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Davis v. United States Department of Air Force

United States District Court, D. New Mexico

February 23, 2017

L.A. DAVIS, and SARAH DAVIS, husband and wife doing business as D & D Equipment, Plaintiffs,


         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.


         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 Facts[1]

         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 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 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).


         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 under the FTCA. They also do not ...

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