UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALI AFKHAMI,
Plaintiff,
v. No. 22-cv-2818-ZMF
UNITED STATES OF AMERICA, et al.,
Defendants.
I. INTRODUCTION
Plaintiff Ali Afkhami brought this action against Defendant Elroy Lewis Dennis, a
contractor for the U.S. Department of Agriculture (“USDA”), and USDA. Plaintiff seeks to hold
Dennis liable for negligently striking Plaintiff with a motorized cart. See Compl. ¶ 11., ECF No.
1. Plaintiff also seeks to hold USDA liable under the Federal Tort Claims Act (“FTCA”). See id.
¶ 1. USDA has moved to dismiss, or in the alternative, for summary judgment. See Def. Mot. to
Dismiss 1, ECF No. 34. USDA argues that Plaintiff’s complaint is barred by sovereign immunity.
See id. For the reasons stated below, the Court GRANTS USDA’s motion to dismiss.
II. BACKGROUND
On July 23, 2018, USDA contracted with CMI Management Inc. (“CMI”) to provide
locksmithing services for its facilities. See ECF No. 34-1 at 1. CMI was responsible for identifying
qualified personnel for the locksmith position. See id. at 8. However, USDA retained the discretion
to review and approve the proposed candidate’s resume. See ECF No. 39-1 at 31:18–21.1 The
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The Parties submitted deposition transcripts containing two sets of page numbers on each page. When citing to a deposition transcript, the Court relies on the page number appearing at the bottom center of each quarter-page.
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contract between CMI and USDA provided that the contractor would “perform day to day
locksmith duties,” and “provide all necessary labor to perform . . . locksmith duties[.]” ECF No.
34-1 at 1–2. Ultimately, CMI was “responsible for managing and [o]verseeing the activities of all
contractor personnel.” Id. at 11–12.
CMI provided USDA with Dennis’s resume and USDA approved his hiring. See ECF No.
39-1 at 31:18–21. CMI had no actual presence at the USDA building. See id. at 37:21–38:7. At
any time, USDA could have requested that CMI remove Dennis from his position. See id. at 27:1–
5.
Two USDA employees, Samuel Richardson and Walter Polainsky, supervised Dennis on
a day-to-day basis. See ECF No. 39-2 at 17:12–20; 19:3–12; ECF No. 39-3 at 12:13–13:12.
Richardson and Polainsky assigned Dennis’s workdays and hours. See ECF No. 39-2 at 22:18–
23:9. Richardson would review and approve Dennis’s timesheets. See ECF No. 39-1 at 22:1–19.
If Dennis needed to take time off, he would notify both Richardson and CMI. See ECF No. 39-2
at 23:10–24:5; ECF No. 39-1 at 19:4–14. Richardson and Polainsky assigned Dennis work orders,
prioritized tasks for Dennis, and sometimes accompanied Dennis to repair sites. See ECF No. 39-2 at 15:10–22; 39:15–40:15. Richardson communicated with Dennis throughout the day via walkie
talkie and text and at times would meet Dennis to discuss the work required for a particular order.
See ECF No. 39-3 at 18:9–15; 28:12–19; 29:5–19. Neither Richardson nor Polainsky would
“physically go out and help [him] do the job,” or “tell [him] how to fix a lock.” ECF No. 39-2 at
39:10–40:15.
USDA furnished Dennis with the tools and equipment required to perform his job, which
were kept in the USDA locksmith shop. See id. at 21:12–22:2. The contract between CMI and
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USDA stated that CMI was responsible for all “maintenance and repair of Government Furnished
Equipment (GFE).” ECF No. 34-1 at 2.
USDA also furnished Dennis with a motorized cart to travel throughout the job site. See
ECF No. 39-2 at 32:1–33:6; 34:1–9. USDA trained Dennis on how to use the cart. See id. at 32:1–
33:6; 34:1–9. Dennis was free to use the cart whenever he considered it necessary. See id. at 38:10–
16. To that end, the keys to operate the cart remained in it. See id.
On October 24, 2019, Dennis was driving the cart to a USDA building to complete a
maintenance job. See id. at 31:5–14; 36:5–10. While doing so, he struck Plaintiff. See id.
On September 16, 2022, Plaintiff filed a complaint against Dennis and the United States of
America. See ECF No. 1. Plaintiff alleges that Dennis and USDA breached duties of care under
the FTCA. See id.
III. LEGAL STANDARD
“Sovereign immunity shields the federal government from suit and is ‘jurisdictional in
nature.’” Gray v. United States, No. 21-cv-2310, 2022 WL 3758577, at *2 (D.D.C. Aug. 30, 2022)
(quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)). When sovereign immunity applies, a court
must dismiss the suit for lack of subject-matter jurisdiction. See United States v. Orleans, 425 U.S.
807, 813–14 (1976).
USDA raises sovereign immunity both through a motion to dismiss under Rule 12 and, in
the alternative, through a motion for summary judgment under Rule 56. See Def. Mot. to Dismiss
at 8–10 (citing Fed. R. Civ. P. 12(h)(3); 56(a)). “Summary judgment, however, represents a
decision on the merits, which courts may render only after jurisdiction has been established.”
Kirkham v. Societe Air France, 429 F.3d 288, 291 (D.C. Cir. 2005) (citing Winslow v. Walters,
815 F.2d 1114, 1116 (7th Cir. 1987) (“Seeking summary judgment on a jurisdictional issue . . . is
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the equivalent of asking a court to hold that because it has no jurisdiction the plaintiff has lost on
the merits. This is a nonsequitur.”)). “For this reason, parties seeking [FTCA] immunity do so
through Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction.” Kirkham, 429
F.3d at 291. Accordingly, the Court will treat Defendant’s motion as a Rule 12(b)(1) motion to
dismiss for lack of subject matter jurisdiction.2 See id.
The plaintiff bears the burden of establishing subject matter jurisdiction on a Rule 12(b)(1)
motion. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). In considering whether it has
jurisdiction, a court must accept “the allegations of the complaint as true.” Banneker Ventures,
LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (citing Herbert v. Nat'l Acad. of Sciences,
974 F.2d 192, 197 (D.C. Cir. 1992)). A court may also “consider the complaint supplemented by
undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus
the court’s resolution of disputed facts.” Id. (quoting Herbert, 974 F.2d at 197).
IV. DISCUSSION
The United States waives sovereign immunity under the FTCA for certain torts committed
by “employee[s] of the Government while acting within the scope of [their] office or employment.”
Orleans, 425 U.S. at 813 (quoting 28 U.S.C. § 1346(b)). “[E]mployee of the government” includes
“officers or employees of any federal agency” but specifically excludes “any contractor with the
United States.” 28 U.S.C. § 2671. Accordingly, courts “routinely hold that the United States cannot
be sued where the alleged duty of care has been delegated to an independent contractor.” Hsieh v.
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Defendant USDA styled their motion as a motion to dismiss under Rule 12(h)(3). “A motion styled as one under Rule 12(h)(3) is treated in the same way as a motion to dismiss for lack of subject-matter jurisdiction under” Rule 12(b)(1). Ams. for Fair Treatment v. U.S. Postal Serv., 663 F. Supp. 3d 39, 49 (D.D.C. 2023).
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Consol. Eng’g Servs., 569 F. Supp. 2d 159, 176 (D.D.C. 2008). This is known as the “independent
contractor exception” Orleans, 425 U.S. at 814.
However, the exception does not always apply. “The federal government may be liable for
the negligence of its contractor.” Gray, 2022 WL 3758577, at *2 (citing Orleans, 425 U.S. at 815).
“[C]ourts evaluate the level of control that the United States exercises over the contractor” to
determine if the exception applies. Gray, 2022 WL 3758577, at *2 (citing Hamilton v. United
States, 502 F. Supp. 3d 266, 274 (D.D.C. 2020); Verizon Washington, D.C., Inc. v. United States,
254 F. Supp. 3d 208, 216 (D.D.C. 2017)).
“[C]ourts have allowed the government extensive flexibility in the amount of supervision
it exerts over a contractor before it will deem that contractor an agent and its acts the acts of the
United States.” Cooper v. U.S. Gov’t & Gen. Servs. Admin., 225 F. Supp. 2d 1, 4 (D.D.C. 2002).
For example, 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).
Furthermore, “[i]f the contractor manages the daily functioning of the job, with the federal actor
just exercising broad supervisory powers, the contractor is likely an independent contractor.”
Hsieh, 569 F. Supp. 2d at 176–77.
On the other hand, courts have declined to apply the independent contractor exception
where the government exercises substantial supervision over a contractor’s day-to-day operations
and controls the way the contracted work is performed. See Logue v. United States, 412 U.S. 521,
527–28 (1973); Orleans, 425 U.S. at 814–15. Consistent with that principle, courts ask whether
the government directed how the contractor performed its work, as opposed to merely supervising
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the results of that work. See Cannon v. United States, 645 F.2d 1128, 1138–39 (D.C. Cir. 1981);
Hsieh, 569 F. Supp. 2d at 176–77.
A. The Contract
“Courts in this circuit regularly analyze government contracts to determine if the
independent contractor exception applies.” Gray, 2022 WL 3758577, at *2. Contract language that
establishes government control of “day-to-day operations,” or “detailed physical performance”
overcomes the independent contractor exception. Logue, 412 U.S. at 528; Orleans, 425 U.S. at
815.
The contract between USDA and CMI assigned CMI responsibility for all tasks and overall
management of CMI’s employees. See ECF No. 34-1 at 1–2. The contract states that “[CMI] will
be directly responsible for ensuring the accuracy, timeliness and completion of all tasks assigned
under the contract,” will “manag[e] and [o]versee[] the activities of all contractor personnel . . . in
the performance of this contract,” and “[p]rovide all necessary labor to perform . . . locksmith
duties.” ECF No. 34-1 at 1–2, 12 (emphasis added). 3
These provisions closely mirror contract terms where courts applied the independent
contractor exception. In Verizon, the independent contractor exception applied because the
contract assigned the contractor “full responsibility for . . . management and supervision of
3
Separately, Plaintiff argues that USDA waived the independent contractor exception by hiring Dennis to fill a role that had traditionally been performed by a USDA employee. See Pl’s Reply 12, ECF No. 39. But the independent contractor exception does not disappear “simply because [the contractor is] performing tasks that would otherwise be performed by salaried employees of the Government.” Logue, 412 U.S. 531–32 (1973). Nor is it relevant that USDA had the power to hire or fire Dennis. “The federal government's ability to ‘hire’ or ‘fire’ contractors[] does not speak to whether it is supervising such contractors' performances on a day-to-day basis.” Singh v. S. Asian Soc'y of George Washington Univ., 572 F. Supp. 2d 1, 9–10 (D.D.C. 2008) (citing Cooper v. United States, 225 F.Supp.2d 1, 4 (D.D.C.2002).
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maintenance, minor repairs, inspections, and housekeeping.” 254 F. Supp. 3d at 216. Similarly, in
Hsieh, the independent contractor exception applied where the contract provided that the
contractor was “responsible for the day-to-day inspection and monitoring of all [c]ontractor work
performed to ensure compliance with contract requirements.” 569 F. Supp. 2d at 177. Accordingly,
the contract language here does not establish government control of “day-to-day operations,” or
“detailed physical performance” of CMI’s employees. Logue, 412 U.S. at 528; Orleans, 425 U.S.
at 815. Indeed, the contract provides USDA “no authority to physically supervise the conduct” of
CMI’s employees. Logue, 412 U.S. at 528 (finding that where the contract did not authorize
government supervision of the contractor’s work, the independent contractor exception applied);
see ECF No. 34-1 at 1–2. Thus, as in Verizon and Hsieh, the independent contractor exception
applies here.
Plaintiff responds that the independent contractor exception should not apply because
USDA supplied Dennis with locksmithing tools and a motorized cart. See Pl’s Reply at 11. But
that is not dispositive. The independent contractor exception applies so long as the contract
required CMI to “[m]ake all repairs, minor and major, to government-owned equipment.” Cooper,
225 F. Supp. 2d at 4 (finding that the independent-contractor exception applied where the
government supplied cafeteria equipment, including stoves and ovens, but the contractor bore sole
responsibility for all maintenance and repairs). In fact, it did. The contract provided that CMI was
responsible for all “maintenance and repair of Government Furnished Equipment (GFE).” ECF
No. 34-1 at 2. Because CMI remained responsible for maintaining the USDA provided equipment,
the independent contractor exception still applies. See Hockman v. United States, 741 F. Supp. 5,
7 (D.D.C. 1990).
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B. The Conduct
Courts also examine the actual relationship between the government and the contractor.
See Cannon, 645 F.2d at 1137–41. The key question is whether the government controlled the
“detailed physical performance” of the contractor’s work. Orleans, 425 U.S. at 814–15. The
government controls a contractor’s detailed physical performance when the government directs
how the contractor performs the work on a day-to-day basis, including the way assigned tasks are
carried out. See Logue, 412 U.S. at 527–28; Orleans, 425 U.S. at 814–15. By contrast, the
government’s assignment of work, establishment of priorities, inspection of completed work, or
enforcement of contractual requirements does not amount to control of the contractor’s detailed
physical performance. See Orleans, 425 U.S. at 815.
Plaintiff contends that USDA controlled the detailed physical performance of Dennis’s
work because USDA employees “directed and controlled Defendant Dennis’ daily work
activities.” Pl’s Reply at 10. Specifically, Plaintiff points to USDA providing Dennis with a key
card, assigning him daily tasks through a USDA computer system, and maintaining “constant
contact” with Dennis throughout the workday. Id. at 11. However, these facts are insufficient to
overcome the independent contractor exception.
First, the government’s assignment of work tickets to a contractor does not establish the
control necessary to overcome the independent contractor exception. See Gray, 2022 WL 3758577,
at *3 (applying the exception because the government’s authority to submit work requests did not
demonstrate that the government had a duty to “take the lead” in the contractor's duties because
the contract still delegated “management [and] supervision” to the contractor). Second, prioritizing
a contractor’s tasks through direct communication also does not overcome the exception. See
Verizon, 254 F. Supp. 3d at 215–17. In Verizon, the independent contractor exception applied even
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though the contractor “coordinate[d]” with the government to prioritize maintenance tasks. Id. at
217. The court in Verizon emphasized that the agreement between the contractor and the
government “call[ed] for close coordination” and authorized the government to “re-prioritize the
contractor’s [] work when doing so [was] in the best interest of the Government.” Id. Nonetheless,
those facts “clearly [did] not constitute supervision of ‘day-to-day operations . . . by the federal
government,’” nor did they establish that “the federal government ‘control[led] the detailed
physical performance of the contractor.’” Id.
The supervision Richardson and Polainsky exercised over Dennis was no greater than the
supervision found insufficient in Verizon. Dennis “sp[oke] with [Richardson and Polainsky] to
find out what needed to be done[.]” ECF No. 39-2 at 28:11–14. And Richardson and Polainsky
occasionally escorted Dennis to job sites. See id. at 28:15–29:8. However, Richardson and
Polainsky did not “physically go out and help [Dennis] do the job,” nor did they “tell [Dennis]
how to fix a lock.” Id. at 39:15–40:4. Richardson’s and Polainsky’s involvement was limited to
assigning work and monitoring its completion, rather than directing the manner in which Dennis
performed his tasks. That level of oversight falls within the type of “broad supervisory” role
permitted within the exception. Hsieh, 569 F. Supp. 2d at 176–78 (holding that assigning
government personnel responsibility for the “direct supervision and execution of [contractor’s]
maintenance and repair work” did not establish government control over the contractor's detailed
physical performance); see also Singh, 572 F. Supp. 2d at 10 (holding that government approval
of a contractor’s security plans did not establish control over the contractor’s detailed physical
performance). At bottom, government employees may oversee, inspect, and coordinate a
contractor’s work without exercising the type of control necessary to defeat the independent
contractor exception. Indeed, “courts have consistently held, based on the Supreme Court's
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decision in Orleans, that the government may . . . supervise or inspect the work of the contractor
‘without vitiating the independent contractor exception.’” Norton v. United States, No. 21-cv-724,
2025 WL 2970475, at *7 (D.D.C. Oct. 22, 2025) (quoting Hsieh, 569 F. Supp. 2d. at 177).
Plaintiff also points to the fact that USDA provided Dennis with the cart involved in the
accident and trained him to operate it. See Pl’s Reply at 11–12. But those facts do not establish
that USDA controlled the “detailed physical performance” of Dennis’s operation of the cart.
Orleans, 425 U.S. at 815. In fact, USDA left the cart's use largely to Dennis’s discretion. Dennis
had an electronic keycard granting him access to the USDA building where the cart was parked.
See ECF No. 39-2 at 24:6–25:2. Because Dennis had his own keycard, he did not depend on USDA
employees to gain access to the building or the cart, allowing him to enter and exit the facility—
and retrieve and use the cart—as he deemed appropriate. Further, USDA left the cart keys in the
ignition. See id. at 38:10-16. This allowed Dennis to use the cart whenever he deemed it necessary.
See id. Consistent with that arrangement, USDA did not dictate when Dennis could use the cart.
See id. at 34:1–9; 34:17–20; 35:21–36:3. Thus, rather than controlling the manner and timing of
Dennis’s operation of the cart, USDA afforded Dennis independent access to, and discretion over,
its use. That level of autonomy is indicative of an independent contractor relationship. See Cupit
v. United States, 964 F. Supp. 1104, 1108 (W.D. La. 1997) (holding that there was sufficient
evidence that the government controlled the “detailed, physical performance” of a contractor
because, among other things, the contractor lacked independent access to the building and relied
on government employees to let him into secured areas, thereby allowing the government to dictate
when he performed his work).
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C. Plaintiff’s Notice of Dennis’s Status as a Contractor.
Finally, in response to USDA’s motion to dismiss, Plaintiff suggests in passing that USDA
failed to timely notify him it would argue that Dennis was an employee of a government contractor.
See Pl’s Reply at 7. That attempt to shift responsibility is unavailing. USDA put Plaintiff on notice
when USDA raised the issue as an affirmative defense in its answer to Plaintiff’s complaint. See
Def. Answer 4, ECF No. 10 (“The Court lacks subject matter jurisdiction over claims of negligence
asserted against an independent contractor of the United States.”). Upon reviewing USDA’s
answer, Plaintiff could have sought leave to amend his complaint and name CMI or any other party
as a defendant, but he did not do so. Whatever the reason for that omission, it cannot be attributed
to USDA.
V. CONCLUSION
Plaintiff’s claim against USDA is dismissed with prejudice for lack of subject matter
jurisdiction.
Digitally signed by Zia
Date: June 30, 2026 Zia M.Faruqui M.Faruqui
Date: 2026.06.30 16:12:07
-04'00'
ZIA M. FARUQUI
UNITED STATES MAGISTRATE JUDGE
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