Davis et al v. United States Department of Air Force

Filing 62

MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson GRANTING 54 Defendant's Motion for Summary Judgment. (mag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
______________________
L.A. DAVIS, and SARAH DAVIS,
husband and wife doing business as
D & D Equipment,
Plaintiffs,
v.

No. CV-13-0982 WJ-CG

UNITED STATES DEPARTMENT
OF AIR FORCE, Cannon Air Force Base,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS MATTER comes before the Court upon Defendant’s Motion for Summary
Judgment, filed November 22, 2016 (Doc. 54). Having reviewed the parties’ pleadings and the
applicable law, the Court finds that Defendant’s motion is well-taken and, therefore, is
GRANTED.
BACKGROUND
In this case, Plaintiff is suing Defendant, the United States Department of Air Force (“Air
Force”) for damages to property under the Federal Tort Claims Act, 28 U.S.C. §1346 (“FTCA”).
The Court previously dismissed this case in its entirety when, on July 17, 2014, the Court
granted Defendant’s motion to dismiss based on Plaintiffs’ failure to file this lawsuit within the
statute of limitations (Doc. 25), acknowledging then-existing precedent which holds that
jurisdictional requirements are not subject to equitable tolling. Nahatchevska v. Ashcroft, 317
F.3d 1226, 1227 (10th Cir. 2003) (noting where filing of a timely petition for review was a
jurisdictional requirement for a claim, equitable tolling could not apply). The Court found that it

had no jurisdiction over Plaintiff’s complaint because Plaintiff failed to file this lawsuit within
the six-month limitations period from the mailing of the agency’s final denial.
The factual background in this case has not changed since the Court’s ruling on the
limitations issue. What has changed in the interim is the law. During the pendency of Plaintiff’s
appeal of the Court’s dismissal of this lawsuit to the Tenth Circuit Court of Appeals, the United
States Supreme Court decided United States v. Kwai Fun Wong, 135 S.Ct. 1625 (2015), which
held that the FTCA’s statute of limitations is not jurisdictional and as a result, the statute of
limitations may be equitably tolled in appropriate circumstances. On May 4, 2015, the Tenth
Circuit issued its mandate remanding the case to this court for further proceedings in light of the
U.S. v. Wong decision.
I.

Undisputed Facts1
Plaintiffs are residents of Clovis, New Mexico, and are suing the Air Force for damage to

their home and property which occurred as a result of a range fire that started on the Melrose
Bombing Range in New Mexico in November 2005. The range fire spread over 26,000 acres of
land including Plaintiffs’ property. Plaintiffs allege that Defendant failed to exercise reasonable
care in the practice bombings on the range and failed to warn Plaintiffs of the possibility and
dangers associated with the fire.
Between December 1, 2005 and July 18, 2006, the Air Force, pursuant to 10 U.S.C.
§2736 of the Military Claims Act (“MCA”) and Plaintiffs’ request, made four separate advance
payments of anticipated claims to Plaintiffs, L.A. Davis (“Mr. Davis”) and Sarah Davis, totaling
$54,715.03 and three separate advance payments of anticipated claims to D & D Equipment

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References to supporting exhibits will be excluded, since they are included in the parties’ briefs.

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totaling $29,550.00.2 On each occasion, Plaintiffs signed an Advance Payment Agreement that
obligated them to refund the amounts advanced if the Air Force was unable to settle their claims.
On November 30, 2007, the last day of the two-year statute of limitations under the FTCA for
filing an administrative claim, Plaintiffs L.A. Davis and Sarah Davis filed a claim for
$927,834.83 and Plaintiff D & D Equipment (Mr. Davis’ business) filed a claim for $437,880.00.
The Air Force ultimately determined that Plaintiffs’ damages were less than what they
were demanding and offered to settle the claims for the amounts that had been advanced to
Plaintiffs. Plaintiffs rejected this settlement offer and continued to maintain their damages were
higher than the amounts already paid. Because the Air Force was of the opinion that Plaintiffs
failed to substantiate their claimed damages despite its requests that they do so, the Air Force
denied each claim by certified letter dated January 23, 2013. The letters stated that the claims
were denied under both the MCA and the FTCA, advised Plaintiffs they had six months to file
suit under the FTCA, and pursuant to Air Force instructions implementing the MCA, advised
Plaintiffs they could submit a request for reconsideration within 60 days. Plaintiffs submitted
requests for reconsideration, but the Air Force determined that the claims for additional damages
were still not sufficiently proven and maintained the advance payments covered all damages.
Plaintiffs refused to accept this amount. Consequently the Air Force denied each claim by letters
dated March 13, 2013. Each letter was sent by certified mail with return receipts requested. Each
letter contained the following language at the conclusion:
This is the final denial of your claim under the Military Claims Act. As such, it
satisfies the exhaustion of administrative remedies prerequisite to filing a civil
lawsuit under the Federal Tort Claims Act (FTCA), Title 28, United States Code,
Sections 1346(b) and 2671-2680. If you are dissatisfied with this decision, you

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Section 2733 of the MCA is an ex gratia statute that permits the payment of claims for damages caused by
uniquely military activities not involving combat, such as aerial bombardment training, without a showing of
negligence.

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may file suit in an appropriate United States District Court not later than six
months after the date of the mailing of this letter.
Exs. J & K (emphasis added). The certified mail receipts show Plaintiffs received the letters on
March 22, 2013. Plaintiffs filed their Complaint for Damages on October 9, 2013.
II.

Legal Standard
Summary judgment is appropriate “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). A fact is material if it could have an effect on the outcome of the suit. Smothers v. Solvay
Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014). A dispute over a material fact is genuine if the
evidence presented could allow a rational jury to find in favor of the nonmoving party. EEOC v.
Horizon/CMS Heathcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). A court is to view the
facts in the light most favorable to the non-moving party and draw all reasonable inferences in
favor of that party. Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007). A court cannot
weigh the evidence and determine the truth of the matter, but instead determines whether there is
a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243 (1986).
DISCUSSION
Many of the facts presented in the parties’ briefs are irrelevant to the sole question in this
motion which is whether Plaintiffs timely filed their lawsuit. The Court may therefore ignore
any factual disputes asserted by Plaintiffs which are related to the substantive issues. For
example, Plaintiffs dispute whether their damages were either less than the amounts claimed or
less than the advance payments, but this dispute goes to the merits of their claims. Plaintiff do
not, however, dispute that in the certified letters sent to them by the Air Force on March 13,
2013, the Air Force denied their administrative appeal for their personal and business property
loss claims and also specifically informed them that they had six (6) months to file a lawsuit
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under the FTCA. They also do not dispute that they filed their lawsuit on October 9, 2013 or that
it was filed outside of the six-month limitations period. The sole dispute here is whether this
lawsuit is untimely based on equitable principles.
I.

Impact of U.S. v. Wong
The United States can be sued only to the extent that it has waived its immunity.” United

States v. Orleans, 425 U.S. 807, 814 (1976). The FTCA waives sovereign immunity and allows
private parties to sue the United States government under defined conditions. See United States
v. Kubrick, 444 U.S. 111, 117–18 (1979). Section 2401 of the FTCA creates two jurisdictional
hurdles: (1) that the complaint be brought to the agency’s attention within two years of accrual;
and 2) that the lawsuit be filed within six months of the agency’s final decision.

Indus.

Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 967 (10th Cir. 1994) (“A tort
claim against the United States is barred unless it is presented to the proper agency within two
years of its accrual and suit is commenced within six months of notice of the claim's denial by
the agency.”); 28 U.S.C. §2401(b).
The issue in U.S. v. Wong was whether the time to file in federal court after
administrative exhaustion is jurisdictional, not whether administrative exhaustion itself is
jurisdictional. See Cummings v. United States, 651 Fed.Appx. 822, 827 (10th Cir. 2016). There
is no dispute that Plaintiffs timely exhausted the administrative process, and so the holding in
U.S. v. Wong is relevant in this case. While Plaintiffs are correct that U.S. v. Wong permits
untimely filing, they must still meet equitable tolling requirements which have always been
available to plaintiffs in appropriate circumstances. In Wong, the Supreme Court recognized that
the limitations language was similar to other non-jurisdictional statutes, and that FTCA’s “core

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language” that a tort claim “shall be forever barred” addresses a claim’s timeliness, but has no
jurisdictional significance:
It does not define a federal court's jurisdiction over tort claims generally, address
its authority to hear untimely suits, or in any way cabin its usual equitable powers.
Section 2401(b), in short, “reads like an ordinary, run-of-the-mill statute of
limitations,” spelling out a litigant's filing obligations without restricting a court's
authority.
U.S. v. Wong, 135 S.Ct. at1633. In other words, despite the emphatic tone of “forever barred,”
§2401(b) “reads like an ordinary, run-of-the-mill statute of limitations,” spelling out a litigant's
filing obligations without restricting a court’s authority. Id. (citation omitted). The Supreme
Court found nothing in the statutory context or legislative history of the provision indicating that
§2401(b) was anything “other than a standard time bar” found in many statutes:
As this Court has repeatedly stated, nothing about § 2401(b)'s core language is
special; “shall be forever barred” is an ordinary (albeit old-fashioned) way of
setting a deadline, which does not preclude tolling when circumstances warrant.
U.S. v. Wong, 135 S.Ct. at 1638 (U.S.) (citing Irwin v. Department of Veterans Affairs,
498 U.S. 89 (1990)). Therefore, the impact of U.S. v. Wong does not change the legal
landscape, but clarifies that the purpose of §2401(b) is to set out a filing deadline that has
no effect on whether district courts have the authority to hear untimely suits. In Benally
v, United States, 2015 WL 10987109 (D.N.M.), United States District Judge Martha
Vazquez summed up the consequences of U.S. v. Wong succinctly:
Nothing in [the Wong decision], however, represents a significant departure from
prior Supreme Court precedent. To the contrary, the Court in Wong explained that
in Irwin v. Dept. of Veterans Affairs, it had already held that the “rebuttable
presumption of equitable tolling should also apply to suits brought against the
United States under a statute waiving sovereign immunity.” In this way, Wong is
merely the logical application of Irwin to the time bar included in the FTCA.
Benally v. United States, 2015 WL 10987109, *3.
II.

Equitable Tolling

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Generally, a litigant seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstances stood in his way. Barnes v. U.S., 776 F.3d 1134 (10th Cir. 2015).
Plaintiffs assert their lawsuit was timely under the law of equitable tolling. They make
two arguments: first, that they were “confused” regarding the filing deadline by a telephone call
they had with Katherine Malowney, the Air Force attorney who was assigned to their claims; and
second, that they were “lulled” into inaction by the Air Force.
A.

Diligence in Pursing Claims

Plaintiffs rely on deposition evidence to support their argument that their lawsuit was
timely filed. They claim that on or about March 1, 2013, they sent a package to the Air Force
containing:
all prior correspondence, responses and documents again attempting to provide all
the documents they were able to obtain. Then on March 13, 2103 the defendant
sent a letter to Plaintiffs again advising of a second final denial. Because the
March 1, 2013 and March 13, 2013 letters appeared to have crossed in the mail,
Plaintiffs assumed negotiations were still in play.
Doc. 55 at 3-4. Plaintiffs further claim that they told the Air Force that they were confused
regarding the deadline by the telephone call with Ms. Malowney in March of 2013 in which the
“booklet” they had sent to her was discussed. Id. at 4, Pltffs’ Add’l Fact 19.
According to Plaintiffs, they called Ms. Malowney after March 13, 2013 (which is the
date of the letter sent by Defendant advising Plaintiffs of a second final denial), and that she had
informed them that their “packet” was being reviewed. Ex. 5 at109:2-15. Plaintiffs contend that
based on these purported representations, they believed they would be afforded an additional 30day period to file. They also claim that the documents which they sent on March 1, 2013 in
response to the January 2013 denial letters “crossed in the mail” with the March 13, 2013 second

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final denial letters sent by Defendant, and that this led them to assume that the Air Force was still
reviewing their claims, even after receiving the final set of denial letters on March 22, 2013.
There are two problems with the evidence presented by Plaintiffs. First, the Court agrees
with Defendant that the deposition testimony regarding statements made by Ms. Malowney does
not fall into admissible evidence because it was not actually perceived or observed by the
witness—in this case, either Plaintiff. See Lancaster v. Indep.Sch.Distr. No. 5 et al., 149 F.3d
1228, 1236 (10th Cir 1998) (Rule 56 precludes the use of inadmissible hearsay testimony in
depositions submitted in opposition to, summary judgment). Also, Plaintiffs claim that they
obtained assurance from Ms. Malowney that their claims were pending in March 2013, but there
is no actual proof of those conversations with either phone or other business records. Second,
even if the Court were to consider this evidence, it is not sufficient to rebut the evidence
presented by Defendant on the key material facts: both sets of Defendant’s denial letters were
received by Plaintiff, and both contained identical and clear language informing Plaintiffs of the
six-month filing deadline.
Plaintiffs cannot meet the first factor for equitable tolling requiring a showing that they
were diligent in filing their lawsuit. Undoubtedly, they worked hard to document their claims for
their personal property and business property losses. However, once they were told they needed
to file suit in federal court if they were not satisfied, Plaintiffs did not pursue their rights with
any urgency, but instead made unfounded “assumptions” about the time that was available to
them. Even taking Plaintiffs’ contentions at face value, their “confusion” is unfounded because it
means that Plaintiffs ignored the information in the certified letters they received on March 22,
2013 informing them of the denial of their claims and the six-month filing deadline. According
to Mr. Davis’ deposition testimony, Plaintiffs made a phone call to Ms. Malowney after March

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13, 2013. Ex. 5 at 110-25-111:1. It is unknown, however, whether the call was made before or
after March 22, 2013, when Plaintiffs received the March 13, 2013 letters from Defendant. Mr.
Davis stated that he did not speak with Ms. Malowney about the March 13, 2013 letter “because
I was just mainly trying to find out if she had got my package.” Ex. 5 at 110:14-17. If Plaintiffs
spoke with Ms. Malowney after receiving the March 13, 2013 letters, then one may reasonably
wonder why Plaintiffs did not mention those letters. Reasonable diligence should have motivated
Plaintiffs to inquire about the March 13, 2013 letters in their conversation with Ms. Malowney,
especially if they were purportedly told that their packet was still being reviewed. If Plaintiffs
spoke with Ms. Malowney before receiving the second set of denial letters on March 22, 2013,
then it would make no sense for Plaintiffs to assume that their packet was still under review,
since those letters would have made it clear that their claims had not been resolved in their favor.
Moreover, if Plaintiffs were indeed “confused” about their legal rights, there is no evidence that
they expressed this to either Ms. Malowney or any other Air Force representative.
Under either scenario, there is no plausible explanation for why Plaintiffs would assume
they were being afforded an additional thirty days to file and there is no basis for any
“confusion” under the undisputed facts. The evidence presented by Plaintiffs, even if it is
considered to be admissible, does not support Plaintiffs’ statement that they somehow assumed
that settlement negotiations were still on-going. The notice they received from the Air Force was
specific, final, unequivocal and easily understood by someone who is not an attorney. Plaintiffs
do not dispute receiving the final denial letters in March 2013. They do not dispute that the
letters contained specific language communicating that these were final denials and that they had
to file suit in U.S. District Court no later than six months from the date of the letters. In his
deposition, Mr. Davis acknowledged receiving the letters and that he understood the respective

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paragraphs in each letter that stated the filing deadlines. Ex. A (Davis Depo.) at 89:19-25. He
testified similarly about the denial letter for their business property loss, and understood that they
had to file in district court within six months of the letter. Ex. 5 at 93:12-17; Ex. A at 90:13-14
(acknowledging that the letters “said I had to file in court if I was going to do anything further”).
B.

Extraordinary Circumstances

Plaintiffs second point—that they were “lulled into inaction” by the Air Force—is not
supported by the record. Plaintiffs contend that their final appeal sent to the Air Force on March
1 coupled with a purported phone call to Air Force representative Kathy Malowney which was
made some time later, led them to believe that they had additional time to negotiate or that they
would receive additional written communications from her. Ex. 5 (Davis Depo.) at 109:23-25;
110:1-8; 111:6-9 (“I figured I’m in there for another 30 days, minimum”). However, even if the
Court accepts Plaintiffs’ testimony regarding this call as admissible, this evidence does not show
anything extraordinary going on here. Plaintiffs simply chose to assume what they wanted to
assume.

Mr. Davis believed he had an additional 30 days for filing, but admitted in his

deposition that he never asked Ms. Malowney about the March 13, 2013 letter, and there is no
evidence that he expressed any “confusion” about the deadlines or the process to any Air Force
representative. None of this evidence suggests that Defendant deceived Plaintiffs or caused them
to delay a timely filing of this lawsuit.
Plaintiffs cite to a case which is actually a good example of a situation where a federal
agency’s actions caused a delay in a plaintiff’s filing of a federal lawsuit. In Glarner v. U.S.
Dept. of Veterans Admin., the Sixth Circuit found that the statute of limitations in a veteran’s
claim against the Veteran’s Administration for medical malpractice was equitably tolled, based
on the agency’s conduct. 30 F.3d 697 (6th Cir. 1994). In that case, the Veteran’s Administration

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had failed to furnish the veteran with a form for filing of FTCA claim and failed to inform him of
his need to file one. No similar conduct has occurred here. In this case, the Air Force did not
fail in any legal duty, or take any action which would cause Plaintiffs either to misunderstand
their legal rights or to delay a timely filing of this lawsuit. Defendant informed Plaintiffs of their
legal rights at each step taken and did so in very clear and comprehensible language.
The Government has met its burden of showing that Plaintiffs’ lawsuit is untimely and
that equitable tolling is not appropriate, and Plaintiffs have not offered any evidence to create a
material issue of fact. Defendant is therefore entitled to summary judgment on Plaintiffs’ claims.
THEREFORE,
IT IS ORDERED that Defendant’s Motion for Summary Judgment (Doc. 54) is hereby
GRANTED for reasons described in this Memorandum Opinion and Order. Because this lawsuit
is based exclusively on the FTCA, Defendant is entitled to summary judgment on all of
Plaintiffs’ claims. A separate Judgment consistent with this decision shall issue.

________________________________
UNITED STATES DISTRICT JUDGE

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