United States District Court, D. New Mexico
RUSSELL L. HAMMONDS AND ROBERT STEVE RODRIGUEZ, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER
GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Defendant's Motion to
Dismiss or in the Alternative for Summary Judgment. Doc.
73. Having reviewed the motion and attendant briefing
(docs. 77, 82), having presided over oral argument
on the matter (doc. 86), and being otherwise fully
advised, the Court hereby GRANTS summary judgment to
Defendant for the reasons described below.
case stems from injuries suffered by Plaintiffs in the
McGregor Range Complex, Range No. 39 on October 10, 2013.
Doc. 39 at 2-4. On October 8, 2015, each Plaintiff
timely filed a separate administrative claim with the
Department of the Army (“DOA”). Id. at
1. The DOA denied both claims by letter dated May 12, 2016.
Doc. 41 at 2. Plaintiffs filed suit in this Court on
November 9, 2016. Doc. 1. Plaintiffs then filed an
Amended Complaint on May 16, 2017. Doc. 39.
Specifically, Plaintiffs brought (1) claims against Defendant
for negligence pursuant to the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 2671-2680, (2)
claims against Defendant for strict liability pursuant to the
FTCA, and (3) claims against Defendant for violations of
N.M.S.A. § 30- 7-6 and N.M.S.A. §
74-4-1. Defendant filed a Motion to Dismiss or in
the Alternative for Summary Judgment on December 13, 2017.
Doc. 73. In the Motion, Defendant seeks dismissal
for lack of subject matter jurisdiction, arguing that the
discretionary function exception to the FTCA applies in this
case, and Defendant's sovereign immunity is therefore not
waived as to Plaintiffs' claims. Id. at 8-10,
12-25. In the alternative, Defendant seeks summary judgment,
arguing that the New Mexico wrongful conduct doctrine
precludes Plaintiffs from recovering damages arising from
their own illegal activities. Id. at 10-11, 25-27.
The Motion was fully briefed on January 30, 2018. Doc.
84. The Court heard oral argument on the Motion on
February 8, 2018. Doc. 86.
Motion to Dismiss under Rule 12(b)(1)
12(b)(1) motion is the proper avenue to challenge the
court's subject matter jurisdiction, and Rule 12(h)(3)
requires that ‘(w)henever it appears by suggestion of
the parties or otherwise that the court lacks jurisdiction of
the subject matter, the court shall dismiss the
action.'” Barnson v. United States, 531
F.Supp. 614, 617 (D. Utah 1982).
under 12(b)(1) “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. 2002) (citations omitted). The
Court understands the United States to be mounting a factual
attack, because, as explained in more detail below,
determining whether the discretionary function exception
applies under the FTCA requires the Court to consider
evidence outside the pleadings. See Holt v. United
States, 46 F.3d 1000, 1002-03 (10th Cir. 1995); see
also Berkovitz ex rel. Berkovitz v. United States, 486
U.S. 531, 536 (1988).
this Court shall review the face of the Amended Complaint and
any relevant external materials to determine whether
Plaintiffs have presented claims within the Court's
jurisdiction, a necessary prerequisite for adjudication on
the merits. Fed.R.Civ.P. 12(b)(1); see also Fleming v.
Gutierrez, 785 F.3d 442, 444 (10th Cir. 2015) (holding
that lack of subject matter jurisdiction precludes reaching
the merits of a dispute). Notably, however, the Court must
convert a 12(b)(1) motion to dismiss to a 12(b)(6) motion, or
a motion for summary judgment, “if the jurisdictional
question is intertwined with the merits of the case. Whether
the discretionary-function exception applies is such a
question.” Franklin Sav. Corp. v. United
States, 180 F.3d 1124, 1129 (10th Cir. 1999) (internal
quotations, citations, and alteration omitted). Therefore,
the Court approaches the present motion as a summary judgment
motion under Rule 56.
Federal Rule of Civil Procedure 56(a), this Court must
“grant summary judgment 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). See also Kidd v. Taos Ski Valley,
Inc., 88 F.3d 848, 851 (10th Cir. 1996). The movant
bears the initial burden of “show[ing] ‘that
there is an absence of evidence to support the nonmoving
party's case.'” Bacchus Indus., Inc. v.
Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986)). Once the movant meets this burden, the non-moving
party is required to designate specific facts showing that
“there are . . . genuine factual issues that properly
can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986); Celotex, 477 U.S. at 324.
FTCA, 28 U.S.C. §§ 2671 et seq., waives
the United States' sovereign immunity for certain claims
arising out of injuries caused by the negligence of
governmental employees acting within the scope of their
employment. 28 U.S.C. § 1346(b)(1). Under the FTCA, the
United States can be held liable “in the same manner
and to the same extent as a private individual under like
circumstances, ” subject to certain exceptions.
Id. §§ 2674, 2680(a). The two exceptions
relevant here are the discretionary function exception and
the private person analog.
Discretionary function exception.
FTCA preserves the United States' sovereign immunity from
claims based “upon the exercise or performance or the
failure to exercise or perform a discretionary function or
duty on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be
abused.” 28 U.S.C. § 2680(a). See also Elder
v. United States, 312 F.3d 1172, 1176 (10th Cir. 2002).
“Application of this exception is . . . a threshold
issue[.]” Johnson v. United States Dept' of
Interior, 949 F.2d 332, 335 (10th Cir. 1991). “If
the discretionary function exception applies to the
challenged governmental conduct, the United States retains
its sovereign immunity and the district court lacks subject
matter jurisdiction to hear the suit.” Domme v.
United States, 61 F.3d 787, 789 (10th Cir. 1995).
Plaintiff must therefore show the absence of this exception
as part of his overall burden to establish subject matter
jurisdiction. See Aragon v. United States, 146 F.3d
819, 823 (10th Cir. 1998).
determine whether the challenged conduct falls within the
discretionary function exception, courts engage in a
two-pronged analysis, known as the Berkovitz test,
asking: (1) “whether the challenged conduct
‘involves an element of judgment or choice,
'” rather than involving application of “a
federal statute, regulation, or policy that specifically
prescribes a course of action for an employee to
follow” and if so, (2) “whether that judgment is
the kind that the discretionary function exception was
designed to shield[.]” Kiehn v. United States,
984 F.2d 1100, 1102-03 (10th Cir. 1993) (quoting
Berkovitz, 486 U.S. at 536) (alteration omitted).
The second prong is animated by public policy concerns, but
“[w]hen making the second inquiry, we are not to
consider the subjective intent of the particular actor . . .
. Rather, we must consider whether the nature of the actions
taken implicate public policy concerns, or are
‘susceptible to policy analysis.'” Lopez
v. United States, 376 F.3d 1055, 1057 (10th Cir. 2004)
(citing Kiehn, 984 F.2d at 1105).
Private person analog.
FTCA does not itself create a substantive cause of action
against the United States; rather, it provides a mechanism
for bringing a state law tort action against the federal
government in federal court. Thus, the extent of the
government's liability under the FTCA is determined by
state law.” Clark v. United States, 234
F.Supp.3d 1127, 1135 (D.N.M. 2014) (internal quotations and
citations omitted), aff'd, 695 F. App'x 378,
2017 WL 2644635 (10th Cir. June 20, 2017); see also Burge
v. United States, Civ. No. 10-0069 MV/WDS, 2012 WL
1450062, at *3 (D.N.M. Mar. 27, 2012). The FTCA's limited
grant of subject matter jurisdiction hinges on whether a
private person could be subject to state law liability under
similar factual circumstances as those alleged against
government actors. Id.; see also United States
v. Olson, 546 U.S. 43, 44 (2005). Overall, the FTCA
intended to limit the United States' waiver of sovereign
immunity to well- established torts where clear, private
analogs exist under state tort law. Dalehite v. United
States, 346 U.S. 15, 28 (1953) (“Uppermost in the
collective mind of Congress were the ordinary common-law
torts”), partial abrogation on other grounds
recognized by Rayonier, Inc. v. United States, 352 U.S.
The New Mexico Wrongful Conduct Doctrine
New Mexico law, Plaintiffs may not maintain a cause of action
that is predicated on their own illegal conduct. Desmet
v. Sublett, 225 P.2d 141, 142 (N.M. 1950). This doctrine
stems from public policy considerations, as “courts
traditionally have followed a policy of closing the
courthouse doors to persons seeking, through civil lawsuits,
to collect debts that arise from unlawful activities.”
United States v. Martinez, 978 F.Supp. 1442, 1454
on the facts presented by the movants and other facts gleaned
from the record, the Court finds the following facts to be
undisputed for the purposes of Defendant's motion:
1. McGregor Range Complex No. 39 is a multi-purpose training
range which includes a high explosive impact firing range
facility located about 3.1 miles east of milepost 10 on U.S.
Highway 54 in Otero County, New Mexico. Doc. 77 at
2. Specifically, Range No. 39 is a training range for
aviation gunnery, forward arming and refueling operations,