Laguer v. United States of America et al
Filing
11
OPINION AND ORDER re 7 Motion to Dismiss. The Court lacks subject matter jurisdiction to adjudicate this case. Laguer cannot cure his complaint through amendment. Accordingly, the Government's motion to dismiss is GRANTED and Laguer's complaint is DISMISSED WITH PREJUDICE. Judgment shall be entered accordingly. Signed by Judge Francisco A. Besosa on 06/22/2017. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
HECTOR LAGUER,
Plaintiff,
v.
Civil No. 16-2852 (FAB)
UNITED STATES OF AMERICA,
Defendant.
OPINION AND ORDER 1
BESOSA, District Judge.
Before the Court is defendant United States of America’s
motion to dismiss the complaint pursuant to 28 U.S.C. § 2672
(“section 2672”).
(Docket No. 7 at p. 4.)
(“Laguer”) filed an opposition.
Plaintiff Hector Laguer
(Docket No. 10.)
For the reasons
set forth below, the motion to dismiss is GRANTED. (Docket No. 7.)
Accordingly, the complaint is DISMISSED WITH PREJUDICE.
I.
BACKGROUND
On December 9, 2014, Hector Laguer was driving his car in
Aguadilla, Puerto Rico. 2
by
James
Robin
Accident”).
Id.
(Docket No. 1 at p. 3.)
(“Robin”)
collided
with
A vehicle driven
Laguer’s
car
(“2014
At the time of the collision, Robin was acting
1
Ian Joyce, a second-year student at Vanderbilt University Law School, assisted
in the preparation of this Opinion and Order.
2 In Laguer’s response to the dismissal motion, he claims the accident occurred
on December 12, not December 9 as alleged in the complaint. (Docket No. 10 at
p. 1.) The date of the accident, however, is inconsequential to the Court’s
holding today.
Civil No. 16-2852 (FAB)
2
in his official capacity as a member of the United States Customs
and Border Patrol (“CBP”).
Id.
Six weeks after the accident, Laguer submitted a “Standard
Form – 95 Claim for Damage, Injury or Death” (“SF-95”) to the CBP
office in Indianapolis, Indiana (“Form A”). 3
(Docket No. 7-1.)
In Form A Laguer detailed $5,2980.04 in property damage to his
vehicle as a result of the accident.
Id.
Form A includes a
question instructing claimants to list personal injuries.
Id.
Laguer responded to the personal injury question by answering
“N/A.”
Id.
He signed Form A on January 23, 2015. 4
Pursuant to the Federal Torts Claim Act (“FTCA”)’s settlement
procedure, 28 U.S.C. § 2672 (“Section 2672”), the Indianapolis CBP
offered Laguer a settlement of $1,696.00 for the value of Laguer’s
vehicle before the accident.
p. 2.)
(Docket Nos. 7-1, 7-2, 7-3 and 10 at
In the settlement offer the CBP stipulated that “under the
FTCA, acceptance of this settlement shall be final and conclusive
and shall constitute a complete release of any claim against the
United States and against any employee of the government whose act
gave rise to the claim.”
Id.
Laguer accepted the settlement on
3 Neither party specifies why Laguer submitted the SF-95 form to the CBP office
in Indianapolis as opposed to the CBP office in Puerto Rico, the location of
the accident.
4 Above Laguer’s signature the SF-95 form sets forth the following language: I
certify that the amount of claim covers only damages and injuries caused by the
incident above and agree to accept said amount in full satisfaction and final
settlement of this claim. (Docket No. 7-1.)
Civil No. 16-2852 (FAB)
3
April 2, 2015 by submitting a signed voucher (“the settlement”).
Id.
Like the initial settlement offer, the voucher provides that
this settlement is a:
full settlement and satisfaction and release of any and
all claims, demands, rights, and causes of action of any
kind, whether known or unknown, including without
limitation any claims for fees, costs, expenses,
survival, or wrongful death, arising from any and all
known and unknown foreseen or unforeseen bodily
injuries, personal injuries, death, or damage to
property, which they may have or hereafter acquire
against the United States of America… on account of the
subject matter of the administrative claim or suit, or
that relate or pertain to or arise from, directly or
indirectly, the subject matter of the administrative
claim or suit.
(Docket No. 7-3 at p. 2.)
Within a month of the settlement,
however, Laguer submitted a second SF-95, this time to the CBP in
Puerto Rico, alleging severe bodily injury resulting from the same
2014 accident (“Form B”). 5
7-4.)
(Docket Nos. 1 at p. 2, 7 at p. 2 and
The CBP in Puerto Rico sent a letter to Laguer’s attorney
requesting medical documentation.
at p. 3.)
(Docket Nos. 7 at p. 3 and 10
Laguer did not provide the CBP with the requested
medical records.
(Docket Nos. 7 at p. 3 and 10 at p. 3.)
Without
these records, the CBP could not render a decision regarding a
settlement.
(Docket Nos. 7 at p. 3 and 10 at p. 3.)
passed without administrative action by the CBP.
5
Six months
(Docket Nos. 1
The United States alleges that the CBP in Puerto Rico had no knowledge of the
previous settlement involving the CBP in Indianapolis at the time Laguer
submitted Form B. (Docket Nos. 7 at p.2 and 10 at p. 3.)
Civil No. 16-2852 (FAB)
4
at p. 2, 7 at p. 5 and 10 at p. 3.)
Consequently, Laguer deemed
that the CBP denied his claim pursuant to 28 U.S.C. §2401(b) and
commenced this action.
(Docket No. 1 at p. 1.)
Defendant filed
a motion to dismiss, Docket No. 7, and plaintiff opposed, Docket
No. 10.
II.
DISCUSSION
The United States moved to dismiss the complaint because the
“allegations in this case are the object of final and conclusive
settlement among the parties.”
States,
nonetheless,
Procedure.
failed
(Docket No. 7 at p. 1.)
to
cite
to
the
The United
Rules
of
Civil
The Court will construe the government’s motion as a
challenge to subject matter jurisdiction pursuant to Federal Rule
of Civil Procedure 12(b)(1).
See Horen v. Bd. of Educ., 568
F.Supp. 2d 850, 853 (N.D.Ohio 2008) (“Though neither defendant
specifies
the
statutory
basis
for
its
motion
to
dismiss,
I
interpret both motions as requests for dismissal under Federal
Rule of Civil Procedure 12(b)(1)”); Earl v. Norfolk State Univ.,
Civil No. 13-148, 2014 U.S. Dist. LEXIS 88652 at * 65 (E.D.Va.
2014) (“Because Defendants do not contend that Plaintiff’s ADEA
claims fail to allege facts ‘upon which relief can be granted,’
Fed. R. Civ. P. 12(b)(6), and because the result would be the same
under either Rule 12(b)(1) or 12(b)(6), the Court proceeds under
Civil No. 16-2852 (FAB)
5
Rule 12(b)(1) to ‘determine whether the Complaint fails to allege
facts upon which subject matter jurisdiction can be based.’”).
A.
Motion to Dismiss Standard under Rule 12(b)(1)
Because
“[f]ederal
courts
are
courts
of
limited
jurisdiction,” the Court must “begin by ensuring that [it has]
jurisdiction to reach the questions presented.”
Hochendoner v.
Genzyme Corp., 823 F.3d 724, 730 (1st Cir. 2016).
This Court must
construe federal jurisdiction narrowly.
Fina Air Inc. v. United
States, 555 F.Supp.2d 321, 323 (D.P.R. 2008) (Besosa, J.).
a
party
challenges
subject
matter
jurisdiction
When
through
presentation of evidence outside the initial pleadings — a “factual
attack” — the court’s analysis of jurisdiction is not limited to
the allegations in the complaint and it may look beyond the
pleadings.
Id. at 324.
When faced with a “factual attack” a court must first
determine if the relevant jurisdictional facts are intertwined
with the merits of the case.
Torres-Negron v. J & N Records, LLC,
504 F.3d 151, 162-63 (1st Cir. 2007).
If the court determines
that the facts are intertwined, it should employ the standard
applicable to a motion for summary judgment and only grant the
motion to dismiss if the material facts are not in dispute and the
moving party is entitled to prevail as a matter of law.
Id.
If
the facts are not intertwined, however, the court is “free to weigh
Civil No. 16-2852 (FAB)
6
the evidence and satisfy itself as to the existence of its power
to hear the case.”
The
Id. at 163 (citations omitted).
facts
relating
to
claim
preclusion
pursuant
section 2672 are independent of the merits of this case.
to
Here,
the United States wages a factual attack to challenge the Court’s
jurisdiction by introducing evidence of Laguer’s settlement with
the CBP in Indianapolis.
(Docket Nos. 7 at p. 2, 7-1 to 7-4); see
Velez v. Servidores Publicos Unidos de Puerto Rico, Civil No. 091970, 2011 WL 4371792, at *1 (D.P.R. Sept. 19, 2011) (McGiverin,
J.)
(evaluating
a
jurisdictional
attack
based
on
parallel
litigation in Puerto Rico court under the factual attack standard).
The question of whether Laguer previously accepted a settlement
pursuant to the FTCA is not intertwined with the merits of Laguer’s
negligence action against the CBP, which hinges on duty, breach,
injury and causation. 6
See Stevens v. U.S., No. 11-1207, 2012 WL
1314187, at *2 (D.Or. Apr. 17, 2012) (evaluating a claim that an
FTCA
6
plaintiff
had
already
accepted
a
settlement
under
the
A claim brought against the United States pursuant to the FTCA is evaluated
under the law of the location in which the tortious conduct occurred.
See
F.D.I.C. v. Meyer, 510 U.S. 471, 478, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994);
Fina Air, 555 F.Supp.2d at 324.
In this case the relevant statute is
article 1802 of the Puerto Rico Civil Code, which provides “[A] person who by
an act or omission causes damage to another through fault or negligence shall
be obliged to repair the damage so done [. . .]” Laws of P.R. Ann. tit. 31
§5141. To establish liability pursuant to article 1802, “the plaintiff must
show that the defendant owed a duty to the plaintiff, that the duty was breached,
that damages resulted, and that those damages were caused by the breach of
duty.” Calderon-Ortega v. United States, 753 F.3d 250, 252 (1st Cir. 2014).
Civil No. 16-2852 (FAB)
7
“separable” factual attack standard).
Accordingly, the Court is
free to weigh the evidence submitted. 7
B.
Sovereign Immunity, FTCA, and Section 2672
The United States may not be sued without its consent.
United States v. Mitchell, 463 U.S. 206, 212 (1983); Dynamic Image
Techs., Inc. v. United States, 221 F.3d 34, 39 (1st Cir. 2000).
The FTCA waives this immunity with respect to tort liability.
Dynamic Image, 221 F.3d at 39.
The FTCA, however, must be strictly
construed and contains a myriad of exceptions and limitations which
strip the court of subject matter jurisdiction.
Id.; Figueroa v.
United States, Civil No. 94-2761 (DRD); 1997 WL 117750, at * 2
(D.P.R. Feb. 25, 1997) (Dominguez, J.) (determining the court
lacked subject matter jurisdiction when the plaintiff’s claim fell
within the “discretionary function exception” of the FTCA).
A federal agency may settle a claim brought against it
pursuant to the FTCA through section 2672.
Importantly, section 2672 provides that:
28 U.S.C. § 2672.
“The acceptance by the
claimant of any such award, compromise, or settlement shall be
7
No party disputes that Laguer settled his claim pursuant to the information
provided in Form A.
The parties only argument revolves around the
interpretation and application of section 2672, specifically: “The acceptance
by the claimant of any such award, compromise, or settlement shall be final and
conclusive on the claimant, and shall constitute a complete release of any claim
against the United States and against the employee of the government whose act
or omission gave rise to the claim, by reason of the same subject matter”. At
bottom, the standard regarding factual determinations has little impact on the
outcome of the case because the complaint fails pursuant to either analysis for
lack of subject matter jurisdiction.
Civil No. 16-2852 (FAB)
8
final and conclusive on the claimant, and shall constitute a
complete release of any claim against the United States and against
the employee of the government whose act or omission gave rise to
the claim, by reason of the same subject matter.”
Id.
(emphasis
added).
C.
Section 2672 Interpretation
The United States argues pursuant to section 2672 that
by accepting the settlement Laguer is barred from bringing any
future claim related to the 2014 accident. 8
p. 4.)
(Docket No. 7 at
Laguer contends that the language in section 2672 only
precludes future claims of the same type — i.e. the settlement
bars Laguer from suing for property damage in district court, but
leaves him free to pursue additional claims for personal injury. 9
The Court rejects this proposition.
Neither the United States nor Laguer cite to controlling
authority in support of their arguments.
The First Circuit Court
8
Because the Court dismisses the case pursuant to section 2672, the Court need
not address the government’s second argument regarding plaintiff’s failure to
exhaust administrative remedies.
9
Laguer’s contention that the Puerto Rico CBP letter requesting medical
information “can be interpreted as a will of the agency to process plaintiff’s
claim” has no merit. Only Congress can waive the Federal Government’s sovereign
immunity, and the waiver must be “unequivocally expressed.”
U.S. v. Nordic
Village Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 1811 (1992); United
States v. Testan, 424 U.S. 392, 399; 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). The
Court cannot find that the federal government has waived its sovereign immunity
through “interpretation” of an administrative letter sent by the Puerto Rico
branch of the Customs and Border Patrol. See Stevens v. U.S., No. 11-1207,
2012 WL 1314187, at *2 n. 3, (D. Or. 2012).
Civil No. 16-2852 (FAB)
9
of Appeals, however, examined section 2672, then known as section
403(a), in United States v. Wade. 10
See United States v. Wade,
170 F.2d 298, 301 (1st Cir. 1948).
The plaintiffs in Wade were
injured in 1945, one year before the FTCA’s passage, and could
only recover partial damages pursuant to the Military Claims Act. 11
Id. at 299. When the plaintiffs retroactively brought a claim for
full damages against the Army pursuant to the FTCA, the First
Circuit Court of Appeals examined section 2672, determining that
had the plaintiffs originally presented their claim pursuant to
the FTCA, “it is logical that a settlement and payment of [a claim
for damages] by the Federal agency concerned, under the authority
of Section 403(a), should be a complete bar to an action for
damages under the Federal Tort Claims Act.”
added) (nevertheless
claims
to
go
allowing
forward
because
the
the
Id. at 301 (emphasis
plaintiff’s
FTCA’s
personal
injury
retroactive
clause
suggested that Congress viewed the Military Claims Act as an
inefficient remedy).
Modern authority from sister circuits also
10
The pertinent language the First Circuit Court of Appeals examined in 1948
is identical to the language that is in the FTCA today.
11
Plaintiffs were injured by a car driven by the Army on February 22, 1945.
U.S. v. Wade, 170 F.2d 298, 301 (1st Cir. 1948). When the FTCA became law in
1946 it allowed for plaintiffs to bring claims “accruing on and after January 1,
1945.” Id. at 300.
Civil No. 16-2852 (FAB)
interpret section 2672 as a complete bar to future claims. 12
10
See
e.g., Schwarder v. United States, 974 F.2d 1118, 1124 (9th Cir.
1992) (interpreting section 2672 as barring any post-settlement
claims made by the settling claimant). Indeed, other jurisdictions
examining the factual scenario presented in this case — a single
claimant accepting a settlement for property damage and then later
filing a claim for personal injury — have found the second claim
barred by section 2672. 13 See Domingo v. Allen, 28 F.3d 105 (Table)
(9th Cir. 1994) (claimant accepted payment for property damage
from Postal Service after a car accident then later attempted to
bring personal injury claims against the same agency); Murphree v.
United States; No. 10-4122-WEB, 2011 WL 1980371, at *1, 7 (D. Kan.
12
See Schwarder v. United States, 974 F.2d 1118, 1124 (9th Cir. 1992) (“We
conclude, as a matter of federal law, that an administrative settlement reached
pursuant to section 2672 bars further claims by the settling party…”); Serra v.
Pichardo, 786 F.2d 237, 240 (6th Cir. 1986) (“[I]t is clear that the words ‘by
reason of the same subject matter’ were not intended to limit the scope of the
release to the very claim that was settled.”); Jama v. U.S.I.N.S., 343 F.Supp.2d
338, 354 (D.N.J. 2004) (“Once §2672 has been implicated it applies to all claims
that have arisen out of the “same subject matter.” All claims are now barred
as against the INS . . . because they each arose out of the same conduct . . .”).
13
Although Laguer cites no cases supporting his position, there are cases in
which a single claimant has been able to recover a settlement, and then later
file a second claim based on the same accident. These cases are distinguishable
and either involved legal factors not present in this case, or were decided
pursuant to the relevant state contract law (or both) and as such are not
authoritative. See Reo v. U.S Postal Service, 98 F.3d 73, 75 (3rd Cir. 1996)
(claimant’s parent’s filed first action when she was a minor and the controlling
question was if their acceptance of the earlier settlement was valid pursuant
to state law); Macy v. United States, 557 F.2d 391, 392-93 (3rd Cir. 1977)
(because claimant had crossed out language in the first settlement, the court
evaluated the settlement pursuant to state contract law); Bunker v. United
States, No. 1:12–cv-1742-CL, 2013 WL 5524688 at *3 (D.Or. 2013) (examining the
scope of the releases found in the settlement under Oregon contract law).
Civil No. 16-2852 (FAB)
11
2011) (claimant filed a SF-95 Form detailing damage to her car and
indicated a “neck, back and head injury”, accepted a settlement
for the value of her car, and later attempted to bring claim for
personal injury); Wright v. United States, 427 F.Supp. 726, 729
(D. Del. 1977) (claimant accepted a settlement for property damage
and physical injury then brought suit for pain and suffering);
Wexler v. Newman, 311 F.Supp. 906, 907 (E.D.Pa. 1970) (claimant
accepted payment for car damage and then later brought suit for
personal injury).
Furthermore, the claim preclusion set forth in
section 2672 is dispositive even when the claimant indicates the
existence of a personal injury on the first SF-95 Form and later
settles only for property damage.
See Murphree, 2011 WL 1980371,
at *1.
The Court finds the language in Wade and the more modern
authorities cited above to be consistent with the plain language
of section 2672.
Accordingly, the Court interprets section 2672
as barring a claimant who previously settled with a federal agency
pursuant
to
the
FTCA
from
bringing
any
subsequent
claims,
regardless of type, that arise out of the same underlying factual
scenario.
Civil No. 16-2852 (FAB)
12
The settlement by the CBP in Indianapolis was made
explicitly pursuant to section 2672. 14
(Docket No. 7-3.)
Even if,
as Laguer argues, he settled the first property damage claim with
the intention to file a subsequent personal injury claim, and
indicated that intention by writing “no injury:
“N/A,”
his
settlement. 15
claim
remains
barred
by
his
reported” and
acceptance
of
the
Indeed, Laguer’s second claim would be barred even
if he had expressly requested personal injury damages in Form A.
See Murphree 2011 WL 1980371 at *7. Laguer’s subjective intentions
regarding the settlement are irrelevant.
at 729.
See Wright, 427 F.Supp.
This is especially true here, given that every document
Laguer signed in order to settle the property claim expressed
clearly that by accepting the settlement he relinquished the right
to bring future claims. 16
Laguer’s complaint for personal injury
14
The settlement voucher that Laguer signed stated: “AGENCY APPROVING OFFICIAL:
This claim has been fully examined in accordance with Statutory Citation FTCA,
28 U.S.C. § 2672 and approved in the amount of $1696.” (Docket No. 7-3.)
15
Laguer vaguely states that the settlement voucher signed by Laguer and
provided to the Court in Docket No. 7-3 was “prepared and redacted by defendant
without intervention of the plaintiff.” (Docket No. 10.) The Court notes that
other than a missing social security number, the settlement voucher has no
redactions. (Docket No. 7-3.) The absence of the social security number has
no impact on the Court’s ruling.
16
Because Laguer’s claim is barred by the jurisdictional requirements of the
FTCA, the Court need not determine the validity of the releases located on the
settlement’s voucher form under Puerto Rico contract law. See Schwarder, 974
F.2d at 1124 (“[A]n administrative settlement reached pursuant to section 2672
bars further claims by the settling party, without regard to the effect it would
have as a matter of state law.”)
Civil No. 16-2852 (FAB)
13
pursuant to the FTCA is barred by section 2672.
Consequently, the
United States is immune from this action.
III. CONCLUSION
For the reasons set forth above, the Court lacks subject
matter jurisdiction to adjudicate this case.
his complaint through amendment.
Laguer cannot cure
Accordingly, the Government’s
motion to dismiss is GRANTED and Laguer’s complaint is DISMISSED
WITH PREJUDICE.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
San Juan, Puerto Rico, June 22, 2017.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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