VOORHEES, District Judge:
The United States challenges subject matter jurisdiction, namely, the district court's partial summary judgment ruling that, under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 et seq., and pursuant to the self-determination contract entered into between the United States Department of Interior, Bureau of Indian Affairs ("BIA") and the Navajo Nation Tribe, 25 U.S.C. § 450f
Pursuant to the Indian Self Determination and Education Assistance Act ("Self-Determination Act" or "ISDEAA"), codified principally at 25 U.S.C. § 450, et seq., Congress created a mechanism for Indian tribes and tribal organizations to enter into agreements with the United States providing for the tribe or organization to assume responsibility for programs or services to Indian populations that otherwise would be provided by the Federal government.
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.
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").
The Colberts named the United States as a party-defendant based upon the Navajo self-determination contract. See 25 U.S.C. § 450f(a)(1)(b). Inclusion of the United States as a party was premised on the theory that Martine is considered a federal employee for purposes of the FTCA when performing work under the self-determination contract. § 450f(c)(1).
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 28 U.S.C. § 2679(d)(1).
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 estate. 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 Fed.R.Civ.P. 12(b)(1). The court also found that, at that stage of the case, genuine issues of material fact precluded decision on the FTCA coverage issue. See Fed.R.Civ.P. 56.
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 28 U.S.C. § 2679(d)(3) that Martine is entitled to FTCA coverage.
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 the 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 Rule 59(e) motion filed by the Government, the damages award was subsequently reduced, resulting in a final judgment against the United States in the amount of $2,599,691.20.
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.
This Court "review[s] de novo a district court's determination of whether it
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 25 U.S.C. § 405 provides that:
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...." Id. § 450a(a). Likewise, the Congress declared its commitment to "establish[] a meaningful Indian self-determination policy which will permit an orderly transition from the Federal domination of programs for, and services to, Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services." Id. § 450a(b).
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. 25 U.S.C. § 450f(c)(1). Section 314 of the ISDEAA provides in pertinent part:
See Pub.L. No. 101-512, § 314, 104 Stat. 1915 (1990) (codified at 25 U.S.C. § 450f notes). Therefore, as a result of the 1990 Amendment to ISDEAA (commonly referred to as "Section 314"), Congress provided that Indian tribes, tribal organizations, Indian contractors, and their employees, may be deemed employees of the BIA for purposes of the FTCA when they are carrying out functions authorized in or under a self-determination contract. Id.
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 a matter of first impression, 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.
Next, we consider the meaning of "carrying out" in the context of Section 314.
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:
Means, 176 F.3d at 1378-79 (quoting 28 U.S.C. § 1346(b)) (emphasis added); see also United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). "Whether an individual is an employee
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.
(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 Scope of Work attachment identifies the specific goals 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:
(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:
(AFA, § O) (emphases added); see 25 C.F.R. § 900.186(a) (model FTCA clause). The AFA speaks broadly in terms of FTCA coverage being available for
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.
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, including
In this instance, Martine testified that her work for the NNCFS was consistent with, and in furtherance of, the prescribed '638 contract goals:
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 perform
(AFA § I.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 25 C.F.R. § 23.23(b)(6)(i)-(ii).
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 25 U.S.C. § 1931(a); 25 C.F.R. §§ 23.13(a)-(f) and 23.22(a)(6)(2014).
Finally, we also hold that provision of FTCA coverage to Martine and the substitution of the United States under 28 U.S.C. § 2679(d)(3), does not constitute an improper extension of the waiver of sovereign immunity. First, as previously discussed, Section 314 of ISDEAA is unambiguous and plainly extends the United States' waiver of sovereign immunity to Indian tribes, tribal organizations, Indian contractors and their employees that are engaged in "carrying out" functions authorized in or under a self-determination contract. Secondly, because Martine's work fell squarely within the identifiable functions of the Navajo self-determination contract, the district court's application of the law to these facts comports with the above-referenced sovereign immunity principles, including the FTCA.
28 U.S.C. § 2675(a).
28 U.S.C. § 2679(d)(1).
28 U.S.C. § 2679(d)(3).
25 C.F.R. § 900.197. Section 900.197 was promulgated after public notice and comment and has the force and effect of law. See Perez v. Mortgage Bankers Ass'n, ___ U.S. ___, 135 S.Ct. 1199, 1203, 191 L.Ed.2d 186 (2015) ("Rules issued through the notice-and-comment process are often referred to as `legislative rules' because they have the `force and effect of law.'") (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302-03, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979)).
25 C.F.R. § 23.23(b)(6)(i). Here, the Navajo self-determination contract includes a staffing plan in the Scope of Work and other AFA attachments.
25 C.F.R. § 23.22(a)(8) (emphasis added).