JOHN DOE, APPELLANT, V. STATE OF NEBRASKA ET AL., APPELLEES.
No. S-21-472.
Nebraska Supreme Court
Filed October 21, 2022.
312 Neb. 665
___ N.W.2d ___
Tort Claims Act: Appeal and Error. Whether a complaint alleges a cause of action under the State Tort Claims Act, or alleges a claim which is precluded by an exemption under the State Tort Claims Act, presents a question of law. - Jurisdiction. Subject matter jurisdiction is a question of law. When a jurisdictional question does not involve a factual dispute, the issue is a matter of law.
- Judgments: Appeal and Error. An appellate court reviews questions of law independently of the lower court’s conclusion.
- Jurisdiction: Immunity: Appeal and Error. A state’s sovereign immunity from suit is a matter of subject matter jurisdiction that an appellate court cannot ignore.
- Jurisdiction. Whether a court has subject matter jurisdiction is a threshold issue that should be resolved prior to an examination of the merits.
- Negligence: Liability: Public Officers and Employees. A state is not liable to a person injured by the negligence of its employees, unless there is a statute or constitutional provision permitting recovery.
- Constitutional Law: Legislature: Immunity: Waiver. Nebraska’s Constitution provides that “[t]he state may sue and be sued, and the Legislature shall provide by law in what manner and in what courts suits shall be brought.” But this constitutional provision is not self-executing, and it requires legislative action to waivе the State’s sovereign immunity.
- Jurisdiction: Legislature: Immunity: Waiver. Absent legislative action waiving sovereign immunity, a trial court lacks subject matter jurisdiction over an action against the State.
- Statutes: Immunity: Waiver. A waiver of sovereign immunity is found only where stated by the most express language of a statute or by such
overwhelming implication from the text as will allow no other reasonable construction. - ____: ____: ____. Statutes purporting to waive the protection of sovereign immunity are to be strictly construed in favor of the sovereign and against waiver.
- Tort Claims Act: Legislature: Immunity: Waiver. Through the State Tort Claims Act, the Legislature has waived the State’s sovereign immunity with respect to some, but not all, types of tort claims.
- Tort Claims Act: Immunity: Waiver. The definition of “tort claim” in
Neb. Rev. Stat. § 81-8,210(4) (Reissue 2014) fundamentally limits the type of tort claims that are subject to the State Tort Claims Act’s limited waiver of immunity. - Tort Claims Act: Legislature: Immunity: Waiver. Under
Neb. Rev. Stat. § 81-8,210(4) (Reissue 2014), the Legislature has waived the State’s sovereign immunity for those tort claims that (1) seek money damages only; (2) are on account of property damage, personal injury, or death; (3) are caused by the negligent or wrongful act or omission of a state employee acting within the scope of his or her office or employment; аnd (4) occur under circumstances in which a private person would be liable to the claimant. - Tort Claims Act: Immunity: Waiver: Liability. Under the plain language of
Neb. Rev. Stat. §§ 81-8,210(4) and81-8,215 (Reissue 2014), the State Tort Claims Act’s limited waiver of sovereign immunity applies only to tort claims for which a private person, under like circumstances, would be liable in tort to the plaintiff. - Tort Claims Act: Jurisdiction: Motions to Dismiss. Plaintiffs bringing an action under the State Tort Claims Act must plausibly allege a “tort claim” as that term is defined under the act, both to survive a motion to dismiss for failure to state a claim and to establish subject matter jurisdiction.
- Tort Claims Act: Negligence: Proof. A negligence action brought under the State Tort Claims Act has the same elements as a negligence action brought against a private individual—a plaintiff must show a legal duty owed by the defendant to the plaintiff, a breach of such duty, causation, and damages.
- Tort Claims Act: Jurisdiction: Negligence: Liability: Proof. To establish subject matter jurisdiction under the State Tort Claims Act, a plaintiff must plausibly allege a “tort claim” as defined under the act. That requires, inter alia, plausibly alleging that the State, if a private person, would be liable to the plaintiff for the negligent or wrongful act or omission under like circumstances.
Statutes: Legislature: Intent: Torts: Liability. A court may determine that a statute gives rise to a tort duty to act in the manner required by the statute where (1) the statute is enacted to protect a class of persons which includes the plaintiff, (2) the statute is intended to prevent the particular injury that has been suffered, and (3) the statute is intended by the Legislature to create a private liability as distinguished from one of a public character. - Statutes: Legislature: Torts: Liability: Courts. Where the Legislature has not by its express terms or by implication provided for civil tort liability for failure to comply with a statute, under principles of judicial restraint, it is prudent that courts not do so.
- Statutes: Legislature: Intent: Torts: Courts. When considering whether a statute gives rise to a tort duty, courts should consider the express remedy, if any, imposed for violating the statute, and whether such a remedy is inconsistent with a purported legislative intention to create a tort duty.
- Statutes: Torts: Liability.
Neb. Rev. Stat. § 29-3523 (Cum. Supp. 2020) does not give rise to a legal duty that would subject a private person to civil tort liability for failing to act in the manner prescribed by statute. - Negligence. Nebraska does not recognize a common-law duty not to disclose sealed criminal history information.
- Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.
Appeal from the District Court for Lancaster County: KEVIN R. MCMANAMAN, Judge. Affirmed.
Zachary W. Lutz-Priefert and John A. McWilliams, of Gross & Welch, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and James A. Campbell, Solicitor General, for appellees.
Kevin Ruser and Ryan P. Sullivan, of University of Nebraska Civil Clinical Law Program, and Deena Keilany and Alicia Christensen, Senior Certified Law Students, for amicus curiae Nebraska College of Law Civil Clinic.
HEAVICAN, C.J., MILLER-LERMAN, CASSEL, STACY, FUNKE, PAPIK, and FREUDENBERG, JJ.
Relying exclusively on the State Tort Claims Act (STCA),1 John Doe filed suit against the State of Nebraska, the Nebraska State Patrol (NSP), the Nebraska Department of Correctional Services (DCS), and DCS director Scott Frakes, alleging they negligently disclosed and reviewed his sealed criminal history record information in violation of
We affirm the dismissal of Doe’s tort action on sovereign immunity grounds, but our reasoning differs somewhat from that of the district court. We conclude that Doe has not alleged a tort claim as that term is defined in the STCA, and the State has therefore not waived its sovereign immunity with respect to Doe’s claim.
I. BACKGROUND
Because this case was dismissed at the pleading stage, the facts recited below are taken from the allegations of Doe’s complaint and the attachments thereto. Doe was convicted of a felony in 2000, and a few years later, he was convicted of a misdemeanor. Sometime thereafter, Doe applied for pardons. In 2016, the Nebraska Board of Pardons granted his application and issued pardons for both convictions.
After receiving the pardons, Doe filed a motion asking the sentencing court to seal his criminal history record information pursuant to
Section 29-3523 authorizes a court to order the sealing of criminal history record information under certain circumstances, and it is part of the Security, Privacy, and Dissemination of Criminal History Information Act (Criminal History Act).2 As relevant here, that act imposes certain obligations on “[c]riminal justice agenc[ies]”3 once “[c]riminal history record information”4 has been ordered sealed pursuant to
1. DOE APPLIES FOR JOB WITH DCS
In September 2019, Doe applied for a job as a caseworker at DCS. A question on the application form asked whether Doe had a criminal history, and Doe responded, “[N]o.” DCS interviewed Doe for the position, and thereafter, it requested a criminal history background check as part of the application process. According to the allegations of the complaint, NSP wrongfully provided DCS with criminal history record information that included Doe’s sealed records. Doe was subsequently advised by DCS that he was not being hired for the caseworker position due to his criminal history.
2. DOE FILES SUIT
In July 2020, Doe filed this negligence action in the district court for Lancaster County against the State of Nebraska, NSP, DCS, Frakes, and “Unknown Employees of the State оf Nebraska.” The district court permitted Doe to file the complaint using a pseudonym, and he proceeds likewise on appeal.
The complaint alleged a single cause of action against all named defendants, described as “Negligent Disclosure and Review of Sealed Records in Violation of
Doe did not serve the unknown defendants, and we do not address them further. The remaining defendants were served, and they responded as follows.
DCS and Frakes moved to dismiss Doe’s complaint on two grounds: (1) The complaint failed to state a claim upon which relief could be granted, and (2) the claim was barred by sovereign immunity. NSP did not join in the motion to dismiss and instead filed an answer. NSP’s answer expressly denied that it had disclosed Doe’s criminal history record information to DCS, and it alleged, as affirmative defenses, the same grounds on which the other defendants moved for dismissal.
At the hearing on the motion to dismiss, the parties presented only argument. DCS and Frakes argued that Doe’s complaint failed to state a claim because it contained no factual allegations showing they owed Doe a legal duty actionable in tort. Alternatively, they argued that even if a legal duty was owed, the discretionary function exemption to the STCA applied and barrеd Doe’s tort claim. In response, Doe argued that
(a) Claims Against DCS and Frakes Dismissed
In December 2020, the district court entered an order dismissing the claims against DCS and Frakes. The court’s order recited various grounds for dismissal, but we recount only those pertaining to jurisdiction.
At the hearing on jurisdiction, the State and NSP argued the court lacked subject matter jurisdiction under the STCA because Doe had not alleged a “[t]ort claim” as defined in
Tort claim means any claim against the State of Nebraska for money only on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the state, while acting within the scope of his or her office or employment, under circumstances in which the state, if a private person, would be liable to the claimant for such damage, loss, injury, or death . . . .12
The State and NSP argued that Doe had not alleged a “tort claim” as defined under the STCA because (1) his claim was not for money only, (2) he had not alleged a personal injury, and (3) the alleged violation of
Doe disagreed. He argued the complaint sufficiently alleged a plausible “tort claim” under the STCA because it sought money damages, on account of a personal injury, caused by the negligent dissemination and consideration of his sealed criminal history records in violation of
(b) Sua Sponte Dismissal for Lack of Jurisdiction
After considering arguments of the parties, the court entered an order dismissing Doe’s complaint, in its entirety, for lack of subject matter jurisdiction. The court recited several reasons why it lacked jurisdiction.
First, the court concluded that Doe had not pled a “tort claim” under the STCA, reasoning primarily that Doe’s complaint failed to allege a “personal injury” within the meaning of
Doe filed a timely appeal, and we granted the appellees’ petition to bypass. After oral argument before this court, we requested supplemental briefing addressing whether, under Nebraska tort law, a private person under like circumstances would be liable to Doe. Supplemental briefs were received and considered, and we discuss the parties’ jurisdictional аrguments later in our analysis.
II. ASSIGNMENTS OF ERROR
Doe assigns five errors which we consolidate and restate into two: (1) The district court erred when it determined Doe had not alleged a “tort claim” within the meaning of the STCA and thus dismissed the complaint for lack of subject matter jurisdiction, and (2) the district court erred when it determined the discretionary function exemption applied to bar Doe’s claim against DCS and Frakes.
In support of his first assignment of error, Doe presents several arguments. First, he asserts that
III. STANDARD OF REVIEW
[1] Whether a complaint alleges a cause of action under the STCA, or alleges a claim which is precluded by an exemption under the SCTA, presents a question of law.15
[2] Subject matter jurisdiction is a question of law.16 When a jurisdictional question does not involve a factual dispute, the issue is a matter of law.17
[3] An appellate court reviews questions of law independently of the lower court’s conclusion.18
IV. ANALYSIS
1. SOVEREIGN IMMUNITY AND SUBJECT MATTER JURISDICTION
[4,5] A state’s sovereign immunity from suit is a matter of subject matter jurisdiction that an appellate court cannot ignore.19 Whether a court has subject matter jurisdiction is a threshold issue that should be resolved prior to an examination of the merits.20 We therefore begin our analysis by reviewing familiar principles of sovereign immunity which bear on the court’s subject matter jurisdiction in this case.
[6-8] Nebraska has long recognized the “‘rule that a state is not liable to a person injured by the negligence of its employees, unless there is a statute or constitutional provision
[9,10] A waiver of sovereign immunity is found only where stated by the most express language of a statute or by such overwhelming implication from the text as will allow no other reasonable construction.25 Nebraska courts follow the rule that statutes purporting to waive the protection of sovereign immunity are to be strictly construed in favor of the sovereign and against waiver.26
Doe’s complaint relies exclusively on the STCA for jurisdiction in this case. He alleged no other statutory basis for jurisdiction over his tort claim, and he argued no other statutory basis for jurisdiction before the district court. We thus limit our jurisdictional analysis to the STCA.
(a) STCA’s Limited Waiver of Sovereign Immunity
[11] Under the plain language of the STCA, no tort claim “shall be maintained against the state, any state agency, or any employee of the state on any tort claim except to the extent, and only to the extent, provided by the [STCA].”27 We have
When considering whether a particular tort claim falls within the STCA’s limited waiver of sovereign immunity, our reported opinions often focus on the applicability of the statutory exemptions set out in
(i) Definition of “Tort Claim”
For purposes of the STCA, the Legislature has defined “tort claim” in
Tort claim means any claim against the State of Nebraska for money only on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the state, while аcting within the scope of his or her office or employment, under circumstances in which the state, if a private person, would be liable to the claimant for such damage, loss, injury, or death . . . .31
[12,13] The STCA’s definition of “tort claim” fundamentally limits the type of tort claims that are subject to the STCA’s limited waiver of sovereign immunity. Under this statutory
On appeal, the appellees argue that the claim alleged in Doe’s complaint failed to satisfy any of the definitional requirements for a tort claim under
Similar language appears in
The “private person” provision in
In their supplemental briefing to this court, the parties agree that under the plain language of
The FTCA provides, in relevant part, that the “United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances . . . .”38 Additionally,
The U.S. Supreme Court has construed these federal statutory provisions “to mean what they say, namely, that the United States waives sovereign immunity ‘under circumstances’ where local law would make a ‘private person’ liable in tort.”39 The Supreme Court has referred to this as the FTCA’s “‘private person’ standard,”40 and other federal courts have described it as the “private analogue” requirement of the FTCA.41 Regardless of nomenclature, federal courts have consistently held that the private person requirement is jurisdictional in nature and must be satisfied for the FTCA’s limited waiver of sovereign immunity to apply.42 As the U.S. Supreme Court succinctly stated recently in Brownback v. King,43 when bringing a claim under the FTCA, “a plaintiff must plausibly allege that ‘the United States, if a private person, would be liable to the claimant’ under state law both to survive [a
The Nebraska Legislature patterned the STCA after the FTCA,44 and the “private person” language under the STCA largely mirrors the private person language under the FTCA. Consequently, when discussing the jurisdictional impact of thе private person requirement under the STCA, both Doe and the appellees argue in their supplemental briefing that the jurisdictional reasoning of the federal courts, as it pertains to the private person requirement under the FTCA, is instructive. We generally agree, with the caveat that the federal courts do not always adhere to the same rules of strict construction that Nebraska courts follow when considering statutes that purport to waive sovereign immunity.45
[14,15] Considering the plain language of
[16,17] To clarify, it remains true as a general principle that a negligence action brought under the STCA or the Political Subdivisions Tort Claims Act46 has the same elements as a negligence action brought against a private individual—a
(ii) Has Doe Alleged Tort Claim Under STCA?
The district court concluded that it lacked subject matter jurisdiction over Doe’s action because he had not alleged a “tort claim” as defined under the STCA. On appeal, the parties present arguments going to each of the definitional requirements for a tort claim under
(b) Private Person Analogue
We turn now to the dispositive jurisdictional issue in this STCA appeal: whether Doe has alleged a tort claim for which a private person, under like circumstances, would be liable. In Doe’s complaint, all of the negligent or wrongful acts or omissions relate to the defendants’ alleged failure to comply with the provisions of
In his supplemental briefing, Doe argues that a private would be liable in tort for disseminating and considering his
Section 29-3523 provides:
(1) After . . . the granting of a motion [to seal criminal history record information] under subsection (4), (5), or (6) of this section, a criminal justice agency shall respond to a public inquiry in the same manner as if there were no criminal history record information and criminal history record information shall not be disseminated to any person other than a criminal justice agency, except as provided in subsection (2) of this section or when the subject of the record:
(a) Is currently the subject of prosecution or correctional control as the result of a separate arrest;
(b) Is currently an announced candidate for or holder of public office;
(c) Has made a notarized request for the release of such record to a specific person; or
(d) Is kept unidentified, and the record is used for purposes of surveying or summarizing individual or collective law enforcement agency activity or practices, or the dissemination is requested consisting only of release of criminal history record information showing (i) dates of arrests, (ii) reasons for arrests, and (iii) the nature of the dispositions including, but not limited to, reasons for not prosecuting the case or cases.
(2) That part of criminal history record information described in subsection (7) of this section may be disseminated to individuals and agencies for the express purpose of research, evaluative, or statistical activities pursuant to an agreement with a criminal justice agency that specifically authorizes access to the information, limits the use
of the information to research, evaluative, or statistical activities, and ensures the confidentiality and security of the information.
. . . .
(5) Any person who has received a pardon may file a motion with the sentencing court for an order to seal the criminal history record information and any cases related to such charges or conviction. Upon a finding that the person received a pardon, the court shall grant the motion and issue an order as provided in subsection (7) of this section.
. . . .
(7) Upon acquittal or entry of an order dismissing a case described in subdivision (3)(c) of this section, or after granting a motion under subsection (4), (5), or (6) of this section, the court shall:
(a) Order that all records, including any information or other data concerning any proceedings relating to the case, including the arrеst, taking into custody, petition, complaint, indictment, information, trial, hearing, adjudication, correctional supervision, dismissal, or other disposition or sentence, are not part of the public record and shall not be disseminated to persons other than criminal justice agencies, except as provided in subsection (1) or (2) of this section;
(b) Send notice of the order (i) to the Nebraska Commission on Law Enforcement and Criminal Justice, (ii) to the Nebraska State Patrol, and (iii) to law enforcement agencies, county attorneys, and city attorneys referenced in the court record;
(c) Order all parties notified under subdivision (7)(b) of this section to seal all records pertaining to the case; and
(d) If the case was transferred from one court to another, send notice of the order to seal the record to the transferring court.
(i) Does § 29-3523 Create Tort Duty?
As stated, Doe argues that
[18] We have not yet had occasion to consider whether
A court may determine that a statute gives rise to a tort duty to act in the manner required by the statute where [1] the statute is enacted to protect a class of persons which includes the plaintiff, [2] the statute is intended to prevent the particular injury that has been suffered, and [3] the statute is intended by the Legislature to create a private liability as distinguished from one of a public character.49
The appellees appear to concede that Doe, as someone whose criminal history records have been sealed as a result of pardons, is generally within the class of persons that
[19,20] We have described the third Claypool factor as “central to the analysis of whether the statute defines a duty in
The legislative purpose of the Criminal History Act is stated in
The purposes of [the Criminal History Act] are (1) to control and coordinate criminal offender record keeping within this state, (2) to establish more efficient and uniform systems of criminal offender record keeping, (3) to assure periodic audits of such record keeping in order to determine compliance with sections 29-209, 29-210, 29-3501 to 29-3528, and 81-1423, (4) to establish a mоre effective administrative structure for the protection of individual privacy in connection with such record keeping, and (5) to preserve the principle of the public‘s right to know of the official actions of criminal justice agencies.
It is apparent from the plain text of
Presumably recognizing that the legislative purpose recited in
We identify two statutes providing express remedies for violations of the Criminal History Act. Section
Whenever any officer or employee of the state, its agencies, or its political subdivisions, or whenever any state agency or any political subdivision or its agencies fails to comply with the requirements of [the Criminal History Act] or of regulations lawfully adopted to implement [the Criminal History Act], any person aggrieved may bring an action, including but not limited to an action for mandamus, to compel compliance and such action may be brought in the district court of any district in which the records involved are located or in the district court of Lancaster County. The commission may request the Attorney General to bring such action.
[21] We thus reject Doe‘s argument and hold that
Although Doe‘s complaint identifies
Doe has not assigned error to this aspect of the trial court‘s duty ruling. But in his supplemental briefing, he argues that Nebraska common law provides a private analogue for the negligence claims he alleged against the State. We consider this argument next, and find it lacks merit.
(ii) Would Private Person Owe Common-Law Duty Under Like Circumstances?
Doe argues that Nebraska law recognizes what he describes as a common-law “duty to act with reasonable care when in custody of sealed or sensitive information, the disclosure of
Instead, Doe refers us to a case from 1994, Merrick v. Thomas,56 which he argues recognized a general common-law duty of reasonable care. In that case, the plaintiff sued the sheriff under the Pоlitical Subdivisions Tort Claims Act, alleging that the sheriff had a duty to score her admissions test accurately and fairly and that he had breached that duty. This court concluded the plaintiff‘s complaint, liberally construed, alleged sufficient facts to establish the sheriff “owed her a duty to score her test with due care.”57 In reaching this conclusion, the Merrick court recited the general proposition that “[a] common-law duty exists to use due care so as not to negligently injure another person.”58 Doe relies on this statement in Merrick to argue that under Nebraska law, a private person owes a general common-law duty of reasonable care to others. But our more recent cases expressly disavow the suggestion that Nebraska recognizes “a general duty of reasonable care to all others at all times.”59 Instead, since our 2010 decision in A.W. v. Lancaster Cty. Sch. Dist. 0001,60 Nebraska has consistently followed the general duty framework set out in § 7 of the Restatement (Third) of Torts.61 The duty principles recited in Merrick do not reflect current tort law in Nebraska.
(iii) No Private Analogue
For the above reasons, we conclude that Doe has failed to establish that a private person would owe him a legal duty under circumstances like those alleged in his complaint. Without a legal duty, a private person could not be liable in negligence under like circumstances. Stated differently, there is no “private analogue” for his claim, and Doe has thus failed to allege a tort claim under
For the sake of completeness, however, we note that Doe‘s appellate briefing also argues that even if there is not a private person analogue for his negligence claim under
2. DOE‘S REMAINING ASSIGNMENTS AND ARGUMENTS
[23] Our conclusion that Doe has not alleged a tort claim under the STCA for which the State has waived its sovereign immunity makes it unnecessary to address any of his remaining assignments of error. An appellate court is not obligated
Similarly, we do not address Doe‘s argument, raised for the first time in his reply brief, that even if the STCA‘s limited waiver of sovereign immunity does not apply to his claims, the district court should have construed his tort action as one to enforce compliance with the Criminal History Act under
V. CONCLUSION
Because Doe has not shown that a private person would be liable under Nebraska law for the allegedly tortious conduct alleged in the complaint, the STCA‘s limited waiver of sovereign immunity does not apply. The district court therefore correctly concluded that Doe has not alleged a “tort claim” under the STCA for which the State has waived its sovereign immunity. The district court‘s dismissal of the complaint for lack of subject matter jurisdiction was correct and is affirmed.
AFFIRMED.
CASSEL, J., concurring.
Our dissenting colleague relies upon a “broad interpretation” endorsed by the U.S. Supreme Court in determining the reach of the private person analogue in the Federal Tort Claims Act
MILLER-LERMAN, J., concurring in part, and in part dissenting.
I respectfully concur in part, and in part dissent. I agree with the majority that, given the remedies in the Security, Privacy, and Dissemination of Criminal History Act (Act),
The alleged facts are not repeated here. In summary, Doe alleged that notwithstanding the fact that Doe‘s criminal record was sealed under
According to the Act, among the objectives of sealing criminal records is “the protection of individual privacy.” See
At this point, the analysis of whether Doe alleged a cause of action for negligence under STCA is complete, and in my view, the majority‘s analysis of the private person analogue and its segue into sovereign immunity are unnecessary and not consistent with the widespread jurisprudеnce in this area. In my view, firstly, the analysis improperly casts the issue as jurisdictional, and secondly, the majority misreads the federal jurisprudence as requiring a too exacting private equivalence instead of an analogue.
I see a pleading failure, but unlike the majority, I do not see a jurisdictional failure. There is no dispute that the district court has subject matter jurisdiction to entertain an STCA
As I have urged, discussion of the doctrine of a private person analogue is not necessary to the disposition of this case, and I would exercise judicial restraint in this regard. Just because the court can write about private person analogue does not mean it should. To the extent dicta by the majority considers the private person analogue, I disagree with the majority‘s analysis that the analogue must be so precise.
As the majority notes, STCA is patterned after the Federal Tort Claims Act (hereinafter FTCA), see
Tort claim means any claim against the State of Nebraska for money only on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission оf any employee of the state, while acting within the scope of his or her office or employment, under circumstances in which the state, if a private person, would be liable to the claimant for such damage, loss, injury, or death . . . .
In evaluating whether a private person analogue exists for the plaintiff‘s federal tort claim, the U.S. Supreme Court has stated that the State is not immune from suit solely because it was engaged in a uniquely governmental function. See, United States v. Olson, 546 U.S. 43, 126 S. Ct. 510, 163 L. Ed. 2d 306 (2005); Rayonier, Inc. v. United States, 352 U.S. 315, 77 S. Ct. 374, 1 L. Ed. 2d 354 (1957); Indian Towing Co. v. United States, 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48 (1955). A court applying the private person standard is not restricted to “narrow” inquiries into the same circumstances, but must look further afield. United States v. Olson, 546 U.S. at 46.
The U.S. Supreme Court declared that it “would be attributing bizarre motives to Congress . . . to hold that it was predicating liability on such a completely fortuitous circumstance—the presence or absence of identical private activity.” Indian Towing Co. v. United States, 350 U.S. at 67. The U.S. Supreme Court found no evidence in FTCA that Congress “intended to draw distinctions so finespun and capricious as to be almost inescapable of being held in the mind for adequate formulation.” Indian Towing Co. v. United States, 350 U.S. at 68.
It has been observed that FTCA‘s private person analogue provision,
generous development by the Supreme Court. [FTCA] is given a broad interpretation to effectuate the legislative aim of putting citizen and national sovereign in tort
claims suits on a footing of equality as between private parties within that state. Nice pieces of casuistry and hypersensitive legalisms are avoided.
Roelofs v. United States, 501 F.2d 87, 92 (5th Cir. 1974). These authorities illustrate why the majority has too narrowly applied the private person analogue and why I dissent from such narrow understanding in this and future cases.
Turning to the complaint, Doe alleged a violation of the responsibilities outlined in the Act by the State Patrol, Frakes, and the Department of Correctional Services. According to the allegations, Doe suffered the financial harm of being rejected for a job as a result of state actors’ wrongful conducts, i.e., by both the improper dissemination of his sealed record and the subsequent knowing reliance on the sealed record. I read the events giving rise to the complaint as potentially involving tortious interference with Doe‘s business expectancy or another tort. See Denali Real Estate v. Denali Custom Builders, 302 Neb. 984, 926 N.W.2d 610 (2019) (setting forth elements of interference with business relationship or expectancy). Employing the “broad interpretation” of the private person analogue endorsed by the federal courts, see Roelofs v. United States, 501 F.2d at 92, Doe has alleged a “[t]ort claim” on account of the “wrongful act or omission of any employee of the state, while acting within the scope of his or her office or employment, under circumstances in which the state, if a private person, would be liable to the claimant for such damage, loss, injury or death . . . .”
For the foregoing reasons, I concur in part, and in part dissent.