46 F.3d 1000 (10th Cir. 1995), 93-5218, Holt v. United States

Docket Nº:93-5218.
Citation:46 F.3d 1000
Party Name:David HOLT, as Personal Representative of the Estates of James W. Holt and Joan Holt, deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Case Date:January 30, 1995
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1000

46 F.3d 1000 (10th Cir. 1995)

David HOLT, as Personal Representative of the Estates of

James W. Holt and Joan Holt, deceased, Plaintiff-Appellant,


UNITED STATES of America, Defendant-Appellee.

No. 93-5218.

United States Court of Appeals, Tenth Circuit

January 30, 1995

Page 1001

Michael D. Parks of Stipe, Gossett, Stipe, Harper, McCune & Parks, McAlester, OK, for plaintiff-appellant.

Peter Bernhardt, Asst. U.S. Atty. (Stephen C. Lewis, U.S. Atty., with him on the brief), Tulsa, OK, for defendant-appellee.

Before BALDOCK and BRORBY, Circuit Judges, and KANE, District Judge. [*]

BALDOCK, Circuit Judge.

Plaintiff David Holt appeals the district court's dismissal of his complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

The instant dispute involves a fatal automobile accident which occurred on Oklahoma

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State Highway 151 where it traverses Keystone Dam ("the Dam"), near Tulsa, Oklahoma. 1 The Dam is a multi-purpose facility forming Keystone Lake and managed by the United States Army Corps of Engineers ("the Corps") as part of a system of eleven reservoirs comprising the Arkansas River Basin. In carrying out its management duties, the Corps monitors the water level of Keystone Lake to determine how much water to release downstream into the Arkansas River. Portals called "powerhouse turbines" at the base of the Dam and "tainter gates" at the top of the Dam allow the discharge of water through the Dam. Releases made through tainter gates create a mist or spray as the water falls approximately seventy-five feet to the downstream surface of the Arkansas River.

In order to control the release of water through the Dam, the Corps has implemented a water control plan designed to meet flood control and specific navigational objectives of the Arkansas River Basin. Under the plan, water contained in the Dam's flood control pool is released within prescribed limits by taking into account the level of reservoirs comprising the Arkansas River Basin. Through these releases, the Corps is able to evacuate the flood control pool in Keystone Lake and achieve desired water levels in the Arkansas River Basin.

On December 25, 1991, the level of Keystone Lake had risen eight feet above the minimum flood control pool level of 723 feet. As a result, the Corps began to release water through the powerhouse turbines and the tainter gates. Under the existing freezing conditions, mist created from water released through the tainter gates formed an ice slick on the portion of Highway 151 which traverses the Dam. While travelling in the northbound lane of Highway 151, Plaintiff's parents were killed when an on-coming vehicle slid on the ice slick, crossed the median line, and struck the decedents' car.

On July 14, 1992, Plaintiff sued the United States in federal district court pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346(b), 2671. In his complaint, Plaintiff alleged that the Corps was negligent when it failed: (1) to warn the public and the Oklahoma Department of Transportation of the icy road conditions, and (2) to clear the hazardous road conditions.

On September 30, 1992, the government filed a motion to dismiss for lack of subject matter jurisdiction or in the alternative for summary judgment. The district court dismissed the action for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), holding that the government was immune from liability under the Flood Control Act of 1928 ("the Act"), 33 U.S.C. Sec. 702c. This appeal followed.

On appeal, Plaintiff contends the government is not immune from liability under Sec. 702c of the Act. Specifically, Plaintiff contends the government has failed to establish a nexus between the injuries sustained by the decedents and flood control activities at the Dam sufficient to invoke the protective immunity of the Act.


As an initial matter, we must determine our standard of review. Plaintiff contends that the district court's dismissal pursuant to Rule 12(b)(1) should be treated as one for summary judgment under Fed.R.Civ.P. 56 because matters outside the pleadings were received and considered. Under the summary judgment standard, Plaintiff contends the district court erroneously resolved a disputed material fact concerning whether the waters which formed the ice slick were released for navigational or flood control purposes. We disagree.

Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true. Id.

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Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. Id. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. Id. 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). Id.; Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir.), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 501 (1987). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion. Wheeler, 825 F.2d at 259 n. 5.

However, a court is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case. Id. at 259; see also Redmon v. United States, 934 F.2d 1151, 1155 (10th Cir.1991). The jurisdictional question is intertwined with the merits of the case if subject matter jurisdiction is dependent on the same statute which provides the substantive claim in the case. Wheeler, 825 F.2d at 259.

In the instant case, Defendant's Rule 12(b)(1) motion did not mount a mere facial challenge to the complaint, but instead raised a factual challenge to the existence of subject matter jurisdiction. Specifically, Defendant claimed that waters which caused the ice slick to form on Highway 151 were in fact released for flood control purposes, rendering the government immune from suit under Sec. 702c of the Act. Consequently, unless the jurisdictional issue is intertwined with the merits of Plaintiff's case, the district...

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