Beach v. United States

• Decision Date: 10 May 2022
• Docket Number: 4:20-cv-0034-HRH
• Parties: Ryan BEACH, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Alaska

602 F.Supp.3d 1192

Ryan BEACH, et al., Plaintiffs,

v.UNITED STATES of America, et al., Defendants.

No. 4:20-cv-0034-HRH

United States District Court, D. Alaska.

Signed May 10, 2022

Jon Michael Choate, Mark C. Choate, Choate Law Firm LLC, Juneau, AK, Michael C. Kramer, Kramer and Associates, Fairbanks, AK, for Plaintiffs.

Lindsey Malone Pflugrath, Rochelle Y. Doyea, Cairncross & Hempelmann, P.S., Seattle, WA, for Defendants Veco Construction, Inc., HEBL, Inc., Worley Alaska, Inc.

Laura L. Farley, Farley & Graves, P.C., Anchorage, AK, for Defendant Corvias Air Force Living, LLC.

ORDER

H. Russel Holland, United States District Judge

Motion to Dismiss

Defendant the United States of America moves¹ to dismiss all claims asserted against it by plaintiffs Ryan, April, K.B., R.B. Jr., and L.B. Beach. This motion is opposed.² Oral argument was not requested and is not deemed necessary.

Background

On February 28, 2019, Ryan Beach, who was employed by Corvias Group, LLC ("CG"), was working at a premises located at 2168 Midnight Sun Drive, Apartment A, on Eielson Air Force Base in Alaska.³ Plaintiffs allege that on that day, Ryan was electrocuted "by unreasonably dangerous electrical wiring in the kitchen of the premises."⁴ Plaintiffs allege that the "[k]itchen appliances at the premises were ‘double wired.’ That is, one appliance was hot wired to more than one circuit breaker."⁵ Plaintiffs allege that "[t]he outlet that electrocuted Ryan was required to have a Ground Fault Circuit Interrupter (GFCI)[,]" which it did not have.⁶ Plaintiffs allege that "[t]he electrocution caused Ryan to suffer an aortic dissection

, stroke, and other serious medical conditions."⁷

Plaintiffs allege that the electrical wiring was negligently installed, inspected, and approved in the 1990s by one or more of four contractors: Ben Lomond, Inc.; VECO Construction, Inc.; HEBL, Inc.; and/or Worley Alaska, Inc. The Building in which the premises at issue are located was "constructed as a part of a Section 801 housing program in the 1990s."⁸ Under the Section 801 housing program, "the Secretary of the Air Force" could " ‘enter into a contract for the lease of family housing units to be constructed on or near [any] military installation within the United States ... at which there [was] a validated deficit in housing.’ "⁹ In 1994, the United States entered into a lease with an entity called "Housing Eielson Build to Lease, which the Section 801 Lease state[d was] a successor entity to Ben Lomond."¹⁰ The Section 801 Lease provided that the property in question was being leased "for purposes of designing, constructing and operating a Family Housing Development" at Eielson.¹¹ The 801 Lease provided that the Developer, identified as Housing Eielson Build to Lease, was solely responsible for compliance with "all applicable Federal, State, and local laws," including building codes and that "[t]he Department of the Air Force assumes no enforcement or supervisory responsibility except with respect to matters committed to its jurisdiction and authority."¹² The 801 Lease provided that "[i]t is specifically understood that the construction of the improvements herein is a private undertaking, and the Government's sole and exclusive interest in the Lease is limited to that of lessor of the land."¹³

"The Section 801 housing program was the precursor to the current Military Housing Privatization Initiative (‘MHPI’)."¹⁴ Under the MHPI, ownership of military housing "units is vested in the private developer – not the government. The developers build, own and manage the housing units. The military tenants provide an income stream for debt refinancing repayments through assignment of their BAH [Basic Allowance for Housing] to the lockbox account."¹⁵

In 2013, the United States and defendant Corvias Air Force Living, LLC ("CAFL") entered into a lease as part of an MHPI project to revitalize military housing on Eielson. The MHPI lease provided that the United States was leasing certain real property "for purposes of the development, demolition, design, construction, renovation, operation, maintenance, repair, replacement and management of a rental housing development ... primarily for use by military personnel and their dependents...."¹⁶ As part of the revitalization project, the United States also conveyed to CAFL, by quitclaim deed, title to "all family housing units and ancillary improvements and all personal property contained therein ... located on lands on Eielson Air Force Base, Fairbanks North Star Borough, Alaska[,]" including the Building in which the premises in question were located.¹⁷ Walter Graves, "the current Air Force Housing Privatization Branch Chief at the Air Force Civil Engineering Center (AFCEC), Joint Base San Antonio - Lackland[,]" avers that "[t]he United States acquired title to the Building and other units by quitclaim from the assignee of HEBL, and concurrently conveyed by quitclaim deed the ownership of these housing units to" CAFL.¹⁸ The United States continues to own the ground on which the Building sits.

The MHPI lease provides that the housing units were being "conveyed in an ‘AS IS, WHERE IS’ condition without any representation or warranty by the Government concerning their condition and without obligation on the part of the Government to make any alterations, repairs or additions except as otherwise expressly provided in Condition 10."¹⁹ Condition 10 deals with "Environmental Protection."²⁰ The MHPI lease further provides that "[e]xcept as set forth in Condition 10, the Government shall not be liable to the Lessee for any damages or losses, whether direct or consequential, incurred by the Lessee as result of the discovery of any latent or patent defect in the Base Project."²¹ The MHPI lease provides that

the Government shall not be responsible for damages to property or injuries or death to persons that may arise from or be attributable or incident to the condition or state of repair of the Base Project, or the use and occupation of the Base Project, or for damages to the property of the lessee, or injuries or death of the lessee's officers, agents, servants, employees or tenants, or others who may be on the Base Project at their invitation or the invitation of any one of them.^{[22 ]}

And, the MHPI lease provides that CAFL was to "at all times preserve, maintain, repair and manage the Leased Premises and Leased Premises Improvements and keep them in good working order and condition" and to "manage[ ] and maintain[ ] [the property] in an acceptable, safe and sanitary condition in accordance with this Lease."²³

On August 15, 2019, Ryan submitted an administrative claim to the Air Force.²⁴ There is no evidence that any of the other plaintiffs submitted administrative claims, although plaintiffs allege that "[a]ll conditions incident to [their] right to bring and maintain" a lawsuit against the United States "have been satisfied or waived by the US...."²⁵ The United States does not dispute that April timely submitted an administrative claim to the Air Force but does contend that "[t]he children did not submit" administrative claims.²⁶ The United States contends that it denied Ryan's and April's administrative claims on April 8, 2020.

Plaintiffs commenced this action on October 8, 2020. In their second amended complaint, plaintiffs assert negligence, loss of consortium, and negligent infliction of emotional distress claims against the United States.

On August 12, 2021, the court granted in part and denied in part the United States’ motion to stay discovery. The court denied the motion as to the issue of whether the United States was a project owner for purposes of the Alaska Workers’ Compensation Act ("AWCA"), but otherwise granted the motion.²⁷ Discovery on issues other than the project owner issue was stayed pending the outcome of the instant motion. Discovery on the project owner issue has been completed.

Pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure,²⁸ the United States now moves to dismiss plaintiffs’ claims against it.

Discussion

"A Rule 12(b)(1) jurisdictional attack may be facial or factual." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id. "The district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6) : Accepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor, the court determines whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction." Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). "In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Safe Air for Everyone, 373 F.3d at 1039. "The court need not presume the truthfulness of the plaintiff's allegations." Id. " ‘Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.’ " Id. (quoting Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) ). Plaintiffs have "the burden of establishing subject matter jurisdiction." Friends of the Earth v. Sanderson Farms, Inc., 992 F.3d 939, 944 (9th Cir. 2021).

The United States first moves to dismiss the children's claims for failure to exhaust administrative remedies. This is a Rule 12(b)(1) facial attack.

The Federal Tort Claims Act ("FTCA") "waives the United States’ sovereign immunity for tort...