United States District Court, D. Alaska
ORDER RE MOTIONS TO DISMISS AND PETITION FOR
CERTIFICATION
Sharon
L. Gleason UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 28 and Docket 29 are the Government's
Motions to Dismiss the Complaints of Third-Party Plaintiff
Bristol Bay Native Association[1] (BBNA) and Plaintiff Tanya
Kvasnikoff, respectively.[2] At Docket 21 is BBNA's
Motion/Petition for Certification and Dismissal Under the
Westfall Act. The motions have been extensively
briefed.[3] Oral argument took place on February 13,
2018 in Anchorage, Alaska.[4] For the following reasons, the
Government's Motion to Dismiss Ms. Kvasnikoff's
Complaint against the United States at Docket 29 will be
denied, BBNA's Motion for Certification and Dismissal at
Docket 21 will be granted, and the caption will be amended as
set forth above. The Government's Motion to Dismiss
BBNA's Complaint at Docket 28 will be denied as moot.
BACKGROUND
On
September 16, 2013, Plaintiff Tanya Kvasnikoff slipped and
fell while descending a staircase at the Old Head Start
Building (the Building) in Togiak, Alaska.[5]Ms. Kvasnikoff
alleges that her fall was the result of a missing
step.[6] She sustained multiple injuries that have
resulted in pain and suffering and loss of income due to her
inability to work.[7]
On
April 20, 2016, Ms. Kvasnikoff initiated this action against
the United States. She alleges that her injury was the result
of negligence by BBNA, which owned the Building and operated
programs within it. BBNA is a consortium of Alaska Native
villages, including the Native Village of Togiak. BBNA
contracts with the United States through the Bureau of Indian
Affairs (BIA) pursuant to the Indian Self-Determination and
Education Assistance Act (ISDEAA). Ms. Kvasnikoff is a tribal
member of the Native Village of Togiak.[8]
Ms.
Kvasnikoff alleges that on the day of her injury, she had
been using the fax machine in the Building to submit
paperwork during regular business hours.[9] At the time Ms.
Kvasnikoff was on the premises, the Building was used by BBNA
for an array of purposes, including as an office, tribal
gathering hall, and a place where members of the Togiak Tribe
and community could use the facilities for community
events.[10] The Building was also used for a variety
of programs and services, and tribal members could use the
Building to perform tasks such as faxing, printing, and using
the internet as part of a workforce development
program.[11] These services were largely funded by
the United States, pursuant to its Multi-Year Funding
Agreement (FA) with BBNA.[12] The FA bound BBNA and the
United States pursuant to a Compact of Self-Governance
(Compact) to which the two parties agreed in
1995.[13]
Maintenance
of the Building was managed by James Ingram, who was an
employee of BBNA.[14] Mr. Ingram was paid exclusively by
BBNA's administrative cost pool, which was primarily
funded by the United States through the FA.[15]
LEGAL
STANDARD
Under
Federal Rule of Civil Procedure 12(b)(1), a party may move to
dismiss a court case if the court lacks subject matter
jurisdiction. Federal courts are courts of limited
jurisdiction. “A federal court is presumed to lack
jurisdiction in a particular case unless the contrary
affirmatively appears.”[16] Federal Rule of Civil
Procedure 12(b)(6) permits a party to seek dismissal of an
action for failure to state a claim for which relief can be
granted. A district court applies the “facial
plausibility” pleading standard as analyzed by the
Supreme Court in Ashcroft v. Iqbal.[17] Under that
standard, to survive a Rule 12(b)(6) motion to dismiss
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'”[18] “In support of a
motion to dismiss under Rule 12(b)(1), the moving party may
submit ‘affidavits or any other evidence properly
before the court. . . . It then becomes necessary for the
party opposing the motion to present affidavits or any other
evidence necessary to satisfy its burden of establishing that
the court, in fact, possesses subject matter
jurisdiction.'”[19]
The
Federal Tort Claims Act provides for a limited waiver of
sovereign immunity by granting federal district courts
jurisdiction over “civil actions on claims against the
United States . . . 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.”[20] Under the Indian Self-Determination and
Education Assistance Act (ISDEAA), “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.”[21]
“When
a federal employee is sued for a wrongful or negligent act,
the [Westfall Act] empowers the Attorney General to certify
that the employee ‘was acting within the scope of his
office or employment at the time of the incident out of which
the claim arose[.]'”[22]“Upon the Attorney
General's certification, the employee is dismissed from
the action, and the United States is substituted as defendant
in place of the employee. The litigation is thereafter
governed by the [FTCA.]”[23] The Act provides that
“[i]n 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.”[24]
DISCUSSION
Pursuant
to the Westfall Act, BBNA seeks certification and dismissal
from the case. Ms. Kvasnikoff agrees that this Court should
grant BBNA's petition for certification and dismiss
BBNA.[25] The Government opposes BBNA's
motion, but nevertheless seeks to dismiss BBNA on the basis
that this Court does not have jurisdiction over either
BBNA's third-party complaint or, consequently, its
petition for certification.[26]
The
Government also seeks dismissal of Ms. Kvasnikoff's
Complaint, in which Ms. Kvasnikoff alleges that because the
United States, through the Bureau of Indian Affairs,
contracted with BBNA to provide services for the local Tribal
population, her claim against BBNA is covered by the
FTCA.[27] The Government contends that this Court
does not have jurisdiction over Ms. Kvasnikoff's
Complaint against the United States because BBNA's
alleged tortious conduct was not within the scope of the FA
or the Compact and thus she cannot maintain a claim against
the United States under the FTCA.
1. The
Compact and FA Provide for FTCA Coverage
Pursuant
to the ISDEAA, BBNA and the United States agreed to the
Compact of Self-Governance in 1995.[28] The Compact effects the
transfer of control over numerous federal programs to BBNA,
allowing BBNA discretion over programs traditionally provided
by the BIA.[29] With regard to tort liability, the
Compact provides that
The signatory [BBNA] shall be fully covered by such liability
insurance or equivalent coverage that the Secretary provides
or obtains pursuant to Section 102(c) of P.L. 93-638 [the
ISDEAA], as amended. Specifically, the signatory and its
employee shall be fully covered by all liability covered
under the FTCA to the same extent as the P.L. 93-638
contractors.[30]
Pursuant
to the Compact, BBNA and the United States also agreed to the
aforementioned FA, which provides for “the assumption
of responsibility by the BBNA for the various programs,
services, functions and activities as specified in this
document.”[31] Section 22 of the FA states that
For purposes of Federal Tort Claims Act coverage, BBNA, its
participating Tribes and employees (including individuals
performing personal service contracts with the BBNA and its
participating Tribes) are deemed to be employees of the
Federal government while performing work under this AFA. This
status is not changed by the source of the funds used by the
BBNA and its participating Tribes to pay the employee's
salary and benefits unless the employee receives additional
compensation for performing covered services from anyone
other than the BBNA and its participating
Tribes.[32]
Thus,
the language of both the Compact and the FA demonstrate an
intent to broadly extend FTCA coverage to employees of BBNA.
2.
Activity is Encompassed by the Compact
The
Government nevertheless asserts that pursuant to Shirk v.
United States, there is no FTCA coverage for claims
arising out of maintenance of the Building. Shirk
established a two-part test for determining whether a
particular claim falls within the scope of Section 314 of the
ISDEAA, which generally provides that that tribal
organizations and their employees are covered by the
FTCA.[33] Under Shirk, the first step is
to determine whether the alleged activity that gave rise to
the claim is encompassed within the relevant
agreement.[34] The second step is to determine whether
the action falls within the scope of the alleged
tortfeasor's employment.[35]
With
regard to the first step, the Government asserts that
“general building or grounds maintenance” is not
listed as a covered program under the FA.[36] Accordingly,
the Government maintains that “the act or omission
giving rise to Plaintiff's ‘claim'-the failure
of tribal employee to repair tribal property resulting in the
injury to a tribal member- is, therefore, not a claim that
resulted from the performance of, or a failure to perform, a
function under the compact.”[37] While the Government is
correct in the sense that maintenance is not explicitly
listed under the FA, it seems self-evident that such
maintenance is a key component of the agreement between BBNA
and the BIA. Section 2 of the FA, which identifies BBNA
Budget Categories, includes Workforce Development,
Administration, and Community Services.[38] Carrying out
such programs presumably requires a number of functions that
do not, in and of themselves, execute the primary goal of the
programs-for example, purchasing supplies, creating a
schedule to avoid conflict over available rooms or
workspaces, or ensuring that proper electricity, heating, and
water are available in the building. However, without such
activities, the programs themselves would be virtually
impossible to carry out. The same can be said of building
maintenance, which on a basic level is fundamental to the
execution of any brick and mortar program. Furthermore, the
barebones nature of the FA-which lists only broad categories
of programs-suggests that it is not intended to serve as the
complete exhaustive list of all activities that fall within
its scope.[39]
President
and CEO of BBNA, Ralph Anderson, specifically refuted the
notion that general building maintenance is not encompassed
by the agreement. Mr. Anderson stated in an affidavit:
The cost of building maintenance is a well understood element
of ‘indirect cost' or administrative overhead under
federal costs principals, OMBS ‘Super-Circular' at
2 C.F.R. Section 200.414 includes Building maintenance costs.
[IDEAA's] indirect cost make up most of the contract
support costs BBNA receives from our compact. Building
maintenance and [the building maintenance supervisor's]
position is fully funded from BBNA's administrative costs
pool, which is primarily funded from contract support we
receive from the compact and the multi-year funding agreement
with the United States government.[40]
Furthermore,
James Ingram, who performed and managed building maintenance
on behalf of BBNA for the Building-which all parties
acknowledge is owned by BBNA-was paid with FA
funds.[41] And as described above, BBNA's
employees are deemed to be covered by the FTCA, pursuant to
both the FA and 25 CFR § 1000.275.[42] Thus, the
maintenance activity at issue was within the scope of the FA
and the Compact.
The
Government also attempts to avoid FTCA coverage by asserting
that Ms. Kvasnikoff was not on the premises for purposes of a
program that is listed on the FA. The Government asserts that
“neither the TANF [Temporary Aid for Needy Families]
nor Head Start programs are listed as covered programs [under
the FA].”[43] However, Ms. Kvasnikoff's injury
stemmed from her use of the Building for a different
purpose-one that is clearly within the scope of the FA. Ms.
Kvasnikoff claims she was utilizing the Building in order to
“submit some paperwork through the BBNA fax
facility."[44] As attested to by Mr. Anderson, such
activity was within the scope of the FA:
At the time of the plaintiff's injury, one of the
programs that BBNA compacted was Workforce Development. Under
this program and at the time of the plaintiff's injury,
Togiak Tribal Members freely used the building for completing
papers for work or for assistance, faxing, using phones,
checking something on-line, printing, and also in training
and education. At that time of the plaintiff's injury and
as alleged in the complaint, my understanding is that she was
in the building to complete and fax such
papers.[45]
Ms.
Kvasnikoff asserts that “Alaska Native beneficiaries
must be able to safely obtain services offered under the
[FA], including workforce development, assistance and
education.”[46] Indeed, it seems clear that implied
within BBNA's permission for tribal members to utilize
the premises for FA purposes is the right to safe access of
...