United States District Court, D. New Mexico
E. Borg Barber & Borg, LLC Albuquerque, NM Attorneys for
D. Tierney Acting United States Attorney Roberto D. Ortega
Assistant United States Attorney United States Attorney's
Office Albuquerque, New Mexico Attorneys for the Defendant
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Defendant's
Motion to Dismiss for Lack of Subject Matter Jurisdiction,
filed May 3, 2017 (Doc. 8)(“MTD”). The primary
issue is whether the Federal Tort Claims Act, 28 U.S.C.
§§ 2671-2680 (“FTCA”), which waives
Plaintiff United States' sovereign immunity in
circumstances where a private person would be liable, means
that New Mexico Medical Malpractice Act's statute of
repose, N.M. Stat. Ann. § 41-5-13, applies to FTCA
claims. The Court concludes that New Mexico's statute of
repose does not apply to FTCA claims, because the FTCA's
sovereign immunity waiver looks to state law to determine
whether an event renders the United States liable and not to
determine whether a particular claim is timely filed.
Accordingly, the Court concludes that the FTCA waives the
United States' sovereign immunity in this case and denies
28, 2010, Romero, a member of the Laguna Tribe, see
Complaint Under the Federal Tort Claims Act for Damages
Caused by Negligence ¶ 16, at 3, filed January 27, 2017
(Doc. 1)(“Complaint”), checked into Acoma
Canoncito Laguna Hospital (“Laguna Hospital”)
complaining of abdominal pain, nausea, and vomiting,
see Complaint ¶ 18, at 3. Laguna Hospital gave
Romero pain medication and released him. See
Complaint ¶ 18, at 3. Romero returned to Laguna Hospital
two days later reporting identical symptoms. See
Complaint ¶ 19, at 3. This time, Laguna Hospital
diagnosed Romero with possible sepsis, and Romero was
airlifted to a “tertiary facility” in
Albuquerque, New Mexico. Complaint ¶ 19, at 3. The
tertiary facility diagnosed Romero with septic shock
“from an intra-abdominal catastrophe, ultimately due to
a perforated appendix with feculent peritonitis.”
Complaint ¶ 20, at 3. Over the next several weeks,
Romero was kept on full ventilator support, underwent
multiple surgeries, and “was left with an ileostomy
drainage bag.” Complaint ¶ 20, at 3-4.
was incarcerated “in late 2010, until 2012, and then he
was incarcerated again within a matter of about 4-5
months.” Response at 2. Romero filed a claim with the
Department of Health and Human Services (“HHS”)
on March 21, 2012. See Complaint ¶ 10, at 2.
HHS denied Romero's claim in writing on or about April
27, 2016. See Complaint ¶ 11, at 2. Romero
filed a request with HHS for reconsideration on June 29,
2016, see Complaint ¶ 13, at 3, while he was
incarcerated in Towaoc, Colorado, see Response at 2.
HHS denied the request in writing on July 27, 2016.
See Complaint ¶ 13, at 3. Romero was released
from jail on September 16, 2016. See Response at 2.
filed his Complaint pursuant to the FTCA on January 27, 2017,
alleging that Laguna Hospital staff members negligently
misdiagnosed his condition. See Complaint ¶ 27,
at 4-5. Romero seeks compensatory damages for Laguna
Hospital's employee's negligence. See
Complaint ¶¶ 1, 32, at 1, 6. Romero asserts that
the Court has federal-question jurisdiction, because he
brings claims under the FTCA. See Complaint ¶
2, at 1.
The Motion to Dismiss.
MTD, the United States asserts that Romero must file a notice
of claim within both the FTCA's statute of limitations
and within the New Mexico Medical Malpractice Act's
(“NMMMA”), N.M. Stat. Ann. §§ 41-5-1 to
-29 statute of repose. See MTD at 4. The United
States argues that the Court should dismiss the Complaint for
lack of subject-matter jurisdiction, because Romero did not
file his Complaint within the New Mexico statute of
repose's time limit. See MTD at 4-10. The United
States contends that the FTCA waives sovereign immunity only
under circumstances where state laws would hold a private
individual liable for comparable acts. See MTD at
6-7. According to the United States, a statute of repose
“creates a substantive right in those protected to be
free from liability after a legislatively-determined period
of time. It follows that a statute of repose, as substantive
state law that defines when a cause of action no longer
exists, is applicable in FTCA actions.” MTD at 6
(citing Alexander v. Beech Aircraft Corp., 952 F.3d
1215, 1223 (10th Cir. 1991)). Consequently, the United States
asserts, the Court lacks subject-matter jurisdiction on this
case unless Romero's claims satisfy the statute of
limitations and the statute of repose. See MTD at 7.
The United States then argues that Romero's claims do not
satisfy New Mexico's statute of repose. See MTD
filed a response on May 30, 2017. See Response to
Defendant's Motion to Dismiss (Doc. 8), filed May 30,
2017 (Doc. 12)(“Response”). First, Romero argues
that the statute of repose does not bar his FTCA claims,
because New Mexico's statute of repose applies only to
claims brought under the NMMMA, against “healthcare
providers who actively opt to buy into the act's funding
and other provisions.” Response at 1-2.
Romero argues that the FTCA implicitly preempts New
Mexico's statute of repose, because the statute of repose
“stands as a significant impediment to the federal
scheme.” Response at 6. For instance, Romero notes that
the FTCA provides that, if more than six months have passed
without an agency resolution, a claimant may take his or her
claim to federal court “at any time thereafter, ”
Response at 6 (quoting 28 U.S.C. § 2675); he adds that
New Mexico's three-year statute of repose
“significantly limit[s] this option, ” Response
at 6. Romero outlines some scenarios that underscore the
problems with applying New Mexico's statute of repose to
[U]nder the facts of this case, plaintiff could have filed
his Form 95 at any time up to the second anniversary of the
claimed harm. If he took the full amount of available time,
he could have presented his tort notice until June 28, 2012,
at which time the federal statute of limitations would bar
his claim. He could not have filed his lawsuit at any time
prior to six months after he submitted his Form 95, so if the
state statue is applied, he would have had only six months
within which to file a federal court lawsuit. The FTCA gives
him the option of continuing the administrative process and
not having to be rushed into litigation. In another example,
let's say plaintiff did not discover his injury and what
might have caused it for a few years, and thus filed his
lawsuit shortly after the third anniversary of the
negligence, even though he filed his administrative claim
before the repose period ended. His claim would be wiped out,
he would never have an opportunity to pursue his claim, and
the purpose of the FTCA defeated. He would have complied with
the FTCA, but due to no fault on his part his legal right
would be wiped out.
at 6-7. Romero states that the Tenth Circuit has not
considered whether the FTCA preempts state statutes of
repose, see Response at 5, but one United States
Circuit Courts of Appeal and federal district courts have
concluded that it does, see Response at 7-10 (citing
Kennedy v. United States, 526 F. App'x 450, 458
(6th Cir. 2013)(White, J., concurring); McKinley v.
United States, 2015 WL 5842626, at *13 (M.D. Ga. Oct. 5,
2015)(Lawson, J.); Cooper v. United States, 2013 WL
6845988 at *5 (E.D. Penn. Dec. 30, 2013)(Goldberg, J.);
Blau v. United States, 2013 WL 704762, at
*1 (M.D. Fla. Feb. 26, 2013)(Lazzara, J.); Abila v.
United States, 2012 WL 4711952 at *4 (D. Nev. Oct. 3,
2012)(Dawson, J.); Mamea v. United States,
2011 WL 4371712 at *10 (D. Haw. Sept. 16, 2011)(Kobayashi,
J.); Jones v. United States, 789 F.Supp.2d
883, 892 (M.D. Tenn. 2011)(Haynes, Jr., J.); Zander v.
United States, 786 F.Supp.2d 880, 885-86 (D. Md.
2011)(Williams, Jr., J.)). Romero contends that most cases
applying the statute of repose do not address FTCA
preemption. See Response at 10 n.3 (citing Smith
v. United States, 430 F. App'x. 246, 247 (5th Cir.
2011)(per curium); Stinnett v. United States, 891
F.Supp.2d 858, 867-68 (M.D. Tenn. 2012)(Trauger, J.));
Simkins v. United States, 2011 WL 9368972, at **2-3
(C.D. Cal. Feb. 17, 2011)(Wright, II, J.).
Romero contends that 28 U.S.C. § 2674 does not help the
United States in this case. See Response at 10.
Romero contends that although § 2674 limits liability
against the United States “in the same manner and to
the same extent as a private individual under like
circumstances, ” the United States is not in a
comparable position as an private individual defendant would
be. Response at 10 (quoting 28 U.S.C. § 2674). Romero
contends, for example, that a plaintiff proceeding under the
FTCA has “distinct obligations that a plaintiff in
state court does not have, ” like a requirement to
exhaust administrative remedies. Response at 10-11. Romero
also contends that applying a state's statute of repose
to an FTCA lawsuit would mean that an FTCA plaintiff would
have to file an administrative claim earlier than a plaintiff
suing an individual would have to file a complaint, which
means that “the circumstances are not alike.”
Response at 11.
Romero contends that the United States would not be
prejudiced if the Court does not apply the statute of repose,
because the United States received notice of his lawsuit
within two years of the alleged harm and possess relevant
documentary records pertaining to Romero's claim.
See Response at 11. Consequently, Romero concludes
that applying New Mexico's statute of repose
“serves no valid purpose.” Response at 11-12.
United States filed a reply on June 13, 2017. See
Reply to Plaintiff's Response to Motion to Dismiss, filed
June 13, 2017 (Doc. 13)(“Reply”). First, the
United States argues that the Tenth Circuit has determined
that NMMMA applies to the federal government. See
Reply at 2 (citing Haceesa v. United States, 309
F.3d 722, 728 (10th Cir. 2002)). Second, the United States
argues that the FTCA does not preempt New Mexico's
statute of repose impliedly or expressly, because nothing in
the FTCA overcomes the presumption that federal laws do not
supplant state laws. See Reply at 2-3. Third, the
United States contends there is no conflict between the
FTCA's statute of limitations and New Mexico's
statute of repose, because it is possible to satisfy both
provisions. See Reply at 3. Fourth, the United
States argues that the cases which Romero cites “appear
to ignore the explicit incorporation of state substantive law
into the FTCA and the fact that a plaintiff can, and must,
comply with both the FTCA statute of limitations under 28
U.S.C. § 2401 and the New Mexico statute of
repose.” Reply at 3-4. Moreover, the United States
asserts that the only United States Courts of Appeal to
consider the question concluded that the FTCA's statute
of limitations does not preempt state statutes of repose.
See Reply at 4 (citing Augutis v. United
States, 732 F.3d 749, 753-54; Huddleston v. United
States, 485 F. App'x 744, 745 (6th Cir.
2012)(unpublished); Anderson v. United States, 669
F.3d 161, 165 (4th Cir. 2011)). Fifth, the United States
contends that Romero's arguments are flawed, because he
conflates statutes of limitations with statutes of repose,
which are “plainly different legal principals.”
Reply at 4-5. Sixth, the United States argues that there is
no sound basis upon which the Court may apply equitable
tolling to Romero's claims, because statutes of repose
cannot be tolled. See Reply at 6-7. The United
States asserts that, even if the Court applies equitable
tolling, Romero has not presented an adequate basis for such
relief. See Reply at 7.
REGARDING RULE 12(b)(1)
courts are courts of limited jurisdiction; they are empowered
to hear only those cases authorized and defined in the
Constitution which have been entrusted to them under a
jurisdictional grant by Congress.” Henry v. Office
of Thrift Supervision, 43 F.3d 507, 511 (10th Cir.
1994)(citations omitted). A plaintiff generally bears the
burden of demonstrating the court's jurisdiction to hear
his or her claims. See Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 104 (1998)(“[T]he party
invoking federal jurisdiction bears the burden of
establishing its existence.”). Rule 12(b)(1) allows a
party to raise the defense of the court's “lack of
jurisdiction over the subject matter” by motion.
Fed.R.Civ.P. 12(b)(1). The Tenth Circuit has held that
motions to dismiss for lack of subject-matter jurisdiction
“generally take one of two forms: (1) a facial attack
on the sufficiency 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.
On a facial attack, a plaintiff is afforded safeguards
similar to those provided in opposing a rule 12(b)(6) motion:
the court must consider the complaint's allegations to be
true. See Ruiz v. McDonnell, 299 F.3d at 1180;
Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.
1981). But when the attack is aimed at the jurisdictional
facts themselves, a district court may not presume the
truthfulness of those allegations. A court has wide
discretion to allow affidavits, other documents, and a
limited evidentiary hearing to resolve disputed
jurisdictional facts under Rule 12(b)(1). In such instances,
a court's reference to evidence outside the pleadings
does not convert the motion to a Rule 56 motion.
Hill v. Vanderbilt Capital Advisors, LLC, No. CIV
10-0133, 2011 WL 6013025, at *8 (D.N.M. Sept. 30,
2011)(Browning, J.)(quoting Alto Eldorado Partners v.
City of Santa Fe, 2009 WL 1312856, at *8-9). The United
States Court of Appeals for the Fifth Circuit has stated:
[T]he trial court may proceed as it never could under
12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual
12(b)(1) motion is the trial court's jurisdiction --its
very power to hear the case -- there is substantial authority
that the trial court is free to weigh the evidence and
satisfy itself as to the existence of its power to hear the
case. In short, no presumptive truthfulness attaches to
plaintiff's allegations, and the existence of disputed
material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional claims.
Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.
1981)(quoting Mortensen v. First Fed. Sav. & Loan
Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).
making a rule 12(b)(1) motion, a party may go beyond the
allegations in the complaint to challenge the facts upon
which jurisdiction depends, and may do so by relying on
affidavits or other evidence properly before the court.
See New Mexicans for Bill Richardson v. Gonzales, 64
F.3d 1495, 1499 (10th Cir. 1995); Holt v. United
States, 46 F.3d 1000, 1003 (10th Cir. 1995). In those
instances, a court's reference to evidence outside the
pleadings does not necessarily convert the motion to a rule
56 motion for summary judgment. See Holt v. United
States, 46 F.3d at 1003 (citing Wheeler v.
Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987)). Where,
however, the court determines that jurisdictional issues
raised in a rule 12(b)(1) motion are intertwined with the
case's merits, the court should resolve the motion under
either rule 12(b)(6) of the Federal Rules of Civil Procedure
or rule 56 of the Federal Rules of Civil Procedure. See
Franklin Sav. Corp. v. United States, 180 F.3d 1124,
1129 (10th Cir. 1999); Tippett v. United States, 108
F.3d 1194, 1196 (10th Cir. 1997). “When deciding
whether jurisdiction is intertwined with the merits of a
particular dispute, ‘the underlying issue is whether
resolution of the jurisdictional question requires resolution
of an aspect of the substantive claim.'” Davis
ex rel. Davis v. United States, 343 F.3d 1282, 1296
(10th Cir. 2003)(quoting Sizova v. Nat'l Inst. of
Standards & Tech., 282 F.3d 1320, 1324 (10th Cir.
REGARDING THE FTCA
“axiomatic that the United States may not be sued
without its consent and that the existence of consent is a
prerequisite for jurisdiction.” United States v.
Mitchell, 463 U.S. 206, 212 (1983)(citations omitted).
See Garcia v. United States, 709 F.Supp.2d 1133,
1137 (D.N.M. 2010)(Browning, J.)(“The United States
cannot be sued without its consent.”); id. at
1137-38 (“Congressional consent -- a waiver of the
traditional principle of sovereign immunity -- is a
prerequisite for federal-court jurisdiction.”). The law
generally places the burden of proving federal jurisdiction
on the proponent of jurisdiction, and the party bringing suit
against the United States thus similarly bears the burden of
proving that sovereign immunity has been waived. See
James v. United States, 970 F.2d 750, 753 (10th Cir.
1992). See also Garcia v. United States, 709
F.Supp.2d at 1138 (“The plaintiff bears the burden of
proving that Congress has waived sovereign immunity for all
of his claims.”). A waiver of sovereign immunity cannot
be implied and must be unequivocally expressed. See
United States v. Nordic Vill., Inc., 503 U.S. 30, 33-34
(1992); United States v. Mitchell, 445 U.S. 535, 538
(1980); United States v. Murdock Mach. & Eng'g
Co. of Utah, 81 F.3d 922, 930 (10th Cir. 1996).
Tenth Circuit has emphasized that all dismissals for lack of
jurisdiction, including those for a failure to establish a
waiver of sovereign immunity under the FTCA, should be
without prejudice. See Mecca v. United States, 389
F. App'x 775, 780 (10th Cir. 2010)(unpublished). It has
explained: “A longstanding line of cases from this
circuit holds that where the district court dismisses an
action for lack of jurisdiction . . . the dismissal must be
without prejudice.” Mecca v. United States,
389 F. App'x at 780 (quoting Brereton v. Bountiful
City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006)). The
Tenth Circuit held in Mecca v. United States that
the district court improperly dismissed with prejudice the
plaintiff's FTCA claims after it concluded that it lacked
jurisdiction over those claims. See 389 F. App'x
at 780-81 (“Here, because the district court found
itself without jurisdiction over the FTCA claims, dismissal
should have been entered without prejudice, even if the court
deemed further amendment futile. We therefore remand with
instructions to enter dismissal of these claims without
FTCA waives the United States' sovereign immunity for
some tort actions against the United States seeking money
damages. See Romanach v. United States, 579 F.Supp.
1017, 1019 (D.P.R. 1984)(Laffitte, J.). In enacting the FTCA,
Congress waived the United States' sovereign immunity as
claims against the United States, for money damages accruing
on and after January 1, 1945, for injury or loss of property,
or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment,
under circumstances where the United States, if a private
person, would be held ...