Garcia Ex Rel. Estate of Garcia v. United States Air Force

533 F.3d 1170, 2008 U.S. App. LEXIS 14981, 2008 WL 2736661
CourtCourt of Appeals for the Tenth Circuit
DecidedJuly 15, 2008
Docket07-2106
StatusPublished
Cited by82 cases

This text of 533 F.3d 1170 (Garcia Ex Rel. Estate of Garcia v. United States Air Force) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garcia Ex Rel. Estate of Garcia v. United States Air Force, 533 F.3d 1170, 2008 U.S. App. LEXIS 14981, 2008 WL 2736661 (10th Cir. 2008).

Opinions

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.

[1174]*1174On 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 [1175]*1175to the government. See Aplt.App. at 312, 314, 321.

Following the court’s decision, the Garci-as 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 Gar-cias 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.,

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533 F.3d 1170, 2008 U.S. App. LEXIS 14981, 2008 WL 2736661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garcia-ex-rel-estate-of-garcia-v-united-states-air-force-ca10-2008.