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)

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

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