UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

MEMORANDUM OPINION 

Stephanie Grogan-Fuller brings this action against the 

United States and two federal contractors, Repaintex Company 

(“Repaintex”) and Trademasters Service, Inc. (“Trademasters”). 

Ms. Grogan-Fuller alleges that she was injured when she slipped 

and fell on water that had accumulated on the floor of a 

building owned, operated, and maintained by the federal 

government. Invoking the Federal Tort Claims Act (“FTCA”), 28 

U.S.C. § 1346, her complaint includes claims for negligence and 

vicarious liability against the government. 

Pending before the Court is the government’s motion to 

dismiss the negligence and vicarious liability claims for lack 

of subject matter jurisdiction. Upon consideration of the 

motion, the opposition and the reply thereto, the applicable 

STEPHANIE GROGAN-FULLER,

Plaintiff,

v.

UNITED STATES OF AMERICA 

and REPAINTEX COMPANY, et 

al.

Defendants.

Case No.: 1:17-cv-01933-EGS
2 

law, the entire record, and for the reasons stated below, the 

Court DENIES the government’s motion to dismiss. 

I. Background 

 A. Factual Background 

In December of 2015, Ms. Grogan-Fuller was walking down a 

hallway of the west wing of the Orville Wright Building (“Wright 

Building”) in Washington D.C. when she slipped on water that had 

accumulated on the floor as a result of a water leak. Amended 

Compl., ECF No. 20 ¶ 9. She fell to her knees and sustained 

serious injuries. Id. ¶¶ 9–12. At the time she sustained her 

injuries, Repaintex, a government contractor, provided facility 

maintenance and janitorial services for the Wright Building. Id.

¶ 5. Trademasters, also a government contractor, provided 

operations and maintenance services for the Wright Building. Id.

¶ 6. 

Ms. Grogan-Fuller brought suit against the government and 

the two contractors based on the injuries she sustained as a 

result of the fall. See generally id. She sues the government 

under the FTCA, alleging that the government was negligent in 

failing to inspect the hallways to ensure that dangerous 

conditions did not exist, and vicariously liable for the 

negligence of the two contractors. See id. ¶¶ 13–18, 31–34. 

The government has moved to dismiss this case for lack of 

subject matter jurisdiction. In support of its motion to 
3 

dismiss, the government attaches the declarations of Calvert 

Jones, United States General Services Administration (“GSA”) 

Building Manager for the Wright Building, and Elaina Walker, 

GSA’s Supervisory Contract Specialist. See Decl. of Calvert 

Jones (“Jones Decl.”), ECF No. 15-2; Decl. of Elaina Walker 

(“Walker Repaintex Decl.”), ECF No. 15-3; Decl. of Elaina Walker 

(Walker Trademasters Decl.”), ECF No. 15-4. The government also 

attaches the respective contracts between the government and the 

contractors. See Walker Repaintex Decl., Ex. B., ECF No. 15-5; 

Walker Trademasters Decl., Ex. C., ECF No. 15-6. The 

declarations and contracts detail the obligations and 

responsibilities of the government with respect to the 

contractors.1 

B. Contractual Provisions 

 1. Repaintex Contract 

In her role as Contract Specialist, Ms. Walker explains 

that she is responsible “for the creation and implementation of 

contracts dealing with custodial services” and that at the time 

Ms. Grogan-Fuller’s accident occurred, she was in charge of the 

“implementation of the custodial services contract that was in 

effect at the [Wright Building].” Walker Repaintex Decl., ECF 

 

1 The Court may review such materials to determine its 

jurisdiction without turning the motion to dismiss into one for 

summary judgment. See Caesar v. United States, 258 F. Supp. 2d 

1, 2 (D.D.C. 2003). 
4 

No. 15-3 ¶¶ 2–3. Ms. Walker attached to her declaration the 

contract awarded to Repaintex for custodial services. Id. Ex. 

B., ECF No. 15-5. 

Section C of the contract, entitled “Description/ 

Specification/ Statement of Work” sets forth the general 

parameters of the work to be performed by Repaintex. Id. at 18.2

Several provisions in Section C relate to the maintenance of 

floors. Repaintex was required to “[f]urnish all personnel, 

labor, equipment, materials, tools, supplies, supervision, 

management . . . and services, except as may be expressly set 

forth as Government furnished.” Id. at 21. Section C also states 

that Repaintex shall “[b]e responsible to make the management 

and operational decisions to meet the quality performance 

standards required under this contract.” Id.

With respect to the accumulation of water on the floor, 

Section C states that “[t]he performance of the cleaning at 

building(s) shall take place between the hours of 6:00 a.m. and 

9:00 p.m.” and that on a daily basis “[Repaintex] will furnish 

the [Contract Officer’s Representative Designee] 64 man-hours 

per day to perform support services . . . includ[ing] but not 

limited to” responding to “[s]ervice complaints,” “cleanup work 

 

2 When citing electronic filings throughout this Memorandum 

Opinion, the Court cites to the ECF header page number, not the 

original page number of the filed document. 
5 

made necessary by toilet floods and similar occurrences” and 

“[p]rovid[ing] additional cleaning and servicing requirement[s] 

as identified by the [Contracting Officer’s Representative 

Designee.]” Id. at 22. The contract further states that “[t]he 

person(s) performing the support service duties will take 

instruction only from the GSA Buildings Manager or his designee 

during the 64 hours assigned to GSA.” Id. (emphasis in 

original). Section C also provides that “[Repaintex] shall make 

reasonable efforts to assist the Government to prevent hazardous 

conditions and property damage.” Id. at 34. 

Section C contains a carve out for service calls made by 

the government to the contractor’s workers. Section C defines 

service calls as “standard service requirements, such as 

nonrecurring requests for rearranging furniture in a conference 

room, special events support, spills, replenishing restroom 

supplies, etc.” Id. at 20. Service calls which the Contracting 

Officer or her designee “determines to be urgent (spilled water 

in traffic areas . . . etc.) shall be handled immediately.” Id.

at 34. 

Ms. Jones, the Building Manager for the Wright Building at 

the time of the accident, filed a declaration containing certain 

statements related to the Repaintex contract. See generally

Jones Decl., ECF No. 15-2. Ms. Jones stated that Repaintex 

“routinely cleaned the floors throughout the building in order 
6 

to fulfill its contracting duties.” Id. ¶ 4. She stated that GSA 

“in no way controlled how Repaintex implemented its custodial 

practices on a daily or any other routine basis.” Id. ¶ 8. 

 2. Trademasters Contract 

Ms. Walker also attached a declaration explaining the 

operations and maintenance contract the government entered into 

with Trademasters. Walker Trademasters Decl., ECF No. 15–4. With 

respect to that contract, Ms. Walker supervises “the Contract 

Specialist responsible for the implementation of the operation 

and maintenance contract (‘O&M contract’) that was in effect at 

the [Wright Building]” at the time of Ms. Grogan-Fuller’s 

accident. Id. ¶ 3. She also attached the Trademasters contract 

to her declaration. Walker Trademasters Decl., Ex. C., ECF No. 

15-6. 

Several provisions in the contract are relevant to 

potential liability for Ms. Grogan-Fuller’s accident. Section C 

of the Trademasters contract provides that Trademasters is 

responsible for “plumbing” “[s]ervice request desk operations,” 

and “maintain[ing] kitchen/concession area drains.” Id. at 27–

28. The Section incorporates standards set by the International 

Plumbing Code. Id. at 39. Section C requires Trademasters to 

prepare a Building Operating Plan that is a compilation of the 

requirements in the Statement of Work, and lists information 

such as a “description of how building equipment data is 
7 

maintained and updated . . . contingency plans for . . . 

[f]loods including flooding caused by plumbing breaks[, 

h]azardous materials including . . . leaks or spills [and] water 

management[.]” Id. at 48. 

Section C also governs emergency requests to Trademasters 

related to water issues. Under the contract, “the [g]overnment 

(or, where applicable, the tenant Agency) may transmit work 

orders to the Contractor for service request[s] or emergency 

service request[s].” Id. at 279. Emergency service requests are 

defined as “service requests where the work consists of 

correcting failures that constitute an immediate danger to 

personnel or property, included but not limited to: broken water 

pipes.” Id. Trademasters was required to respond to these 

emergency requests during normal working hours within 15 

minutes. Id. Trademasters was also required to “assist in 

identifying facility health and safety hazards and report all 

hazards in writing” to the Contract Officer. Id. at 297. 

Ms. Jones also stated that “Trademasters was responsible 

for all operations and maintenance services within the [Wright 

Building], and that GSA in “no way controlled how Trademasters 

implemented its operations and maintenance practices on a daily 

or any other routine basis.” Jones Decl., ECF No. 15-2 ¶ 12, 17. 
8 

II. Legal Standard 

A. Standard of Review for a Motion to Dismiss under 

12(b)(1) 

 A motion to dismiss under Federal Rule of Civil Procedure 

12(b)(1) “presents a threshold challenge to the Court’s 

jurisdiction,” and thus “the Court is obligated to determine 

whether it has subject-matter jurisdiction in the first 

instance.” Curran v. Holder, 626 F. Supp. 2d 30, 32 (D.D.C. 

2009)(internal citation and quotation marks omitted). “It is to 

be presumed that a cause lies outside [a federal court’s] 

limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co. of 

Am., 511 U.S. 375, 377 (1994), unless the plaintiff can 

establish by a preponderance of the evidence that the Court 

possesses jurisdiction, see, e.g., U.S. ex rel. Digital 

Healthcare, Inc. v. Affiliated Computer, 778 F. Supp. 2d 37, 43 

(D.D.C. 2011)(citation omitted). Thus, the “‘plaintiff’s factual 

allegations in the complaint . . . will bear closer scrutiny in 

resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion 

for failure to state a claim.’” Id. (quoting Grand Lodge of 

Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13-14 

(D.D.C. 2001)(internal citation and quotation marks omitted)). 

 A motion to dismiss for lack of jurisdiction may be 

presented as either a facial or factual challenge. “A facial 

challenge attacks the factual allegations of the complaint that 
9 

are contained on the face of the complaint, while a factual 

challenge is addressed to the underlying facts contained in the 

complaint.” Al-Owhali v. Ashcroft, 279 F. Supp. 2d 13, 20 

(D.D.C. 2003)(internal quotations and citations omitted). When a 

defendant makes a facial challenge, the district court must 

accept the allegations contained in the complaint as true and 

consider the factual allegations in the light most favorable to 

the non-moving party. Erby v. United States, 424 F. Supp. 2d 

180, 182 (D.D.C. 2006). With respect to a factual challenge, the 

district court may consider materials outside of the pleadings 

to determine whether it has subject matter jurisdiction over the 

claims. Jerome Stevens Pharmacy, Inc. v. FDA, 402 F.3d 1249, 

1253 (D.C. Cir. 2005). 

B. FTCA 

Sovereign immunity shields the federal government and its 

agencies from suit and is “jurisdictional in nature.” Am. Road & 

Transp. Builders Ass'n v. EPA, 865 F. Supp. 2d 72, 79 (D.D.C. 

2012)(quoting FDIC v. Meyer, 510 U.S. 471, 475, (1994))(other 

citations omitted). The government may waive immunity, but such 

a waiver “must be unequivocally expressed in statutory text, and 

will not be implied.” Lane v. Pena, 518 U.S. 187, 192 

(1996)(internal citations omitted). The FTCA contains a limited 

waiver of sovereign immunity that allows the United States to be 

sued for the negligent acts or omissions of its employees acting 
10 

within the scope of their employment. See 28 U.S.C. 

§ 1346(b)(1); see also United States v. Orleans, 425 U.S. 807, 

813 (1976). 

III. Analysis 

 The government argues that sovereign immunity bars Ms. 

Grogan-Fuller’s claims for vicarious liability and negligence 

brought against the United States. The Court addresses each 

claim in turn. 

A. Vicarious Liability: Independent Contractor Exception 

 Ms. Grogan-Fuller brings a claim for vicarious liability 

based on the alleged negligent actions of Repaintex and 

Trademasters. Amend Compl., ECF No. 20 ¶ 34. As discussed above, 

the FTCA contains a limited waiver of sovereign immunity for the 

negligent acts or omissions of its employees. See 28 U.S.C. § 

1346(b)(1). The FTCA's definition of “employee of the 

government” includes “employees of any federal agency,” but the 

definition of “federal agency” explicitly excludes “any 

contractor with the United States.” 28 U.S.C. § 2671. Based on 

this language, the Supreme Court has recognized an “independent 

contractor exception” to the FTCA. See Orleans, 425 U.S. at 814–

15. 

When considering whether the independent contractor 

exception to the FTCA applies, a court must evaluate the level 

of control that the United States exercises over the contractor. 
11 

Id. Under this exception, the government is only liable for a 

contractor's acts, if the contractor's “day-to-day operations 

are supervised by the Federal Government.” Id. at 815. A 

“critical element in distinguishing an agency from a contractor 

is the power of the Federal Government ‘to control the detailed 

physical performance of the contractor.’” Id. at 814 (quoting 

Logue v. United States, 412 U.S. 521, 528 (1973)). The Court of 

Appeals for the District of Columbia Circuit (“D.C. Circuit”) 

has made clear that “the government may ‘fix specific and 

precise conditions to implement federal objectives’ without 

becoming liable for an independent contractor's negligence.” 

Macharia v. United States, 334 F.3d 61, 68–69 (D.C. Cir. 2003) 

(quoting Orleans, 425 U.S. at 816). The government is also 

permitted to “reserve the right to inspect the contractor's work 

and monitor its compliance with federal law without vitiating 

the independent contractor exception.” Hsieh v. Consol. Eng'g 

Servs., Inc., 569 F. Supp. 2d 159, 177 (D.D.C. 2008)(citing 

Orleans, 425 U.S. at 815). 

Whether the government is involved with a contractor’s dayto-day activities such that the independent contractor exception 

applies is a “peculiarly fact-specific inquiry,” which does not 

normally “lend itself easily to dismissal before discovery.” 

Phillips v. Federal Bureau of Prisons, 271 F. Supp. 2d 97 

(D.D.C. 2003). Courts in this District, however, are amendable 
12 

to dismissing these types of cases when the documentation in 

support of the government’s motion to dismiss is “clear and 

uncontroverted” on the issue of whether the independent 

contractor exception applies. Id. For example, in Phillips the 

plaintiff sued the government for negligence when the staff of a 

halfway house failed to act after the plaintiff’s son informed 

the staff that he had received a threat on his life. Id. at 99. 

The halfway house was a private facility that contracted with a 

government agency to provide services to inmates in the District 

of Columbia. Id. The plaintiff’s son was fatally wounded by an 

unknown assailant on the same day he warned the staff about the 

threat. Id. In the government’s motion to dismiss, it provided 

the contract governing the agreement between the halfway house 

and the government, which stated in relevant part that it was 

the contractor’s obligation to provide for the safekeeping of 

persons residing in the facility. Id. at 101. Additionally, a 

government employee attested that the government was not 

involved in the daily operations of the facility. Id. The 

plaintiff failed to controvert any facts in the declaration. Id.

The district court in Phillips noted that although the 

degree to which the government controls a contractor is 

typically a fact intensive inquiry, the documentation in support 

of the government’s motion made it clear that the government did 

not play any role in the staffing of the facility or the 
13 

safekeeping of its residents. Id. Critically, the plaintiff did 

not challenge the agency’s contention that the agency was not 

involved in the day-to-day operations of the facility. Id.

Because the court found that the supporting documents were clear 

and uncontroverted, it granted the motion to dismiss on the FTCA 

claim. Id.

Here, the documents supporting the government’s position 

are not clear and are far from uncontroverted. As to Repaintex, 

the contract at issue states that on a daily basis “[Repaintex] 

will furnish the [Contract Officer’s Representative Designee] 64 

man-hours per day to perform support services . . . includ[ing] 

but not limited to” responding to “[s]ervice complaints,” 

“cleanup work made necessary by toilet floods and similar 

occurrences” and “[p]rovid[ing] additional cleaning and 

servicing requirement[s] as identified by the [Contracting 

Officer’s Representative Designee.]” Walker Repaintex Decl., Ex. 

B., ECF No. 15-5 at 22. Critically, the people performing the 

support service duties (i.e., responding to service complaints 

and cleanup work made necessary by flooding) “will take 

instruction only from the GSA Buildings Manager or his designee” 

while they are completing their duties. Id. (emphasis in 

original). Additionally, the government had the ability to 

classify certain service calls as urgent including “spilled 

water in traffic areas” which required the contractor to act 
14 

immediately if a call was so designated. Id. at 34. Last, 

Repaintex was required to make reasonable efforts to “assist the 

Government to prevent hazardous conditions and property damage.” 

Id. at 34. Ms. Grogan-Fuller references these provisions and 

challenges the government’s contention that it did not control 

the day-to-day operations of Repaintex. See Pl.’s Opp’n., ECF 

No. 16 at 10–13. Under these provisions of the contract, there 

is some indication that, at least when it came to “spilled water 

in traffic areas”, the government controlled the daily 

activities of Repaintex. 

As for Trademasters, there are provisions in its contract 

that lead to the same indication. For instance, the 

“[g]overnment (or, where applicable, the tenant Agency) may 

transmit work orders to the Contractor for service request[s] or 

emergency service request[s].” Walker Trademasters Decl., Ex. 

C., ECF No. 15-6 at 279. Emergency service requests included 

“broken water pipes.” Id. Trademasters was required to respond 

to these emergency requests during normal working hours within 

15 minutes. Id. These provisions are unlike provisions in other 

cases which merely give the government the right to conduct 

oversight and inspection. See Verizon Washington, D.C., Inc. v. 

United States, 254 F. Supp. 3d 208 (2017)(applying independent 

contractor exception, and dismissing case, when government was 

simply inspecting contractor’s work). Here, in contrast, the 
15 

contractual language suggests that the government took an active 

role in directing when and how the contractors responded to 

“broken water pipes” and “spilled water in traffic areas.” And 

for good reason as such occurrences can lead to dangerous 

conditions. Under these provisions it is not clear, at this 

stage in the proceedings, that the government did not “control 

the detailed physical performance of the contractor.” See 

Orleans, 425 U.S. at 815. 

The Court also notes that in the only case on which the 

government relies, Hsieh v. Consolidated Engineering Services, 

the court had the benefit of discovery in determining the 

relationship between the government and the contractors. See, 

e.g., 569 F. Supp. 2d at 178 (analyzing deposition testimony). 

In this case there has been no discovery or deposition 

testimony, and thus the Court is limited to declarations and 

unclear contractual provisions which bear on the question of who 

is responsible for the conditions of the Wright Building. 

“Although courts must, at times, resolve factual disputes raised 

in threshold jurisdictional motions,” a court should defer its 

jurisdictional decision when the disputed jurisdictional facts 

are “indistinguishable from the central question on the merits 

of who was at fault.” Hale v. United States, 2015 WL 7760161 at 

*6 (D.D.C. 2015); see also Herbert v. Nat’l Acad. of Sciences., 

974 F.2d 192, 198 (D.C. Cir. 1992)(“[T]hough the trial court may 
16 

rule on disputed jurisdictional facts at any time, if they are 

inextricably intertwined with the merits of the case it should 

usually defer its jurisdictional decision until the merits are 

heard.”). The government is free to argue in subsequent 

proceedings that addressing spills was solely the contractors’ 

responsibility, and that it had no control over the contractors. 

Such arguments, however, rely on the resolution of contested 

factual issues and require that parties “first be afforded a 

more complete opportunity to discover and to dispute the 

relevant facts.” Hale, 2015 WL 7760161 at *6. Accordingly, the 

government’s motion to dismiss the vicarious liability count is 

DENIED. 

B. Negligence Claims Against Government 

In addition to her claim for vicarious liability, Ms. 

Grogan-Fuller alleges that the government itself was negligent 

because it had a duty to inspect the hallway where she fell to 

ensure dangerous conditions did not exist, and alleges that the 

government either knew or should have known such conditions 

existed. Amend. Compl., ECF No. 20 ¶ 15. Under District of 

Columbia Law, a landowner has a duty to use reasonable care for 

the safety of all persons lawfully present on the landowner’s 

property. Smith v. Arbaugh's Rest., Inc., 469 F.2d 97, 100 (D.C. 
17 

Cir. 1972).3 A plaintiff seeking to recover for a breach of this 

duty must show “that the defendant had notice—either actual or 

constructive—of the present existence of an allegedly dangerous 

condition.” Smith v. Washington Sheraton Corp., 135 F.3d 779, 

782 (D.C. Cir. 1998)(internal quotation marks and citation 

omitted). 

 The government seemingly acknowledges that Ms. GroganFuller has alleged a claim of negligence independent from the 

actions of the contractors. Def.’s Reply, ECF No. 18 at 1 

(stating Ms. Grogan-Fuller has argued that the government has 

failed to address her claims of its own negligence). However, 

the government does not address Ms. Grogan-Fuller’s assertion 

that the government employees, themselves, were negligent. See 

generally id. (limiting arguments to the application of the 

independent contractor exception). Instead, the government 

simply reiterates the point that the contractors are responsible 

for her injuries and, again, argues the independent contractor 

exception to the FTCA applies in this case. Id.

 

3 The substantive law that governs in an FTCA action is that of 

the state where the act or omission occurred. 28 U.S.C. § 

1346(b)(1); see also Richards v. United States, 369 U.S. 1, 9 

(1962)(“Where the negligence and the injury normally occur 

simultaneously and in a single jurisdiction, the law to be 

applied is clear, and no solution to the meaning of the words 

‘the law of the place where the act or omission occurred’ is 

required.”). Ms. Grogan-Fuller’s accident occurred in the 

District of Columbia and therefore D.C. provides the substantive 

law for her FTCA claim. 
18 

This argument misses the point. While the FTCA does not 

authorize the United States to assume the liability for the acts 

of its independent contractors, it does waive the United States' 

immunity from suit resulting from the acts of its employees and 

agencies working on behalf of the United States. See 28 U.S.C. 

§§ 1346(b), 2671; see also Logue 412 U.S. at 532-33. The fact 

that the government may be able to show that Ms. Grogan-Fuller’s 

injuries resulted from the negligence of its contractors, 

independent or not, does not preclude claims against the 

government for its own negligence with regard to the injury. For 

example in Logue, the Supreme Court held that government could 

not be held liable for the actions of its contractors at a 

federal prison, when a federal prisoner committed suicide while 

being held at a county jail, because they were not employees of 

the United States. 412 U.S. at 525–26, 530. However, the Court 

left open the possibility of a FTCA claim based on the related 

failure, if any, of a federal deputy marshal, who was an 

employee of the United States, to make “specific arrangements . 

. . for constant surveillance of the prisoner,” while he was in 

the custody of the employees of the county jail. Id. at 532–33 

(internal quotation marks and citation omitted). 

In this case, Ms. Grogan-Fuller alleges that the 

government, as the owner of the Wright Building, had actual or 

constructive notice of the allegedly hazardous condition in the 
19 

Wright Building, see Amended Compl. ECF No. 20 ¶ 15, and that it 

was the negligence of its federal employees, in addition to 

actions of the contractors, in failing to warn or failing to 

remedy the conditions that led to her injuries, id. ¶ 16. Taking 

these allegations as true, the government is potentially subject 

to suit under the FTCA for the negligent actions of its 

employees. The government failed to respond to this argument, 

and therefore its motion to dismiss the negligence count of the 

complaint is DENIED. Franklin v. Potter, 600 F. Supp. 2d 38, 60 

(D.D.C. 2009)(treating defendant’s argument in summary judgment 

motion as conceded where plaintiff failed to address it in 

plaintiff’s response). 

IV. Conclusion 

For the foregoing reasons the government’s motion to 

dismiss is DENIED. An appropriate order accompanies this 

Memorandum Opinion. 

SO ORDERED. 

Signed: Emmet G. Sullivan

United States District Judge

March 25, 2019