M.J. Ex Rel. Beebe v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

M.J., a minor, by her mother and No. 11-35625

next friend Helena Beebe,

Plaintiff-Appellant, D.C. No.

4:09-cv-00013-

v. RRB

UNITED STATES OF AMERICA ,

Defendant-Appellee, OPINION

J.P., a minor,

Third-Party-Defendant-

Counter-Claimant –

Appellant,

CITY OF QUINHAGAK,

Defendant-Third-Party-Plaintiff –

Appellee.

Appeal from the United States District Court

for the District of Alaska

Ralph R. Beistline, Chief District Judge, Presiding

Argued and Submitted

May 24, 2013—Fairbanks, Alaska

Filed July 1, 2013

2 M.J. V . UNITED STATES

Before: A. Wallace Tashima, Richard C. Tallman,

and N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith

SUMMARY*

Diversity/Vicarious Liability

The panel affirmed the district court’s summary judgment

in this diversity action seeking to hold the Alaskan city of

Quinhagak liable for injuries caused by the negligence of

Derrick Johnson, a Native Village of Kwinhagak tribal police

officer.

The panel noted that under Alaska state law, an

employee’s immunity from tort liability precludes an

employer from being held vicariously liable for the

employee’s negligence. The panel held that Johnson was

immune from individual liability for plaintiffs’ tort claims,

both under the Federal Tort Claims Act and the tribe’s

sovereign immunity. Accordingly, because plaintiffs sought

to hold the City vicariously liable on a non-delegable duty

theory for the negligent conduct of an immune independent

contractor, plaintiffs’ claims against the City failed.

*

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

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

M.J. V . UNITED STATES 3

COUNSEL

Russell Lee Winner (argued), Winner & Associates, P.C.,

Anchorage, Alaska, for Plaintiff-Appellant and Counter-

Claimant-Appellant.

Constance Cates Ringstad (argued), Clapp, Peterson,

Tiemessen, Thorsness & Johnson, Fairbanks, Alaska, for

Defendant-Appellee.

OPINION

N.R. SMITH, Circuit Judge:

Under Alaska state law, an employee’s immunity from

tort liability precludes an employer from being held

vicariously liable for the employee’s negligence. See City of

N. Pole v. Zabek, 934 P.2d 1292, 1300 (Alaska 1997).

Vicarious liability claims include those premised on a “non-

delegable duty”—the theory that an employer can be held

liable for an independent contractor’s negligence if the

contractor acted negligently while performing a duty the

employer could not delegate. See Ward v. Lutheran Hosps.

& Homes Soc’y of Am., Inc., 963 P.2d 1031, 1034 n.5 (Alaska

1998). Because Plaintiffs seek to hold the City of Quinhagak

vicariously liable on a “non-delegable duty” theory for the

negligent conduct of an immune independent contractor,

Plaintiffs’ claims against the City fail. We therefore

AFFIRM the district court’s grant of summary judgment in

the City’s favor.

4 M.J. V . UNITED STATES

FACTS & PROCEDURAL HISTORY

I. Background

The tort claims underlying this appeal arise from a four-

wheeler accident that occurred in August 2006 in the rural

Alaskan city of Quinhagak (the “City”). The City shares

approximately the same geographic space and is populated by

roughly the same 650 individuals as the Native Village of

Kwinhagak (“NVK”), a “federally recognized tribe.” See

Indian Entities Recognized and Eligible to Receive Services

from the United States Bureau of Indian Affairs, 73 Fed. Reg.

18553, 18557 (April 4, 2008).

Plaintiff M.J. and Counter-Claimant J.P. (together,

referred to as “Plaintiffs”) seek to hold the City liable for

injuries caused by the negligence of Derrick Johnson, an

NVK tribal police officer (“TPO”). According to Plaintiffs,

Johnson “ordered [them] to ride on the back of [a] four-

wheeler,” after he found them violating a curfew ordinance.

Plaintiffs allege that they were subsequently “thrown off” the

four-wheeler and injured when Johnson lost control of the

four-wheeler. Because NVK (not the City) employed

Johnson at the time of the incident, the extent to which

Plaintiffs may hold the City liable for Johnson’s conduct

depends on the nature of the relationship between the City

and NVK. The history of police services in the remote bush

community provides relevant context for understanding that

relationship.

Before 1996, the State of Alaska and the City shared the

community’s law enforcement responsibilities. Under that

arrangement, state-funded Alaska State Troopers posted in

“hub” communities would respond to “emergencies or

M.J. V . UNITED STATES 5

reported felonies” in Quinhagak. See Alaska Inter-Tribal

Council v. State, 110 P.3d 947, 951 (Alaska 2005).

Additionally, to provide “some local law enforcement

services,” the City hired Village Police Officers (“VPOs”)

“intermittently, and as funds permitted.” Id. VPOs were not

subject to the state’s minimum standards for police officers

and received very limited law enforcement training. See

Alaska Admin. Code tit. 13, §§ 85.005, 89.040 (2012).

In addition to state troopers and VPOs, a local, state-

funded magistrate played a key role in the community’s

justice system. The magistrate adjudicated violations of the

City’s ordinances, including a curfew ordinance. However,

the State phased out the City’s magistrate position in 1993.

Due to its remoteness from municipalities that had the

capacity to adjudicate offenses, this phase out effectively

terminated the City’s ability to enforce its ordinances in the

community.

In 1996, the City and NVK entered into a Memorandum

of Agreement (“MOA”). In effect, the MOA allocated all

responsibility for governing the community to NVK and

relegated the City to “perform[ing] the minimum

requirements spelled out in the Alaska Statutes to retain the

status of 2nd Class City” so that it would continue to receive

state funding. Therefore, NVK took on the role of providing

a local justice system by “enacting its own Tribal Code,

including [a] curfew, and instituting its own Tribal Court.”

As a result, “Tribal laws and codes [became] the primary

laws governing tribal members in the village.”1 NVK also

1

As evidence of this, the former state magistrate became the first Chief

Justice of the Tribal Court, which “accept[ed] and hear[d] only violations

of tribal law.”

6 M.J. V . UNITED STATES

agreed to “provide law enforcement protection” for the

community, to which the City contributed financially.

The relationship between the City, NVK, and Johnson

took on another dimension in 1999 when NVK entered into

a Compact of Self-Governance with the United States (the

“Compact”). In general, the Compact and subsequent

implementing agreements, titled Annual Funding Agreements

(“AFAs”), transferred certain responsibilities for governing

the tribe, such as public safety and policing, from the federal

government to NVK. Under the AFAs, the United States

provided funds to NVK, which NVK spent on delivering

these services. In 2006, NVK used such funds to hire

Johnson as a TPO. As discussed below, this had the effect of

making Johnson a federal employee for the purposes of this

case. See infra Discussion, Part 1.

II. Procedural History

M.J. (represented by her mother and next friend) filed her

complaint on May 13, 2008, seeking over $100,000 in

damages from Johnson and the City for injuries M.J.

sustained as a result of Johnson’s negligent driving of the

four-wheeler. Johnson is no longer a party to the lawsuit. On

April 16, 2009, the United States Attorney for the District of

Alaska “certified” that Johnson was deemed to be a federal

employee for purposes of this lawsuit, because he was

providing services under an AFA at the time of the accident.

Accordingly, the United States substituted itself for Johnson

M.J. V . UNITED STATES 7

under the Westfall Act, 28 U.S.C. § 2679(d)(2), and removed

the case to federal court.2

Nevertheless, M.J. sought to hold the City liable for

Johnson’s negligence on three different theories: (1) vicarious

liability; (2) negligent hiring, supervision, and training; and

(3) negligent entrustment. However, only M.J.’s vicarious

liability claim is at issue on appeal. In that claim, M.J.

alleged that

At all material times, Johnson was an

employee or agent of the City of Quinhagak

acting within the scope of his employment or

agency. Additionally, at all material times

Johnson was performing a non-delegable duty

on behalf of the City of Quinhagak. The City

of Quinhagak is vicariously liable for Jones’s

injuries and damages.

The City answered M.J.’s complaint on January 8, 2010.

In its answer, the City named J.P. as a third-party defendant

and alleged that J.P. caused M.J.’s injuries “in whole or part

. . . [by] overloading and abruptly moving on the four-

wheeler so as to cause Johnson to lose control of the four-

wheeler.” On April 5, 2010, J.P. responded and asserted

counterclaims against the City on the same grounds as M.J.

J.P. did not make any claims against Johnson or the United

States.

2

Section 2679(d)(2), a component of the Federal Tort Claims Act,

authorizes the United States to substitute itself for a federal employee who

has been sued for conduct arising in the course of his or her employment.

Id. § 2679(b)(1), (d)(1)–(2). Plaintiffs do not contest the United States’

certification of, or substitution for, Johnson on appeal.

8 M.J. V . UNITED STATES

The City then moved for summary judgment on Plaintiffs’

vicarious liability claims. The district court initially denied

the motion on October 21, 2009, concluding that the City

owed a non-delegable duty to “maintain public order” by

“provid[ing] police services.” As discussed below, the non-

delegable duty doctrine is an exception to the general rule that

an employer cannot be held liable for torts committed by its

independent contractors. See infra Discussion, Part 2; see

also Ward v. Lutheran Hosps. & Homes Soc’y of Am., Inc.,

963 P.2d 1031, 1034 n.5 (Alaska 1998).

Nearly one-and-a-half years later, the district court

reconsidered this determination and ordered supplemental

briefing on the issue. With the benefit of that briefing, the

district court reversed course and granted summary judgment

to the City on May 18, 2011. The district court concluded

that the City was not vicariously liable to Plaintiffs, because

it did not owe a non-delegable duty to provide police

services. Plaintiffs appealed.

After Plaintiffs filed their Notice of Appeal, the United

States made an offer of judgment to M.J. for $150,000 under

Federal Rule of Civil Procedure 68. M.J. accepted this offer,

and the district court entered judgment against the United

States in that amount on November 10, 2011.3

STANDARD OF REVIEW

“We review de novo a district court’s grant of summary

judgment.” Shelley v. Geren, 666 F.3d 599, 604 (9th Cir.

3

Because J.P. did not sue Johnson, the United States did not become a

defendant as to any of her claims. The United States, therefore, did not

make her a Rule 68 offer.

M.J. V . UNITED STATES 9

2012). When conducting this review, “[w]e may affirm on

any ground supported by the record.” Olson v. Morris,

188 F.3d 1083, 1085 (9th Cir. 1999).

DISCUSSION

Plaintiffs seek to hold the City liable for Johnson’s

alleged negligence on the theory that the City had a “non-

delegable” duty to provide law enforcement services to the

community. No Alaska law clearly holds that the City owed

such a duty. However, we can resolve this case without

deciding whether it did. Instead, we need only determine (1)

whether Johnson qualifies for any immunity from tort

liability, and, if so, (2) whether Johnson’s immunity extends

to the City to bar Plaintiffs’ claims. We answer both

questions in the affirmative, and accordingly AFFIRM the

district court.4

4

As a threshold matter, we reject the City’s argument that M.J.’s

acceptance of the United States’ $150,000 Rule 68 offer moots her appeal

under res judicata principles. Assuming that the district court’s judgment

based on the United States’ offer of judgment was a final judgment for res

judicata purposes, see Wilkes v. Wy. Dep’t of Emp’t Div. of Labor

Standards, 314 F.3d 501, 504 (10th Cir. 2002) (assuming that judgment

pursuant to Rule 68 offer has res judicata effect because parties did not

contest that determination), res judicata does not preclude M.J. from

pursuing an additional judgment against the City, see Gonzalez v.

Hernandez, 175 F.3d 1202, 1207 (10th Cir. 1999) (“Courts applying

section 51(2) [of the Restatement (Second) of Judgments] have held that

a judgment in favor of the injured party in a vicarious liability relationship

does not preclude a second action against nonparties except as to the

amount of damages.”).

10 M.J. V . UNITED STATES

1. Johnson is immune from tort liability as to M.J. and

J.P.

Johnson is immune from individual liability for Plaintiffs’

tort claims, both under the Federal Tort Claims Act (“FTCA”)

and the tribe’s sovereign immunity. The FTCA immunizes

federal employees from individual liability for an “action

[that] is properly against the United States under the FTCA.”

See Meridian Int’l Logistics, Inc. v. United States, 939 F.2d

740, 743 n.1 (9th Cir. 1991). In such cases, “the FTCA is the

‘exclusive mode of recovery for the tort of a Government

employee even when the FTCA itself precludes Government

liability.’” Id. (quoting United States v. Smith, 499 U.S. 160,

166 (1991)). Thus, if a claim is properly against the United

States under the FTCA, the FTCA becomes the sole remedy

and the individual tortfeasor is immunized from liability.

Here, Plaintiffs do not dispute that their tort claims are

properly against the United States under the FTCA.

Controlling federal regulations plainly dictate that this is so:

“No claim may be filed against a self-governance

Tribe/Consortium or employee based upon performance of

functions under a self-governance AFA. All claims shall be

filed against the United States and are subject to the

limitations and restrictions of FTCA.” 25 C.F.R. § 1000.279

(emphasis added). Plaintiffs’ tort claims fall squarely within

the terms of the regulation, because they are based on

Johnson’s performance of functions under NVK’s 2006 AFA.

In that AFA, NVK agreed to “assume responsibility for

implementation and administration of . . . programs, services,

functions and activities” including “Public Safety/Policing.”

At the time of the accident, Johnson was providing policing

services under this agreement. Accordingly, Plaintiffs’ tort

claims are properly against the United States under the

M.J. V . UNITED STATES 11

FTCA, and Johnson is immune from liability, as Plaintiffs’

“exclusive” remedy is against the federal government. See

Smith, 499 U.S. at 166.

Johnson is also immune from tort liability by application

of NVK’s sovereign immunity as an Indian tribe. “Indian

tribes have long been recognized as possessing the

common-law immunity from suit traditionally enjoyed by

sovereign powers.” Linneen v. Gila River Indian Cmty.,

276 F.3d 489, 492 (9th Cir. 2002) (quoting Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 58 (1978)). This immunity

“protects tribal employees acting in their official capacity and

within the scope of their authority.” Cook v. AVI Casino

Enters., Inc., 548 F.3d 718, 727 (9th Cir. 2008). Here, NVK

employed Johnson as a TPO at the time of the accident.

Plaintiffs do not dispute that Johnson was acting in that

official capacity when he engaged in the conduct giving rise

to Plaintiffs’ claims. Accordingly, Johnson is also immune

from tort liability under tribal sovereign immunity.

2. Johnson’s immunity precludes Plaintiffs’ claims

against the City.

Because Johnson is immune, Plaintiffs’ claims against the

City for Johnson’s negligence fail if those claims are based on

the City’s vicarious liability for Johnson’s negligence. Under

Alaska law, “[f]or vicarious liability to attach, some sort of

underlying liability must be established for which the

employer can be held liable.” See City of N. Pole v. Zabek,

934 P.2d 1292, 1300 (Alaska 1997); see also 57 Am. Jur. 2d

Municipal, etc., Tort Liability § 11 (2013) (“The tort

immunity of a local government entity may, in some cases, be

derived from the official immunity of its officers and

12 M.J. V . UNITED STATES

employees.”).5 Because Plaintiffs cannot establish Johnson’s

“underlying liability,” we must determine whether Plaintiffs’

claims against the City—premised on the theory that the City

owed them a “non-delegable” duty—are based on vicarious

liability. We conclude that they are.

In Ward v. Lutheran Hospitals & Homes Society of

America, Inc., the Alaska Supreme Court noted that, under

the non-delegable duty doctrine, “the [employer] bears

vicarious liability for the torts of at least some of its

[independent contractors].” 963 P.2d at 1034 n.5 (emphasis

added); see also Fletcher v. S. Peninsula Hosp., 71 P.3d 833,

838–39 (Alaska 2003) (discussing non-delegable duty

doctrine using vicarious liability terminology).6 Additionally,

the conclusion that the non-delegable duty doctrine is a

theory of vicarious liability flows logically from the

doctrine’s relationship to other tort rules. Specifically, the

doctrine constitutes an “exception to the rule that an employer

is not liable for the negligence of an independent contractor.”

Jackson v. Power, 743 P.2d 1376, 1383 (Alaska 1987),

overruled on other grounds by Alaska Stat. § 09.65.096, as

recognized in Evans ex rel. Kutch v. State, 56 P.3d 1046,

1067 (Alaska 2002). That general rule, which shields an

5

W e acknowledge that some treatises are in conflict with this rule. See

Restatement (Second) of Agency § 217(b)(ii) (2012) (“The principal has

no defense because of the fact that . . . the agent had an immunity from

civil liability as to the act.”); 2A C.J.S. Agency § 438 (2013) (“Under the

doctrine of respondeat superior, a principal has no defense based on an

agent’s official immunity from civil liability for an act committed in the

course of employment.”). However, Plaintiffs provide no persuasive

reason why Alaska would adopt those positions.

6

At least one treatise also supports this position. See 41 Am. Jur. 2d

Independent Contractors § 43 (2013).

M.J. V . UNITED STATES 13

employer from liability for the conduct of its independent

contractors, cuts off the employer’s vicarious liability for the

contractor’s torts. See Sievers v. McClure, 746 P.2d 885, 889

n.6 (Alaska 1987). Therefore, if the non-delegable duty

doctrine is an exception to the general rule that an employer

cannot be held vicariously liable for the torts of his

independent contractor, applying the doctrine would permit

such vicarious liability to attach. Therefore, we conclude that

Plaintiffs have premised their “non-delegable duty” claim

against the City on a theory of vicarious liability.

We reject Plaintiffs’ argument that the non-delegable duty

doctrine is not a theory of vicarious liability. Plaintiffs’ best

case in support of this argument comes from New Mexico.

See Saiz v. Belen Sch. Dist., 827 P.2d 102 (N.M. 1992).

However, the Saiz decision does not represent the majority

view, nor is it the rule applicable in Alaska. Plaintiffs cite no

reason why Alaska courts would adopt the Saiz view.

Because Plaintiffs’ claims against the City are based on

a theory of vicarious liability, their claims fail. We

acknowledge that this result may seem harsh, because

Plaintiffs cannot recover for their injuries against the City.

However, this result is not unjust. Plaintiffs could have

sought relief from the United States under the FTCA. Indeed,

M.J. obtained such relief by filing a claim against Johnson

individually, later settling with the United States for

$150,000—$50,000 more than the minimum she sought in

her complaint. J.P., on the other hand, never filed a claim

against Johnson or the United States under the FTCA. Her

failure to pursue that remedy does not justify setting aside the

14 M.J. V . UNITED STATES

principles of immunity and vicarious liability discussed above

so that she may pursue a claim against the City.7

CONCLUSION

We affirm the district court’s grant of summary judgment

in favor of the City. Johnson’s immunity under the FTCA

and as a tribal employee precludes Plaintiffs from succeeding

on their vicarious liability claims against the City.

AFFIRMED.

7

W e note that the question of whether the FTCA’s statute of limitations

is subject to equitable tolling is currently pending before an en banc panel.

See Wong v. Bebee, 704 F.3d 816 (9th Cir. 2013) (taking the case en

banc). Compare Marley v. United States, 567 F.3d 1030, 1035–36 (9th

Cir 2008) (holding that equitable tolling does not apply to the FTCA’s

statute of limitations), with Alvarez-Machain v. United States, 107 F.3d

696, 701 (9th Cir. 1996) (holding that “equitable tolling is available for

FTCA claims in appropriate circumstances”). However, the availability

of such equitable tolling is not before us and does not affect our

conclusion that immunity bars J.P.’s vicarious liability claims against the

City.