Doe v. State ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/04/2022 01:04 AM CDT
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312 Nebraska Reports
DOE V. STATE
Cite as 312 Neb. 665John Doe, appellant, v.
State of Nebraska et al., appellees.
___ N.W.2d ___
Filed October 21, 2022. No. S-21-472.
1. Tort Claims Act: Appeal and Error. Whether a complaint alleges a
cause of action under the State Tort Claims Act, or alleges a claim which
is precluded by an exemption under the State Tort Claims Act, presents
a question of law.
2. Jurisdiction. Subject matter jurisdiction is a question of law. When a
jurisdictional question does not involve a factual dispute, the issue is a
matter of law.
3. Judgments: Appeal and Error. An appellate court reviews questions of
law independently of the lower court’s conclusion.
4. Jurisdiction: Immunity: Appeal and Error. A state’s sovereign immu-
nity from suit is a matter of subject matter jurisdiction that an appellate
court cannot ignore.
5. Jurisdiction. Whether a court has subject matter jurisdiction is a thresh-
old issue that should be resolved prior to an examination of the merits.
6. Negligence: Liability: Public Officers and Employees. A state is not
liable to a person injured by the negligence of its employees, unless
there is a statute or constitutional provision permitting recovery.
7. Constitutional Law: Legislature: Immunity: Waiver. Nebraska’s
Constitution provides that “[t]he state may sue and be sued, and the
Legislature shall provide by law in what manner and in what courts
suits shall be brought.” But this constitutional provision is not self-
executing, and it requires legislative action to waive the State’s sover-
eign immunity.
8. Jurisdiction: Legislature: Immunity: Waiver. Absent legislative action
waiving sovereign immunity, a trial court lacks subject matter jurisdic-
tion over an action against the State.
9. Statutes: Immunity: Waiver. A waiver of sovereign immunity is found
only where stated by the most express language of a statute or by such
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Cite as 312 Neb. 665overwhelming implication from the text as will allow no other reason-
able construction.
10. ____: ____: ____. Statutes purporting to waive the protection of sover-
eign immunity are to be strictly construed in favor of the sovereign and
against waiver.
11. Tort Claims Act: Legislature: Immunity: Waiver. Through the State
Tort Claims Act, the Legislature has waived the State’s sovereign immu-
nity with respect to some, but not all, types of tort claims.
12. Tort Claims Act: Immunity: Waiver. The definition of “tort claim” in
Neb. Rev. Stat. § 81-8,210(4) (Reissue 2014) fundamentally limits the
type of tort claims that are subject to the State Tort Claims Act’s limited
waiver of immunity.
13. Tort Claims Act: Legislature: Immunity: Waiver. Under Neb. Rev.
Stat. § 81-8,210(4) (Reissue 2014), the Legislature has waived the
State’s sovereign immunity for those tort claims that (1) seek money
damages only; (2) are on account of property damage, personal injury,
or death; (3) are caused by the negligent or wrongful act or omission of
a state employee acting within the scope of his or her office or employ-
ment; and (4) occur under circumstances in which a private person
would be liable to the claimant.
14. Tort Claims Act: Immunity: Waiver: Liability. Under the plain lan-
guage of Neb. Rev. Stat. §§ 81-8,210(4) and 81-8,215 (Reissue 2014),
the State Tort Claims Act’s limited waiver of sovereign immunity
applies only to tort claims for which a private person, under like circum-
stances, would be liable in tort to the plaintiff.
15. Tort Claims Act: Jurisdiction: Motions to Dismiss. Plaintiffs bringing
an action under the State Tort Claims Act must plausibly allege a “tort
claim” as that term is defined under the act, both to survive a motion
to dismiss for failure to state a claim and to establish subject matter
jurisdiction.
16. Tort Claims Act: Negligence: Proof. A negligence action brought
under the State Tort Claims Act has the same elements as a negligence
action brought against a private individual—a plaintiff must show a
legal duty owed by the defendant to the plaintiff, a breach of such duty,
causation, and damages.
17. Tort Claims Act: Jurisdiction: Negligence: Liability: Proof. To estab-
lish subject matter jurisdiction under the State Tort Claims Act, a plain-
tiff must plausibly allege a “tort claim” as defined under the act. That
requires, inter alia, plausibly alleging that the State, if a private person,
would be liable to the plaintiff for the negligent or wrongful act or omis-
sion under like circumstances.
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Cite as 312 Neb. 66518. Statutes: Legislature: Intent: Torts: Liability. A court may determine
that a statute gives rise to a tort duty to act in the manner required by
the statute where (1) the statute is enacted to protect a class of persons
which includes the plaintiff, (2) the statute is intended to prevent the
particular injury that has been suffered, and (3) the statute is intended
by the Legislature to create a private liability as distinguished from one
of a public character.
19. Statutes: Legislature: Torts: Liability: Courts. Where the Legislature
has not by its express terms or by implication provided for civil tort
liability for failure to comply with a statute, under principles of judicial
restraint, it is prudent that courts not do so.
20. Statutes: Legislature: Intent: Torts: Courts. When considering
whether a statute gives rise to a tort duty, courts should consider the
express remedy, if any, imposed for violating the statute, and whether
such a remedy is inconsistent with a purported legislative intention to
create a tort duty.
21. Statutes: Torts: Liability. Neb. Rev. Stat. § 29-3523 (Cum. Supp.
2020) does not give rise to a legal duty that would subject a private
person to civil tort liability for failing to act in the manner prescribed by
statute.
22. Negligence. Nebraska does not recognize a common-law duty not to
disclose sealed criminal history information.
23. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Lancaster County: Kevin
R. McManaman, Judge. Affirmed.
Zachary W. Lutz-Priefert and John A. McWilliams, of Gross
& Welch, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and James A.
Campbell, Solicitor General, for appellees.
Kevin Ruser and Ryan P. Sullivan, of University of Nebraska
Civil Clinical Law Program, and Deena Keilany and Alicia
Christensen, Senior Certified Law Students, for amicus curiae
Nebraska College of Law Civil Clinic.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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Cite as 312 Neb. 665Stacy, J.
Relying exclusively on the State Tort Claims Act (STCA), 1
John Doe filed suit against the State of Nebraska, the Nebraska
State Patrol (NSP), the Nebraska Department of Correctional
Services (DCS), and DCS director Scott Frakes, alleging they
negligently disclosed and reviewed his sealed criminal history
record information in violation of Neb. Rev. Stat. § 29-3523(Cum. Supp. 2020). The district court dismissed the action on
a number of grounds, including that Doe’s claim was barred
by the doctrine of sovereign immunity. Doe appealed, and we
granted the appellees’ petition to bypass the Nebraska Court
of Appeals.
We affirm the dismissal of Doe’s tort action on sovereign
immunity grounds, but our reasoning differs somewhat from
that of the district court. We conclude that Doe has not alleged
a tort claim as that term is defined in the STCA, and the State
has therefore not waived its sovereign immunity with respect
to Doe’s claim.
I. BACKGROUND
Because this case was dismissed at the pleading stage, the
facts recited below are taken from the allegations of Doe’s
complaint and the attachments thereto. Doe was convicted of
a felony in 2000, and a few years later, he was convicted of a
misdemeanor. Sometime thereafter, Doe applied for pardons. In
2016, the Nebraska Board of Pardons granted his application
and issued pardons for both convictions.
After receiving the pardons, Doe filed a motion asking the
sentencing court to seal his criminal history record information
pursuant to § 29-3523(5). The court granted Doe’s motion and
sealed the criminal history record information relating to both
of his pardoned convictions. Because Doe’s negligence claim
is premised on alleged violations of § 29-3523, we provide
1
Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014 & Cum. Supp.
2020).
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Cite as 312 Neb. 665a brief overview of that statute now and address the relevant
statutory text in more detail later in our analysis.
Section 29-3523 authorizes a court to order the seal-
ing of criminal history record information under certain
circumstances, and it is part of the Security, Privacy, and
Dissemination of Criminal History Information Act (Criminal
History Act). 2 As relevant here, that act imposes certain obli-
gations on “[c]riminal justice agenc[ies]” 3 once “[c]riminal
history record information” 4 has been ordered sealed pursu-
ant to § 29-3523. Ordinarily, criminal history records are con-
sidered public records. 5 But in 2019, the Legislature amended
§ 29-3523 to provide that once a court has ordered criminal
history records to be sealed, they “are not part of the public
record and shall not be disseminated to persons other than
criminal justice agencies,” 6 except in certain limited circum-
stances. Moreover, § 29-3523 instructs that when responding
to a public inquiry about criminal history records which have
been sealed, a criminal justice agency “shall respond . . . in
the same manner as if there were no criminal history record
information and criminal history record information shall not
be disseminated to any person other than a criminal justice
agency.” 7 The statute also provides that in “any application
for employment . . . a person cannot be questioned with
respect to any offense for which the record is sealed” 8 and
2
See Neb. Rev. Stat. §29-3501 (Reissue 2016) (providing that Neb. Rev.
Stat. §§ 29-209, 29-210, 29-3501 to 29-3528, and 81-1423 (Reissue 2016
& Cum. Supp. 2020) “shall be known and may be cited as the Security,
Privacy, and Dissemination of Criminal History Information Act”).
3
See § 29-3509.
4
See § 29-3506.
5
See § 29-3520.
6
§ 29-3523(7).
7
§ 29-3523(1).
8
§ 29-3523(8).
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Cite as 312 Neb. 665that if such an inquiry is made, the applicant may “respond
as if the offense never occurred.” 9
1. Doe Applies for Job With DCS
In September 2019, Doe applied for a job as a caseworker
at DCS. A question on the application form asked whether
Doe had a criminal history, and Doe responded, “[N]o.” DCS
interviewed Doe for the position, and thereafter, it requested
a criminal history background check as part of the applica-
tion process. According to the allegations of the complaint,
NSP wrongfully provided DCS with criminal history record
information that included Doe’s sealed records. Doe was sub-
sequently advised by DCS that he was not being hired for the
caseworker position due to his criminal history.
2. Doe Files Suit
In July 2020, Doe filed this negligence action in the district
court for Lancaster County against the State of Nebraska,
NSP, DCS, Frakes, and “Unknown Employees of the State
of Nebraska.” The district court permitted Doe to file the
complaint using a pseudonym, and he proceeds likewise on
appeal.
The complaint alleged a single cause of action against all
named defendants, described as “Negligent Disclosure and
Review of Sealed Records in Violation of Neb. Rev. Stat.
§ 29-3523.” Doe alleged that when DCS requested his criminal
history records, it was not acting in its capacity as a criminal
justice agency, but instead was making a public inquiry into
Doe’s criminal history. Doe alleged that in response to this
public inquiry, NSP “negligently disclosed” his sealed crimi-
nal history records to DCS in violation of § 29-3523. He also
alleged that DCS’ “consideration” of his sealed records was
negligent and a violation of § 29-3523. The complaint alleged
that this negligence “harmed” Doe and resulted in “lost income,
9
Id.
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Cite as 312 Neb. 665and benefits, including retirement benefits which he would
have earned had he been employed by [DCS].” The complaint
prayed for monetary damages in an amount to be determined
at trial, an injunction prohibiting NSP from disclosing Doe’s
criminal history records “except where explicitly allowed by
statute,” and “expungement” of Doe’s criminal history records
“to prevent future harms and injustices.”
Doe did not serve the unknown defendants, and we do not
address them further. The remaining defendants were served,
and they responded as follows.
DCS and Frakes moved to dismiss Doe’s complaint on two
grounds: (1) The complaint failed to state a claim upon which
relief could be granted, and (2) the claim was barred by sover-
eign immunity. NSP did not join in the motion to dismiss and
instead filed an answer. NSP’s answer expressly denied that
it had disclosed Doe’s criminal history record information to
DCS, and it alleged, as affirmative defenses, the same grounds
on which the other defendants moved for dismissal.
At the hearing on the motion to dismiss, the parties pre-
sented only argument. DCS and Frakes argued that Doe’s com-
plaint failed to state a claim because it contained no factual
allegations showing they owed Doe a legal duty actionable
in tort. Alternatively, they argued that even if a legal duty
was owed, the discretionary function exemption to the STCA
applied and barred Doe’s tort claim. In response, Doe argued
that § 29-3523 created an actionable tort duty, and he argued
that the discretionary function exemption did not apply to bar
his claim because the Criminal History Act prescribed a spe-
cific course of conduct that DCS and Frakes were required to
follow regarding his sealed records.
(a) Claims Against DCS and Frakes Dismissed
In December 2020, the district court entered an order dis-
missing the claims against DCS and Frakes. The court’s order
recited various grounds for dismissal, but we recount only
those pertaining to jurisdiction.
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DOE V. STATE
Cite as 312 Neb. 665In that regard, the district court determined that Doe’s
tort claim against DCS and Frakes was essentially one for
common-law failure to hire and was barred by the STCA’s dis-
cretionary function exemption. 10 After dismissing the claims
against DCS and Frakes, the court, sua sponte, 11 directed the
remaining parties to brief two additional issues bearing on
its subject matter jurisdiction: (1) whether Doe pled a “tort
claim” as defined under the STCA and (2) whether a viola-
tion of § 29-3523 is actionable in tort. The court held a hear-
ing to take up these jurisdictional questions once the briefing
was complete.
At the hearing on jurisdiction, the State and NSP argued
the court lacked subject matter jurisdiction under the STCA
because Doe had not alleged a “[t]ort claim” as defined in
§ 81-8,210(4). In relevant part, that statute provides:
Tort claim means any claim against the State of Nebraska
for money only on account of damage to or loss of prop-
erty or on account of personal injury or death caused
by the negligent or wrongful act or omission of any
employee of the state, while acting within the scope of
his or her office or employment, under circumstances in
which the state, if a private person, would be liable to the
claimant for such damage, loss, injury, or death . . . . 12
The State and NSP argued that Doe had not alleged a “tort
claim” as defined under the STCA because (1) his claim was
not for money only, (2) he had not alleged a personal injury,
and (3) the alleged violation of § 29-3523 was not a claim for
which a private person could be liable under similar circum-
stances. Additionally, the State and NSP argued that under
10
See § 81-8,219(1).
11
See Moser v. State, 307 Neb. 18, 22, 948 N.W.2d 194, 199 (2020) (holding
State’s waiver of sovereign immunity under STCA is jurisdictional matter
that “a court may consider sua sponte”).
12
§ 81-8,210(4).
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Cite as 312 Neb. 665the test articulated in Claypool v. Hibberd, 13 § 29-3523 did
not create an actionable tort duty which could support a claim
for negligence.
Doe disagreed. He argued the complaint sufficiently alleged
a plausible “tort claim” under the STCA because it sought
money damages, on account of a personal injury, caused by
the negligent dissemination and consideration of his sealed
criminal history records in violation of § 29-3523. Doe also
argued that § 29-3523 created a tort duty which applies to gov-
ernmental employees and private persons alike. Alternatively,
he argued that if the court did not agree § 29-3523 created a
tort duty, then it should find that Nebraska recognizes a general
common-law duty prohibiting the dissemination and consider-
ation of sealed criminal history records.
(b) Sua Sponte Dismissal for
Lack of Jurisdiction
After considering arguments of the parties, the court entered
an order dismissing Doe’s complaint, in its entirety, for lack of
subject matter jurisdiction. The court recited several reasons
why it lacked jurisdiction.
First, the court concluded that Doe had not pled a “tort
claim” under the STCA, reasoning primarily that Doe’s com-
plaint failed to allege a “personal injury” within the mean-
ing of § 81-8,210(4). Additionally, the court concluded that
the Legislature did not create a tort duty when it enacted
§ 29-3523 of the Criminal History Act, so the alleged viola-
tion of that statute did not present a tort claim for which the
State had waived immunity under the STCA. The court also
rejected Doe’s assertion that Nebraska recognized a common-
law duty prohibiting the dissemination of truthful information
about a person’s criminal history. Lastly, the court concluded
that to the extent Doe’s complaint sought injunctive relief
13
Claypool v. Hibberd, 261 Neb. 818, 626 N.W.2d 539 (2001).
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Cite as 312 Neb. 665and “expungement” of his criminal records, those remedies
fell outside the STCA’s waiver of sovereign immunity. 14 The
court thus determined it lacked subject matter jurisdiction over
Doe’s claim under the STCA, and it dismissed the complaint in
its entirety on that basis.
Doe filed a timely appeal, and we granted the appellees’
petition to bypass. After oral argument before this court, we
requested supplemental briefing addressing whether, under
Nebraska tort law, a private person under like circumstances
would be liable to Doe. Supplemental briefs were received and
considered, and we discuss the parties’ jurisdictional arguments
later in our analysis.
II. ASSIGNMENTS OF ERROR
Doe assigns five errors which we consolidate and restate
into two: (1) The district court erred when it determined Doe
had not alleged a “tort claim” within the meaning of the STCA
and thus dismissed the complaint for lack of subject matter
jurisdiction, and (2) the district court erred when it determined
the discretionary function exemption applied to bar Doe’s
claim against DCS and Frakes.
In support of his first assignment of error, Doe presents sev-
eral arguments. First, he asserts that § 29-3523 of the Criminal
History Act created a tort duty to conform to the requirements
of the act and that the district court erred in concluding other-
wise. Alternatively, he argues Nebraska recognizes a common-
law duty to not disseminate or consider sealed criminal history
information. Next, he argues the complaint alleged a plausible
claim for personal injury, and the district court erred in con-
cluding otherwise. And finally, he argues the district court
14
See Zawaideh v. Nebraska Dept. of Health & Human Servs., 285 Neb. 48,
58, 825 N.W.2d 204, 213 (2013) (holding definition of tort claim under
STCA is for “‘money only’” and thus “exclude[s] nonmonetary claims,
such as actions for injunctive relief”).
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Cite as 312 Neb. 665erred in concluding that the remedies of injunctive relief and
expungement are barred by sovereign immunity.
III. STANDARD OF REVIEW
[1] Whether a complaint alleges a cause of action under the
STCA, or alleges a claim which is precluded by an exemption
under the SCTA, presents a question of law. 15
[2] Subject matter jurisdiction is a question of law. 16 When
a jurisdictional question does not involve a factual dispute, the
issue is a matter of law. 17
[3] An appellate court reviews questions of law indepen-
dently of the lower court’s conclusion. 18
IV. ANALYSIS
1. Sovereign Immunity and
Subject Matter Jurisdiction
[4,5] A state’s sovereign immunity from suit is a matter
of subject matter jurisdiction that an appellate court cannot
ignore. 19 Whether a court has subject matter jurisdiction is a
threshold issue that should be resolved prior to an examination
of the merits. 20 We therefore begin our analysis by reviewing
familiar principles of sovereign immunity which bear on the
court’s subject matter jurisdiction in this case.
[6-8] Nebraska has long recognized the “‘rule that a state
is not liable to a person injured by the negligence of its
employees, unless there is a statute or constitutional provision
15
See, Williams v. State, 310 Neb. 588, 967 N.W.2d 677 (2021); Brown v.
State, 305 Neb. 111, 939 N.W.2d 354 (2020). Accord Edwards v. Douglas
County, 308 Neb. 259, 953 N.W.2d 744 (2021) (whether allegations of
complaint set forth claims which are precluded by exemptions under
Political Subdivisions Tort Claims Act presents question of law).
16
See id.17
See id.18
See id.19
See Edwards, supra note 15.
20
Lambert v. Lincoln Public Schools, 306 Neb. 192, 945 N.W.2d 84 (2020).
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Cite as 312 Neb. 665permitting recovery.’” 21 Nebraska’s Constitution provides that
“[t]he state may sue and be sued, and the Legislature shall
provide by law in what manner and in what courts suits
shall be brought.” 22 But this constitutional provision is not
self-executing, and it requires legislative action to waive the
State’s sovereign immunity. 23 Absent legislative action waiv-
ing sovereign immunity, a trial court lacks subject matter
jurisdiction over an action against the State. 24
[9,10] A waiver of sovereign immunity is found only where
stated by the most express language of a statute or by such
overwhelming implication from the text as will allow no other
reasonable construction. 25 Nebraska courts follow the rule that
statutes purporting to waive the protection of sovereign immu-
nity are to be strictly construed in favor of the sovereign and
against waiver. 26
Doe’s complaint relies exclusively on the STCA for jurisdic-
tion in this case. He alleged no other statutory basis for juris-
diction over his tort claim, and he argued no other statutory
basis for jurisdiction before the district court. We thus limit our
jurisdictional analysis to the STCA.
(a) STCA’s Limited Waiver
of Sovereign Immunity
[11] Under the plain language of the STCA, no tort claim
“shall be maintained against the state, any state agency, or any
employee of the state on any tort claim except to the extent,
and only to the extent, provided by the [STCA].” 27 We have
21
See Jill B. & Travis B. v. State, 297 Neb. 57, 66, 899 N.W.2d 241, 250
(2017).
22
Neb. Const. art. V, § 22.
23
See Jill B. & Travis B., supra note 21.
24
Burke v. Board of Trustees, 302 Neb. 494, 924 N.W.2d 304 (2019).
25
Edwards, supra note 15.
26
Id.27
§ 81-8,209.
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Cite as 312 Neb. 665recognized that through the STCA, the Legislature has waived
the State’s sovereign immunity with respect to some, but not
all, types of tort claims. 28
When considering whether a particular tort claim falls
within the STCA’s limited waiver of sovereign immunity, our
reported opinions often focus on the applicability of the statu-
tory exemptions set out in § 81-8,219. 29 This is because when
one of those exemptions applies, the tort claim is not one for
which the State has consented to be sued. 30 But, as we discuss
next, the STCA also contains another, more fundamental, limi-
tation on the waiver of sovereign immunity for tort claims—the
statutory definition of “tort claim.”
(i) Definition of “Tort Claim”
For purposes of the STCA, the Legislature has defined “tort
claim” in § 81-8,210(4). We quoted the relevant portions of
that definition earlier in this opinion, and we repeat it here for
convenience:
Tort claim means any claim against the State of Nebraska
for money only on account of damage to or loss of prop-
erty or on account of personal injury or death caused
by the negligent or wrongful act or omission of any
employee of the state, while acting within the scope of
his or her office or employment, under circumstances in
which the state, if a private person, would be liable to the
claimant for such damage, loss, injury, or death . . . . 31
[12,13] The STCA’s definition of “tort claim” fundamentally
limits the type of tort claims that are subject to the STCA’s
limited waiver of sovereign immunity. Under this statutory
28
See, Williams, supra note 15; Moser, supra note 11; Brown, supra note 15.
29
See, e.g., Wizinsky v. State, 308 Neb. 778, 957 N.W.2d 466 (2021) (discre­
tionary function exemption); Moser, supra note 11 (analyzing applicability
of intentional tort exemption); Brown, supra note 15 (recreational activity
exemption); Zawaideh, supra note 14 (misrepresentation exemption).
30
See Edwards, supra note 15.
31
§ 81-8,210(4) (emphasis supplied).
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Cite as 312 Neb. 665definition, the Legislature has waived the State’s sovereign
immunity for those tort claims that (1) seek money damages
only; (2) are on account of property damage, personal injury,
or death; (3) are caused by the negligent or wrongful act or
omission of a state employee acting within the scope of his or
her office or employment; and (4) occur under circumstances
in which a private person would be liable to the claimant.
On appeal, the appellees argue that the claim alleged in Doe’s
complaint failed to satisfy any of the definitional requirements
for a tort claim under § 81-8,210(4). But we do not address all
of the definitional requirements; instead, we focus our analy-
sis on the last requirement, which limits tort claims under the
STCA to those torts occurring under circumstances “in which
the state, if a private person, would be liable to the claimant.” 32
Similar language appears in § 81-8,215 of the STCA, which
sets out the general waiver of sovereign immunity and provides
that “[i]n all suits brought under the [STCA] the state shall be
liable in the same manner and to the same extent as a private
individual under like circumstances . . . .” Similar provisions
appear in the Political Subdivisions Tort Claims Act. 33 As
stated, our settled rules of statutory construction require that
we strictly construe these waivers of sovereign immunity in
favor of the sovereign.
The “private person” provision in § 81-8,210(4) and the
related “private individual” provision in § 81-8,215 have been
part of the STCA since its adoption in 1969. 34 This court long
ago recognized that through these statutory provisions, the
Legislature consented to tort “liability on the part of the State
under the same circumstances under which a private person
would be liable.” 35 Our opinions discussing the STCA routinely
32
§ 81-8,210(4).
33
See Neb. Rev. Stat. §§ 13-903(4) and 13-908 (Reissue 2012).
34
See §§ 81-8,210(4) and 81-8,215 (Cum. Supp. 1969).
35
Cortes v. State, 191 Neb. 795, 798, 218 N.W.2d 214, 216 (1974).
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Cite as 312 Neb. 665recite the “private person” provisions, 36 but we have not previ-
ously addressed the jurisdictional import of such provisions on
the STCA’s waiver of immunity. This case affords an opportu-
nity to develop our case law on this jurisdictional issue.
In their supplemental briefing to this court, the parties agree
that under the plain language of §§ 81-8,210(4) and 81-8,215
(Reissue 2014), the Legislature’s waiver of the State’s sover-
eign immunity is limited to claims for which a private person
under like circumstances would be liable in tort to the claimant
under Nebraska law. Both parties point to a dearth of Nebraska
case law addressing this aspect of the STCA, and, as a result,
they devote considerable discussion to federal cases address-
ing similar “private person” provisions within the Federal Tort
Claims Act (FTCA). 37
The FTCA provides, in relevant part, that the “United States
shall be liable, respecting the provisions of this title relating to
tort claims, in the same manner and to the same extent as a pri-
vate individual under like circumstances . . . .” 38 Additionally,
§ 1346(b)(1) gives the federal district courts
36
See, e.g., Davis v. State, 297 Neb. 955, 970, 902 N.W.2d 165, 181 (2017)
(reciting both provisions and noting that “the state defendants could not
have committed the tortious acts set out in [plaintiff’s] complaint as
private individuals”). See, also, Moser, supra note 11, 307 Neb. at 23, 948
N.W.2d at 199 (“[a]s pertinent here, the STCA waives the State’s sovereign
immunity for tort claims against the State on account of personal injury
caused by the negligent or wrongful act or omission of any employee of
the State, while acting within the scope of his or her office or employment,
under circumstances in which the State, if a private person, would be liable
to the claimant for such injury”); Northland Ins. Co. v. State, 242 Neb.
10, 14, 492 N.W.2d 866, 869 (1992) (holding “an action for contribution
is covered under [the STCA], but only if a private person would be liable
to the claimant for the damage, loss, injury, or death”); Blitzkie v. State,
228 Neb. 409, 415, 422 N.W.2d 773, 777 (1988) (“[s]ubject to certain
exempted claims, the [STCA] provides for the State’s liability for its torts
the same as a private person may be liable for torts”).
37
See 28 U.S.C. §§ 1346(b) and 2671 to 2680 (2018).
38
§ 2674.
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Cite as 312 Neb. 665exclusive jurisdiction of civil actions on claims against
the United States, for money damages, . . . for injury or
loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his
office or employment, under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where
the act or omission occurred.”
The U.S. Supreme Court has construed these federal statu-
tory provisions “to mean what they say, namely, that the
United States waives sovereign immunity ‘under circum-
stances’ where local law would make a ‘private person’ liable
in tort.” 39 The Supreme Court has referred to this as the
FTCA’s “‘private person’ standard,” 40 and other federal courts
have described it as the “private analogue” requirement of the
FTCA. 41 Regardless of nomenclature, federal courts have con-
sistently held that the private person requirement is jurisdic-
tional in nature and must be satisfied for the FTCA’s limited
waiver of sovereign immunity to apply. 42 As the U.S. Supreme
Court succinctly stated recently in Brownback v. King, 43 when
bringing a claim under the FTCA, “a plaintiff must plausi-
bly allege that ‘the United States, if a private person, would
be liable to the claimant’ under state law both to survive [a
39
United States v. Olson, 546 U.S. 43, 44, 126 S. Ct. 510, 163 L. Ed. 2d 306(2005) (emphasis in original).
40
Id., 546 U.S. at 46.
41
See, e.g., Green Acres Enterprises, Inc. v. U.S., 418 F.3d 852, 855 (8th Cir.
2005). See, also, D.J.C.V. v. United States, No. 20 Civ. 5747, 2022 WL
1912254 (S.D.N.Y. June 3, 2022).
42
See, e.g., Smith v. U.S., 14 F.4th 1228 (11th Cir. 2021); Gutrejman v. U.S.,
527 F. Supp. 3d 1 (D.C. 2021); In re Marjory Stoneman Douglas High
School, 482 F. Supp. 3d 1273 (S.D. Fla. 2020); McGonagle v. U.S., 155 F.
Supp. 3d 130 (D. Mass. 2016).
43
Brownback v. King, ___ U.S. ___, 141 S. Ct. 740, 749, 209 L. Ed. 2d 33(2021).
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Cite as 312 Neb. 665motion to dismiss for failure to state a claim] and to establish
subject-matter jurisdiction.”
The Nebraska Legislature patterned the STCA after the
FTCA, 44 and the “private person” language under the STCA
largely mirrors the private person language under the FTCA.
Consequently, when discussing the jurisdictional impact of
the private person requirement under the STCA, both Doe
and the appellees argue in their supplemental briefing that the
jurisdictional reasoning of the federal courts, as it pertains to
the private person requirement under the FTCA, is instructive.
We generally agree, with the caveat that the federal courts do
not always adhere to the same rules of strict construction that
Nebraska courts follow when considering statutes that purport
to waive sovereign immunity. 45
[14,15] Considering the plain language of §§ 81-8,210(4)
and 81-8,215 under our settled rule of strict construction, we
now expressly recognize what has been the case since the
enactment of the STCA: The STCA’s limited waiver of sov-
ereign immunity applies only to tort claims for which a pri-
vate person, under like circumstances, would be liable in tort
to the plaintiff. This means that plaintiffs bringing an action
under the STCA must plausibly allege a “tort claim” as that
term is defined under the STCA, both to survive a motion to
dismiss for failure to state a claim and to establish subject mat-
ter jurisdiction.
[16,17] To clarify, it remains true as a general principle that
a negligence action brought under the STCA or the Political
Subdivisions Tort Claims Act 46 has the same elements as
a negligence action brought against a private individual—a
44
See Jill B. & Travis B., supra note 21.
45
See, e.g., Moser, supra note 11, 307 Neb. at 29, 948 N.W.2d at 202
(observing that U.S. Supreme Court “has not uniformly used the same
strict construction canon with respect to waivers of sovereign immunity”
that Nebraska follows).
46
Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012 & Cum. Supp. 2020).
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Cite as 312 Neb. 665plaintiff must show a legal duty owed by the defendant to
the plaintiff, a breach of such duty, causation, and damages. 47
However, to establish subject matter jurisdiction under the
STCA, a plaintiff must also plausibly allege a “tort claim” as
defined under the STCA. That requires, inter alia, plausibly
alleging that the State, if a private person, would be liable
to the plaintiff for the negligent or wrongful act or omission
under like circumstances.
(ii) Has Doe Alleged Tort Claim Under STCA?
The district court concluded that it lacked subject matter
jurisdiction over Doe’s action because he had not alleged a
“tort claim” as defined under the STCA. On appeal, the parties
present arguments going to each of the definitional require-
ments for a tort claim under § 81-8,210(4). However, because
we conclude the “private person” definitional requirement is
dispositive, we confine our analysis to that issue and do not
reach the parties’ other jurisdictional arguments. 48
(b) Private Person Analogue
We turn now to the dispositive jurisdictional issue in this
STCA appeal: whether Doe has alleged a tort claim for which
a private person, under like circumstances, would be liable.
In Doe’s complaint, all of the negligent or wrongful acts or
omissions relate to the defendants’ alleged failure to comply
with the provisions of § 29-3523. The jurisdictional question
under the STCA, then, is whether a private person under like
circumstances would be liable in tort for failing to comply with
§ 29-3523.
In his supplemental briefing, Doe argues that a private
would be liable in tort for disseminating and considering his
47
See, e.g., Reiber v. County of Gage, 303 Neb. 325, 928 N.W.2d 916(2019).
48
State v. Webb, 311 Neb. 694, 974 N.W.2d 317 (2022) (appellate court not
obligated to engage in analysis that is not necessary to adjudicate case and
controversy before it).
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Cite as 312 Neb. 665sealed criminal history records under either of two theories.
His primary argument is that § 29-3523 creates a tort duty
that applies to private persons. Alternatively, he argues that
Nebraska law recognizes a common-law duty to not disclose
criminal history records. We address each argument below, but
first we recite the relevant text of § 29-3523.
Section 29-3523 provides:
(1) After . . . the granting of a motion [to seal criminal
history record information] under subsection (4), (5), or
(6) of this section, a criminal justice agency shall respond
to a public inquiry in the same manner as if there were
no criminal history record information and criminal his-
tory record information shall not be disseminated to any
person other than a criminal justice agency, except as pro-
vided in subsection (2) of this section or when the subject
of the record:
(a) Is currently the subject of prosecution or correc-
tional control as the result of a separate arrest;
(b) Is currently an announced candidate for or holder
of public office;
(c) Has made a notarized request for the release of such
record to a specific person; or
(d) Is kept unidentified, and the record is used for pur-
poses of surveying or summarizing individual or collec-
tive law enforcement agency activity or practices, or the
dissemination is requested consisting only of release of
criminal history record information showing (i) dates of
arrests, (ii) reasons for arrests, and (iii) the nature of the
dispositions including, but not limited to, reasons for not
prosecuting the case or cases.
(2) That part of criminal history record information
described in subsection (7) of this section may be dissem-
inated to individuals and agencies for the express purpose
of research, evaluative, or statistical activities pursuant to
an agreement with a criminal justice agency that specifi-
cally authorizes access to the information, limits the use
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Cite as 312 Neb. 665of the information to research, evaluative, or statistical
activities, and ensures the confidentiality and security of
the information.
....
(5) Any person who has received a pardon may file a
motion with the sentencing court for an order to seal the
criminal history record information and any cases related
to such charges or conviction. Upon a finding that the
person received a pardon, the court shall grant the motion
and issue an order as provided in subsection (7) of this
section.
....
(7) Upon acquittal or entry of an order dismissing a
case described in subdivision (3)(c) of this section, or
after granting a motion under subsection (4), (5), or (6) of
this section, the court shall:
(a) Order that all records, including any information
or other data concerning any proceedings relating to the
case, including the arrest, taking into custody, petition,
complaint, indictment, information, trial, hearing, adjudi-
cation, correctional supervision, dismissal, or other dis-
position or sentence, are not part of the public record and
shall not be disseminated to persons other than criminal
justice agencies, except as provided in subsection (1) or
(2) of this section;
(b) Send notice of the order (i) to the Nebraska
Commission on Law Enforcement and Criminal Justice,
(ii) to the Nebraska State Patrol, and (iii) to law enforce-
ment agencies, county attorneys, and city attorneys refer-
enced in the court record;
(c) Order all parties notified under subdivision (7)(b)
of this section to seal all records pertaining to the case;
and
(d) If the case was transferred from one court to
another, send notice of the order to seal the record to the
transferring court.
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Cite as 312 Neb. 665(8) In any application for employment, bonding,
license, education, or other right or privilege, any appear-
ance as a witness, or any other public inquiry, a person
cannot be questioned with respect to any offense for
which the record is sealed. If an inquiry is made in viola-
tion of this subsection, the person may respond as if the
offense never occurred.
(i) Does § 29-3523 Create Tort Duty?
As stated, Doe argues that § 29-3523 of the Criminal
History Act creates a tort duty to act in the manner required
by the statute, and he argues that such a duty is imposed on
governmental employees and private persons alike. The appel-
lees argue that § 29-3523 does not create a tort duty, and in any
event, the pertinent requirements of § 29-3523 are not directed
at private individuals.
[18] We have not yet had occasion to consider whether
§ 29-3523 gives rise to a tort duty. But in Claypool, we set out
the test for determining when a statute creates such a duty:
A court may determine that a statute gives rise to a tort
duty to act in the manner required by the statute where
[1] the statute is enacted to protect a class of persons
which includes the plaintiff, [2] the statute is intended to
prevent the particular injury that has been suffered, and
[3] the statute is intended by the Legislature to create
a private liability as distinguished from one of a public
character. 49
The appellees appear to concede that Doe, as someone
whose criminal history records have been sealed as a result of
pardons, is generally within the class of persons that § 29-3523
was enacted to protect. But they argue that under the third
Claypool factor, there is nothing to suggest the Legislature
intended § 29-3523 to create private tort liability. We agree.
[19,20] We have described the third Claypool factor as
“central to the analysis of whether the statute defines a duty in
49
Claypool, supra note 13, 261 Neb. at 825, 626 N.W.2d at 545.
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Cite as 312 Neb. 665tort,” 50 and we have explained that “where the Legislature has
not by its express terms or by implication provided for civil
tort liability [for failure to comply with a statute], under prin-
ciples of judicial restraint, it is prudent that we not do so.” 51
Moreover, we have said that courts should consider the express
remedy, if any, imposed for violating the statute, and whether
such a remedy is “inconsistent with a purported legislative
intention to create a tort duty.” 52
The legislative purpose of the Criminal History Act is stated
in § 29-3502:
The purposes of [the Criminal History Act] are (1) to
control and coordinate criminal offender record keep-
ing within this state, (2) to establish more efficient and
uniform systems of criminal offender record keeping,
(3) to assure periodic audits of such record keeping
in order to determine compliance with sections 29-209,
29-210, 29-3501 to 29-3528, and 81-1423, (4) to estab-
lish a more effective administrative structure for the
protection of individual privacy in connection with such
record keeping, and (5) to preserve the principle of the
public’s right to know of the official actions of criminal
justice agencies.
It is apparent from the plain text of § 29-3502 that the pur-
poses of the Criminal History Act are primarily administrative
in nature; the act is aimed at ensuring uniformity, efficiency,
accuracy, and transparency in criminal history recordkeeping.
We see nothing in § 29-3502 which suggests the Legislature
intended the Criminal History Act to create a tort duty to act in
accordance with the statutory scheme.
Presumably recognizing that the legislative purpose recited
in § 29-3502 is of little help to his argument under the Claypool
50
Stonacek v. City of Lincoln, 279 Neb. 869, 880, 782 N.W.2d 900, 909
(2010).
51
Id.52
Id. at 881, 782 N.W.2d at 910.
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Cite as 312 Neb. 665factors, Doe asks us to focus more specifically on the provi-
sions of § 29-3523, which govern how sealed criminal history
records are to be handled. But the plain language of § 29-3523
does not expressly or impliedly create private tort liability
for failing to comply with the statutory provisions governing
sealed criminal history records. In fact, as we discuss next, the
Legislature has provided express statutory remedies for viola-
tions of the Criminal History Act which are inconsistent with a
purported legislative intent to create a private tort duty.
We identify two statutes providing express remedies for
violations of the Criminal History Act. Section 29-3527 estab-
lishes criminal liability for “[a]ny person” who commits certain
violations of the Criminal History Act, including the know-
ing dissemination of “nondisclosable criminal history record
information in violation of [the Criminal History Act].” 53
Additionally, § 29-3528 authorizes an aggrieved person to
compel governmental actors to comply with the requirements
of the Criminal History Act and provides:
Whenever any officer or employee of the state, its
agencies, or its political subdivisions, or whenever any
state agency or any political subdivision or its agencies
fails to comply with the requirements of [the Criminal
History Act] or of regulations lawfully adopted to imple-
ment [the Criminal History Act], any person aggrieved
may bring an action, including but not limited to an action
for mandamus, to compel compliance and such action
may be brought in the district court of any district in
which the records involved are located or in the district
court of Lancaster County. The commission may request
the Attorney General to bring such action.
53
See § 29-3527(1) through (3) (providing any person who permits
unauthorized direct access to criminal history information, who knowingly
fails to disseminate public criminal history information, or who knowingly
disseminates “nondisclosable criminal history record information” is guilty
of Class IV misdemeanor).
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Cite as 312 Neb. 665Based on the express statutory remedies created by the
Legislature—one which imposes criminal penalties on any
person who violates the act, and another which authorizes
mandamus and similar actions against governmental actors
“to compel compliance” with the act—we cannot find that the
Legislature intended the Criminal History Act generally, or
§ 29-3523 specifically, to give rise to any tort duty, let alone a
duty that would apply to a private person. 54
[21] We thus reject Doe’s argument and hold that § 29-3523
does not give rise to a legal duty that would subject a private
person to civil tort liability for failing to act in the manner pre-
scribed by statute. But that does not end our analysis.
Although Doe’s complaint identifies § 29-3523 as the pri-
mary source of the alleged duty not to disclose or consider his
sealed criminal history records, he also argues that if the statute
does not give rise to a tort duty, then Nebraska recognizes a
common-law duty of reasonable care not to disclose crimi-
nal history records. The district court rejected this argument,
reasoning that Doe had provided “no authority for a common
law duty prohibiting the dissemination of truthful information
about a person’s criminal history” and concluding that “no
such duty exists.”
Doe has not assigned error to this aspect of the trial court’s
duty ruling. But in his supplemental briefing, he argues that
Nebraska common law provides a private analogue for the
negligence claims he alleged against the State. We consider this
argument next, and find it lacks merit.
(ii) Would Private Person Owe Common-Law
Duty Under Like Circumstances?
Doe argues that Nebraska law recognizes what he describes
as a common-law “duty to act with reasonable care when in
custody of sealed or sensitive information, the disclosure of
54
See Smith, supra note 42, 14 F.4th at 1232 (holding FTCA “does not cover
breaches of federal statutory or regulatory duties that do not apply to
private parties”).
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Cite as 312 Neb. 665which would have a detrimental effect on the life and liveli-
hood of an individual.” 55 He directs us to no Nebraska case
recognizing such a common-law duty, and we find none.
Instead, Doe refers us to a case from 1994, Merrick v
Thomas, 56 which he argues recognized a general common-
law duty of reasonable care. In that case, the plaintiff sued
the sheriff under the Political Subdivisions Tort Claims Act,
alleging that the sheriff had a duty to score her admissions
test accurately and fairly and that he had breached that duty.
This court concluded the plaintiff’s complaint, liberally con-
strued, alleged sufficient facts to establish the sheriff “owed
her a duty to score her test with due care.” 57 In reaching this
conclusion, the Merrick court recited the general proposition
that “[a] common-law duty exists to use due care so as not to
negligently injure another person.” 58 Doe relies on this state-
ment in Merrick to argue that under Nebraska law, a private
person owes a general common-law duty of reasonable care
to others. But our more recent cases expressly disavow the
suggestion that Nebraska recognizes “a general duty of rea-
sonable care to all others at all times.” 59 Instead, since our
2010 decision in A.W. v. Lancaster Cty. Sch. Dist. 0001, 60
Nebraska has consistently followed the general duty frame-
work set out in § 7 of the Restatement (Third) of Torts. 61 The
duty principles recited in Merrick do not reflect current tort
law in Nebraska.
55
Brief for appellant at 22.
56
Merrick v. Thomas, 246 Neb. 658, 522 N.W.2d 402 (1994).
57
Id. at 662, 522 N.W.2d at 406.
58
Id. at 661, 522 N.W.2d at 406.
59
Bell v. Grow With Me Childcare & Preschool, 299 Neb. 136, 154, 907
N.W.2d 705, 718 (2018).
60
A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907(2010).
61
See Bell, supra note 59 (discussing 1 Restatement (Third) of Torts:
Liability for Physical and Emotional Harm § 7 (2010)).
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Cite as 312 Neb. 665[22] We thus reject Doe’s suggestion that Nebraska’s
common-law recognizes a duty not to disclose sealed criminal
history information. Indeed, if such a common-law duty did
exist, it seems unlikely the Legislature would have amended
the Criminal History Act in 2019 to enact laws prohibiting the
dissemination of sealed criminal history record information
under certain circumstances.
(iii) No Private Analogue
For the above reasons, we conclude that Doe has failed
to establish that a private person would owe him a legal
duty under circumstances like those alleged in his complaint.
Without a legal duty, a private person could not be liable in
negligence under like circumstances. Stated differently, there is
no “private analogue” for his claim, and Doe has thus failed to
allege a tort claim under § 81-8,210(4) for which the State has
waived its sovereign immunity.
For the sake of completeness, however, we note that Doe’s
appellate briefing also argues that even if there is not a private
person analogue for his negligence claim under § 29-3523 or
Nebraska’s common law, there are other possible tort claims,
such as invasion of privacy or “Interference with Economic
Expectation,” 62 for which a private person may be liable. We
do not address these arguments, however, because Doe neither
pled such tort claims nor alleged conduct that would plausibly
support such tort claims. Instead, Doe’s complaint alleged a
negligence claim premised exclusively on conduct which he
says failed to comply with § 29-3523, and we have already
explained why no private analogue exists for that claim.
2. Doe’s Remaining Assignments
and Arguments
[23] Our conclusion that Doe has not alleged a tort claim
under the STCA for which the State has waived its sovereign
immunity makes it unnecessary to address any of his remain-
ing assignments of error. An appellate court is not obligated
62
Brief for appellant at 19.
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Cite as 312 Neb. 665to engage in an analysis that is not necessary to adjudicate the
case and controversy before it. 63
Similarly, we do not address Doe’s argument, raised for the
first time in his reply brief, that even if the STCA’s limited
waiver of sovereign immunity does not apply to his claims,
the district court should have construed his tort action as one
to enforce compliance with the Criminal History Act under
§ 29-3528. Doe has not assigned this as error on appeal, 64
nor could he. His complaint relied exclusively on the STCA
for jurisdiction over his tort claim. The complaint neither ref-
erenced § 29-3528 nor alleged it as a possible jurisdictional
basis. The district court did not consider Doe’s unpled juris-
dictional theory, and we will not consider it for the first time
on appeal. 65
V. CONCLUSION
Because Doe has not shown that a private person would be
liable under Nebraska law for the allegedly tortious conduct
alleged in the complaint, the STCA’s limited waiver of sov-
ereign immunity does not apply. The district court therefore
correctly concluded that Doe has not alleged a “tort claim”
under the STCA for which the State has waived its sovereign
immunity. The district court’s dismissal of the complaint for
lack of subject matter jurisdiction was correct and is affirmed.
Affirmed.
63
Schmid v. Simmons, 311 Neb. 48, 970 N.W.2d 735 (2022).
64
See Adair Holdings v. Johnson, 304 Neb. 720, 936 N.W.2d 517 (2020)
(alleged error must be both assigned and argued to be addressed by
appellate court).
65
See Wisner v. Vandelay Investments, 300 Neb. 825, 841, 916 N.W.2d 698,
714 (2018) (“[a]n argument not presented to or decided by the trial court
is not appropriate for consideration on appeal”).
Cassel, J., concurring.
Our dissenting colleague relies upon a “broad interpretation”
endorsed by the U.S. Supreme Court in determining the reach
of the private person analogue in the Federal Tort Claims Act
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Cite as 312 Neb. 665addressing liability of the national sovereign. But, as the major-
ity opinion makes clear, Nebraska adheres to strict construction
of waivers of sovereign immunity as to the state sovereign.
Thus, a “broad interpretation” is inconsistent with Nebraska
law. And because the district court’s subject matter jurisdiction
depended upon a waiver of sovereign immunity, this court was
not free to avoid the jurisdictional analysis. Judicial restraint
does not permit or justify judicial abdication.
Miller‑Lerman, J., concurring in part, and in part dis­senting.
I respectfully concur in part, and in part dissent. I agree
with the majority that, given the remedies in the Security,
Privacy, and Dissemination of Criminal History Act (Act),
Neb. Rev. Stat. §§ 29‑209, 29‑210, 29‑3501 to 29‑3538, and
81‑1423 (Reissue 2016 & Cum. Supp. 2020), the responsi-
bilities of the Act do not create the duty element of the tort of
negligence and that therefore, Doe has failed to state a claim
for negligence under Neb. Rev. Stat. § 81-8,210(4) (Reissue
2014) of the State Tort Claims Act (STCA). But STCA permits
“tort claims” in addition to the tort claim of negligence. Other
actions which lie in tort can be brought, such as interference
with a business expectancy, which may be applicable here
based on the events giving rise to the complaint. Doe should
be permitted to amend. Further, albeit recast by the majority as
a failure of the State to waive immunity, the majority affirmed
the district court’s order, which concluded that there was a fail-
ure of subject matter jurisdiction. Not every failing is a juris-
dictional defect. I dissent from these rulings. I see the case as
a simple matter of failure to state a claim for negligence, and
the district court should permit Doe leave to attempt to replead
another tort.
The alleged facts are not repeated here. In summary, Doe
alleged that notwithstanding the fact that Doe’s criminal record
was sealed under § 29-3523(5), and after Doe’s job interview,
the Nebraska State Patrol improperly transmitted the records
identified as “Sealed Info” to the Department of Correctional
Services and its director, Scott Frakes, in connection with
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Cite as 312 Neb. 665Doe’s application for employment. Frakes acknowledged that
the department should not have considered Doe’s sealed record
in connection with its rejection of Doe’s job application. Doe
alleged negligence under STCA.
According to the Act, among the objectives of sealing crim-
inal records is “the protection of individual privacy.” See
§ 29-3502. Following a pardon, and sealing of a person’s
records, the aim of the Act is to keep records private and
protect the pardoned individual from harm due to improper
dissemination and reliance on the sealed criminal record. The
statutory remedies for failure to abide by the Act are provided
by §§ 29-3527 and 29-3528 and include criminal liability and
mandamus. See State ex rel. Rhiley v. Nebraska State Patrol,
301 Neb. 241, 917 N.W.2d 903 (2018) (stating sovereign
immunity does not bar mandamus under § 29-3528 against
public officer). Because the Legislature has already provided
explicit remedies to enforce the Act, it would be inconsistent
for the court to create a separate private cause of action for
negligence, based on a breach of the responsibilities described
in the Act. This conclusion is similar to this court’s analysis
in Stonacek v. City of Lincoln, 279 Neb. 869, 782 N.W.2d 900(2010). By this reasoning, I concur with the majority’s conclu-
sion that the Act does not create a duty in negligence or a cause
of action for negligence.
At this point, the analysis of whether Doe alleged a cause
of action for negligence under STCA is complete, and in my
view, the majority’s analysis of the private person analogue
and its segue into sovereign immunity are unnecessary and
not consistent with the widespread jurisprudence in this area.
In my view, firstly, the analysis improperly casts the issue as
jurisdictional, and secondly, the majority misreads the federal
jurisprudence as requiring a too exacting private equivalence
instead of an analogue.
I see a pleading failure, but unlike the majority, I do not
see a jurisdictional failure. There is no dispute that the district
court has subject matter jurisdiction to entertain an STCA
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Cite as 312 Neb. 665action. Just because Doe did not allege a viable negligence
“[t]ort claim,” see § 81-8,210(4), for the particular tort of neg-
ligence does not bar him from attempting to plead another tort
under STCA. In my view, the defect in the complaint identified
by the trial court and this appellate court is not incurable as a
matter of law. As I have observed in the past, not every failing
is jurisdictional and we should be careful with our invocation
of the concept of jurisdiction. State v. Crawford, 291 Neb.
362, 865 N.W.2d 360 (2015), disapproved on other grounds,
State v. Burries, 310 Neb. 688, 969 N.W.2d 96 (2022). See
State v. Ryan, 287 Neb. 938, 845 N.W.2d 287 (2014), disap-
proved on other grounds, State v. Allen, 301 Neb. 560, 919
N.W.2d 500 (2018). See, also, Akutowicz v. U.S., 859 F.2d
1122 (2d Cir. 1988) (holding that where plaintiff has not satis-
fied private analogue requirement, plaintiff has failed to state
cause of action under Federal Tort Claims Act). But see Geico
General Ins. Co. v. U.S., 581 F. Supp. 3d 847 (E.D. Ky. 2022)
(stating because plaintiff failed to plead analogue facts suf-
ficient to state plausible claim under Federal Tort Claims Act,
court lacked jurisdiction). In my view, we should not recast an
inartful pleading as a jurisdictional defect merely to provide a
vehicle to dismiss. I dissent from this approach of the major-
ity opinion.
As I have urged, discussion of the doctrine of a private
person analogue is not necessary to the disposition of this
case, and I would exercise judicial restraint in this regard. Just
because the court can write about private person analogue does
not mean it should. To the extent dicta by the majority consid-
ers the private person analogue, I disagree with the majority’s
analysis that the analogue must be so precise.
As the majority notes, STCA is patterned after the Federal
Tort Claims Act (hereinafter FTCA), see 28 U.S.C. § 2680(h)
(2018), which to some extent, we follow. Compare Moser
v. State, 307 Neb. 18, 948 N.W.2d 194 (2020). FTCA’s pri-
vate person analogue is found at 28 U.S.C. § 1346 (2018).
- 695 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DOE V. STATE
Cite as 312 Neb. 665Nebraska’s private person analogue is found at § 81-8,210(4),
which provides:
Tort claim means any claim against the State of Nebraska
for money only on account of damage to or loss of prop-
erty or on account of personal injury or death caused
by the negligent or wrongful act or omission of any
employee of the state, while acting within the scope of
his or her office or employment, under circumstances in
which the state, if a private person, would be liable to the
claimant for such damage, loss, injury, or death . . . .
In evaluating whether a private person analogue exists
for the plaintiff’s federal tort claim, the U.S. Supreme
Court has stated that the State is not immune from suit
solely because it was engaged in a uniquely governmental
function. See, United States v. Olson, 546 U.S. 43, 126
S. Ct. 510, 163 L. Ed. 2d 306 (2005); Rayonier, Inc. v.
United States, 352 U.S. 315, 77 S. Ct. 374, 1 L. Ed. 2d
354 (1957); Indian Towing Co. v. United States, 350 U.S.
61, 76 S. Ct. 122, 100 L. Ed. 48 (1955). A court applying
the private person standard is not restricted to “narrow”
inquiries into the same circumstances, but must look fur-
ther afield. United States v. Olson, 546 U.S. at 46.
The U.S. Supreme Court declared that it “would be attribut-
ing bizarre motives to Congress . . . to hold that it was predi-
cating liability on such a completely fortuitous circumstance—
the presence or absence of identical private activity.” Indian
Towing Co. v. United States, 350 U.S. at 67. The U.S. Supreme
Court found no evidence in FTCA that Congress “intended to
draw distinctions so finespun and capricious as to be almost
inescapable of being held in the mind for adequate formula-
tion.” Indian Towing Co. v. United States, 350 U.S. at 68.
It has been observed that FTCA’s private person analogue
provision, § 1346, has been given
generous development by the Supreme Court. [FTCA]
is given a broad interpretation to effectuate the legisla-
tive aim of putting citizen and national sovereign in tort
- 696 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DOE V. STATE
Cite as 312 Neb. 665claims suits on a footing of equality as between private
parties within that state. Nice pieces of casuistry and
hypersensitive legalisms are avoided.
Roelofs v. United States, 501 F.2d 87, 92 (5th Cir. 1974). These
authorities illustrate why the majority has too narrowly applied
the private person analogue and why I dissent from such nar-
row understanding in this and future cases.
Turning to the complaint, Doe alleged a violation of the
responsibilities outlined in the Act by the State Patrol, Frakes,
and the Department of Correctional Services. According to the
allegations, Doe suffered the financial harm of being rejected
for a job as a result of state actors’ wrongful conducts, i.e.,
by both the improper dissemination of his sealed record and
the subsequent knowing reliance on the sealed record. I read
the events giving rise to the complaint as potentially involv-
ing tortious interference with Doe’s business expectancy or
another tort. See Denali Real Estate v. Denali Custom Builders,
302 Neb. 984, 926 N.W.2d 610 (2019) (setting forth ele-
ments of interference with business relationship or expec-
tancy). Employing the “broad interpretation” of the private
person analogue endorsed by the federal courts, see Roelofs v.
United States, 501 F.2d at 92, Doe has alleged a “[t]ort claim”
on account of the “wrongful act or omission of any employee
of the state, while acting within the scope of his or her office
or employment, under circumstances in which the state, if a
private person, would be liable to the claimant for such dam-
age, loss, injury or death . . . .” § 81-8,210(4). So, although I
think it unnecessary to engage in the private person analogue
exercise, were I to do so, I would find that Doe had alleged
facts which may indicate the existence of the private analogue
tort of interference with a business expectancy and thus should
be permitted to amend his pleading to attempt to make such
“tort claim” more explicit.
For the foregoing reasons, I concur in part, and in part
dissent.