Gulli v. United States

• Court: District Court, D. Nevada
• Decided: July 18, 2025
• Docket: 2:20-cv-01231
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 NICHOLAS GULLI, Case No. 2:20-cv-01231-ART-NJK 5 Plaintiff, Order Granting Motion to Dismiss 6 v. (ECF No. 47) 7 UNITED STATES OF AMERICA,

8 Defendant.

9 10 Before the Court is the Government’s renewed motion to dismiss Plaintiff 11 Nicholas Gulli’s complaint for lack of subject matter jurisdiction under Federal 12 Rule of Civil Procedure 12(b)(1). The Court issues this order to supplement and 13 memorialize its ruling from the bench on July 17, 2025. 14 I. Background 15 Plaintiff Nicholas Gulli, a former Las Vegas Metropolitan Police Department 16 (LVMPD) Officer, was part of the joint state-federal Southern Nevada Heroin Task 17 Force. (ECF No. 1; ECF No. 47-2 at 3.) During a 2015 “buy bust” operation, Gulli, 18 while undercover, was following a suspect who had just sold heroin to an 19 undercover detective. (ECF No. 47-2 at 4.) A DEA agent rammed into Gulli’s 20 unmarked car, injuring him. (Id. at 5.) Gulli sued the United States and the DEA 21 agent under the Federal Tort Claims Act (FTCA) several years later, after retiring 22 from LVMPD. 23 The Government moved to dismiss Gulli’s claim for lack of jurisdiction, 24 arguing that Gulli has a colorable Federal Employees’ Compensation Act (FECA) 25 claim. (ECF No. 29.) This Court denied the Government’s motion without 26 prejudice and stayed the case so that Gulli could apply to the Department of 27 Labor to verify that the injury was covered by FECA. (ECF No. 35.) Gulli applied 28 for FECA in August 2023, but he did not respond to the Department of Labor’s 1 requests for evidence to support his claim. (See ECF Nos. 47-5, 47-6.) Gulli’s 2 claim was subsequently denied for lack of evidence. (See ECF No. 47-6.) 3 II. Standard of Review 4 In resolving a motion to dismiss under Rule 12(b)(1), the Court “is not 5 restricted to the face of the pleadings” and may rely on extrinsic evidence to 6 resolve factual disputes relevant to subject matter jurisdiction. McCarthy v. 7 United States, 850 F.2d 558, 560 (9th Cir. 1988). A party opposing a factual 8 motion to dismiss for lack of subject matter jurisdiction may then “present 9 affidavits or any other evidence necessary to satisfy its burden of establishing 10 that the court, in fact, possesses subject matter jurisdiction.” Colwell v. Dep't of 11 Health & Hum. Servs., 558 F.3d 1112, 1121 (9th Cir. 2009) (citing St. Clair v. City 12 of Chico, 880 F.2d 199, 201 (9th Cir.1989)) (internal quotations omitted). 13 III. Analysis 14 “If a plaintiff has a colorable claim under FECA, the federal courts should 15 dismiss any action arising under the same facts for lack of subject matter 16 jurisdiction.” Moe v. United States, 326 F.3d 1065, 1068 (9th Cir. 2003). FECA 17 applies to state and local law enforcement officers who are injured while 18 apprehending or attempting to apprehend a person who committed or is 19 committing a federal crime. 5 U.S.C. § 8191; City of Whittier v. U.S. Dep't of Just., 20 598 F.2d 561, 563 (9th Cir. 1979) (FECA “exclusive remedy for injuries suffered 21 by [local officer injured by drug-enforcement federal agent] while participating in 22 federal law enforcement activities”); Buehler v. United States, No. C-96-1391- 23 MHP-ENE, 1996 WL 511645 at *3–4 (N.D. Cal. Aug. 8, 1996) (local police officer 24 injured while driving with DEA agent during drug investigation has colorable 25 FECA claim under § 8191 and cannot sue under FTCA); Aponte v. Dep't of 26 Treasury, Bureau of Alcohol, Tobacco, & Firearms, 940 F. Supp. 898, 899 27 (E.D.N.C. 1996) (FECA under § 8191 exclusive remedy for local police officer shot 28 by federal agent while serving as translator for drug bust). 1 Gulli was injured by a DEA agent while working in the joint state-federal 2 || operation to apprehend a heroin seller for selling heroin. He has a colorable FECA 3 || claim under 5 U.S.C. § 8191. The Court must therefore dismiss this case for lack 4 || of subject matter jurisdiction. 5 IV. Conclusion 6 Accordingly, the Court grants the Government’s Motion to Dismiss (ECF 7 || No. 47) and dismisses the case without prejudice and without leave to amend. 8 The Court instructs the Clerk to close the case. 9 10 Dated this 18th day of July 2025. 11 12 an 13 / 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28