Two Eagle v. United States

57 F.4th 616

Lonnie TWO EAGLE, Sr. Plaintiff - Appellant

v.UNITED STATES of America Defendant - Appellee

No. 22-1683

United States Court of Appeals, Eighth Circuit.

Submitted: November 17, 2022

Filed: January 11, 2023

Counsel who presented argument on behalf of the appellant and appeared on the appellant's brief, was Jon J. LaFleur, of Rapid City, SD.

Counsel who presented argument on behalf of the appellee and appeared on the appellee's brief, was Michaele Sanders Hofmann, AUSA, of Rapid City, SD.

Before BENTON and ERICKSON, Circuit Judges, and BUESCHER,¹ District Judge.

BUESCHER, District Judge.

Lonnie Two Eagle, Sr., sued the United States pursuant to the Federal Tort Claims Act (FTCA) after an employee of a hospital operated by the Indian Health Service (IHS) struck Two Eagle with his vehicle. The district court² concluded that it lacked subject-matter jurisdiction because United States’ sovereign immunity applied to Two Eagle's claims. We affirm.

I. BACKGROUND

Rosebud Comprehensive Healthcare Facility (Rosebud Health) is a hospital operated by the IHS within the Rosebud Sioux Tribe reservation in South Dakota. Rosebud Health employed Chad Sully as a cook.

On August 5, 2019, Sully was scheduled to work a double shift at Rosebud Health. Sully started his workday at 6:00 a.m. and started his lunch break sometime between 12:45 p.m. and 1:00 p.m. While on his lunch break, Sully drove home to take a nap, stopped at a post office to check his mail, and then began driving back to Rosebud Health. Around 1:40 p.m., as Sully approached Rosebud Health on Hospital Drive—the only road leading to the hospital—he suffered a seizure and lost control over his vehicle. At that time, Two Eagle was operating a riding lawnmower near Hospital Drive and the hospital. Sully's vehicle struck Two Eagle, causing severe injuries. The district court found that the accident occurred off Rosebud Health's premises, although Two Eagle disputes that finding on appeal.

Prior to this tragic accident, Sully had suffered seizures in January, March, and April of 2019. On April 16, 2019, Sully had a telemedicine appointment with Dr. Matthew Smith, who provided telemedicine services at Rosebud Health through a contract executed between Rosebud Health and Avera eCare (Avera). Dr. Smith instructed Sully not to drive until Sully was seizure-free for six months. However, during a subsequent telemedicine appointment on July 23, 2019, Dr. Smith authorized Sully to resume driving in August of 2019, about two months earlier than Dr. Smith's previous instruction.

Two Eagle filed suit against the United States pursuant to the FTCA. In his complaint, Two Eagle claimed that Sully was negligent by driving despite his prior seizures; Sully's supervisor was negligent for not preventing Sully from driving; and Dr. Smith was negligent for releasing Sully to drive. The United States moved the district court under Federal Rule of Civil Procedure 12(b)(1) to dismiss Sully's complaint for lack of subject-matter jurisdiction. The district court granted the motion, concluding that Sully was not acting within the scope of his employment when the accident occurred; the discretionary function exception applied to Two Eagle's claim regarding Sully's supervisor; and Dr. Smith was not a federal employee. Two Eagle appeals each of the district court's conclusions.

II. ANALYSIS

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges a court's subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). When the moving party makes a factual attack on the court's subject-matter jurisdiction, as the United States does here, the district court may look outside the pleadings and weigh evidence. See Osborn v. United States , 918 F.2d 724, 729–30 (8th Cir. 1990). The plaintiff bears the burden to establish subject-matter jurisdiction. See Croyle by & through Croyle v. United States , 908 F.3d 377, 381 (8th Cir. 2018). We review the district court's resolution of factual disputes for clear error and its decision on whether it lacks subject-matter jurisdiction de novo . See Compart's Boar Store, Inc. v. United States , 829 F.3d 600, 604 (8th Cir. 2016).

A. Scope of Employment

Count I of Two Eagle's complaint alleges that Sully acted negligently by driving despite his history of seizures. The district court dismissed this count for lack of subject-matter jurisdiction because Sully was not acting within the scope of his employment when the accident occurred. We agree.

Absent a waiver, sovereign immunity bars claims against the United States. See Hart v. United States , 630 F.3d 1085, 1088 (8th Cir. 2011). By passing the FTCA, "Congress waived the United States’ sovereign immunity for claims arising out of torts committed by federal employees." Ali v. Fed. Bureau of Prisons , 552 U.S. 214, 217–18, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008). Subject to certain exceptions, the United States will be liable for the torts committed by federal employees acting within the scope of their employment "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1).

As an initial matter, Two Eagle asserts that the district court erred by deciding the scope-of-employment issue on a Rule 12(b)(1) motion to dismiss because it is intertwined with the merits of his negligence claim, necessitating a trial on the merits to resolve it. See Magee v. United States , 9 F.4th 675, 682 (8th Cir. 2021) (noting that a jurisdictional issue may be "so bound up with the merits that a full trial on the merits is needed to resolve the question"). To the contrary, in an FTCA negligence case, whether the employee was acting within the scope of employment is a threshold jurisdictional issue properly resolved via a Rule 12(b)(1) motion. See id. at 680 ; see also Brownback v. King , ––– U.S. ––––, 141 S. Ct. 740, 746, 749, 209 L.Ed.2d 33 (2021) (characterizing "acting within the scope of ... employment" under the FTCA as a "jurisdictional element"). Whether Sully was acting within the scope of employment is a separate question from whether he acted negligently. See Magee , 9 F.4th at 682 ("Whether [the tortfeasor's] conduct was within the scope of his employment is unrelated to the merits question of whether his conduct was negligent."); Johnson v. United States , 534 F.3d 958, 964 (8th Cir. 2008) (characterizing the scope-of-employment issue as "unrelated" to whether conduct is negligent). The district court did not err in ruling on the scope-of-employment issue.

Turning to the question of whether Sully was acting within the scope of his employment, Two Eagle emphasizes that the accident occurred close to Rosebud Health and that Sully had been traveling on Hospital Drive, which is the only road leading to the hospital. Two Eagle also claims that Sully was being paid at the time of the accident. In response, the United States stresses that Sully was driving back to work in his own vehicle during his lunch break when the accident occurred. The United States argues that Sully's actions solely served his own interests and did not further Rosebud Health's business.

Under the FTCA, when the allegedly tortious conduct occurs within the boundaries of both a tribal reservation and a state, the law of the state applies. See Sorace v. United States , 788 F.3d 758, 763 (8th Cir. 2015). Thus, South Dakota law governs the scope-of-employment issue in this case.

"In South Dakota, ‘[t]he ancient doctrine of respondeat superior is well established as holding an employer or principal liable for the employee's or agent's wrongful acts committed within the scope of the employment or agency.’ " Tammen v. Tronvold , 965 N.W.2d 161, 168–69 (S.D. 2021) (quoting Kirlin v. Halverson , 758 N.W.2d 436, 444 (S.D. 2008) ). South Dakota adheres to the "going and coming rule, which precludes an employer's liability, as a matter of law, when an employee is ‘going to and coming from work[.]’ " Id. at 169 (quoting S. Dakota Pub. Entity Pool for Liab. v. Winger , 566 N.W.2d 125, 131 (S.D. 1997) ). Under South Dakota law, two inquiries guide the application of the going and coming rule: "(1) whether the employer had control over the employee's commute, and (2) whether the employer derives a benefit from the employee's commute." Id. at 170. Ultimately, if the plaintiff's injuries resulted from "risks and hazards to which all members of the traveling public are subject rather than risks and hazards having to do with and originating in the work or business of the employer[,]" the employer is not liable. Id. at 171 (quoting Texas Gen. Indem. Co. v. Bottom , 365 S.W.2d 350, 353 (Tex. 1963) ).

We agree with the United States that South Dakota's "going and coming rule" applies in this case. The accident occurred while Sully was returning to work after taking his lunch break. Rosebud Health had no control over Sully driving back from his lunch break and derived no benefit from it. The fact that Sully was on the only road leading to the hospital does not mean that Rosebud Health controlled Sully's travel. Sully's errands during his break did not benefit Rosebud Health because they were unconnected to his duties as a cook. See id. at 170. Although Two Eagle contends that Rosebud Health was paying Sully at the time of the accident, even if this was the case, this does not demonstrate that his activities at the time were closely connected with what he was employed to do at Rosebud Health. Cf. Kirlin , 758 N.W.2d at 444 ("[W]ithin the scope of employment ... refer[s] to those acts which are so closely connected with what the servant is employed to do ...." (first and third alterations in original) (internal quotation marks omitted) (quoting Deuchar v. Foland Ranch, Inc. , 410 N.W.2d 177, 180 (S.D. 1987) )). Two Eagle's injuries, unfortunate as they may be, arose from "risks and hazards to which all members of the traveling...