United States District Court, E.D. Louisiana
ORDER AND REASONS
SARAH S. VANCE, District Judge.
Defendant the United States of America moves on behalf of itself and defendant the United States Army Corps of Engineers to dismiss plaintiff's claims for lack of subject matter jurisdiction. For the following reasons, the Court grants the motion.
This dispute arises out of property damages stemming from construction of the Dwyer Road Intake Canal Project. Plaintiff S, Z & S, L.L.C. (SZ&S) owns a business located near the intersection of Dowman Road and Dwyer Road in New Orleans, Louisiana. SZ&S alleges that defendants United States of America and United States Army Corps of Engineers contracted with defendant Hill Brothers Construction Co. to perform construction services, including pile driving, on Dwyer Road near the intersection. The pile driving created "excessive vibrations" that allegedly caused property damage to SZ&S's nearby business. Specifically, SZ&S alleges that Hill Brothers "had full control and managed the entire project, including the pile driving, which caused the damages[.]"
On July 15, 2014, SZ&S filed this tort claim against its insurer Lloyds of London, the United States, the Army Corps, and Hill Brothers. The United States now moves to dismiss SZ&S's complaint for lack of subject matter jurisdiction on the ground that an independent contractor, not a government employee, committed the alleged injury producing act or omission. The United States contends that Hill Brothers is an independent contractor under the terms of its government contract, which vests Hill Brothers with full operational control of the construction project.
Federal Rule of Civil Procedure 12(b)(1) permits dismissal for lack of jurisdiction over the subject matter of a claim. In ruling on a Rule 12(b)(1) motion to dismiss, the Court may rely on (1) the complaint alone, (2) the complaint supplemented by undisputed facts, or (3) the complaint supplemented by undisputed facts and by the court's resolution of disputed facts. Willoughby v. United States ex. rel. U.S. Dep't of the Army, 730 F.3d 476, 479 (5th Cir. 2013); see also Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001). The party asserting jurisdiction bears the burden of establishing that the district court possesses jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
A plaintiff may sue the United States only if the United States has consented to suit in the circumstances. See Young v. U.S., 727 F.3d 444, 446-47 (5th Cir. 2013). The Federal Tort Claims Act (FTCA) permits tort actions against the United States for injury or damages caused by a government employee's negligence or wrongful act or omission while acting within the scope of his office or employment. 28 U.S.C. §§ 1346(b), 2672; Peacock v. United States, 597 F.3d 654, 659 (5th Cir. 2010). The FTCA does not, however, permit tort actions against the United States for injuries or damages caused by an independent contractor. See 28 U.S.C. § 2671; Peacock, 597 F.3d at 659.
Under the FTCA, government employees are "officers or employees of any federal agency, members of the military[, ] naval forces[, or] the National Guard... and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation[.]" 28 U.S.C. § 2671. The critical factor in determining whether a person or entity is a government employee is "whether the United States had the right to control the [contractor's] detailed physical performance... and whether the contractor's day-to-day operations are supervised by the Federal government." Jasper v. Fed. Emergency Mgmt. Agency, 414 F.App'x 649, 651 (quoting Logue v. United States, 412 U.S. 521, 528 (1973))(internal quotation marks omitted).
To distinguish government employees from independent contractors, courts also rely on the factors listed in § 220 of the Restatement (Second) of Agency:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or ...