# VANGJELI v. BANKS

> District Court, E.D. Pennsylvania · October 2, 2020

URL: https://www.frixlaw.com/law-library/cases/10399962

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** October 2, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10399962

## How later opinions describe it (automated extraction)

- noting that official immunity should be extended to government contractors “only to the extent that the public benefits obtained by granting immunity outweigh [the] costs”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SUZANA VANGJELI, :
Plaintiff : CIVIL ACTION
:
LINWOOD BANKS, al., No. 19-1635
Defendants :
MEMORANDUM
PRATTER, J. OCTOBER 1, 2020
Suzana Vangjeli alleges that security guard, Linwood Banks, and his employer, Triple
Canopy, Inc., committed various torts when they detained and used force against her. Mr. Banks
and Triple Canopy argue that they are entitled to official immunity and derivative sovereign
immunity, and move for summary judgment. For the reasons that follow, the Court denies
Defendants’ motion.
BACKGROUND
Triple Canopy has contracted with the Department of Homeland Security to provide
security services at many federal buildings, including the Social Security Administration Card
Center in Philadelphia, Linwood Banks was working as a Protective Security Officer (“PSO”)
when Ms. Vangjeli entered the building carrying a glass Perrier water bottle.! After taking the
elevator to the 20th floor, she approached a Triple Canopy guard (not Mr. Banks) stationed outside
of the Card Center. The guard informed Ms. Vangjeli that she could not enter with the glass water
bottle. Ms. Vangjeli asked whether she could throw the bottle out in a nearby trash can, but the
guard told her no. Ms. Vangjeli walked back towards the elevator and placed the water bottle out

' The altercation over a personal bottle of water that led to this lawsuit would never have inspired Paul
Simon to compose a lyrical tribute to calming influences. Simon & Garfunkel, Bridge over Troubled
Water (Columbia 1970).

of the guard’s sight. She then returned to enter the Card Center, but the guard told her she could
not come in. When Ms. Vangjeli asked why, the guard told her that she should not leave the water
bottle where she did and instructed her to dispose of the bottle outside of the building.
Mr. Banks, discovering the water bottle, returned it to Ms. Vangjeli and explained that
there were signs saying no glass bottles were allowed in the building. What happened next is in
dispute. Defendants claim that Ms. Vangjeli began yelling and screaming, which Ms. Vangjeli
denies. Mr. Banks says that he informed Ms. Vangjeli that she would have to come back the next
day because she was being disruptive. Ms. Vangjeli claims that no one told her that she could not
return the same day. The parties agree, however, that Ms. Vangjeli left the Card Center, took the
elevator to the first floor, and disposed of the water bottle outside of the building. She then took
the elevator back up to the Card Center. .

Ms. Vangjeli attempted to enter the Card Center, but a guard stopped her. □□□□□
Ms. Vangjeli asked to speak to a supervisor, guards escorted her to a room and instructed her to
wait. One of the guards attempted to handcuff her, which Ms. Vangjeli states caused her to have
a panic attack. Ms. Vangjeli fell to the floor, said she was having chest pains, and asked for an
ambulance.
The guards left Ms. Vangjeli alone in the detention room. She got up from the floor,
climbed into a chair, and determined after a few seconds that nobody was coming. She then left
the detention area and approached the hallway leading to the Card Center to check whether anyone
was calling an ambulance. Although Ms. Vangjeli denies that she was trying to leave, the guards
saw her moving and interpreted it as an attempt to escape.
Ms. Vangjeli alleges that Mr. Banks tackled her into a doorway and onto the floor, causing
her to hit her head and her right shoulder, and inflicting multiple injuries including a full-thickness
rotator cuff tear. Mr. Banks claims that he guided her to the ground, using reasonable, necessary,

and appropriate force. Ms. Vangjeli responds that it was not necessary for her to be tackled and
that the amount of force used was unreasonable.
LEGAL STANDARD
A court can properly grant a motion for summary judgment “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). An issue is “genuine” if there is a sufficient evidentiary basis on
which a reasonable jury could return a verdict for the non-moving party. Kaucher v. Cnty. of
Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). A factual dispute is “material” if it might affect the outcome of the case under
governing law. Id. (citing Anderson, 477 U.S. at 248). Under Rule 56, a court must view the
evidence presented in the light most favorable to the non-moving party. See Anderson, 477 U.S.
at 255. However, “Tujnsupported assertions, conclusory allegations, or mere suspicions are
insufficient to overcome a motion for summary judgment.” Betts v. New Castle Youth Dev. Ctr.,
621 F.3d 249, 252 (3d Cir. 2010).
The movant bears the initial responsibility to establish the basis for the motion for summary
judgment and identify the portions of the record that demonstrate the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party

bears the burden of proof on a particular issue, the moving party’s initial burden can be met simply
by “pointing out to the district court that there is an absence of evidence to support the nonmoving
party’s case.” /d. at 325. After the moving party has met its initial burden, the non-moving party
must set forth specific facts showing that there is a genuinely disputed factual issue for trial by
“citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations..., admissions,
interrogatory answers, or other materials” or by “showing that the materials cited do not establish

;

the absence or presence of a genuine dispute.” Fed. R. Civ. P. 56(c). Summary judgment is
appropriate if the non-moving party fails to rebut by making a factual showing “sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
DISCUSSION
Defendants move for summary judgment on the basis of official immunity and derivative
sovereign immunity. Ms. Vangjeli disputes the applicability of both doctrines. For the reasons
set out in this Memorandum, the Court finds that disputed material facts preclude granting the
motion.
I. Official Immunity
Mr. Banks and his employer Triple Canopy are federal contractors, but are not themselves
directly considered federal officials. In Westfall v. Erwin, 484 U.S. 292 (1988), “the Supreme
Court held that federal officials are entitled to absolute immunity from state tort liability for acts
that are: (a) discretionary in nature and (b) fall within the scope of the officials’ duties.” Murray
v. Northrop Grumman Info. Tech., Inc., 444 F.3d 169, 174 (2d Cir. 2006). The Federal Employees
Liability Reform and Tort Compensation Act superseded this test as to federal employees, “[b]ut
‘the Westfall test remains the framework for determining when nongovernmental persons or
entities are entitled to the same immunity.’” Jd. (quoting Pani v. Empire Blue Cross Blue Shield,
152 F.3d 67, 72 (2d Cir. 1998)); see also Nichole Med. Equip. & Supply, Inc. v. TriCenturion, Inc.,
694 F.3d 340, 351 (3d Cir. 2012) (citing Westfall in holding that private Medicare contractors were
entitled to immunity); Nicole Med. Equip. & Supply, Inc. v. TriCenturion, Inc., No. 10-389, 2011
WL 1162052, at *6 (E.D. Pa. Mar. 28, 2011) (“Immunity for federal employees is governed, by the
Westfall Act, but immunity for nongovernmental employees and entities acting on behalf of the
government is governed by the test the Supreme Court articulated in Westfall.”).

4 .

For official immunity to apply, Defendants must have been (1) Carnie out a governmental
function; (2) engaging in conduct that is discretionary; and (3) acting within the outer perimeter of
their official duties. Westfall, 484 U.S. at 209-300. Here, the Vangjeli-Triple Canopy controversy
turns on the scope of duty requirement. Acts fall within the outer perimeter of a contractor’s
official duties if they are “connected with the general matters committed by law to the contractor’s
control or supervision.” Nicole Med. Equip. & Supply, Inc., 2011 WL 1162052, at *6. While the
challenged action must “simply ‘bear some reasonable relation to and connection with [the
defendant’s] duties and responsibilities,’” Kumar v. Geo. Wash. Univ., 174 F. Supp. 3d 172, 181
(D.D.C. 2016), “the right to invoke absolute immunity evaporates when the [means used are]
‘manifestly excessive,’” Griggs v. Wash. Metro. Area Transit Auth., 232 F.3d 917, 922 (D.C. Cir.
2000), or if the challenged action is directly contrary to terms of a defendant’s contract with the
government, see Al Shimari v. CACI Premier Tech., Inc., 657 F. Supp. 2d 700, 717 (E.D. Va.
2009), rev’d on other grounds sub nom., Al Shimari v. CACI Int'l, Inc., 658 F.3d 413 (4th Cir.
2011), on reh’g en banc, 679 F.3d 205 (4th Cir. 2012). Both of these requirements preclude
summary judgment for Defendants here. See also Bishop v. Tice, 622 F.2d 349, 359 (8th Cir.
1980) (“[I]Jmmunity is lost when a supervisor adopts means beyond the outer perimeter of his
authority.”’).
Mr. Banks and Triple Canopy argue that they acted within the scope of their official duties
because the terms of their contract with the government required security guards to “identify,
report, delay, or detain persons who violate rules and regulations, as appropriate and in accordance
with Post Orders.” Def. Fact Statement at 2; Def. Ex. A at TC-VANGJELI-000202. They assert
that it is also undisputed that Ms. Vangjeli violated the Card Center’s regulation prohibiting glass

□

bottles in the Card Center offices, and that, under the contract, it was their official duty to detain

But the Triple Canopy contract did not merely authorize the use of force; it also required
Defendants to comply with the Security Manual and Resource Tool, or “SMART Book.” See Def.
Ex. A at TC-VANGJELI-000278. The SMART Book stated that PSOs could “detain a person
only when absolutely necessary and use the force necessary and reasonable to control the
situation.” Def. Ex. B at TC-VANGJELI-000558.> The SMART Book also stated that “it is
extremely important that you understand the different levels of force, when to use force, and what

2 Ms. Vangjeli disputes whether she ever “violate[d] rules and regulations” of the Social Security
Center. Defendants offer only deposition testimony to support their argument that glass containers were
not allowed into the facility, and that visitors asked to leave could not re-enter on the same day. See Def.
Fact Statement at 3. Although Defendants state that DHS Post Orders contain these requirements, they
attached no copy of these Post Orders as an exhibit for the Court to examine. And this defense position is
contracted by the testimony of two of Defendants’ own witnesses, who stated that once a person comes into
compliance with the prohibited item policy, they are allowed into the facility. See Def. Ex. I at 26:6-12,
Def. Ex. H at 19:6-11. Indeed, the only non-testimonial evidence on this point comes from two exhibits
submitted by Ms. Vangjeli. The first, the “Federal Management and Regulations,” purports to govern
federal facility management. See Pl. Reply to Fact Statement at 3-4. The second purports to be the
Department of Homeland Security’s “Prohibited Items Program,” and applies to “all facilities or properties
under the control of the General Services Administration (GSA).” See id; Pl. Ex. D. Neither of these
documents contain a reference to glass containers. Defendants dispute the authenticity of the Prohibited
Items Program and state that it is merely a suggestion of items that facilities may prohibit. But “[t]he Third
Circuit ‘has not precluded reliance on unauthenticated documents to oppose a motion for summary
judgment, so long as they are ultimately “reduc[ible] to admissible evidence.”’” Horton v. Nicholson, 435
F. Supp. 2d 429, 437 (E.D. Pa. 2006) (quoting Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318, 329 n.6
(3d Cir. 2005)) (admitting documents “generated by government agencies” because they could be
“reducible to admissible evidence at trial through a variety of techniques, including witness testimony”).
Whether Ms. Vangjeli will ultimately be able to authenticate these exhibits is a question to be decided at
trial or on an appropriate motion in limine. And even if these exhibits did not exist there would still be a
genuine issue of material fact, given that Defendants cannot rely merely on the ipse dixit testimony of
witnesses to prove the contents of the Post Orders. Defendants must produce a copy of the Post Orders
themselves, along with any other appropriate evidence. See Pankey vy. Phila. Hous. Dev. Corp., No. CIV.A.
09-3943, 2011 WL 1161918, at *7 (E.D. Pa. Mar. 29, 2011) (on a motion for summary judgment, witness’s
testimony as to the contents of a policy was insufficient evidence). Although this opinion focuses on the
contents of Defendants’ contract with the government, this dispute of fact is an independent reason to deny
defense’s motion.
3 Similarly, Triple Canopy’s Use of Force directive states: “In all cases, only that force which is
both Necessary and based upon Reasonable Belief may be used in any situation.” Pl. Ex. B at TC-
VANGJELI-000411. To the extent this quoted language is from a document that is self-designated as filed
under seal, the Court exercises its case management and discretionary obligations to remove the quoted
language from any supposed sealing or protective order.

level of force to use based on the situation,” and that “using an ‘unreasonable level’ of force to
detain a person could result in a [civil] lawsuit .. . being filed against you.” See Def. Ex. B. at TC-
VANGJELI-000547, -559.
A reasonable jury could find that it was not “absolutely necessary” for the guards to detain
Ms. Vangjeli while they waited for Federal Protective Service representatives to arrive, to place
handcuffs on Ms. Vangjeli when she was already being escorted by multiple PSOs, to prevent Ms.
Vangjeli from leaving the facility when there was no reason to believe that she posed a danger to
anyone inside or outside of the building, or to tackle Ms. Vangjeli into the doorway and onto the
ground. And even if it was indisputably necessary to restrain Ms. Vangjeli, a jury could find that
applying enough force to inflict a full-thickness rotator cuff tear on Ms. Vangjeli’s right shoulder
was “manifestly excessive” and, therefore, outside of the scope of Defendants’ official duties. See
Griggs, 232 F.3d at 922.
The Court’s ruling is consistent with Westfall’s statement that immunity should be
extended only if “the contribution to effective government in particular contexts outweighs the
potential harm to individual citizens.” Westfall, 484 U.S. at 299. Triple Canopy and its employees
are less likely to suffer from timidity due to threats of suit than a traditional governmental
AS a private contractor, Triple Canopy is guided by competitive market pressures. “[A] firm whose
guards are too aggressive will face damages that raise costs, thereby threatening its replacement,
but also that a firm whose guards are too timid will face threats of replacement by other firms with
records that demonstrate their ability to do both a safer and a more effective job.” Richardson v.
McKnight, 521 U.S. 399, 409 (1997).4

4 While Richardson’s holding was limited to the § 1983 context, courts conduct a similar analysis
when considering whether to extend official immunity to a private company facing liability under state tort
law. See Westfall, 484 U.S. at 299; Hous. Cmty. Hosp. v. Blue Cross & Blue Shield of Tex., Inc., 481 F.3d
265, 275 (Sth Cir. 2007) (“The Supreme Court has counseled that a court should not expand the scope of
governmental immunity unless the interests involved greatly outweigh the costs.”); McMahon v.

Furthermore, denying immunity here will not result in increased timidity in job
performance. The record demonstrates that Triple Canopy and its employees already perform their
duties under the perceived threat of litigation. The SMART Book warned that using an
unreasonable level of force could lead to civil or criminal liability. Def. Ex. B at TC- VANGJELI-
000559. Because security officers are trained to expect that they could be sued if they fail to
exercise their duties in accordance with the contract, permitting such litigation to actually occur
will not have a marked impact on the manner in which Triple Canopy employees execute their
responsibilities.
A. Derivative Sovereign Immunity
Defendants claim that even if they are not entitled official immunity, they are immune from
Ms. Vangjeli’s tort claims under derivative sovereign immunity. The Court disagrees. “The
concept of derivative sovereign immunity stems from the Supreme Court’s decision in
Yearsley....” Inre KBR, Inc., Burn Pit Litig., 744 F.3d 326, 342 (4th Cir. 2014) (citing Yearsley
v. W.A. Ross Constr. Co., 309 U.S. 18 (1940)). Yearsley immunizes a government contractor if
(1) the contractor’s actions were “authorized and directed by the Government of the United States”
and (2) “the Government’s ‘authority to carry out the project was validly conferred.’” Campbell-
Ewald Co. v. Gomez, 136 S. Ct. 663, 673 (2016) (quoting Yearsley, 309 U.S. at 20-21).

Presidential Airways, Inc., 502 F.3d 1331, 1345 (11th Cir, 2007) (“{J]ust as in the area of official immunity,
the immunity of a common law agent must be affirmatively justified. Just as with a federal officer, the
immunity of a private party, even if a common law agent, must be carefully tailored to protect the
governmental functions the private party is exercising.”); Mangold v. Analytic Servs., Inc., 77 F.3d 1442,
1447 (4th Cir. 1996) (“{T]he common law immunity recognized in Barr and Westfall is afforded only to
the extent that the public benefits obtained by granting immunity outweigh its costs.”); Murray, 444 F.3d
at 175 (“[T]he Supreme Court has cautioned that immunity [under Wes¢fall] is appropriate only when ‘the
contributions of immunity to effective government . . . outweigh the . . . harm to individual citizens.’”); A/
Shimari, 657 F. Supp. 2d at 715 (noting that official immunity should be extended to government
contractors “only to the extent that the public benefits obtained by granting immunity outweigh [the]
costs”).

At the outset, Ms. Vangjeli rightly points out that derivative sovereign immunity cannot
protect Mr. Banks. Derivative sovereign immunity does not immunize persons sued in their
individual capacity. See Lewis v Clarke, 137 S. Ct. 1285, 1290-92 (2017). While a person sued
in his or her individual capacity “may be able to assert personal immunity defenses” (such as
official immunity), sovereign immunity will not apply unless the United States is the real party in
interest. /d. at 1291. In this case, the United States is not the real party in interest because it is not
“legally bound by the court’s adverse judgment.” Jd. at 1292-93 (sovereign immunity did not
shield official sued for negligence committed within the scope of his employment). See also Jama
v. U.S. LNS., 22 F. Supp. 2d 353, 365 (D.N.J. 1998) (“{O}fficials [] being sued in their individual
capacities [] are not entitled to sovereign immunity.”); Cunningham v. Gen Dynamics Info. Tech.,
Inc., 888 F.3d 640, 650 (4th Cir. 2018), cert. denied, 139 S. Ct. 417 (2018) (applying Yearsley and
differentiating Lewis on the basis that the defendant was “an entity rather than an individual
employee”).
Furthermore, there is a fundamental difference between derivative sovereign immunity and
official immunity that necessarily means that both will not apply in the same case: discretion is
necessary to a claim of official immunity but fatal to a claim for derivative sovereign immunity.
As Defendants rightly argue here, and as noted above, official immunity requires that the alleged
tortious conduct was “discretionary in nature” or “the product of independent judgment.” Westfall,
484 U.S. at 296. The opposite is true for derivative sovereign immunity. While our appellate court
has not ruled on this issue, other courts have held that derivative sovereign immunity “is limited
to cases in which a contractor ‘had no discretion in the design process and completely followed
government specifications.’” Cabalce v. Thomas E. Blanchard & Assocs., Inc., 797 F.3d 720, 732
(9th Cir. 2015). See also In re World Trade Ctr. Disaster Site Litig., 521 F.3d 169, 200 (2d Cir.
2008) (derivative immunity not applicable because Defendant “cites no regulations that required

it to engage in the precise actions of which Plaintiffs complain”); Boyle v. United Techs. Corp.,
487 U.S. 500, 525 (1988) (Brennan, J., dissenting) (“[Years/ey] has never been read to immunize
the discretionary acts of those who perform service contracts for the Government.”); Harris v.
Kellogg, Brown & Root Servs., Inc., No. CV 08-563, 2016 WL 4720058, at *2 (W.D. Pa. Sept. 9,
2016) (noting that “[w]here, however, the contractor is hired to perform the same task, but is
allowed to exercise discretion in determining how the task should be accomplished . . . the
contractor is not entitled to derivative sovereign immunity” (quoting Bixby v. KBR, Inc., 748 F.
Supp. 2d 1224, 1241 (D. Or. 2010)); Scainetti v. U.S. ex rel. Fed. Bureau of Prisons, No. 01 CIV.
9970 (SHS), 2002 WL 31844920, at *3 (S.D.N.Y. Dec. 18, 2002) (“‘[S]tripped to its essentials,’
the government contractor defense is to claim ‘[t]he Government made me do it.’” (alteration in
original) (quoting Jn re Joint E. and S. Dist. N.Y. Asbestos Lit., 897 F.2d 626, 632 (2d Cir. 1990)).
Said another way, derivative sovereign immunity is a form of federal preemption, and
immunizes contractors where state law conflicts with the direct, valid order of a federal official.
See Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d 641, 646 (6th Cir. 2015) (noting that “the
Supreme Court has cast Years/ey in terms of preemption’). But there is no conflict between this
contract and Pennsylvania law, because the contract says nothing about how Mr. Banks or other
Triple Canopy employees were to carry out their duties. Because Defendants offer no reason why
it was impossible for them to carry out their duties in this instance without arguably violating
Pennsylvania tort law, derivative sovereign immunity is inapplicable. See In re World Trade Ctr.
Disaster Site Litig. ,521 F.3d at 197 (“[D]erivative immunity will not preclude recovery for injuries
occasioned by violation of state statutes if the entity could have abided by those statutes while
implementing the agency’s specifications.”).
Finally, the same dispute of fact that precludes a dismissal based on official immunity also
precludes a finding of derivative sovereign immunity for both defendants here. The parties contest

10

whether Defendants’ actions in detaining and using force against Ms. Vangjeli exceeded the scope
of their authority under the contract. A contractor is entitled to derivative sovereign immunity
“only if it adhered to the terms of its contract with the government.” Jn re KBR, Inc., 744 F.3d at
345. Based on this dispute, a factfinder could conclude that the defendants failed to act in
accordance with the terms of the contract, related task orders, or incorporated laws and regulations.
CONCLUSION
This case clearly belongs in the realm of jury assessment and deliberation, and that is where
it will head as soon as conditions permit. Thus, for the foregoing reasons, the Court denies the
motion for summary judgment. An appropriate order follows.
BY THE,COURT;
LZ,
LL
. PRATTER
NITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10399962. Public record. Not legal advice.