Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 3:09-cv-998-HES-JRK.
For Ronald Colbert, Plaintiff - Appellee: David Maxwell Milton, Matthew Nichols Posgay, Charles A. Sorenson, Coker Schickel Sorenson & Posgay, PA, Jacksonville, FL.
For Jerri Colbert, Plaintiff - Appellee: Bryan Scott Gowdy, Creed & Gowdy, Jacksonville, FL; David Maxwell Milton, Matthew Nichols Posgay, Charles A. Sorenson, Coker Schickel Sorenson & Posgay, PA, Jacksonville, FL.
For United States of America, Defendant - Appellant: Todd B. Grandy, Arthur Lee Bentley III, David Paul Rhodes, U.S. Attorney's Office, Tampa, FL; Jeffrica Jenkins Lee, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC; Ronnie S. Carter, Collette Bridget Cunningham, Jason P. Mehta, U.S. Attorney's Office, Jacksonville, FL.
For Navajo Nation, Amicus Curiae: Patrick Thomas Mason, Mason & Isaacson, Gallup, NM.
Before WILSON and ANDERSON, Circuit Judges, and VOORHEES,[*] District Judge.
VOORHEES, District Judge:
The United States challenges subject matter jurisdiction, namely, the district court's partial summary judgment ruling that, under the Federal Tort Claims Act (" FTCA" ), 28 U.S.C. § 1346 et seq., and pursuant to the self-determination contract entered into between the United States Department of Interior, Bureau of Indian Affairs (" BIA" ) and the Navajo Nation Tribe, 25 U.S.C. § 450f, Navajo Nation Department of Justice (" NNDOJ" ) Attorney Kandis Martine was " deemed" an employee of the BIA and afforded the full protection and coverage of the FTCA. The district court determined that given Martine's role in connection with the Navajo Nation Child & Family Services Program (" NNCFS" ), and its efforts to oppose the adoption of a Navajo child by a non-Navajo family in Florida state court, Martine was entitled to protection under the FTCA. As a result, the district court dismissed Martine from the lawsuit and held that the United States was the proper party-defendant, 28 U.S.C. § 2679(d)(3). On appeal, the United States contends the district court erred in finding as a factual matter that Martine was " carrying out" work under the self-determination contract. The United States asserts that the decision to afford Martine FTCA coverage, allegedly based upon erroneous factual findings, constitutes an impermissible extension of the Government's waiver of sovereign immunity.
Pursuant to the Indian Self Determination and Education Assistance Act (" Self-Determination Act" or " ISDEAA" ), codified principally at 25 U.S.C. § 450, et seq., Congress created a mechanism for Indian tribes and tribal organizations to enter into agreements with the United States providing for the tribe or organization to assume responsibility for programs or services to Indian populations that otherwise would be provided by the Federal government. See Pub. L. No. 93-638, 88 Stat. 2203 (1975).
In 2006, the BIA and the Navajo Nation entered into a three-year self-determination contract (or '638 contract), effective January 1, 2006 through December 31, 2008, which generally provides for the Navajo Nation to deliver an array of social services to Navajo children and their families. Prior to 2006, these social services were administered by the BIA under the Indian Child Welfare Act (" ICWA" ), 25 U.S.C. § § 1901-1963. ICWA's objective is " to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families . . . by providing for assistance to Indian tribes in the operation of child and family service programs." Id. § 1902. Of particular relevance here is ICWA's goal " to prevent the breakup of Indian families and, in particular, to insure that the permanent removal of an Indian child from the custody of his parent or Indian custodian shall be a last resort." Id. § 1931(a). In connection with the '638 contract at issue here, the Navajo Nation established the Navajo Nation Child & Family Services Program and charged NNCFS with the delivery of social services to Navajo families in compliance with ICWA.
In or around March 2007, the Navajo Nation was notified of a potential adoption of a Navajo child by a non-Navajo family and a related hearing scheduled for April 2, 2007 in Jacksonville, Florida. The Navajo Nation referred the case to the NNCFS ICWA Unit, which was advised that the presiding state court judge was not following ICWA's placement preference. The Navajo Nation objected to the proposed adoptive placement. During NNCFS's staffing of cases with the NNDOJ, the Director of the NNCFS Program, Regina Yazzie, elected to involve NNDOJ Attorney Kandis Martine.
As an attorney for the NNDOJ, Martine serves as " the legal representative for the NNCFS Program." According to Martine, she dedicates more than half of her time working for the NNCFS and approximately twenty percent of her time working alongside the ICWA Unit at NNCFS. Martine, described by Yazzie as an " expert on ICWA," was asked to attend the state court adoption hearing along with a NNCFS ICWA Unit social worker. Martine obtained approval from her immediate supervisor, Assistant Attorney General, at the NNDOJ to travel to Jacksonville for the adoption hearing. The funds used for Martine's travel were provided by the NNCFS. The Navajo Nation, through Martine, also retained a Florida adoption lawyer, Attorney Jodi Seitlin, to represent its interests in the state proceeding. Although not licensed to practice law in the State of Florida, Martine was expected to educate Seitlin about ICWA and monitor the state court adoption proceeding relative to ICWA compliance.
On the morning of April 2, 2007, while in Jacksonville, Florida for the hearing, Martine and NNCFS social worker, Lucy Laughter-Begay, were in a car accident. At the time of the accident, Martine and
Laughter-Begay were traveling to Seitlin's downtown office prior to the 10:00 a.m. hearing. Martine, the driver of the rental car, traveled the wrong direction on a one-way street and caused a car occupied by Ronald and Jerri Colbert to rear-end another vehicle, injuring both of the Colberts and precipitating the instant civil action.
On October 2, 2009, after waiting six months for a response from the United States to the Colberts' administrative claims, the Colberts commenced litigation in the United States District Court, Middle District of Florida, against the United States, Martine, and P.V. Holding Corporation, d/b/a " Budget Rent-A-Car System, Inc." (" Budget" ). The Colberts' complaint alleged negligence and loss of consortium claims against the United States and Martine, and negligence, loss of consortium, and dangerous instrumentality claims against Budget.
The Colberts named the United States as a party-defendant based upon the Navajo self-determination contract. See 25 U.S.C. § 450f(a)(1)(B). Inclusion of the United States as a party was premised on the theory that Martine is considered a federal employee for purposes of the FTCA when performing work under the self-determination contract. § 450f(c)(1).
After the lawsuit was filed, the BIA denied both administrative claims on grounds that Martine was not a federal employee. Similarly, the United States Attorney for the Middle District of Florida declined to certify that Martine was an " employee of the Government" acting within the scope of her employment under 28 U.S.C. § 2679(d)(1).
On October 25, 2010, the United States moved to dismiss the claims brought against the government pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The Colberts and Martine moved for partial summary judgment the same day, asking the Court to rule as a matter of law that FTCA coverage was available to Martine.
During the pendency of these motions, Ronald Colbert died and his wife became the designated personal representative for his estate. On March 29, 2011, a Second Amended Complaint was filed adding a
wrongful death claim and, alternatively, a survival action pursuant to Florida law.
On May 13, 2011, the district court denied the United States' motion to dismiss and the Colberts' and Martine's motions for partial summary judgment. With respect to subject matter jurisdiction, the district court found that whether Martine could properly be deemed a federal employee required an analysis of the merits and further development of the record. See Fed.R.Civ.P. 12(b)(1). The court also found that, at that stage of the case, genuine issues of material fact precluded decision on the FTCA coverage issue. See Fed.R.Civ.P. 56.
In the fall of 2012, following discovery, the Colberts renewed the motion for partial summary judgment on the same FTCA issue and Martine joined in the motion. Martine's motion also encompassed a request that the district court find and certify under 28 U.S.C. § 2679(d)(3) that Martine is entitled to FTCA coverage. Although the motion was styled as a summary judgment motion, the court construed it as a petition for certification under § 2679(d)(3). On a more developed evidentiary record, the district court reconsidered its May 13, 2011 decision that summary judgment disposition was precluded and held on November 21, 2012 that subject matter jurisdiction was present pursuant to the FTCA, 28 U.S.C. § ...