On December 8, 2014, the Ninth Circuit announced a new, two-part test for determining whether tribal employees performing their duties pursuant to a contract under the Indian Self Determination and Education Assistance Act of 1975 (ISDEAA), Pub. L. 93-638, 88 Stat. 203 (1975), or a compact under the Tribal Self-Governance Act, 25 U.S.C. §§ 458aa, et seq., can be treated as employees of the United States for purposes of claims brought under the Federal Tort Claims Act (FTCA). In Shirk v. United States, No. 10-17443, the Ninth Circuit stated that courts must ask two questions: (1) whether the federal contract or agreement encompass the alleged activity; and (2) whether the alleged act that harmed the plaintiff fall within the scope of the tribal employee’s employment under state law. Id., slip op. at 17. Only where both questions are answered in the affirmative will the tribal employee be treated as federal employee such that the United States may be held liable for her conduct under to the FTCA and its waiver of sovereign immunity. Id., slip op. at 17.

Background

In 2006, two Gila River police officers attended off-reservation training. Id., slip op. at 5. While returning from the training and still outside of the reservation, the Gila River officers initiated pursuit of an erratically driven vehicle. Id. During the course of the pursuit, the vehicle collided with Loren Shirk, who was riding a motorcycle. Id. Mr. Shirk suffered serious physical injuries as a result. Id.

Mr. Shirk and his wife brought suit against the United States, claiming that the Gila River officers acted negligently in pursuing the erratically driven vehicle. The plaintiffs also contended that the officers qualified as employees of the Bureau of Indian Affairs under the FTCA, so the United States was liable for their alleged negligence. The district court granted the United States’ motion to dismiss, and Mr. Shirk and his wife appealed.

Analysis

Although the United States is immune from suit, the FTCA waives federal sovereign immunity for many claims arising out of torts committed by federal employees. Id., slip op. at 6, 9-10. Section 314 of the ISDEAA expands the FTCA’s waiver of sovereign immunity to make the U.S. liable for torts committed by tribal employees “while acting within the scope of their employment in carrying out the contract or agreement.” 25 U.S.C. § 450f. In effect, tribal employees performing compacted or contracted functions are treated as federal employees for FTCA purposes. In Shirk, the plaintiffs claimed that the Gila River tribal police officers should be treated as Bureau of Indian Affairs (BIA) employees – and the United States should be liable for their actions under the FTCA – because Gila River performed law enforcement services pursuant to a compact with BIA and the tribal officers were acting in the scope of their employment as Gila River police officers. Shirk, slip op. at 8-9.

The Ninth Circuit determined that no federal appellate court had previously discussed the proper analytical framework for determining whether a tribal employee’s actions bring him within the scope of § 314’s waiver of federal sovereign immunity. Shirk, slip op. at 10-11. It quickly identified the phrase “scope of employment” as a term of art and, based on analogies to other federal statutes using the same or similar phrasing, determined that Congress intended courts to refer to state law to answer the question of whether employees are acting “within the scope of their employment” at any given time. Id., slip op. 12-13. The Court also emphasized that a tribal employee, in order to qualify as a federal employee for FTCA purposes, must not only be acting “within the scope” of her employment, but must also be engaged in carrying out a specific contracted or compacted function. Id., slip op. at 14-16. As the Court explained, “the federal contract defines the nature and contours of an employee’s official responsibilities; but the law of the state in which the tortious act allegedly occurred determines whether the employee was acting within the scope of those responsibilities.” Id. at 15 (internal quotation and punctuation omitted).

Based on this analysis, the Ninth Circuit articulated its new test for assessing whether tribal employees may be treated as federal employees under the FTCA. It held that courts must ask two questions: (1) whether the federal contract or compact with the tribe encompasses the alleged activity; and (2), whether the allegedly tortious act falls within the scope of tribal employee’s employment under state law. Id., slip op. at 17. Only where both questions are answered affirmatively does is the tribal employee treated as a federal employee subject to the FTCA and § 314’s waiver of sovereign immunity. Shirk, slip op. at 17.

Recognizing that it had delineated a new analytical framework that neither party had argued before the district court, the Ninth Circuit remanded to the district court for application of the new, two-part test. Id., slip op. at 20. Because the Ninth Circuit is the first federal appellate court to establish a test for determining whether tribal employees performing contracted or compacted federal functions can be treated as federal employees for FTCA purposes, id., slip op. at 11, it is likely that this test will be adopted or at least seriously considered by other federal courts across the country moving forward.