United States District Court, D. New Mexico
L.A. DAVIS, and SARAH DAVIS, husband and wife doing business as D & D Equipment, Plaintiffs,
UNITED STATES DEPARTMENT OF AIR FORCE, Cannon Air Force Base, Defendant.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
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.
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.
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.
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.
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. 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,
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,
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
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 ...