WILLIAM J. MARTÍNEZ, District Judge.
Plaintiff Steve N. Burton ("Plaintiff") brings claims for wrongful death against Defendant United States of America ("Defendant"). Before the Court is Defendant's Motion to Dismiss pursuant to Rule 12(b)(1) of the Federal Court Rules of Civil Procedure ("Motion").
Having reviewed the parties' briefs, and for the reasons set forth below, the Court grants Defendant's Motion.
A motion under Rule 12(b)(1) is a request upon the court to dismiss a claim for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A plaintiff bears the burden of establishing that the court has jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). Dismissal of a complaint under Fed. R. Civ. P. 12(b)(1) is proper when the Court lacks subject matter jurisdiction over a claim for relief. See SBM Site Services, LLC v. Garrett, 2012 WL 628619, *1 (D. Colo. Feb. 27, 2012).
When a court's subject matter jurisdiction is challenged, the court may review materials outside the pleadings without converting the Rule 12(b)(1) motion to dismiss into a motion for summary judgment. Davis ex rel. Davis v. U.S., 342 F.3d 1282, 1296 (10th Cir. 2003) (stating that "when a party challenges the allegations supporting subject-matter jurisdiction, the `court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.'" (quoting Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995)); Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir. 2000); Holt, 46 F.3d at 1003.
Only where the jurisdictional question is intertwined with the merits (not present here) is conversion of a Rule 12(b)(1) motion into a motion for summary judgment under Rule 56, appropriate. Id.; WJM Revised Practice Standards, III.D.3.
Plaintiff Burton brings claims for wrongful death against Defendant United States of America. Plaintiff alleges that the death of his wife, Deborah Burton on July 28, 2009, resulted from medical negligence at the Peterson Air Force Base. Plaintiff, through his counsel, filed a claim with the Peterson Air Force Base legal office on April 18, 2011. (ECF No. 17-1). The claim was filed on a Standard Form 95. Id. The Department of the Air Force denied the claim on February 24, 2012. Id.
In the section of the form provided for the amount of the wrongful death portion of the claim, Plaintiff wrote, "
To establish subject matter jurisdiction under the Federal Tort Claims Act ("FTCA"), a claimant must first give notice to the appropriate federal agency. 28 U.S.C. § 2675(a); Industrial Constructors Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 967 (10th Cir. 1994) (district courts do not have the authority to waive these requirements); see also Hart v. Dep't of Labor ex rel United States, 116 F.3d 1338, 1340 (10th Cir. 1997). The FTCA only provides a limited waiver of the government's sovereign immunity. See United States v. Mitchell, 463 U.S. 206, 212 (1983); United States v. Orleans, 425 U.S. 807, 814 (1976) (stating that "the United States can be sued only to the extent that it has waived its immunity").
Importantly, because the "FTCA constitutes a waiver of the government's sovereign immunity, the notice requirements established by the FTCA must be strictly construed." Bradley v. United States ex rel. Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991). The requirement cannot be waived. Id. The FTCA thus "requires that claims for damages against the government be presented to the federal agency by filing: (1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim." Id. at 270 (quoting Warren v. United States Dep't of Interior Bureau of Land Mgmt., 724 F.2d 776, 780 (9th Cir.1984)); Cizek v. United States, 953 F.2d 1232, 1233 (10th Cir. 1992) (proper FTCA claims require statement of a "sum certain"); see also Three-M Enters., Inc. v. United States, 548 F.2d 293, 295 (10th Cir. 1977); 28 U.S.C. § 2675(a).
The Parties do not dispute the first FTCA requirement. Rather, the issue in dispute is whether Plaintiff has satisfied the second requirement—i.e. whether Plaintiff's claim, which stated damages as "in excess of $1.5 Million", satisfied the requirement that such damages reflect a sum certain.
First, Plaintiff seeks to ignore Tenth Circuit authority—i.e. that the Court ignore not only the Bradley decision, but also Gladden v. United States, 18 Fed. App'x 756, 757 (10th Cir. 2001). In both these cases, the plaintiff sought damages for amounts stated in the same manner as Plaintiff's damages in this case. In Bradley, for example, the plaintiff filed a medical malpractice action against the Department of Veterans Affairs ("VA"). Bradley, 951 F.2d at 271. The plaintiff's submission to the VA stated that the amount of plaintiff's damages would be "in excess of $100,000." Id. The Tenth Circuit found against the plaintiff on the sum certain requirement—stating:
Id. 2d at 271. The court further held that "failure to comply with the sum certain requirement results in the case being treated `as if no administrative claim had ever been filed.'" Id. at 271 (quoting Caidin v. United States, 564 F.2d 284, 287 (9th Cir. 1977)).
Similarly, in Gladden, plaintiff who submitted a FTCA administrative claim for an amount "in excess of $100,000" was also unsuccessful in her appeal to the Tenth Circuit. Bound by Bradley, the court upheld the dismissal, stating that the plaintiffs "recognize, as they must, that this precise issue was addressed and resolved by this court [in Bradley]." See Gladden, 18 Fed. App'x at 757; see also Cizek, 953 F.2d at 1234.
Here, Plaintiff wrote in the portion of the form requiring an amount that he was seeking a claim "
Second, Plaintiff's briefing ignores the fact that the FTCA is an exception to the rule. The FTCA provides waiver to governmental immunity. Because the statute provides waiver, the Tenth Circuit has held that § 2675(a) must be construed strictly since the provision provides consent for the U.S. Government to be sued. See Bradley, 951 F.2d at 270.
Contrary to Plaintiff's position, Plaintiff fails to rebut the Tenth Circuit's reading of the FTCA (and its underlying purposes). By failing to do so, this Court has no choice but to strictly interpret 28 U.S.C. § 2675(a) in conformity with such authority. Bradley says as much. And because this Court must construe the statute strictly—which precludes a sum certain without ceiling so to expedite the fair settlement of tort claims—this further fortifies the Court's finding in favor of dismissal for lack of jurisdiction. See also Gladden, 18 Fed. App'x at 757 (stating that "`the FTCA constitutes a waiver of the government's sovereign immunity, [so that] the notice requirements established by the FTCA must be strictly construed.'")
Third, the Court rejects Plaintiff's argument that this Court adopt the reasoning of Erxleben v. Uniled States, 668 F.2d 268 (7th Cir. 1981) and Martinez v. United States, 728 F.2d 694 (5th Cir. 1984). Both these cases come from sister circuits. They are not binding on this Court. But even if they were, they do not save Plaintiff's position. In Erxleben, for example, the plaintiff sought damages arising from a motor vehicle accident. In his administrative claim, plaintiff made the following specific claims: "(A) Property damage $109, (B) Personal Injury "$149.42 presently," (C) Wrongful Death 0, and (D) Total $259.34." See Erxleben, 668 F.2d at 270. Despite the use of the term "presently" in the plaintiff's claim, the Seventh Circuit found that the FTCA's notice requirement was fulfilled because the claimant provided specific amounts upon which the government could have acted. Id. at 273. But Erxleben is distinct from the instant case. Plaintiff Burton has claimed (1) wrongful death damages "In Excess of $1.5 Million", and (2) in the box for the total claim amount, he wrote "0.00." (ECF No. 17-1.) Notwithstanding the discrepancy in these figures, these numbers are a far cry from the specific amounts that were indicated in Erxleben 668 F.2d at 270. As such, and notwithstanding the fact that the case derives from the Seventh Circuit, the Erxleben holding does not support Plaintiff's position.
In sum, given the weight of authority against Plaintiff, the Court has little choice but to find for Defendant because Plaintiff did not file an administrative claim meeting the `sum certain' requirement. As such, the Court is without jurisdiction to entertain the lawsuit. Dismissal of Plaintiff's case is appropriate in these circumstances. See Bradley, 951 F.2d at 271 ("Failure to comply with the sum certain requirement results in the case being treated as if no administrative claim had ever been filed.")
For the reasons set forth above, it is hereby ORDERED that Defendant's Motion to Dismiss (ECF No. 17) is GRANTED, and the claims brought by Plaintiff pursuant to the Federal Tort Claims Act are hereby DISMISSED pursuant to Rule 12(b)(1) for lack of jurisdiction.
28 U.S.C. § 2675(b) provides:
