NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 18-1526 _____________
E.D.,
Appellant
v.
UNITED STATES OF AMERICA ____________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (No. 5:17-cv-2691) District Judge: Hon. Edward G. Smith
Submitted under Third Circuit L.A.R. 34.1(a) January 24, 2019
Before: SMITH, Chief Judge, CHAGARES and BIBAS, Circuit Judges
(Filed March 1, 2019)
____________
OPINION* ____________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Circuit Judge.
Appellant E.D. was the victim of institutional sexual assault by Daniel Sharkey, an
employee of an immigrant detention facility run by Berks County, Pennsylvania, under a
contract with the United States Immigration and Customs Enforcement agency (ICE).
She filed a lawsuit against the United States for negligence. The District Court dismissed
the case for lack of jurisdiction because the United States has not waived sovereign
immunity for the torts of its independent contractors. We agree, but we also conclude
that the District Court’s dismissal of E.D.’s direct negligence claim against the United
States was procedurally improper. Thus, we will affirm in part, vacate in part, and
remand.
I.
Because we write only for the parties, we recite just those facts necessary to our
disposition.
E.D. is a Honduran national who sought asylum in the United States in 2014. She
and her son were detained at the Berks County Residential Center – Immigration Family
Center (BCRC), which has a contract with ICE to act as a detention facility and house
immigrant detainees and their children. For three months of her detention, E.D. was the
victim of institutional sexual assault by Daniel Sharkey, a BCRC staff member.
E.D. filed a lawsuit against the United States for negligence under the Federal Tort
Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671–80. The Government moved to dismiss
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Among other reasons, it
2 argued that the independent-contractor exception to the FTCA applied and thus sovereign
immunity barred the District Court from exercising jurisdiction.
After jurisdictional discovery, the District Court considered the evidence the
parties submitted and found that Berks County controlled day-to-day operations at
BCRC. Under Berks County’s contract with ICE, it was the county that would “house”
detainees and “perform related residential/detention services.” Joint Appendix (“JA”) 6.
And BCRC employees, managers, and directors — “[e]ssentially every employee” —
“testified ICE did not supervise or control their day-to-day responsibilities.” JA 8, 13.
An ICE representative testified the same way. JA 7–8.
The court found that ICE, on the other hand, performed only “generalized
compliance supervision.” JA 13. To this end, the contract authorized ICE to conduct
“periodic inspections of the facility to assure compliance.” JA 7. And an ICE employee
“spent about fifty percent of her time in 2014 on site” to guarantee compliance. JA 7.
But, the court found, “her role was not to control and/or supervise daily operations.”
JA 7. Similarly, ICE hired an independent auditor to perform compliance audits on
BCRC, but the court found that the auditor “did not supervise daily operations; instead, it
inspected BCRC-IFC and then reported its findings to ICE.” JA 13. Other than ensuring
compliance with ICE rules and regulations, the court concluded, “ICE broadly delegated
its duties to BCRC-IFC.” JA 12.
Based on these findings, the District Court determined that BCRC was an
independent contractor to which the Government had delegated its duty of safekeeping
and granted the Government’s motion to dismiss. E.D. timely appealed.
3 II.
The District Court had jurisdiction under 28 U.S.C. § 1346(b)(1). We have
appellate jurisdiction under 28 U.S.C. § 1291. We review the District Court’s findings of
fact only for clear error, but exercise plenary review over its legal conclusions. CNA v.
United States, 535 F.3d 132, 139 (3d Cir. 2008).
III.
A.
The United States has waived sovereign immunity for some negligence suits for
injuries caused by Government employees. 28 U.S.C. § 1346(b). Government
employees include officers and employees of any federal agency, but not “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.
The District Court found that Berks County controlled day-to-day operations at
BCRC, not the Federal Government. Although E.D. offers reasons that this Court could
“have reached a different conclusion as the trier of fact,” that “is not enough”: “as long
as the district court’s factual findings are plausible when viewed in light of the entirety of
4 the record, we must affirm.” Prusky v. ReliaStar Life Ins. Co., 532 F.3d 252, 258 (3d
Cir. 2008) (quotation marks omitted). And the District Court’s finding is certainly
plausible in light of the record. Indeed, it is well supported by BCRC’s contract with ICE
and the testimony of those working at BCRC. Nor is the court’s finding contradicted by
ICE’s ability “to compel compliance with federal standards” through inspections, audits,
and an on-site representative. Orleans, 425 U.S. at 815. Even acknowledging ICE’s
ability to police compliance with federal standards, we are not left “with the definite and
firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948). Thus, the District Court’s finding was not clearly erroneous.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 18-1526 _____________
E.D.,
Appellant
v.
UNITED STATES OF AMERICA ____________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (No. 5:17-cv-2691) District Judge: Hon. Edward G. Smith
Submitted under Third Circuit L.A.R. 34.1(a) January 24, 2019
Before: SMITH, Chief Judge, CHAGARES and BIBAS, Circuit Judges
(Filed March 1, 2019)
____________
OPINION* ____________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Circuit Judge.
Appellant E.D. was the victim of institutional sexual assault by Daniel Sharkey, an
employee of an immigrant detention facility run by Berks County, Pennsylvania, under a
contract with the United States Immigration and Customs Enforcement agency (ICE).
She filed a lawsuit against the United States for negligence. The District Court dismissed
the case for lack of jurisdiction because the United States has not waived sovereign
immunity for the torts of its independent contractors. We agree, but we also conclude
that the District Court’s dismissal of E.D.’s direct negligence claim against the United
States was procedurally improper. Thus, we will affirm in part, vacate in part, and
remand.
I.
Because we write only for the parties, we recite just those facts necessary to our
disposition.
E.D. is a Honduran national who sought asylum in the United States in 2014. She
and her son were detained at the Berks County Residential Center – Immigration Family
Center (BCRC), which has a contract with ICE to act as a detention facility and house
immigrant detainees and their children. For three months of her detention, E.D. was the
victim of institutional sexual assault by Daniel Sharkey, a BCRC staff member.
E.D. filed a lawsuit against the United States for negligence under the Federal Tort
Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671–80. The Government moved to dismiss
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Among other reasons, it
2 argued that the independent-contractor exception to the FTCA applied and thus sovereign
immunity barred the District Court from exercising jurisdiction.
After jurisdictional discovery, the District Court considered the evidence the
parties submitted and found that Berks County controlled day-to-day operations at
BCRC. Under Berks County’s contract with ICE, it was the county that would “house”
detainees and “perform related residential/detention services.” Joint Appendix (“JA”) 6.
And BCRC employees, managers, and directors — “[e]ssentially every employee” —
“testified ICE did not supervise or control their day-to-day responsibilities.” JA 8, 13.
An ICE representative testified the same way. JA 7–8.
The court found that ICE, on the other hand, performed only “generalized
compliance supervision.” JA 13. To this end, the contract authorized ICE to conduct
“periodic inspections of the facility to assure compliance.” JA 7. And an ICE employee
“spent about fifty percent of her time in 2014 on site” to guarantee compliance. JA 7.
But, the court found, “her role was not to control and/or supervise daily operations.”
JA 7. Similarly, ICE hired an independent auditor to perform compliance audits on
BCRC, but the court found that the auditor “did not supervise daily operations; instead, it
inspected BCRC-IFC and then reported its findings to ICE.” JA 13. Other than ensuring
compliance with ICE rules and regulations, the court concluded, “ICE broadly delegated
its duties to BCRC-IFC.” JA 12.
Based on these findings, the District Court determined that BCRC was an
independent contractor to which the Government had delegated its duty of safekeeping
and granted the Government’s motion to dismiss. E.D. timely appealed.
3 II.
The District Court had jurisdiction under 28 U.S.C. § 1346(b)(1). We have
appellate jurisdiction under 28 U.S.C. § 1291. We review the District Court’s findings of
fact only for clear error, but exercise plenary review over its legal conclusions. CNA v.
United States, 535 F.3d 132, 139 (3d Cir. 2008).
III.
A.
The United States has waived sovereign immunity for some negligence suits for
injuries caused by Government employees. 28 U.S.C. § 1346(b). Government
employees include officers and employees of any federal agency, but not “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.
The District Court found that Berks County controlled day-to-day operations at
BCRC, not the Federal Government. Although E.D. offers reasons that this Court could
“have reached a different conclusion as the trier of fact,” that “is not enough”: “as long
as the district court’s factual findings are plausible when viewed in light of the entirety of
4 the record, we must affirm.” Prusky v. ReliaStar Life Ins. Co., 532 F.3d 252, 258 (3d
Cir. 2008) (quotation marks omitted). And the District Court’s finding is certainly
plausible in light of the record. Indeed, it is well supported by BCRC’s contract with ICE
and the testimony of those working at BCRC. Nor is the court’s finding contradicted by
ICE’s ability “to compel compliance with federal standards” through inspections, audits,
and an on-site representative. Orleans, 425 U.S. at 815. Even acknowledging ICE’s
ability to police compliance with federal standards, we are not left “with the definite and
firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948). Thus, the District Court’s finding was not clearly erroneous.
Given that “the district court specifically” — and not clearly erroneously —
“found that the Government exercised no operational, day-to-day control over” BCRC,
the District Court’s legal conclusion that Berks County is an independent contractor
necessarily followed. Gibson v. United States, 567 F.2d 1237, 1242 (3d Cir. 1977).
Thus, BCRC employees are not employees of the Government but independent
contractors, and the United States has not waived sovereign immunity for their torts.
B.
That conclusion, however, does not end the case. See Logue, 412 U.S. at 532.
E.D. also alleges that the United States was directly negligent. See JA 33 (Compl. ¶¶ 88–
89); cf. CNA, 535 F.3d at 148–49 (citing Sheridan v. United States, 487 U.S. 392
(1988)). She claims that Jeremiah Petrey, an ICE employee who was friends with
Sharkey, knew that the institutional sexual assault was going on and negligently
responded to it, see, e.g., JA 25, 27–28 (Compl. ¶¶ 21, 34–47); that ICE Field Director
5 Thomas Decker negligently responded to the incidents when she reported them, see, e.g.,
JA 29–31 (Compl. ¶¶ 53, 58–60, 68–72, 76–77); and that ICE policies and procedures
inadequately protected detainees from institutional sexual assault, see, e.g., JA 32–33
(Compl. ¶¶ 80–85). The District Court granted the Government’s motion to dismiss the
direct-negligence claim under Rule 12(b)(1) for lack of jurisdiction because the
“Government cannot be held directly liable under the FTCA for breaching a duty that it
has delegated to an independent contractor.” JA 14. The District Court explained that
the “contractual language, together with the . . . record developed by the parties, makes it
clear that the duties of safekeeping were delegated to Berks County.” JA 16.
We have explained, however, that “where jurisdiction is intertwined with the
merits of an FTCA claim, . . . a district court must take care not to reach the merits of a
case when deciding a Rule 12(b)(1) motion.” CNA, 535 F.3d at 144 (citing Gould Elecs.
Inc. v. United States, 220 F.3d 169, 178–79 (3d Cir. 2000)). That is the case here.
Whether the Government wholly delegated any state-law duty that was allegedly
breached by its employees’ negligent response to known institutional sexual assault and
its inadequate protection against institutional sexual assault is intertwined with the merits
of E.D.’s direct-negligence claim. “[W]hen faced with a jurisdictional issue that is
intertwined with the merits of a claim, district courts must demand ‘less in the way of
jurisdictional proof than would be appropriate at a trial stage.’” Id. (quoting Gould
Elecs., 220 F.3d at 178). It is not clear that the District Court did that. On the contrary,
the District Court relied heavily on Gibson v. United States, which rejected a direct-
negligence claim (under New Jersey law) not for lack of jurisdiction, but on the merits
6 “after a non-jury trial,” 567 F.2d at 1239. See JA 15–16. We will thus vacate the part of
the District Court’s order dismissing the direct-negligence claim and remand for the
District Court to consider whether E.D. offers sufficient jurisdictional proof at this stage
(and, as appropriate, the Government’s other arguments for dismissal, see JA 16 n.9).
IV.
For these reasons, we will affirm in part, vacate in part, and remand to the District
Court for proceedings consistent with this opinion.