Loren Shirk v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOREN R. SHIRK; JENNIFER ROSE, No. 10-17443

individually and as husband and

wife, D.C. No.

Plaintiffs-Appellants, 2:09-cv-01786-

NVW

v.

UNITED STATES OF AMERICA, on OPINION

behalf of its agency, Department of

Interior, Bureau of Indian Affairs,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Arizona

Neil V. Wake, District Judge, Presiding

Argued and Submitted

June 12, 2014—San Francisco, California

Filed December 8, 2014

Before: Diarmuid F. O’Scannlain, Robert D. Sack*,

and Carlos T. Bea, Circuit Judges.

*

The Honorable Robert D. Sack, Senior Circuit Judge for the U.S. Court

of Appeals for the Second Circuit, sitting by designation.

2 SHIRK V. UNITED STATES

Opinion by Judge O’Scannlain;

Concurrence by Judge Sack;

Partial Concurrence and Partial Dissent by Judge Bea

SUMMARY**

Federal Tort Claims Act

The panel vacated the district court’s dismissal for lack of

subject matter jurisdiction of a Federal Tort Claims Act

action brought against the United States after Jennifer Rose

was injured in a traffic accident following a police pursuit

involving two tribal police officers employed by the Gila

River Indian Community.

Loren Shirk, along with his wife, Jennifer Rose, alleged

negligence by the tribal officers and loss of consortium under

the FTCA. Congress extended the FTCA’s waiver of the

United States’ sovereign immunity to claims resulting from

the performance of functions authorized by the Indian Self-

Determination and Education Assistance Act of 1975,

commonly referred to as § 314.

To decide whether the tribal officers’ conduct was

covered by § 314, thereby subjecting the United States to

potential tort liability, the panel held as an issue of first

impression, that it was first necessary to set out the analysis

that courts should undertake when confronted with a § 314

claim where the alleged tortfeasors are employees of a tribe,

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

SHIRK V. UNITED STATES 3

tribal organization, or Indian contractor. The panel held at

the first step of the § 314 inquiry, courts must determine

whether the alleged activity is, in fact, encompassed by the

relevant federal contract or agreement. At the second step,

courts must decide whether the allegedly tortious action fell

within the scope of the tortfeasor’s employment under state

law. The panel held that if both of these prongs were met, the

employee’s actions were covered by the FTCA; but a

plaintiff’s failure at either step was sufficient to defeat subject

matter jurisdiction. The panel remanded so that the parties

could fully brief the issue and the district court could conduct

a new analysis of its subject matter jurisdiction using this

two-step framework.

Second Circuit Judge Sack concurred, and wrote only to

register his doubts as to one of the district court’s conclusions

which the panel’s opinion properly did not reach. If the panel

were squarely presented with the issue, Judge Sack would

conclude that the relevant agreements between the federal

government and the tribe authorized the enforcement of

Arizona state law by tribal police officers.

Judge Bea concurred in part, and dissented in part. Judge

Bea agreed with the new two-part test articulated by the

majority opinion, but he would not remand because there are

no issues of fact that require remand.

4 SHIRK V. UNITED STATES

COUNSEL

Bradley M. Rose, Kaye, Rose & Partners, LLP, Los Angeles,

CA., argued the cause for the plaintiffs-appellants. Trinette

S. Sachrison, Kaye, Rose & Partners, LLP, San Diego, CA,

filed the briefs for the plaintiffs-appellants. With her on the

briefs was Bradley M. Rose, Kaye, Rose & Partners, LLP,

Los Angeles, CA.

Jeffrica Jenkins Lee, U.S. Department of Justice Civil

Division, Washington, DC, argued the cause and filed the

brief for defendant-appellee. With her on the brief were

Stuart F. Delery, Assistant Attorney General, U.S.

Department of Justice Civil Division, Washington, DC; John

S. Leonardo, United States Attorney, Phoenix, AZ; and

Barbara C. Biddle, U.S. Department of Justice Civil Division,

Washington, DC.

Thomas L. Murphy, Deputy General Counsel, Gila River

Indian Community, Sacaton, AZ, argued the cause and filed

the brief on behalf of amicus curiae Gila River Indian

Community in support of plaintiffs-appellants. With him on

the brief was Linus Everling, General Counsel, Gila River

Indian Community, Sacaton, AZ.

OPINION

O’SCANNLAIN, Circuit Judge:

We are asked to decide whether the United States may be

held liable under the Federal Tort Claims Act for the off-

reservation actions of two tribal police officers.

SHIRK V. UNITED STATES 5

I

A

On October 19, 2006, at approximately 5:00 p.m.,

Detective Michael Lancaster and Sergeant Hilario

Tanakeyowma (the “Officers”), two tribal police officers

employed by the Gila River Indian Community (“GRIC” or

the “Community”), were traveling northbound on State Route

587 in a GRIC Police Department vehicle.1 They had

attended a mandatory police counter-terrorism training class

in Tucson, Arizona, and were returning to Sergeant

Tanakeyowma’s residence in Chandler, Arizona.

As the Officers approached the intersection of Chandler

Heights Road and State Route 87/Arizona Avenue, outside

the boundaries of the GRIC reservation, they observed a

white compact vehicle driving erratically. The driver of the

vehicle was later determined to be Leshedrick Sanford, a

paroled felon. The Officers began to pursue Sanford. When

Sanford came to a stop at a red light at the intersection of

Ocotillo Road and State Route 87/Arizona Avenue, the

Officers pulled up behind him. As described by the Officers,

Detective Lancaster exited the police vehicle to “make

contact” with Sanford, but Sanford accelerated and drove

through the red light into the intersection. Sanford collided

with Loren Shirk, who was traveling eastbound on Ocotillo

Road on a motorcycle. Shirk was thrown from his

motorcycle and sustained serious physical injuries as a result

of the collision.

1

We take the facts verbatim from the district court’s order, with only

slight additions and modifications.

6 SHIRK V. UNITED STATES

Sanford, who was under the influence of alcohol,

immediately fled the scene on foot, but he was apprehended

and arrested by the Officers shortly thereafter. He

subsequently pleaded guilty to one count of aggravated

assault with prior felony convictions and one count of leaving

the scene of a serious injury accident, both in violation of

Arizona law. Sanford was sentenced to eighteen years in

prison.

B

Shirk, along with his wife, Jennifer Rose (together,

“Shirk”), filed suit against the United States, alleging

negligence by the Officers and loss of consortium under the

Federal Tort Claims Act (FTCA). Shirk claimed that the

Officers were employees of the Bureau of Indian Affairs

(BIA) for purposes of the FTCA and, as such, that the United

States was liable for the Officers’ purported negligence. The

United States moved to dismiss the complaint for lack of

subject matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1). On August 27, 2010, the district court

issued an order granting the government’s motion to dismiss

and entered judgment for the United States. Shirk timely

appealed.

II

Shirk alleges that the Officers acted negligently when

they encountered Sanford and that such negligence resulted

in Shirk’s injuries. According to Shirk, the United States is

liable for the Officers’ negligence because they were “acting

within the scope of their employment in carrying out” various

contracts and agreements between the United States and the

GRIC. 25 U.S.C. § 450f (note). We begin our analysis of

SHIRK V. UNITED STATES 7

Shirk’s allegations by explaining the statutes and agreements

at issue.

A

The federal government has long provided a series of

services to Indian tribes. Philip P. Frickey et al., Cohen’s

Handbook of Federal Indian Law § 22.01[1] (2012 ed.). The

New Deal began a period in which, with some “fluctuations

in policy,” there has been a “continuous decentralization of

government services to Indians.” Id.

This decentralizing trend accelerated dramatically with

the passage of the Indian Self-Determination and Education

Assistance Act of 1975 (“ISDEAA”). Id. The ISDEAA

“created a system by which tribes could take over the

administration of programs operated by the [Bureau of Indian

Affairs].” Los Coyotes Band of Cahuilla & Cupeño Indians

v. Jewell, 729 F.3d 1025, 1033 (9th Cir. 2013). A tribe

“receiving a particular service from the BIA may submit a

contract proposal to the BIA to take over the program and

operate it as a contractor and receive the money that the BIA

would have otherwise spent on the program.” Id. The

Department of Interior, in which the BIA is housed, is

required to enter into such contracts upon the request of a

tribe unless one of five exceptions applies. Id.; 25 U.S.C.

§ 450f(a)(2). These contracts are commonly called “638

contracts,” in reference to the public law number of the

ISDEAA. See Indian Self-Determination and Education

Assistance Act, Pub. L. 93-638, 88 Stat. 2203 (Jan. 4, 1975).

Congress permitted even greater decentralization when it

enacted the Tribal Self-Governance Act of 1994 as an

amendment to the ISDEAA. The Act allows certain tribes to

8 SHIRK V. UNITED STATES

enter into self-governance compacts. 25 U.S.C. § 458bb.

Such compacts become the basis for annual funding

agreements that “give the tribes a block of funding that they

can allocate as they see fit,” Los Coyotes Band of Cahuilla &

Cupeño Indians, 729 F.3d at 1031 n.3, thus ensuring greater

tribal control over the design and implementation of compact

programs. See 25 U.S.C. § 458cc(b)(1)–(2) (authorizing

tribes to “plan, conduct, consolidate, and administer [certain]

programs, services, functions, and activities, or portions

thereof”).

These statutes are the source of the agreements at issue in

this case, and it is those agreements which allegedly give rise

to FTCA liability.

B

Pursuant to the ISDEAA, the GRIC and the United States

entered into a 638 contract in 1998. The purpose of the

contract was “to provide Law Enforcement Services for the

Gila River Indian Community.” Such services were to be

provided “in accordance with [the] attached Statement of

Work.” Id. § (b)(3). The Statement of Work, in turn,

describes four distinct law enforcement programs covered by

the contract: Uniformed Police, Detention Services,

Communications, and Criminal Investigations. The contract

enumerates specific duties and limitations that attach to each

program. For instance, the uniformed police are charged with

the “enforcement of Federal laws and [the] laws of the

[GRIC],” and this includes “[p]atrol services on and off

roadways and in the communities within the boundaries of

the Reservation.”

SHIRK V. UNITED STATES 9

In 2003, the GRIC decided to take advantage of the

increased tribal authority that comes with agreements

negotiated under the Tribal Self-Governance Act. It entered

into a compact with the United States that enabled the GRIC

to “design those programs, functions, services and activities

listed in the Annual Funding Agreement and reallocate funds

according to the priorities of the Community.” The Compact

merely authorizes a transfer of authority and contains few

substantive limitations on the programs that it governs.

Indeed, it does not refer to any specific programs. Those

details are left to the 2007–2011 Multi-Year Funding

Agreement (MYFA), a contract between the GRIC and the

United States “for the assumption of responsibilities by the

Community for the various programs, functions, and

activities specified in [the MYFA].”

The MYFA lists the programs included within the

Compact. The list includes the law enforcement program and

its four component parts (“Uniform Police,” “Adult

Detention,” etc.). With few exceptions, the MYFA does not

contain any restrictions specific to the law enforcement

program. Thus, unlike the 638 Contract’s Statement of Work,

the MYFA does not supply much detail about the law

enforcement program.

C

For our purposes, these agreements are only relevant

insofar as the United States can be sued. As a sovereign, the

United States is immune from suit unless it waives its

immunity. FDIC v. Meyer, 510 U.S. 471, 475 (1994). The

United States has waived its sovereign immunity, of course,

with regard to tort liability under the Federal Tort Claims Act

“under circumstances where the United States, if a private

10 SHIRK V. UNITED STATES

person, would be liable to the claimant in accordance with the

law of the place where the act or omission occurred.”

28 U.S.C. § 1346(b)(1).

In 1990, after it enacted the ISDEAA, Congress extended

the FTCA’s waiver of sovereign immunity to claims

“resulting from the performance of functions . . . under a

contract, grant agreement, or cooperative agreement

authorized by the [ISDEAA] of 1975, as amended.”

25 U.S.C. § 450f (note). This provision is commonly referred

to as § 314, an allusion to its location within the Act. See

Department of Interior and Related Agencies Appropriation

Act, Pub. L. 101-512, § 314, 104 Stat 1915 (1990). However,

the waiver of sovereign immunity is limited:

[A]n Indian tribe, tribal organization or Indian

contractor is deemed hereafter to be part of

the Bureau of Indian Affairs . . . while

carrying out any such contract or agreement

and its employees are deemed employees of

the Bureau . . . while acting within the scope

of their employment in carrying out the

contract or agreement.

Id.

The threshold question in this litigation thus becomes

whether the actions of the Officers come within the ambit of

§ 314, thereby subjecting the United States to potential tort

liability.

SHIRK V. UNITED STATES 11

III

To decide whether the Officers’ conduct is covered by

§ 314, it is first necessary to set out the analysis that courts

should undertake when confronted with a § 314 claim, where

the alleged tortfeasors are employees of a “tribe, tribal

organization, or Indian contractor.” Id. As no federal

appellate court appears to have done so, this case presents a

question of first impression.

A

The clause at issue states that “employees [of a tribe,

tribal organization, or Indian contractor] are deemed

employees of the Bureau . . . while acting within the scope of

their employment in carrying out the contract or agreement.”

25 U.S.C. § 450f (note). We immediately notice that the

clause is naturally divided into three parts. The first part tells

us the subject of the rule announced in the clause:

“employees” of a tribe, tribal organization, or Indian

contractor. Id. The second part contains the action of the

sentence, instructing that such employees are “deemed

employees of the Bureau.” Id. Finally, the end of the clause

limits the class of employees included within the “deem[ing]”

language to those “acting within the scope of their

employment in carrying out the contract or agreement.”2 Id.

2

We know that “acting within the scope of their employment in carrying

out the contract or agreement” is a limitation on the part of the clause that

comes before it because of the word “while.” In the preceding clause

“deem[ing]” an “Indian tribe, tribal organization, or Indian contractor” as

“part of the Bureau of Indian Affairs” or the “Indian Health Service,” the

word “while” introduces the limitation that such tribes, organizations, or

contractors must be “carrying out any such contract or agreement” in order

to be so “deemed.” 25 U.S.C. § 450f (note). The similar structure

12 SHIRK V. UNITED STATES

The key to understanding the clause, then, is determining

whether an employee is “acting within the scope of their

employment in carrying out the contract or agreement.” Id.

Only then can we know which class of “employees” are

“deemed employees of the Bureau [of Indian Affairs].” Id.

1

Federal district courts have jurisdiction over FTCA claims

on the basis of 28 U.S.C. § 1346(b)(1). In examining the

language of § 1346(b)(1), one is struck by the remarkable

similarity between its language and that of § 314. Section

1346(b)(1) states that district courts have jurisdiction over

“claims against the United States” for “injury or loss of

property, or personal injury or death” caused by the tortious

actions of “any employee of the Government while acting

within the scope of his office or employment.” Section 314’s

language refers to “employees of the Bureau . . . while acting

within the scope of their employment.” Both statutes refer to

the scope of employment in almost identical language.

A basic principle of interpretation is that courts ought to

interpret similar language in the same way, unless context

indicates that they should do otherwise. Cf. Powerex Corp.

v. Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007)

(stating that “identical words and phrases within the same

statute should normally be given the same meaning”); see

between the two clauses strongly suggests that the term “while” is used in

both to indicate that what follows that term is a limitation on what

precedes it. See IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005) (stating the

“normal rule of statutory interpretation that identical words used in

different parts of the same statute are generally presumed to have the same

meaning”).

SHIRK V. UNITED STATES 13

also Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 170–73 (2012). None of the

differences between the two phrases suggest that we should

treat them differently. Section 1346(b)(1) requires courts to

determine whether, under state law, an employee was acting

within the scope of employment when the alleged tort

occurred. See, e.g., Lawrence v. Dunbar, 919 F.2d 1525,

1528 (11th Cir. 1990) (per curiam). Given the similarity

between § 1346(b)(1) and § 314, we are satisfied that § 314

requires the same inquiry.

That “scope of employment” is a term of art further

supports our interpretation. “It is . . . well established that

[w]here Congress uses terms that have accumulated settled

meaning under . . . the common law, a court must infer,

unless the statute otherwise dictates, that Congress means to

incorporate the established meaning of these terms.” Cmty.

for Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989)

(alteration in original) (internal quotation marks omitted);

Felix Frankfurter, Some Reflections on the Reading of

Statutes, 47 Colum. L. Rev. 527, 537 (1947) (“[I]f a word is

obviously transplanted from another legal source, whether the

common law or other legislation, it brings the old soil with

it.”). As the Supreme Court has said in another context,

“Congress’ intent to incorporate the agency law definition is

suggested by [the] use of the term, ‘scope of employment,’ a

widely used term of art in agency law.” Cmty. for Creative

Non-Violence, 490 U.S. at 740. Thus, § 314 requires courts

to determine whether, under state law, an employee’s

allegedly tortious action falls within the scope of his

employment.

14 SHIRK V. UNITED STATES

2

Section 314’s limitation extends further: employees must

be “carrying out the contract or agreement.” 25 U.S.C.

§ 450f (note). A proper understanding of the statute would

give the term “carrying out” its ordinary meaning. See MCI

Telecomms. Corp. v. AT&T, 512 U.S. 218, 225–28 (1994)

(consulting dictionaries for the ordinary meaning of a term at

the time of a statute’s enactment); see also Scalia & Garner,

supra, at 69–77. “To carry out” means “to put into

execution” or “to bring to a successful issue.” Merriam-

Webster’s Collegiate Dictionary 176 (10th ed. 1993); see also

2 The Oxford English Dictionary 922 (2d ed. 1989) (“To

conduct duly to completion or conclusion; to carry into

practice or to logical consequences or inferences.”). Thus, to

“carr[y] out” a “contract or agreement” is to “to put [it] into

execution.”

3

It remains for us to describe the relationship between the

“scope of employment” requirement and the “carrying out”

requirement of § 314. Examining the syntax of the sentence,

the “carrying out” language modifies “scope of their

employment.” This is made clear from the placement of the

word “in” between the two requirements. Because “in

carrying out the contract or agreement” modifies “scope of

their employment,” the natural reading of the text is that the

relevant “employment” for purposes of determining the scope

of employment is “carrying out the contract or agreement.”

An employee’s conduct is covered by the FTCA if, while

executing his contractual obligations under the relevant

federal contract, his allegedly tortious conduct falls within the

SHIRK V. UNITED STATES 15

scope of employment as defined by state law.3 Thus, the

federal contract “defines the nature and contours of [an

employee’s] official responsibilities; but the law of the state

in which the tortious act allegedly occurred determines

whether the employee was acting within the scope of those

responsibilities.” Lyons v. Brown, 158 F.3d 605, 609 (1st Cir.

1998).

An example illuminates the relationship between the two

requirements. Suppose an auto mechanic is employed by an

3

We acknowledge that our interpretation of § 314 makes the scope of

employment analysis in § 1346(b)(1) redundant, since satisfying the § 314

test necessarily satisfies the scope of employment test in § 1346(b)(1).

One might argue that this violates the canon that “[s]tatutes must be

interpreted, if possible, to give each word some operative effect.” Walters

v. Metro. Educ. Enters., Inc., 519 U.S. 202, 209 (1997). However, “[n]o

canon of interpretation is absolute. Each can be overcome by the strength

of differing principles that point in other directions.” Scalia & Garner,

supra, at 59; see also Chickasaw Nation v. United States, 534 U.S. 84, 94

(2001).

In this context, any potential concerns about superfluity are more than

overcome by countervailing interpretive principles. As we have shown,

our interpretation is supported by the canon of consistent usage, since the

word “while” signals a limiting condition in both of the § 314 clauses that

we have discussed. See supra note 2. Our interpretation also accords with

the canon that common law terms are to be given their common law

meaning. See supra Part III.A.1; Scalia & Garner, supra, at 320–21.

Finally, the scope of employment test is part of a conventional FTCA

analysis, see, e.g.,CNA v. United States, 535 F.3d 132, 146 (3d Cir. 2008),

and Congress mentioned the test in both § 1346(b)(1) and § 314, stressing

its importance. It seems clear, then, that federal courts are to conduct a

traditional scope of employment analysis.

Any alternative interpretation of § 314 would violate these and other

principles. Accordingly, we are satisfied that our interpretation is the best

reading of the statute.

16 SHIRK V. UNITED STATES

Indian tribe. In that capacity, the mechanic maintains two

flights of vehicles: those used exclusively for carrying out the

tribe’s contractual obligations under an ISDEAA contract,

and those used by the tribe exclusively for non-contractual

purposes. The contract requires the tribe to maintain the

ISDEAA vehicles. One day, the mechanic negligently

installs brakes in one of the vehicles, and, shortly thereafter,

the vehicle is involved in an accident caused by the faulty

brakes. A person injured by the accident brings suit against

the United States under § 314 for the negligence of the

mechanic.

In determining whether the mechanic’s tort is

encompassed by the scope of his employment, a court would

need to know what the relevant “employment” was: was the

mechanic engaged in his employment under the ISDEAA or

in his employment exclusively for the tribe? The answer

might depend on whether the defective vehicle was an

ISDEAA vehicle. The point, however, is that the court could

not determine the “scope of employment” for the mechanic

without first identifying the relevant “employment” at issue,

and because § 314 only covers employment under the federal

contracts, such contracts define the “employment” for

purposes of the “scope of employment” analysis.

B

These conclusions show that § 314 requires a two-step

approach.4 Because “[t]he party asserting jurisdiction bears

4

Although no federal appellate court has described the relevant analysis

for a § 314 claim, several federal courts have implied that a two-step

approach might be appropriate. See Hinsley v. Standing Rock Child

Protective Servs., 516 F.3d 668, 672 (8th Cir. 2008); Strei v. Blaine, No.

SHIRK V. UNITED STATES 17

the burden of establishing subject matter jurisdiction,” In re

Dynamic Random Access Memory (DRAM) Antitrust Litig.,

546 F.3d 981, 984 (9th Cir. 2008), a plaintiff in an FTCA suit

must identify which contractual provisions the alleged

tortfeasor was carrying out at the time of the tort.5 At the first

step of the § 314 inquiry, courts must determine whether the

alleged activity is, in fact, encompassed by the relevant

federal contract or agreement. The scope of the agreement

defines the relevant “employment” for purposes of the scope

of employment analysis at step two. Second, courts must

decide whether the allegedly tortious action falls within the

scope of the tortfeasor’s employment under state law. If both

of these prongs are met, the employee’s actions are covered

by the FTCA.

As this two-part test makes clear, however, a plaintiff’s

failure at either step is sufficient to defeat subject matter

jurisdiction. If a court determines that the relevant federal

contract does not encompass the activity that the plaintiff

ascribes to the employee, or if the agreement covers that

conduct, but not with respect to the employee in question,

there is no subject matter jurisdiction. Likewise, if a court

CIV. 12-1095 JRT/LIB, 2013 WL 6243881, at *5 (D. Minn. Dec. 3,

2013); Dinger v. United States, No. 12-4002-EFM, 2013 WL 1001444,

at *2 (D. Kan. Mar. 13, 2013); Garcia v. United States, No. CIV 08-0295

JB/WDS, 2010 WL 2977611, at *3 (D.N.M. June 15, 2010); Allender v.

Scott, 379 F. Supp. 2d 1206, 1211 (D. N.M. 2005). Section 314’s plain

meaning is, therefore, supported by what little precedent exists on the

matter.

5

We need not resolve whether an employee’s conduct must be required

by the contract or may be merely authorized by the contract in order for

the employee to be “carrying out the contract or agreement.” 25 U.S.C.

§ 450f (note).

18 SHIRK V. UNITED STATES

decides that the employee’s allegedly tortious action does not

fall within the scope of employment, the employee’s conduct

does not come within the FTCA.

When a court determines that there is no subject matter

jurisdiction, it may choose to decide the case at either step of

the inquiry. If, for instance, an employee drinks at a local bar

after work, becomes inebriated, and gets into a bar fight, the

employee’s actions are almost certainly so far removed from

the scope of his employment as to defeat liability for the

employer. Thus, a court could decide such a case at step two

by stating that there is no plausible argument that the

employee’s actions fall within the scope of his employment,

where such employment is defined as carrying out a federal

contract. In this way, the § 314 analysis is similar to a

qualified-immunity analysis under 42 U.S.C. § 1983. See

Pearson v. Callahan, 555 U.S. 223, 236 (2009) (“The judges

of the district courts and the courts of appeals should be

permitted to exercise their sound discretion in deciding which

of the two prongs of the qualified immunity analysis should

be addressed first in light of the circumstances in the

particular case at hand.”). Only where a court decides that an

employee’s actions are covered by the FTCA under § 314

does the court need to go through both steps of the analysis,

since there are some actions that, although not enforcing a

contract directly, might come within the terms of § 314 by

virtue of state scope-of-employment law.

IV

As a federal court of appeals, we must always be mindful

that “we are a court of review, not first view.” Maronyan v.

Toyota Motor Sales, U.S.A., Inc., 658 F.3d 1038, 1043 n.4

(9th Cir. 2011) (quoting Cutter v. Wilkinson, 544 U.S. 709,

SHIRK V. UNITED STATES 19

719 n.7 (2005)). Where an argument has been “briefed only

cursorily before this Court and [was] not ruled on by the

district court,” it is normally inappropriate for us to evaluate

the argument in the first instance. Bigio v. Coca-Cola Co.,

239 F.3d 440, 455 (2d Cir. 2000). This practice is rooted in

“our general assumption . . . that we operate more effectively

as a reviewing court than as a court of first instance.” Detrich

v. Ryan, 740 F.3d 1237, 1248–49 (9th Cir. 2013) (en banc).

Because this is a case of first impression among federal

appellate courts, neither the district court nor the parties

conducted their analysis using the framework we have

described. As such, we are without the benefit of the district

court’s analysis of this case using the proper two-step

approach. That is particularly significant because of the

critical importance of state law to the second step of the § 314

analysis. Although we do not imply that we would reach the

second step of the § 314 inquiry, “where both the district

court record and the briefing before us is substantially

incomplete on [] state law issues” that might be important to

our resolution of a case, the proper course of action is to

remand to the district court so that it can consider the

argument in the first instance with the benefit of full briefing.

In re Neurontin Mktg. & Sales Practices Litig., 712 F.3d 60,

70 (1st Cir. 2013). Because neither the district court nor any

of the parties provided us with an analysis of Arizona scope-

of-employment law, we follow our standard practice and

remand to the district court.6

6

In the district court, the United States conceded that the Officers were

acting within the scope of their employment as tribal police officers.

Defendants’ Reply in Support of Motion to Dismiss at 2, Shirk v. U.S. ex

rel. Dep’t of Interior, No. CV-09-1786-PHX-NVW (D. Ariz. August 27,

2010) (“The United States agrees that the officers were acting within the

20 SHIRK V. UNITED STATES

Even if we wanted to resolve this case at the first step of

the § 314 inquiry, we would be wise not to do so on the

record before us. That is because of another issue lurking in

the background of this appeal: the uncertainty about which

contractual obligations were in force between the United

States and the GRIC at the time of Shirk’s accident. In the

district court, neither party disputed that the 2003 Compact

incorporated the restrictions of the 638 Contract and its

Statement of Work. For that reason, the district court

assumed that the 638 Contract’s limitations on the authority

of tribal officers applied to the 2003 Compact, and the district

court’s decision was largely based on this assumption. On

appeal, however, the GRIC has argued that the 638 Contract

expired before the enactment of the 2003 Compact, that the

2003 Compact superseded the terms of the 638 Contract, and

that the provisions of the 638 Contract no longer apply.

Thus, it is uncertain which contractual provisions govern the

actions of the Officers in this case.7

scope of their employment as Tribal officers, which is determined by

Arizona law of respondeat superior, but the issue here is one of statutory

application, not common law scope of employment.”). The government

has not conceded, however, that the Officers were acting within the scope

of their employment where the relevant “employment” is “carrying out the

contract or agreement.” Indeed, the government has always maintained

that the Officers were not carrying out the relevant contracts. Thus, the

government’s concession below does not prevent it from arguing on

remand that the Officers were acting outside the scope of their

employment for purposes of § 314.

7

“Generally, we do not consider on appeal an issue raised only by an

amicus.” Swan v. Peterson, 6 F.3d 1373, 1383 (9th Cir. 1993). We could,

therefore, hold as waived the GRIC’s argument concerning the

applicability of the 638 Contract’s obligations. However, in the past, we

have “considered arguments of a jurisdictional nature raised only by

amici.” United States v. Gementera, 379 F.3d 596, 607 (9th Cir. 2004).

SHIRK V. UNITED STATES 21

The relevance of the 638 Contract is, in part, a factual

question, since it is possible that the parties entered into an

indefinite, mature version of the contract after three years.

See 25 U.S.C. § 450j(c)(1)(B); id. § 450b(h). We cannot

know whether that occurred from the record before us

because the district court never made findings on the issue.

“[T]he proper recourse for courts of appeals confronted with

district court findings of questionable sufficiency is ordinarily

to remand for proper first instance factfinding.” Lewis v.

Bloomsburg Mills, Inc., 773 F.2d 561, 577 (4th Cir. 1985).

Such a situation is more likely to occur where, as here, the

district court was never presented with an argument for which

additional factfinding was relevant. See Flexible Lifeline

Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989, 1000 (9th Cir.

2011). Because the district court had no opportunity to

analyze whether the 638 Contract provisions applied at the

time of Shirk’s accident, and because it made no factual

findings in that regard, we believe the proper course is to

remand. See Ariz. Libertarian Party, Inc. v. Bayless,

351 F.3d 1277, 1282–83 (9th Cir. 2003).

V

We vacate the district court’s order dismissing this case

for lack of subject matter jurisdiction and remand for further

proceedings consistent with this opinion. On remand, and

with the benefit of full briefing by the parties, the district

court should conduct a new analysis of its subject matter

jurisdiction using the two-step framework we have described.

Because the applicability of the 638 Contract might affect our analysis at

both steps of the § 314 analysis, the GRIC’s argument potentially

implicates our subject matter jurisdiction, and we exercise our discretion

to consider it.

22 SHIRK V. UNITED STATES

The district court should find whatever facts are necessary to

that end.

VACATED AND REMANDED for proceedings

consistent with this opinion. Each party shall bear its own

costs.

SACK, Senior Circuit Judge, concurring:

I am in full agreement with the judgment of the Court. I

write only to register my doubts as to one of the district

court’s conclusions, which the panel’s opinion need not and,

properly in my view, does not reach in the course of its

remand. Were we squarely presented with the issue, I would

conclude that the relevant agreements between the federal

government and the tribe authorize, indeed perhaps require,

the enforcement of Arizona state law by tribal police officers.

The Multi-Year Financing Agreement, as the panel

opinion notes, requires the tribe to ensure that all its

uniformed officers and criminal investigators maintain state

“peace officer certification,” and it specifically mentions

“AZPOST” certification. MYFA § 2(L). In Arizona,

AZPOST certification supplies the necessary and sufficient

condition for Indian tribal officers engaged in the conduct of

their employment to possess the legal powers and duties of

state peace officers. See Ariz. Rev. Stat. §§ 13-3874(A),

41-1823(B). These powers and duties include the authority

to enforce state law and the duty to protect the public order

and make arrests. Id. §§ 13-3874(A) (providing that certified

tribal officers “shall possess and exercise” the powers of

peace officers (emphasis added)); id. § 13-105(25) (defining

SHIRK V. UNITED STATES 23

“peace officer” as “any person vested by law with a duty to

maintain public order and make arrests” (emphasis added)).

Furthermore, these powers and duties extend outside the

officer’s home jurisdiction under circumstances that, while

limited, would include the tribal officers on the facts of this

case. See id. § 13-3871(B) (empowering peace officers to

enforce the law outside their home jurisdictions in

circumstances enumerated in § 13-3883, which include an

“actual or suspected violation of any traffic law committed in

the officer’s presence”); State v. Nelson, 208 Ariz. 5, 8-9,

90 P.2d 206, 209-10 (Ct. App. 2004).

In light of this certification regime, I think it apparent that

the federal government and the tribe intended that tribal law-

enforcement officers possess and exercise the power to

enforce state law, both on the reservation and, in some cases,

outside of it. The district court, to the contrary, concluded

that the reference to peace officer certification is “no more

than a training requirement, imposed to ensure than all tribal

officers are sufficiently qualified to meet the demands of their

positions.” Shirk v. United States, No. CV-09-1786, 2010

WL 3419757, at *6, 2010 U.S. Dist. LEXIS 89687, at *15

(Aug. 27, 2010).

It is with that proposition that I disagree. AZPOST

certification is more than a confirmation that the recipient has

been adequately and appropriately trained – it confers

specified powers and imposes specified duties on all officers

so certified. Inasmuch as the tribe and the government have

explicitly referenced AZPOST in their agreement, I cannot

but conclude that they intended that officers of the tribe’s law

enforcement program possess these legally defined powers

and duties.

24 SHIRK V. UNITED STATES

The district court’s contrary interpretation was premised

on its assumption that the 638 Contract of 1998 sets outer

limits of the tribe’s duties and authority under the relevant

agreements. See id. On remand, as the Court’s opinion

makes clear, the district court should consider whether the

638 Contract even applied at the time of the conduct giving

rise to this claim. Panel Op., at 18–20. Even if the 638

Contract did apply, the district court should consider whether

the later Compact and funding agreement, by specifically

referring to peace-officer certification, effectively amended

and expanded the earlier contract with respect to the

enforcement of state law.

I think these considerations may have substantial impact

on the district court’s analysis under the two-step approach

established by the Court’s opinion today. We cannot decide

how this analysis should be conducted, however, without first

knowing which of the federal-tribal agreements submitted in

this case were in force at the time of the accident, and how

these agreements relate to each other. For this reason, I fully

concur in the panel’s opinion and decision to vacate and

remand for further factfinding.

BEA, Circuit Judge, concurring in part, dissenting in part:

This court need not remand. I disagree that “uncertainty

about which contractual obligations were in force between the

United States and the GRIC at the time of Shirk’s accident”

SHIRK V. UNITED STATES 25

compels remand. Slip op. at 20.1 According to the majority,

the district court “assumed that the 638 Contract’s limitations

on the authority of tribal officers applied to the 2003

Compact.” Slip op. at 20 (citation omitted). “On appeal,

however, the GRIC has argued that the 638 Contract expired

before the enactment of the 2003 Compact, that the 2003

Compact superseded the terms of the 638 Contract, and that

the provisions of the 638 Contract no longer apply.” Slip op.

at 20 (citation omitted). All this court need do, however, is

to look within the four corners of the contracts in the record:

if the 638 Contract contains an expiration provision, it

expired pursuant to that provision; if the 2003 Compact

contains a provision superseding the 638 Contract, then it

supercedes the 638 Contract.2 There are no issues of fact that

1

The majority accurately summarizes the facts and the legal issues

relevant to this case. I adopt them here. In short: plaintiffs’ FTCA claim

survives FRCP 12(b)(1) dismissal if the actions of the GRIC officers fall

under the scope of the FTCA’s waiver of sovereign immunity. “Section

314” extended the FTCA’s waiver of sovereign immunity to claims

“resulting from the performance of functions . . . under . . . [certain]

contract[s], grant agreement[s], or cooperative agreement[s] . . . .” Slip op

at. 8 (citations and internal quotations omitted). Here, GRIC entered into

certain contracts that allowed them some autonomy over various tribal law

enforcement responsibilities. Slip op. at 6–10. Therefore, the plaintiffs’

FTCA claim falls under the FTCA’s waiver of sovereign immunity if the

GRIC officers were carrying out the obligations of the operative

agreement between GRIC and the United States. There are two possible

operative agreements: (1) the “638 Contract,” slip op. at 8, and (2) the

“2003 Compact,” slip op. at 9.

2

Furthermore, “[a] question of fact concerning the interpretation of a

contract does not arise unless the contract is ambiguous.” Barona Group

of Capitan Grande Band of Mission Indians v. American Mgmt. &

Amusement, Inc., 840 F.2d 1394, 1401 (9th Cir. 1987) (citation omitted).

No party has claimed there were ambiguities in the contracts before the

court here.

26 SHIRK V. UNITED STATES

require remand. Therefore, even though the district court did

not employ the new two-part test we hand down today, and

“[t]ypically, a federal appellate court does not consider an

issue not passed upon below,” Davis v. Nordstrom, Inc.,

755 F.3d 1089, 1094 (9th Cir. 2014) (internal quotations and

citation omitted), we have the “discretion to decide whether

to reach such an issue . . . where the issue presented is a

purely legal one and the record below has been fully

developed,” id. at 1094–95 (citation omitted).

The district courts of this circuit would have benefitted

from a precedential opinion that applied the new two-part

test. The majority opinion has sidestepped this opportunity.

I do not see much point to writing a non-precedential,

one-judge analysis of the merits. Therefore, I agree with the

new two-part test articulated here, but I would not remand.

I respectfully concur in part, and dissent in part.