Beetus v. United States

527 F.Supp.3d 1075

Chantel Sharae Louise BEETUS, Plaintiff,

v.UNITED STATES of America, Defendant.

Case No. 4:19-cv-00044-SLG

United States District Court, D. Alaska.

Signed March 22, 2021

A. Cristina Weidner Tafs, Susitna Law, LLC, Phillip Paul Weidner, Lisa Rosano, Phillip Paul Weidner & Associates, Anchorage, AK, for Plaintiff.

Dustin Michael Glazier, U.S. Attorney's Office, 222 West 7th Avenue, RM, for Defendant.

ORDER RE MOTION TO DISMISS

Sharon L. Gleason, UNITED STATES DISTRICT JUDGE

Before the Court at Docket 10 is Defendant United States of America's Motion to Dismiss. Plaintiff Chantel Sharae Louise Beetus opposed at Docket 20. The United States replied at Docket 25. Oral argument was not requested and was not necessary to the Court's decision. For the following reasons, the United States' Motion to Dismiss will be denied.

I. BACKGROUND

A. Statutory Background

In 1975, Congress passed the Indian Self–Determination and Education Assistance Act ("ISDEAA").¹ "The ISDEAA created a system by which tribes could take over the administration of programs operated by the [Bureau of Indian Affairs]."² Pursuant to the ISDEAA, a tribe "receiving a particular service from the BIA may submit a contract proposal to the BIA to take over the program and operate it as a contractor and receive the money that the BIA would have otherwise spent on the program."³ To further promote Indian self-determination, Congress enacted the Tribal Self–Governance Act of 1994 ("TSGA") as an amendment to the ISDEAA.⁴ The TSGA permits certain tribes to enter into self-governance compacts with the federal government.⁵ The self-governance compacts "become the basis for annual funding agreements that ‘give the tribes a block of funding that they can allocate as they see fit,’ thus ensuring greater tribal control over the design and implementation of compact programs."⁶ Together, the ISDEAA as amended by the TSGA "enable[s] tribes to run health, education, economic development, and social programs for themselves. This strengthened self-government supported Congress' decision to authorize tribes to withdraw trust funds from Federal Government control and place the funds under tribal control."⁷

After it enacted the ISDEAA, Congress extended the Federal Tort Claims Act's ("FTCA") waiver of sovereign immunity to certain claims resulting from the performance of ISDEAA contracts or agreements.⁸ The extension, commonly known as Section 314, provides:

[A]n Indian tribe, tribal organization or Indian contractor is deemed hereafter to be part of the Bureau of Indian Affairs in the Department of the Interior or the Indian Health Service in the Department of Health and Human Services while carrying out any such contract or agreement and its employees are deemed employees of the Bureau or Service while acting within the scope of their employment in carrying out the contract or agreement ... [A]ny 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 ... afforded the full protection and coverage of the Federal Tort Claims Act.⁹

In short, Indian tribes, tribal organizations, Indian contractors, and their employees are protected by the FTCA when they are carrying out functions authorized in or under an ISDEAA agreement or contract, and the United States is subject to potential tort liability for the acts or omissions of tribal employees.¹⁰

Whether the actions of Tanana Chiefs Conference ("TCC")¹¹ and Tanana Tribal Council ("TTC")¹² , and their employees, while allegedly carrying out an ISDEAA agreement or contract, falls within the ambit of Section 314, thereby subjecting the United States to potential FTCA liability, is at issue in this case.

B. Factual & Procedural Background

Ms. Beetus initiated this action on December 19, 2019.¹³ Plaintiff, who was a minor at the time, alleges that she was sexually assaulted by Eric Adams, an employee of TCC and/or TTC, while attending a cultural and wellness camp ("Culture Camp") on an island in the Yukon River about 16 miles upriver from Tanana Village, Alaska, in June 2017.¹⁴ Mr. Adams was a boat operator responsible for transporting camp participants to and from the island camp.¹⁵ Plaintiff brings various tort claims, primarily alleging that the sexual assault was proximately caused by TCC's and/or TTC's failure to adequately safeguard minor camp participants and hire, train, and supervise employees, including Eric Adams, among other claims.¹⁶

The Complaint further alleges that the Culture Camp was organized, managed, and funded pursuant to an ISDEAA contract or agreement between the United States and TCC and/or TTC.¹⁷ Since Ms. Beetus asserts that the alleged conduct of TCC and/or TTC—and their employees—occurred while carrying out an ISDEAA contract or agreement, Ms. Beetus invokes Section 314 to construe her claims as an action against the United States pursuant to the FTCA.¹⁸ On June 15, 2020, the Government moved to dismiss for lack of subject matter jurisdiction.¹⁹

II. LEGAL STANDARDS

A. Rule 12(b)(1) Motion

The question of whether the United States has waived its sovereign immunity under the FTCA is one of subject matter jurisdiction and may be considered under Federal Rule of Civil Procedure 12(b)(1).²⁰ Pursuant to Rule 12(b)(1), a defendant may attack a complaint for lack of subject matter jurisdiction either by a "facial" or a "factual" attack.²¹ In a facial attack, the defendant challenges the complaint by arguing that the complaint lacks jurisdiction "on [its] face."²² In a factual attack, a defendant presents extrinsic evidence to demonstrate that the complaint lacks jurisdiction based on the facts of the case.²³ When resolving a factual attack on jurisdiction, a court "need not presume the truthfulness of the plaintiff's allegations."²⁴ "Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction."²⁵ "The plaintiff bears the burden of proving by a preponderance of the evidence that each of the requirements for subject-matter jurisdiction has been met."²⁶

B. Shirk Analysis

In Shirk v. United States ex rel. Department of the Interior , the Ninth Circuit Court of Appeals laid out a two-step analytical test to determine whether the action of a tribal employee falls within the ambit of Section 314, thereby subjecting the United States to potential tort liability pursuant to the FTCA.²⁷ First, a court "must determine whether the alleged activity is, in fact, encompassed by the relevant [ISDEAA] federal contract or agreement" between a tribe, tribal organization, or Indian contractor and the United States.²⁸ Second, a court "must decide whether the allegedly tortious action falls within the scope of the tortfeasor's employment under state law."²⁹ The scope of the relevant ISDEAA contract or agreement "defines the relevant ‘employment’ for purposes of the scope of employment analysis at step two."³⁰ As a tribal employee's actions are covered by the FTCA only if both prongs are met, a "plaintiff's failure at either step is sufficient to defeat subject matter jurisdiction."³¹

DISCUSSION

The United States moves to dismiss the Complaint on the basis that Plaintiff fails to satisfy both steps of the Shirk test. The United States presents a factual attack by attaching multiple exhibits to its motion.³²

I. Shirk Step One

With regard to TCC's potential liability, the United States asserts that the TCC only provided "pass-through funding" to TTC, which was purportedly operating the camp as an independent contractor.³³ The United States points to the Service Contract between TCC and TTC for the Culture Camp, which contains an independent contractor provision.³⁴ Because the FTCA expressly excludes coverage for acts or omissions of "contractors," the United States contends that TCC cannot be held liable pursuant to Section 314.³⁵ As to TTC's potential liability, the United States contends that TTC's Self-Determination Agreement and Annual Funding Agreement do not "contain any mention of an agreement to use funding for" a Culture Camp.³⁶ As such, the United States concludes that TTC's alleged conduct did not result "from the performance of, or a failure to perform" a relevant ISDEAA contract or agreement, thereby failing the first Shirk prong.³⁷

Plaintiff responds that the United States' independent contractor argument is an attempt to create "an artificial barrier" between TCC and TTC, when in fact, "[TCC] and [TTC] administered the Culture Camp as a joint effort."³⁸ Plaintiff identifies TCC's Funding Agreement—which is a separate agreement from TTC's Self-Determination Agreement and Annual Funding Agreement—as the relevant ISDEAA agreement, and notes that it expressly applies the FTCA to both TCC and tribal villages, such as TTC.³⁹

Here, it appears that the relevant ISDEAA contract or agreement for both TCC and TTC is the Tanana Chiefs Conference's Funding Agreement with the Indian Health Service for Fiscal Years 2015–2017 ("TCC's Funding Agreement").⁴⁰ As both parties distinguish TCC and TTC in some manner, the Court will address each in turn.

With respect to TCC, the United States acknowledges that TCC employees were carrying out certain aspects of the Culture Camp as authorized by TCC's Funding Agreement. According to the United States, "TCC provided administrative and other support for the Camp ... pursuant to Sections 3.1.17, 3.1.17.1, and 3.1.17.2 of TCC's" Funding Agreement.⁴¹ For example, "TCC's behavioral health and wellness and prevention staff attended the Native Village of Tanana's Culture Camp and provided health and wellness programing for the children, and also provided materials for...