Jones v. USA

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-03357-KAS
DUSTIN JONES,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Defendant’s Motion to Dismiss [#12] (the
“Motion”). Plaintiff filed a Response [#21] and Defendant filed a Reply [#22]. The Court
has reviewed the briefing, the entire case file, and the applicable law. For the following
reasons, the Motion [#12] is GRANTED IN PART and DENIED IN PART.1
I. Background
This Federal Tort Claims Act (FTCA) action arises from a May 13, 2021 incident
that occurred at Buckley Space Force Base (“Buckley”), located in Aurora, Colorado.2
Compl. [#1], ¶ 13. Plaintiff Dustin Jones was lawfully on Buckley’s premises but was “not
in military service.” Id., ¶¶ 13, 15. At that time, the U.S. Air Force maintained and
controlled vehicle security barriers at Buckley’s Mississippi Gate entrance. Id., ¶ 14.
1 The parties consented to proceed before the undersigned for all proceedings pursuant to 28
U.S.C. § 636(c) and D.C.COLO.LCivR 72.2. See Consent [#16]; Order of Reference [#17].
2 Plaintiff erroneously alleges that Buckley is located in Colorado Springs, Colorado. Compl. [#1],
¶ 13.
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Plaintiff alleges that, at around 3:04 p.m. on May 13, 2021, an Air Force agent improperly
deployed a vehicle security barrier, striking his vehicle, causing it to catch fire, and injuring
him. Id., ¶¶ 19-21, 23. Plaintiff’s vehicle was totaled. Id., ¶ 22. Plaintiff had been
“previously parked in plain sight within [Buckley] premises before the incident,” but
“Defendant’s employees or agents lack[ed] awareness of the fact” and made the “hasty
decision to initiate the alert and deploy the barrier, [which] was not grounded in
reasonable judgment or proper assessment of the situation.” Id. ¶ 38; see also id. ¶ 39.
Plaintiff lodges two claims against Defendant, the United States of America: (1) premises
liability under Colo. Rev. Stat. § 13-21-115 and (2) negligence. Id., ¶¶ 1, 24-41.
Plaintiff attached a Letter [#1-1] to his Complaint [#1]. The Letter [#1-1] was written
by Chief Bradford S. Hunt of the Air Force Claims and Tort Litigation Division and
addressed to Plaintiff’s counsel. See Letter [#1-1]. Mr. Hunt reaffirmed a prior denial of
Plaintiff’s FTCA claim because “[Plaintiff] was escorting his spouse onto base for the
purpose of getting her a military dependent ID card, which confers benefits to her
including access to military installation facilities such as the commissary, base exchange,
the gym and other benefits and services.” Id.
Defendant seeks dismissal under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). See Motion
[#12] at 1. The Court stayed discovery pending resolution of the Motion [#12]. See Minute
Order [#18].
II. Legal Standards
A. 	Rule 12(b)(1)
“To survive a 12(b)(1) motion to dismiss, a plaintiff must demonstrate that the court
has subject-matter jurisdiction.” Audubon of Kan., Inc. v. U.S. Dep’t of Interior, 67 F.4th
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1093, 1108 (10th Cir. 2023). “The party invoking federal jurisdiction has the burden to
establish that it is proper, and there is a presumption against its existence.” Salzer v. SSM
Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir. 2014) (internal quotation marks
omitted).
A Rule 12(b)(1) challenge may take two different forms. “The moving party may (1)
facially attack the complaint’s allegations as to the existence of subject matter jurisdiction,
or (2) go beyond allegations contained in the complaint by presenting evidence to
challenge the factual basis upon which subject matter jurisdiction rests.” Maestas v.
Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003). “When resolving a facial attack on the
allegations of subject matter jurisdiction, a court must accept the allegations in the
complaint as true.” Graff v. Aberdeen Enterprizes, II, Inc., 65 F.4th 500, 507 (10th Cir.
2023) (citation omitted). “When the moving party attacks the factual basis for subject
matter jurisdiction, on the other hand, a court ‘may not presume the truthfulness of the
factual allegations in the complaint, but may consider evidence to resolve disputed
jurisdictional facts.’” Id. (quoting SK Fin. SA v. La Plata Cnty., Bd. of Cnty. Comm’rs, 126
F.3d 1272, 1275 (10th Cir. 1997)).
B. 	Rule 12(b)(6)
Rule 12(b)(6) tests “the sufficiency of the allegations within the four corners of the
complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340
(10th Cir. 1994). To survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient
facts, taken as true, to provide ‘plausible grounds’ that discovery will reveal evidence to
support plaintiff’s allegations.” Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th
Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[P]lausibility
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refers to the scope of the allegations in a complaint: if they are so general that they
encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not
nudged their claims across the line from conceivable to plausible.” Khalik v. United Air
Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (internal quotations and citations omitted).
“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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, “[a] pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action will
not do. Nor does the complaint suffice if it tenders naked assertion[s] devoid of further
factual enhancement.” Id. (internal citations and quotation marks omitted).
Under Rule 12(b)(6), a complaint’s sufficiency must usually rest on its allegations
alone. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). A few limited exceptions
to this rule exist, namely: (1) documents that a complaint incorporates by reference; (2)
documents referenced in the complaint if they are central to the plaintiff’s claims and the
parties do not dispute their authenticity; and (3) matters of which the court may take
judicial notice, such as the court’s own files and matters of public record. Id. (citations
omitted); Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006).
III. Analysis
Defendant raises three arguments in favor of dismissal. First, it argues that the
Feres doctrine bars Plaintiff’s claims because he was a reservist and was on base to
obtain military benefits. See Motion [#12] at 5-7. Second, it argues that the discretionary
function exception to the FTCA bars Plaintiff’s claims in light of Air Force Policy Directive
(“Directive”) 31-1 and Space Force Operating Instruction (“Operating Instruction”) 31-118.
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Id. at 8-15. Finally, it argues that Plaintiff failed to state a claim for premises liability and
that he has failed to state a separate negligence claim. Id. at 16-18.
A. 	Conversion from Rule 12(b)(1) or Rule 12(b)(6) Motion into Rule 56
Motion
At the outset, the Court considers whether it must convert Defendant’s Motion
[#12] into one for summary judgment.
“[A] court is required to convert a Rule 12(b)(1) motion to dismiss into a Rule
12(b)(6) 	motion or 	a Rule 	56 	summary 	judgment 	motion 	when 	resolution of 	the
jurisdictional question is intertwined with the merits of the case.” Holt v. United States, 46
F.3d 1000, 1003 (10th Cir. 1995), abrogated on other grounds by Cent. Green Co. v.
United States, 531 U.S. 425, 437 (2001). On that basis, courts regularly convert Rule
12(b)(1) motions that invoke the FTCA’s discretionary function exception. See, e.g.,
Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1129-30 (10th Cir. 1999) (affirming
dismissal of tort claims where lower court converted 12(b)(1) motion into a 12(b)(6)
motion); 	Tippett 	v. 	United 	States, 	108 	F.3d 	1194, 	1196 	(10th Cir. 	1997) 	(noting
requirement that district court convert 12(b)(1) motion into 12(b)(6) motion and, on appeal,
treating motion as one under Rule 56 because matters outside the pleadings were
considered). The Tenth Circuit has repeatedly (though not uniformly) suggested that the
invocation of the Feres doctrine under Rule 12(b)(1) also requires conversion. Cf. Pringle
v. United States, 208 F.3d 1220, 1222, 1223 (10th Cir. 2000) (reasoning that the
dispositive motion should have been decided under Rule 56 where the government raised
the Feres doctrine and FTCA’s discretionary function exception and the court considered
materials outside the pleadings and made factual findings); Gonzalez v. U.S. Air Force,
88 F. App’x 371, 373 (10th Cir. 2004) (stating that a Feres doctrine-based dismissal “is
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not purely jurisdictional, but implicates merits issues as well” and is reviewed under
summary judgment standards); but cf. Ricks v. Nickels, 295 F.3d 1124, 1127, 1133 (10th
Cir. 2002) (affirming lower court’s Rule 12(b)(1) dismissal under the Feres doctrine)
(citation omitted); Tootle v. Dunavan, 107 F. App’x 825, 826 (10th Cir. 2004) (same).
Here, Plaintiff’s status and the reason for his presence on Buckley’s premises are
relevant to both the Feres analysis and whether the discretionary function exception
applies. These facts also potentially go to the merits of his premises liability claim. Given
these two jurisdictional issues which intertwine with the merits, the Court converts the
Motion [#12] to a Rule 12(b)(6) motion and limits its review to materials permissibly
considered under that rule. See, e.g., Daugherty v. United States, 212 F. Supp. 2d 1279,
1304 (N.D. Okla. 2002) (converting Rule 12(b)(1) motion into a Rule 12(b)(6) motion
because the Feres arguments were a facial attack on the complaint and did not rely on
any “extra-complaint evidentiary material”).
Consequently, the Court cannot consider most attachments to the parties’ briefing
or the contested facts they raise in argument. See, e.g., Motion [#12] at 7 (asking the
Court to consider Plaintiff’s prior statement), 13 (asking the Court to consider Staff
Sergeant Timchak’s witness statement); Complainant Statement [#12-1] at 6-7; Staff Sgt.
Timchak Statement [#12-1] at 9-10; Response [#21] at 1-4 (statement of facts, including
details not previously alleged and photographs not found in the Complaint [#1]); Pl.’s
Exhibits [#21-1] (verification of civilian employment), [#21-2] (Plaintiff’s affidavit with more
details surrounding the incident). Instead, the Court accepts as true the non-conclusory
facts alleged in the Complaint [#1] and only considers the Air Force Policy Directive 31-1
[#12-2] 	(“Directive 	31-1”) 	and 	the 	SFS 	Operating 	Instruction 	31-118 	(“Operating
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Instruction 	31-118”), 	see 	[#12-1] 	at 	12-114, 	because 	they 	are 	agency 	rules 	and
regulations of which the Court may take judicial notice and because Plaintiff does not
challenge their authenticity.3 See, e.g., Ray v. Aztec Well Serv. Co., 748 F.2d 888, 889
(10th Cir. 1984) (“This court can take judicial notice of agency rules and regulations.”);
Mancell v. McHugh, No. 13-417 KG/SMV, 2015 WL 13662785, at *2 (D.N.M. Apr. 3, 2015)
(taking judicial notice of an Army regulation).
B. 	Feres Doctrine
The Feres doctrine is a judicially created exception to the FTCA’s waiver of
sovereign immunity, barring claims against the United States “for injuries to servicemen
where the injuries arise out of or are in the course of activity incident to service.” Feres v.
United States, 340 U.S. 135, 146 (1950). The doctrine “‘encompass[es], at a minimum,
all injuries suffered by military personnel that are even remotely related to the individual’s
status as a member of the military.’” Pringle v. United States, 208 F.3d 1220, 1223-24
(10th Cir. 2000) (quoting Persons v. United States, 925 F.2d 292, 296 n.7 (9th Cir. 1991))
(alteration and emphasis in original). In Pringle, the Tenth Circuit adopted the following
Ninth Circuit four-factor test to determine whether an activity is “incident to military
service” and is therefore barred by the Feres doctrine: “(1) the place where the negligent
act occurred; (2) the duty status of the plaintiff when the negligent act occurred; (3) the
benefits accruing to the plaintiff because of his status as a service member; and (4) the
3 Plaintiff argues that these policies and procedures were not previously available to Plaintiff and
were not previously mentioned to him, but he does not challenge their authenticity or assert that
they were not in effect at the time of the incident. See Response [#21] at 14-15. Moreover,
Defendant 	has 	authenticated 	Operating 	Instruction 	31-118 	through 	Mr. 	Palma’s 	sworn
declaration. See Decl. of Palma [#12-1] at 3, ¶ 6-7. Directive 31-1 is publicly available online. See
https://static.e-publishing.af.mil/production/1/af_a4/publication/afpd31-1/afpd31-1.pdf 	(opens
PDF containing Directive 31-1) (last visited October 25, 2024).
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nature of the plaintiff’s activities at the time the negligent act occurred.” Id. (citing Dreier
v. United States, 106 F.3d 844, 848 (9th Cir. 1997)).
Active-duty status is not necessary—the “incident to service” test also applies to
reservists. Cf. Quintana v. United States, 997 F.2d 711, 712 (10th Cir. 1993) (holding that
Feres doctrine barred reservist’s medical malpractice claim arising from an injury incurred
in “inactive duty training” because the plaintiff was “entitled” to surgery at the military base
“precisely because of her military status” and military servicemembers performed the
surgery in a military hospital). However, the mere fact that an injured person is or was a
member of the military does not automatically mean that Feres applies. See Newton v.
Lee, 677 F.3d 1017, 1026-30 (10th Cir. 2012) (finding that the Feres doctrine did not bar
a retired National Guardsman’s claim for withdrawal of his air traffic control specialist
certificate because his position as air traffic controller was “a civilian position that did not
require current or prior military service” and “he was a purely civilian employee of the
military whose injuries were unrelated to his prior military service.”).
The Court finds that discovery is needed to determine whether Plaintiff’s “injuries
are incident to . . . [his] . . . service in the military,” as opposed to “incident to . . . [his]
service to the military.” Newton, 677 F.3d at 1029 (emphasis in original). Because the
Court has converted Defendant’s Motion [#12] into one brought solely under Rule
12(b)(6), the Court accepts as true the non-conclusory facts alleged in the Complaint [#1]
and considers the Air Force Claims and Tort Litigation Division’s Letter [#1-1] upholding
the denial of Plaintiff’s FTCA claim. The Complaint itself lacks any allegations as to the
reasons for Plaintiff’s presence at Buckley but states that Plaintiff was “not in military
service” at the time. See, e.g., Compl. [#1] ¶ 13 (“Plaintiff was lawfully on the subject
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premises of the Buckley Air Force Base”), ¶ 15 (“Plaintiff was not in military service and
was an ‘invitee’ on the premises of the Buckley Air Force Base”), ¶ 26 (“Plaintiff was a
civilian ‘invitee’ of Defendant”). The Letter [#1-1] attached to the Complaint acknowledges
that Plaintiff “was not on active duty at the time of the injury,” but indicates that Plaintiff
was “escorting his spouse onto base for the purpose of getting her a military dependent
ID card, which confers benefits to her including access to military installation facilities[.]”
Based on the facts alleged in the Complaint and incorporated by reference to the
Letter [#1-1], the Complaint’s four corners and attachments address only two of the four
Pringle factors: the location of the negligent act and Plaintiff’s duty status at the time. The
incident occurred on a military base and Plaintiff was not on active duty at the time.
However, the Complaint and letter are unclear as to the benefit that accrued to Plaintiff
because of his status as a (reservist) service member and the nature of Plaintiff’s activities
at the time of the incident, i.e., whether Plaintiff’s activities were related to his service
member status. The Court is mindful that “[i]njuries cannot arise ‘incident to service’ if a
plaintiff’s claims are wholly unrelated to his current or former military service.” Newton,
677 F.3d at 1029.
For reasons already discussed, the Court declines the parties’ invitation to
consider competing materials attached to the parties’ briefs and to resolve these material
factual disputes. The Court cannot accept this invitation under Rule 12(b)(6). Cf. Brokers’
Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135-36 (10th Cir. 2014)
(stating that the Court’s function under Rule 12(b)(6) is not to weigh potential evidence,
but to assess a pleading’s legal sufficiency).
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While the Feres doctrine is jurisdictional, here, it is intertwined with material factual
disputes that the Court cannot currently resolve. Cf. Pringle, 208 F.3d at 1223 & n.3
(explaining that both the Feres doctrine and discretionary function exception should be
decided on summary judgment where jurisdictional questions implicate merits issues);
Gonzalez, 88 F. App’x at 373-74 (reviewing dismissal under Feres to determine whether
there were genuine issues of material fact). Accordingly, Defendant’s Motion [#12] is
denied without prejudice as to the Feres doctrine. Defendant may raise the issue anew
at the appropriate time in a Rule 56 motion.
C. 	Discretionary Function Exception
Defendant also argues that Plaintiff’s claims are barred by the “discretionary
function exception” to the FTCA, codified at 28 U.S.C. § 2680(a). Motion [#12] at 8-15.
Plaintiff argues that the exception does not apply to the Air Force agent or employee’s
decision to implement a safety policy by negligently deploying vehicle barriers. Response
[#21] at 10-14. Alternately, Plaintiff argues that the applicability of the exception cannot
be determined solely on a Rule 12(b) motion to dismiss. Id. at 14-15.
1. 	Applicable Law
The FTCA’s waiver of sovereign immunity does not apply to
[a]ny 	claim 	based 	upon 	an 	act 	or 	omission 	of 	an 	employee of 	the
Government, exercising due care, in the execution of a statute or regulation,
whether or not such statute or regulation be valid, or based upon the
exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused.
28 U.S.C. § 2680(a).
When considering whether the discretionary function exception applies, courts
apply a two-prong test. See Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531,
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536 (1988). First, the court considers “whether the action is a matter of choice for the
acting employee.” Id. Thus, the exception does not apply “when a federal statute,
regulation, or policy specifically prescribes a course of action for the employee to follow.”
Id. If a particular course of action is prescribed, “the employee has no rightful option but
to adhere to the directive.” Id. Second, “assuming that the challenged conduct involves
an element of judgment, a court must consider whether that judgment is of the kind that
the 	discretionary 	function 	exception 	was 	designed 	to 	shield.” 	Id. 	Therefore, 	“the
discretionary function exception insulates the Government from liability if the action
challenged in the case involves the permissible exercise of policy judgment.” Id. at 537.
This holds true even if the alleged conduct was negligent. Id. at 537-38; see also Tippett
v. United States, 108 F.3d 1194, 1196 (10th Cir. 1997) (affirming dismissal of negligence
claim under the FTCA as barred by the discretionary function exception).
Contrary to Plaintiff’s argument, in this Circuit, a plaintiff bears the burden to show
that the exception does not apply; the government does not bear the burden to show that
it does. See Response [#21] at 11 (arguing that the discretionary function exception is an
affirmative defense, citing Whisnant v. United States, 400 F.3d 1177, 1181 (9th Cir.
2005)); but see Knezovich v. United States, 82 F.4th 931, 942 (10th Cir. 2023) (noting
presumption that a government agency’s acts are grounded in policy absent a mandatory
statute, regulation, or policy, and articulating the plaintiff’s burden); Garcia v. U.S. Air
Force, 533 F.3d 1170, 1175 (10th Cir. 2008) (stating that the discretionary function
exception creates a jurisdictional prerequisite to suit and plaintiffs bear the burden of
establishing subject matter jurisdiction) (citation omitted).
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Finally, Plaintiff attempts to distinguish between “decisions made at the ‘planning
level,’ as well as operational decisions that involve the exercise of discretion” and
“operational or ministerial level decisions that are negligent or do not involve policy
considerations.” Response [#21] at 10. This section of Plaintiff’s argument cites only Ninth
Circuit cases and one D.C. Circuit case from 1955,4 but the Tenth Circuit draws no such
distinction. Id. at 10-14 (citations omitted); but see Harrell v. United States, 443 F.3d 1231,
1237 (10th Cir. 2006) (explaining that Supreme Court precedent has “foreclosed the
distinction between high-level policy setting and low-level operational decisions”) (citing
United States v. Gaubert, 499 U.S. 315, 325 (1991) (“Discretionary conduct is not
confined to the policy or planning level.”). Instead, “it is the nature of the conduct, rather
than the status of the actor, that governs whether the discretionary function exception
applies in a given case.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense
(Varig Airlines), 467 U.S. 797, 813 (1984).
2. 	Directive 31-1 and Operating Instruction 31-1185
Defendant points to two policies, Directive 31-1 and Operating Instruction 31-118.
See Motion [#12] at 9-11. Directive 31-1 establishes a framework for Air Force security
measures and installations at its facilities. See Directive 31-1 [#12-2] at 2-3 (preamble).
Compliance with the directive is mandatory and “[t]he terms ‘must,’ ‘shall,’ and “will”
denote mandatory actions.” Id. at 1. In its policy section, the directive explains that
4 Plaintiff states that “the 10th Circuit in Friday v. United States distinguished decisions made at
the operational versus those made at the planning level. 239 F.2d 701 (10 th Cir. 1957).” See
Response [#21] at 13. However, Friday was a Ninth Circuit case, not a Tenth Circuit case. See
Friday v. United States, 239 F.2d 701 (9th Cir. 1957).
5 As previously discussed, the Court may take judicial notice of these policies and procedures.
See Mancell v. McHugh, No. 13-417 KG/SMV, 2015 WL 13662785, at *2 (D.N.M. Apr. 3, 2015)
(taking judicial notice of an Army regulation).
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“[p]rotecting and defending Air Force Installations is a strategy[.]” Id. at 3, § 2.1.
Installation 	commanders’ 	roles 	and 	responsibilities 	include 	“[m]inimiz[ing] 	mission
degradation from threat activity within [Buckley’s] boundary and . . . loss of life and injury
from threat activity and natural events; and protect[ing] government property and
personnel from natural disasters, hostile, and criminal acts.” Id. at 9, § 3.12.1.
SFS Operating Instruction 31-118 (“Operating Instruction 31-118”) is a since-
rescinded local implementation of Directive 31-1, applied “to all [460th Security Forces
Squadron] 	personnel 	performing 	law 	enforcement 	duties 	on 	Buckley 	AFB[.]” 	See
Operating Instruction 31-118 [#12-1] at 12. Compliance with Operating Instruction 31-118
was mandatory. Id. In part, it states that Security Forces personnel “will control access to
the installation . . . and ensure only authorized personnel are allowed access[.]” Id. at 32,
§ 4.1. Operating Instruction 31-118 includes a section on pop-up vehicle barrier rules of
engagement. See id. at 106-08, Attachment 9. These rules of engagement were “not
intended to replace sound personal judgment, nor do they provide an all-inclusive list of
circumstances requiring a decision to employ the pop-up vehicle barriers.” Id. at 106, §
A9.1.
Operating Instruction 31-118 provided that “[b]arriers at the installation [entry
control point] (IECP) will be down at all times during normal operating hours for the IECP,
unless being deployed.” Id. at 107, § A9.3.1.1.1. This section is followed by five protocols
for 	deploying 	barriers: 	non-hostile 	employment, 	hostile 	employment, 	gate 	closure
employment, standard barrier operational testing procedures, and certain “Increased
Force Protection Condition (FPCON) Operations”. Id. at 107-08, §§ A9.3.1.2. – A9.5.5. In
part, Operating Instruction 31-118 states:
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A.9.3.1.2. Non-Hostile Employment
A.9.3.1.2.1. The barrier will be employed for any unauthorized non-
hostile entry onto base. The entry controller is responsible for
determining if an unauthorized entry is hostile or not. For a non-
hostile act, the entry controller will activate the barriers by pressing
the button labeled ‘up.’ This button raises the barrier along with
utilizing safety sensors located around the barrier.
A.9.3.1.3. Hostile Employment
A.9.3.1.3.1. The barrier will be employed for any unauthorized
hostile entry onto base. The entry controller is responsible for
determining if an unauthorized entry is hostile or not. An example of
a hostile entry onto base would be the use of a weapon when
entering, or extremely aggressive actions of the driver to gain
unauthorized entry onto base. The entry controller will activate the
barrier in an emergency situation by lifting up the switch safety guard
and activating the emergency toggle switch. Emergency activation
disregards all safety features of the barrier, and can potentially cause
severe injury to innocent drivers.
Id. at 107, § A9.3.1. (Installation Entry Control Point Procedures).
3. 	Failure to Exercise Reasonable Care/Failure to Protect
Plaintiff alleges that Defendant failed to exercise reasonable care and failed to
protect him from a dangerous condition on the property, based on the gate agent’s
initiation of a “Gate Runner” alert and deployment of security barriers. Compl. [#1], ¶¶ 28,
32, 38. The Court must first consider whether the gate agent’s conduct was a matter of
choice. Berkovitz, 486 U.S. at 536. Defendant argues it was: “[N]o federal statute,
regulation, or policy specifically prescribes how the Government should operate the
security 	barriers 	at 	Buckley” 	because 	Operating 	Instruction 	31-118 	“leaves 	the
determination of whether an unauthorized entry is hostile or not to ‘[t]he entry controller.’”
Motion [#12] at 12-13 (citing Operating Instruction 31-118 [#12-1] at 107, § A9.3.1.2.1).
There are two problems with this argument.
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First, Plaintiff claims that his entry onto Buckley on May 13, 2021, was not
unauthorized at all—he alleges he was allowed to be there. See Compl. [#1], ¶ 13
(alleging that Plaintiff was “lawfully on the subject premises”), ¶ 15 (alleging that Plaintiff
was an invitee on the premises); cf. COLO. REV . S TAT. § 13-21-115(7)(a) and (d)
(distinguishing invitees from trespassers, who are on the land of another without the
landowner’s consent). While Operating Instruction 31-118 gave the gate entry agent
discretion to determine whether a particular unauthorized entry is hostile or not before
deploying barriers, it does not give the agent discretion to deploy barriers following an
authorized entry. Security Forces personnel are directed to “control access to the
installation” and “ensure that only authorized personnel are allowed access.” Operating
Instruction 31-118 [#12-1] at 32, § 4.1. Moreover, aside from five specific protocols,
Operating Instruction 31-118 mandates that barriers “will be down at all times during
normal operating hours” unless being deployed. Operating Instruction 31-118 [#12-1] at
107, § A9.3.1.1.1. The Court acknowledges the statement that these rules of engagement
“are not intended to replace sound personal judgment, nor do they provide an all-inclusive
list of circumstances requiring a decision to employ the pop-up vehicle barriers,” but this
is undermined by mandatory language in the following subsections. Id. at 106, § A9.1.
Barrier employment is expressly governed by the “procedures listed below” and, under
normal 	FPCON 	operations, 	“[b]arriers 	will 	be 	operated 	using 	routine/emergency
procedures.” Id. at 107, § A9.3; id. at 108, § A9.5.1 (emphasis added). At nearly every
turn—except for a determination as to whether an unauthorized entry is hostile or not—
these mandatory protocols restrict gate agents’ discretion. An agent’s decision to deploy
emergency barriers in response to an authorized entry does not appear to be a matter of
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choice under the applicable directive because the directive does not contemplate
deploying barriers in that situation. Cf. Berkovitz, 486 U.S. at 536.
Second, even if the entry controller believed Plaintiff’s entry was unauthorized, as
Defendant argues, Operating Instruction 31-118 still gave her no discretion in whether to
deploy barriers. See Motion [#12] at 13. Admittedly, Operating Instruction 31-118 gives
the gate agent responsibility (and, therefore, discretion) to determine whether a particular
unauthorized entry is hostile or not. Operating Instruction 31-118 [#12-1] at 107, §§
A9.3.1.2.1 (“The entry controller is responsible for determining if an unauthorize entry is
hostile or not.”), A9.3.1.3.1 (same). No matter what she decides, however, she still must
deploy the barriers. See Operating Instruction 31-118 [#12-1] at 107, §§ A9.3.1.2.1 (“The
barrier will be employed for any unauthorized non-hostile entry onto base.”) (emphasis in
original), A9.3.1.3.1 (“The barrier will be employed for any unauthorized hostile entry
onto base.”) (emphasis in original). To be sure, emergency barrier deployment in a hostile
situation apparently “disregards all safety features” and is therefore potentially more
dangerous than barrier deployment in a non-hostile situation. See Operating Instruction
31-118 [#12-1] at 107, § 9.3.1.3.1. However, Operating Instruction 31-118 makes clear
that the entry controller’s discretion is limited to determining hostility, and once she makes
that determination, her next action—deploying the barriers—is mandatory. Plaintiff is
challenging the gate agent’s mandatory barrier deployment, not her discretionary hostility
determination. See Compl. [#1] at ¶ 38 (alleging an “unnecessary deployment of the
security barrier”). The “policy specifically prescribe[d] a course of action for an employee
to follow” when faced with of an unauthorized entry, and the agent “had no rightful option
but to adhere to the directive.” Berkovitz, 486 U.S. at 536. Because the gate agent’s
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conduct was mandatory, “there is no discretion in the conduct for the discretionary
function exception to protect.” Id. Defendant’s invocation of the discretionary function
exception as to barrier deployment fails at the first prong.
In summary, viewing the allegations in the light most favorable to Plaintiff at the
Rule 12(b)(6) stage, the discretionary function exception does not clearly apply to the
entry controller’s conduct. As with the Feres doctrine, the Court recognizes that discovery
is needed and that the discretionary function exception may be supported on a more
developed record. Therefore, Defendant’s Motion [#12] is denied without prejudice as
to the discretionary function exception and Plaintiff’s failure-to-protect and failure to
exercise reasonable care theories of premises liability. Defendant may raise the issue
anew at the appropriate time in a Rule 56 motion.
4. 	Failure to Warn
Plaintiff also alleges that Defendant failed to warn about the dangerous condition
caused by the vehicle barriers. See Compl. [#1], ¶ 29. Defendant argues that Plaintiff’s
failure-to-warn claim is barred by the discretionary function exception. See Motion [#12]
at 15 (citing Ball v. United States, 967 F.3d 1072, 1080 (10th Cir. 2020)). On this point,
the Court agrees with Defendant.
An agency’s failure to warn is distinct from its alleged failure to follow policy which
results in a dangerous condition. See, e.g., Johnson v. U.S. Dep’t of Interior, 949 F.2d
332, 337 (10th Cir. 1991) (stating that the plaintiff’s “failure to warn claim should be
analyzed separately from the alleged failure to adequately regulate mountain climbing”);
Zumwalt v. United States, 928 F.2d 951, 955 (10th Cir. 1991) (agreeing that the plaintiff’s
failure to warn claim should be considered separately from an alleged failure to implement
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policies). The discretionary function exception bars a failure to warn claim unless the
plaintiff can show that the government’s inaction was completely disconnected from the
policy decisions that created a particular hazard. Zumwalt, 928 F.2d at 955; see also
Johnson, 949 F.2d at 338 (“In the absence of facts indicating the failure to post additional
warnings was a distinct, nonpolicy decision, we conclude that [the p]laintiff’s failure to
warn claim is barred by the discretionary function exception.”).
For example, in Ball v. United States, the court dismissed the plaintiff’s failure to
warn claim against the United States Forest Service, concluding that the Service’s “need
to balance limited financial and human resources, public safety, and scenic preservation
in creating and executing its safety and maintenance plan for off-road hazards” rendered
its alleged failure to erect security barriers or warning signs “squarely the type of decision
that the discretionary-function exception aims to protect from ‘judicial second-guessing.’”
Ball, 967 F.3d at 1082 (quoting Berkovitz, 486 U.S. at 536-37).
Here, Plaintiff does not allege that any policy or practice requires the Air Force to
warn entrants of security measures on base. Because Plaintiff has not identified any
mandatory policy, statute, or regulation, the government has satisfied the first prong of
the discretionary function exception as to the alleged failure to warn. Berkovitz, 486 U.S.
at 536.
As for the second prong, whether the decision involved “the permissible exercise
of policy judgment,” id. at 537, the Directive and Operating Instruction clearly show that
the Air Force has a policy of “[p]rotecting and defending Air Force Installations”;
“[m]inimiz[ing] mission degradation from threat activity within [Buckley’s] boundary”; and
“control[ling] access to the installation . . . and ensur[ing] only authorized personnel are
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allowed access.” Directive 31-1 [#12-2] at 3, § 2.1 and 9, § 3.12.1; Operating Instruction
31-118 [#12-1] at 32, § 4.1. As Defendant argues, the Air Force could reasonably make
a policy decision that its installations’ safety features are more effective without warning
signs or announcements, and it would not be the Court’s place to review that decision.
See Motion [#12] at 15. The Air Force’s decision not to warn would-be trespassers is
therefore directly connected to the same policy decision (i.e., implementation of security
features) that created the dangerous condition (i.e. deployable vehicle barriers at
Buckley). Cf. Zumwalt, 928 F.2d at 955. Because Plaintiff has not shown that Defendant’s
failure to warn was a distinct, nonpolicy decision, the Motion [#12] is granted in part as
to the discretionary function exception, and Plaintiff’s failure-to-warn theory of premises
liability is dismissed without prejudice. See, e.g., Garcia, 533 F.3d at 1175 (noting that
the discretionary function exception is jurisdictional); Brereton v. Bountiful City Corp., 434
F.3d 1213, 1218 (10th Cir. 2006) (stating, “dismissals for lack of jurisdiction should be
without prejudice because the court, having determined that it lacks jurisdiction over the
action, is incapable of reaching a disposition on the merits”) (emphasis in original).
D. 	Failure to State a Claim
1. 	Premises Liability
Under the Colorado Premises Liability Act, “an invitee may recover for damages
caused by the landowner’s unreasonable failure to exercise reasonable care to protect
against dangers the landowner actually knew about or should have known about.” COLO.
REV . S TAT. § 13-21-115(4)(c)(1). Plaintiff alleges that he was an “invitee” on Buckley’s
premises. Compl. [#1] ¶ 15. In this context, an “invitee” is “a person who enters or remains
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on the land of another to transact business in which the parties are mutually interested[.]”
COLO. REV . S TAT. § 13-21-115(7)(a).
Defendant argues that Plaintiff has failed to state a premises liability claim because
he has not alleged sufficient non-conclusory facts. Motion [#12] at 18. Specifically,
Defendant asserts Plaintiff alleges in a conclusory fashion that there was a “misuse of the
gate security system” or that “a security barrier was improperly deployed and struck
[Plaintiff’s] vehicle.” Id. (citing Compl. [#1], ¶¶ 27, 19). The Court disagrees. Plaintiff’s
allegations are not detailed but the terms “misuse” and “improper” are not legal
conclusions and Plaintiff’s theory of premises liability does not require the Court to draw
any unwarranted or unreasonable inferences.
Plaintiff alleges that he was lawfully on Buckley property and that his car had been
parked in plain sight before the incident, which caused his car to ignite and caused
physical and psychological injury to him. Compl. [#1], ¶¶ 13, 19, 38. Therefore, at this
pleadings stage, the Court can plausibly infer that Defendant’s agent(s) failed to exercise
reasonable care when they created a dangerous condition (by raising security barriers)
on the property even though Plaintiff’s entry was authorized. See id.; Iqbal, 556 U.S. 678.
The bar of legal sufficiency is not a high one, and Plaintiff’s theory of premises liability is
straightforward enough that the Complaint [#1] meets it. Cf. Twombly, 550 U.S. at 565
n.10 (noting that, using model forms, a plaintiff could sufficiently plead negligence by
alleging simply “that the defendant struck the plaintiff with his car while plaintiff was
crossing a particular highway at a specified date and time”). Accordingly, the Motion [#12]
is denied as to Plaintiff’s failure to exercise reasonable care and failure-to-protect
theories of premises liability.
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2. 	Negligence
Defendant argues that Plaintiff’s claim falls within the Colorado Premises Liability
Act’s scope and therefore “cannot be brought as a common law negligence claim[.]”
Motion [#12] at 17. Plaintiff offers no rebuttal, insisting only that his premises liability
claims “are sufficient”. Response [#21] at 15.
Under Colorado law, the Colorado Premises Liability Act provides “an exclusive
remedy against a landowner for injuries which occur as a result of conditions, activities,
or circumstances on the landowner’s property.” Reid v. Berkowitz, 370 P.3d 644, 647
(Colo. App. 2016); see also Vigil v. Franklin, 103 P.3d 322, 328 (Colo. 2004) (explaining
that the Act’s “classification of the duty owed licensees and invitees” is “complete and
exclusive” and “leaves no room for application of common law tort duties”). Plaintiffs often
plead negligence in the alternative, but to sufficiently do so, they must allege facts tending
to show a duty separate from a landowner’s ordinary duties. Cf. Egbert v. Griswold, No.
1:22-cv-02943-SKC-MEH, 2024 WL 4201599, at *5 (D. Colo. Sept. 16, 2024) (dismissing
several (but not all) theories of negligence as abrogated by the Colorado Premises
Liability 	Act); 	Clark 	v. 	Hyatt 	Hotels 	Corp., No. 	1:20-cv-01236-RM-SKC, 	2021 WL
8129700, at *3 (D. Colo. Dec. 13, 2021) (dismissing negligence claim against landowner
for failure to plausibly allege any separate common law duty).
Here, Plaintiff has not alleged that Defendant or its agents owed him any duty other
than the duties any Colorado landowner owes invitees on its land. In fact, his negligence
claims are even framed in the language of premises liability. See Compl. [#1], ¶ 36
(alleging that Defendant “negligently created a dangerous condition on the subject
premises”), ¶ 37 (alleging that “Defendant owed a duty of reasonable care to Plaintiff as
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an invitee on the premises”). Because Plaintiff has not alleged facts that would establish
a separate common law duty, he has not plausibly pleaded negligence in the alternative.
Therefore, the Motion [#12] is granted as to Plaintiff’s negligence claim. Plaintiff’s second
claim is dismissed without prejudice.
IV. Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that the Motion [#13] is GRANTED IN PART and
DENIED IN PART.
IT IS FURTHER ORDERED that Plaintiff’s failure-to-warn theory of premises
liability is DISMISSED WITHOUT PREJUDICE under the FTCA’s discretionary function
exception.6
IT IS FURTHER ORDERED that Plaintiff’s negligence claim is DISMISSED
WITHOUT PREJUDICE.
IT IS FURTHER ORDERED the Motion [#13] is DENIED in all other respects,
without prejudice to Defendant later raising the Feres doctrine or the discretionary
function exception under Rule 56, as appropriate.
IT IS FURTHER ORDERED that the discovery stay in this matter is lifted. An Order
Setting Planning/Scheduling Conference will issue in due course.
Dated: March 31, 2025 	BY THE COURT:
Kathryn A. Starnella
6 Plaintiff’s failure to protect and failure to exercise reasonable care premises liability claims are
not dismissed.
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United States Magistrate Judge
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