DAHLSTROM v. Anne M. Crail, Defendant. (2021)

United States Court of Appeals, Ninth Circuit.2021-09-07No. No. 20-35012

Summary · law.co

Holding. The court affirmed the district court's grant of summary judgment because Dahlstrom failed to establish subject-matter jurisdiction by identifying which contractual provisions under the ISDEAA the tribal council was carrying out at the time of the alleged tort.

Raju Dahlstrom sued the United States under the Federal Tort Claims Act, challenging the district court's grant of summary judgment in favor of the government. Dahlstrom claimed that his employment termination by the Sauk-Suiattle Tribal Council was a tort for which the government waived its sovereign immunity. The court examined whether the FTCA's waiver of sovereign immunity applied to Dahlstrom's claim based on the Indian Self-Determination and Education Assistance Act. For the waiver to apply, Dahlstrom bore the burden of identifying which specific contractual provisions the tribal council was carrying out when the tort occurred.

Dahlstrom failed to meet this burden. In his opening brief, he did not identify any particular contractual provision that the tribal council was performing at the time of his termination. Because he did not establish that the FTCA's waiver of sovereign immunity applied, the court found no subject-matter jurisdiction over his claim. The court therefore upheld the summary judgment dismissing his lawsuit.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether the FTCA's waiver of sovereign immunity applies to torts arising from ISDEAA contract performance
Whether a plaintiff must identify specific contractual provisions allegedly being carried out at the time of the tort
Allocation of burden to establish subject-matter jurisdiction in FTCA suits

Procedural posture

Dahlstrom appealed the district court's grant of summary judgment dismissing his FTCA claim for lack of subject-matter jurisdiction.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Raju Dahlstrom appeals the district courts grant of summary judgment in favor of the United States on his claim arising under the Federal Tort Claims Act (“FTCA”). We have jurisdiction under 28 U.S.C. § 1291. We review de novo a grant of summary judgment, Sandoval v. County of Sonoma, 912 F.3d 509, 515 (9th Cir. 2018), as well as the question of whether “the United States is immune from liability in a[n] FTCA action,” S.H. by Holt v. United States, 853 F.3d 1056, 1059 (9th Cir. 2017) (citation omitted). We affirm.

The United States is “immune from suit unless it waives its immunity.” Shirk v. U.S. ex rel. Dept of Interior, 773 F.3d 999, 1003 (9th Cir. 2014). The FTCAs waiver of sovereign immunity extends to claims “resulting from the performance of functions ․ under a contract, grant agreement, or cooperative agreement authorized by the Indian Self-Determination and Education Assistance Act” (“ISDEAA”) so long as the tribe or tribal organization was “carrying out” such a contract or agreement at the time of the tort. See Department of Interior and Related Agencies Appropriation Act, Pub. L. No. 101-512, § 314, 104 Stat. 1915 (1990), 25 U.S.C. § 5321 note. Because a waiver of sovereign immunity is a “prerequisite for jurisdiction,” Dept of Treasury-I.R.S. v. Fed. Lab. Rels. Auth., 521 F.3d 1148, 1153 (9th Cir. 2008) (citation omitted), and because “the party asserting jurisdiction bears the burden of establishing subject matter jurisdiction, a plaintiff in an FTCA suit must identify which contractual provisions the alleged tortfeasor was carrying out at the time of the tort,” Shirk, 773 F.3d at 1006 (alteration, citation, and internal quotation marks omitted).

Dahlstrom—the party asserting jurisdiction—has failed to meet this burden. Indeed, in his opening brief he does not identify a single specific contractual provision that the Sauk-Suiattle Tribal Council was carrying out when it terminated his employment.

Accordingly, Dahlstrom has failed to establish that the FTCAs waiver of sovereign immunity applies, and the district court properly granted summary judgment in the United States’ favor for lack of subject matter jurisdiction over his remaining claim.

AFFIRMED.

FOOTNOTES

. Though we now grant Dahlstroms motion for extensions of time to file the reply brief and further excerpts of record (Docket Entry No. 56) and direct the Clerk to file the reply brief submitted at Docket Entry No. 57 and the further excerpts of record submitted at Docket Entry No. 59, Dahlstrom cannot correct this failure by belatedly pointing to contractual provisions on reply. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam) (noting that the court does not consider matters not specifically and distinctly raised and argued in the opening brief).