                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                     F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                     January 26, 2006
                                 FOR THE FIFTH CIRCUIT
                                                                                 Charles R. Fulbruge III
                                                                                         Clerk


                                         No. 05-30223
                                       Summary Calendar



NORRIS P. HEBERT, SR.,

                                                                                         Plaintiff,

JOHN C. WIRICK, IV; ET AL.,

                                                                                      Defendants,

JOHN C. WIRICK, IV; RONALD VIDALLIA,

                                                      Defendants-Third Party Plaintiff-Appellants,

INDIAN NATIONS INSURANCE COMPANY,

                                                                 Intervenor Defendant-Appellant,

                                             versus

UNITED STATES OF AMERICA,

                                                                 Third Party Defendant-Appellee.


                          Appeal from the United States District Court
                             for the Western District of Louisiana


Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

CARL E. STEWART, Circuit Judge:

       John C. Wirick, IV, Ronald Vidallia and Indian Nations Insurance Company (“Wirick et al.”)

seek reimbursement from the United St ates for a settlement they paid in an underlying civil rights
claim. They appeal the judgment, and dismissal with prejudice, in favor of the United States in this

42 U.S.C. § 1983 action. For the following reasons, we affirm.

                      I. FACTUAL AND PROCEDURAL BACKGROUND

        On September 9, 2001, Chitimacha Tribal Police Officer John C. Wirick, IV (“Wirick”)

responded to a domestic dispute between two non-Indians in a parking lot adjacent to the Cypress

Bayou Casino (“Casino”), located on tribal land surrounded by St. Mary Parish, Louisiana. Norris

Hebert (“Hebert”), the original plaintiff in this suit, was a witness to the incident in the parking lot.

Wirick began questioning the persons involved in the dispute, and Hebert became impatient and

wanted to leave. Wirick initially asked Hebert to remain at the scene so Wirick could obtain a

statement, but later, Wirick asked Hebert to leave the premises. Because Hebert had been drinking,

however, Wirick stated that Hebert’s girlfriend would need to drive him. At this point, Hebert

ignored Wirick and sought to reent er the Casino. Wirick attempted to stop him and, in doing so,

Hebert was knocked to the ground and injured, but not seriously, as he later refused medical

treatment at a nearby hospital. Acco rdingly, Hebert was charged with resisting an officer, simple

battery and remaining where forbidden.

        On September 6, 2002, Hebert filed a suit against Wirick, the Chitimacha Tribal Police,

Casino employee Virginia Desormeaux, Tribal Police Chief Ronald Vidallia (“Vidallia”), and the

Casino in district court alleging a violation of his civil rights. At the time of the incident, Wirick was

authorized to act under the Bureau of Indian Affairs (“BIA”) Special Law Enforcement Commission

(“SLEC”) and the St. Mary Parish Sheriff’s Deputy Commission. According to Wirick et al., because

of the overlapping federal, state and tribal jurisdictions on Indian reservations, Wirick was permitted

to enforce the law under all three jurisdictions. Pursuant to the Indian Self-Determination and


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Education Assistance Act, 25 U.S.C. § 450 (2005), tribes can contract with the BIA to perform law

enforcement services. Addit ionally, under the Indian Law Enforcement Reform Act, 25 U.S.C. §

2803 (2005), the BIA can commission an SLEC to assist the BIA in providing law enforcement

services. Accordingly, prior to the altercation underlying this appeal, the BIA signed a Deputation

Agreement with the Chitimacha Po lice Department in which the BIA agreed to and did issue an

SLEC to Wirick, cross deputizing him as a BIA law enforcement officer.

       Testimony of David Nicholas (“Nicholas”), BIA Special Agent in Charge for the District 6

Office, however, revealed that Wirick was not employed by the BIA as a Special Agent. He

explained that Wirick was an SLEC under a Deputation Agreement and t hereby, the BIA had no

direct supervision of him. Furt hermore, Nicholas testified that tribal officers with SLECs had the

same authority as BIA officers and therefore an SLEC does not grant tribal officers the authority to

enforce state law. On the other hand, Wirick’s supervisor, Vidallia, testified that Wirick had the

authority to arrest non-Indians for state law violations and that Wirick was under the direct control

of the Chitimacha Police Department.

       After Hebert filed the lawsuit, Wirick and Vidallia contacted the local United States Attorney,

pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C §§ 2674, 1346 (2005), requesting

representation in preparation for their defense. The United States, however, refused to certify the

parties’ scope of employment as federal in nature and therefore did not agree to provide legal counsel.

As a result, Wirick and Vidallia reached a settlement in the amount of $25,000 with Hebert.

       On January 2, 2003, after the settlement agreement was made, Wirick and Vidallia answered

the original complaint made by Hebert and filed a third party complaint naming the United States as

the third party defendant pursuant to the FTCA. Wirick and Vidallia asserted that the United States


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should be substituted as a defendant because they were acting within the course and scope of their

employment as law enforcement officers of the BIA. Specifically, Wirick and Vidallia sought

reimbursement for the settlement amount paid to Hebert. Therefore, the district court dismissed

Hebert’s claims against Wirick and Vidallia and joined the United States as a third party defendant.

       Accordingly, the United States filed a motion to dismiss for lack of subject matter jurisdiction

on July 16, 2003, stating that the United States had not waived sovereign immunity to be sued for

indemnification under the FTCA. The district court denied this motion and a subsequent motion by

the United States for summary judgment. Thereafter, t he United States filed a second motion to

dismiss for lack of subject matter jurisdiction for failure to exhaust administrative remedies. The

district court granted this motion, but only concerning the § 1983 claims; the motion to dismiss was

denied as to the negligence and battery claims. Furthermore, prior to trial, the district court also

dismissed Hebert’s claims for attorneys’ fees. To complicate matters further, Indian Nations

Insurance Company (“Indian Nations”), the insurer o f Wirick and Vidallia, then intervened in the

lawsuit, claiming a right of subrogation for funding the settlement payment to Hebert.

       Wirick et al. consented to trial before a magistrate judge on January 4, 2005. The court

concluded that Wirick was not covered under the FTCA because he was not enforcing federal law,

denied the claims of Wirick et al. and dismissed the case with prejudice. Thereafter, on February 22,

2005, Wirick et al. filed a timely notice of appeal asserting that the magistrate j udge erred in

dismissing the underlying civil rights claim because Wirick was acting within the scope of his

employment and thus should have been provided coverage by the FTCA.

                                         II. DISCUSSION

A. Standard of Review


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        Under the FTCA, 28 U.S.C. § 1346(b) (2005), if an act was not committed by an employee

of the United States, then the district court must dismiss for lack of subject matter jurisdiction under

Federal Rule of Civil Procedure 12(b)(1). Linkous v. United States, 142 F.3d 271, 275 (5th Cir.

1998). Accordingly, this case was dismissed by the district court. Therefore, “[w]e apply a de novo

standard of review to the question of whether an individual is an employee of the government for

purposes of the FTCA.” Id. (citations omitted); Musslewhite v. State Bar of Tex., 32 F.3d 942, 945

(5th Cir. 1994) (holding that a district court’s dismissal for lack of subject matter jurisdiction warrants

de novo review).

B. Scope of Employment

        First we note that the magistrate judge did not determine what law Wirick et al. were acting

pursuant to in this case, though their brief erroneously quotes the lower court as determining that

“Wirick was acting under the Tribe’s inherent sovereignty.” Instead, the magistrate judge correctly

determined what law Wirick et al. were not acting under. For the reasons stated below in excerpts

from the magistrate judge’s Findings of Facts and Conclusions of Law, as well as our own

independent analysis, we find that the FTCA precludes the present action for reimbursement against

the government.

        The FTCA imposes liability upon the United States for the tortious conduct of its employees,

when acting within the course and scope of their employment, in the same manner and to the same

extent as a private individual under like circumstances. 28 U.S.C. §§ 2674, 1346. The United States

represents defendants sued in their individual capacit ies when they have acted within the scope of

their federal employment and it is in the interests of the United States to afford representation. 28

C.F.R. § 50.15 (2005). When Congress enacted the FTCA, it waived the government’s immunity


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from liability for certain torts, in particular fo r the negligent acts of government employees acting

within the scope of their employment. 28 U.S.C. § 1346(b). There is, however, an exception to that

limited waiver of immunity, under which the United States retained its immunity from suit for certain

enumerated intentional torts, including “[a]ny claim arising out of assault, battery, [or] false

imprisonment.” 28 U.S.C. § 2680(h) (2005).

       Furthermore, this exception excludes assault and battery and similar claims allegedly

committed by “investigative or law enforcement officers of the United States government.” Id.

“Investigative or law enforcement officer” is defined as “any officer of the United States who is

empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal

law.” Id. Therefore, because the case before us involves an assault and battery claim, we must

determine if this “investigative or law enforcement officer” exception applies. In other words, the

question is whether Hebert’s arrest was made pursuant to federal law, triggering FTCA protection.

Finding no applicable Fifth Circuit case law, the magistrate judge relied on Dry v. United States, 235

F.3d 1249 (10th Cir. 2000).

       In Dry, Choctaw Nation Tribal officers arrested Native Americans on Choctaw land and

charged them with numerous offenses in tribal court. Id. at 1251. The tribal members then filed suit

against certain law enforcement personnel and asserted constitutional violations in concert with FTCA

claims. Id. The district court found the FTCA inapplicable and dismissed all claims against the tribal

defendants. Id. at 1255. On appeal, the Tenth Circuit determined that the tribal defendants were not

acting as “federal investigative or law enforcement officers” under 28 U.S.C. § 2680. Id. at 1257.

Instead, the court concluded they were acting under the Tribe’s inherent tribal sovereignty over its




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own members and stated that “Indian tribes have power to enforce their criminal laws against tribe

members.” Id. at 1254.

       We agree wit h Wirick et al. that there is an obvious difference between Dry and the case

before us. In Dry, the parties were tribal members; in this case, the parties to the original domestic

dispute and subsequent altercation involving Hebert are not tribal members. Therefore, Wirick et al.

assert that Wirick and Vidallia could not have been acting pursuant to the Chitimacha Tribe’s inherent

authority. Even the United States Attorney who refused representation to Wirick and Vidallia initially

argued that they were acting pursuant to state law because the Chitimacha Tribe does not possess

criminal jurisdiction over non-Indians within its reservation. See Oliphant v. Suquamish Indian Tribe,

435 U.S. 191, 195 (1978). Nonetheless, we do not find it necessary to squarely decide the state law

versus tribal authority question in order to dispose of t he appeal before us. The magistrate judge

correctly decided the salient issue presented to it, Wirick and Vidallia did not act within the scope of

federal employment in order for FTCA coverage to attach to Hebert’s claim. Neither Wirick nor

Vidallia were employed as Bureau of Indian Affairs law enforcement officers or special agents, nor

were they acting in accordance with any special commission to assist the Bureau of Indian Affairs

with providing law enforcement services. In short, the record demonstrates that no enforcement of

federal law occurred when Hebert was arrested.

       The parties also rely on the six-page Deputation Agreement issued by the United States

Bureau of Indian Affairs to bolster their respective arguments regarding Wirick and Vidailla’s

employment status. Wirick et al. refer to key language in the contract discussing “when law

enforcement officers arrest a criminal suspect, the officers may not know if the suspect or the victim

is an Indian . . . .” The government highlights that the contract also provides, “[t]he purpose” of the


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Agreement, on its face, is “to provide commissioned officers the authority to enforce federal and

tribal laws only.” The main point of this contract, however, is that there is an agreement conferring

powers inherent to tribal officers to a non-Native American officer from St. Mary Parish, Louisiana.

It may be debatable whether Wirick was acting in accordance with state law or inherent tribal law

when he responded to the domestic disturbance at the casino and later entered into an altercation with

Hebert. Nonetheless, it is clear that Wirick was not enforcing federal law. Accordingly, this case

does not trigger the “investigative or law enforcement officer” exception to the FTCA.

C. Sovereign Immunity

       In this appeal, both parties also address whether the United States has waived its sovereign

immunity. The underlying basis of Hebert’s federal court complaint against Wirick, Vidallia, the

Chitimacha Tribal Police, Casino employee Virginia Desormeaux, and the Casino is an alleged

violation of his Constitutional rights under color of state law.

        “[T]he United States is a sovereign, and, as such, is immune from suit unless it has expressly

waived such immunity and consented to be sued.” Smith v. Booth, 823 F.2d 94, 96 (5th Cir. 1987).

Sovereign immunity protects the United States from liability, and deprives the court of subject matter

jurisdiction over the claims against it. See United States v. Mitchell, 463 U.S. 206, 212 (1983). The

FTCA is a waiver of sovereign immunity, allowing the Federal Government to be sued for the actions

of any employee of the government while acting within the course and scope of his office or

employment under circumstances where the United States would be liable if it were a private

employer. 28 U.S.C. § 1346. Having determined that Wirick and Vidallia were not enforcing federal

law and, t hus, were not acting under powers provided by the federal government, we need not

entertain the assertion that, “[e]ven if Hebert alleges [§] 1983 claims, the government must still step


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in and defend if the federal employee is acting within the course of his employment.” As we have

stated, Wirick and Vidallia, for purposes of this appeal, are not federal employees who acted within

the scope of their employment. Accordingly, we find that Wirick and Vidallia’s conclusory assertions

are insufficient to sustain their burden to show that sovereign immunity was waived by the

government with regard to their § 1983 claim.

                                       III. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s judgment.




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