Farhat v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

CHRISTINA ANN FARHAT, as )

personal representative of the estate of )

WILLIAM EDWARD FARHAT, JR., )

deceased; )

KIMBERLY DIANE PAGE, )

as personal representative of the estate of )

KRISTY ANN FARHAT, deceased; )

KAYLEE WALDEN, as personal )

representative of the estate of )

PHYSHER WYATT FARHAT, deceased; )

KAYLEE WALDEN, as guardian of )

WESTON BUCK FARHAT; and )

MELISSA HILL, guardian of the estate )

of BRAYDEN WAYNE HILL, a minor, )

)

Plaintiffs, )

)

v. ) Case No. CIV-19-401-SPS

)

UNITED STATES OF AMERICA, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on the United States of America’s Motion to Dismiss

and Brief in Support [Docket No. 11], in which the government has moved to dismiss for

lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), or

alternatively for failure to state a claim upon which relief can be granted pursuant to Federal

Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the Court finds that the

United States of America’s Motion to Dismiss and Brief in Support should be GRANTED

for failure to state a claim upon which relief can be granted pursuant to Federal Rule of

Civil Procedure 12(b)(6).

BACKGROUND

On April 23, 2017, William Edward Farhat, Jr., Kristy Farhat, Physher Wyatt

Farhat, and Weston Buck Farhat were boating in the McClellan-Kerr Arkansas River

Navigational System approximately one-half mile west of the W.D. Mayo Lock and Dam

No. 14 when their boat’s motor failed and would not restart. See Docket No. 2, p. 5, ¶¶ 23-

24. The boat drifted towards the W.D. Mayo Lock and Dam No. 14 gates, struck Gate 1,

and was pulled under water along with all passengers. See Docket No. 2, p. 5, ¶¶ 25-26.

William Edward Farhat, Jr., Kristy Farhat, and Physher Wyatt Farhat died as a result of

this accident and Weston Buck Farhat sustained injuries. See Docket No. 2, p. 5, ¶¶ 27-33.

On or before February 5, 2019, the Plaintiffs each filed an administrative claim with

the United States Army Corps of Engineers (“USACE”). See Docket No. 2, pp. 2-3, ¶¶ 4,

6, 8, 10, 12. The USACE has not made a final determination on the Plaintiffs’

administrative claims. See Docket No. 2, p. 3, ¶13. On November 22, 2019, the Plaintiffs

filed a Complaint in this Court asserting wrongful death and personal injury claims under

the FTCA against the United States for negligence in operating the W.D. Mayo Lock and

Dam No. 14. See Docket No. 2.

In their Motion to Dismiss, the United States contends that the Plaintiffs’ claims are

not governed by the FTCA, but rather fall exclusively under the Suits in Admiralty Act

(“SAA”), 46 U.S.C. §§ 30901-30918, which requires that a “civil action . . . must be brought

within 2 years after the cause of action arose.” 46 U.S.C. § 30905. Because the Plaintiffs

did not file their Complaint until November 22, 2019, approximately two years and seven

months after the accident, the United States contends that this action is untimely and

therefore barred by the statute of limitations. The United States asserts in the alternative

that the Court lacks subject matter jurisdiction because the Plaintiffs filed their Complaint

outside the SAA’s two-year statute of limitations or that the case should be dismissed for

failure to state a claim because equitable tolling cannot save their claim. The Plaintiffs

appear to concede that their claims arise exclusively under the SAA because they assert in

their Response that the SAA’s two-year statute of limitations should be tolled on equitable

grounds and request leave to file an Amended Complaint asserting a claim under the SAA.

LEGAL STANDARDS

A motion to dismiss for lack of subject matter jurisdiction under Federal Rule of

Civil Procedure 12(b)(1) “generally take[s] one of two forms: (1) a facial attack on the

sufficiency of the complaint’s allegations as to subject matter jurisdiction; or (2) a

challenge to the actual facts upon which subject matter jurisdiction is based.” Ruiz v.

McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). When jurisdiction is challenged

through a facial attack, the Court considers the allegations in the complaint to be true. Id.

When jurisdiction is challenged through a factual attack, the Court “may not presume the

truthfulness of the complaint’s factual allegations” and “has wide discretion” to consider

documentary and testimonial evidence. Holt v. United States, 46 F.3d 1000, 1003 (10th

Cir. 1995). The burden of establishing subject matter jurisdiction is on the party asserting

it. See Pueblo of Jemez v. United States, 790 F.3d 1143, 1151 (10th Cir. 2015). “A court

lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the

proceedings in which it becomes apparent that jurisdiction is lacking.” Id. (quoting Full

Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013)). Here, the Defendant

appears to be raising a facial attack as to subject matter jurisdiction because the Complaint

was filed outside the applicable statute of limitations.

Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to

dismiss a claim for failure to state a claim upon which relief can be granted. A motion to

dismiss pursuant to Rule 12(b)(6) “requires the court to evaluate the sufficiency of the

plaintiff’s allegations.” Kenney v. Helix TCS, Inc., 939 F.3d 1106, 1109 (10th Cir. 2019).

Rule 12(b)(6) is read in conjunction with Rule 8(a)(2), which requires that a complaint

contain “a short and plain statement of the claims showing that the pleader is entitled to

relief.” Rule 8(a)(2) “does not require ‘detailed factual allegations,’” but does demand

more than “[a] pleading that offers ‘labels and conclusions,’ or a ‘formulaic recitation of

the elements of a cause of action’ . . . or [that] tenders ‘naked assertions’ devoid of ‘further

factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555-57 (2007).

“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

face.” Emps. Ret. Sys. of R.I. v. Williams Cos., Inc., 889 F.3d 1153, 1161 (10th Cir. 2018)

(quoting Iqbal, 556 U.S. at 678). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. In considering a motion to dismiss under Rule

12(b)(6), the Court “must accept all the well-pleaded allegations of the complaint as true

and must construe them in the light most favorable to the plaintiff.” Albers v. Bd. of Cnty.

Comm’rs of Jefferson Cnty., Colo., 771 F.3d 697, 700 (10th Cir. 2014). A defendant may

raise an affirmative defense in a Rule 12(b)(6) motion “when the dates given in the

complaint make clear that the right sued upon has been extinguished.” Sierra Club v.

Oklahoma Gas and Elec. Co., 816 F.3d 666, 671 (10th Cir. 2016). Furthermore, a

complaint is subject to dismissal for failure to state a claim “[i]f the allegations show that

relief is barred by the applicable statute of limitations.” Nunn v. Relich, 642 Fed. Appx.

905, 906, (10th Cir. 2016) (quoting Jones v. Bock, 549 U.S. 199, 215 (2007)). Under this

Rule, the Defendant argues that, even if the SAA’s statute of limitations is not

jurisdictional, the Plaintiffs have failed to state a claim for relief because they have not met

the requirements for equitable tolling sufficient to allow their claims to proceed. For the

reasons set forth below, the Court finds that the Plaintiffs’ Complaint should be dismissed

for failure to state a claim.

ANALYSIS

Under 28 U.S.C. § 1333(1), “[t]he district courts shall have original jurisdiction,

exclusive of the courts of the States, of . . . [a]ny civil case of admiralty or maritime

jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise

entitled.” The SAA waives the United States’ sovereign immunity for maritime torts

committed by its agents in cases where a civil action in admiralty could be brought against

a private individual. See 46 U.S.C. § 30903; Tew v. United States, 86 F.3d 1003, 1004-05

(10th Cir. 1996). To invoke federal admiralty jurisdiction over a tort claim, a party ‘“must

satisfy conditions both of location and of connection with maritime activity.’” U.S.

Aviation Underwriters, Inc. v. Pilatus Business Aircraft, Ltd., 582 F.3d 1131, 1139 (10th

Cir. 2009) (quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock, Inc., 513 U.S.

527, 534 (1995)). See also Exec. Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S.

249 (1972); Foremost Ins. Co. v. Richardson, 457 U.S. 668 (1982); Sisson v. Ruby, 497

U.S. 358 (1990). Here, the parties both appear to agree that the SAA applies to this case,

and the Court agrees. As such, the central question the Court must first address is whether

the statute of limitations under the SAA is jurisdictional. For the reasons set forth below,

the Court concludes that it is not.

Under the SAA, actions against the United States must be brought no later than two

years after the cause of action arises. See 46 U.S.C. § 30905. A cause of action arises

under the SAA on the date of the injury. McMahon v. United States, 342 U.S. 25, 27 (1951)

(“[W]e think it clear that the proper construction of the language used in the Suits in

Admiralty Act is that the period of limitation is to be computed from the date of the

injury.”). It is undisputed that the injuries in this case were sustained on April 23, 2017,

and that the Plaintiffs filed the instant action on November 22, 2019, nearly seven months

after the expiration of the two-year limitations period. Therefore, the Plaintiffs claims are

time-barred unless the statute of limitations was tolled. The Plaintiffs contend that the two-

year statute of limitations under the SAA should be equitably tolled because the

government’s actions led them to delay filing their Complaint, but the statute of limitations

is only subject to equitable tolling if it is not a jurisdictional requirement.

When a statute of limitations is jurisdictional, “a litigant’s failure to comply with

the bar deprives a court of all authority to hear a case,” United States v. Kwai Fun Wong,

575 U.S. 402, 408-09 (2015). If the limitations period in the SAA is not jurisdictional,

then and only then is it presumptively subject to the doctrine of equitable tolling. See

Barnes v. United States, 776 F.3d 1134, 1144-45 (10th Cir. 2015) (“[W]here Congress has

created a waiver of sovereign immunity filing deadlines related to that waiver are

presumptively subject to such doctrines as equitable tolling. . .‘We therefore hold that the

same rebuttable presumption of equitable tolling applicable to suits against private

defendants should also apply to suits against the United States [.]’”) (quoting Irwin v. Dept.

of Veterans Affairs, 498 U.S. 89, 95-96 (1999). The circuits are split as to whether the

statute of limitations under the SAA is jurisdictional, but a majority of the Courts of

Appeals that have addressed the issue have ruled that the limitations period under the SAA

is not jurisdictional, and therefore is subject to equitable tolling. Compare Wilson v. United

States Gov’t., 23 F.3d 559, 561-62 (1st Cir. 1994) (stating that the doctrine of equitable

tolling applies to the SAA); Hedges v. United States, 404 F.3d 744, 747-50 (3rd Cir. 2005)

(same); Favorite v. Marine Pers. and Provisioning, Inc., 955 F.2d 382, 389 (5th Cir. 1992)

(same); Raziano v. United States, 999 F.2d 1539, 1540-41 (11th Cir. 1993) (same); with

Smith v. United States, 873 F.2d 218, 221 (9th Cir. 1989) (classifying the limitations period

under the SAA as jurisdictional and holding that it cannot be extended for any reason); and

Szyka v. United States Sec’y of Defense, 525 F.2d 62, 65 (2nd Cir. 1975) (holding that the

limitations period under the SAA is a jurisdictional limitation not subject to waiver).

Although the Supreme Court has not specifically resolved whether the limitations

period in the SAA is jurisdictional, recent Supreme Court precedent also supports a finding

that § 30905 is not jurisdictional. “In recent years,” the Supreme Court has “repeatedly

held that procedural rules, including time bars, cabin a court’s power only if Congress has

clearly stated as much.” Kwai Fun Wong, 575 U.S. at 409 [internal quotation and citation

omitted]. See also, e. g., Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435-36

(2011); Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161-62 (2010). “[A]bsent such a

clear statement, we have cautioned, ‘courts should treat the restriction as nonjurisdictional

in character.’” Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 155 (2013) (quoting

Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006)). The Supreme Court has therefore

“made plain that most time bars are nonjurisdictional[,]” explaining that “Congress must

do something special, beyond setting an exception-free deadline, to tag a statute of

limitations as jurisdictional and so prohibit a court from tolling it.” Kwai Fun Wong, 575

U.S. at 410. Id. In applying this rule, the Supreme Court held that the time limitations

under § 2401(b) of the FTCA are not jurisdictional requirements. Id. at 412. 1

The Tenth Circuit has not directly addressed the nature of the limitations period in

the SAA but has held that the limitations periods for nontort civil actions against the federal

government in 28 U.S.C. § 2401(a) are not jurisdictional. See Chance v. Zinke, 898 F.3d

1 The Supreme Court has applied this “clear statement rule” to find that a wide variety of time

limitations and other procedural rules are not jurisdictional. See, e. g., Henderson, 562 U.S. at 431

(holding that the filing deadline under 38 U.S.C. §7266(a) to appeal a decision from the Board of

Veterans’ Appeals to the United States Court of Appeals for Veterans Claims is not jurisdictional);

Reed Elsevier, 559 U.S. at 157 (holding that the registration requirement under §411(a) of the

Copyright Act is “a precondition to filing a claim that does not restrict a federal court’s subject-

matter jurisdiction.”); Arbaugh, 546 U.S. at 516 (holding that the minimum size requirement for

employer coverage under Title VII is not a jurisdictional bar to a Title VII lawsuit); Auburn Reg’l,

568 U.S. at 148-49 (holding that the filing deadline for administrative appeal from a denial of

certain Medicare reimbursements is not a jurisdictional bar to appeal).

1025, 1033 (10th Cir. 2018) (“Given the [Supreme] Court’s strong recent emphasis on

limiting jurisdictional bars and its unusually frank recognition in John R. Sand [& Gravel

Co. v. United States, 552 U.S. 130] and Kwai Fun Wong that stare decisis and stare decisis

alone renders § 2501 jurisdictional, we conclude that § 2401(a) isn’t jurisdictional.”). The

Tenth Circuit has also recently held that the statute of limitations for benefit claims under

the Black Lung Benefits Act in 30 U.S.C. § 932(f) is not a jurisdictional requirement. See

Big Horn Coal Co. v. Sadler, 924 F.3d 1317, 1323 (10th Cir. 2019) (“The Secretary’s

interpretation that the BLBA’s statute of limitations may be tolled in extraordinary

circumstances is reasonable because section 932(f) is nonjurisdictional and therefore

subject to a presumption that equitable tolling is permitted.”).

In light of this Supreme Court and Tenth Circuit precedent, the Court finds that the

limitations period in the SAA is not jurisdictional, and this case should not be dismissed

for lack of subject matter jurisdiction. Like the FTCA, the SAA’s statute of limitations

addresses only the timeliness of a claim; “it does not refer to the jurisdiction of the district

courts or address those courts’ authority to hear untimely suits.” Kwai Fun Wong, 575 U.S.

at 403 [citations omitted]. Additionally, Congress separated the statute of limitations in

the SAA from the jurisdictional grant (found at 28 U.S.C. § 1333(1)), just as it did with the

FTCA, and such separation “often indicates that the deadline is not jurisdictional.” Id. See

also Chance, 898 U.S. at 1033 (finding that the separation of the statute of limitations from

the jurisdictional grant “demonstrates that § 2401(a) was designed to serve as a standard,

mine-run statute of limitations without jurisdictional qualities.”).

Because the limitations period in the SAA is not jurisdictional, the question becomes

whether the two-year limitations period should be equitably tolled in this specific case. If

equitable tolling does not apply, the Complaint falls outside the statute of limitations and

the Plaintiffs have failed to state a claim for which relief can be granted. “Equitable tolling

is granted sparingly.” Chance, 898 F.3d at 1034 (quoting Impact Energy Res., LLC v.

Salazar, 693 F.3d 1239, 1246 (10th Cir. 2012)). Whether to grant equitable tolling is a

discretionary matter for the district court. Chance, 898 F.3d at 1034. Under “long-settled

equitable-tolling principles, generally, a litigant seeking equitable tolling bears the burden

of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstances stood in his way.” Id. See also Holland v. Florida, 560

U.S. 631, 649 (2010). The “diligence prong . . . covers those affairs within the litigant’s

control” whereas the “extraordinary circumstances prong . . . is meant to cover matters

outside its control.” Menominee Indian Tribe of Wisconsin v. United States, 136 S.Ct. 750,

756 (2016). Extraordinary circumstances that could warrant equitable tolling include

“when the defendant’s conduct rises to the level of active deception; where a plaintiff has

been lulled into inaction by a defendant, and likewise, if a plaintiff is actively misled or has

in some extraordinary way been prevented from asserting his or her rights.” Impact Energy

Res., LLC, 693 F.3d at 1246 (quoting United States v. Clymore, 245 F.3d 1195, 1199 (10th

Cir. 2001)).

The Complaint filed by the Plaintiffs in this case plausibly alleges neither their own

diligence nor the existence of any extraordinary circumstances. The Complaint does allege

the filing of administrative claims with the USACE in compliance with 28 U.S.C. § 2675,

which is a prerequisite to any suit under the FTCA, but the SAA has neither an

administrative prerequisite nor a provision that tolls the limitations period when an

administrative claim is filed.2 “It is well-established that the filing of an administrative

claim under the FTCA will not toll the limitations period for an action under the SAA.”

Ayers v. United States, 277 F.3d 821, 828 (6th Cir. 2002) (citing McMahon, 342 U.S. at

27). See also Rashidi v. Am. President Lines, 96 F.3d 124, 127 (5th Cir. 1996) (stating that

“the mere filing of an administrative claim does not toll [the] limitations” period under the

SAA). Thus, the statute of limitations for the Plaintiffs’ claims under the SAA continued

to run while they pursued administrative remedies for their claims pursuant to the FTCA.

Despite their timely filed administrative claims under the FTCA, the Plaintiffs failed to

diligently research the existence of a possible claim under the SAA, which the Court deems

a “‘garden variety claim of excusable neglect’ to which we cannot extend equitable relief.”

Hedges, 404 F.3d at 754 (quoting Irwin, 498 U.S. at 96). See also Ayers, 277 F.3d at 829

(“Diligent research was likely to have revealed not only the existence of a possible claim

under the SAA, but also that the limitations periods for that action would most likely not

be tolled by the filing of [Plaintiffs’] administrative claim[s].”).

The Plaintiffs argue that the statute of limitations should be equitably tolled because

the USACE induced them to believe that the statute of limitations was tolled indefinitely

2 The Admiralty Extension Act (46 U.S.C. § 30101), the Clarification Act (50 U.S.C. §§ 4701-

4705), and the Contracts Disputes Act (41 U.S.C. §§ 601-613) contain administrative claims

prerequisites that plaintiffs must follow before filing suit under the SAA. The Plaintiffs’ claims

in this case arise directly under the SAA and do not invoke any other statutes, there is therefore no

administrative claim prerequisite here.

or until the USACE took final administrative action on their claims and encouraged them

to refrain from filing suit if satisfactory progress was being made in the administrative

claims process. This argument is based upon correspondence from the USACE submitted

to the Court for the first time as attachments to their response to the motion to dismiss. See

Docket No. 15, Ex. 1, pp. 1-10. Inasmuch as this correspondence was not attached to the

Complaint (or even referred to therein), the Court elects not to consider it or any argument

based thereon and thereby convert the motion to dismiss into one for summary judgment

under Fed. R. Civ. P. 56. See, e. g., Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th

Cir. 2007) (“In general, a motion to dismiss should be converted to a summary judgment

motion if a party submits, and the district court considers, materials outside the

pleadings.”) [emphasis added].

In conclusion, the Court finds that the Plaintiffs have failed to plausibly allege in

their Complaint any basis for application of equitable tolling to the statute of limitations in

this case, and the Defendant’s motion to dismiss should therefore be granted. The Plaintiffs

urge the Court to grant them leave to amend the Complaint, which would of course be futile

unless the Plaintiffs could demonstrate a basis for applying equitable tolling to their claim

under the SAA. See, e. g., Jefferson Cty. Sch. Dist. No. R-1 v. Moody’s Inv. Servs., Inc.,

175 F.3d 848, 859 (10th Cir. 1999) (“Although Fed. R. Civ. P. 15(a) provides that leave to

amend shall be given freely, the district court may deny leave to amend where amendment

would be futile. . . A proposed amendment is futile if the complaint, as amended, would be

subject to dismissal.”). On the other hand, amendment might permit the Court to reconsider

the Plaintiffs’ equitable tolling argument in light of the correspondence excluded above, if

the Plaintiffs attach such correspondence to the amended complaint and include additional

allegations that explain how the correspondence misled them or otherwise prohibited them

from timely asserting their claims under the SAA. It is doubtful that the correspondence

standing alone would justify equitable tolling in this case, but the issue has not been fully

addressed and the Court is therefore reluctant to conclude at this juncture that amendment

would be futile. Consequently, the Plaintiffs are hereby granted leave to file an amended

complaint within fourteen days setting forth their claims under the SAA and alleging any

basis not heretofore addressed for application of the doctrine of equitable tolling.

For the reasons set forth above, IT IS HEREBY ORDERED that the United States

of America’s Motion to Dismiss and Brief in Support [Docket No. 11] is GRANTED for

failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6)

but otherwise DENIED. IT IS FURTHER ORDERED that the Plaintiffs shall file any

amended complaint as set forth above within fourteen days.

DATED this 25th day of September, 2020.

______________________________________

STEVEN P. SHREDER

UNITED STATES MAGISTRATE JUDGE