Hammonds v. United States

RUSSELL L. HAMMONDS AND ROBERT STEVE RODRIGUEZ, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

Civ. No. 16-1230 GBW/KRS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

March 19, 2018

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on Defendant's Motion to Dismiss or in the Alternative for Summary Judgment. Doc. 73. Having reviewed the motion and attendant briefing (docs. 77, 82), having presided over oral argument on the matter (doc. 86), and being otherwise fully advised, the Court hereby GRANTS summary judgment to Defendant for the reasons described below.

I. BACKGROUND

This case stems from injuries suffered by Plaintiffs in the McGregor Range Complex, Range No. 39 on October 10, 2013. Doc. 39 at 2-4. On October 8, 2015, each Plaintiff timely filed a separate administrative claim with the Department of the Army ("DOA"). Id. at 1. The DOA denied both claims by letter dated May 12, 2016. Doc. 41 at 2. Plaintiffs filed suit in this Court on November 9, 2016. Doc. 1. Plaintiffs then filed an Amended Complaint on May 16, 2017. Doc. 39. Specifically, Plaintiffs brought (1) claims against Defendant for negligence pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, (2) claims against Defendant for strict liability pursuant to the FTCA, and (3) claims against Defendant for violations of N.M.S.A. § 30-7-6 and N.M.S.A. § 74-4-1.¹ Defendant filed a Motion to Dismiss or in the Alternative for Summary Judgment on December 13, 2017. Doc. 73. In the Motion, Defendant seeks dismissal for lack of subject matter jurisdiction, arguing that the discretionary function exception to the FTCA applies in this case, and Defendant's sovereign immunity is therefore not waived as to Plaintiffs' claims. Id. at 8-10, 12-25. In the alternative, Defendant seeks summary judgment, arguing that the New Mexico wrongful conduct doctrine precludes Plaintiffs from recovering damages arising from their own illegal activities. Id. at 10-11, 25-27. The Motion was fully briefed on January 30, 2018. Doc. 84. The Court heard oral argument on the Motion on February 8, 2018. Doc. 86.

II. LEGAL STANDARDS

A. Motion to Dismiss under Rule 12(b)(1)

"A 12(b)(1) motion is the proper avenue to challenge the court's subject matter jurisdiction, and Rule 12(h)(3) requires that '(w)henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.'" Barnson v. United States, 531 F. Supp. 614, 617 (D. Utah 1982).

Motions under 12(b)(1) "generally take one of two forms: (1) a facial attack on thesufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based." Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002) (citations omitted). The Court understands the United States to be mounting a factual attack, because, as explained in more detail below, determining whether the discretionary function exception applies under the FTCA requires the Court to consider evidence outside the pleadings. See Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995); see also Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536 (1988).

Accordingly, this Court shall review the face of the Amended Complaint and any relevant external materials to determine whether Plaintiffs have presented claims within the Court's jurisdiction, a necessary prerequisite for adjudication on the merits. Fed. R. Civ. P. 12(b)(1); see also Fleming v. Gutierrez, 785 F.3d 442, 444 (10th Cir. 2015) (holding that lack of subject matter jurisdiction precludes reaching the merits of a dispute). Notably, however, the Court must convert a 12(b)(1) motion to dismiss to a 12(b)(6) motion, or a motion for summary judgment, "if the jurisdictional question is intertwined with the merits of the case. Whether the discretionary-function exception applies is such a question." Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir. 1999) (internal quotations, citations, and alteration omitted). Therefore, the Court approaches the present motion as a summary judgment motion under Rule 56.

B. Summary Judgment

Under Federal Rule of Civil Procedure 56(a), this Court must "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). See also Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 851 (10th Cir. 1996). The movant bears the initial burden of "show[ing] 'that there is an absence of evidence to support the nonmoving party's case.'" Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the movant meets this burden, the non-moving party is required to designate specific facts showing that "there are . . . genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex, 477 U.S. at 324.

C. The FTCA

The FTCA, 28 U.S.C. §§ 2671 et seq., waives the United States' sovereign immunity for certain claims arising out of injuries caused by the negligence of governmental employees acting within the scope of their employment. 28 U.S.C. § 1346(b)(1). Under the FTCA, the United States can be held liable "in the same manner and to the same extent as a private individual under like circumstances," subject to certain exceptions. Id. §§ 2674, 2680(a). The two exceptions relevant here are the discretionary function exception and the private person analog.

1. Discretionary function exception.

The FTCA preserves the United States' sovereign immunity from claims 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). See also Elder v. United States, 312 F.3d 1172, 1176 (10th Cir. 2002). "Application of this exception is . . . a threshold issue[.]" Johnson v. United States Dept' of Interior, 949 F.2d 332, 335 (10th Cir. 1991). "If the discretionary function exception applies to the challenged governmental conduct, the United States retains its sovereign immunity and the district court lacks subject matter jurisdiction to hear the suit." Domme v. United States, 61 F.3d 787, 789 (10th Cir. 1995). Plaintiff must therefore show the absence of this exception as part of his overall burden to establish subject matter jurisdiction. See Aragon v. United States, 146 F.3d 819, 823 (10th Cir. 1998).

To determine whether the challenged conduct falls within the discretionary function exception, courts engage in a two-pronged analysis, known as the Berkovitz test, asking: (1) "whether the challenged conduct 'involves an element of judgment or choice,'" rather than involving application of "a federal statute, regulation, or policy that specifically prescribes a course of action for an employee to follow" and if so, (2) "whether that judgment is the kind that the discretionary function exception was designed to shield[.]" Kiehn v. United States, 984 F.2d 1100, 1102-03 (10th Cir. 1993)(quoting Berkovitz, 486 U.S. at 536) (alteration omitted). The second prong is animated by public policy concerns, but "[w]hen making the second inquiry, we are not to consider the subjective intent of the particular actor . . . . Rather, we must consider whether the nature of the actions taken implicate public policy concerns, or are 'susceptible to policy analysis.'" Lopez v. United States, 376 F.3d 1055, 1057 (10th Cir. 2004) (citing Kiehn, 984 F.2d at 1105).

2. Private person analog.

"The FTCA does not itself create a substantive cause of action against the United States; rather, it provides a mechanism for bringing a state law tort action against the federal government in federal court. Thus, the extent of the government's liability under the FTCA is determined by state law." Clark v. United States, 234 F. Supp. 3d 1127, 1135 (D.N.M. 2014) (internal quotations and citations omitted), aff'd, 695 F. App'x 378, 2017 WL 2644635 (10th Cir. June 20, 2017); see also Burge v. United States, Civ. No. 10-0069 MV/WDS, 2012 WL 1450062, at *3 (D.N.M. Mar. 27, 2012). The FTCA's limited grant of subject matter jurisdiction hinges on whether a private person could be subject to state law liability under similar factual circumstances as those alleged against government actors. Id.; see also United States v. Olson, 546 U.S. 43, 44 (2005). Overall, the FTCA intended to limit the United States' waiver of sovereign immunity to well-established torts where clear, private analogs exist under state tort law. Dalehite v. United States, 346 U.S. 15, 28 (1953) ("Uppermost in the collective mind of Congresswere the ordinary common-law torts"), partial abrogation on other grounds recognized by Rayonier, Inc. v. United States, 352 U.S. 315 (1957).

D. The New Mexico Wrongful Conduct Doctrine

Under New Mexico law, Plaintiffs may not maintain a cause of action that is predicated on their own illegal conduct. Desmet v. Sublett, 225 P.2d 141, 142 (N.M. 1950). This doctrine stems from public policy considerations, as "courts traditionally have followed a policy of closing the courthouse doors to persons seeking, through civil lawsuits, to collect debts that arise from unlawful activities." United States v. Martinez, 978 F. Supp. 1442, 1454 (D.N.M. 1997).

III. UNDISPUTED FACTS

Based on the facts presented by the movants and other facts gleaned from the record, the Court finds the following facts to be undisputed for the purposes of Defendant's motion:

1. McGregor Range Complex No. 39 is a multi-purpose training range which includes a high explosive impact firing range facility located about 3.1 miles east of

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