The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
FRANK GAUS, III, and
KRISTI GAUS, His Wife,
Plaintiffs,
v. Civil Action Nos. 1:18-CV-160
c/w 1:19-CV-14
(Judge Kleeh)
THE UNITED STATES OF AMERICA,
VERTEX NON-PROFIT HOLDINGS, INC., a Corporation,
KPN ARCHITECTS, LLC, a Limited Liability Company,
MARCH-WESTIN COMPANY, INC., a Corporation,
EYP MISSION CRITICAL FACILITIES, INC., a Corporation,
EXP U.S. SERVICES, INC., a Corporation,
CBRE GROUP, INC., a Corporation, and
McDONOUGH BOLYARD PECK, INC., a Corporation,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
FOR LACK OF SUBJECT MATTER JURISDICTION [ECF NO. 136]
Pending before the Court is Defendants GSA and NOAA’s
Motion to Dismiss for Lack of Subject Matter Jurisdiction [ECF
No. 136]. For the reasons discussed below, the Court grants the
Motion.
I. PROCEDURAL HISTORY
On August 20, 2018, the Plaintiffs, Frank and Kristi Gaus
(“Plaintiffs”), filed this action against a number of
defendants, including the General Services Administration
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
FOR LACK OF SUBJECT MATTER JURISDICTION [ECF NO. 136]
(“GSA”) and the National Oceanic and Atmospheric Administration
(“NOAA”). Plaintiffs filed an Amended Complaint on March 28,
2019, modifying Paragraph 11, after being advised of the proper
name of Defendant EXP US Services, Inc. ECF No. 106.
By order dated April 25, 2019, this case was consolidated
with Civil Action No. 1:19-CV-14. ECF No. 116. On June 6, 2019,
GSA and NOAA moved to dismiss the Complaint against them for
lack of subject matter jurisdiction. ECF No. 136. One argument
proffered in support of their Motion was that GSA and NOAA are
not proper defendants in a Federal Tort Claims Act (“FTCA”)
suit. By agreed order, the Court substituted the United States
of America (the “Government”) for GSA and NOAA as a defendant.
The Government then advised the Court that it still intends to
advance the other arguments contained in its Motion. Those
arguments are the subject of this Memorandum Opinion and Order.
The Motion is fully briefed and ripe for consideration.
II. STANDARD OF REVIEW
Rule 12 of the Federal Rules of Civil Procedure provides
that “[i]f the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”
Fed. R. Civ. P. 12(h)(3). The burden of proving subject matter
jurisdiction on a motion to dismiss lies with the party
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
FOR LACK OF SUBJECT MATTER JURISDICTION [ECF NO. 136]
asserting jurisdiction. CSX Transp., Inc. v. Gilkison, No.
5:05CV202, 2009 WL 426265, at *2 (N.D.W. Va. Feb. 19, 2009). No
presumptive truthfulness attaches to the plaintiff’s
allegations, and the existence of disputed material facts will
not preclude the trial court from evaluating the merits of the
jurisdictional claims. Id. at *2.
III. BACKGROUND
A. The Complaint
On or about May 7, 2015, Frank Gaus (“Mr. Gaus”) was
employed as an electrician at High Voltage Maintenance Company.
Compl., ECF No. 1, at ¶ 14. On that day, he sustained an
electrical shock while performing electrical maintenance testing
at the NOAA Supercomputing Center located at the Robert H.
Mollohan Research Center in Fairmont, West Virginia (the
“Supercomputing Center”). Id. ¶ 15. As part of his services at
the Supercomputing Center, Mr. Gaus relied upon certain drawings
to be aware of the locations of various surge arrestors and to
avoid receiving electrical shocks. Id. ¶ 16.
Plaintiffs argue that in reliance on the drawings, Mr. Gaus
tried to locate a voltage verification test point to determine
whether he could safely begin his electrical testing, and when
he did so, he received a severe electrical shock and suffered
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
FOR LACK OF SUBJECT MATTER JURISDICTION [ECF NO. 136]
arc flash burns. Id. ¶ 23. The drawings indicated that the surge
arrestors were located on the “load” side of the main breakers,
but they were actually located on the “line” side. Id. ¶ 18. Mr.
Gaus contends that this location was improper and that “[b]y
being on the ‘line’ side, they were located on the incoming
12,470 V side of the main breaker and . . . represented a hazard
to anyone performing maintenance testing to the electrical
system.” Id. ¶¶ 19, 20. Mr. Gaus believes that the drawings were
made, in whole or in part, by KPN Architects, LLC (“KPN”) and/or
March-Westin Company, Inc. (“March-Westin”), and were or should
have been examined by the Government and Vertex Non-Profit
Holdings, Inc. (“Vertex”). Id. ¶ 17. He writes that aside from
the drawings, there was no other way for him to be aware of the
surge arrestors’ location. Id. ¶ 21.
Plaintiffs argue that “Mr. Gaus suffered the following
injuries, all of which are severe and which may be permanent”:
(a) A five percent total body surface
burning of his face, neck, both upper
extremities and his left lower
extremity;
(b) First, second and third degree burns of
the areas described above;
(c) Webbing of certain of his extremities;
(d) Extreme disfigurement and scarring of
various portions of his body;
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FOR LACK OF SUBJECT MATTER JURISDICTION [ECF NO. 136]
(e) Infection and abscesses of some or all
of the parts of his body that were
burnt;
(f) MERSA;
(g) Post-Traumatic Stress Disorder, panic
attacks and anxiety;
(h) Painful surgeries to graft skin to the
burnt parts of his body;
(i) Pain from wearing restrictive
compression garments; and
(j) Severe pain.
Id. ¶ 24. Plaintiffs allege that Mr. Gaus has suffered the
following damages:
(a) Pain, anguish, scarring and
disfigurement and embarrassment;
(b) Irreparable injury to his hand and the
effective use of his hand, either
partially or totally;
(c) Medical, hospital, therapy and drug
expenses for his diagnosis, treatment,
care and recovery; and
(d) Loss of earnings and earning capacity.
Id. ¶ 25.
Plaintiffs argue that the Government “engaged in a co-
operative effort to find and arrange for the development” of the
Supercomputing Center. Id. ¶ 27. They write that the Government
“arranged for and entered into a long-term lease with Vertex
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FOR LACK OF SUBJECT MATTER JURISDICTION [ECF NO. 136]
for” the Supercomputing Center. Id. ¶ 28. Plaintiffs argue that
the Government participated in the choice of a general
contractor and other professionals to construct or consult upon
the construction of the facility. Id. ¶ 29. Further, they argue,
the Government participated in the choice of an architect and
other professionals to prepare and review plans for the
construction of the facility. Id. ¶ 30. Plaintiffs argue that the
Government received and reviewed the electrical plans, or if it
did not, it should have. Id. ¶ 31. Plaintiffs cite the following
“negligent conduct” by the Government:
(a) Failure to properly review the aforesaid
plans and the placement of surge protectors;
(b) Failure to inspect or require that the
electrical drawings were inspected before
the electrical system was installed;
(c) Failure to inspect or require the inspection
of the electrical system as it was being
installed to verify that it was being done
properly;
(d) Failure to inspect or require the inspection
of the electrical system as it was being
installed to verify that the actual
installation was as show on the drawings;
and
(e) Failure to have in place and/or follow
recognized and well-known protocols for the
inspection and installation of electrical
systems to verify that the installation was
done properly and that the electrical
drawings for the electrical system properly
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
FOR LACK OF SUBJECT MATTER JURISDICTION [ECF NO. 136]
showed the correct installation of the
system.
Id. ¶ 32.
B. The Lease
The Government does not own the buildings that house the
Supercomputing Center; it leases the buildings from Vertex. See
ECF No. 136-3, Attachment A, at US12451. As part of Vertex’s and
the Government’s design-build lease, Vertex was to design
alterations to the space to meet the Government’s requirements
and then construct the space based on that design. See id. at
US12453, ¶ 13. Pursuant to the lease, Vertex was responsible for
selecting its general contractor and architect. See id. at
US12475-76. Vertex, through its chosen contractors, March-Westin
(general contractor for the construction project) and KPN
(designer for the project), designed alterations to the I-79
Technology Park Research Center based on NOAA’s Program of
Requirements (“POR”) and Final Concept Basis of Design (“BOD”)
as provided by GSA. See id. at US12456, ¶ 14; see also US12475-
77, US12503, US12980-86. The building’s as-built drawings,1
including the electrical drawings, were prepared by Vertex. See
Butler Decl., ECF No. 136-8, at ¶ 18.
1 These are a set of drawings submitted by a contractor upon
completion of a project or a particular job.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
FOR LACK OF SUBJECT MATTER JURISDICTION [ECF NO. 136]
The Government admits that it did review and approve
Vertex’s design and provide Vertex with review comments. It
contends, however, that the purpose of its review and approval,
in accordance with the terms of the lease, was limited to
ensuring the design’s conformance to the specific requirements
of the lease and the POR and the Government’s needs as they
applied to the specific leased space. See Ex. 1, Attachment A,
ECF No. 136-3, at 12502-03, ¶¶ 5.5-5.6. The Government’s review
and approval was not for the purpose of ensuring the
constructability of the design or otherwise providing quality
control for Vertex. Id. The Government points out that,
significantly, Paragraph 5.5 of the lease, at Section B, states,
“THE LESSOR REMAINS SOLELY RESPONSIBLE FOR DESIGNING,
CONSTRUCTING, OPERATING, AND MAINTAINING THE LEASED PREMISES IN
FULL ACCORDANCE WITH THE REQUIREMENTS OF THE LEASE.” Id. ¶ 5.5.
IV. DISCUSSION
Federal courts generally lack subject matter jurisdiction
to address lawsuits against the federal government unless the
United States expressly consents to be sued by waiving sovereign
immunity. FDIC v. Meyer, 510 U.S. 471, 475 (1994). The FTCA, 28
U.S.C. § 1346, is a waiver of sovereign immunity when the
federal government “would be liable to the claimant in
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
FOR LACK OF SUBJECT MATTER JURISDICTION [ECF NO. 136]
accordance with the law of the place where the act or omission
occurred” for certain torts, such as negligence, committed by
federal government employees acting within the scope of their
employment. 28 U.S.C. § 1346(b)(1). Within the FTCA, there are
exceptions under which the federal government still may not be
sued. Two such exceptions are the “independent contractor
exception” and the “discretionary function exception.” These
will be discussed in turn.
A. Independent Contractor Exception
As described above, the FTCA is a waiver of sovereign
immunity for certain torts committed by federal government
employees acting within the scope of their employment.
“‘Employee of the government’ includes . . . officers or
employees of any federal agency, members of the military or
naval forces of the United States, . . . and persons acting on
behalf of a federal agency in an official capacity, temporarily
or permanently in the service of the United States[.]” 28 U.S.C.
§ 2671. “Federal agency,” however, “does not include any
contractor with the United States.” Id. Generally, if the
conduct in question was performed by an independent contractor,
the district court does not have subject matter jurisdiction
over the claim. See Robb v. United States, 80 F.3d 884, 887 (4th
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
FOR LACK OF SUBJECT MATTER JURISDICTION [ECF NO. 136]
Cir. 1996); see also Wood v. Standard Prods. Co., 671 F.2d 825,
829 (4th Cir. 1982). Here, Plaintiffs do not argue that Vertex
was not an independent contractor, but they argue that the
Government had a duty to review and inspect its work. See ECF
No. 149 at 12.
B. Discretionary Function Exception
The discretionary function exception applies to the
following:
[a]ny claim based upon an act or omission of
an employee of the Government, exercising
due care, in the execution of a statute or
regulation, whether or not such statute or
regulation be valid, or based upon the
exercise or performance or the failure to
exercise or perform a discretionary function
or duty on the part of a federal agency or
an employee of the Government, whether or
not the discretion involved be abused.
28 U.S.C. § 2680(a). The exception “insulates the United States
from liability for its agents’ and employees’ performance of
duties involving discretionary decisions.” Williams v. United
States, 50 F.3d 299, 308 (4th Cir. 1995). The purpose of this
exception, as the Supreme Court of the United States has
explained, is to “prevent judicial ‘second-guessing’ of
legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
FOR LACK OF SUBJECT MATTER JURISDICTION [ECF NO. 136]
in tort.” United States v. S.A. Empresa de Viacao Aerea Rio
Grandense (Varig Airlines), 467 U.S. 797, 814 (1984).
In deciding whether the discretionary function exception
applies, courts apply a two-step test. “First, the Court must
consider the nature of the conduct and determine whether it
involves an ‘element of judgment or choice.’” Little v. United
States, No. 5:11CV41, 2014 WL 4102377, at *5 (N.D.W. Va. Aug.
18, 2014) (citing United States v. Gaubert, 499 U.S. 315, 322
(1991)). “If a statute or regulation mandates a certain course
of action, there is no element of discretion.” Id. (citing
Branch v. United States, No. 2:05cv423, 2006 WL 1770995, at *3
(E.D. Va. June 22, 2006)). On the other hand, conduct is
discretionary if the actor is entrusted to exercise judgment or
choice. Gaubert, 499 U.S. at 322–23. The second step is to
“determine whether that judgment is grounded in considerations
of public policy.” Little, 2014 WL 4102377, at *5. Finally, the
plaintiff bears “the burden of proof to show an unequivocal
waiver of sovereign immunity exists and to show that none of the
FTCA’s waiver exceptions apply.” LeRose v. United States, 285 F.
App’x 93, 96 (4th Cir. 2008).
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
FOR LACK OF SUBJECT MATTER JURISDICTION [ECF NO. 136]
C. Williams v. United States
Williams v. United States, 50 F.3d 299 (4th Cir. 1995), by
analyzing the interaction of the independent contractor
exception and the discretionary function exception, is
particularly instructive here. In Williams, the United States
Court of Appeals for the Fourth Circuit held that
[t]he decision to hire an independent
contractor to render services for the United
States is precisely the type of decision
that the [discretionary function] exception
is designed to shield from liability because
it involves exercising judgment based on
considerations of policy, and the case law
clearly establishes that the award of
contracts falls within the ambit of the
discretionary function exception.
Id. at 310.
In Williams, the plaintiff was injured when she slipped and
fell in the lobby of a building leased by the United States. Id.
at 302. The United States had entered into a contract with a
company to provide custodial and maintenance services in the
building. Id. at 303. The contract included broad provisions
(e.g. the maintenance company was “fully responsible for the
management, operation, maintenance, repair and support
operations” of the premises) along with more specific provisions
(e.g. directing the company to keep the premises free of “trash
and debris or foreign matter” and ensure that floors are “slip
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FOR LACK OF SUBJECT MATTER JURISDICTION [ECF NO. 136]
resistant”). Id. The United States did not exercise day-to-day
control or supervision over the maintenance company’s employees
or the work performed by them. Id. Under these facts, the court
wrote, “If . . . [the company] is an independent
contractor, . . . and not an agent or employee of the United
States, the United States has not waived its sovereign immunity;
accordingly, the case should be dismissed for want of
jurisdiction under Rule 12(b)(1).” Id. at 304.
The Williams court was further unpersuaded by the argument
that the Government was negligent because it “would have
observed [this] condition” and because it permitted the
condition to exist and failed to post “wet floor warnings”
inside the premises. Id. It wrote that “the decision to engage
an independent contractor . . . is grounded in policy because in
contracting . . . , the United States had to balance the needs
of the Premises and the desire to engage an independent
contractor against the expense of engaging such services.” Id.
at 309. The court found that the decision to hire the contractor
fell within the discretionary function exception. “Given that
the decision to engage . . . [the contractor] falls within the
ambit of the discretionary function exception, we find that in
this case Williams' assertions that the United States was
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FOR LACK OF SUBJECT MATTER JURISDICTION [ECF NO. 136]
negligent in inspecting and not posting warning signs cannot
prevail because these decisions are embraced by the overarching
decision to engage . . . [the contractor].” Id. at 310.
D. Analysis
Here, as in Williams, the independent contractor exception
and the discretionary function exception apply. Similarly, the
contract here included broad responsibilities for Vertex. See
Ex. 1, Attachment A, ECF No. 136-3, at 12502-03, ¶ 5.5. (stating
that “THE LESSOR REMAINS SOLELY RESPONSIBLE FOR DESIGNING,
CONSTRUCTING, OPERATING, AND MAINTAINING THE LEASED PREMISES”).
The Government did not exercise day-to-day control over Vertex’s
activities.
Plaintiffs do not dispute that Vertex was an independent
contractor of the Government. They agree that the Government did
not prepare the drawings at issue. Plaintiffs allege, instead,
that the Government failed to review, failed to inspect, and
failed “to have in place and/or follow recognized and well-known
protocols for the inspection and installation of electrical
systems to verify that the installation was done properly and
that the electrical drawings for the electrical system properly
showed the correct installation system.” Compl., ECF No. 1, at ¶
32. This is similar to the plaintiff’s allegation in Williams
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FOR LACK OF SUBJECT MATTER JURISDICTION [ECF NO. 136]
that the Government permitted the dangerous condition to exist.
The alleged failure of the Government to verify that the
electrical drawings were proper was “embraced by the overall
decision” to hire Vertex. See Williams, 50 F.3d at 310. For
those reasons, the independent contractor exception and the
discretionary function exception apply. Plaintiffs have failed
to show that the Government unequivocally waived its sovereign
immunity.
V. CONCLUSION
For the reasons discussed above, the Government’s Motion to
Dismiss [ECF No. 136] is GRANTED for lack of subject matter
jurisdiction. All claims against the Government in this action
are hereby DISMISSED WITH PREJUDICE.
It is so ORDERED.
The Clerk is directed to transmit copies of this Memorandum
Opinion and Order to counsel of record.
DATED: March 17, 2020
_/_s_/_ _T_h_o_m_a_s_ _S_._ _K_l_e_e_h_________
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE