FTCA and the Limits Of Sovereign Immunity
If the defendant tortfeasor is an independent contractor, it can dramatically impact an injury claim.
Gone is the day when governmental duties are performed exclusively by government employees. In today’s era of privatization, local, state and federal officials routinely contract out many tasks related to historically-governmental duties, everything from infrastructure maintenance, medical care for veterans and inmates, control over electrical grids, to the management of national parks and more.
Federal Tort Claims & The Issue of Sovereign Immunity
The issue of “who did what” often determines the outcome of a lawsuit, and never is this axiom more relevant than in cases where the federal government is the prime defendant. The identity of the defendants in these cases is crucial because, in general, the United States is immune from suit unless it consents to be sued. See Dalehite v. United States, 346 U.S. 15, 30 (1953). One such area of consent is in tort cases. The Federal Tort Claims Act (FTCA, 28 U.S.C. § 1346) is a limited waiver of sovereign immunity under which “the United States is liable to the same extent as a private party for certain torts of federal employees . . . ‘in accordance with the law of the place where the act or omission occurred.’” Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005).
But what if the acts that injured the plaintiff were not committed by a government employee, but by an independent contractor? In such a situation, a tort claim may well lie—but against the contractor, not the government. There is a specific code section on this very point: 28 U.S.C. §2671. This section, commonly referred to as FTCA’s “independent contractor exception,” provides that the federal government will only be liable for the acts or omissions of its own employees. Therefore, the USA cannot be vicariously liable for the acts or omissions of its contractors. And the issue is jurisdictional — under the FTCA a federal court will not have jurisdiction over a tort claim against the government if the independent contractor exception applies.
However, as a recent decision teaches, the fact that the federal government hired an independent contractor to perform a given task will not absolve the sovereign of all potential liability.
Valley Fever Sparks Lawsuit
The case in question is Edison v. United States, ___ F.3d ___ (9th Cir. 2016), 2016 WL 2946347 (9th Cir.). In that case, the Ninth Circuit “ascertaine[d] the boundaries of the United States’ liability when it has delegated some, but not all, of its legal duties to an independent contractor.” Id. at *4.
In Edison, the plaintiffs were inmates at Taft federal prison. They alleged that they had contracted a severe form of valley fever as a result of their incarceration (the plaintiffs were of African descent, and because of that fact were at much greater risk to develop the severe form of the disease).
The federal government owned the Taft prison facility, but contracted with Management and Training Corporation (“MTC”) to operate it. In addition to claims against MTC, the plaintiffs asserted claims against the United States based on failure to warn, failure to modify structures, and failure to develop and implement an adequate protection policy.
The district court held that the plaintiffs’ claims were barred by the independent contractor exception. In a nutshell, the trial court concluded that section 2671 barred the claim against the United States because the USA contracted with MTC to operate the prison.
The plaintiffs appealed from that ruling and the Ninth Circuit reversed. The appellate court allowed the plaintiffs to proceed on all asserted grounds while noting that “the independent contractor exception is not a complete bar to liability any time the United States employs a contractor. Some duties of care are non-delegable; others are retained by the government, if not delegated” and “…our precedents do not hold that the United States is absolved of all liability, no matter what the injury complained of its cause, any time it hires an independent contractor.” Id. at *1, 4.
In its ruling, the Ninth Circuit clarified that the plaintiffs were not seeking to hold the United States vicariously liable for the contractor’s actions, but rather, were seeking to hold the federal government directly liable for its own and separate acts and omissions. Id. at *6.
Three Step Inquiry
The Ninth Circuit enumerated a three-step inquiry to determine whether the United States may be liable for its own acts or omissions:
- The first question is whether state law would impose a duty of care on a private individual in a similar situation;
- Second, looking to the contract and the parties’ actions, the court asks whether the United States retained some portion of that duty for which it could be directly liable; and
- Third, even if the government delegated all its duties to the independent contractor, the court will inquiry as to whether, under the applicable state law, non-delegable duties were imposed on the government. Id. at *17 – 18 If so, the delegation to an independent contractor will not absolve the government of liability under the FTCA.
The Duties At Issue in Edison
In Edison, the United States was subject to duties arising under premises liability. Among those duties are a landowner’s obligation to warn and a duty to protect against hazards on land that he controls. This duty was bolstered in Edison by another duty: California’s recognition of the special relationship between jailors and inmates—a relationship that imposes a jailor’s duty to protect inmates against known harms.
These legal obligations satisfied the first step of the FTCA inquiry because state law imposed a duty of care.
In addition, the United States retained other duties such as control over structural changes at the Taft prison facility. Accordingly, the second step of the FTCA inquiry was also satisfied as the federal government retained some portion of its duties upon which liability could be predicated.
Because FTCA jurisdiction was present, the Ninth Circuit reversed the trial court’s order of dismissal, but did not analyze the third step of the FTCA inquiry or specify whether any of the government’s duties were non-delegable. Nevertheless, the court did provide a footnote describing a non-delegable type of duty, stating: “The Ninth Circuit has previously applied this principle to hold the United States liable under the FTCA. An example is the line of FTCA cases applying the ‘peculiar risk’ doctrine to hold the government directly liable for its failure to act, despite its delegation of safety procedures to an independent contractor. See Myers v. United States, 652 F.3d 1021, 1034 (9th Cir. 2011); Yanez v. United States, 63 F.3d 870, 872 n.1 (9th Cir. 1995) (‘Under the FTCA, the United States may not be held vicariously liable. However, [peculiar risk] liability has been construed as creating direct liability for the government’s nondelegable duty to ensure that the contractor employs proper safety procedures.’ (citing McCall v. United States, 914 F.2d 191, 194 (9th Cir. 1990))); McGarry v. United States, 549 F.2d 587, 590 (9th Cir. 1976).” Edison, at n. 4.
There are nine decisions that are routinely cited in cases discussing the independent contractor exception. The cases can be divided into two categories:
- Cases where the government delegated all of the duties at issue to a contractor (in which case dismissal of the claim against the United States is proper);
- Cases where the United States retained some of the duties, the breaches of which allegedly contributed to the injury.
The decisions in these cases are in line with the three-part test in enumerated Edison. In the following cases, the United States retained one or more duties:
- Logue v. United States, 412 U.S. 521 (1973) (Supreme Court remanded case to determine liability of federal marshal who, after being ordered to transport decedent to a mental health facility, chose instead to house him at a city jail, where he committed suicide);
- Noel v. United States, 893 F. Supp. 1410 (N.D. Cal. 1995) (Government delegated duty to operate concessions at fair, but did not delegate duty to warn);
- McGarry v. United States, 370 F. Supp. 525, 545 (D. Nev. 1973) (USA agency owned site with hazards that was operated by contractors. The Court held “The plaintiffs’ claims against the United States are predicated solely upon the negligence of employees of the United States. The fact that someone else might be charged with absolute liability, or the fact that an independent contractor might have been negligent, does not absolve the United States from liability under the FTCA if its employees were also negligent”);
- Suro v. United States, 107 F. Supp. 2d 206 (2000) (USA owned building managed by contractor. USA was aware that an infant resided there, and could be liable for injuries from lead-paint ingestion).
Conversely, in the following cases, the plaintiffs were not able to identify a specific duty retained by the USA:
- Autery v. United States, 424 F.3d 944 (9th Cir. 2005) (USA agency contracted with companies for the express purpose of controlling wildfires, and a wildfire occurred);
- Laurence v. Dep’t. of the Navy, 59 F.3d 112 (9th Cir. Cal. 1995) (USA agency contracted with a private firm to build, and that firm made a decision to use contaminated soil for backfill);
- Letnes v. United States, 820 F.2d 1517 (9th. Cir. 1987) (a pilot who had contracted with forest service was an independent contractor, and the forest service was not alleged to have breached a duty);
- Arora v. United States, 144 F. App’x 627, 628 (9th Cir. 2005) (a federal inmate housed in a city jail, and treated at a county hospital, brought a claim alleging inadequate medical care);
- Monroe v. United States Marshals, 1996 U.S. App. LEXIS 30007 (9th Cir. Wash. Nov. 15, 1996) (Unpub.) (federal inmate housed at city jail alleged negligence on part of city jail); and
- ABF Freight Systems, Inc., v. U.S., 2013 WL 3244804 (N.D. CA 2013) (Unpub.) (Plaintiff slipped outside a federal building. USA agency had contracted with security and maintenance company – no evidence that USA employee was negligent).
Following Edison, practitioners asserting FTCA claims should do the following:
- Review the contracts and actions of the USA and locate reservations of specific rights, and correlate those reserved rights to actionable state law torts;
- Clearly identify the USA’s direct negligence and the link to the injury;
- If available, identify any particular risks that may be non-delegable; and
- If contractors are also being sued, then separately assert the causes of action against the USA (rather than combine them in causes of action against “all defendants”).
If you follow these guidelines, your FTCA claim stands a good chance of surviving a dispositive motion. Not only will you avoid the roadblock of a motion to dismiss, but you will also gain something else: the opportunity to move forward to right wrongs inflicted on your client, while keeping the federal government in check.
Ian Wallach practices civil rights litigation as well as criminal defense. He maintains offices in Los Angeles and New York. Mr. Wallach, along with Jason Feldman, represented the plaintiffs Edison v. United States.