Allender v. Scott
| Decision Date | 27 January 2005 |
| Docket Number | No. CIV-04-0935 BB/RLP.,CIV-04-0935 BB/RLP. |
| Citation | 379 F.Supp.2d 1206 |
| Parties | Michael ALLENDER, Plaintiff, v. Freddie John SCOTT, Isaac F. Padilla, W. Frank Emerson, Arturo Candelaria, Bennie Cohoe, Board of County Commissioners of the County of Cibola, the State of New Mexico, Cornelius Thomas, Val R. Panteah, Sr., Corrections Corporation of America, CCA of Tennessee, Inc. and unknown persons 1 through 100, Defendants. |
| Court | U.S. District Court — District of New Mexico |
William G. Stripp, Ramah, NM, for Plaintiff.
Sampson Martinez, Gallup, NM, for Defendants Thomas and Panteah.
John Zavitz, Assistant U.S. Attorney Dori Richards, U.S. Dep't of Interior, SW Regional Solicitor's Office, Albuquerque, NM, for the United States.
Emma R. Brittain, Sarah M. Singleton, Montgomery & Andrews, Santa Fe, NM, for Defendant Cibola County Board of Commissioners.
Ira Bolnick, NM Legal Bureau, RMD, Santa Fe, NM, for Defendant State of New Mexico.
Gail Gottlieb Sutin, Thayer & Brown Albuquerque, NM, for Defendant Corrections Corporation of America and CCA of Tennessee, Inc.
This matter comes before the Court for consideration of Defendants Thomas and Panteah's Motion for Certification ("Motion to Certify") that they were acting within the course and scope of their employment at the time of the alleged incident which is the basis of the Complaint in this action. The United States (USA) refused to so certify, denying them coverage under the Federal Tort Claims Act (FTCA). This court has jurisdiction to review the USA's denial of certification under 28 U.S.C. § 2679(d)(3). Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 437, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995). The Court has reviewed the submissions of the parties and the relevant law, and, for the reasons set forth below, finds that Defendants' Motion should be GRANTED.
Since 1986, the Ramah Navajo Chapter (RNC) has operated a Department of Public Safety (the "Department") under the Indian Self-Determination and Education Act, 25 U.S.C. § 450f et. seq., also known as Pub.L. 93-638, or ISDEAA. The Bureau of Indian Affairs (BIA) funds the Department to perform certain functions, inter alia, "24-hour professional law enforcement and detention services to the Ramah Navajo Reservation" including "investigations of all offenses and violations of Navajo Nation Laws, Federal and State Law within the exterior boundaries of the Ramah Navaho reservation." (Dfdt. Ex. E, 2003 Annual Funding Agreement at 2.) Virtually all of the RNC law enforcement program is funded through ISDEAA.
Other than the Ramah tribal police, law enforcement in the area is provided primarily by the Cibola County Sheriff, whose office is located in Grants, New Mexico, about 65 miles away from the heart of the Ramah Navajo Community. The response time for the sheriff is generally at least thirty minutes.
Defendant Thomas is a Ramah Navajo tribal police officer. This case arose on February 6, 2003 when he stopped Plaintiff's vehicle for speeding on New Mexico State Hwy 53. Defendant Thomas began writing Plaintiff a state citation but when he asked Plaintiff for his social security number Plaintiff refused to provide it and was arrested.
Defendant Thomas transported Plaintiff to the Ramah Navajo Police Station. Defendant Panteah, Thomas's supervisor, contacted the State Police who advised him that no state officers to whom Plaintiff could be transferred were available. Defendants Panteah and Thomas also contacted the Cibola County Sheriff's office, who advised they had no one available to transport Plaintiff to Grants. Defendant Thomas transported Plaintiff to the Cibola County Correctional Center.
The Ramah Public Safety Department hired Defendant Thomas as a tribal police officer on September 11, 2001. He received a commission as a deputy sheriff of Cibola County on August 13, 2002 and held that commission on the date of this incident. His job description requires that he enforce federal, state, local, and tribal laws and respond to "all ... criminal situations" encountered within the Ramah Navajo Community. (Dfdt. Ex. J,1 Ramah Navajo Position Description.) He was on his regularly scheduled shift when he arrested Plaintiff.
Defendant Panteah, Thomas's supervisor, is also employed by the Ramah Public Safety Department. He was cross-commissioned with the Cibola County Sheriff's office and as a New Mexico State Peace Officer. His Position Description does not expressly require him to enforce state laws but it does require him to supervise patrol officers such as Thomas.
The area in which Defendant Thomas stopped Plaintiff is known as a jurisdictional "checkerboard."2 Defendant Thomas was within the area that he recognized as the Ramah Navajo Reservation but he did not know whether it was actually Indian owned land. Officer Thomas later determined that the speeding occurred on Indian Allotment land and the eventual stop occurred on private fee land. Plaintiff is not an Indian.
There is a factual dispute whether Ramah constitutes an "Indian reservation." BIA Realty Specialist Sando testified that it is not, because a reservation has never been legally created through Congressional act or Executive Order. In referring to a map of the Ramah Navajo Community (Dfdt.Ex.G), Mr. Sando stated that the black line drawn around the perimeter is drawn for convenience, does not identify a reservation, and merely identifies the Ramah Navajo Community. He further testified that State Highway 53 cuts through this Indian community.
In contrast, a Ramah community leader who assisted in creating the map that was admitted into evidence here, testified that she worked with BIA to make the map and that the line drawn around the map represented the "Ramah reservation." Moreover, in the Ramah ISDEAA contracts and annual funding agreements signed by the BIA, RNC is required to provide law enforcement services to the "Ramah Navajo Reservation." (Dfdt.Ex.E.)3 Similarly, an agreement between the New Mexico State Police and RNC also refers to this area as the Ramah reservation. (Dfdt.Ex.G1.)4
On November 17, 2003, Plaintiff filed a complaint in state court alleging negligent and intentional torts and violations of his civil rights. In addition to Defendants Thomas and Panteah, Plaintiff named as Defendants Corrections Corporation of America and CCA of Tennessee Inc. (the "CCA Defendants"), the Board of Commissioners of Cibola County, the State of New Mexico, and other as yet unnamed defendants.
The CCA Defendants removed the case to federal district court on December 16, 2003. Neither the County nor the State consented to that removal.5 The parties agreed to an order remanding the case to state court on June 15, 2004.
On July 21, 2004, Defendants Thomas and Panteah moved the state court to certify them as federal employees acting within the scope of their employment. Upon receiving notice of that motion, the USA (which was not yet a defendant) removed the case to federal district court pursuant to 28 U.S.C. § 2679(d)(3) on August 19, 2004. In response, Plaintiff moved to remand the case back to state court. On November 4 and 5, 2004, the Court held an evidentiary hearing. See Stokes v. Cross, 327 F.3d 1210, 1214 (D.C.Cir.2003) ().
The USA denied certification to Defendants that they were acting as federal employees within the scope of their employment under the RNC ISDEAA contract, thus denying them coverage under the Federal Tort Claims Act (FTCA). That denial is subject to de novo review. Richman v. Straley, 48 F.3d 1139, 1145 (10th Cir.1995). A party seeking review of the Attorney General's denial of certification bears the burden of presenting evidence and disproving the Attorney General's decision by a preponderance of the evidence. Id.
Tribal members are not federal employees because they operate under ISDEAA contracts. However, they may be deemed federal employees for the Federal Tort Claims Act. See ISDEAA, Pub.L. 101-512 § 314, 104 Stat. 915 (1990) (codified in 25 U.S.C. § 450f Note).
The FTCA grants exclusive jurisdiction to district courts for a claim against the United States for torts committed by federal employees while acting within the scope of employment. 28 U.S.C. § 1346(b)(1); Williams v. U.S., 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955). Generally, whether a particular defendant is covered under the FTCA requires a two part analysis. First, whether Defendant is a federal employee is based on federal law. Pattno v. U.S., 311 F.2d 604, 605 (10th Cir.1962). Second, whether the employee was acting within the scope of his employment is analyzed under the law of respondeat superior of the state where the injury occurred. Williams, 350 U.S. at 857, 76 S.Ct. 100.
As a threshold issue, the USA argues that Defendants Thomas and Panteah could not be deemed federal employees because neither federal law nor the ISDEAA contract authorize the enforcement of state law. Hence, a tribe who enters into an arrangement to have its employees enforce state law is acting, not under the ISDEAA contract, but rather in its capacity as a sovereign government.
The authority to enforce state laws generally belongs to the states, not to Congress. Brecht v. Abrahamson, 507 U.S. 619, 635, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (). The Tenth Amendment limits the powers of Congress to infringe on state powers. New York v. U.S., 505 U.S. 144, 156, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). However, the fact that Congress does not have power to compel the states to permit something does not preclude state officials from doing it...
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