Federal Tort Claims Act

US Prevails in FTCA Suit by Estate of Dr. James Redd

Matthew L.M. Fletcher1 Comment

Here are the materials in Estate of Redd v. United States (D. Utah):

53 US Motion for Summary J

59 Opposition

66 Reply

69 DCT Order

An excerpt:

This case arises out of the tragic suicide of Dr. James D. Redd the day after federal agents arrested him and his wife for theft of tribal property and trafficking in stolen artifacts. The Estate of Dr. James D. Redd, Jeanne Redd, Jay Redd, Jericca Redd, Javalan Redd, Jamaica Redd Lyman, and Jasmine Redd (“Plaintiffs”) brought several tort claims against the United States under the Federal Tort Claims Act (“FTCA”). On the United States’ (“Defendant”) prior motion to dismiss in 2012 (“Rule 12 Order”), the Court dismissed all of Plaintiffs’ claims except for its intentional infliction of emotional distress (“IIED”) and wrongful death claims based on the alleged use of excessive force against Dr. Redd.

In their Complaint, Plaintiffs alleged that Defendant dispatched over 100 heavily armed officers to execute the Redd warrants. Accepting as true Plaintiffs’ allegations, the Court found that the decision to use that amount of force was potentially [3]  unreasonable and therefore nondiscretionary, falling outside the discretionary function exception of the FTCA. Now at the summary judgment stage, the record paints a different picture and supports the entry of judgment in favor of Defendant.

Related proceedings are here.

Federal Tort Claims Act against Seminole Police

Matthew L.M. Fletcher

Here is the complaint in Perez v. Seminole Tribe of Florida (S.D. Fla.):

Complaint

Eighth Circuit Affirms Dismissal of FTCA Claim involving Rosebud Sioux Tribal Police

Matthew L.M. Fletcher

Here is the opinion in Sorace v. United States. 

An excerpt:

Norma Sorace (“Sorace”), Administratix of the Estates of Melanie Sorace and Jahneva Cannaday, a minor, filed suit against the United States of America alleging a claim under the Federal Tort Claims Act (“FTCA”) based upon a drunk-driving accident on the Rosebud Sioux Indian Reservation in South Dakota. Melanie Sorace and Jahneva Cannaday were killed when an intoxicated Shad Dillon (“Dillon”) crashed his pickup into a vehicle driven by Melanie Sorace. Sorace alleges that the Rosebud Sioux Tribe’s Police Department (“RST PD”) was negligent in failing to locate and arrest Dillon prior to the accident. The United States of America (“United States”) filed a motion to dismiss, which the district court1 granted. Sorace appeals, and we affirm.

Eleventh Circuit Holds that Navajo Attorney Assigned to ICWA Matter in Florida Covered by Federal Tort Claims Act

Matthew L.M. Fletcher

Here is the opinion in Colbert v. United States.

Briefs:

1 US Opening Brief

2 Navajo Amicus Brief

3 Colbert Brief

4 US Reply

SCOTUS Holds FTCA’s Time Bars are Subject to Equitable Tolling

Matthew L.M. Fletcher

Here is the opinion in United States v. Kwai Fun Wong. An excerpt:

The Federal Tort Claims Act (FTCA or Act) provides that a tort claim against the United States “shall be forever barred” unless it is presented to the “appropriate Federal agency within two years after such claim accrues” and then brought to federal court “within six months” after the agency acts on the claim. 28 U. S. C. §2401(b). In each of the two cases we resolve here, the claimant missed one of those deadlines, but requested equitable tolling on the ground that she had a good reason for filing late. The Government responded that §2401(b)’s time limits are not subject to tolling because they are jurisdictional restrictions. Today, we reject the Government’s argument and conclude that courts may toll both of the FTCA’s limitations periods.

FTCA/Civil Rights Suit against BIA Officers Enforcing N. Cheyenne Tribal Bench Warrant against Non-Indian Dismissed

Matthew L.M. Fletcher

Here are the materials in the case captioned In re Roberts Litigation (D. Mont.):

33 Federal Motion for Summary J

44 Opposition

45 Federal Reply

54 DCT Order Granting Federal Motion for Summary J

An excerpt:

In order for Roberts’ claim under Bivens to survive, the law must have been sufficiently clear to place a reasonable officer on notice that the Tribal Court acted in complete absence of jurisdiction in issuing the warrants, and that in carrying out the Tribal Court mandate to serve the warrants, reasonable officers would have known they were [8]  engaging in an unlawful act, Existing law permits no such conclusions, notwithstanding Roberts’ contention that the law was clearly established that the Tribal Court lacked criminal jurisdiction over non-Indians under the authority of Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S. Ct. 1011, 55 L. Ed. 2d 209 (1978) and that the officers had personal knowledge that Roberts was a non-Indian.

Roberts’ argument fails to take into account the Northern Cheyenne Tribal Court’s claim of capacity to exercise jurisdiction over non-Indians by consent. It is not necessary, however, for this Court to decide the question of whether a tribal court may exercise such jurisdiction. Rather, the issue is whether the law was so clearly established at the time of Roberts’ arrests that a reasonable officer would have known that the tribal court was wholly without jurisdiction and that he was engaging in a null and void act. Existing law is not sufficiently clear to warrant that conclusion. The jurisdictional issue remains.

The officers were presented with facially valid warrants, they were charged with the responsibility to execute the warrants, and they had a reasonable basis to believe in the validity of the warrants and in the lawfulness of their actions in executing the warrants. They are entitled to qualified immunity for the personal capacity claims brought against them under the Bivens doctrine.

Hopi Member Claim of IHS Administrative Negligence under FTCA Survives Motion to Dismiss

Matthew L.M. Fletcher

Here are the materials in Shortman v. Robideaux (D. Ariz.):

14 IHS Motion to Dismiss

17 Shortman Opposition

24 IHA Reply

28 DCT Order

An excerpt:

In August 2012, Shortman still had not heard from IHS. Walgreens and the Trustees again agreed to cover the cost of Shortman’s medications while IHS completed its eligibility evaluation. Id. By the end of September, Shortman still had not heard from IHS;  Walgreens and the Trustees were growing concerned with continuing to fund her medications. Id. at 10-11. On September 27, 2012, Shortman turned to the White House for help. Id. Representatives from the White House [4]  contacted IHS concerning Shortman’s application for medication. Id. That day, IHS completed the eligibility review process and determined that Shortman was eligible for her medication. Id. By that point, Walgreens, unaware of the decision at IHS, had advanced a month’s supply of medicine for delivery at the Hopi clinic. Id.

US Prevails in Wrongful Death Action/MedMal Brought against Indian Health Service

Matthew L.M. Fletcher

Here are the materials in Archambault v. United States (D. S.D.):

32 US Motion for Summary J

41 Archambault Opposition

45 US Reply

49 DCT Order Granting Summary J to the US

An excerpt:

Plaintiff, in the briefs, has lodged many complaints against the Indian Health Service (“IHS”) and the failures of the United States to live up to treaty obligations. The court sympathizes with the plaintiff. The problems within HIS are well known, at least to those of us with significant contacts with “Indian Country.” I have often observed that Native Americans have been and are being unfairly treated by the United States, considering the failed promises these many years. This court, however, cannot micromanage the IHS or even a single clinic. I cannot dictate how many hours per day or week or month any federal health care provider should be required to be on duty. The court also realizes how very difficult it is for any health care agency to recruit and retain qualified health care providers, especially in rural isolated areas. Living conditions are often sub-standard, especially for highly educated workers. The climate is rather harsh. The ultimate solution is for Native Americans to obtain the necessary education and skills to return to serve their families and others. That process has already started and improvements have been made by dedicated health care providers. Much more remains to be accomplished.

Prior post on this case here.

Partially Split Ninth Circuit Panel Adopts New Two-Part Test to Determing Federal FTCA Liability for Tribal Employee Actions under Self-Determination Compacts

Matthew L.M. Fletcher

Here are the materials in Shirk v. United States:

Opening Brief

U.S. Answer Brief

Reply brief

Shirk v. USA (9th 2014)

From the court’s syllabus:

The panel vacated the district court’s dismissal for lack of subject matter jurisdiction of a Federal Tort Claims Act action brought against the United States after Jennifer Rose was injured in a traffic accident following a police pursuit involving two tribal police officers employed by the Gila River Indian Community.

Loren Shirk, along with his wife, Jennifer Rose, alleged negligence by the tribal officers and loss of consortium under the FTCA. Congress extended the FTCA’s waiver of the United States’ sovereign immunity to claims resulting from the performance of functions authorized by the Indian Self- Determination and Education Assistance Act of 1975, commonly referred to as § 314.

To decide whether the tribal officers’ conduct was covered by § 314, thereby subjecting the United States to potential tort liability, the panel held as an issue of first impression, that it was first necessary to set out the analysis that courts should undertake when confronted with a § 314 claim where the alleged tortfeasors are employees of a tribe, tribal organization, or Indian contractor. The panel held at the first step of the § 314 inquiry, courts must determine whether the alleged activity is, in fact, encompassed by the relevant federal contract or agreement. At the second step, courts must decide whether the allegedly tortious action fell within the scope of the tortfeasor’s employment under state law. The panel held that if both of these prongs were met, the employee’s actions were covered by the FTCA; but a plaintiff’s failure at either step was sufficient to defeat subject matter jurisdiction. The panel remanded so that the parties could fully brief the issue and the district court could conduct a new analysis of its subject matter jurisdiction using this two-step framework.

Second Circuit Judge Sack concurred, and wrote only to register his doubts as to one of the district court’s conclusions which the panel’s opinion properly did not reach. If the panel were squarely presented with the issue, Judge Sack would conclude that the relevant agreements between the federal government and the tribe authorized the enforcement of Arizona state law by tribal police officers.

Judge Bea concurred in part, and dissented in part. Judge Bea agreed with the new two-part test articulated by the majority opinion, but he would not remand because there are no issues of fact that require remand.

FTCA Claim Arising from Tule River Reservation Employee-Caused Accident Dismissed

Matthew L.M. Fletcher

Here are the materials in Manuel v. United States (E.D. Cal.):

11-1 US Motion to Dismiss

16 Manuel Opposition

21 US Reply

23 DCT Order

An excerpt:

In sum, Plaintiff fails to establish that the Tribe’s self-determination contracts authorized Hammond’s acts or omissions underlying Plaintiff’s negligence claim. Allender, 379 F. Supp. 2d at 1211. Defendant, however, has demonstrated that the Tribe’s self-determination contracts did not establish, fund, or contemplate Hammond’s position as Tribal community liaison. Plaintiff has also failed to allege facts showing that Hammond was carrying out any of the Tribe’s self-determination contracts. The Court therefore finds that Hammond is not an employee of the federal government under Section 314. Consequently, Defendant is not subject to liability under the FTCA for Hammond’s alleged negligence. Accordingly, the Court must dismiss Plaintiff’s complaint for lack of subject matter jurisdiction.