carve-out in this case, and that the discretionary function
exception protected its judgment to delegate the responsibility to
Genett and Rainforest Kids. Before considering the nature of that
exception and its application here, we look at whether
responsibility for safety was included in the delegation of
authority to the contractors.
2. Responsibility for Safety Measures
Both agreements expressly assign responsibility for
safety to the contractors. The Rainforest Kids license obliges the
childcare center to "comply with all Federal, State or local safety
policies," Docket 50-2, at 5, § 4(i), and, in apparent recognition
of the burden of liability, the license requires Rainforest Kids to
procure liability insurance and to maintain accident insurance on
"all students," id. § 7. Genett's agreement similarly states that
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"the contractor shall comply with all applicable Federal, State,
local, and industry safety and health standards and regulations,"
Docket 50-4, at 25, § 14,10 and it requires the contractor to employ
"a sufficient number of capable and qualified contract and
subcontract employees to enable it to properly, adequately, safely,
and economically manage, operate, maintain, and account for the
facility," id. at 48, § 2.B(1) (emphasis added). The contract also
states that "[t]he Contractor shall take all necessary precautions
to prevent injury to the public, building occupants, or damage to
property of others." Id. at 56, Part II, § 2.
Two other provisions in the Genett contract require
particular attention to the safety of children. A provision
addressing cleaning requirements states: "Due to the inquisitive
nature of children, report to the COR any observations that could
conceivably cause injury to a child. Extra effort should be made
to ensure that maintenance equipment and supplies are well secured
from the children." Id. at 49. A "Special Note" states:
In addition to the standard scope of work
described above, the expected outcome is to
ensure a safe and healthy environment for the
children utilizing the child centers. This
includes the daily removal and disposal of
soiled diapers, plus a special emphasis on
quality control. All efforts should be made
to protect the children. Due to the
10
Another provision, in the "Safety and Health" section of the
contract, states that "[w]here there is a conflict between
applicable regulations, the most stringent shall apply." Docket
50-4, at 56, Part I, § 3.B.
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inquisitive nature of children, report to the
CO [GSA "contracting officer"] and/or his/her
designated representative, any potential
hazards that could conceivably cause injury to
a child. Extra effort should be made to
ensure that maintenance equipment and supplies
are well secured from the children. Employees
cleaning Child Care Centers are subject to
Federal, State, and Local laws governing
health screening requirements prior to
commencing employment.
Id. at 51.
Specifically with respect to lawn-mowing, the deposition
testimony confirms that it was Genett's responsibility to set a
schedule that would meet the contract's quality and safety
requirements. Anabel Mulero, the GSA contracting officer's
representative ("COR") at the time of the accident, testified that
it was not part of her job to ensure that Genett followed a
schedule for mowing "because [the contract] is performance based,"
though she reported that she encouraged adherence to a schedule so
the contractor could avoid falling behind in the work. Docket 67-
5, at 3. Another COR, Maxwell Rivera, stated that the only
guidance given by GSA about mowing when people were in the area was
to work safely: "[T]he contract says they have to be working to
emphasize safety. So if there are kids, common sense, to me, would
tell me I would not cut the grass if I have kids present." Docket
67-2, at 12. Rivera further testified that Genett and Rainforest
Kids would need to work out scheduling to avoid conflicts "because
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we don't give them the schedule as to when to cut the grass. We
just want it cut and cleaned." Docket 67-5, at 20.
Wanda Lara, Genett's project manager, reported the same
allocation of responsibility. She testified that the contractor's
employees were required to walk the grassy area of the complex
looking for rocks and other debris. Docket 67-5, at 10. Although
she did not specify who formulated that policy, she stated that a
mowing schedule had been prepared by the Genett project manager who
preceded her. Id. at 11.
Mulero also testified that a lawn-mowing schedule was
developed by Genett and Rainforest Kids after complaints were made
by the childcare workers about Genett employees interfering with
their activities and making noise during the children's nap times.
Docket 60-4, at 5. Mulero did not participate in the meeting to
work out the arrangements, she explained, because "I didn't feel
like I had to be there. I think that was something [on which] two
civilized persons could reach an agreement."11 Id. at 6.
11
Repeatedly in their filings appellants disingenuously report
that Mulero stated that she did not participate in this meeting
"[b]ecause I didn't feel like it." Although the words are
accurately reported, the transcript makes clear that "I didn't feel
like it" was a partial thought that was completed – after a dash in
the transcript – with the statements quoted above.
Mulero's testimony about the scheduling meeting between Genett
and Rainforest Kids gives context to testimony by GSA contract
specialist Belkys Torres, highlighted by appellants, that "[t]he
contractors are not allowed to discuss things in detail with the
tenant. They must come through the CO [contracting officer]."
Docket 60-2, at 7. Torres went on to explain that reliance on the
CO was intended "to avoid misinterpretation of the terms." Nothing
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In sum, both the terms of the agreements and their actual
execution show that the United States did not carve out
responsibility for safety measures from its otherwise comprehensive
delegation of day-to-day authority to Rainforest Kids and Genett.
Although the Genett contract anticipates government-specified
schedules or procedures for some matters, possibly including
"safety items,"12 such detail does not negate the agreement's
overall status as a performance-based contract. The varying levels
of specificity signify only that the government determined that
certain tasks needed more explicitly stated performance
expectations. See, e.g., Orleans, 425 U.S. at 817-18 (noting that
in the contracts, however, foreclosed direct communication between
Genett and Rainforest Kids about "common sense" (in Rivera's words)
safety precautions such as a schedule for mowing that was
compatible with the childcare center's activities.
12
The contract states that, "[i]n certain cases (e.g., safety
items), the Government may specify work schedules, frequencies, or
methods." Docket 50-4, at 12, § 3.B. For example, one provision
states that "[a]ll cleaning of occupied space shall be performed
during normal working hours," which are identified as weekdays from
6:30 a.m. to 5:30 p.m. Id. at 26, § B.2.A. Elsewhere, under
"Cleaning Work Quality Requirements," the contract specifies the
following standards:
Lawn areas shall be neatly mowed up to three inches
height with no grass overlapping sideways [sic] or
driveways. Lawn shall be free of weeds. Planters should
be watered as needed, maintained in good growing
conditions, and weeds removed. Parking areas shall be
free of dirt and debris accumulation. All fence
surrounding the building perimeter and inside fences
shall be free of growing weeds. No dirt shall be left
where sweepings were picked up.
Id. at 32, § C.23.
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the independent contractor in that case "must comply with extensive
regulations" and guidelines, although the contracting agency does
not have the "power to supervise the daily operation" of the
contractor); Logue, 412 U.S. at 529-30 (finding independent
contractor status where the contractor must follow detailed federal
rules and standards, but "the agreement gives the United States no
authority to physically supervise the conduct of the [contractor]'s
employees").13
We thus turn to consider whether the government's
decision to assign to others the responsibility for ensuring safety
at the Federico Degetau complex was a discretionary judgment
protected from FTCA liability.
C. The Discretionary Function Exception
The Supreme Court has observed that the discretionary
function exception "marks the boundary between Congress'
willingness to impose tort liability upon the United States and its
13
Contrary to appellants' contentions, none of the deposition
testimony is inconsistent with the conclusion that Genett and
Rainforest Kids bore responsibility for safe scheduling.
Plaintiffs cite a statement of GSA contract specialist Torres that
GSA was required to obtain, approve, and enforce maintenance
schedules prepared by Genett, but Torres's explanation for that
oversight – "to ensure that the tenants . . . are available for
these maintenance employees to come around and do the cleaning and
all that" – reflects only a concern about access for indoor work
and not an intent to control the contractors' schedules. Docket
60-2, at 5-6. Indeed, Torres also testified that the agreement
with Genett was "a performance-based contract," and that "[w]e
don't tell the contractor how to do the work." She explained that
GSA provides "the standards of what we want" and "they decide when,
how, and how many people they're going to use." Id. at 5.
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desire to protect certain governmental activities from exposure to
suit by private individuals." United States v. S.A. Empresa De
Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808
(1984), quoted in Abreu, 468 F.3d at 25. The exception, codified
at 28 U.S.C. § 2680(a), immunizes conduct of government employees
that arises from "legislative and administrative decisions grounded
in social, economic, and political policy," protecting against
"liability that would seriously handicap efficient government
operations." Wood, 290 F.3d at 36 (quoting Varig Airlines, 467
U.S. at 814, and United States v. Muniz, 374 U.S. 150, 163 (1963))
(internal quotation marks omitted). The protection is available
even when an employee has abused his or her discretion.14
A well-established framework is used to determine the
applicability of the discretionary function exception:
[A] court first must identify the conduct that
is alleged to have caused the harm, then
determine whether that conduct can fairly be
described as discretionary, and if so, decide
whether the exercise or non-exercise of the
14
Section 2680 lists several exceptions to the coverage of the
FTCA, including claims arising from the loss of mail, the
assessment or collection of a tax, the imposition of a quarantine
by the United States, or the execution of a statute (if done with
due care). The provision addressing discretionary acts excludes
[a]ny claim . . . based upon the exercise or performance
or the failure to exercise or perform a discretionary
function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion
involved be abused.
28 U.S.C. § 2680(a).
-20-
granted discretion is actually or potentially
influenced by policy considerations.
Fothergill v. United States, 566 F.3d 248, 252 (1st Cir. 2009); see
also United States v. Gaubert, 499 U.S. 315, 322-25 (1991);
Berkovitz v. United States, 486 U.S. 531, 539 (1988). If the
challenged conduct is both discretionary and policy-based, there is
no subject-matter jurisdiction for the claim. Montijo-Reyes, 436
F.3d at 24.15 We consider each prong of the inquiry in turn.
1. The Allegedly Harmful Conduct
Appellants focus on the manner in which the United States
managed the contractors it hired to run the childcare center and to
perform maintenance work at the Federico Degetau complex.16 They
15
Our precedent places the burden on the plaintiff to show
that discretionary conduct was not policy-driven and, hence, falls
outside the exception. Bolduc, 402 F.3d at 60, 62 (citing
precedent "explaining that the law presumes that the exercise of
discretion implicates policy"); see also Montijo-Reyes, 436 F.3d 24
n.7 (same). But see Hart v. United States, 630 F.3d 1085, 1089 n.3
(8th Cir. 2011) (noting circuit split on whether the plaintiff or
the government bears the burden of proof on the discretionary
function exception).
16
Appellants wisely do not challenge either the government's
decision to employ contractors for the maintenance and childcare
tasks or the government's decisions to hire these particular
contractors. See Brief at 42 (stating that the "assertions of
negligence are not related to the selection of the lawn mowing
company nor the decision to choose to hire a private company to mow
the lawn as opposed to having employees of GSA mow the lawn").
Both types of judgments fall well within the discretionary function
exception. See, e.g., Williams, 50 F.3d at 310 ("Contracting out
the responsibility to maintain the Premises while balancing fiscal
considerations entails exercising judgment based on policy."
(citing cases "illuminat[ing] the fact that the United States'
contracting with independent contractors to ensure maintenance of
Premises is a discretionary function")); Layton v. United States,
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complain that the government breached its duty of care to V.C. and
her family by (a) permitting Genett personnel to use dangerous
equipment in the vicinity of children, (b) permitting V.C. to play
in an area that was unreasonably dangerous, and (c) failing to
coordinate schedules to avoid the risk of harm. Simply stated,
appellants claim that GSA employees were negligent in failing to
create and enforce a schedule that would have prevented mowing at
times when the Rainforest Kids children were playing outside.
2. The Nature of the Conduct
The second step of the inquiry is to determine whether
the identified conduct "involves a matter that the political
branches have left to the actor's choice." Fothergill, 566 F.3d at
253. If a "federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow . . . the
employee has no rightful option but to adhere to the directive."
Berkovitz, 486 U.S. at 536. In such circumstances, where "the
employee's conduct cannot appropriately be the product of judgment
or choice, . . . there is no discretion in the conduct for the
discretionary function exception to protect." Id.; see also
Montijo-Reyes, 436 F.3d at 25. Where, however, "the government
actors in question have latitude to make decisions and choose among
984 F.2d 1496, 1502 (8th Cir. 1993) (citing McMichael v. United
States, 751 F.2d 303, 307 (8th Cir. 1985), for the proposition that
the "decision to award a contract to a particular contractor
involves weighing various considerations and is therefore protected
by the discretionary function exception").
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alternative courses of action, the conduct is discretionary."
Bolduc, 402 F.3d at 61.
Appellants argue that the GSA employees overseeing the
Federico Degetau complex had no discretion to forego safety
measures that would have prevented the unsafe, overlapping
activities by Genett and the childcare center on federal property.
Although they point to no federal law, regulation or policy
requiring GSA to control the interaction between the contractors on
safety issues,17 they maintain that the government had an obligation
under Commonwealth law applicable to landowners, as well as under
the contract, to ensure the children's safety by establishing and
enforcing a schedule barring lawn mowing during the children's
outdoor playtime. Appellants further suggest that the government
17
In the district court, appellants invoked the federal
statute authorizing GSA to support the operation of childcare
centers on government property, 40 U.S.C. § 590; GSA's Child Care
Center Design Guide 2003; a national manual of standards for
childcare programs ("Caring for Our Children: National Health and
Safety Performance Standards"); and provisions in the GSA Board of
Directors Child Care Resource Book, including a statement that "the
GSA Regional Child Care Coordinators have the responsibility to
'[i]nterface with GSA property managers to ensure the center and
outdoor play area are maintained in a manner that provides for a
safe and healthy environment.'" See Proposed Pretrial Order,
Docket No. 74, at 13 (quoting Resource Book).
The statute itself does not tell GSA how to "provide guidance,
assistance, and oversight to federal agencies for the development
of child care centers," 40 U.S.C. § 590(a), leaving much to the
agency's discretion. Although the Design Guide specifies various
safety measures to be followed in federally supported childcare
centers – including, for example, the use of safety helmets on hard
surfaces – neither it nor the other cited sources bar GSA from
accomplishing the stated objectives through contracts with private
parties.
-23-
was required to take action because GSA officials knew that
maintenance personnel had previously mowed the lawn near the
childcare center while children were playing outside. We consider
in turn the significance of Commonwealth law, the contract, and the
allegation of knowledge.
a. Commonwealth Law
Appellants may not invoke Puerto Rico law as a basis for
determining whether the government's failure to adopt and enforce
lawn-mowing safety procedures was protected discretionary conduct.
State law cannot override the FTCA's grant of immunity for
discretionary conduct:
[A]lthough the threshold inquiry into
governmental liability as defined by the FTCA
requires an examination of state law to define
tortious conduct, the question of whether a
state law tort can be applied against the
United States is exclusively one of federal
law. Claimants obtain their "right to sue [the
federal government] from Congress [and they]
necessarily must take it subject to such
restrictions as have been imposed."
Berkman v. United States, 957 F.2d 108, 111-13 (4th Cir. 1992)
(alterations in original) (quoting Dalehite v. United States, 346
U.S. 15, 31 (1953) (quoting Fed. Hous. Admin. v. Burr, 309 U.S.
242, 251 (1940))); see also, e.g., Sydnes v. United States, 523
F.3d 1179, 1184 (10th Cir. 2008) ("Considering state tort law as a
limit on the federal government's discretion at the jurisdictional
stage impermissibly conflates the merits of plaintiffs' claims with
the question whether the United States has conferred jurisdiction
-24-
on the courts to hear those claims in the first place."); Abreu,
468 F.3d at 23 ("Even where the government conduct would create
state tort liability in a suit against a private party, the FTCA
provides that sovereign immunity is not waived if the challenged
governmental action involved the exercise of discretion.").18 But
see Dickerson, Inc. v. United States, 875 F.2d 1577, 1583 (11th
Cir. 1989) (holding that "the independent contractor exception in
the FTCA would not insulate the Government from the contractor's
negligence if the duty was non-delegable under Florida law").
Thus, whether the government may be held liable under the
FTCA for the failure to implement and enforce safety measures turns
on whether federal law left it to the discretion of the applicable
GSA officials to adopt – or not – such measures. Cf. Logue, 412
U.S. at 528 ("Congress . . . could have left the determination as
to whose negligence the Government should be liable for under the
Federal Tort Claims Act to the law of the State involved, as it did
with other aspects of liability under the Act. But it chose not to
do this . . . ."). As noted, appellants have identified no
pertinent federal law obliging GSA to assume the day-to-day
responsibility for safety.
18
We do not face here the issue, noted in Montijo-Reyes, 436
F.3d at 25 & n.8, of "whether a state regulation can prescribe the
conduct of a federal agency to defeat the discretionary function
exception" where federal law explicitly requires compliance with
state law.
-25-
b. Contractual Requirements
We already have rejected appellants' argument that the
government retained responsibility for safety in its agreements
with Rainforest Kids and Genett. See supra Section II.B.2. We see
no basis on which the government's chosen allocation of authority
could be deemed improper. Where no federal law or policy limited
the government's discretion to delegate the coordination of
schedules, or other lawn-mowing safety precautions, to the
independent contractors, the United States had the flexibility to
craft the balance of authority in the contracts as it saw fit.
See, e.g., Muniz-Rivera v. United States, 326 F.3d 8, 16 (1st Cir.
2003) (noting that, in a case involving flooding of federally
supported housing, "no applicable statute, regulation, or policy"
directed "the manner in which the supervision is to be carried out
nor specif[ied] the taking of the actions that the plaintiffs claim
would have prevented their plight"); Bolduc, 402 F.3d at 61 ("Where
. . . the government actors in question have latitude to make
decisions and choose among alternative courses of action, the
conduct is discretionary.").
Indeed, the decision to assign independent contractors
the responsibility for safety, in particular, has been found to be
within the government's discretion. See, e.g., Wood, 290 F.3d at
40 (noting that delegation of safety issues to a contractor
reflected a judgment that "in obtaining the 'best value' for the
-26-
American taxpayer, worker safety should be a primary concern of the
contractor"); Shuman v. United States, 765 F.2d 283, 294-95 (1st
Cir. 1985) (endorsing dismissal of FTCA claim based on
discretionary decision to delegate safety responsibility to
independent contractor); cf. Shansky v. United States, 164 F.3d
688, 693 (1st Cir. 1999) ("[T]here is no principled basis for
superimposing a generalized 'safety exception' upon the
discretionary function defense."); McMichael, 751 F.2d at 307
(finding that government inspectors' failure to enforce safety
requirements not protected by discretionary function exception
where inspectors were given "a number of precise inspections to
perform which involved no judgment concerning agency policy").19
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,
19
Nor does the government lose its immunity if it retains the
right to review a contractor's work. Berkman, 957 F.2d at 113-14
(noting that the government's "right periodically to inspect [the
contractor]'s performance and ensure that the services provided
were in compliance with the terms of the contract" does not negate
independent contractor status); Brooks, 622 F.2d at 12 ("The right
to inspect does not nullify the general rule that the government is
not liable for torts of independent contractors."); cf. 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."); Wood, 290 F.3d at 41 (quoting Varig
Airlines).
-27-
bore responsibility for implementing procedures to ensure the
safety of the Rainforest Kids children.20
c. The United States' Knowledge
Appellants suggest that, even if the United States
otherwise had the discretion to delegate the coordination of
activities to the contractors, the government was obliged to act
here because it had knowledge that the dangerous conduct at issue
had occurred previously. Assuming for the sake of argument that
government knowledge could be part of the discretionary function
analysis, appellants' attempt to invoke that factor here is
unavailing. The only evidence of government knowledge in the
record is a limited, disputed request for admission. When the
United States failed to respond to appellants' requests for
admission within the thirty days specified by Federal Rule of Civil
Procedure 36(a), appellants moved to deem admitted, inter alia, a
statement that GSA, "through its employees, had knowledge that
maintenance personnel had previously mowed the lawn surrounding the
Rainforest Kids Child Development Center at the same time that
children were playing outside the facility." In its opposition to
20
We need not, and do not, address circumstances in which the
government possesses special expertise on the proper safety
measures. See Marlys Bear Medicine v. United States, 241 F.3d
1208, 1216-17 (9th Cir. 2001) (finding discretionary function
exception inapplicable in the context of timbering operations on
Indian lands because the government agency was "the only
organization on the reservation with the appropriate safety
expertise and it has virtually complete control" of the
operations).
-28-
the deeming motion, the government attributed its delayed response
to its "normal reliance on the relevant agency to coordinate and
provide the information necessary to respond to discovery requests"
and stated that it had by that time responded to the appellants'
requests for admissions and production of documents.
The district court did not rule on appellants' motion to
deem before dismissing the case. Even if the statement is deemed
admitted, however, it is an insufficient basis on which to deny the
government the protection of the discretionary function exception.
The statement says only that the overlap had occurred before, at an
unspecified time, and not that it had been occurring routinely.
Whatever the significance generally of government knowledge of its
independent contractors' safety performance, we reject the notion
that a single problem would shift hands-on responsibility to the
government. Under the contracts, Genett and Rainforest Kids had
the obligation to make sure the overlap did not recur.
We are thus satisfied that the record shows that the
allegedly harmful conduct – the failure to establish and enforce a
schedule for safe mowing – "can fairly be described as
discretionary," Fothergill, 566 F.3d at 252, satisfying the second
prong of the discretionary function inquiry.
3. Policy-Related
The third prong of the discretionary function exception
requires us to consider whether the judgment at issue "is of the
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kind that the discretionary function exception was designed to
shield," Berkovitz, 486 U.S. at 536, or, as we have framed the
question: "whether 'the exercise of discretion involve[s] (or is []
susceptible to) policy-related judgments,'" Abreu, 468 F.3d at 26
(alterations in original) (quoting Montijo-Reyes, 436 F.3d at 24).
We start with the presumption that the exercise of discretion by a
government official implicates a policy judgment. See supra note
15.
As with our discussion of the discretionary nature of the
conduct, the policy inquiry is influenced by the independent
contractor status of Genett and Rainforest Kids. Appellants would
like us to ask whether there is a policy rationale for the
government's failure to coordinate the scheduling of lawn mowing
and outdoor play. That is not the relevant question. The
relevant question is whether there is a policy justification for
assigning responsibility for such coordination to the independent
contractors hired to perform maintenance and run the childcare
center. To ask that question is to answer it.
The judgment to hire independent contractors presumably
was based on an assessment of cost and efficiency concerns relating
to the use of government-employee time. See, e.g., Williams, 50
F.3d at 310 (noting that, in choosing whether to hire an
independent contractor, the United States must "weigh concerns of
expense, administration, payment, access to the Premises, and a
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veritable plethora of factors"). As we have noted, the product of
such a weighing of factors is unquestionably a policy judgment.
See supra note 16. The decision to staff a job with independent
contractors necessarily also embraces judgments about which
delegated tasks require detailed instructions to ensure proper
performance and which are more efficiently presented to the
contractor as general obligations. Indeed, the benefits of
engaging independent contractors would be lost if the government
needed to take the time to make judgments about, and provide
guidance on, every aspect of every task to be performed.
In this instance, the government concluded, in effect,
that the tasks of developing and enforcing a safe, compatible
schedule for playtime and lawn mowing were appropriately left to
the two entities directly responsible for managing the potentially
conflicting activities. As the government's judgment implicates
the same policy concerns that underlie the choice to hire
independent contractors in the first place, it also is protected by
the discretionary function exception.21
21
It appears that GSA's Mulero initiated discussions about
scheduling after the accident at issue here, see Docket 67-8, at 8-
12, which may indicate a new judgment by the government about how
much responsibility to assume for coordinating safety measures.
That after-the-fact conduct has no bearing, however, on our
assessment of the government's liability for the accident. See
Shansky, 164 F.3d at 695 ("An agency that has discretion to make
policy choices can change its view as to the proper balance of
relevant concerns as time passes and experience accrues.").
-31-
The presence and scope of the independent contractor
agreements here distinguish this case from others, cited by
appellants, in which plaintiffs have successfully argued that the
government's inaction on safety matters was not protected by either
the discretionary function exception or the independent contractor
defense. For example, in Whisnant, despite an independent
contractor's responsibility for maintenance at the commissary on a
naval base, the court rejected applicability of the discretionary
function exception for a claim that the government "negligently
allowed [toxic mold] to colonize the commissary's meat department
over a period of three years." 400 F.3d at 1179. The court noted
that the government had retained responsibility for safety, id.,
and it held that the government's alleged failure to control "an
obvious health hazard is a matter of safety and not policy," id. at
1183. Here, by contrast, the United States assigned the
responsibility for safety to Genett and Rainforest Kids, and, as we
have explained, the government's inaction was shielded by that
discretionary delegation of responsibility.
In Bolt v. United States, 509 F.3d 1028 (9th Cir. 2007),
the court concluded that the discretionary function exception did
not protect the United States from liability for a slip-and-fall
accident allegedly resulting from the government's failure to
remove snow and ice from a parking area at an Army apartment
complex. Id. at 1030. In rejecting application of the exception,
-32-
the court not only identified an express requirement for timely
snow and ice removal in the Army's Housing Handbook but also
observed that any discretion to vary the timing "is [not] the type
of decision-making that the discretionary function was designed to
protect." Id. at 1033 (alteration in original) (internal quotation
marks omitted). Bolt also offers no support for appellants'
position: the government in that instance had not bestowed the
safety responsibility on an independent contractor, and its own
guidelines explicitly denied the discretion to delay clearing the
area. Id.; see also, e.g., Coulthurst v. United States, 214 F.3d
106, 109-10 (2d Cir. 2000) (concluding that the discretionary
function exception might not apply to allegedly deficient
inspection of prison gym equipment, where government had
responsibility for safety and inspector may have "failed to perform
a diligent inspection out of laziness or was carelessly
inattentive").
III.
In exercising its conceded discretion to hire independent
contractors to manage the childcare center and the
maintenance/landscaping work at the Federico Degetau Federal
complex, the United States could also exercise its discretion to
leave to the contractors the responsibility for ensuring that
Rainforest Kids' children would be out of harm's way while the
grounds adjacent to their center were being mowed. Sadly,
-33-
inadequate precautions were taken by the independent contractors to
protect V.C. from serious injury. For the reasons we have
explained, however, the FTCA does not provide jurisdiction for a
negligence action against the United States arising from that
injury. We therefore affirm the dismissal of the FTCA claim with
prejudice and the pendent claims under Commonwealth law without
prejudice.
So ordered.
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