United States District Court, E.D. Washington
DANIEL R. FARMER, a married person, Plaintiff,
UNITED STATES OF AMERICA, and RON SHAFFER and REBECCA SHAFFER, husband and wife, Defendants.
ORDER DENYING MOTION TO DISMISS, INTER ALIA
LONNY R. SUKO, Senior District Judge.
BEFORE THE COURT is the Motion To Dismiss (ECF No. 14) filed by Defendant United States Of America. This motion was heard with oral argument on October 16, 2014.
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 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.
A. 12(b)(1) Motions
There are two types of 12(b)(1) motions. A "facial attack" attacks subject matter jurisdiction solely on the basis of the allegations in the complaint, together with documents attached to the complaint, judicially noticed facts, and any undisputed facts evidenced in the record. All of these are construed in a light most favorable to the plaintiff. A "factual attack" attacks subject matter jurisdiction as a matter of fact based on extrinsic evidence apart from the pleadings. The primary difference between the two types of attack is that whereas under a facial attack, the court must consider the allegations of the complaint as true, under a factual attack, the court determines the facts for itself. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where extrinsic evidence is disputed, the court may weigh the evidence and determine the facts in order to satisfy itself that it has power to hear the case. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). The burden of proof is on the plaintiff as the party who invoked federal jurisdiction. Stock West, Inc. v. Confederated Tribes of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). Where the facts are controverted or credibility issues are raised, the court, in its discretion, can order an evidentiary hearing to determine its own jurisdiction. Rosales v. United States, 824 F.2d 799, 803 (9th Cir. 1987).
For reasons discussed infra, the court finds it can treat and resolve the United States' 12(b)(1) motion as a "facial attack" based on the allegations in the Plaintiff's First Amended Complaint, together with certain undisputed facts evidenced in the record.
The Indian Self-Determination and Education Assistance Act of 1975 ("ISDEAA"), Public Law 93-368, authorizes federal agencies to contract with Indian tribes to provide services on the reservation. Snyder v. Navajo Nation, 382 F.3d 892, 896 (9th Cir. 2004). "The purpose of the ISDEAA is to increase tribal participation in the management of programs and activities on the reservation." Id. at 896-97. In order to "limit the liability of tribes that agreed to these arrangements, Congress [ ] provided that the United States would subject itself to suit under the Federal Tort Claims Act... for torts of tribal employees hired and acting pursuant to such self-determination contracts under the ISDEAA." Id. at 897. "The FTCA provides a waiver of the United States government's sovereign immunity for tort claims arising out of the conduct of government employees acting within the scope of their employment." Adams v. United States, 429 F.3d 1049, 1051 (9th Cir. 2005)(citing 28 U.S.C. §1346(b)(1)). "The FTCA provides that the government shall be liable... in the same manner and to the same extent as a private individual under like circumstances....'" Garcia v. United States, 826 F.2d 806, 809 (9th Cir. 1987)(quoting 28 U.S.C. §2674).
A two-part analysis is used when determining whether the actions or omissions of a tribal employee are covered under the FTCA. The first inquiry is whether the tribal employee is a federal employee and focuses primarily on the scope of the ISDEAA contract and whether the contract authorized the acts or omissions forming the basis of the underlying claim. Allender v. Scott, 379 F.Supp.2d 1206, 1211 (D. N.M. 2005). If the court concludes that the claim at issue resulted from the performance of functions under the ISDEAA contract and that the tribal employee should be deemed a federal employee, the second inquiry examines whether the tribal employee was acting within the scope of his employment. Id. at 1211, 1218.
The scope of the employment is determined according to the principles of respondeat superior of the state in which the tort occurred, in this case, Washington. Lutz v. Secretary of the Air Force, 944 F.2d 1477, 1488 (9th Cir. 1991). Under Washington law, the test for ...