Dean Seneca v. United South and Eastern Tribes , 318 F. App'x 741 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-11012 September 16, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-01705-CV-TCB-1
DEAN SENECA,
Plaintiff-Appellant,
versus
UNITED SOUTH AND EASTERN TRIBES, et al.,
Defendants,
UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 16, 2008)
Before TJOFLAT, BLACK and KRAVITCH, Circuit Judges.
PER CURIAM:
Dean Seneca appeals the district court’s order substituting the United States
for the named defendants and dismissing his tort claims for failure to exhaust
administrative remedies under the Federal Tort Claims Act. For the reasons stated
below, we affirm.
BACKGROUND
Congress has provided for Indian tribes and tribal organizations to enter into
agreements with the United States called “Self-Determination Contracts” whereby
the tribe or organization takes on responsibility for programs or services to Indian
populations that otherwise would have been provided by the Federal government.
25 U.S.C. § 450b(j). The tribe or organization receives Federal funds to help it
operate those programs and services.
United South and Eastern Tribes (“USET”) is a non-profit organization that
represents numerous American Indian tribes collectively. USET entered into a
self-determination contract with the U.S. Department of Health and Human
Services / Indian Health Service (“HHS/IHS”) to assist with health programs. The
contract stated that, among other things, USET would provide timely
dissemination of health information to the Tribal Health Programs in the Nashville
Area, administrative services in coordinating and facilitating the meetings and
activities of the Health Committee, and technical assistance to all area tribes with
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regard to the continuing development of their health programs. This contract also
stated that it was to be “liberally construed for the benefit of the Contractor.”
In 2006, USET was asked to represent American Indian and Alaskan Native
Tribes and testify before HHS’s Tribal Budget Consultation Session and the
National Divisional Budget Formulation and Consultation Session.
Dean Seneca was employed by the Agency for Toxic Substances and
Disease Registry (“ATSDR”) as the Assistant Director of the Office of Tribal
Affairs. Prior to the budget meetings, Seneca attempted to contact employees at
USET through phone calls, emails, and personal encounters to tell them what to
include in their testimony. James Martin, then Executive Director of USET, wrote
a letter to Seneca’s supervisor complaining about Seneca having contacted him
and other USET employees inappropriately regarding the testimony. Seneca’s
supervisor requested additional information and evidence, and USET supplied a
second, more detailed letter about Seneca’s misconduct. Seneca’s job did not,
apparently, require him to contact USET about the testimony, and the letter stated
that his manner was also inappropriate and aggressive.
As a result of the investigation into these complaints from USET, Seneca
was officially reprimanded by his employer, removed from his position at the
Office of Tribal Affairs, and reassigned to another division within ATSDR.
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Seneca submitted an internal administrative grievance to his employer, the CDC,
challenging his reassignment and claiming that the allegations against him in the
letters from USET were false. In the grievance, Seneca requested reinstatement to
his former position, additional training, and attorneys’ fees and costs.
Seneca also filed this tort suit1 against USET, and three USET employees
for making false statements disparaging him. Acting U.S. Attorney Sally Quillian
Yates submitted a certification that the named defendants were acting in the scope
of their employment as Federal Employees. The certification stated that Ms. Yates
had reached this conclusion after reviewing the Indian Self-Determination
Agreement between the United States and USET and the declaration of Daretia
Hawkins, an attorney for HHS, wherein Ms. Hawkins states her opinion that
USET is a tribal contractor entitled to Federal Torts Claims Act (“FTCA”)
coverage. The U.S. then filed a Notice of Substitution requesting that the United
States be substituted as the defendant pursuant to the Federal Employees Liability
Reform and Tort Compensation Act, 28 U.S.C. § 2679(d). The district court
granted the substitution and then dismissed the case for failure to exhaust
administrative remedies under the FTCA.
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Seneca alleged libel, interference with employment, intentional infliction of emotional
distress, invasion of privacy, and injury to his peace, happiness and feeling.
4
DISCUSSION
When an Indian tribe or tribal organization operates pursuant to a self-
determination contract and its employees operate within the scope of their
employment in carrying out such a contract or agreement, the organization is
considered a part of the Federal government and its employees are considered
Federal employees for the purposes of the FTCA. See 25 U.S.C. § 450f. “When a
federal employee is sued for a wrongful or negligent act, the Federal Employees
Liability Reform and Tort Compensation Act of 1988 (commonly known as the
Westfall Act) empowers the Attorney General to certify that the employee ‘was
acting within the scope of his office or employment at the time of the incident out
of which the claim arose.’” Gutierrez de Martinez v. Lamagno, 515 U.S. 417,
419-420 (1995) (quoting 28 U.S.C. § 2679(d)(1)). After certification, the named
defendant employee is dismissed from the action and the United States is
substituted as the defendant; the case is then governed by the FTCA. Id.
A. Was the Certification by the U.S. Attorney Sufficient?
Seneca first challenges the sufficiency of the certification made by the U.S.
Attorney. Seneca argues that the certification was inadequate because it failed to
specify that the defendants were acting within the scope of their Federal
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employment pursuant to an Indian self-determination contract. We find that this
specification was not required, and that the certification was complete.2
Under the law, the United States shall be substituted as the defendant
“[u]pon certification by the Attorney General3 that the defendant employee was
acting within the scope of his office or employment at the time of the incident our
of which the claim arose . . . .” 28 U.S.C. § 2679(d)(1). U.S. Attorney’s Yates’
certification provided exactly this information. The certification stated “the
individual named defendants . . . were acting within the scope of their employment
as employees of the Government at the time of the events alleged.” This language
satisfied the requirements of 28 U.S.C. § 2679(d)(1). We find the appellant’s
argument that the certification needed to state explicitly that the defendants were
acting within the scope of their Federal employment pursuant to an Indian self-
determination contract unpersuasive and without authority.
B. Was the Substitution of the United States as the Defendant Proper?
“[A]lthough the Attorney General’s certification is prima facie evidence
that the employee acted within the scope of his employment, the district court . . .
2
The Supreme Court has determined that Federal courts may review the U.S. Attorney’s
scope-of-employment certification. Guiterrez, 515 U.S. at 420; see also Flohr v. Mackovjak, 84
F.3d 386, 390 (11th Cir. 1996).
3
This responsibility has been delegated to the U.S. Attorneys. See 28 C.F.R. § 15.4.
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decide[s] the issue de novo.” Flohr, 84 F.3d at 390. “However, the burden of
altering the status quo by proving that the employee acted outside the scope of
employment is on the plaintiff.” Id. (internal quotation and alterations omitted).
Seneca argues that the named defendants were acting outside the scope of their
Federal employment because (i) there is no valid self-determination contract, or,
alternatively, (ii) that the defendants were operating outside that agreement at the
time of the alleged tortious conduct.
i. Was there a valid self-determination contract?
Seneca argues that the named defendants could not have been acting within
the scope of Federal employment because there is no valid self-determination
contract. Seneca asserts that the self-determination contract was not properly
authorized by USET’s member tribes. Seneca argued to the district court that the
self-determination contract was invalid because the contract itself did not include
tribal resolutions approving of the contract. On appeal, Seneca contends that the
contract was invalid because the tribal resolutions provided by the defendants as
supporting the contract pre-date the self-determination contract and did not refer
specifically to the contract USET and HHS entered into in October 2001 that
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appellee has presented as the governing self-determination contract.4 We review
arguments not before the district court for plain error. U.S. v. Mock, 523 F.3d
1299, 1302 (11th Cir. 2008). Because we find that the resolutions do support the
contract, we find no plain error.
For a self-determination contract to be valid, it must be made “upon request
by any Indian tribe by tribal resolution,” and must be authorized by “an Indian
tribe.” 25 U.S.C. §§ 450f(a)(1), 450f(a)(2). It is, therefore, not necessary for each
and every USET member tribe to provide a resolution supporting the self-
determination contract; it is enough if one member tribe did so. USET provided
numerous resolutions in support of contracts between itself and the U.S.
government.
Although not specifically drafted in reference to the October 2001 self-
determination contract at issue here, these resolutions refer to and authorize
contracts between USET and the U.S. government explicitly for Health
Information Office programs with Indian Health Services of the type at issue here.
These resolutions are not time-restricted nor limited to a single contract, and the
4
Seneca argues on appeal only that the resolutions are outdated and non-specific; he has
thus abandoned his argument that the self-determination contract was not supported by a
resolution. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (arguments
not made on appeal are abandoned).
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resolutions state that they “continue until rescinded” and request “contracting”
with HHS/IHS rather than requesting one specific contract. We find that these
resolutions thus support the October 2001 self-determination contract for
HHS/IHS Health programs.
ii. Were the named defendants acting within the scope of the self-
determination contract when Seneca’s claims arose?
In this case, we are presented with an employer that operates under dual
purposes. The USET operates as a Federal contractor under certain circumstances,
but also appears to have separate and distinct responsibilities as a representative of
numerous Indian tribes. The question before us is whether, at the time of the
events giving rise to this cause of action, the employees named as defendants were
acting pursuant to USET’s self-determination contract with HHS/IHS or whether
they were acting in furtherance of USET’s other duties.
The district court found that the named defendants were acting pursuant to
the self-determination contract. The district court noted that the contract required
USET to “facilitate meaningful consultation between agencies of [HHS] and
tribes” and that USET’s testimony regarding the health programming needs of the
tribal community improved HHS’s understanding of that issue. Additionally, the
district court noted that the information-gathering and budget formulation
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regarding which Seneca contacted USET fell under the “administrative functions”
necessary to carry out the self-determination contract that were delegated to tribal
organizations, 25 U.S.C. § 450f(a)(1). The court then held that, in light of the
contract’s provision that it be construed liberally for the benefit of USET, USET’s
employees were acting within the scope of the self-determination contract, and
therefore, within the scope of their Federal employment.
“The question of whether a given act falls within the scope of employment
is highly fact-specific, and turns on the unique circumstances of the case at bar.”
Bennett v. United States, 102 F.3d 486, 489 (11th Cir. 1996). This finding of fact
is reversible only if “clearly erroneous.” United States v. Zapata, 180 F.3d 1237,
1240 (11th Cir. 1999).
The district court’s conclusion that these named defendants were acting
pursuant to the self-determination contract between the U.S. government and
USET was not clearly erroneous. The testimony spoke to the need for funding for
tribes to administer health programs; this knowledge is related to USET’s role in
administering health programs. Because of the close connection between the topic
of the testimony and USET’s work for HHS, it was not clearly erroneous to
conclude that the preparation of that testimony was within the scope of the
employment for HHS.
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Furthermore, even if the testimony itself fell outside of the contract, the
conduct that actually led to the tort claims—the writing of complaint letters to
Seneca’s supervisor—falls within scope of the self-determination contract.
USET’s second letter to Seneca’s supervisor stated repeatedly that Seneca’s
behavior was preventing USET from working cooperatively with ATSDR.
Regardless of the context in which Seneca was allegedly harassing USET
employees, the named defendants felt a need to complain about Seneca in order to
preserve the working relationship with ATSDR—a relationship that exists because
of the self-determination contract.
C. Did Seneca Exhaust His Remedies Under the FTCA?
Seneca also disputes that he failed to exhaust his administrative remedies
under the FTCA even if the United States is the proper defendant. We disagree.5
A tort claim may not be brought against the United States “unless the
claimant shall have first presented the claim to the appropriate Federal agency and
his claim shall have been finally denied by the agency in writing and sent by
certified or registered mail.” 28 U.S.C. § 2675(a). This requirement is
5
We review de novo the district court’s dismissal for lack of subject matter jurisdiction.
Broward Gardens Tenants Ass’n v. EPA, 311 F.3d 1066, 1072 (11th Cir. 2002).
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jurisdictional, and failure to provide this notice prevents judicial review of the
claim. Dalrymple v. United States, 460 F.3d 1318, 1324 (11th Cir. 2006).
Seneca asserts that the affidavit he submitted as part of his internal
grievance to ATSDR, as his employer, challenging his reassignment served as
adequate notice under the FTCA. The affidavit stated that the complaints made
against him in USET’s letters were false, and Seneca argues that the affidavit
thereby satisfies the FTCA notice requirement. This affidavit did not, however,
“present” Seneca’s tort claims against ATSDR as the employer of USET’s
employees who had allegedly committed torts against Seneca; Seneca’s affidavit
did not refer to any of the torts enumerated in his complaint. Instead, the affidavit
focused on his displeasure at being reassigned by his employer on the basis of the
employer’s investigation into complaints about his conduct. The affidavit said
nothing about tortious conduct by ATSDR employees, or by the Federal
government through vicarious liability, nor mention any intention by Seneca to
pursue a tort claim on that basis. This does not satisfy the FTCA notice
requirement.
CONCLUSION
For the foregoing reasons, the district court’s substitution of the United
States as the defendant and the subsequent dismissal of this case is AFFIRMED.
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