Lightning Fire et al v. The United States of America

Filing 34

OPINION AND ORDER granting 19 Motion to Dismiss. Signed by U.S. District Judge Roberto A. Lange on 5/9/2017. (JLS)

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FILED UNITED STATES DISTRICT COURT MAY 09 2017 DISTRICT OF SOUTH DAKOTA 'CLERK CENTRAL DIVISION DENISE LIGHTNING FIRE, ON BEHALF OF AND AS LEGAL GUARDIANS OF S C,A MINOR CHILD, WAKIYAN PETA,ON 3 I5-CY-030I5-RAL BEHALF OF AND AS LEGAL GUARDIANS OF S C,A MINOR CHILD, S C ,A MINOR CHILD, AARON D EIESLAND,ON BEHALF OF AND AS GUARDIANS AD LITEM OF OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS S C ,A ME^OR CHILD, AND JAMES CERNEY,ON BEHALF OF AND AS GUARDIANS AD LITEM OF S C , A MINOR CHILD, Plaintiffs, vs UNITED STATES OF AMERICA, Defendant Plamtiffs Denise Lightning Fire and Wakiyan Peta are the legal guardians of S C, a minor child. Plaintiffs Aaron D Eiesland and James Cemey are the guardians ad Iitem for S C (collectively Plaintiffs) The Plamtiffs have sued the Umted States under the Federal Tort Clarnis Act(FTCA), 28 U S C §§ 1346(b), 2671-2680, alleging that the negligence of a federal employee caused S C to be burned by hot oil while cooking fiybread at the Cheyenne-Eagle Butte School Doc 1 The Umted States filed an answer admittmg that S.C was mjured while usmg hot oil, but denying liability Doc 7 The Umted States then filed a motion to dismiss for lack ofjurisdiction under Rule 12(h)(3),' or in the alternative, a motion for summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure Doc 19 Plaintiffs opposed the United States' motions, and both parties submitted additional matenals outside the pleadings Docs. 21-23, 28-31, 32-33. For the reasons explained below, this Court grants Defendant's motion to dismiss I. Facts of Incident and Pleadings The facts of this case are relatively uncontested and straightforward On January 17, 2014, S C was a student attendmg the Cheyenne-Eagle Butte School on the Cheyenne River Indian Reservation and participatmg m her home economies class,^ leammg how to make stuffed frybread Doc 1 at H 7 As S C was puttmg her piece of firybread into the hot oil, water on the fork contacted the hot oil and caused the oil to spatter onto her hand, wnk,neck and face Doc 1 at ^ 8 After S C screamed m pam, her teacher, Peggy Henson, began miming cold water over the bums and notified the school office Doc 1 at ^ 9 S C was taken to the Eagle Butte Indian Health Services facility for treatment Doc latT[10 Plaintiffs presented an administrative claim for S C's injuries, pain and suffering, and emotional distress to the Bureau of Indian Affairs(BIA) and the Supermtendent of the Cheyenne River Sioux Tnbe m September 2014, and an administrative claim to the Bureau of Indian Education (BIE) and the Cheyenne-Eagle Butte School m January 2015 Doc 1 at 4-5 In March 2015, Plaintiffs' administrative claim was denied Doc 1 at ^ 6 In September 2015, 'The United States' motion to dismiss. Doc 19, moves to dismiss under Rule 12(h)(1) of the Federal Rules of Civil Procedure, which involves the waiver of affirmative defenses, but the accompanymg pleadmg. Doc 20, and the reply, Doc 32, identify Rule 12(h)(3) as the grounds for dismissal based on a lack of subject matter junsdiction ^ S C's class appears to be titled "Family and Consumer Science (FACS)," but is known throughout the depositions and m common parlance as a home economics class, or a nutrition and wellness class Plaintiffs filed this claim under the FTCA, requesting damages for S C's physical pain, loss of enjoyment of life, mental and emotional suffering, past and fiiture medical expenses, prejudgment interests, costs and attorney's fees, as well as any other relief this Court may order Doc 1 at 7 The Umted States answered the Complamt, admittmg that S.C was injured with hot oil during her class, but denying that S C's teacher, Henson, was a federal employee Doc 7 at 7-8 The Umted States then filed a motion to dismiss or alternatively a motion for summary judgment Doc 19 The motion to dismiss argued that Henson was not a federal employee for purposes of the FTCA, so this Court did not have subject matter jurisdiction over the Plaintiffs' complamt Doc 20 at 12 The motion for summary judgment argued in the alternative that if this Court found Henson to be a federal employee, her conduct was protected under the discretionary function exception to the FTCA Doc 20 at 20 In accord with Local Rule 56 1, the United States' motion for summary judgment was accompanied by a statement of undisputed matenal facts, as well as supporting documents and affidavits Docs 21-23 These contamed statements and facts relevant to both the junsdictional issue framed by the motion to dismiss and the FTCA issue m the motion for summary judgment The Plaintiffs filed a memorandum m opposition to the motion to dismiss or motion for summary judgment, a response to the United States' statement of material facts, their own statement of disputed material facts, and supporting documents Docs 28-31 Like the United States' materials, these contamed statements and facts relevant to both the motion to dismiss and the motion for summary judgment The United States then filed a reply along with additional supporting documents Docs 32-33 II. Motion to Dismiss Standard under Rule 12(h)(3) The United States asserts lack of federal court subject matter junsdiction and has moved to dismiss under Rule 12(h)(3) ofthe Federal Rules of Civil Procedure Doc 19, Doc 20 at 8-9 Under Rule 12(h)(3),"[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action" Fed R Civ. P. 12(h)(3) A Rule 12(h)(3) motion to dismiss IS analyzed under the same standards as a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction See Gates v Black Hills Health Care Svs (BHHCS). 997 F Supp 2d 1024, 1029(DSD 2014)(citmg Berkshire Fashions. Inc v MV Hakusan II. 954 F 2d 874, 879 n 3 (3rd Cir 1992)) A Rule 12(h)(3) motion differs from a Rule 12(b)(1) motion only m that it can be brought at any time, by any party or interested individual, or sua sponte by the court, a Rule 12(b)(1) motion must be made before any responsive pleadmg S^ Fed R Civ P 12(b) ("A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed "), 5B Charles Alan Wnght et al, Federal Practice & Procedure § 1350(3ded) "In order to properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the complamt must be successfiilly challenged on its face or on the factual truthfulness of its averments" Titus v Sullivan. 4 F 3d 590, 593 (8th Cir 1993). In any case, "[t]he burden of proving subject matter jurisdiction falls on the plaintiff" V S Ltd P'ship v Den't of Hons & Urban Dev . 235 F 3d 1109, 1112 (8th Cir 2000), see also Barnes v United States. 448 F.3d 1065, 1066 (8th Cir 2006)(explaining the sovereign immunity of the United States, but "if the plaintiff shows that the govemment has unequivocally waived that immunity," the case can be heard) A facial challenge is limited to the allegations in the plaintiffs' complamt, and the court must view the allegations m the light most favorable to the plaintiffs Stallev v Catholic Health Initiatives. 509 F 3d 517, 521 (8th Cir. 2007) "The plaintiff must assert facts that affirmatively and plausibly suggest that the pleader has the nght he claims (here, the nght to junsdiction), rather than facts that are merely consistent with such a right" 1^ In contrast, where a factual attack is made on the court's subject matter jurisdiction, because "its very power to hear the case" IS at issue, "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the ease," without transforming the motion into one for summary judgment. Osbom v United States. 918 F 2d 724, 730(8th Cir 1990)(quotmg Mortensenv First Fed Sav & Loan Ass'n. 549 F 2d 884, 891 (3rd Cir 1977)), see also Gould. Inc v Peehmev Ugme Kuhlmann. 853 F 2d 445, 451 (6th Cir 1988)("When a challenge is to the actual subject matter jurisdiction of the court, as opposed to the sufficiency of the allegation of subject matter junsdiction m the complamt which may be cured by an amendment to the pleadmg, the distnct court has the power to resolve any factual dispute regardmg the existence of subject matter jurisdiction.") In a factual attack on a court's jurisdiction, "the court considers matters outside the pleadmgs, and the non-movmg party does not have the benefit of [Rule] 12(b)(6) safeguards" Osbom.918 F 2d at 729 n 6(mtemal citation removed) Although the United States does not state whether its Rule 12(h)(3) motion is a facial or factual challenge, it has quoted only the language from Osbom that refers to a factual challenge under Rule 12(b)(1) Doe. 20 at 8-9(quotmg Osbom. 918 F 2d at 730) It has meluded a factual background statement section for its combmed motions. Doc 20 at 3, and alleges throughout its pleadings "that the jurisdietional allegations of the complaint [are] not true," Kems v United States. 585 F 3d 187, 192 (4th Cir 2009)(alteration m ongmal)(mtemal quotation removed) See Doc 20 at 20("Henson is not a federal employee ") Further suggesting a factual attack on this Court's jurisdiction, the United States has filed supporting exhibits regarding the junsdictional issue that are not referenced in the Complaint Docs 22-2, 22-4, 22-6 The Plamtiffs likewise did not identify what standard applies to this challenge to subject matter jurisdiction in their response See Doc 28 at 2—3. However, the Plaintiffs'response to the United States' statement of undisputed material facts includes specific admissions and denials relatmg to the junsdictional question See Doe 29 at 1—12 In addition, the affidavits, depositions, and exhibits filed by the Plaintiffs address both the question of the existence of any underlying negligence causing S C's injury, and the question of whether Henson is a federal employee under the PICA See, e g. Doc 31-1, Docs 28-31 Plamtiffs therefore have had the opportumty to present faets by affidavit and deposition consistent with their burden of establishmg subject matter junsdiction m response to a faetual Rule 12(b)(1) motion to dismiss See Osbom. 918 F 2d at 730 (explaining that a court may hold an evidentiary hearmg on the issue of jurisdiction, that "motion may be supported with affidavits or other documents," and "[if] necessary, the district court can hold a hearing at which witnesses may testify," because there is no required format for such a hearing,'"any rational mode of inquiry will do'" (quoting Crawford v Umted States. 796 F 2d 924, 929 (7th Cn 1986))), Titus. 4 F 3d at 593 (explammg that in a faetual attack on jurisdiction, "the court may receive competent evidence such as affidavits, deposition testimony, and the like in order to determine the factual dispute"), Johnson V Umted States. 534 F 3d 958, 964(8th Cir 2008)(upholding dismissal where the distnct court ruled on the government's 12(b)(1) motion without holding an evidentiary hearing where neither party requested sueh a hearing and "the parties had ample opportunity to be heard through affidavits and briefs"), Gould. 853 F 2d at 451, Mortensen. 549 F.2d at 892 n.l8 ("[T]he record must clearly establish that after junsdiction was challenged the plamtiff had an opportumty to present facts by affidavit or by deposition, or in an evidentiary hearing, in support of his junsdictional contention ") Although some material facts may remain in dispute,^ "the material facts m dispute are relevant to the 'question of actual negligence' and not as to whether subject matter jurisdiction exists," Mover Packing Co v United States, 567 F Supp. 2d 737, 749(E D. Penn 2008), and thus no evidentiary heanng is requned Those disputed issues of material fact as identified by the Plaintiffs do not need to be settled to determine whether subject matter junsdiction exists because they are not mextncably entwined with the junsdictional issue See Osbome. 918 F 2d at 730 ("In the case before us, the statute of limitations inquiry is clearly severable from the merits of the [plaintiffs'] claim "), Iowa League of Cities v E P A . 711 F 3d 844, 861 (8th Cir 2013)(proceedmg to evaluate the ments of a junsdictional claun although disputed matenal facts existed (quotmg Osbom, 918 F 2d at 729-30 & n 6)) The Eighth Circuit has deemed that even the question of whether an employee was actmg withm the scope of their federal employment when the alleged act of negligence occurred is not enough to necessitate a full tnal on the ments to resolve the junsdictional question Johnson. 534 F 3d at 964 ("[Gjenerally, whether an employee's actions are within the scope of their employment is a question of fact, [but] we fail to see how the factual nature of this mquiry somehow renders the junsdictional issue so bound up with the merits that a fiill trial on the merits is necessary to resolve the issue [W]hether Little Light's conduct was within the scope of his employment is unrelated to whether Little Light's conduct was negligent, which is the most important issue on the merits"(internal quotation and citation removed)) ^ The Plaintiffs have filed a "Statement of Issues Still m Dispute," containing seven statements that concern only the alleged negligence on the part of Henson and the admmistration of the Cheyenne-Eagle Butte High School, and the amount of damages S C has incurred Doc 30 In considering the supporting documents attached by both parties, this Court is not converting the United States' Rule 12(h)(3) motion into a Rule 56 motion for summary judgment, where different standards and burdens apply Instead, this Court eonsiders only the matenal relevant to the junsdictional question regarding whether Henson is a federal employee, not matenal relating to the underlymg negligence question Only if this Court were to determine that Henson is a federal employee for FTCA purposes would it then consider the United States' motion for summary judgment under the Rule 56 standard This Court must resolve the United States' motion to dismiss under Rule 12(h)(3) first, because if it laeks the junsdietion to hear the claim, it cannot proceed any further, such as to consider whether to grant summary judgment See Gesmger v Burwell. 210 F Supp 3d 1177, 1186(DSD 2016)(citing Bell v Hood, 327 U S 678,682(1946)) III. Discussion A. FTCA Overview and "Employee of the Government" Standard "The United States, as sovereign, is immune from suit save as it consents to be sued." Umted States v Sherwood. 312 U S. 584, 586 (1941) Congress has the ability to waive the United States' sovereign immunity, and "prescribe the terms and conditions on which [the United States] consents to be sued, and the manner in which the suit shall be conducted" Mader V Umted States. 654 F 3d 794, 797 (8th Cir. 2011) (alteration m ongmal) (quoting Beers v State. 61 U.S (20 How) 527, 529 (1857)) In a case agamst the Umted States, the waiver of sovereign immumty defines the bounds of a court's jurisdiction See F D.I.C v Mevcr. 510 U.S. 471, 475 (1994); Umted States v Navaio Nation. 537 U S 488, 502 (2003)(explaimng that the United States' consent to suit is a "prerequisite for jurisdiction" (quoting United States v Mitchell. 463 U S 206, 212(1983)) In 1946, Congress passed the FTCA, which makes the United States "liable to the same extent as a private party for certam torts of federal employees acting within the scope of their employment" United States v Orleans. 425 U S 807, 813 (1976) The FTCA was designed both to avoid the injustice of"having meritorious claims hitherto barred by sovereign immunity," and to avoid the additional burden that Congress had of"investigating and passing upon private bills seeking individual relief" Umted States v Mumz, 374 U S 150, 154 (1963) As relevant to this case, the FTCA waives sovereign immunity for "personal injury . 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 pnvate person, would be liable to the claimant m accordance with the law of the place where the act or omission occurred" 28 U S C § 1346(b)(1) Where an act under the FTCA occurs on Indian land, the "law ofthe place" is considered to be the state within which the land is located—m this case. South Dakota 1-aFramboise v Leavitt. 439 F 3d 792, 796 (8th Cir. 2006), see also Molzof V United States. 502 US 301, 305 (1992)("[T]he extent ofthe United States' liability under the FTCA IS generally determined by reference to state law ") The main issue presented by the United States' motion to dismiss is whether Henson is a federal employee for purposes of FTCA liability As defined m the FTCA, an "employee of the government" includes (1)"officers or employees of any federal agency, members of the military or naval forces of the Umted States, members of the National Guard while engaged m trammg or duty and persons actmg on behalf of a federal agency m an official capacity, temporanly or permanently in the service ofthe United States, whether with or without compensation," and (2) "any officer or employee of a Federal public defender organization" 28 U S.C § 2671 The question in this case is whether Henson is considered either an "employee[] of any federal agency," or a "person[] acting on behalf of a federal agency in an official capacity" Id_ The FTCA specifically exempts independent contractors fi-om liability id.(noting that "federal agency" within the FTCA "does not include any contractor with the United States") Whether an individual is a federal employee or independent contractor under the FTCA is a question of federal law Logue v Umted States. 412 U.S 521, 527 (1973) In differentiatmg federal employees from independent contractors, the Supreme Court has stated that "[a] critical element in distinguishing an agency fi-om a contractor is the power ofthe Federal Government 'to control the detailed physical performance of the contractor Orleans, 425 U S. at 814 (quoting Logue, 412 U.S at 528) Courts must "evaluate the extent to which the government has the power to supervise the individual's day-to-day operations" Knudsen v. United States. 254 F 3d 747, 750 (8th Cu* 2001)(citmg Orleans. 425 U S at 814) B. The Cheyenne-Eagle Bntte School District and its Employment of Henson The United States federal government offers support for the education of Amencan Indian students m various ways The BIE operates 183 schools today for the education of Amencan Indian students, the legacy of the day and boarding schools established dunng the assimilation era m American Indian policy m the nmeteenth century Fifty-eight of these schools are operated entnely through the federal government, where the BIE hires teaches, enrolls students, and funds the classroom, these are called "BIE schools" One-hundred-thirty of these schools are operated under contracts or grants with tribal governments, these are called "grant schools." These tnbally run schools are operated either under the Tnbally Controlled School Grants Act (TCSA), 25 U S C § 2501 et seq., or under "638 contracts" from the Indian SelfDetermination and Edueation Assistance Act of 1975 (ISDEAA), 25 U S C § 5321 et seq Both BIE schools and grant schools have the ability to operate under a cooperative agreement, upon 10 tribal request, between tnbal governments, state school distncts, and the BIE ^25 U S C. § 2010(f); 25 C.F.R § 31 0 This provision allows for the implementation of "a cooperative agreement that is entered into between the tnbe, the Bureau, the local school board, and a local public school district" 25 U S C § 2010(Q(1)(A) "encompass coordination of all or any part of Such a cooperative agreement can (A)The academic program and curriculum (B) Support services, mcludmg procurement and facilities mamtenance, [and] (C) Transportation" Id_ § 2010(f)(2). The statute does not "require equal expenditures, or an exchange of similar services, by the Bureau school and schools in the school district, but "[ejach [cooperative] agreement entered mto shall confer a benefit upon the Bureau school commensurate with the burden assumed by the school" li § 2010(f)(3). Public Law 101-512 unposes liability on the United States for the actions of tnbes, tnbal orgamzations, or Indian contractors, who, withm the scope of their employment, operate a contract, grant agreement, or cooperative agreement under either the TCSA or the ISDEAA Pub L No 101-512, § 314, 104 Stat 1915 (Nov. 5, 1990) (codified at 25 U S C A § 5321 Histoncal and Statutory Notes) These employees are, for purposes of the FTCA, considered to be federal employees S^ MamsxTunmqre,No CV-05-270-FVS, 2006 WL2591272, at *3 (E.D Wash Sept 8,2006), Mentz V Umted States. 359 F Supp 2d 856, 860(D N D 2005), Big Owl v United States, 961 F Supp 1304, 1307-08(DSD 1997), see also Wide Rums Cmtv Sch. Inc v Stago. 281 F Supp 2d 1086, 1089(D Anz 2003)(after conversion from a BlE to a tnbally operated school under the TCSA, "tort actions that were available against the school when it was a BIA school S^ Melody McCoy, Indian Education Legal Support Proiect Cooperative Agreements m TnHian EHnoatinn. Native American Rights Fund (Get 1998)(collecting large-scale cooperative agreements between both BIE and grant schools with public school distncts, along with smallerscope cooperative agreements for transportation, specific academic programs, sports, and special education) 11 are still available against the United States In all other respects, the school is a tnbal school fully subject to tnbal law . [T]he only federal obligation after conversion is for claims that are otherwise within the scope ofthe Federal Tort Claims Act") The makeup of the Cheyenne-Eagle Butte School Distnct, where S C was injured, is relatively umque among school distncts Located m Eagle Butte, South Dakota, within the borders of the Cheyenne River Indian Reservation, the Cheyenne-Eagle Butte School Distnct serves around 1,200 students. Doc 21 at^T[ 1-2, Doc 29 at^j^ 1-2 The Cheyenne-Eagle Butte School Distnct operates under the Cheyenne-Eagle Butte School Cooperative Agreement and Policies, authonzed by 25 U S C § 2010(f), which is an agreement between two entities 1) the BIE, Cheyenne River Agency Education Office, Cheyenne-Eagle Butte 95-561^ School Board (BIE School Board) and 2) the Eagle Butte School Distnct 20-1, Dewey County, South Dakota (public school distnct) Doc 21 at ^ 11, Doc 29 at ^ 11, Doc. 22-2 In addition to the requnements of 25 U S C § 2010(f), the Cooperative Agreement is governed by the regulations set out at 25 C F R § 31, and made possible through 25 U S C § 13, which authonzes the BIA to expend monies for the "[gjeneral support and civilization, including education," of American Indians, and 25 U S C § 295, which grants the Secretary of the Intenor and the Commissioner of Indian Affairs the responsibility to supervise and direct the expenditure of funds "appropriated for school purposes among the Indians"^Doc 22-2 at 1 The Cooperative Agreement states that the "95-561 and the District Board desire to enter mto an agreement for the education of ^ Quotations throughout this Opinion and Order from the Cooperative Agreement and other supporting documents refer to the BIE school as a "95-561 School" This language comes from Public Law 95-561, which m part gave tribes and Amencan Indian parents greater control over the education of Amencan Indian children, mcludmg developing standards for education m BIA schools, and ensurmg American Indian parents had the ability to be heard regarding their children's education m public school districts See Pub. L No 95-561, tit XI, 92 Stat 2143 (Nov 1, 1978)(codified m part at 25 U S C §§ 2001 et seq) 12 both elementary and secondary school pupils of the District and the 95-561 schools in which both Federal and District funds, facilities, equipment and other property shall be utilized" Doc 22-2 at 1 Due to the rural location of Eagle Butte, the Cooperative Agreement enables the BIE and public state school district to save resources by combmmg the education of Amencan Indian and hon-Indian students See Doc 22-2 at 2("No distinction shall be made between Indian and non-Indian students m the receipt of general educational services at the Cheyenne-Eagle Butte School") At any time, both the public school district board and the BIE school board have the ability to terminate the Cooperative Agreement through wntten notice, which would end the Cooperative Agreement on June 30th of that academic year Doc 22 at 4 The Cheyenne-Eagle Butte Schools are under the direction of the "Cheyenne-Eagle Butte \ Cooperative School Board," which is made up of seven members of the BIE school board, and seven members ofthe public school district school board Doc 22 at 1 The Cooperative School Board holds meetmgs once a month, and the agenda for those meetings is prepared by the public school distnct Supenntendent and the BIE School Supervisor Doc 22-2 at 1-2 The Cooperative Board is responsible "for establishing all rules, regulations, and policies used to administrate the Cooperative school" Doc 22-2 at 2 Dunng general educational services, "[n]o distinction shall be made between Indian and non-Indian students," but the Cooperative Agreement does allow for specific programs to one or the other group "in accordance with Tribal, State or Federal law" Doc. 22-2 at 2 The Cooperative Agreement requires a collaborative approach to the "scope and sequence of the K-I2 curriculum," but states that "the respective parties will have budgetary control over their respective expenditures" Doc 22-2 at 3, Doc 21 at Tl 16, Doc 29 at t 16 The Cheyenne-Eagle Butte Schools receive both state and federal fimdmg, proportional to the number of Amencan Indian and non-Indian students 13 attending the school, determined by an annual count of students submitted to the BIE and the State of South Dakota Doc 21 at 8-9, Doc 29 at TlH 8-9 The Cheyenne-Eagle Butte Schools operate within one large building complex, but "the physical maintenance, operation, and upkeep" ofthe facilities is the responsibility ofthe entity that owns the facilities ^ Doc 22-2 at 3 The public school district and the BIE retain separate budgets, and can only spend money in accordance with their own respective policies. Doc. 22-2 at 3 In addition, "[t]he 95-561 and Distnct Boards shall each be responsible for the acquisition, management, control and distnbution of all property, matenals and supplies needed for operation of their respective schools" Doc 22-2 at 3, see also Doc 22-5(remmdmg Henson that her expenditures for home economics classes must be charged to the public school distnct, while her expenditures m relation to her role with the student council and as a class advisor must be charged to the BIE) In personnel matters, the Cooperative Agreement states that "[n]o distinction shall be made between employees of the 95-561 School and the District pertaining to general matters of employment and supervision at the Cheyenne-Eagle Butte School," but "realizing that the employees of the 95-561 School and the employees of the District are subject to separate regulations and agreements" Doc 22-2 at 4 The Cooperative Agreement states that while the full Cooperative Board will review applications for new teachers and school personnel, the "School Board ofthe entity that is funding the position will vote on the recommendations" Doc 22-2 at 4 The Cheyenne-Eagle Butte School is staffed by both BIE and public school distnct employees, and employees from both the BIE and the public school district hold admmistrative ^ Matenals of record with this Court suggest a lack of clarity in any physical separation of the BIE school operation and the State District school operation While the Cooperative Agreement requires separate facilities upkeep, deposition testimony suggests the arrangement is "separate schools, one big building," and that building as located on property owned by the BIA Doc. 313 at 2 14 positions in the School Doc 21 at 10, 18, Doc 29 at 10, 18 In addition to keeping the salanes separate, each entity provides separate housing for its staff and administration Doc 21 at in|23-25, Doc 29 at TITj 23-25 The BIE and public school district employees have a different process for advancement, sign separate contracts, and are on different time schedules Doc 21 at Yi 39^3, Doc 29 at Yi 39-43, Doc 22-3 at 5 Dunng the 2013-2014 school year, Henson had an employment contract with the public school district, and her salary was paid out of the public school district's budget. Doc 21 at ^ 23, Doc 29 at ^ 23, Doc 22-4 Henson lived m housmg provided by the public school district Doc 21 at t 24, Doc 29 at ^ 24 The pnncipal of the High School, a BIE employee, was Henson's direct supervisor,' but lacked the ability to make the decision to remove Henson from her position Doe 21 at ^ 28-29, Doc 29 at^ 28-29 The pnncipal had only a limited ability to disciplme Henson, and the public school superintendent would need to get mvolved m anythmg beyond day-to-day matters regardmg Henson Doc 21 at ^ 38, Doc 29 at 38 The pnncipal reviewed Henson's teaching and gave Henson performance evaluations Doc 22-3 at 7 Because Henson was hired by the public school district, however, the distriet's supermtendent alone had the authonty to make the major decisions regardmg Henson, mcluding hirmg and firing Doc 21 at 129; Doc. 29 at t 29 Henson's 2013-2014 contract with the public school district stated, "the employee is to work under the direction of the school district administration and, if so designated by the school district administration, under the direction ofthe BIA" Doc 22-4 Henson has held a separate contract with the BIE for the provision of services as an advisor to the student council and as a semor class advisor Doc 21 at ^ 26, Doc 29 at f 26 ' Under the current cooperative agreement, public school distnct employees can only be supervised by other public school distnct employees, and BIE employees can only be supervised by other BIE employees ^Doc 23 at ^ 10, Doc 21 atf 30, Doc 29 at 130 This is a change from the Cooperative Agreement m effect dunng the 2013—2014 school year 15 When S C was injured, Henson was teaching a home economics class funded through the State of South Dakota as a career and techmcal education class, with concepts mandated by state standards Doc. 21 at t 31; Doc 29 at H 31 The supplies for the class were purchased from the public school district's budget Doc 21 at 32, Doc 29 at 32, Doc. 22-5 (letter reminding | Henson that supplies purchased in her student council and class advisor roles "are to be charged to the BIE's account not the District's," and that "[o]nly FACS supplies are to be charged to the [public] School District's account"). Because of the nature of the Cheyenne-Eagle Butte School and Henson's position, the parties dispute whether Henson is a federal employee under the FTCA C. Whether Henson is a Federal Employee Under the FTCA The Plaintiffs' argument for Henson being a federal employee relies primarily on the text of 28 U S.C § 2671 and the distnct court case of Adams v Tunmore. No CV-05-270-FVS, 2006 WL 2591272(E D Wash. Sept. 8, 2006) The Plamtiffs emphasize that under the FTCA, '"federal employees' include 'persons acting on behalf of a federal agency in an official capacity, temporanly or permanently m the service of the United States, with or without compensation '" Doc 28 at 3 (quoting 28 U S C § 2671) The Plaintiffs argue that "while the state hired, and is paying Ms Henson, her duties arise from the Government's duty to educate S C under federal law" Doc 28 at 3 After discussing the history of American Indian education, the Plaintiffs argue that "[t]he federal government is in essence inviting Mrs Henson to fiilfill [its] duties, a right which it can terminate at any time" Doc 28 at 5-6. The Plaintiffs compare Henson's role in the Cheyenne-Eagle Butte Schools to the situation that arose m Tunmnre In Tunmnre. the plamtiff was mjured in a motor vehicle accident blamed on the defendant Doc 20 at 17, Tunmore. 2006 WL 2591272, at *1 The defendant was driving a 16 vehicle owned by the Colville Tnbe at the time of the accident, and was employed as a Jesuit Volunteer at the Pascal Sherman Indian School on the Confederated Tnbes of the Colville Reservation 1^ The Pascal Sherman Indian School is operated by the Colville Tnbe through a grant from the BIA under the TCSA I^ For her employment at the school, the defendant received $78 per month, which was paid from the Colville Tribe's general fund, rather than from money that came from the TCSA I^ at *3 The court referenced the applicability of Public Law No 101-512, which addresses "the performance of functions" under a grant authorized by the TCSA li Although the defendant was not paid directly from money under the TCSA, because she was performing the function of educating Amencan Indian students at the school, the court found that under Public Law No 101-512, she was considered to be an employee ofthe BIA, and thus a federal employee for purposes of the FTCA M. In particular, the court stated that the "source of Ms Tunmore's stipend is legally immaterial to whether Ms Tunmore was performing functions under a TCSA Grant" Id Plaintiffs urge this Court to adopt the approach of the Tunmore court, thereby deemmg the source of Henson's pay 'to be immaterial, because her duties relate to the federal government's responsibilities to educate American Indian children Doc 28 at 3 Because ofthe difference m how the Cheyenne-Eagle Butte School Distnct operates, application of the Tunmore decision to deem Henson a federal employee would stretch Tunmore past its holding Unlike the Pascal Sherman Indian School m Tunmore. the Cheyenne-Eagle Butte High School is not operated under the TCSA or the ISDEAA The public mformation from the BIE classifies the Cheyenne-Eagle Butte Schools as "BIE," rather than "grant" schools. S^ Bureau of Indian Educ Nat'l Directorv. U S Dep't of Interior, at 37 (Feb 2017) If the school in Tunmore had not been operated under the TCSA or the ISDEAA,it would not have fallen withm the gambit of 17 Public Law No 101-512, which treats tnbal employees as federal employees for purposes of the FTCA Likewise, m the two other cases most factually similar to this one, the operated under the TCSA, making Public Law 101-512 applicable ^Mentz v Umted States. 359 F Supp 2d 856, 859(D N D 2005)(finding that auto mechanics mstructor at the Standmg Rock Commumty Grant School, which was operated through an agreement under the TCSA by the Standmg Rock Sioux Tnbe, was a federal employee under the FTCA through the application of Public Law No 101-512), Big Owl V Umted States. 961 F Supp 1304, 1308 (DSD 1997) (school board members of the Porcupine Day School, operated by the Oglala Sioux Tnbe pursuant to a grant from the TCSA, considered employees of the BIA for FTCA purposes through Public Law No 101-512), see also Big Crow v Rattling Leaf. 296 F Supp 2d 1067, 1070 (DSD 2004) (finding that tribal law enforcement officer paid under one self-determination contract, but performmg functions under a separate self-determination contract was a covered federal employee under Public Law No 101-512) Because the Cheyenne-Eagle Butte Schools are not operated under the TCSA or the ISDEAA, Pubhe Law No 101-512 does not apply Henson is not considered a BIA employee for FTCA purposes by virtue of her "performance of functions" under a qualifying program, so she is not an "officer[] or employee[] of any federal agency" under 28 U S C § 2671 Section 2671 also extends liability under the FTCA for torts by "persons acting on behalf of a federal agency m an official capacity whether with or without compensation" Plaintiffs' next argument that Henson is a federal employee concerns this language Plaintiffs argue that the plam language of the FTCA qualifies Henson as a federal employee, regardless of bemg on the public school district payroll, because she is a "person[] acting on behalf of a federal agency 18 m an official capacity, temporarily or permanently in the service of the United States, with or without compensation" Doc 28 at 3(quoting 28 U S C § 2671) In Losue v United States. 412 U S 521 (1973), the Supreme Court mterpreted this "acting on behalf of language of § 2671 The Supreme Court in Logue, m discussing the applicability ofthe independent contractor exemption,^ stated. [W]e are not persuaded that employees of a contractor with the Government, whose physical performance is not subject to governmental supervision, are to be treated as 'acting on behalf of a federal agency simply because they are performmg tasks that would otherwise be performed by salaried employees of the Government. If this were to be the law, the exclusion of contractors from the definition of'Federal agency' in [§] 2671 would be virtually meaningless, since it would be a rare situation indeed m which an mdependent contractor with the Government would be performmg tasks that would not otherwise be performed by salaned Government employees Id. at 531-32 The argument raised by Plaintiffs in discussing the federal government's duties to educate Amencan Indian children is sunilar to the argument discussed and foreclosed by the Supreme Court in Logue. Even if"[t]he federal government is in essence inviting Mrs Henson to fulfill [its] duties," Doc 28 at 6, Logue states that "performing tasks that would otherwise be performed by salaried employees of the Government" does not automatically transform an mdividual into a federal employee,412US at531 Other courts have considered the broad question of whether someone workmg with, or m close proximity to, tnbal entities and employees is properly considered a federal employee imder the FTCA "The Supreme Court in Orleans held that the power to control is pivotal in determmmg whether an individual is an employee of the Umted States for the purposes of the FTCA The Court emphasized that federal funding or policing of federal standards and ^ In their arguments, both parties rely on the substance, if not always the name, of the mdependent contractor exemption to determine whether Henson is a federal employee See Orleans. 425 U S at 815, Doc 20 at 19, Doc 28 at 5-6 19 regulations does not create employee status The question to be answered is whether 'day-to-day operations are supervised by the Federal Government Bemie v. Umted States, 712 F 2d 1271, 1273 (8th Cir 1983)(internal citations removed)(quotmg Orleans, 425 U S at 815) In Berme, the Eighth Circuit determmed that two physicians treating Indian Health Service (IKS) patients were mdependent contractors and not federal employees because they were employed by separate medical entities, and those entities contracted with the IKS for services and paid the physicians their salaries. Id_ Because "IHS did not exercise control over nor dictate medical judgment" during the provision of health services, the physicians were deemed not to be federal employees li; see also Knudsen. 254 F 3d at 750-51 (affirmmg district court decision that mental health counselor was an independent contractor, rather than an employee of Veterans Affairs for FTCA purposes, because the counselor "was not subject to any day-to-day control by the VA and was told not to maintain records for the VA's review," and the fact that Congress "expected the VA to insure that quality work was done with government funds" did not change employee's status); Snmma v United States, No 90-2140, 1991 WL 114638, at *3 (10th Cir June 25, 1991)(tnbal employee implementing a Summer Youth Employment Trammg Program funded under the federal Job Trammg Partnership Act was not a federal employee under the FTCA because "the federal government did not supervise the day-to-day operations of the tnbal program" and regulations governing program specifically stated "Participants shall not be deemed Federal employees"), Coffev v Umted States, 906 F Supp 2d 1114, 1165 (DNM 2012)(finding that local detention center was mdependent contractor, not federal agency, where It provided care for American Indian inmates, but the procurement contract did not "control the detailed physical conduct" of the detention center, and although the detention center was 20 required to comply with federal regulations and requirements, it had the ability to decide for itself how to comply with those regulations and requirements) In Thompson v Umted States. 504 F Supp 1087(DSD 1980), the court analyzed whether a tribal police officer in trammg was a federal employee under § 2671, rather than § 2680(h), which involves the status of "investigative or law enforcement officer" See, e g, Tpckev Umted States. No 02-3152, 2003 WL 21212167(8th Cir May 27, 2003)(per cunam), TnValhe v Umted States. 396 F Supp 2d 1082 (D N D 2005) Although the officer m Thompson was hired by the Crow Creek Tnbal Council, paid a salary from the Tnbe, and the Tribal Council had the ability to fire the officer, the court determined he "unquestionably emerges as a full-fledged FTCA 'government employee,'" because of the officer's day-to-day workmg environment Id at 1089 As required by Orleans, the court looked not only to the source ofthe officer's compensation, but also the day-to-day control that the federal government had over the officer Id. The court found that the applications for the tnbal police officer position were submitted to the BIA police captain; the officer's indoctrination, oath, and gun all came from BIA officials, the officer was headquartered at the BIA police station, the officer's duties and shifts were determmed by BIA supervisors, tnbal officers were often considered as potential BIA officers, tramees were often cross-deputized as BIA officers, and BIA officials had the ability to fire the trainees in case of misbehavior at 1089—90 These factors made the court determine that the tnbal officer was a federal employee within the meaning of the FTCA li at 1089-90 During the 2013-2014 school year, Henson's day-to-day supervisor in the school where she taught Amencan Indian and non-Indian children was a BIE employee, this is the mam fact supporting an argument that Henson should be considered a federal employee under the FTCA 21 As it IS the "power to control" that creates a federal employee under the FTCA,this Court must consider "whether 'day-to-day operations are supervised by the Federal Government Bernie, 712 F 2d at 1273 (quoting Orleans. 425 US at 815) The BIE pnncipal oversaw her teachmg, gave her performance evaluations, and in concert with the language of the Cooperative Agreement, treated her no differently than BIE teachers Doc 21 at 28-29, Doc 29 at ^[128- 29, Doc 22-2 at 4, Doc 22-3 at 7 However, unlike the tnbal police officer m Thompson, 504 F Supp at 1089, m all other respects Henson was an employee of the state public school distnct, not the BIE Henson's employment contract was with the public school district, and her salary was paid out of the public school district's budget Doc 21 at 23, Doc 29 at ^ 23, Doc 22-4 Henson lived m housing provided by the public school distnct Doc 21 at f 24, Doc 29 at ^ 24 Only the district's superintendent had the ability to make the major decisions regarding Henson's employment, including hiring and firing Doc 21 at T| 29; Doc. 29 at 129 Henson's 2013-2014 contract with the public school distnct specifically states her limited role with BIE employees, as prescribed by the public school district- "the employee is to work under the direction of the school distnct admimstration and, if so designated by the school distnct admimstration, under the direction of the BIA," and the Cooperative Agreement delineates the required separation between the two entities Docs 22-2, 22-4 As further evidence of the separation of her public school district and BIE roles, Henson has held a separate contract with the BIE for the provision of services as an advisor to the student council and as a senior class advisor Doc 21 at 26, Doc 29 at 126 The class that Henson was teaching when S C was injured, however, was funded by the state, had concepts mandated by state standards, used supplies purchased from the public school district's budget, and apparently had a mix of non-Indian and Amencan Indian students ^Doc 21 at 31-32, Doc 29 at 22 31-32, Doc 22-1 at 3, Doc 22-5, Doc 20 at 18, Doc 31-3 at 3, Doc 22-3 at 9-10 While the daily supervision of Henson dunng this time was done by a BIE employee, her job duties and responsibilities were all within the physical control and under the regulations and standards of the public school distnct and the state of South Dakota The issue is a close and fairly debatable one Given how the Cheyenne-Eagle Butte Schools were structured, and Henson's status there, Henson was not a federal employee under the FTCA when teachmg the home economics class Therefore, this Court lacks subject matter junsdiction under the FTCA over the Complaint IV. Conclusion Because the United States' motion to dismiss for lack of subject matter jurisdiction is being granted, this Court need not consider the arguments made in the motion for summary judgment on the question of Henson's and the Cheyenne-Eagle Butte Schools' alleged negligence resulting in S C's injuries. The motion for summary judgment is moot. For the reasons stated above, it is hereby ORDERED that the Defendant's Motion to Dismiss is granted. Doc 19, and the Defendant's motion for summary judgment. Doc 19, is deemed moot DATED this day of May,2017 BY THE COURT ROBERTO A. LANGI UNITED STATES DISTRICT JUDGE 23

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