Carroll v. United States

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).

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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.

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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."

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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.

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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).

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 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,

-21-
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

-29-
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

-30-
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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