Federal Tort Claims Act

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.

Federal Tort Claim Arising on Colville Job Site May Proceed against US

Matthew L.M. Fletcher

Here are the materials in Farmer v. United States (E.D. Wash.):

14 US Motion to Dismiss

22 Opposition

27 US Reply

34 DCT Order

An excerpt:

Plaintiff seeks to recover damages for injuries sustained as a result of alleged negligence by Defendant Ron Shaffer. According to Plaintiff’s First Amended Complaint (ECF No.20), he was working for Jones Brothers Construction in Inchelium, Washington on October 25, 2011. Plaintiff was part of a construction crew that was building a pole-style structure for the local Fire Hall/EMT Unit. The structure was being constructed pursuant to a contract between Confederated Tribes Of The Colville Indian Reservation and Jones Brothers Construction. Plaintiff alleges that on that day, “[a]n EMT on duty for the Colville Confederated Tribes EMT Unit, Ronald L. Shaffer, took it upon himself to [2]  help the construction crew.” According to the First Amended Complaint, while Plaintiff was on a ladder setting girder trusses, “Mr. Shaffer negligently swung a sledge hammer and struck [Plaintiff’s] left hand with the sledge hammer causing [a] fracture to his long finger and other injuries.”

Plaintiff sues the United States under the Federal Tort Claims Act (FTCA), 26 U.S.C. §2674. He sues Mr. Shaffer and his wife, presumably, for common law negligence under this court’s supplemental jurisdiction, 28 U.S.C. §1367(a). Pursuant to Fed. R. Civ. P. 12(b)(1), the United States now moves to dismiss the FTCA claim against it, asserting there is no subject matter jurisdiction because Mr. Shaffer was not acting pursuant to the contract between the U.S. Department of Health and Human Services (HHS) and the Colville Confederated Tribes, and furthermore, was not acting within the scope of his employment with the Tribes.

 

SCOTUS Denies Cert in Two Indian Law Cases

Matthew L.M. Fletcher1 Comment

Here is today’s order list.

The Court denied cert in Dupris v. Procter and Hicks v. Hudson Insurance.

Federal Court Holds Alleging Jay Treaty Rights Does Not Create FTCA Jurisdiction

Matthew L.M. Fletcher

Here are the materials in Hodgson v. United States (W.D. Tex.):

7 US Motion to Dismiss

10 Hodgson Response

11 US Reply

17 DCT Order

Federal Court Rules Tribal Officers Not Immune; Tort Claims May Proceed against Tribal Police (Black v. US)

Matthew L.M. Fletcher

This is the third ruling in Black v. United States (W.D. Wash.):

53 Joint Tribal Motion to Dismiss

69 Black Response

77 Joint Tribal Reply

83 DCT Order

Claims against the tribes are dismissed. The court dismissed Kitsap County here. And the US here.

Supreme Court Cert Petition in FTCA/Bivens Claims against Federal & Tribal Officers

Matthew L.M. Fletcher2 Comments

Here is the petition in Dupris v. Proctor:

Dupris Cert Petition

Questions presented:

1. Whether this Court should resolve a split among the circuit courts of appeal, created by the Ninth Circuit panel decision in this matter, as to whether federal agents have “discretion” to arrest an individual without probable cause, for purposes of sovereign immunity under the “discretionary function” doctrine of the Federal Tort Claims Act?
2. Whether this Court should resolve a split among the circuit courts of appeal as to whether a law enforcement officer’s pre-arrest consultation with a prosecutor, standing alone, entitles the officer to qualified immunity?
3. Given the federal agents’ testimony that there were not any “positive identifications” of Petitioners, contradictory to what the agents told the tribal prosecutor, whether this Court should remand pursuant to this Court’s recent holding in Tolan v. Cotton, — U.S. –, 134 S.Ct. 1861 (2014), to ensure that the Court of Appeals properly viewed all evidence in the light most favorable to the Petitioners?

Lower court materials here.

Federal Court Dismisses FTCA Claim against US for Failure to Stop Drunk Driving Death on the Rosebud

Matthew L.M. Fletcher

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

8 US Motion to Dismiss

14 Sorace Opposition

15 US Reply

18 DCT Order

Update in Black v. US — Tort Claims Related to Shooting by Tribal Police

Matthew L.M. Fletcher1 Comment

Here are the updated materials in Black v. United States (W.D. Wash.):

39 Amended Complaint

46 Kitsap County Motion to Dismiss

53 Joint Tribal Motion to Dismiss

62 DCT Order Dismissing Kitsap County Sheriff’s Office

Only the tribal defendants remain in the case. Prior post on this matter here.

Ninth Circuit Rejects FTCA/Bivens Claims against Federal & Tribal Officers

Matthew L.M. Fletcher2 Comments

Here is the unpublished opinion in Dupris v. McDonald.

An excerpt:

In 2006, Jesse Dupris and Jeremy Reed (the “Plaintiffs”) were arrested on tribal charges for assaults they did not commit. In 2008, they commenced this action against the members of the federal Task Force that arrested them and the United States under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2671-2680. The district court granted summary judgment for the defendants and Plaintiffs have appealed. We affirm, concluding that: (1) the Plaintiffs’ claims against two members of the Task Force are barred by the applicable statute of limitations; (2) the remaining individual defendants were entitled to qualified immunity; and (3) the United States is immune from liability under the FTCA pursuant to the discretionary function exception.

Briefs and lower court materials here.