Dorothea Helton v. United States

• Court: Court of Appeals for the Third Circuit
• Decided: December 8, 2022
• Docket: 22-1815
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-1815 __________

DOROTHEA W. HELTON, Appellant

v.

UNITED STATES OF AMERICA ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 1-20-cv-00076) Magistrate Judge: Honorable Susan E. Schwab ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) November 10, 2022 Before: JORDAN, GREENAWAY, JR., and NYGAARD, Circuit Judges

(Opinion filed December 8, 2022) ______________

OPINION ______________

PER CURIAM

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Pro se appellant Dorothea Helton appeals from the District Court’s order granting

Appellee’s motion to dismiss her complaint for lack of subject matter jurisdiction. For

the following reasons, we will affirm the District Court’s judgment.

I.

Helton alleges that she was injured on the premises of the United States Postal

Service office in Mt. Union, Pennsylvania, in December 2016. She subsequently filed a

personal injury complaint, which the District Court construed as asserting a Federal Tort

Claims Act (“FTCA”) claim for negligence against the United States Post Office. The

United States was later substituted as the defendant and, after discovery, it filed a motion

for summary judgment, arguing, inter alia, that it was immune from suit. Construing the

filing in part as a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1),

the District Court granted the motion and dismissed Helton’s complaint for lack of

subject matter jurisdiction based on the independent-contractor exception to the FTCA’s

waiver of immunity.1 Helton appealed.

II.

We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over

questions of subject matter jurisdiction. See Great W. Mining & Min. Co. v. Fox

Rothschild LLP, 615 F.3d 159, 163 (3d Cir. 2010). “A challenge to subject matter

jurisdiction under Rule 12(b)(1) may be either a facial or a factual attack.” Davis v.

1 The parties consented to have this case adjudicated by a Magistrate Judge. See 28 U.S.C. § 636(c)(1). 2 Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). When considering a factual challenge,

like the one in this case, “the plaintiff has the burden of proof that jurisdiction does in fact

exist, the court is free to weigh the evidence and satisfy itself as to the existence of its

power to hear the case, and no presumptive truthfulness attaches to the plaintiff's

allegations.” Hartig Drug Co. v. Senju Pharm. Co., 836 F.3d 261, 268 (3d Cir. 2016)

(alterations, citation, and internal quotation marks omitted).

III.

The FTCA grants the district courts jurisdiction over certain claims against the

United States for negligence by Government employees. See 28 U.S.C. § 1346(b). This

waiver of sovereign immunity applies to officers and employees of a federal agency, but

not to “any contractor with the United States.” 28 U.S.C. § 2671. Thus, we have held

that “there is an independent-contractor exemption in the Federal Tort Claims Act.”

Norman v. United States, 111 F.3d 356, 357 (3d Cir. 1997). “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.’” United States v. Orleans,

425 U.S. 807, 814 (1976) (quoting Logue v. United States, 412 U.S. 521, 528 (1973)). In

other words, “the question here is . . . whether [the] day-to-day operations are supervised

by the Federal Government.” Id. at 815.

Helton alleged that the post office was liable for her injuries because it was

negligent in failing to prevent or remove ice buildup on its front steps. In support of its

motion for summary judgment, Appellee presented evidence that the postmaster had 3 retained an individual, Clyde Bedsaul, to perform all snow-removal services at the Mt.

Union post office. Pursuant to a hand-written contract drafted by Bedsaul, he was paid a

flat rate for each day he worked, and he was responsible for keeping the premises clear of

ice and snow at all times. Bedsaul himself would determine when to perform services

and monitor weather conditions at the post office. The postmaster did not monitor his

work or provide direction, nor did anyone else. Helton did not present any evidence

negating those facts. The District Court’s conclusion that Bedsaul was an independent

contractor was accordingly well supported by the record, and we therefore agree with its

decision that Appellee has not waived sovereign immunity with respect to Helton’s claim

and that jurisdiction was lacking. See Norman, 111 F.3d at 357-58 (holding that

independent-contractor exception applied despite state-imposed duty to maintain safe

premises).

Also, in her brief, Helton alleges for the first time that the postmaster was

negligent in hiring Bledsaul. We decline to address that allegation for the first time on

appeal. See Delaware Nation v. Pennsylvania, 446 F.3d 410, 416 (3d Cir. 2006). We

will accordingly affirm the judgment of the District Court.