Rоnald COLBERT, Jerri Colbert, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant, Kandis Martine, et al., Defendants.
No. 14-12007.
United States Court of Appeals, Eleventh Circuit.
May 7, 2015.
785 F.3d 1384
Stuart F. Delery, Asst. Atty. Gen., A. Lee Bentley, III, U.S. Atty., Barbara C. Biddle, Jeffrica Jenkins Lee, Attorneys, Appellate Staff, Civil Div., Washington, DC, for Defendant-Appellant.
Before WILSON and ANDERSON, Circuit Judges, and VOORHEES,* District Judge.
VOORHEES, District Judge:
I.
The United States challenges subject matter jurisdiction, namely, the district court‘s partial summary judgment ruling that, under the Federal Tort Claims Act (“FTCA“),
Pursuant to the Indian Self Determination and Education Assistance Act (“Self-Determination Act” or “ISDEAA“), codified principally at
* Honorable Richard Voorhees, United States District Judge for the Western District of North Carolina, sitting by designation.
In or around March 2007, the Navajo Nation was notified of a potential adoption of a Navajo child by a non-Navajo family and a related hearing scheduled for April 2, 2007 in Jacksonville, Florida.3 The Navajo Nation referred the case to the NNCFS ICWA Unit, which was advised that the presiding state court judge was not following ICWA‘s placement preference. The Navajo Nation objected to the proposed adoptive placement. During NNCFS‘s staffing of cases with the NNDOJ, the Director of the NNCFS Program, Regina Yazzie, elected to involve NNDOJ Attorney Kandis Martine.
As an attorney for the NNDOJ, Martine serves as “the legal representative for the NNCFS Program.” According to Martine, she dedicates more than half of her time working for the NNCFS and approximately twenty percent of her time working alongside the ICWA Unit at NNCFS. Martine, described by Yazzie as an “expert on ICWA,” was asked to attend the state court adoption hearing along with a NNCFS ICWA Unit social worker. Martine obtained approval from her immediate supervisor, Assistant Attorney General, at the NNDOJ to travel to Jacksonville for the adoption hearing. The funds used for Martine‘s travel were provided by the NNCFS. The Navajo Nation, through Martine, also retained a Florida adoption lawyer, Attorney Jodi Seitlin, to represent its interests in the state proceeding. Although not licensed to practice law in the State of Florida, Martine was expected to educate Seitlin about ICWA and monitor the state court adoption proceeding relative to ICWA compliance.
On the morning of April 2, 2007, while in Jacksonville, Florida for the hearing, Martine and NNCFS social worker, Lucy Laughter-Begay, were in a car accident. At the time of the accident, Martine and
On October 2, 2009, after waiting six months for a response from the United States to the Colberts’ administrative claims, the Colberts commenced litigation in the United States District Court, Middle District of Florida, against the United States, Martine, and P.V. Holding Corporation, d/b/a “Budget Rent-A-Car System, Inc.” (“Budget“).4 The Colberts’ complaint alleged negligence and loss of consortium claims against the United States and Martine, and negligence, loss of consortium, and dangerous instrumentality claims against Budget.
The Colberts named the United States as a party-defendant based upon the Navajo self-determination contract. See
After the lawsuit was filed, the BIA denied both administrative claims on grounds that Martine was not a federal employee. Similarly, the United States Attorney for the Middle District of Florida declined to certify that Martine was an “employee of the Government” acting within the scope of her employment under
On October 25, 2010, the United States moved to dismiss the claims brought against the government pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The Colberts and Martine moved for partial summary judgment the same day, asking the Court to rule as a matter of law that FTCA coverage was available to Martine.
During the pendency of these motions, Ronald Colbert died and his wife became the designated personal representative for his estаte. On March 29, 2011, a Second Amended Complaint was filed adding a
On May 13, 2011, the district court denied the United States’ motion to dismiss and the Colberts’ and Martine‘s motions for partial summary judgment. With respect to subject matter jurisdiction, the district court found that whether Martine could properly be deemed a federal employee required an analysis of the merits and further development of the record. See
In the fall of 2012, following discovery, the Colberts renewed the motion for partial summary judgment on the same FTCA issue and Martine joined in the motion. Martine‘s motion also encompassed a request that the district court find and certify under
The district court presided over a five-day bench trial held June 10, 2013 through June 14, 2013 to determine liability and damages. On November 20, 2013, the court issued findings of fact and conclusions of law. The trial judge found thе United States eighty percent at fault and Mr. Colbert twenty percent at fault. The United States was ordered to pay the Colberts more than 2.6 million dollars in damages. On March 6, 2014, upon a
On appeal, the United States challenges the applicability of the FTCA under these facts. The district court‘s findings concerning liability and damages are not at issue.
On March 12, 2015, the Navajo Nation was granted leave of this Court to participate as amicus curiae. The Navajo Nation urges the Court to affirm in recognition of the objective of the ISDEAA and implications for future tribal employees performing ‘638 contract functions.
II.
This Court “review[s] de novo a district court‘s determination of whether it
III.
Having conducted a de novo review, we conclude that the district court‘s decision concerning subject matter jurisdiction is consistent with ISDEAA‘s statutory scheme, the terms of the governing self-determination contract, and the record evidence. We begin by considering the origin of ISDEAA.
The Congressional statement of findings present in
The Congress, after careful review of the Federal government‘s historical and special legal relationship with, and resulting responsibilities to, American Indian people, finds that—the prolonged Federal domination of Indian service programs has served to retard rather than enhance the progress of Indian people and their communities by depriving Indians of the full opportunity to develop leadership skills crucial to the reаlization of self-government, and has denied to the Indian people an effective voice in the planning and implementation of programs for the benefit of Indians which are responsive to the true needs of Indian communities.
25 U.S.C. § 450(a)(1) .
Based upon these Congressional findings, the United States declared as policy “the obligation of the United States to respond to the strong expression of the Indian people for self-determination by assuring maximum Indian participation in the direction of ... Federal services to Indian communities....”
The Indian Self Determination and Education Assistance Act implements this policy. However, as originally enacted, ISDEAA failed to account for the problem of liability insurance for tribal employees who “step into the shoes” of the federal government pursuant to these self-determination contracts. See FGS Constructors, Inc. v. Carlow, 64 F.3d 1230, 1234 (8th Cir.1995) (“Congress acknowledged that the tribal governments, when carrying out self-determination contracts, were performing a federal function and that a unique legal trust relationship existed between the tribal government and the federal government in these agreements.“); see also S.Rep. No. 107-324, at 2 (2002), available at 2002 WL 31474281 (“The Self Determination Act authorizes Indian tribes and tribal consortia to ‘step into the shoes’ of the United States and assume responsibility and managerial control of services and programs previously administered by the Federal government.“). As a result, tribal employees performing what would otherwise be “federal” work did not enjoy FTCA protection.
In 1990, Congress took additional measures and amended ISDEAA by requiring the BIA to obtain liability insurance “for Indian tribes, tribal organizations, and tribal contractors carrying out” self-determination contracts.
With respect to claims resulting from the performance of functions ... under a contract ... authorized by the [ISDEAA] ..., an Indian tribe, tribal or-
ganization or Indian contractor is deemed hereafter to bе part of the Bureau of Indian Affairs in the Department of the Interior ... while carrying out any such contract ... and its employees are deemed employees of the [BIA] ... while acting within the scope of their employment in carrying out the contract.... [A]fter September 30, 1990, any civil action or proceeding involving such claims brought hereafter against any tribe, tribal organization, Indian contractor or tribal employee covered by this provision shall be deemed to be an action against the United States and will be defended by the Attorney General and be afforded the full protection and coverage of the Federal Tort Claims Act....
See Pub.L. No. 101-512, § 314, 104 Stat. 1915 (1990) (codified at
Federal regulations confirm the intended breadth of ISDEAA‘s FTCA protection. In addition to offering FTCA protection to tribal employees paid directly pursuant to ‘638 contracts, FTCA coverage is available to tribal employees who are paid from funding derived from a source other than self-determination contract funding ”as long as the services out of which the claim arose were performed in carrying out the self-determination contract.” See
IV.
As a matter of first imprеssion, we consider the plain meaning of Section 314 of the Self-Determination Act and hold that the statutory language is unambiguous. See Lowery v. Alabama Power Co., 483 F.3d 1184, 1199 (11th Cir.2007) (internal citations omitted). Accordingly, to the extent not already defined by statute, we assign all terms their ordinary meaning. Id.8
Next, we consider the meaning of “carrying out” in the context of Section 314.10 The phrase “to carry out” has been defined as “to put into execution,” “to bring to a successful issue,” or “[t]o conduct duly to completion or conclusion; to carry into practice or to logical consequences or inferences.” Shirk v. United States, 773 F.3d 999, 1005 (9th Cir.2014) (internal citations omitted) (relying on dictionaries for the ordinary meaning of the term at or around the time of the statute‘s enactmеnt). Therefore, “carrying out” a self-determination contract simply means to act or perform under the contract.
The term “employee” is defined in part by the contours of the FTCA, which we acknowledge is an exception to the general rule that the United States enjoys sovereign immunity unless that immunity is expressly waived. See Means v. United States, 176 F.3d 1376, 1378-79 (11th Cir. 1999); see also Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir.1994) (“The FTCA is a specific, congressional exception to the general rule of sovereign immunity.“). In Means, we explained:
Congress has authorized a limited waiver of sovereign immunity under the FTCA
for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in acсordance with the law of the place where the act or omission occurred.
Means, 176 F.3d at 1378-79 (quoting
Notwithstanding the United States’ contrary position, ISDEAA‘s Section 314 means exactly what it says. Section 314 expands the United States’ waiver of sovereign immunity to Indian tribes, tribal organizations, Indian contractors, and their employees as a means of advancing the “long-standing federal policy of encouraging Indian self-determination, giving Indian tribes control over the administration of federal programs benefitting Indians.” FGS Constructors, Inc., 64 F.3d at 1234; see also Allender v. Scott, 379 F.Supp.2d 1206, 1218 n. 15 (D.N.M.2005) (responding to policy arguments of the government agencies and noting that Congress settled the question in favor of providing insurance coverage).
In addition, the parties agree that, if properly “deemed” a BIA employee, Martine was acting within the scope of her employment under Florida law and as contemplated within Section 314. Therefore, the sole issue presented for this Court is whether Martine was, in fact, carrying out the Navajo self-determination contract when the car accident occurred and, therefore, properly “deemed” a BIA employee falling within the protection of the FTCA.
In seeking to apply ISDEAA to the facts of this case, we next turn to the Navajo self-determination contract.11 See, e.g.,
Each provision of the [ISDEAA] and each provision of this Contract shall be liberally construed for the benefit of the Contractor to transfer the funding and the following related functions, services, activities and programs (or portions thereof), that are otherwise contractible ..., including all related administrative functions, from the Federal Government to the Contractor: Navajo Children and Family Services Program (ICWA).
(Contract, § A, 2). Thus, the Navajo self-determination contract effectively transfers the BIA‘s responsibility for ensuring adherence to ICWA to the Navajo Nation. To that end, the Navajo Nation created and funded NNCFS.
The Navajo self-determination contract incorporates by reference an Annual Funding Agreement (“AFA“), which itself is comprised of multiple funding-related documents, including “Attachment A,” entitled “Scope of Work.” The AFA addresses its “Program, Functions, Services and Activities“:
The Navajo Nation shall administer and perform those portions of the [BIA‘s] Navajo Children & Family Services Program identified in the Scope of Work, ... in accordance with its own laws and policies and the terms, provisions, and conditions of the Contract and this AFA and any attachments thereto....
The Scope of Work attachment identifies the specific goаls and tasks to be undertaken by the Navajo Nation under the contract. Indeed, consistent with ICWA, the Navajo Nation‘s goals are: “to prevent the break up of Navajo families, to protect the best interest of Navajo children and to promote the stability of Navajo families.” (AFA, Attach. A). The means for achieving these goals are specifically outlined as eleven enumerated functions within the Scope of Work. Here, the relevant contract functions are:
- Request coordination of legal services from the Navajo Nation Department of Justice on behalf of Navajo children and families, when applicable.
- Provide education and training on the provisions of ICWA.
- Monitor the efforts made by the State to comply with the ICWA, such as, placement preference and whether active efforts are being provided.
(AFA, § A, ¶¶ 5, 9, 11).
In addition to setting out the boundaries of the self-determination contract, the AFA speaks directly to application of the FTCA. Under the “Federal Tort Claims Act” section of the AFA:
For purposes of Federal Tort Claims Act coverage, the Navajo Nation and its employees are deemed to be employees of the Federal government while performing work under the contract. This status is not changed by the source of the funds used by the Navajo Nation to pay the employees [sic] salary and benefits unless the employee receives additional compensation for performing covered services from anyone other than the Navajo Nation.
(AFA, § O) (emphases added); see
In this case, Martine works for the NNDOJ, which in and of itself is not a party to, nor designated beneficiary of, any ‘638 contract.13 However, Martine is a member and employee of the Navajo Nation, a recognized eligible Indian tribe as defined by ISDEAA. See
V.
The district court properly found as a fact that Martine was “carrying out” the self-determination contract by performing functions identifiable in, and expressly authorized by or under, the contract, namely, Scope of Work Functions 9 and 11. According to the Government, Martine‘s licensure as an attorney, includ-
In this instance, Martine testified that her work for the NNCFS was consistent with, and in furtherance of, thе prescribed ‘638 contract goals:
“To assist our contract attorney on an adoption case in the state court of Florida.”
“[T]elling [the contract attorney] what ICWA is, providing her guidance on how the case should go, but leaving it to her as the legal representative.”
“I was present in the state of Florida for an Indian child welfare case that fell under the federal law of the Indian Child Welfare Act, in that a mother relinquished her rights to her child and requested that the child be adopted by a nonnative family. Navajo Nation objected to that. And we wanted the state court, as well as the adoptive family to realize that under the federal law, the placement preferences are that the child be placed with a Navajo family.
So my intention as a representative—a legal representative of Navajo Child & Family Services was to assist them by, first of all, locating a contract attorney to represent us in the court and to assist that contract attorney with the complexities of the Indian Child Welfare Act....”
In other words, consistent with Scope of Work Function 9, Martine made herself available to the Navajo Nation‘s contract attorney, Jody Seitlin, to educate and train Seitlin (and possibly others involved in the adoption proceeding) on ICWA. Similarly, Martine‘s physical presence at the adoption hearing enabled Martine to monitor first-hand the State‘s efforts to comply with ICWA as outlined by Scope of Work Function 11. The evidentiary record supports the district court‘s finding that, at the time of the accident, Martine was carrying out work falling squarely within the Navajo self-determination contract.
Likewise, the district court properly found that Martine was sufficiently qualified to perform Scope of Work Functions 9 and 11, and eligible for FTCA protection, despite her professional status as an attorney. The Government argues that attorneys are not contemplated by the ‘638 contract that governs here. Appellees, on the other hand, argue that under ISDEAA, the Indian tribe must be allowed discretion to determine who is needed to carry out the ‘638 contract.
There is no support within Section 314, or the Navajo self-determination contract itself, for the proposition that a tribal attorney is ipso facto not qualified to per-
[A]ll personnel employed by the Navajo Nation to carry out the Contract and this AFA shall meet the qualifications set forth by the Navajo Nation Department of Personnel Management....
(AFA § 1.2). The Government argues that, in light of the need to strictly construe waiver of its sovereign immunity, the proper construction of the ‘638 contract is to require a staffing plan that identifies “key personnel” and their qualifications in order to limit employee eligibility for FTCA protection. See
Admittedly, the AFA does not include the position of “attorney” within its listing of budgeted NNCFS personnel. However, “guidance, legal representation, and advice to Indian families” involved in child custody proceedings is precisely the type of child and family program envisioned by ICWA. See
Finally, we also hold that provision of FTCA coverage to Martine and the substitution of the United States under
AFFIRMED.
Notes
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or рersonal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section....
Upon certification by the Attornеy General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
28 U.S.C. § 2679(d)(1) .
In the event that the Attorney General has refused to certify scope of office or employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment. Upon such certification by the court, such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant....
28 U.S.C. § 2679(d)(3) .
Does FTCA cover employees of the contractor who are paid by the contractor from funds other than those provided through the sеlf-determination contract?
Yes, as long as the services out of which the claim arose were performed in carrying out the self-determination contract.
A staffing plan that is consistent with the implementation of the above-described program plan of operation and the procedures necessary for the successful delivery of services.
The plan must include proposed key personnel; their qualifications, training or experience relevant to the services to be pro-vided; responsibilities; Indian preference criteria for employment; and position descriptions.
The objective of every Indian child and family service program shall be to prevent the breakup of Indian families and to ensure that the permanent removal of an Indian child from the custody of his parent or Indian custodian shall be a last resort. Such child and family programs may include, but need not be limited to:
(8) Guidance, legal representation and advice to Indian families involved in tribal, state, or Federal child custody proceedings....