Shirk v. United States, No. 10-17443 (9th Cir. 2014)
Annotate this CasePlaintiff and his wife filed suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), claiming that tribal officers employed by the Bureau of Indian Affairs (BIA) acted negligently when pursuing a drunk driver and that such negligence resulted in plaintiff and his wife's injuries. Congress extended the FTCA's waiver of 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 section 314, 25 U.S.C. 450f. Under the two-part test of section 314, courts must first determine whether the alleged activity is, in fact, encompassed by the relevant federal contract or agreement. The scope of the agreement defines the relevant "employment" for purposes of the scope of employment analysis at step two. Second, courts must decide whether the allegedly tortious action falls within the scope of the tortfeasor's employment under state law. If both these prongs are met, the employee's actions are covered by the FTCA. The court vacated the district court's dismissal for lack of subject matter jurisdiction and remanded for further proceedings. On remand, the district court should conduct a new analysis of its subject matter jurisdiction using the two-step framework the court discussed.
Court Description: 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.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.