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Shirk v. United States

United States Court of Appeals, Ninth Circuit

December 8, 2014

LOREN R. SHIRK; JENNIFER ROSE, individually and as husband and wife, Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA, on behalf of its agency, Department of Interior, Bureau of Indian Affairs, Defendant-Appellee

Argued and Submitted June 12, 2014, San Francisco, California

Appeal from the United States District Court for the District of Arizona. D.C. No. 2:09-cv-01786-NVW. Neil V. Wake, District Judge, Presiding.

SUMMARY[**]

Federal Tort Claims Act

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.

Bradley M. Rose, Kaye, Rose & Partners, LLP, Los Angeles, CA., argued the cause for the plaintiffs-appellants. Trinette S. Sachrison, Kaye, Rose & Partners, LLP, San Diego, CA, filed the briefs for the plaintiffs-appellants. With her on the briefs was Bradley M. Rose, Kaye, Rose & Partners, LLP, Los Angeles, CA.

Jeffrica Jenkins Lee, U.S. Department of Justice Civil Division, Washington, DC, argued the cause and filed the brief for defendant-appellee. With her on the brief were Stuart F. Delery, Assistant Attorney General, U.S. Department of Justice Civil Division, Washington, DC; John S. Leonardo, United States Attorney, Phoenix, AZ; and Barbara C. Biddle, U.S. Department of Justice Civil Division, Washington, DC.

Thomas L. Murphy, Deputy General Counsel, Gila River Indian Community, Sacaton, AZ, argued the cause and filed the brief on behalf of amicus curiae Gila River Indian Community in support of plaintiffs-appellants. With him on the brief was Linus Everling, General Counsel, Gila River Indian Community, Sacaton, AZ.

Before: Diarmuid F. O'Scannlain, Robert D. Sack[*], and Carlos T. Bea, Circuit Judges.

OPINION

Page 1000

O'SCANNLAIN, Circuit Judge.

We are asked to decide whether the United States may be held liable under the Federal Tort Claims Act for the off-reservation actions of two tribal police officers.

I

A

On October 19, 2006, at approximately 5:00 p.m., Detective Michael Lancaster and

Page 1001

Sergeant Hilario Tanakeyowma (the " Officers" ), two tribal police officers employed by the Gila River Indian Community (" GRIC" or the " Community" ), were traveling northbound on State Route 587 in a GRIC Police Department vehicle.[1] They had attended a mandatory police counter-terrorism training class in Tucson, Arizona, and were returning to Sergeant Tanakeyowma's residence in Chandler, Arizona.

As the Officers approached the intersection of Chandler Heights Road and State Route 87/Arizona Avenue, outside the boundaries of the GRIC reservation, they observed a white compact vehicle driving erratically. The driver of the vehicle was later determined to be Leshedrick Sanford, a paroled felon. The Officers began to pursue Sanford. When Sanford came to a stop at a red light at the intersection of Ocotillo Road and State Route 87/Arizona Avenue, the Officers pulled up behind him. As described by the Officers, Detective Lancaster exited the police vehicle to " make contact" with Sanford, but Sanford accelerated and drove through the red light into the intersection. Sanford collided with Loren Shirk, who was traveling eastbound on Ocotillo Road on a motorcycle. Shirk was thrown from his motorcycle and sustained serious physical injuries as a result of the collision.

Sanford, who was under the influence of alcohol, immediately fled the scene on foot, but he was apprehended and arrested by the Officers shortly thereafter. He subsequently pleaded guilty to one count of aggravated assault with prior felony convictions and one count of leaving the scene of a serious injury accident, both in violation of Arizona law. Sanford was sentenced to eighteen years in prison.

B

Shirk, along with his wife, Jennifer Rose (together, " Shirk" ), filed suit against the United States, alleging negligence by the Officers and loss of consortium under the Federal Tort Claims Act (FTCA). Shirk claimed that the Officers were employees of the Bureau of Indian Affairs (BIA) for purposes of the FTCA and, as such, that the United States was liable for the Officers' purported negligence. The United States moved to dismiss the complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). On August 27, 2010, the district court issued an order granting the government's motion to dismiss and entered judgment for the United States. Shirk timely appealed.

II

Shirk alleges that the Officers acted negligently when they encountered Sanford and that such negligence resulted in Shirk's injuries. According to Shirk, the United States is liable for the Officers' negligence because they were " acting within the scope of their employment in carrying out" various contracts and agreements between the United States and the GRIC. 25 U.S.C. § 450f (note). We begin our analysis of Shirk's allegations by explaining the statutes and agreements at issue.

A

The federal government has long provided a series of services to Indian tribes. Philip P. Frickey et al., Cohen's Handbook of Federal Indian Law ยง 22.01[1] (2012 ed.). The New Deal began a period in ...


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