Federal Tort Claims Act – Page 9

In summary, because the Estate’s FTCA negligence claims colorably fall within FECA’s scope, the Court must dismiss this lawsuit for lack of subject-matter jurisdiction. See Moe, 326 F.3d at 1068 (requiring dismissal of a claim that is “colorably within” FECA’s scope). Although the United States may face liability under the FTCA if an injury occurs to a non-Job-Corps participant at YFP because that individual may not be a federal employee, the Court recognizes this question is not before it at this time. The Court is hopeful that the BIA and YFP take the appropriate necessary steps to ensure that all workers, especially those young Job Corps students with so much life ahead, are not subjected to such serious safety violations. See Marly’s Bear Med. v. United States, 241 F.3d 1208, 1216-17 (9th Cir. 2000) (finding that fatal injuries to anon-federal employee during a logging operation conducted pursuant to a BIA contract were recoverable under the FTCA because the BIA’s responsibility to ensure that safety precautions were implemented was not a discretionary function). The Court is also hopeful that Congress will soon address the shameful inadequacy of FECA’s $10,000.00 death gratuity payment. While the law required this decision, the Court sympathizes with Mr. Challinor’s parents for the loss of their son.

DCT Order Granting Government’s Motion

Government Motion to Dismiss

Challinor Opposition

Government Reply Brief

Update in Shirk v. Tanakeyowma (ISDEAA Sovereign Immunity Case)

February 6, 2012Matthew L.M. Fletcher3 Comments

Here are the federal government’s pleadings in that case (and all the rest of the materials moved here as well):

Proposed United States’ Amicus Brief

Resp to USA’s Amicus Brief

Brief of Amicus Curiae in Opposition to Pltf.’s Motion to Set Aside Judgment

USA’s Mtn to Dismiss

USA’s Reply on MTD

Order Granting Rule 60 Relief (main opinion)

Under Advisement Ruling

Notice of Appeal

Arizona Court Holds ISDEAA Waives Tribal Immunity in State Court

February 3, 2012February 3, 2012Matthew L.M. Fletcher2 Comments

Here’s the court’s opinion.

An excerpt:

In this case, the GRIC officers were acting in the course and scope of their employment, but off the geographical boundaries of Indian Country. The Federal Tort Claim Act does not apply. Their activities instead fall within the intent of 25 U.S.C. § 450f(c). To the amount of GRIC liability coverage for the Defendants’ law enforcement activities off Indian Country not covered by FTCA, the GRIC has waived its Sovereign Immunity to suit in Arizona. The Court finds persuasive the U.S.A.’s Amicus Brief legal analysis. The Tribe has waived its Sovereign Immunity for the activities of the Defendant Officers in this case.

Federal Court Dismisses FTCA Claim against White Mountain Apache and BIA Police Officers

January 13, 2012January 12, 2012Matthew L.M. Fletcher1 Comment

Here are the materials in Dupris v. McDonald (D. Ariz.):

DCT Order Dismissing Dupris Complaint

BIA Motion to Dismiss Complaint

US Motion to Dismiss Complaint

Dupris Motion for Partial Summary J

US Response to Motion for Partial Summary J

Chappabitty v. IHS Complaint and Press Release

December 17, 2011December 14, 2011Matthew L.M. Fletcher

Here:

FTCA Complaint

Order.Motion for Relief

Press Release 12.8.11

An excerpt from the press release:

On December 7, 2011, Edwin Chappabitty, Jr., MD, Lawton, Oklahoma, filed a Federal Tort Claims Act lawsuit for monetary damages in the United States Court for the Western District of Oklahoma alleging that officials of the United States Department of Health and Human, Indian Health Service, negligently failed to follow federal laws and regulations governing the conduct of investigations into alleged professional misconduct by physicians employed by the Indian Health Service. Dr. Chappabitty never expected to be accused of leveling racist statements to his patients on May 1, 2008 just four months from the end of his thirty year career in the federal service.

Chappabitty, Comanche/Ft. Sill Apache, retired from the IHS in August 2008 as a naval captain, having come to the service as an officer in the U.S. Public Health Service Commissioned Corps, a uniformed, non-military government agency under the purview of the U.S. Department of Health and Human Services.