Shirk v. United States

Under the Federal Torts Claim Act, the United States government may be found liable of a government employee's action if the "action is encompassed by a relevant federal contract or agreement" and if the act fell under the scope of employment.

Loren Shirk, along with his wife, were severely injured when a drunk driver crashed into their car while running a red light. They subsequently filed suit against the United States alleging negligence against the Native American reservation officers that were in pursuit of the intoxicated driver and loss of consortium under the Federal Torts Claims Act (“FTCA”). Shirk alleged that when the officers approached the drunk driver before he ran the traffic light, the action purported to negligence and was a direct cause of his injuries. Shirk claimed that the officers were Bureau of Indian Affairs employees and were acting in the capacity of their employment when they committed their negligent act. In response to the suit, the United States moved to dismiss the claim for lack of subject matter jurisdiction which was granted by the district court. Shirk appealed this judgment and alleges that the United States is liable for the officer’s actions and that it had waived its sovereign immunity. This was in issue of first impression for the panel, so it began its analysis by looking at the Indian Self-Determination and Education Assistance Act of 1975, otherwise known as § 314. If the officers’ conduct was covered under § 314, the United States could thus be subjected to tort liability. Under the first step of this inquiry, a court must determine if the “alleged activity is, in fact, encompassed by the relevant federal contract or agreement.” Next, a court must determine if the negligent action fell under the scope of employment. If both prongs are met, then the action is covered by the FTCA. However, subject matter jurisdiction could be defeated if the plaintiff failed at either step. The panel remanded the case so the district court could determine if subject matter jurisdiction was met using this analysis. VACATED AND REMANDED for proceedings consistent with this opinion.