Rabieh-v-United States of America,et.al

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6 SAN JOSE DIVISION

7

RAAD ZUHAIR RABIEH,

8 Case No. 5:19-cv-00944-EJD

Plaintiff,

9 ORDER GRANTING DEFENDANT’S

v. MOTION TO DISMISS

10

UNITED STATES OF AMERICA, et al., Re: Dkt. No. 24

11

Defendants.

12

13 In April 2016, Plaintiff was allegedly assaulted at the Robert F. Peckham Federal Building

14 in San Jose, California. Defendants argue that, to the extent this allegation is true, they are

15 improper defendants because the Federal Tort Claims Act (“FTCA”) bars Plaintiff from pursuing

16 the asserted causes of action against the United States. The Court finds this motion suitable for

17 consideration without oral argument. See N.D. Cal. Civ. L.R. 7-1(b). Having considered the

18 Parties’ papers, the Court GRANTS Defendants’ motion to dismiss.

19 I. BACKGROUND

20 A. Factual Background

21 On April 12, 2016, Plaintiff arrived at the Robert F. Peckham Federal Building (“Federal

22 Building”) around 10:30 a.m. for an appointment at the Social Security Administration (“SSA”)

23 Office. First Amended Complaint (“Compl.”) ¶ 25, Dkt. 14. Upon arrival, Plaintiff went through

24 a security scan without incident. Id. ¶ 26. After Plaintiff’s appointment, when he was attempting

25 to leave, he accidentally activated an alarm upon leaving the building through an emergency exit

26 door. Id. ¶¶ 29–30. A security guard approached Plaintiff and signaled for him to wait. Id. ¶ 31.

27 This guard was Paragon employee Mario Ayala (“Ayala”). Id. Ayala took Plaintiff to the lobby

1 area and asked for Plaintiff’s identification. Id. ¶ 32. Plaintiff complied and handed Ayala his

2 California Driver’s License. Id.

3 Plaintiff was seated in the lobby area. Id. ¶ 34. Ayala gave Plaintiff’s license to guard

4 Jose Leuterio (“Leuterio”). A period of time passed; Plaintiff was waiting for at least 30 minutes.

5 Id. ¶¶ 38–40. Plaintiff approached Ayala and asked what the delay was and why he was being

6 held. Id. ¶ 40. Ayala told Plaintiff to continue waiting. Id. Plaintiff asked Ayala if he could

7 speak to Ayala’s supervisor, but Ayala told Plaintiff his supervisor was not present. Id. ¶ 41.

8 Plaintiff asked for the supervisor’s phone number. Id. Ayala dictated the number to Plaintiff, who

9 had taken his cell phone out to type the number. Id. ¶ 42. During this interaction, another guard,

10 Joseph Vegas (“Vegas”), approached Plaintiff from behind yelling, “You can’t use your phone in

11 here!” Id. ¶ 43. Vegas yelled, “Do you want me to arrest you?” and Plaintiff responded, “Arrest

12 me for what?” Id. Without warning, Vegas twisted and pinned Plaintiff’s right arm behind his

13 back; Leuterio rushed to Plaintiff’s right side and began yelling, “Comply” and “He is not

14 complying.” Id. ¶ 44. Vegas handcuffed Plaintiff’s right wrist. Id. ¶ 47. Vegas and Leuterio then

15 slammed Plaintiff’s left-side body, face-first, into a nearby wall, causing a laceration and abrasions

16 to his left-side body. Id. ¶ 46. Because Plaintiff’s right wrist was pinned by Vegas, he could not

17 use his hands to soften the blow, which caused a cut on the left side of his head. Id. ¶ 47. Plaintiff

18 was next slammed to the floor; his right-side body contacted the floor first, and then the guards

19 turned him face down. Id. Plaintiff was then handcuffed. Id. He was bloody, bruised and

20 disoriented. Id. ¶ 48. Plaintiff alleges that he made no movements during this time; he neither

21 physically nor verbally threatened or resisted the officers. Id. ¶¶ 45, 47.

22 The Paragon guards called the San Jose Police Department (“SJPD”) through the Federal

23 Protective Service’s (“FPS”) Denver Megacenter. Id. ¶ 52. Vegas then tightened the handcuffs

24 such that they caused laceration and bruising to Plaintiff’s wrists. Id. ¶ 53.

25 B. Relationship Between FPS and Paragon

26 In many federal buildings, a Facility Security Committee (“FSC”), composed of

27 representatives of all federal tenants of the building, decides what security countermeasures to

1 implement based on their budgetary constraints and agency priorities. Declaration of Roger

2 Scharmen (“Scharmen Decl.”) ¶ 11, Dkt. 26. To aid in these decisions, the FPS provides an

3 assessment of local conditions and security needs, but this recommendation is not binding on the

4 FSC. Id. ¶¶ 11, 16. Contract security guards are typically one of the security countermeasures

5 requested by the FSC. Id. ¶ 11.

6 In April 2016, Paragon Systems Inc. (Paragon) provided security screening at the Federal

7 Building. Id. ¶ 6. Paragon is a private corporation. Id. Under the contract between Paragon and

8 FPS, Paragon provided security services and maintained the day-to-day security at the facility, i.e.

9 security and screening. Declaration of Kelly Minturn (“Minturn Decl.”) ¶ 6, Dkt. 25. FPS

10 provided oversight of the security contract but did not oversee Paragon employee’s day-to-day

11 activities or control the physical performance of the contract. Id. The security guards, or

12 Protective Security Officers (“PSOs”),1 are Paragon employees—FPS has no human resources or

13 personnel department to manage PSOs. Id. ¶ 7. Paragon is responsible for most of the training of

14 PSOs, including their certification in lethal and nonlethal weapons, response procedures, and the

15 use of force. Id. ¶¶ 8–9. Pursuant to the FPS-Paragon Contract, Paragon provides all

16 management, supervision, equipment, and certifications for PSOs. Id. ¶ 8.

17 Paragon advertises PSO positions and interviews and evaluates candidates. Scharmen

18 Decl. ¶ 10. FPS performs federal background checks for candidates and makes a suitability

19 determination based on information disclosed in that background investigation. Id. While

20 Paragon does most of the training, FPS does administer a written examination of PSOs, which

21 they must pass in order to begin work. Scharmen Decl. ¶ 17. Paragon, however, has latitude in

22 working with the contractor to respond to trends or deficiencies shown by the test data. Id. FPS

23 officers perform period checks of security posts to ensure compliance with the contract. Id. ¶ 15.

24 FPS Directives establish a minimum yearly number of compliance checks, but FPS Officers have

25 discretion to increase them in response to local conditions and the FPS regional director can alter

26

27

1 The Court refers to the Paragon private security guards as either Paragon employees or PSOs.

1 the minimum monitoring standard where circumstances permit. Id. PSOs are not federal law

2 enforcement officers, they are not empowered by law to make arrests, searches, or seizures.

3 Minturn Decl. ¶ 13. They can perform administrative inspections and detain violent or disruptive

4 persons, but their authority to detain is based on their state’s citizen’s arrest authority. Id. When

5 PSOs discover a prohibited item or believe a person may have committed a federal crime, they

6 contact either FPS or local law enforcement and hold the person until a law enforcement officer

7 arrives to make a constitutional search and seizure. Id.

8 C. Procedural History

9 Plaintiff filed his initial complaint on February 20, 2019. Complaint for Damages against

10 United State of America, Dkt. 1. On May 9, 2019, he filed his first amended complaint. First

11 Amended Complaint (“FAC”), Dkt. 14. In this amended complaint, Plaintiff asserts five causes of

12 action: (1) negligence and premises liability, (2) negligent hiring, training, and supervision by

13 Defendants, (3) assault and battery, (4) false imprisonment and false arrest, and (5) negligent

14 infliction of emotional distress.2 FAC ¶¶ 66–94. Defendants filed a motion to dismiss on July 12,

15 2019.3 Motion to Dismiss (“Mot.”), Dkt. 24. Plaintiff filed an opposition on July 26, 2019.

16 Opposition re Motion to Dismiss (“Opp.”), Dkt. 30. On August 2, 2019, Defendants filed a reply.

17 Reply re Motion to Dismiss (“Reply”), Dkt. 32.

18 II. LEGAL STANDARDS

19 A. Rule 12(b)(1) Motion

20 The question of whether the United States has waived its sovereign immunity is one of

21

22

2 California law, as applied in an FTCA case, does not recognize negligent infliction of emotional

23 distress as a separate tort from negligence. White v. Soc. Sec. Admin., 111 F. Supp. 3d 1041, 1054

(N.D. Cal. 2015). Because Plaintiff’s first cause of action is for negligence, his fifth cause of

24 action is redundant and DISMISSED with prejudice as it is duplicative.

3 Plaintiff asserts his claims against several defendants: The United States of America, the U.S.

25 Department of Homeland Security (“DHS”), unknown FPS officers, and the FPS. The only proper

defendant in an FTCA action is the United States of America. Allgeier v. United States, 909 F.2d

26 869, 871 (6th Cir. 1990) (“The FTCA clearly provides that the United States is the only proper

defendant in a suit alleging negligence by a federal employee.” (citing 28 U.S.C. § 2679(a)); see

27 also 28 U.S.C. § 2679(b)(1). The claims against Defendants FPS, Homeland Security, and

unknown FPS officers are thus DISMISSED. See Mot. at 18.

1 subject matter jurisdiction and should be considered under a Rule 12(b)(1) standard. See, e.g.,

2 McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (holding Rule 12(b)(1) motion is

3 proper mechanism for motion to dismiss FTCA claim); Nevin v. United States, 696 F.2d 1229,

4 1231 (9th Cir. 1983) (concluding that whether discretionary function exemption applies under

5 FTCA is a question of subject-matter jurisdiction).

6 Federal Rule of Civil Procedure 12(b)(1) allows a Defendant to attack a complaint for lack

7 of subject matter jurisdiction. A defendant may either challenge jurisdiction “facially” by arguing

8 the complaint “on its face” lacks jurisdiction or “factually” by presenting extrinsic evidence

9 (affidavits, etc.) demonstrating the lack of jurisdiction on the facts of the case. Wolfe v.

10 Strankman, 392 F.3d 358, 362 (9th Cir. 2004); Safe Air for Everyone v. Meyer, 373 F.3d 1035,

11 1039 (9th Cir. 2004). In resolving a factual attack, the district court may review evidence beyond

12 the complaint without converting the motion to dismiss into one for summary judgment. Safe Air,

13 373 F.3d at 1039; White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). No presumptive truthfulness

14 attaches to the plaintiff’s allegations and the existence of disputed material facts will not preclude

15 the trial court from evaluating the merits of jurisdictional claims. Gregory Vill. Partners, L.P. v.

16 Chevron U.S.A., Inc., 805 F. Supp. 2d 888, 895 (N.D. Cal. 2011). Once the defendant presents

17 extrinsic evidence, the plaintiff, who bears the burden of proving jurisdiction exists, must establish

18 jurisdiction with evidence from other sources. Id.; see also Savage v. Glendale Union High Sch.,

19 343 F.3d 1036, 1039 n.2 (9th Cir. 2003).

20 B. Federal Tort Claims Act (FTCA)

21 The United States is immune from suit unless it consents to be sued. Edison v. U.S., 822

22 F.3d 510, 517 (9th Cir. 2016) (citing Feres v. United States, 340 U.S. 135, 139 (1950)). The

23 FTCA “waives the sovereign immunity of the United States for actions in tort” and “vests the

24 federal district courts with exclusive jurisdiction over suits arising from the negligence of

25 Government employees.” Valadez-Lopez v. Chertoff, 656 F.3d 581, 855 (9th Cir. 2011). This is a

26 limited waiver of sovereign immunity; the United States is only liable “to the same extent as a

27 private party for certain torts of federal employees . . . in accordance with the law of the place

1 where the act or omission occurred.” Edison, 822 F.3d at 517 (quotation marks and citation

2 omitted); see also 28 U.S.C. § 1346(b)(1).

3 The FTCA’s Independent Contractor Exception. The limited waiver of sovereign

4 immunity explicitly excludes “any contractor with the United States” from its definition of

5 “[e]mployee of the government.” 28 U.S.C. § 2671. This is known as the independent contractor

6 exception to the FTCA and protects the United States from vicarious liability for the negligent acts

7 of its independent contractors. Edison, 822 F.3d at 517–18. “Since the United States can be sued

8 only to the extent that it has waived its immunity, due regard must be given to the exceptions,

9 including the independent contractor exception, to such waiver.” United States v. Orleans, 425

10 U.S. 807, 814 (1976). Whether the United States has declined to exercise day-to-day control over

11 the operations of its contractor is not the end of the analysis—the independent contractor

12 exception has no bearing on the United States’ FTCA liability for its own acts or omissions.

13 Edison, 822 F.3d at 518. The United States may be liable if a plaintiff has sufficiently alleged a

14 nondelegable or undelegated duty, which the United States is directly liable for breaching. Id.

15 Discretionary Function Exception. The limited waiver of sovereign immunity also

16 excludes acts that are discretionary in nature—“acts that ‘involv[e] an element of judgment or

17 choice.” United States v. Gaubert, 499 U.S. 315, 322 (1991) (quoting Berkovitz v. United States,

18 486 U.S. 531, 536 (1988). If a “federal statute, regulation, or policy specifically prescribes a

19 course of action for an employee to follow,” the exception does not apply because “the employee

20 has no rightful option but to adhere to the directive.” Berkovitz, 486 U.S. at 536. The exception is

21 prevents judicial “second-guessing” of legislative and administrative decisions and thus the

22 exception should only protect “government actions and decisions based on considerations of

23 [social, economic, and political] policy.” Berkovitz, 486 U.S. at 537.

24 Intentional Tort Claims Exception. The FTCA limits its waiver of sovereign immunity

25 for claims involving assault, battery, false imprisonment, and other intentional torts—these may

26 only be brought if the federal employees who committed the tort are “investigative or law

27 enforcement officers of the United States Government.” 28 U.S.C. § 2680(h). Investigative or

1 law enforcement officer means “any officer of the United States who is empowered by law to

2 execute searches, to seize evidence, or to make arrests for violations of Federal law.” Id.

3 Immunity determinations for intentional torts thus depend on a federal officer’s legal authority,

4 not on the particular exercise of that authority. Millbrook v. United States, 569 U.S. 50, 56 (2013).

5 Under the statute, an intentional tort is not actionable unless it occurs while the law enforcement

6 officer is “acting within the scope of his office or employment.” Id. at 57 (quoting 28 U.S.C.

7 2680(h)). Hence, if the intentional tortfeasor is not a federal officer, the court has no jurisdiction

8 under the FTCA to consider the intentional tort.

9 III. DISCUSSION

10 Defendants argue that this Court lacks subject matter jurisdiction over Plaintiff’s claims

11 because they are outside the scope of the FTCA’s waiver of sovereign immunity. See Mot. at 7–

12 18. Defendants assert that either the claims are barred by either the intentional tort claims,

13 independent contractor, or discretionary function exceptions. Id. Defendants bring a factual

14 12(b)(1) attack, Plaintiffs argue this is improper. Thus, the Court must first determine if it can

15 consider extrinsic evidence and resolve factual disputes without converting this motion into one

16 for summary judgment.

17 A. Consideration of Extrinsic Evidence/Resolution of Factual Disputes

18 A court may consider extrinsic evidence in a Rule 12(b)(1) motion without converting it

19 into one for summary judgment. Safe Air, 373 F.3d at 1039. Plaintiff argues, however, that it is

20 improper for the Court to consider Defendants’ extrinsic evidence because “the question of

21 jurisdiction depends on the resolution of factual issues going to the merits.” Opp. at 5 (citing

22 Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (“The relatively expansive standards

23 of a 12(b)(1) motion are not appropriate for determining jurisdiction in a case . . . where issues of

24 jurisdiction and substance are intertwined.”).

25 A court may use a factual Rule 12(b)(1) motion to resolve issues of jurisdiction where the

26 question of jurisdiction is separate from the resolution of factual issues going to the merits. See

27 Roberts, 812 F.2d at 1177. Hence, if the jurisdictional issues are separate “threshold” questions, a

1 factual Rule 12(b)(1) motion is proper. Questions of whether FTCA exceptions apply fit within

2 this category—they are distinct, threshold questions of jurisdiction and thus can be resolved using

3 a Rule 12(b)(1) standard. See, e.g., Edison, 822 F.3d at 517 (approving of Rule 12(b)(1)’s use in

4 determining if independent contractor exception applied); SAI v. Smith, 2018 WL 534305, at *4–6

5 (N.D. Cal. Jan. 24, 2018) (assessing whether independent contractor and discretionary function

6 exceptions applied to TSA screeners pursuant to a factual Rule 12(b)(1) motion).

7 To rebut this case law, Plaintiff cites to Williston Basin Interstate Pipeline Co. v. An

8 Exclusive Gas Storage Leasehold and Easement in the Cloverly Subterranean, Geological

9 Formation, 524 F.3d 1090 (9th Cir. 2008) and In re Wilshire Courtyard, 729 F.3d 1279 (9th Cir.

10 2013) as support that the resolution of the jurisdictional issues using extrinsic evidence is

11 improper. Opp. at 5. Neither of these cases, however, discuss or analyze the FTCA or whether

12 FTCA exceptions present threshold jurisdictional issues. Further, neither involves a factual Rule

13 12(b)(1) motion. Thus, these cases are inapplicable.

14 Plaintiff also cites to Kerns v. United States, 585 F.3d 187 (4th Cir. 2009) and Montez v.

15 Department of Navy, 392 F.3d 147 (5th Cir. 2004). Both held that jurisdictional dismissal is

16 inappropriate in an FTCA “scope-of-employment” case because “scope-of-employment issues”

17 are determinative of both jurisdiction and the underlying merits. Kerns, 585 F.3d at 196; Montez,

18 392 F.3d at 148. In Montez, the court followed the general rule that “a jurisdictional attack

19 intertwined with the merits of an FTCA claim should be treated like any other intertwined attack,

20 thereby making resolution of the jurisdictional issue on a Rule 12(b)(1) motion improper.” 392

21 F.3d at 150. In Kerns, however, the court explicitly stated that the same “general rule” would not

22 apply to disputes involving whether the independent contractor or discretionary function

23 exceptions applied because those are separable jurisdictional issues. 585 F.3d at 196.

24 Our conclusion that a Rule 12(b)(1) dismissal was inappropriate in

this case is not undermined by our decision in Williams v. United

25 States, 50 F.3d 299 (4th Cir.1995), where we approved dismissal of

an FTCA claim under Rule 12(b)(1). The disputed issues in

26 Williams—whether the alleged employee was an independent

contractor and whether the discretionary-function exception

27 applied—were threshold issues wholly unrelated to the basis for

liability under the FTCA. For example, whether the Government had

1 managed or supervised the activities of the alleged tortfeasor in

Williams, thereby rendering the tortfeasor an independent contractor

2 rather than an employee, was not an issue intertwined with the merits

of the FTCA claim then being pursued. With the scope-of-

3 employment issue in this case, however, the conduct of Scott herself,

rather than her status, is determinative of both jurisdiction and the

4 merits of the FTCA claim.

5 Id. (emphasis added).

6 Plaintiff’s case law is thus inapposite—the issue at hand is not whether the Paragon guards

7 were “acting in the scope of employment,” it is whether: (1) Paragon guards are “investigative or

8 federal law enforcement officers,” (2) FPS exercised substantial supervision over the guards, and

9 (3) the security policies were an exercise of the discretionary function. Cf. Kerns, 585 F.3d at 196;

10 Montez, 392 F.3d at 148 (discussing “scope of employment” issues). While Defendants provide

11 no case law stating that the intentional torts exception may be raised in a Rule 12(b)(1) motion, the

12 Court finds the reasoning of Kerns analogous: whether Paragon guards are “federal officers”

13 within the meaning of 28 U.S.C. § 2680(h) is distinct from whether they committed intentional

14 torts. Likewise, the independent contractor and discretionary function exceptions present

15 threshold questions that distinct from the merits—their resolution has no bearing on the conduct of

16 the Paragon officers or the FPS. Thus, this Court will apply Rule 12(b)(1)’s factual attack

17 standard and need not convert Defendants’ motion into a Rule 12(b)(6) motion to dismiss or Rule

18 56 motion for summary judgment.

19 B. Intentional Tort Claims Exception

20 Plaintiff asserts two intentional tort claims: assault and battery (third cause of action) and

21 false imprisonment and false arrest (fourth cause of action). For these intentional torts to fall

22 within the FTCA’s waiver of sovereign immunity, the tortfeasor must be an “investigative or law

23 enforcement officer of the United States Government” who is “empowered by law to execute

24 searches, to seize evidence, or to make arrests for violations of Federal law.” See 28 U.S.C.

25 § 2680(h) (listing assault, battery, false imprisonment, and false arrest). Defendants argue that

26 because the Paragon guards are not “investigative or law enforcement officers,” the FTCA does

27 not permit this Court to hear the intentional tort claims. Mot. at 16–18.

1 In Wilson v. United States, the Second Circuit held that parole officers are not “investigate

2 or law enforcement officers” because (1) federal law does not vest them with the power to make

3 arrests, but only “recommend that [issuance of] an arrest warrant” and (2) they can only perform

4 consensual searches of parolee property and thus are not empowered by law to “execute searches”

5 or “seize evidence.” 959 F.2d 12, 15 (2d Cir. 1992). Federal courts have further concluded that

6 Transportation Safety Administration (“TSA”) screeners are not “investigative or law enforcement

7 officers” within the meaning of Section 2680(h). See, e.g., Walcott v. United States, 2013 WL

8 5708044, at *2 (E.D.N.Y. Oct. 18, 2013) (“As several other district courts have concluded, TSA

9 screeners are not ‘investigative or law enforcement officer[s]’ within the meaning of § 2680(h).”

10 (alteration in original)); Id. at *3 (collecting cases). The Walcott court noted screeners are not

11 empowered by law to “seize evidence” or “execute searches;” federal law delegates that authority

12 to “law enforcement officer[s] . . . with different job qualifications and responsibilities.” Id. at *2.

13 TSA screeners may only conduct narrow, specific administrative searches. Id. If a screener finds

14 something illegal, “[they are] not authorized to arrest the person or seize the item, but instead must

15 call a Port Authority police officer to do so.” Id. The Walcott court thus held that TSA screeners

16 were not “investigative or law enforcement officer[s].” Id. at *1. While some cases have reached

17 an alternative conclusion, that is irrelevant here: Plaintiff alleges no federal law that authorized or

18 directed Paragon employees to search, seize, or arrest building entrants. Compare Armato v. Doe

19 1, 2012 WL 13027047, at *3–4 (D. Ariz. May 15, 2012) (holding TSA agents qualify as

20 “investigative or law enforcement officer[s]” because federal law authorized TSA agents to

21 “screen,” i.e., search, passengers), with Compl. ¶¶ 15, 18 (alleging Paragon security guards, who

22 are directed by contract, not federal law, to search entrants to the SSA Office, assaulted him).

23 Contrary to Plaintiff’s assertion, Paragon PSOs are not FPS officers. Cf. Compl. ¶ 15

24 (addressing Plaintiff’s intentional tort claims and stating “the relevant acts and/or omissions of the

25 FPS officer(s) caused Plaintiff’s injuries”). Paragon PSOs are not empowered by federal law to

26 perform searches, make seizures, or arrest anyone. Minturn Decl. ¶ 13. In fact, much like TSA

27 screeners, PSOs are only permitted to carry out administrative inspections and detain people who

1 are disruptive, violent, suspected of committing a crime, or violating federal regulations while on

2 federally-owned property. Id.; see also Wilson, 959 F.2d at 15. In the related state action, PSOs

3 testified they only have power to detain (not arrest) individuals on federal property because they

4 are only “security” guards. Scharf Declaration (“Scharf Decl.”), Ex. B at ECF 5, Dkt. 29. If the

5 PSOs do detain someone, they are instructed to contact the FPS Megacenter, who dispatches an

6 FPS office or local law enforcement officer who can perform a constitutional, statutorily

7 authorized arrest, if necessary. Minturn Decl. ¶ 13. Indeed, here, after Plaintiff was detained,

8 Paragon employees contacted FPS Megacenter. Lopez Declaration (“Lopez Decl.”) ¶ 5, Dkt. 27.

9 PSOs are therefore not “investigative or federal law enforcement officer[s]” because they lack the

10 power to “execute searches, to seize evidence, or to make arrests for violations of Federal law.”

11 28 U.S.C. § 2680(h); Wilson, 959 F.2d at 15; Walcott, 2013 WL 5708044, at *2–3.

12 Plaintiff does not respond to Defendants’ arguments that Paragon employees are not

13 “investigative or law enforcement officers of the United States Government.” Mot. at 16–17.

14 Plaintiff argues only that FPS is a law enforcement agency with law enforcement officers, but this

15 misses the point. Opp. at 16. Defendants’ argument is not whether FPS is a federal agency with

16 federal officers, but whether the Paragon guards are “investigative or federal law enforcement

17 officers.” As demonstrated above, private security guards are not federal law enforcement

18 officers. The law requires that the specific intentional tortfeasor be a law enforcement officer, not

19 that they work at, or in connection with, a law enforcement agency . See Millbrook, 569 U.S. at

20 56. No FPS officer was on scene during the alleged assault and the alleged tortfeasors are Paragon

21 guards, who are not “federal officers.” See Lopez Decl. ¶¶ 5–6; Compl. ¶¶ 42–53. Thus, Plaintiff

22 has not alleged the intentional torts were committed by an “investigative or federal law

23 enforcement officer.” Accordingly, the intentional torts exception applies and Defendants’ motion

24 to dismiss is GRANTED for claims three and four.

25 C. Independent Contractor Exception

26 The FTCA’s limited waiver of sovereign immunity explicitly excludes “any contractor

27 with the United States” from its definition of “employee of the government.” 28 U.S.C. § 2671.

1 The United States cannot be vicariously liable for the acts of an independent contractor. Edison,

2 822 F.3d at 517. Some duties, however, are nondelegable and the United States can remain

3 directly liable for its own torts. Yanez v. United States, 63 F.3d 870, 872 (9th Cir. 1995).

4 Defendants argue that Plaintiff’s first cause of action (negligence and premises liability)

5 must be dismissed because this Court lacks subject-matter jurisdiction over it since it is outside the

6 scope of the FTCA. Mot. at 7. Plaintiff rebuts this using two theories: (1) Paragon guards are not

7 independent contractors because FPS exercised sufficient day-to-day control over the guards and

8 (2) FPS had a non-delegable duty over the armed security guards. Opp. at 7. The Court addresses

9 these arguments in turn.

10 1. Sufficient Control/Substantial Supervision

11 “A critical element in distinguishing an agency from a contractor is the power of the

12 Federal Government ‘to control the detailed physical performance of the contractor.’” United

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

14 (1973)). “Under the FTCA, the United States is subject to liability for the negligence of an

15 independent contractor only if it can be shown that the government had authority to control the

16 detailed physical performance of the contractor and exercised substantial supervision over its day-

17 to-day activities.” Laurence v. Dep’t of Navy, 59 F.3d 112, 113 (1995).

18 Where a contract directs the performance of the independent contractor, this generally will

19 not convert the independent contractor into a government employee. Autery v. United States, 424

20 F.3d 944, 957 (9th Cir. 2005). The United States may fix “specific and precise conditions to

21 implement federal objectives” without becoming liable for an independent contractor’s

22 negligence. Orleans, 425 U.S. at 816. Standards that are designed to “secure federal safety

23 objectives” also do not convert an agent into an employee. Autery, 424 F.3d at 957. Detailed

24 regulations and inspections are not evidence of an employee relationship. Id. Thus, “the ability to

25 compel compliance with federal regulation does not change a contractor’s personnel into federal

26 employees.” Id. There must be “substantial supervision” over the contractor to find the

27 individual was acting as a government employee. Id. (emphasis added). As Plaintiff notes, the

1 government must have the authority to control the “detailed physical performance of the

2 contractor.” Opp. at 7 (quoting Letnes v. United States, 820 F.2d 1517, 1518 (9th Cir. 1987))

3 (emphasis added).

4 Plaintiff argues that because the Paragon employees needed direction from FPS following

5 the sounding of the emergency exit alarm, FPS controlled Paragon employees’ day-to-day

6 activities and substantially supervised them. Opp. at 11–12. Plaintiff also argues that Paragon

7 employees were not independent contractors because they referred to FPS Officer Lopez as their

8 “supervisor.” Opp. at 12. Finally, Plaintiff argues that an online report by the Government

9 Accountability Office (“GAO”) shows substantial supervision because it states the FPS “manages

10 and oversees 13,500 PSOs” at various federal facilities. Opp. at 12. None of these arguments

11 allow the Court to conclude FPS “substantially oversaw” and controlled the day-to-day activities

12 of the guards.

13 First, the fact that Paragon PSOs were directed to contact FPS after the sounding of the

14 alarm does not show that FPS controlled the “detailed physical performance” of Paragon

15 employees. Letnes, 820 F.2d at 1518. The PSOs testified that they only made calls for someone

16 setting off the building emergency exit alarm about “once per year.” Scharf Decl., Ex. A at 11,

17 Ex. B at 103. Further, Paragon managed the details of employment. FPS/DHS did not maintain a

18 personnel department to manage PSOs. Minturn Decl. ¶ 6. Paragon, not FPS, supervised,

19 managed, and equipped PSOs, while FPS only provided contractual oversight to ensure

20 compliance with the Contract. Id. ¶ 8. Paragon maintained PSO competency and disciplined its

21 PSOs. Id. ¶ 11. FPS’s main involvement with PSOs was setting specific requirements for the

22 security contract and ensuring compliance with its terms. Cf. Orleans, 425 U.S. at 816 (noting

23 that the United States may fix “specific and precise conditions to implement federal objectives”

24 without converting a contractor to a federal employee). Thus, the instruction to call FPS once

25 someone set off the alarm is not “substantial supervision,” especially considering that Paragon,

26 rather than FPs, mainly oversaw Paragon employees. See Macharia v. United States, 238 F. Supp.

27 2d 13, 27 (D.D.C. 2002) (“Broad supervisory control, even on a daily basis, does not suffice to

1 demonstrate control over the physical performance of the contractor.”); Singh v. S. Asian Soc’y of

2 George Washington Univ., 572 F. Supp. 2d 1, 10 (D.D.C. 2008) (“Requirements that a contractor

3 comply with certain regulations, specifications, or standards [like the requirement that all incidents

4 be reported to FPS] in performing its work do not, alone establish that the United States

5 supervised the contractor’s day-to-day operation . . . .”).

6 Second, Plaintiff submitted evidence contradicting his assertion that Officer Lopez was the

7 PSOs’ “supervisor.” See Pia Kim Declaration (“Kim Decl.”), Ex. 5 at 7, Dkt. 31 (police report

8 states supervisor name as Officer Lopez). In Exhibit 6 to the Kim Declaration, PSO Ayala affirms

9 that Lieutenant Meza, a Paragon employee, is his supervisor. Kim Decl., Ex. 6 at 3 (“I want to

10 talk to your supervisor. I gave him Lt Meza phone # . . . . Mr. Rabieh decided to call Lt Meza);

11 see also Second Declaration of James A. Scharf (“Second Scharf Decl.”), Ex. A at 16–18, Dkt. 33

12 (testifying that Lieutenant Meza was his supervisor); Id. Ex. B at 91–92 (Plaintiff testifying that he

13 remembers supervisor was Lieutenant Meza). Because this is a Rule 12(b)(1) motion, the Court

14 can resolve factual disputes. Considering the evidence, there is more evidence (made under oath)

15 showing Lieutenant Meza was the supervisor of the Paragon employees, not Officer Lopez.

16 Finally, in the GAO report, on the same page Plaintiff cites, it refers to PSOs as “contract

17 guards” and “a contracted security workforce.” Kim Decl., Ex. 4 at 5. The forty-page report

18 spends only two-pages discussing PSOs and notes, “FPS did not include PSOs in its staffing

19 model,” further indicating that PSOs are not part of the FPS workforce but are contract workers.

20 Id. at 4.

21 Accordingly, Plaintiff has not shown that the FPS exercised sufficient supervisory control

22 over the day-to-day activities of Paragon PSOs.

23 2. Nondelegable Duty

24 Plaintiff argues that even if FPS did not exercise day-to-day supervision over Paragon

25 employees, the federal government is still liable because it owed him a nondelegable duty. He

26 argues “liability will attach for the government’s ‘nondelegable duty to ensure that the contractor

27 employs safety procedures.’” Compl. ¶ 14 (quoting Edison, 822 F.3d at 518 n.4). This principle

1 is much narrower than Plaintiff contends: the full passage reads “Under the FTCA, the United

2 States may not be held vicariously liable. However, [peculiar risk] liability has been construed as

3 creating direct liability for the government's nondelegable duty to ensure that the contractor

4 employs proper safety procedures.” Edison, 822 F.3d at 518 n.4 (alteration in original). Thus,

5 where an employer has delegated some responsibilities to an independent contractor, the employer

6 may still be liable if the delegated responsibilities were “nondelegable” because the work

7 performed is “inherently dangerous” or presents a “peculiar risk.”4 Id. at 518 & n.4.

8 Plaintiff focuses on the United States’ alleged nondelegable duty in his opposition. Opp. at

9 13. Plaintiff argues that under landowner premise liability, Defendants are still liable for Paragon

10 PSOs’ acts or omissions.5 Opp. at 9, 13 n.4. According to Plaintiff, under California law, the

11 proprietors of business premises also “owe a duty to their patrons to maintain their premises in a

12 reasonably safe condition,” which “includes an obligation to undertake ‘reasonable steps’ to

13 secure common areas against foreseeable criminal acts of third parties that are likely to occur in

14 the absence of such precautionary measures.” Id. at 9 (citing Delgado v. Trax Bar & Grill, 113

15 P.3d 1159, 1165 (Cal. 2005). Of course, often these “reasonable steps” can include the hiring of

16 security guards. Delgado, 113 P.3d at 1166.

17 In Schreiber v. Camm, the court held that the use of armed security guards to protect one’s

18 property is not so inherently dangerous as to confer a nondelegable duty upon the landowner. 848

19

20 4 Plaintiff refers to Defendants argument surrounding peculiar risk as “inexplicable.” Opp. at 13

n.4. Defendants refer to this because Plaintiff cited the quote in his First Amended Complaint.

21 Compl. ¶ 14. Plaintiff seemingly reclassifies his argument as a nondelegable duty argument based

on landowner premises liability. To the extent “peculiar risk” is still in issue, the Court agrees

22 with Defendants that Plaintiff does not allege any peculiar risk posed by Paragon security guards

and that it would be difficult to consider the provision of security guards as presenting a peculiar

23 risk to the public. Mot. at 11; see also e.g., Chaffin v. United States, 176 F.3d 1208, 1214 (9th Cir.

1999) (recognizing peculiar risks as dangers posed by truly extraordinary circumstances like polar

24 bear attacks).

5 Plaintiff also argues negligent hiring is a nondelegable duty. Opp. at 9 (citing Hawkins v. Wilton,

25 51 Cal. Rptr. 3d 1, 5 (Cal. Ct. App. 2006) (stating that the employer of security guards may be

liable for the assaults of the security guard if the guards were negligently hired or placed in a

26 position to commit foreseeable acts). The Court, however, does not address this argument here—

negligent hiring, supervision, and training is Plaintiff’s second cause of action. Defendants do not

27 argue that the second cause of action is barred by the independent contractor exception, and thus

Plaintiff’s briefing on this subject is inapplicable.

1 F. Supp. 1170, 1177 (D.N.J. 1994). Plaintiff’s premises liability claim focuses on Defendants’

2 alleged negligence in securing the safety of visitors to the Peckham Federal Building. Compl.

3 ¶ 67. Plaintiff provides no facts showing Defendants negligently failed to take “reasonable steps”6

4 to secure the building or that the use of Paragon guards was so dangerous that FPS had a

5 nondelegable duty over their actions. The mere presence of armed guards is insufficient to

6 establish a nondelegable duty7 as Plaintiff presents no case law showing armed security guards are

7 inherently dangerous. See Schreiber, 848 F. Supp. at 1177 (holding deployment of armed security

8 guard is not inherently or abnormally dangerous activity, absent knowledge of the dangerous

9 propensities of the guard). Further, Plaintiff has not shown Defendants failed to take “reasonable

10 steps.” Delgado, 113 P.3d at 1165. Thus, Plaintiff has not shown a non-delegable duty.

11 Accordingly, because Plaintiff has not shown either day-to-day supervision or a

12 nondelegable duty, the FTCA’s independent contractor exception applies and Defendants’ motion

13 to dismiss is GRANTED for claim one.

14 D. Discretionary Function Exception

15 Defendants argue that Plaintiff’s negligent hiring, supervision, and training claim (claim

16 two) must be dismissed because it falls under the FTCA’s discretionary function exception. The

17 exception applies to government action that is of the type that is “susceptible to policy analysis”

18

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6 The Court does not understand if Plaintiff is arguing the premises themselves were unsafe or if

20 the presence of the guards presented a nondelegable duty on the landowner to make the premises

safe. The reasoning provided should not be construed as evaluating a negligence argument, which

21 typically would be brought under Rule 12(b)(6), using Rule 12(b)(1). The Court, however, cannot

construe Plaintiff’s argument because it is unclear what Plaintiff is arguing. Should Plaintiff

22 amend his complaint, he is instructed to clearly allege the facts constituting negligence versus

premises liability.

23 7 Defendants also argue this claim should be dismiss under the discretionary function exception

because security decisions, like the implementation of security measures, are discretionary. See

24 Macharia v. United States, 238 F. Supp. 2d 13, 25–26 (D.C. Cir. 2002) (holding “[d]ecisions

regarding how much safety equipment should be provided to a particular embassy, how much

25 training should be given to guards and embassy employees, and the amount of security-related

guidance that should be provided necessarily entails balancing competing demands for funds and

26 resources” are exactly the type of discretionary functions Congress had in mind). Because

Defendants have discretion in implementing the level of security measures they deem appropriate,

27 based on security needs and resource constraints, the Court agrees that claim one is also barred by

the discretionary function exception.

1 and “grounded in social, economic, and political policy.” O’Toole v. United States, 295 F.3d

2 1029, 1033–34 (9th Cir. 2002). The court must first ask whether the challenged action was

3 discretionary, i.e., whether it was governed by a mandatory statute, policy, or regulation.

4 Whisnant v. United States, 400 F.3d 1177, 1180–81 (9th Cir. 2005). Next, the court asks whether

5 the challenged action is of the type Congress meant to protect. Id. As an initial matter, the

6 challenged action is not governed by a mandatory statute, policy, or regulation and FPS directives

7 allow FPS significant discretion in construing contract compliance by PSOs. Scharmen Decl.

8 ¶ 15. Plaintiff does not contest that step one is inapplicable.

9 Regarding step two, Plaintiff argues that “judgments concerning safety—are rarely

10 considered to be susceptible to social, economic, or political policy.” Opp. at 14 (quoting

11 Whisnant, 400 F.3d at 1181). Plaintiff argues that any decision related to safety and law

12 enforcement decisions is outside the discretionary function exception. Id. But, a mere relation to

13 issues of public safety does not place the case outside the discretionary function exception—where

14 the case relates to the design of safety measures and precautions, as opposed to their deficient

15 execution or implementation, it generally is “shielded by the discretionary function exception.”

16 See Whisnant, 400 F.3d at 1181–82. Likewise, matters of scientific and professional judgment,

17 especially judgments concerning safety, are rarely “considered to be susceptible to social,

18 economic, or political policy.” Id. at 1181.

19 Plaintiff argues FPS was negligent in designing its directives and written safety policies,

20 specifically its requirement that an FPS officer be called if a visitor set off an emergency alarm

21 and its “written safety policies regarding the use of force, weapons, and detention.” Opp. at 14.

22 These “directives” and “written safety policies” are safety measure “designs” and are thus within

23 the discretionary function exception. See Whisnant, 400 F.3d at 1181–82. Moreover, as

24 established in the factual background section of this order, FPS’s role in the hiring, supervising,

25 and training of PSOs is adjustable. See supra I.A. The level of FPS supervision of contractor

26 guards implicates the use of FPS officers’ time and resources. Therefore, decisions surrounding

27 how many guards to hire, and the use of FPS officers, implicate judgments based on “social,

1 political, or economic policy.” Hence the mere fact that these relate to safety issues does not mean

2 the discretionary function exception is per se inapplicable. Cf. Vickers v. United States, 228 F.3d

3 944, 950 (9th Cir. 2000) (“This court and others have held that decisions relating to the hiring,

4 training, and supervision of employees usually involve policy judgments of the type Congress

5 intended the discretionary function exception to shield.” (collecting cases)); SAI, 2018 WL

6 534305, at *5 (“The Ninth Circuit has made clear that claims for negligent supervision of

7 employees falls squarely under the discretionary function exception.”).

8 Accordingly, because the discretionary function exception applies to Defendants’ hiring,

9 supervision, and training decisions, Defendants’ motion to dismiss is GRANTED for claim two.

10 E. Limited Discovery

11 Plaintiff seeks limited jurisdiction discovery. Opp. at 6 n.2. A plaintiff seeking limited

12 jurisdictional discovery in FTCA cases must allege “enough fact to raise a reasonable expectation

13 that discovery will reveal the evidence he seeks.” Dichter-Mad Family Partners, LLP v. United

14 States, 709 F.3d 749, 751 (9th Cir. 2013) (noting the broad discretion vested in the trial court to

15 permit or deny discovery). Plaintiff does not explain in footnote two what discovery he seeks or

16 why it is likely to undermine Defendants’ arguments. See Dichter-Mad Family Partners, LLP v.

17 United States, 707 F. Supp. 2d 1016, (C.D. Cal. 2010) (“Additional discovery is not appropriate at

18 present. Plaintiffs have not pleaded ‘enough facts to raise a reasonable expectation that discovery

19 will reveal evidence of’ the sought-after SEC policies and guidelines.” (quoting Twombly, 550

20 U.S. at 556)). Plaintiff has not even explained what evidence he seeks, let alone why discovery

21 presents a reasonable expectation of revealing evidence he seeks. Accordingly, Plaintiff’s request

22 for discovery is DENIED.

23 IV. CONCLUSION

24 For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. When a court

25 grants a motion to dismiss, the court may grant the plaintiff leave to amend a deficient claim

26 “when justice so requires.” Fed. R. Civ. P. 15(a)(2). Defendants do not argue leave to amend

27 would be futile. Plaintiff may file an amended complaint, except as to the negligent infliction of

1 emotional distress claim, which is dismissed with prejudice. If Plaintiff chooses to file an

2 amended complaint, it must be filed by December 2, 2019.

3 IT IS SO ORDERED.

4 Dated: November 6, 2019

5

EDWARD J. DAVILA

6 United States District Judge

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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS