Underhill v. Kendall
2:24-cv-00245
D.N.M.Mar 11, 2025Background
- Plaintiff, John David Underhill, is an employee at Cannon Air Force Base who claims he was subject to workplace discrimination, retaliation, and other harms from 2019 to 2020.
- Underhill pursued administrative relief through multiple Inspector General (IG) complaints, discrimination complaints (DD Form 2655), and Equal Employment Opportunity (EEO) proceedings, but did not succeed.
- He filed suit in federal court against Frank Kendall, Secretary of the Air Force, asserting claims under various federal and state statutes, including the FTCA and New Mexico laws.
- Defendant moved to dismiss for lack of subject matter jurisdiction, arguing, among other things, that Underhill failed to exhaust FTCA administrative remedies and did not name the United States as a defendant.
- Underhill sought leave to amend his complaint to add the United States, but did not comply with procedural requirements and, according to the record, did not properly exhaust FTCA procedures.
- The Court found in favor of Defendant, granting the motion to dismiss and denying leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FTCA - Exhaustion of Administrative Remedies | Underhill claims multiple discrimination/IG complaints give sufficient notice and exhaust remedies. | Kendall argues the complaints are for employment discrimination only, not tort claims; FTCA procedures not met. | Dismissed: No FTCA administrative exhaustion |
| Failure to Name United States as Defendant | Underhill tried to amend complaint to name U.S. as party. | Kendall says even if U.S. is added, exhaustion not met; amendment untimely and inadequate. | Denied leave to amend |
| Applicability of State Law (NMTCA/NMCRA) | Underhill argues claims also valid under New Mexico Tort & Civil Rights Acts. | Kendall argues state acts do not waive federal sovereign immunity; not applicable to federal government. | Dismissed: State law not applicable |
| 10 U.S.C. § 1587 as Jurisdictional Basis | Underhill asserts civil rights claims under 10 U.S.C. § 1587. | Kendall responds that § 1587 does not waive sovereign immunity or provide federal court cause of action. | Dismissed: No waiver/private action |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (federal courts are courts of limited jurisdiction)
- Lopez v. United States, 823 F.3d 970 (FTCA is a limited waiver of sovereign immunity requiring notice to the agency)
- United States v. Orleans, 425 U.S. 807 (congressional waiver in FTCA is subject to strict prerequisites)
- Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840 (FTCA exhaustion is a jurisdictional prerequisite)
- McNeil v. United States, 508 U.S. 106 (exhaustion of FTCA requirements is not waivable)