Loren Shirk v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LOREN R. SHIRK; JENNIFER ROSE, No. 10-17443
individually and as husband and
wife, D.C. No.
Plaintiffs-Appellants, 2:09-cv-01786-
NVW
v.

UNITED STATES OF AMERICA, on OPINION
behalf of its agency, Department of
Interior, Bureau of Indian Affairs,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding

Argued and Submitted
June 12, 2014—San Francisco, California

Filed December 8, 2014

Before: Diarmuid F. O’Scannlain, Robert D. Sack*,
and Carlos T. Bea, Circuit Judges.

*
The Honorable Robert D. Sack, Senior Circuit Judge for the U.S. Court
of Appeals for the Second Circuit, sitting by designation.
2 SHIRK V. UNITED STATES

Opinion by Judge O’Scannlain;
Concurrence by Judge Sack;
Partial Concurrence and Partial Dissent by Judge Bea

SUMMARY**

Federal Tort Claims Act

The panel vacated the district court’s dismissal for lack of
subject matter jurisdiction of a Federal Tort Claims Act
action brought against the United States after Jennifer Rose
was injured in a traffic accident following a police pursuit
involving two tribal police officers employed by the Gila
River Indian Community.

Loren Shirk, along with his wife, Jennifer Rose, alleged
negligence by the tribal officers and loss of consortium under
the FTCA. Congress extended the FTCA’s waiver of the
United States’ sovereign immunity to claims resulting from
the performance of functions authorized by the Indian Self-
Determination and Education Assistance Act of 1975,
commonly referred to as § 314.

To decide whether the tribal officers’ conduct was
covered by § 314, thereby subjecting the United States to
potential tort liability, the panel held as an issue of first
impression, that it was first necessary to set out the analysis
that courts should undertake when confronted with a § 314
claim where the alleged tortfeasors are employees of a tribe,

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 SHIRK V. UNITED STATES 3

tribal organization, or Indian contractor. The panel held at
the first step of the § 314 inquiry, courts must determine
whether the alleged activity is, in fact, encompassed by the
relevant federal contract or agreement. At the second step,
courts must decide whether the allegedly tortious action fell
within the scope of the tortfeasor’s employment under state
law. The panel held that if both of these prongs were met, the
employee’s actions were covered by the FTCA; but a
plaintiff’s failure at either step was sufficient to defeat subject
matter jurisdiction. The panel remanded so that the parties
could fully brief the issue and the district court could conduct
a new analysis of its subject matter jurisdiction using this
two-step framework.

Second Circuit Judge Sack concurred, and wrote only to
register his doubts as to one of the district court’s conclusions
which the panel’s opinion properly did not reach. If the panel
were squarely presented with the issue, Judge Sack would
conclude that the relevant agreements between the federal
government and the tribe authorized the enforcement of
Arizona state law by tribal police officers.

Judge Bea concurred in part, and dissented in part. Judge
Bea agreed with the new two-part test articulated by the
majority opinion, but he would not remand because there are
no issues of fact that require remand.
4 SHIRK V. UNITED STATES

COUNSEL

Bradley M. Rose, Kaye, Rose & Partners, LLP, Los Angeles,
CA., argued the cause for the plaintiffs-appellants. Trinette
S. Sachrison, Kaye, Rose & Partners, LLP, San Diego, CA,
filed the briefs for the plaintiffs-appellants. With her on the
briefs was Bradley M. Rose, Kaye, Rose & Partners, LLP,
Los Angeles, CA.

Jeffrica Jenkins Lee, U.S. Department of Justice Civil
Division, Washington, DC, argued the cause and filed the
brief for defendant-appellee. With her on the brief were
Stuart F. Delery, Assistant Attorney General, U.S.
Department of Justice Civil Division, Washington, DC; John
S. Leonardo, United States Attorney, Phoenix, AZ; and
Barbara C. Biddle, U.S. Department of Justice Civil Division,
Washington, DC.

Thomas L. Murphy, Deputy General Counsel, Gila River
Indian Community, Sacaton, AZ, argued the cause and filed
the brief on behalf of amicus curiae Gila River Indian
Community in support of plaintiffs-appellants. With him on
the brief was Linus Everling, General Counsel, Gila River
Indian Community, Sacaton, AZ.

OPINION

O’SCANNLAIN, Circuit Judge:

We are asked to decide whether the United States may be
held liable under the Federal Tort Claims Act for the off-
reservation actions of two tribal police officers.
 SHIRK V. UNITED STATES 5

I

A

On October 19, 2006, at approximately 5:00 p.m.,
Detective Michael Lancaster and Sergeant Hilario
Tanakeyowma (the “Officers”), two tribal police officers
employed by the Gila River Indian Community (“GRIC” or
the “Community”), were traveling northbound on State Route
587 in a GRIC Police Department vehicle.1 They had
attended a mandatory police counter-terrorism training class
in Tucson, Arizona, and were returning to Sergeant
Tanakeyowma’s residence in Chandler, Arizona.

As the Officers approached the intersection of Chandler
Heights Road and State Route 87/Arizona Avenue, outside
the boundaries of the GRIC reservation, they observed a
white compact vehicle driving erratically. The driver of the
vehicle was later determined to be Leshedrick Sanford, a
paroled felon. The Officers began to pursue Sanford. When
Sanford came to a stop at a red light at the intersection of
Ocotillo Road and State Route 87/Arizona Avenue, the
Officers pulled up behind him. As described by the Officers,
Detective Lancaster exited the police vehicle to “make
contact” with Sanford, but Sanford accelerated and drove
through the red light into the intersection. Sanford collided
with Loren Shirk, who was traveling eastbound on Ocotillo
Road on a motorcycle. Shirk was thrown from his
motorcycle and sustained serious physical injuries as a result
of the collision.

1
We take the facts verbatim from the district court’s order, with only
slight additions and modifications.
6 SHIRK V. UNITED STATES

Sanford, who was under the influence of alcohol,
immediately fled the scene on foot, but he was apprehended
and arrested by the Officers shortly thereafter. He
subsequently pleaded guilty to one count of aggravated
assault with prior felony convictions and one count of leaving
the scene of a serious injury accident, both in violation of
Arizona law. Sanford was sentenced to eighteen years in
prison.

B

Shirk, along with his wife, Jennifer Rose (together,
“Shirk”), filed suit against the United States, alleging
negligence by the Officers and loss of consortium under the
Federal Tort Claims Act (FTCA). Shirk claimed that the
Officers were employees of the Bureau of Indian Affairs
(BIA) for purposes of the FTCA and, as such, that the United
States was liable for the Officers’ purported negligence. The
United States moved to dismiss the complaint for lack of
subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1). On August 27, 2010, the district court
issued an order granting the government’s motion to dismiss
and entered judgment for the United States. Shirk timely
appealed.

II

Shirk alleges that the Officers acted negligently when
they encountered Sanford and that such negligence resulted
in Shirk’s injuries. According to Shirk, the United States is
liable for the Officers’ negligence because they were “acting
within the scope of their employment in carrying out” various
contracts and agreements between the United States and the
GRIC. 25 U.S.C. § 450f (note). We begin our analysis of
 SHIRK V. UNITED STATES 7

Shirk’s allegations by explaining the statutes and agreements
at issue.

A

The federal government has long provided a series of
services to Indian tribes. Philip P. Frickey et al., Cohen’s
Handbook of Federal Indian Law § 22.01[1] (2012 ed.). The
New Deal began a period in which, with some “fluctuations
in policy,” there has been a “continuous decentralization of
government services to Indians.” Id.

This decentralizing trend accelerated dramatically with
the passage of the Indian Self-Determination and Education
Assistance Act of 1975 (“ISDEAA”). Id. The ISDEAA
“created a system by which tribes could take over the
administration of programs operated by the [Bureau of Indian
Affairs].” Los Coyotes Band of Cahuilla & Cupeño Indians
v. Jewell, 729 F.3d 1025, 1033 (9th Cir. 2013). A tribe
“receiving a particular service from the BIA may submit a
contract proposal to the BIA to take over the program and
operate it as a contractor and receive the money that the BIA
would have otherwise spent on the program.” Id. The
Department of Interior, in which the BIA is housed, is
required to enter into such contracts upon the request of a
tribe unless one of five exceptions applies. Id.; 25 U.S.C.
§ 450f(a)(2). These contracts are commonly called “638
contracts,” in reference to the public law number of the
ISDEAA. See Indian Self-Determination and Education
Assistance Act, Pub. L. 93-638, 88 Stat. 2203 (Jan. 4, 1975).

Congress permitted even greater decentralization when it
enacted the Tribal Self-Governance Act of 1994 as an
amendment to the ISDEAA. The Act allows certain tribes to
8 SHIRK V. UNITED STATES

enter into self-governance compacts. 25 U.S.C. § 458bb.
Such compacts become the basis for annual funding
agreements that “give the tribes a block of funding that they
can allocate as they see fit,” Los Coyotes Band of Cahuilla &
Cupeño Indians, 729 F.3d at 1031 n.3, thus ensuring greater
tribal control over the design and implementation of compact
programs. See 25 U.S.C. § 458cc(b)(1)–(2) (authorizing
tribes to “plan, conduct, consolidate, and administer [certain]
programs, services, functions, and activities, or portions
thereof”).

These statutes are the source of the agreements at issue in
this case, and it is those agreements which allegedly give rise
to FTCA liability.

B

Pursuant to the ISDEAA, the GRIC and the United States
entered into a 638 contract in 1998. The purpose of the
contract was “to provide Law Enforcement Services for the
Gila River Indian Community.” Such services were to be
provided “in accordance with [the] attached Statement of
Work.” Id. § (b)(3). The Statement of Work, in turn,
describes four distinct law enforcement programs covered by
the contract: Uniformed Police, Detention Services,
Communications, and Criminal Investigations. The contract
enumerates specific duties and limitations that attach to each
program. For instance, the uniformed police are charged with
the “enforcement of Federal laws and [the] laws of the
[GRIC],” and this includes “[p]atrol services on and off
roadways and in the communities within the boundaries of
the Reservation.”
 SHIRK V. UNITED STATES 9

In 2003, the GRIC decided to take advantage of the
increased tribal authority that comes with agreements
negotiated under the Tribal Self-Governance Act. It entered
into a compact with the United States that enabled the GRIC
to “design those programs, functions, services and activities
listed in the Annual Funding Agreement and reallocate funds
according to the priorities of the Community.” The Compact
merely authorizes a transfer of authority and contains few
substantive limitations on the programs that it governs.
Indeed, it does not refer to any specific programs. Those
details are left to the 2007–2011 Multi-Year Funding
Agreement (MYFA), a contract between the GRIC and the
United States “for the assumption of responsibilities by the
Community for the various programs, functions, and
activities specified in [the MYFA].”

The MYFA lists the programs included within the
Compact. The list includes the law enforcement program and
its four component parts (“Uniform Police,” “Adult
Detention,” etc.). With few exceptions, the MYFA does not
contain any restrictions specific to the law enforcement
program. Thus, unlike the 638 Contract’s Statement of Work,
the MYFA does not supply much detail about the law
enforcement program.

C

For our purposes, these agreements are only relevant
insofar as the United States can be sued. As a sovereign, the
United States is immune from suit unless it waives its
immunity. FDIC v. Meyer, 510 U.S. 471, 475 (1994). The
United States has waived its sovereign immunity, of course,
with regard to tort liability under the Federal Tort Claims Act
“under circumstances where the United States, if a private
10 SHIRK V. UNITED STATES

person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.”
28 U.S.C. § 1346(b)(1).

In 1990, after it enacted the ISDEAA, Congress extended
the FTCA’s waiver of sovereign immunity to claims
“resulting from the performance of functions . . . under a
contract, grant agreement, or cooperative agreement
authorized by the [ISDEAA] of 1975, as amended.”
25 U.S.C. § 450f (note). This provision is commonly referred
to as § 314, an allusion to its location within the Act. See
Department of Interior and Related Agencies Appropriation
Act, Pub. L. 101-512, § 314, 104 Stat 1915 (1990). However,
the waiver of sovereign immunity is limited:

[A]n Indian tribe, tribal organization or Indian
contractor is deemed hereafter to be part of
the Bureau of Indian Affairs . . . while
carrying out any such contract or agreement
and its employees are deemed employees of
the Bureau . . . while acting within the scope
of their employment in carrying out the
contract or agreement.

Id.

The threshold question in this litigation thus becomes
whether the actions of the Officers come within the ambit of
§ 314, thereby subjecting the United States to potential tort
liability.
 SHIRK V. UNITED STATES 11

III

To decide whether the Officers’ conduct is covered by
§ 314, it is first necessary to set out the analysis that courts
should undertake when confronted with a § 314 claim, where
the alleged tortfeasors are employees of a “tribe, tribal
organization, or Indian contractor.” Id. As no federal
appellate court appears to have done so, this case presents a
question of first impression.

A

The clause at issue states that “employees [of a tribe,
tribal organization, or Indian contractor] are deemed
employees of the Bureau . . . while acting within the scope of
their employment in carrying out the contract or agreement.”
25 U.S.C. § 450f (note). We immediately notice that the
clause is naturally divided into three parts. The first part tells
us the subject of the rule announced in the clause:
“employees” of a tribe, tribal organization, or Indian
contractor. Id. The second part contains the action of the
sentence, instructing that such employees are “deemed
employees of the Bureau.” Id. Finally, the end of the clause
limits the class of employees included within the “deem[ing]”
language to those “acting within the scope of their
employment in carrying out the contract or agreement.”2 Id.

2
We know that “acting within the scope of their employment in carrying
out the contract or agreement” is a limitation on the part of the clause that
comes before it because of the word “while.” In the preceding clause
“deem[ing]” an “Indian tribe, tribal organization, or Indian contractor” as
“part of the Bureau of Indian Affairs” or the “Indian Health Service,” the
word “while” introduces the limitation that such tribes, organizations, or
contractors must be “carrying out any such contract or agreement” in order
to be so “deemed.” 25 U.S.C. § 450f (note). The similar structure
12 SHIRK V. UNITED STATES

The key to understanding the clause, then, is determining
whether an employee is “acting within the scope of their
employment in carrying out the contract or agreement.” Id.
Only then can we know which class of “employees” are
“deemed employees of the Bureau [of Indian Affairs].” Id.

1

Federal district courts have jurisdiction over FTCA claims
on the basis of 28 U.S.C. § 1346(b)(1). In examining the
language of § 1346(b)(1), one is struck by the remarkable
similarity between its language and that of § 314. Section
1346(b)(1) states that district courts have jurisdiction over
“claims against the United States” for “injury or loss of
property, or personal injury or death” caused by the tortious
actions of “any employee of the Government while acting
within the scope of his office or employment.” Section 314’s
language refers to “employees of the Bureau . . . while acting
within the scope of their employment.” Both statutes refer to
the scope of employment in almost identical language.

A basic principle of interpretation is that courts ought to
interpret similar language in the same way, unless context
indicates that they should do otherwise. Cf. Powerex Corp.
v. Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007)
(stating that “identical words and phrases within the same
statute should normally be given the same meaning”); see

between the two clauses strongly suggests that the term “while” is used in
both to indicate that what follows that term is a limitation on what
precedes it. See IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005) (stating the
“normal rule of statutory interpretation that identical words used in
different parts of the same statute are generally presumed to have the same
meaning”).
 SHIRK V. UNITED STATES 13

also Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 170–73 (2012). None of the
differences between the two phrases suggest that we should
treat them differently. Section 1346(b)(1) requires courts to
determine whether, under state law, an employee was acting
within the scope of employment when the alleged tort
occurred. See, e.g., Lawrence v. Dunbar, 919 F.2d 1525,
1528 (11th Cir. 1990) (per curiam). Given the similarity
between § 1346(b)(1) and § 314, we are satisfied that § 314
requires the same inquiry.

That “scope of employment” is a term of art further
supports our interpretation. “It is . . . well established that
[w]here Congress uses terms that have accumulated settled
meaning under . . . the common law, a court must infer,
unless the statute otherwise dictates, that Congress means to
incorporate the established meaning of these terms.” Cmty.
for Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989)
(alteration in original) (internal quotation marks omitted);
Felix Frankfurter, Some Reflections on the Reading of
Statutes, 47 Colum. L. Rev. 527, 537 (1947) (“[I]f a word is
obviously transplanted from another legal source, whether the
common law or other legislation, it brings the old soil with
it.”). As the Supreme Court has said in another context,
“Congress’ intent to incorporate the agency law definition is
suggested by [the] use of the term, ‘scope of employment,’ a
widely used term of art in agency law.” Cmty. for Creative
Non-Violence, 490 U.S. at 740. Thus, § 314 requires courts
to determine whether, under state law, an employee’s
allegedly tortious action falls within the scope of his
employment.
14 SHIRK V. UNITED STATES

2

Section 314’s limitation extends further: employees must
be “carrying out the contract or agreement.” 25 U.S.C.
§ 450f (note). A proper understanding of the statute would
give the term “carrying out” its ordinary meaning. See MCI
Telecomms. Corp. v. AT&T, 512 U.S. 218, 225–28 (1994)
(consulting dictionaries for the ordinary meaning of a term at
the time of a statute’s enactment); see also Scalia & Garner,
supra, at 69–77. “To carry out” means “to put into
execution” or “to bring to a successful issue.” Merriam-
Webster’s Collegiate Dictionary 176 (10th ed. 1993); see also
2 The Oxford English Dictionary 922 (2d ed. 1989) (“To
conduct duly to completion or conclusion; to carry into
practice or to logical consequences or inferences.”). Thus, to
“carr[y] out” a “contract or agreement” is to “to put [it] into
execution.”

3

It remains for us to describe the relationship between the
“scope of employment” requirement and the “carrying out”
requirement of § 314. Examining the syntax of the sentence,
the “carrying out” language modifies “scope of their
employment.” This is made clear from the placement of the
word “in” between the two requirements. Because “in
carrying out the contract or agreement” modifies “scope of
their employment,” the natural reading of the text is that the
relevant “employment” for purposes of determining the scope
of employment is “carrying out the contract or agreement.”
An employee’s conduct is covered by the FTCA if, while
executing his contractual obligations under the relevant
federal contract, his allegedly tortious conduct falls within the
 SHIRK V. UNITED STATES 15

scope of employment as defined by state law.3 Thus, the
federal contract “defines the nature and contours of [an
employee’s] official responsibilities; but the law of the state
in which the tortious act allegedly occurred determines
whether the employee was acting within the scope of those
responsibilities.” Lyons v. Brown, 158 F.3d 605, 609 (1st Cir.
1998).

An example illuminates the relationship between the two
requirements. Suppose an auto mechanic is employed by an

3
We acknowledge that our interpretation of § 314 makes the scope of
employment analysis in § 1346(b)(1) redundant, since satisfying the § 314
test necessarily satisfies the scope of employment test in § 1346(b)(1).
One might argue that this violates the canon that “[s]tatutes must be
interpreted, if possible, to give each word some operative effect.” Walters
v. Metro. Educ. Enters., Inc., 519 U.S. 202, 209 (1997). However, “[n]o
canon of interpretation is absolute. Each can be overcome by the strength
of differing principles that point in other directions.” Scalia & Garner,
supra, at 59; see also Chickasaw Nation v. United States, 534 U.S. 84, 94
(2001).

In this context, any potential concerns about superfluity are more than
overcome by countervailing interpretive principles. As we have shown,
our interpretation is supported by the canon of consistent usage, since the
word “while” signals a limiting condition in both of the § 314 clauses that
we have discussed. See supra note 2. Our interpretation also accords with
the canon that common law terms are to be given their common law
meaning. See supra Part III.A.1; Scalia & Garner, supra, at 320–21.
Finally, the scope of employment test is part of a conventional FTCA
analysis, see, e.g.,CNA v. United States, 535 F.3d 132, 146 (3d Cir. 2008),
and Congress mentioned the test in both § 1346(b)(1) and § 314, stressing
its importance. It seems clear, then, that federal courts are to conduct a
traditional scope of employment analysis.

Any alternative interpretation of § 314 would violate these and other
principles. Accordingly, we are satisfied that our interpretation is the best
reading of the statute.
16 SHIRK V. UNITED STATES

Indian tribe. In that capacity, the mechanic maintains two
flights of vehicles: those used exclusively for carrying out the
tribe’s contractual obligations under an ISDEAA contract,
and those used by the tribe exclusively for non-contractual
purposes. The contract requires the tribe to maintain the
ISDEAA vehicles. One day, the mechanic negligently
installs brakes in one of the vehicles, and, shortly thereafter,
the vehicle is involved in an accident caused by the faulty
brakes. A person injured by the accident brings suit against
the United States under § 314 for the negligence of the
mechanic.

In determining whether the mechanic’s tort is
encompassed by the scope of his employment, a court would
need to know what the relevant “employment” was: was the
mechanic engaged in his employment under the ISDEAA or
in his employment exclusively for the tribe? The answer
might depend on whether the defective vehicle was an
ISDEAA vehicle. The point, however, is that the court could
not determine the “scope of employment” for the mechanic
without first identifying the relevant “employment” at issue,
and because § 314 only covers employment under the federal
contracts, such contracts define the “employment” for
purposes of the “scope of employment” analysis.

B

These conclusions show that § 314 requires a two-step
approach.4 Because “[t]he party asserting jurisdiction bears

4
Although no federal appellate court has described the relevant analysis
for a § 314 claim, several federal courts have implied that a two-step
approach might be appropriate. See Hinsley v. Standing Rock Child
Protective Servs., 516 F.3d 668, 672 (8th Cir. 2008); Strei v. Blaine, No.
 SHIRK V. UNITED STATES 17

the burden of establishing subject matter jurisdiction,” In re
Dynamic Random Access Memory (DRAM) Antitrust Litig.,
546 F.3d 981, 984 (9th Cir. 2008), a plaintiff in an FTCA suit
must identify which contractual provisions the alleged
tortfeasor was carrying out at the time of the tort.5 At the first
step of the § 314 inquiry, courts must determine whether the
alleged activity is, in fact, encompassed by the relevant
federal contract or agreement. The scope of the agreement
defines the relevant “employment” for purposes of the scope
of employment analysis at step two. Second, courts must
decide whether the allegedly tortious action falls within the
scope of the tortfeasor’s employment under state law. If both
of these prongs are met, the employee’s actions are covered
by the FTCA.

As this two-part test makes clear, however, a plaintiff’s
failure at either step is sufficient to defeat subject matter
jurisdiction. If a court determines that the relevant federal
contract does not encompass the activity that the plaintiff
ascribes to the employee, or if the agreement covers that
conduct, but not with respect to the employee in question,
there is no subject matter jurisdiction. Likewise, if a court

CIV. 12-1095 JRT/LIB, 2013 WL 6243881, at *5 (D. Minn. Dec. 3,
2013); Dinger v. United States, No. 12-4002-EFM, 2013 WL 1001444,
at *2 (D. Kan. Mar. 13, 2013); Garcia v. United States, No. CIV 08-0295
JB/WDS, 2010 WL 2977611, at *3 (D.N.M. June 15, 2010); Allender v.
Scott, 379 F. Supp. 2d 1206, 1211 (D. N.M. 2005). Section 314’s plain
meaning is, therefore, supported by what little precedent exists on the
matter.
5
We need not resolve whether an employee’s conduct must be required
by the contract or may be merely authorized by the contract in order for
the employee to be “carrying out the contract or agreement.” 25 U.S.C.
§ 450f (note).
18 SHIRK V. UNITED STATES

decides that the employee’s allegedly tortious action does not
fall within the scope of employment, the employee’s conduct
does not come within the FTCA.

When a court determines that there is no subject matter
jurisdiction, it may choose to decide the case at either step of
the inquiry. If, for instance, an employee drinks at a local bar
after work, becomes inebriated, and gets into a bar fight, the
employee’s actions are almost certainly so far removed from
the scope of his employment as to defeat liability for the
employer. Thus, a court could decide such a case at step two
by stating that there is no plausible argument that the
employee’s actions fall within the scope of his employment,
where such employment is defined as carrying out a federal
contract. In this way, the § 314 analysis is similar to a
qualified-immunity analysis under 42 U.S.C. § 1983. See
Pearson v. Callahan, 555 U.S. 223, 236 (2009) (“The judges
of the district courts and the courts of appeals should be
permitted to exercise their sound discretion in deciding which
of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the
particular case at hand.”). Only where a court decides that an
employee’s actions are covered by the FTCA under § 314
does the court need to go through both steps of the analysis,
since there are some actions that, although not enforcing a
contract directly, might come within the terms of § 314 by
virtue of state scope-of-employment law.

IV

As a federal court of appeals, we must always be mindful
that “we are a court of review, not first view.” Maronyan v.
Toyota Motor Sales, U.S.A., Inc., 658 F.3d 1038, 1043 n.4
(9th Cir. 2011) (quoting Cutter v. Wilkinson, 544 U.S. 709,
 SHIRK V. UNITED STATES 19

719 n.7 (2005)). Where an argument has been “briefed only
cursorily before this Court and [was] not ruled on by the
district court,” it is normally inappropriate for us to evaluate
the argument in the first instance. Bigio v. Coca-Cola Co.,
239 F.3d 440, 455 (2d Cir. 2000). This practice is rooted in
“our general assumption . . . that we operate more effectively
as a reviewing court than as a court of first instance.” Detrich
v. Ryan, 740 F.3d 1237, 1248–49 (9th Cir. 2013) (en banc).

Because this is a case of first impression among federal
appellate courts, neither the district court nor the parties
conducted their analysis using the framework we have
described. As such, we are without the benefit of the district
court’s analysis of this case using the proper two-step
approach. That is particularly significant because of the
critical importance of state law to the second step of the § 314
analysis. Although we do not imply that we would reach the
second step of the § 314 inquiry, “where both the district
court record and the briefing before us is substantially
incomplete on [] state law issues” that might be important to
our resolution of a case, the proper course of action is to
remand to the district court so that it can consider the
argument in the first instance with the benefit of full briefing.
In re Neurontin Mktg. & Sales Practices Litig., 712 F.3d 60,
70 (1st Cir. 2013). Because neither the district court nor any
of the parties provided us with an analysis of Arizona scope-
of-employment law, we follow our standard practice and
remand to the district court.6

6
In the district court, the United States conceded that the Officers were
acting within the scope of their employment as tribal police officers.
Defendants’ Reply in Support of Motion to Dismiss at 2, Shirk v. U.S. ex
rel. Dep’t of Interior, No. CV-09-1786-PHX-NVW (D. Ariz. August 27,
2010) (“The United States agrees that the officers were acting within the
20 SHIRK V. UNITED STATES

Even if we wanted to resolve this case at the first step of
the § 314 inquiry, we would be wise not to do so on the
record before us. That is because of another issue lurking in
the background of this appeal: the uncertainty about which
contractual obligations were in force between the United
States and the GRIC at the time of Shirk’s accident. In the
district court, neither party disputed that the 2003 Compact
incorporated the restrictions of the 638 Contract and its
Statement of Work. For that reason, the district court
assumed that the 638 Contract’s limitations on the authority
of tribal officers applied to the 2003 Compact, and the district
court’s decision was largely based on this assumption. On
appeal, however, the GRIC has argued that the 638 Contract
expired before the enactment of the 2003 Compact, that the
2003 Compact superseded the terms of the 638 Contract, and
that the provisions of the 638 Contract no longer apply.
Thus, it is uncertain which contractual provisions govern the
actions of the Officers in this case.7

scope of their employment as Tribal officers, which is determined by
Arizona law of respondeat superior, but the issue here is one of statutory
application, not common law scope of employment.”). The government
has not conceded, however, that the Officers were acting within the scope
of their employment where the relevant “employment” is “carrying out the
contract or agreement.” Indeed, the government has always maintained
that the Officers were not carrying out the relevant contracts. Thus, the
government’s concession below does not prevent it from arguing on
remand that the Officers were acting outside the scope of their
employment for purposes of § 314.
7
“Generally, we do not consider on appeal an issue raised only by an
amicus.” Swan v. Peterson, 6 F.3d 1373, 1383 (9th Cir. 1993). We could,
therefore, hold as waived the GRIC’s argument concerning the
applicability of the 638 Contract’s obligations. However, in the past, we
have “considered arguments of a jurisdictional nature raised only by
amici.” United States v. Gementera, 379 F.3d 596, 607 (9th Cir. 2004).
 SHIRK V. UNITED STATES 21

The relevance of the 638 Contract is, in part, a factual
question, since it is possible that the parties entered into an
indefinite, mature version of the contract after three years.
See 25 U.S.C. § 450j(c)(1)(B); id. § 450b(h). We cannot
know whether that occurred from the record before us
because the district court never made findings on the issue.
“[T]he proper recourse for courts of appeals confronted with
district court findings of questionable sufficiency is ordinarily
to remand for proper first instance factfinding.” Lewis v.
Bloomsburg Mills, Inc., 773 F.2d 561, 577 (4th Cir. 1985).
Such a situation is more likely to occur where, as here, the
district court was never presented with an argument for which
additional factfinding was relevant. See Flexible Lifeline
Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989, 1000 (9th Cir.
2011). Because the district court had no opportunity to
analyze whether the 638 Contract provisions applied at the
time of Shirk’s accident, and because it made no factual
findings in that regard, we believe the proper course is to
remand. See Ariz. Libertarian Party, Inc. v. Bayless,
351 F.3d 1277, 1282–83 (9th Cir. 2003).

V

We vacate the district court’s order dismissing this case
for lack of subject matter jurisdiction and remand for further
proceedings consistent with this opinion. On remand, and
with the benefit of full briefing by the parties, the district
court should conduct a new analysis of its subject matter
jurisdiction using the two-step framework we have described.

Because the applicability of the 638 Contract might affect our analysis at
both steps of the § 314 analysis, the GRIC’s argument potentially
implicates our subject matter jurisdiction, and we exercise our discretion
to consider it.
22 SHIRK V. UNITED STATES

The district court should find whatever facts are necessary to
that end.

VACATED AND REMANDED for proceedings
consistent with this opinion. Each party shall bear its own
costs.

SACK, Senior Circuit Judge, concurring:

I am in full agreement with the judgment of the Court. I
write only to register my doubts as to one of the district
court’s conclusions, which the panel’s opinion need not and,
properly in my view, does not reach in the course of its
remand. Were we squarely presented with the issue, I would
conclude that the relevant agreements between the federal
government and the tribe authorize, indeed perhaps require,
the enforcement of Arizona state law by tribal police officers.

The Multi-Year Financing Agreement, as the panel
opinion notes, requires the tribe to ensure that all its
uniformed officers and criminal investigators maintain state
“peace officer certification,” and it specifically mentions
“AZPOST” certification. MYFA § 2(L). In Arizona,
AZPOST certification supplies the necessary and sufficient
condition for Indian tribal officers engaged in the conduct of
their employment to possess the legal powers and duties of
state peace officers. See Ariz. Rev. Stat. §§ 13-3874(A),
41-1823(B). These powers and duties include the authority
to enforce state law and the duty to protect the public order
and make arrests. Id. §§ 13-3874(A) (providing that certified
tribal officers “shall possess and exercise” the powers of
peace officers (emphasis added)); id. § 13-105(25) (defining
 SHIRK V. UNITED STATES 23

“peace officer” as “any person vested by law with a duty to
maintain public order and make arrests” (emphasis added)).
Furthermore, these powers and duties extend outside the
officer’s home jurisdiction under circumstances that, while
limited, would include the tribal officers on the facts of this
case. See id. § 13-3871(B) (empowering peace officers to
enforce the law outside their home jurisdictions in
circumstances enumerated in § 13-3883, which include an
“actual or suspected violation of any traffic law committed in
the officer’s presence”); State v. Nelson, 208 Ariz. 5, 8-9,
90 P.2d 206, 209-10 (Ct. App. 2004).

In light of this certification regime, I think it apparent that
the federal government and the tribe intended that tribal law-
enforcement officers possess and exercise the power to
enforce state law, both on the reservation and, in some cases,
outside of it. The district court, to the contrary, concluded
that the reference to peace officer certification is “no more
than a training requirement, imposed to ensure than all tribal
officers are sufficiently qualified to meet the demands of their
positions.” Shirk v. United States, No. CV-09-1786, 2010
WL 3419757, at *6, 2010 U.S. Dist. LEXIS 89687, at *15
(Aug. 27, 2010).

It is with that proposition that I disagree. AZPOST
certification is more than a confirmation that the recipient has
been adequately and appropriately trained – it confers
specified powers and imposes specified duties on all officers
so certified. Inasmuch as the tribe and the government have
explicitly referenced AZPOST in their agreement, I cannot
but conclude that they intended that officers of the tribe’s law
enforcement program possess these legally defined powers
and duties.
24 SHIRK V. UNITED STATES

The district court’s contrary interpretation was premised
on its assumption that the 638 Contract of 1998 sets outer
limits of the tribe’s duties and authority under the relevant
agreements. See id. On remand, as the Court’s opinion
makes clear, the district court should consider whether the
638 Contract even applied at the time of the conduct giving
rise to this claim. Panel Op., at 18–20. Even if the 638
Contract did apply, the district court should consider whether
the later Compact and funding agreement, by specifically
referring to peace-officer certification, effectively amended
and expanded the earlier contract with respect to the
enforcement of state law.

I think these considerations may have substantial impact
on the district court’s analysis under the two-step approach
established by the Court’s opinion today. We cannot decide
how this analysis should be conducted, however, without first
knowing which of the federal-tribal agreements submitted in
this case were in force at the time of the accident, and how
these agreements relate to each other. For this reason, I fully
concur in the panel’s opinion and decision to vacate and
remand for further factfinding.

BEA, Circuit Judge, concurring in part, dissenting in part:

This court need not remand. I disagree that “uncertainty
about which contractual obligations were in force between the
United States and the GRIC at the time of Shirk’s accident”
 SHIRK V. UNITED STATES 25

compels remand. Slip op. at 20.1 According to the majority,
the district court “assumed that the 638 Contract’s limitations
on the authority of tribal officers applied to the 2003
Compact.” Slip op. at 20 (citation omitted). “On appeal,
however, the GRIC has argued that the 638 Contract expired
before the enactment of the 2003 Compact, that the 2003
Compact superseded the terms of the 638 Contract, and that
the provisions of the 638 Contract no longer apply.” Slip op.
at 20 (citation omitted). All this court need do, however, is
to look within the four corners of the contracts in the record:
if the 638 Contract contains an expiration provision, it
expired pursuant to that provision; if the 2003 Compact
contains a provision superseding the 638 Contract, then it
supercedes the 638 Contract.2 There are no issues of fact that

1
The majority accurately summarizes the facts and the legal issues
relevant to this case. I adopt them here. In short: plaintiffs’ FTCA claim
survives FRCP 12(b)(1) dismissal if the actions of the GRIC officers fall
under the scope of the FTCA’s waiver of sovereign immunity. “Section
314” extended the FTCA’s waiver of sovereign immunity to claims
“resulting from the performance of functions . . . under . . . [certain]
contract[s], grant agreement[s], or cooperative agreement[s] . . . .” Slip op
at. 8 (citations and internal quotations omitted). Here, GRIC entered into
certain contracts that allowed them some autonomy over various tribal law
enforcement responsibilities. Slip op. at 6–10. Therefore, the plaintiffs’
FTCA claim falls under the FTCA’s waiver of sovereign immunity if the
GRIC officers were carrying out the obligations of the operative
agreement between GRIC and the United States. There are two possible
operative agreements: (1) the “638 Contract,” slip op. at 8, and (2) the
“2003 Compact,” slip op. at 9.
2
Furthermore, “[a] question of fact concerning the interpretation of a
contract does not arise unless the contract is ambiguous.” Barona Group
of Capitan Grande Band of Mission Indians v. American Mgmt. &
Amusement, Inc., 840 F.2d 1394, 1401 (9th Cir. 1987) (citation omitted).
No party has claimed there were ambiguities in the contracts before the
court here.
26 SHIRK V. UNITED STATES

require remand. Therefore, even though the district court did
not employ the new two-part test we hand down today, and
“[t]ypically, a federal appellate court does not consider an
issue not passed upon below,” Davis v. Nordstrom, Inc.,
755 F.3d 1089, 1094 (9th Cir. 2014) (internal quotations and
citation omitted), we have the “discretion to decide whether
to reach such an issue . . . where the issue presented is a
purely legal one and the record below has been fully
developed,” id. at 1094–95 (citation omitted).

The district courts of this circuit would have benefitted
from a precedential opinion that applied the new two-part
test. The majority opinion has sidestepped this opportunity.
I do not see much point to writing a non-precedential,
one-judge analysis of the merits. Therefore, I agree with the
new two-part test articulated here, but I would not remand.
I respectfully concur in part, and dissent in part.