NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 18-1526 _____________ E.D., Appellant v. UNITED STATES OF AMERICA ____________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (No. 5:17-cv-2691) District Judge: Hon. Edward G. Smith Submitted under Third Circuit L.A.R. 34.1(a) January 24, 2019 Before: SMITH, Chief Judge, CHAGARES and BIBAS, Circuit Judges (Filed March 1, 2019) ____________ OPINION* ____________ * This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Circuit Judge. Appellant E.D. was the victim of institutional sexual assault by Daniel Sharkey, an employee of an immigrant detention facility run by Berks County, Pennsylvania, under a contract with the United States Immigration and Customs Enforcement agency (ICE). She filed a lawsuit against the United States for negligence. The District Court dismissed the case for lack of jurisdiction because the United States has not waived sovereign immunity for the torts of its independent contractors. We agree, but we also conclude that the District Court’s dismissal of E.D.’s direct negligence claim against the United States was procedurally improper. Thus, we will affirm in part, vacate in part, and remand. I. Because we write only for the parties, we recite just those facts necessary to our disposition. E.D. is a Honduran national who sought asylum in the United States in 2014. She and her son were detained at the Berks County Residential Center – Immigration Family Center (BCRC), which has a contract with ICE to act as a detention facility and house immigrant detainees and their children. For three months of her detention, E.D. was the victim of institutional sexual assault by Daniel Sharkey, a BCRC staff member. E.D. filed a lawsuit against the United States for negligence under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671–80. The Government moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Among other reasons, it 2 argued that the independent-contractor exception to the FTCA applied and thus sovereign immunity barred the District Court from exercising jurisdiction. After jurisdictional discovery, the District Court considered the evidence the parties submitted and found that Berks County controlled day-to-day operations at BCRC. Under Berks County’s contract with ICE, it was the county that would “house” detainees and “perform related residential/detention services.” Joint Appendix (“JA”) 6. And BCRC employees, managers, and directors — “[e]ssentially every employee” — “testified ICE did not supervise or control their day-to-day responsibilities.” JA 8, 13. An ICE representative testified the same way. JA 7–8. The court found that ICE, on the other hand, performed only “generalized compliance supervision.” JA 13. To this end, the contract authorized ICE to conduct “periodic inspections of the facility to assure compliance.” JA 7. And an ICE employee “spent about fifty percent of her time in 2014 on site” to guarantee compliance. JA 7. But, the court found, “her role was not to control and/or supervise daily operations.” JA 7. Similarly, ...
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