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General Memorandum 14-098

General Memorandum 14-098
Ninth Circuit Court of Appeals Clarifies Two-Part Test for Determining the Applicability Of the FTCA to Tort Claims Brought Against Tribal Employees Carrying Out Indian Self-Determination Act Agreements

In Shirk v. United States, the Ninth Circuit Court of Appeals clarified a two-part test for determining the applicability of the Federal Tort Claims Act (FTCA) in tort claims brought against tribal police officers.

This case arose from a car accident involving two tribal police officers, an inebriated paroled felon, and a motorcyclist. Loren Shirk was thrown from his motorcycle and sustained serious injuries as a result of being hit by a car driven by Leshedrick Sanford, an intoxicated paroled felon. Moments before the collision, two Gila River Indian Community (GRIC) tribal officers noticed that Sanford was driving erratically and attempted to make contact with him at an intersection where he was stopped at a red light. In an effort to get away from the officers, Stanford ran the red light and hit Shirk.

Shirk and his wife sued the United States under the FTCA, alleging negligence by the tribal officers and loss of consortium. The question before the Ninth Circuit was whether Congress extended the FTCA's waiver of the sovereign immunity of the United States to claims arising from the performance of functions under a contract, grant agreement, or cooperative agreement authorized by the Indian Self-Determination and Education Assistance Act (ISDEAA), commonly referred to as § 314. Under § 314, an Indian tribe or tribal organization is "deemed" to be part of the Bureau of Indian Affairs or the Indian Health Service "when carrying out the contract or agreement" and employees are deemed to be part of that federal agency when acting within the scope of their authority while carrying out the contract or agreement. Because the GRIC entered into an ISDEAA contract with the United States for law enforcement services, the Court noted that the threshold question in this case was whether the actions of the officers come within the ambit of § 314.

The Court set out the following test to determine if the officers' actions are covered by § 314: (1) whether the alleged activity is, in fact, encompassed by the relevant federal contract or agreement; and (2) whether the allegedly tortious action fell within the scope of the officer's employment as determined under state law.

Regarding the first prong of this test, the Court reasoned that § 314's requirement that the tribal employee must be "carrying out the contract or agreement" means that the employee's actions must put the contract or agreement into execution. As such, the contractual obligation under the relevant federal contract or agreement "defines the nature and contours of [the alleged tortfeasor's] official responsibilities." Therefore, the scope of the ISDEAA agreement defines the relevant "employment" for purposes of the scope of employment analysis at step two.

For the second step of the § 314 inquiry, because the FTCA requires courts to determine whether, under state law, an employee was acting within the scope of employment when the alleged tort occurred, the Ninth Circuit concluded that § 314 requires the same inquiry.

The Ninth Circuit pointed out that if either one of these two tests is not met, a federal court will not have jurisdiction over the tort claim because the FTCA's waiver of the sovereign immunity of the United States (and the extension of that waiver to Indian Self-Determination Act agreements) is limited to these statutory conditions. The Court ultimately remanded the case so that the parties could fully brief the issues and the district court could conduct a new analysis of its subject matter jurisdiction using the newly created two-step framework.

Please let us know if we may provide additional information regarding Shirk v. United States.

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Starla Roels (Sroels@hobbsstraus.com) (503) 242-1745 or
Michael Willis (mwillis@hobbsstraus.com) (202) 822-8282

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