Hamilton v. United States of America ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DEANDRE LAMONT HAMILTON,
Plaintiff,
v. Civil Action No. 19-1105 (RDM)
UNITED STATES OF AMERICA et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
On May 19, 2016, Wayne Wright, a criminal defendant out on pretrial release, murdered
Dana Hamilton. Although Wright was prosecuted for the crime, Plaintiff DeAndre Hamilton, as
the personal representative of Dana Hamilton’s estate, alleges in this case that the United States
government bears some responsibility for not preventing the killing. At the time Wright shot
Dana Hamilton, the Court Services and Offender Supervision Agency (“CSOSA”) was supposed
to be tracking Wright’s whereabouts using a GPS monitor. But the government contractor
responsible for attaching the tracking device to Wright’s body, Sentinel Offender Services, LLC
(“Sentinel”), mistakenly fastened it to Wright’s prosthetic leg. Leaving the tracked prosthesis at
home, Wright traveled undetected to an area he was under a court order to avoid and, there,
murdered Dana Hamilton.
In his original complaint, Plaintiff asserted claims against the United States, CSOSA,
Sentinel, and John Does 1–5 for negligently installing the tracking device and thereby causing
Dana Hamilton’s death. Dkt. 1. The United States and CSOSA moved to dismiss on several
grounds. Dkt. 11. In an earlier opinion, the Court granted the federal Defendants’ motion to
dismiss because sovereign immunity barred suit against those Defendants. Hamilton v. United
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States, 502 F. Supp. 3d 266 (D.D.C. 2020) (“Hamilton I”). The Court held, in particular, that the
limited waiver of sovereign immunity contained in the Federal Tort Claims Act (“FTCA”) did
not permit Plaintiff’s claims against CSOSA because the FTCA does not waive sovereign
immunity for suits against federal agencies. Likewise, the FTCA did not permit Plaintiff’s
claims against the United States because, although the FTCA allows certain claims against the
United States, it does not waive sovereign immunity for claims premised on the negligence of
independent contractors.
Following the Court’s decision, Plaintiff sought leave to amend his complaint to allege
that the United States was directly negligent in its decisions to hire and retain Sentinel. 1 Dkt. 27.
With the parties’ consent, the Court granted the motion to amend and construed the
government’s opposition to that motion, Dkt. 30, as a renewed motion to dismiss. Because
Plaintiff’s new claim again falls within an exception to the FTCA—this time, the discretionary-
function exception—the Court will GRANT the government’s motion and will DISMISS
Plaintiff’s claims against the United States.
I. BACKGROUND
A. Factual and Procedural Background
The Court detailed the tragic series of events that led to this lawsuit in its prior opinion.
See Hamilton I, 502 F. Supp. 3d at 270–71. In short, on April 30, 2016, Wright, also known as
Quincy Green, was charged in the Superior Court of the District of Columbia with unlawful
possession of a firearm. Dkt. 33 at 6 (Am. Compl. ¶ 25). A few days later, the Superior Court
released Wright pending trial while imposing certain conditions. Id. (Am. Compl. ¶ 26). As
relevant here, the court ordered a component of CSOSA, known as the Pretrial Services Agency
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The proposed amended complaint also dropped Plaintiff’s claims against CSOSA.
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(“PSA”), to attach a GPS monitoring device to Wright so that PSA could track his location. Id.
And the court prohibited Wright from visiting the 800 block of Chesapeake Street S.E. in the
District of Columbia. Id. Under a contract between PSA and Sentinel, it was Sentinel’s job to
secure the GPS device to Wright’s leg. Id. at 6–7 (Am. Compl. ¶¶ 27–28). Wright has one
natural leg and one detachable prosthetic leg. Id. at 7 (Am. Compl. ¶ 29). Sentinel’s agents
(named in the amended complaint as John Does 1–5) attached the GPS to Wright’s prosthetic
leg. Id. (Am. Compl. ¶ 30). Wright then circumvented the tracking device by replacing the
tracked prosthesis with a spare one, traveled in violation of the stay-away order to the 800 block
of Chesapeake Street S.E., and shot and killed Dana Hamilton. Id. (Am. Compl. ¶¶ 31–32).
Within a week, Wright was charged with second-degree murder. Id. (Am. Compl. ¶ 32).
Plaintiff originally filed this lawsuit on April 18, 2019, against the United States,
CSOSA, Sentinel, and John Does 1–5. Dkt. 1. The federal Defendants moved to dismiss on
several grounds. Dkt. 11; Dkt. 13. On November 16, 2020, the Court granted the federal
Defendants’ motion. Hamilton I, 502 F. Supp. 3d at 278. The Court dismissed Plaintiff’s claims
against CSOSA because federal agencies, unlike the United States itself, are not subject to suit
under the FTCA—and CSOSA “is an independent executive branch agency.” Id. at 273–74; see
also D.C. Code § 24-133(a) (establishing CSOSA “within the executive branch of the Federal
Government”); Dkt. 1 at 3 (Compl. ¶ 6) (referring to CSOSA as “a government agency operating
under the laws of the United States”). The Court dismissed Plaintiff’s claims against the United
States, in turn, pursuant to the independent-contractor exception to the FTCA. Hamilton I, 502
F. Supp. 3d at 274–77. Based on an analysis of the contract between PSA and Sentinel, the
Court concluded that the government did not exert control over Sentinel with respect to the
installation of GPS tracking devices. Id. Accordingly, the United States could not be held liable
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for Sentinel’s alleged negligence. Id. at 277. The Court also noted that, in opposing the motion
to dismiss, Plaintiff had asserted that “the United States was negligent for hiring Sentinel in the
first place, a claim that would not be subject to the FTCA’s independent contractor exception.”
Id. But Plaintiff’s argument suffered from a glaring problem—“the complaint ma[de] no
mention of this separate cause of action and d[id] not allege any facts to support it.” Id. at 278.
That argument thus could not save the original complaint from dismissal. Id. But the Court
permitted Plaintiff to “file a motion seeking leave to amend his complaint within twenty-one
days” of its decision, to the extent “Plaintiff ha[d] a good-faith basis . . . to allege that the United
States was negligent for hiring Sentinel given known concerns about the company’s
competence.” Id.
On December 7, 2020, Plaintiff filed a motion to amend, dropping his claims against
CSOSA while seeking to add a new claim alleging that the United States was negligent in its
decisions to retain Sentinel. 2 Dkt. 27. The United States opposed the motion to amend on the
ground that the new claim would be barred by additional exceptions to the FTCA and that, in any
event, the new claim failed on the merits. Dkt. 30. At a hearing on that motion, the Court (with
the parties’ consent) granted the motion to amend but construed the government’s opposition as a
motion to dismiss. Minute Entry (Feb. 5, 2021). In a new Count IV, the amended complaint
asserts that the United States “had or should have had knowledge of Defendant Sentinel’s
unfitness to perform its contractually obligated duties,” in light of the company’s “history of
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Although the amended complaint also names Sentinel as a defendant, Plaintiff has yet to file
proof that he has served Sentinel. The Court previously granted Plaintiff’s request to stay his
time to effect service on Sentinel until thirty days after the resolution of the government’s first
motion to dismiss. See Dkt. 24; Minute Order (Apr. 14, 2020). That time passed long ago, and
thus, unless Plaintiff either files proof of service on Sentinel or establishes good cause for any
failure to do so on or before July 21, 2021, the Court will dismiss the pending claims against
Sentinel without prejudice pursuant to Federal Rule of Civil Procedure 4(m).
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negligence and of being sued for alleged impropriety, including not properly monitoring
offenders and providing faulty monitoring equipment.” Dkt. 33 at 13 (Am. Compl. ¶¶ 61–62).
The amended complaint details several past accusations of wrongdoing and incompetence
against Sentinel and alleges that, despite the controversy surrounding the company, PSA
awarded Sentinel a contract to provide electronic monitoring services and equipment for pretrial
and probationary defendants and then renewed that contract year after year. Id. at 4–5 (Am.
Compl. ¶¶ 15–20). For example, in 2012, after years of litigation, a woman in Georgia allegedly
received $175,000 because Sentinel had negligently issued a request for her arrest long after she
had already completed her probation. Id. at 4 (Am. Compl. ¶ 16). In March 2013, a Florida man
sued Sentinel for using allegedly faulty monitoring equipment that caused his false arrest and
imprisonment; Sentinel allegedly settled the suit in 2016 for an undisclosed amount. Id. at 5
(Am. Compl. ¶ 17). Also in 2013, an audit in Orange County, California, allegedly found that
more than a dozen out of 143 offenders had faulty monitoring bracelets, at least five of which
had gone completely offline for twenty days. Id. (Am. Compl. ¶ 18). As a result, according to
the amended complaint, Sentinel failed to report probation violations that the defective devices
should have detected. Id. A subsequent audit in Los Angeles County, California, allegedly told
a similar story. Id. It found that, during a two-month period, fifty-one of 196 defendants had to
exchange their GPS trackers because of malfunctions. Id. Violent offenders allegedly went
unmonitored for more than five days at a time. Id.
As the Court explained in Hamilton I, PSA first contracted with Sentinel to provide
electronic monitoring of defendants on September 26, 2013. Hamilton I, 502 F. Supp. 3d at 275.
According to Plaintiff, as part of obtaining the contract, “Sentinel completed a Past and Present
Performance Questionnaire and was required to provide details regarding their performance of
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previously awarded contracts.” Dkt. 33 at 6 (Am. Compl. ¶ 22). PSA extended the contract
annually through September 25, 2018, moreover, despite further legal trouble for Sentinel. Id.
(Am. Compl. ¶ 24). For instance, in 2015, another Georgia woman was allegedly awarded
$200,000 because Sentinel had failed to withdraw a warrant request after she had paid all
outstanding fees. Id. at 5 (Am. Compl. ¶ 19). And in 2016, an Illinois woman sued Sentinel for
allegedly failing to monitor two juveniles who attacked the plaintiff while purportedly under the
company’s electronic supervision. Id. (Am. Compl. ¶ 20). Finally, the amended complaint avers
that approximately 2,800 plaintiffs have filed a class-action suit against Sentinel in Georgia for
allegedly using coercive tactics, such as threats of additional jail time, to extract money from
probationers. Id. at 4 (Am. Compl. ¶ 15). As one example, the suit alleges that Sentinel required
people to submit to and pay for drug tests that no court had ordered. Id. Given these allegations
against Sentinel, Plaintiff alleges that the United States had a duty to hire a more reliable
contractor.
B. Statutory Background
Under the doctrine of sovereign immunity, the United States may not be sued without its
consent. United States v. Mitchell, 445 U.S. 535, 538 (1980). “A waiver of sovereign immunity
‘cannot be implied but must be unequivocally expressed.’” Id. (quoting United States v. King,
395 U.S. 1, 4 (1969)). The government’s consent to be sued “must be ‘construed strictly in favor
of the sovereign,’” Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983) (quoting McMahon v.
United States, 342 U.S. 25, 27 (1951)), and must not be “‘enlarge[d] . . . beyond what the
language requires,’” id. at 685–86 (alteration in original) (quoting E. Transp. Co. v. United
States, 272 U.S. 675, 686 (1927)).
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The FTCA, upon which Plaintiff premises his claims against the United States, provides a
limited waiver of federal sovereign immunity. It permits individuals to bring suit in federal
district court against the United States “for injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). The FTCA
allows suits to proceed “under circumstances where the United States, if a private person, would
be liable to the claimant in accordance with the law of the place where the act or omission
occurred.” Id.But the FTCA’s waiver of sovereign immunity is subject to several exceptions, at least
two of which may be relevant here. First, the FTCA does not waive sovereign immunity for
claims “based upon the exercise or performance” of “a discretionary function or duty . . . ,
whether or not the discretion involved be abused.” Id. § 2680(a). Second, the FTCA does not
waive sovereign immunity for intentional torts, including “[a]ny claim arising out of assault,
battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights.” Id. § 2680(h). “[A]bsent full
compliance with the conditions the Government has placed upon its waiver, courts lack
jurisdiction to entertain tort claims against it.” GAF Corp. v. United States, 818 F.2d 901, 904
(D.C. Cir. 1987).
II. LEGAL STANDARD
When confronted with a motion to dismiss under both Rule 12(b)(1) and Rule 12(b)(6),
the Court must first consider whether it has subject-matter jurisdiction. Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 94–95 (1998). Federal courts are courts of limited subject-matter
jurisdiction and “possess only that power authorized by the Constitution and statute.” Kokkonen
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v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The plaintiff bears the burden of
establishing jurisdiction, Kokkonen, 511 U.S. at 377, and “subject matter jurisdiction may not be
waived,” NetworkIP, LLC v. F.C.C., 548 F.3d 116, 120 (D.C. Cir. 2008) (internal quotation
marks and citations omitted).
A Rule 12(b)(1) motion may raise a “facial” or a “factual” challenge to the Court’s
jurisdiction. See Hale v. United States, No. 13-cv-1390, 2015 WL 7760161, at *3–4 (D.D.C.
Dec. 2, 2015). A facial challenge to the Court’s jurisdiction contests the legal sufficiency of the
jurisdictional allegations contained in the complaint. See Erby v. United States, 424 F. Supp. 2d
180, 182 (D.D.C. 2006). For a facial challenge, the Court must accept the allegations of the
complaint as true and must construe “the factual allegations in the complaint in the light most
favorable to the non-moving party.” Id.; see also I.T. Consultants, Inc. v. Republic of Pakistan,
351 F.3d at 1184, 1188 (D.C. Cir. 2003). In this sense, the Court must resolve the motion in a
manner similar to a motion to dismiss under Rule 12(b)(6). See Price v. Socialist People’s
Libyan Arab Jamahiriya, 294 F.3d 82, 93 (D.C. Cir. 2002).
Alternatively, a Rule 12(b)(1) motion may pose a “factual” challenge to the Court’s
jurisdiction. Erby, 424 F. Supp. 2d at 182–83. For factual challenges, the Court “‘may not deny
the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and
disputed by the defendant,’ but ‘must go beyond the pleadings and resolve any disputed issues of
fact the resolution of which is necessary to a ruling upon the motion to dismiss.’” Id. (quoting
Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)). In this
context, the factual allegations of the complaint are not entitled to a presumption of validity, and
the Court is required to resolve factual disputes between the parties. Id. at 183. The Court may
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consider the complaint, any undisputed facts, and “‘the [C]ourt’s resolution of disputed facts.’”
Id. (quoting Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)).
A motion to dismiss for failure to state a claim upon which relief can be granted under
Rule 12(b)(6) “tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002). In evaluating a Rule 12(b)(6) motion, the Court “must first ‘tak[e] note of
the elements a plaintiff must plead to state [the] claim to relief,’ and then determine whether the
plaintiff has pleaded those elements with adequate factual support to ‘state a claim to relief that
is plausible on its face.’” Blue v. District of Columbia, 811 F.3d 14, 20 (D.C. Cir. 2015)
(alterations in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 678 (2009)). The
complaint, however, need not include “detailed factual allegations” to withstand a Rule 12(b)(6)
motion. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff may survive a Rule
12(b)(6) motion even if “recovery is . . . unlikely,” so long as the facts alleged in the complaint
are “enough to raise a right to relief above the speculative level.” Id. at 555–56 (internal
quotation marks omitted). In assessing a Rule 12(b)(6) motion, a court may consider only “the
facts contained within the four corners of the complaint,” Nat’l Postal Pro. Nurses v. U.S.P.S.,
461 F. Supp. 2d 24, 28 (D.D.C. 2006), along with “any documents attached to or incorporated
into the complaint, matters of which the court may take judicial notice, and matters of public
record,” United States ex rel. Head v. Kane Co., 798 F. Supp. 2d 186, 193 (D.D.C. 2011).
III. DISCUSSION
The United States moves to dismiss on several grounds. At the threshold, the
government argues that the Court lacks jurisdiction over Plaintiffs’ negligent hiring claim based
on the intentional-tort and discretionary-function exceptions to the FTCA. Dkt. 30 at 4–9. Then,
on the merits, the government argues that the amended complaint does not adequately allege that
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the United States owed a duty to Dana Hamilton. Id. at 9–12. In the alternative, the government
contends that, even if it did owe a duty of care to Dana Hamilton, the amended complaint does
not adequately allege a breach of that duty. Id. at 12–13.
The Court begins, as it must, with jurisdiction. Although the government’s brief leads
with the intentional-tort exception, the Court will first address the the discretionary-function
exception, because it presents the more straight-forward grounds for dismissal. The FTCA does
not waive the federal government’s sovereign immunity for claims “based upon the exercise or
performance” of “a discretionary function or duty . . . , whether or not the discretion involved be
abused.” 28 U.S.C. § 2680(a). This exception aims to “prevent judicial ‘second-guessing’ of
legislative and administrative decisions grounded in social, economic, and political policy
through the medium of an action in tort.” United States v. S.A. Empresa de Viacao Aerea Rio
Grandense, 467 U.S. 797, 814 (1984).
The Supreme Court has established a two-prong test to assess whether government
conduct falls within the discretionary-function exception. See United States v. Gaubert, 499 U.S.
315, 322–33 (1991). First, a court must determine whether a “federal statute, regulation, or
policy specifically prescribes a course of action for the employee to follow.” Berkovitz v. United
States, 486 U.S. 531, 536 (1988). If a particular course of conduct is legally mandated but not
followed, the discretionary-function exception will not apply because a government actor “has
no rightful option but to adhere to [that] directive.” Id. But if the challenged conduct “involves
an element of judgment or choice,” the first prong of the discretionary-function test is satisfied.
Id. At the second prong, a court must consider whether the decision-making process in question
is “of the kind that the discretionary[-]function exception was designed to shield.” Id. The
exception was intended to “protect[] only governmental actions and decisions based on
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considerations of public policy.” Id. at 537. That is, “[d]ecisions that require choice are exempt
from suit under the FTCA only if they are ‘susceptible to policy judgment’ and involve an
exercise of ‘political, social, [or] economic judgment.’” Cope v. Scott, 45 F.3d 445, 448 (D.C.
Cir. 1995) (alteration in original) (quoting Gaubert, 499 U.S. at 325). When the challenged
conduct involves considerations of public policy, the exception protects “even government
abuses of discretion.” Shuler v. United States, 531 F.3d 930, 935 (D.C. Cir. 2008).
With respect to the second prong, Plaintiff does not—and, indeed, could not—contest
that the selection of contractors is the type of policy decision that the discretionary-function
exception was designed to protect. See Dkt. 34-1 at 10 (acknowledging that “it is difficult to
argue” that the second prong is not met in this case). As Plaintiff recognizes, clear D.C. Circuit
precedent establishes that “hiring, training, and supervision choices” are “susceptible to policy
judgment.” Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1217 (D.C. Cir. 1997).
Instead, Plaintiff pins his hopes to the first prong, arguing that “the act of hiring a prospective
contractor, and arguably in maintaining the contractual relationship between the United States
and its contractors, is not a decision which involves an element of judgment or choice.” Dkt. 34-
1 at 13.
Plaintiff argues that the government lacks any choice in the selection of contractors
because it must comply with the Federal Acquisition Regulations (“FAR”), 48 C.F.R. § 1 et seq.
Those regulations set forth “uniform policies and procedures for acquisition by all executive
agencies.” Id. § 1.101. As relevant here, Subpart 9.1 creates “policies, standards, and
procedures for determining whether prospective contractors . . . are responsible.” Id. § 9.100.
Contracting officers cannot award contracts unless they make an “affirmative determination of
responsibility.” 48 C.F.R. § 9.103(b). In order to be deemed “responsible,” a prospective
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contractor must, among other things, “have a satisfactory performance record,” “have a
satisfactory record of integrity and business ethics,” and “have the necessary organization,
experience, accounting and operational controls, and technical skills.” Id. § 9.104–1; see also id.
§ 9.104–3. A federal agency hiring a contractor thus must take certain steps and consider certain
factors.
But, as other courts have recognized, the procedural requirements imposed by the FAR
do no eliminate all choice from the selection of federal contractors. Rather, when selecting a
contractor within the FAR framework, a government agency is “required to evaluate and weigh a
plethora of factors” but still “us[es] its overall judgment as to the final choice.” Wood v. United
States, 290 F.3d 29, 38 (1st Cir. 2002); cf. Sloan v. U.S. Dep’t of Hous. & Urb. Dev., 236 F.3d
756, 760 (D.C. Cir. 2001) (holding that rules delineating conditions for the suspension of a
business from government work did not “convert the [suspension] decision into a
nondiscretionary act”). Indeed, the responsibility requirements on which Plaintiff relies
unambiguously call for the exercise of policy judgment. An agency must use its sound discretion
to determine what constitutes a “satisfactory” performance record or which technical skills are
“necessary.” 28 C.F.R. § 9.104–1. The Court concludes that a federal agency’s selection of
which contractor to hire involves an element of choice. Plaintiff’s suggestion to the contrary
strains credulity. Understandably, Plaintiff disagrees with the government’s conclusion that
Sentinel is a responsible contractor, but the discretionary-function exception shields “even
government abuses of discretion.” Shuler, 531 F.3d at 935.
To be sure, certain aspects of the FAR appear to create non-discretionary duties. For
instance, under the regulations, “[n]o purchase or award shall be made unless the contracting
officer makes an affirmative determination of responsibility.” Id. § 9.103(b). The Court may
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assume, for present purposes, that the complete failure to make that required determination
could, in certain circumstances, constitute the negligent dereliction of a non-discretionary duty
that could give rise to liability under the FTCA. But Plaintiff does not identify—in either his
complaint or his opposition to the motion to dismiss—any specific non-discretionary duty that
PSA violated when assessing whether to award a contract to Sentinel. In the absence of such an
allegation, PSA’s overall contracting decision involved an element of choice and the
discretionary-function exception bars Plaintiff’s negligent hiring claim. The Court thus lacks
jurisdiction over that claim and will, accordingly, grant the government’s motion to dismiss. 3
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Because the Court concludes that the discretionary-function exception bars Plaintiff’s
negligent hiring claim, the Court need not consider the government’s alternative argument that
the intentional-tort exception also applies. The government’s argument with respect to the
intentional-tort exception would seem to present a question of first impression. The Supreme
Court has held that the intentional-tort exception “does not merely bar claims for assault or
battery; in sweeping language it excludes any claim arising out of assault or battery.” United
States v. Shearer, 473 U.S. 52, 55 (1985). The exception thus encompasses claims that “sound in
negligence but stem from a battery.” Id. But no case of which the Court is aware has addressed
whether a claim against the government can “aris[e] out of” an intentional tort even where the
intentional tort was committed by a third party, rather than a government employee or contractor.
Cf. id. at 56–57 (“In enacting the Federal Tort Claims Act, Congress’ focus was on the extent of
the Government’s liability for the actions of its employees,” and the intentional-tort exception
was “at least intended to exclude claims arising from such intentional torts committed by
Government employees.”). That question is best left for another day.
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CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the government’s motion to
dismiss, Dkt. 30, is GRANTED and that Plaintiff’s claims against the United States are
DISMISSED. It is further ORDERED that, on or before July 21, 2021, Plaintiff shall file proof
of service on Sentinel or shall establish good cause for his failure to effect service. If Plaintiff
fails to do so, the Court will dismiss Plaintiff’s claims against Sentinel without prejudice
pursuant to Federal Rule of Civil Procedure 4(m).
SO ORDERED
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: July 6, 2021
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