Garcia v. U.S. Air Force

• Citation: 533 F.3d 1170
• Decision Date: 15 July 2008
• Docket Number: No. 07-2106.,07-2106.
• Parties: Dennis Dionicio GARCIA as personal representative of the estate of Marcelino Garcia, deceased; Inez Maria Garcia, individually and jointly as parents and next friends of Deja Bonet Garcia and Nicolas Dionicio Garcia, minors, Plaintiffs-Appellants, v. UNITED STATES AIR FORCE; James G. Roche, Secretary of the United States Air Force; Chenenga Management, LLC; Northeast Construction Company of Nevada; John Doe, Contractor, Defendants, and United States of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

533 F.3d 1170

Dennis Dionicio GARCIA as personal representative of the estate of Marcelino Garcia, deceased; Inez Maria Garcia, individually and jointly as parents and next friends of Deja Bonet Garcia and Nicolas Dionicio Garcia, minors, Plaintiffs-Appellants, v. UNITED STATES AIR FORCE; James G. Roche, Secretary of the United States Air Force; Chenenga Management, LLC; Northeast Construction Company of Nevada; John Doe, Contractor, Defendants, and United States of America, Defendant-Appellee.

No. 07-2106.

United States Court of Appeals, Tenth Circuit.

July 15, 2008.

Jennifer Rozzoni (A. Brent Bailey of Dixon, Scholl & Bailey, P.A., on the briefs), Albuquerque, NM, for Plaintiffs-Appellants.

Adam M. Dinnell, Trial Attorney, Civil Division, Torts Branch, Environmental Torts Section, U.S. Department of Justice (and Gay E. Kang; Peter D. Keisler, Assistant Attorney General, Civil Division; J. Patrick Glynn, Director, Torts Branch; Joann J. Bordeaux, Deputy Director; David S. Fishback, Assistant Director; on the brief) Washington, D.C., for Defendant-Appellee.

Before KELLY, LUCERO, and HARTZ, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Plaintiffs (the "Garcias") brought this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671, 2674, for personal injuries and damages sustained from exposure to toxic mold in their on-base housing unit at Holloman Air Force Base ("HAFB") in New Mexico. They allege that the mold resulted from water that penetrated their home through a leak in their roof, and that the government was negligent in failing to identify the leak in time to prevent the mold from developing. Finding that the government's actions fell within the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a), the district court granted summary judgment for the government. The court also denied the Garcias' Fed.R.Civ.P. 56(f) request for a continuance to conduct further discovery as well as their Fed. R.Civ.P. 60(b) motion for relief from judgment, which was based upon evidence obtained from the private contractor that installed their roof. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

Background

Between February 16, 1996 and August 23, 2002, the Garcias lived in an on-base housing unit at HAFB located at 2553A Valencia Loop ("Unit 2553A"). Prior to the Garcias taking possession of Unit 2553A, the government contracted with Northeast Construction Company ("Northeast") to renovate 113 on-base family housing units at HAFB, including Unit 2553A. The renovation involved converting the roof of Unit 2553A from a "low-slope" roof (slope or pitch of less than 250 millimeters per meter) to a "pitch" roof (slope or pitch of 250 millimeters per meter or more). The government recommended this type of "slope conversion" because pitch roofs typically last longer and require less maintenance than low-slope roofs. The renovation of Unit 2553A was completed prior to the Garcias taking possession of it.

On February 6, 1996, Dennis Garcia completed an inspection form for Unit 2553A. The form noted some minor cosmetic defects, but did not indicate any mold or water leaks. Ten days later, the Garcias moved into Unit 2553A. Between February 1996 and April 2001, the 49th Civil Engineering Squadron at HAFB was responsible for the maintenance and management of Unit 2553A, but the Garcias did not report any maintenance problems during that time period.

In May 2001, Chenega Management, LLC ("Chenega") became responsible for the maintenance and management of Unit 2553A. Subsequently, the Garcias experienced some maintenance problems with their unit, each of which was resolved by Chenega. For example, on September 6, 2001, the Garcias reported a water leak in the ceiling. Chenega fixed the problem on September 10. On October 15, they reported a spongy, discolored area on a wall. On November 26, Chenega repaired the wall. On November 30, the Garcias reported that sheetrock had fallen over the water heater. Chenega fixed that problem on December 3. On May 8, 2002, they reported mildew on a bedroom wall. Chenega re-grouted and re-caulked a shower to fix the problem. On May 24, the Garcias reported that the dishwasher was spraying water all over the kitchen. Chenega subsequently fixed the dishwasher.

It was not until the summer of 2002 that the Garcias first asked Chenega to evaluate the mold that they now claim caused their physical injuries. The government responded by housing the Garcias in a hotel from August 4 to August 19. On August 23, the Garcias moved out of Unit 2553A into off-base housing. That same day, SafeNet Environmental Services prepared a mold identification report for Chenega. The report stated that on August 12, SafeNet found visible fungal growth with varying degrees of spore concentrations depending on the location within Unit 2553A. On November 21, 2002, the Clayton Group prepared a mold assessment for the government. That assessment found that the air in Unit 2553A did not exceed Occupational Safety and Health Administration standards and did not indicate high levels of toxic mold. Neither SafeNet nor the Clayton Group definitively identified the cause of the mold.¹

The Garcias subsequently filed administrative claims with the government, which were denied. The Garcias then filed this suit against the government pursuant to the FTCA. They also brought various state-law claims against Northeast and Chenega. Arguing that the discretionary function exception bars the Garcias' suit, the government moved to dismiss for lack of subject matter jurisdiction, or in the alternative, for summary judgment. The government included two sworn declarations concerning the lack of any mandatory residential roof inspection policies. In addition to responding to the merits of the government's motion, the Garcias requested a Rule 56(f) continuance to conduct further discovery. The district court denied the Rule 56(f) request, construed the government's motion as a motion for summary judgment because jurisdictional issues were intertwined with the merits of the case, and granted summary judgment to the government. See Aplt.App. at 312, 314, 321.

Following the court's decision, the Garcias obtained additional evidence regarding the applicability of the discretionary function exception from discovery with Northeast and, on the basis of that evidence, filed a Fed.R.Civ.P. 60(b) motion for relief from judgment. The district court construed the motion under Fed.R.Civ.P. 54(b) as the court had not yet entered final judgment, Aplee. Supp.App. at 37-38, and reaffirmed the applicability of the discretionary function exception notwithstanding the new evidence. Id. at 41-49.

The Garcias' claims against Northeast and Chenega were subsequently dismissed with prejudice pursuant to settlement agreements, making the district court's decisions ripe for appeal. See Jackson v. Volvo Trucks N. Am., Inc., 462 F.3d 1234, 1238 (10th Cir.2006).² On appeal, the Garcias make three arguments: (1) the grant of summary judgment was inappropriate because the government failed to follow mandatory Air Force policies governing the periodic inspection of their roof—in holding otherwise, the district court improperly weighed evidence; (2) the denial of their Rule 56(f) request was error; and (3) the denial of their motion for relief from judgment was error because new evidence showed that the government had voluntarily assumed a duty to inspect their roof. We address these arguments in turn.

Discussion

I.

A. Standard of Review

We review the district court's determination of the applicability of the discretionary function exception de novo, considering the allegations in the complaint as well as the evidence in the record. Duke v. Dep't of Agric., 131 F.3d 1407, 1409 (10th Cir.1997). As the district court granted summary judgment for the government, we determine only whether the discretionary function exception applies, a jurisdictional issue, and make no judgment on the merits of the case. Id. Viewing all evidence and drawing all reasonable inferences therefrom in the light most favorable to the nonmoving party, Fye v. Okla. Corp. Comm'n, 516 F.3d 1217, 1222-23 (10th Cir.2008), we determine that summary judgment is appropriate if "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

B. Discretionary Function

The FTCA waives sovereign immunity for actions against the United States resulting from injuries caused by the negligent acts of governmental employees while acting in the scope of their employment. See 28 U.S.C. § 1346(b)(1). The United States can be held liable "in the same manner and to the same extent as a private individual under like circumstances." Id. § 2674. Excluded from this waiver of immunity are claims based on the performance of "a discretionary function or duty on the part of a federal agency or an employee of the Government." 28 U.S.C. § 2680(a). This "discretionary function exception poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction." Aragon v. United States, 146 F.3d 819, 823 (10th Cir.1998) (quotations omitted). "If the discretionary function exception applies to the challenged 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). When, as here, the jurisdictional question is intertwined with the merits of the case, the government's motion should be construed as a motion for summary judgment, not a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. See Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir. 1987). The discretionary function exception applies "whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). Thus, the...