                    FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


M.J., a minor, by her mother and              No. 11-35625
next friend Helena Beebe,
                  Plaintiff-Appellant,           D.C. No.
                                              4:09-cv-00013-
                    v.                             RRB

UNITED STATES OF AMERICA ,
              Defendant-Appellee,               OPINION

J.P., a minor,
                 Third-Party-Defendant-
                    Counter-Claimant –
                             Appellant,

CITY OF QUINHAGAK,
   Defendant-Third-Party-Plaintiff –
                         Appellee.


     Appeal from the United States District Court
               for the District of Alaska
   Ralph R. Beistline, Chief District Judge, Presiding

                 Argued and Submitted
            May 24, 2013—Fairbanks, Alaska

                         Filed July 1, 2013
2                    M.J. V . UNITED STATES

     Before: A. Wallace Tashima, Richard C. Tallman,
           and N. Randy Smith, Circuit Judges.

                  Opinion by Judge N.R. Smith


                           SUMMARY*


                 Diversity/Vicarious Liability

    The panel affirmed the district court’s summary judgment
in this diversity action seeking to hold the Alaskan city of
Quinhagak liable for injuries caused by the negligence of
Derrick Johnson, a Native Village of Kwinhagak tribal police
officer.

    The panel noted that under Alaska state law, an
employee’s immunity from tort liability precludes an
employer from being held vicariously liable for the
employee’s negligence. The panel held that Johnson was
immune from individual liability for plaintiffs’ tort claims,
both under the Federal Tort Claims Act and the tribe’s
sovereign immunity. Accordingly, because plaintiffs sought
to hold the City vicariously liable on a non-delegable duty
theory for the negligent conduct of an immune independent
contractor, plaintiffs’ claims against the City failed.




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

                        COUNSEL

Russell Lee Winner (argued), Winner & Associates, P.C.,
Anchorage, Alaska, for Plaintiff-Appellant and Counter-
Claimant-Appellant.

Constance Cates Ringstad (argued), Clapp, Peterson,
Tiemessen, Thorsness & Johnson, Fairbanks, Alaska, for
Defendant-Appellee.


                        OPINION

N.R. SMITH, Circuit Judge:

    Under Alaska state law, an employee’s immunity from
tort liability precludes an employer from being held
vicariously liable for the employee’s negligence. See City of
N. Pole v. Zabek, 934 P.2d 1292, 1300 (Alaska 1997).
Vicarious liability claims include those premised on a “non-
delegable duty”—the theory that an employer can be held
liable for an independent contractor’s negligence if the
contractor acted negligently while performing a duty the
employer could not delegate. See Ward v. Lutheran Hosps.
& Homes Soc’y of Am., Inc., 963 P.2d 1031, 1034 n.5 (Alaska
1998). Because Plaintiffs seek to hold the City of Quinhagak
vicariously liable on a “non-delegable duty” theory for the
negligent conduct of an immune independent contractor,
Plaintiffs’ claims against the City fail. We therefore
AFFIRM the district court’s grant of summary judgment in
the City’s favor.
4                 M.J. V . UNITED STATES

         FACTS & PROCEDURAL HISTORY

I. Background

    The tort claims underlying this appeal arise from a four-
wheeler accident that occurred in August 2006 in the rural
Alaskan city of Quinhagak (the “City”). The City shares
approximately the same geographic space and is populated by
roughly the same 650 individuals as the Native Village of
Kwinhagak (“NVK”), a “federally recognized tribe.” See
Indian Entities Recognized and Eligible to Receive Services
from the United States Bureau of Indian Affairs, 73 Fed. Reg.
18553, 18557 (April 4, 2008).

    Plaintiff M.J. and Counter-Claimant J.P. (together,
referred to as “Plaintiffs”) seek to hold the City liable for
injuries caused by the negligence of Derrick Johnson, an
NVK tribal police officer (“TPO”). According to Plaintiffs,
Johnson “ordered [them] to ride on the back of [a] four-
wheeler,” after he found them violating a curfew ordinance.
Plaintiffs allege that they were subsequently “thrown off” the
four-wheeler and injured when Johnson lost control of the
four-wheeler. Because NVK (not the City) employed
Johnson at the time of the incident, the extent to which
Plaintiffs may hold the City liable for Johnson’s conduct
depends on the nature of the relationship between the City
and NVK. The history of police services in the remote bush
community provides relevant context for understanding that
relationship.

    Before 1996, the State of Alaska and the City shared the
community’s law enforcement responsibilities. Under that
arrangement, state-funded Alaska State Troopers posted in
“hub” communities would respond to “emergencies or
                      M.J. V . UNITED STATES                             5

reported felonies” in Quinhagak. See Alaska Inter-Tribal
Council v. State, 110 P.3d 947, 951 (Alaska 2005).
Additionally, to provide “some local law enforcement
services,” the City hired Village Police Officers (“VPOs”)
“intermittently, and as funds permitted.” Id. VPOs were not
subject to the state’s minimum standards for police officers
and received very limited law enforcement training. See
Alaska Admin. Code tit. 13, §§ 85.005, 89.040 (2012).

    In addition to state troopers and VPOs, a local, state-
funded magistrate played a key role in the community’s
justice system. The magistrate adjudicated violations of the
City’s ordinances, including a curfew ordinance. However,
the State phased out the City’s magistrate position in 1993.
Due to its remoteness from municipalities that had the
capacity to adjudicate offenses, this phase out effectively
terminated the City’s ability to enforce its ordinances in the
community.

    In 1996, the City and NVK entered into a Memorandum
of Agreement (“MOA”). In effect, the MOA allocated all
responsibility for governing the community to NVK and
relegated the City to “perform[ing] the minimum
requirements spelled out in the Alaska Statutes to retain the
status of 2nd Class City” so that it would continue to receive
state funding. Therefore, NVK took on the role of providing
a local justice system by “enacting its own Tribal Code,
including [a] curfew, and instituting its own Tribal Court.”
As a result, “Tribal laws and codes [became] the primary
laws governing tribal members in the village.”1 NVK also


 1
    As evidence of this, the former state magistrate became the first Chief
Justice of the Tribal Court, which “accept[ed] and hear[d] only violations
of tribal law.”
6                  M.J. V . UNITED STATES

agreed to “provide law enforcement protection” for the
community, to which the City contributed financially.

    The relationship between the City, NVK, and Johnson
took on another dimension in 1999 when NVK entered into
a Compact of Self-Governance with the United States (the
“Compact”). In general, the Compact and subsequent
implementing agreements, titled Annual Funding Agreements
(“AFAs”), transferred certain responsibilities for governing
the tribe, such as public safety and policing, from the federal
government to NVK. Under the AFAs, the United States
provided funds to NVK, which NVK spent on delivering
these services. In 2006, NVK used such funds to hire
Johnson as a TPO. As discussed below, this had the effect of
making Johnson a federal employee for the purposes of this
case. See infra Discussion, Part 1.

II. Procedural History

    M.J. (represented by her mother and next friend) filed her
complaint on May 13, 2008, seeking over $100,000 in
damages from Johnson and the City for injuries M.J.
sustained as a result of Johnson’s negligent driving of the
four-wheeler. Johnson is no longer a party to the lawsuit. On
April 16, 2009, the United States Attorney for the District of
Alaska “certified” that Johnson was deemed to be a federal
employee for purposes of this lawsuit, because he was
providing services under an AFA at the time of the accident.
Accordingly, the United States substituted itself for Johnson
                       M.J. V . UNITED STATES                             7

under the Westfall Act, 28 U.S.C. § 2679(d)(2), and removed
the case to federal court.2

    Nevertheless, M.J. sought to hold the City liable for
Johnson’s negligence on three different theories: (1) vicarious
liability; (2) negligent hiring, supervision, and training; and
(3) negligent entrustment. However, only M.J.’s vicarious
liability claim is at issue on appeal. In that claim, M.J.
alleged that

         At all material times, Johnson was an
         employee or agent of the City of Quinhagak
         acting within the scope of his employment or
         agency. Additionally, at all material times
         Johnson was performing a non-delegable duty
         on behalf of the City of Quinhagak. The City
         of Quinhagak is vicariously liable for Jones’s
         injuries and damages.

     The City answered M.J.’s complaint on January 8, 2010.
In its answer, the City named J.P. as a third-party defendant
and alleged that J.P. caused M.J.’s injuries “in whole or part
. . . [by] overloading and abruptly moving on the four-
wheeler so as to cause Johnson to lose control of the four-
wheeler.” On April 5, 2010, J.P. responded and asserted
counterclaims against the City on the same grounds as M.J.
J.P. did not make any claims against Johnson or the United
States.


  2
     Section 2679(d)(2), a component of the Federal Tort Claims Act,
authorizes the United States to substitute itself for a federal employee who
has been sued for conduct arising in the course of his or her employment.
Id. § 2679(b)(1), (d)(1)–(2). Plaintiffs do not contest the United States’
certification of, or substitution for, Johnson on appeal.
8                    M.J. V . UNITED STATES

    The City then moved for summary judgment on Plaintiffs’
vicarious liability claims. The district court initially denied
the motion on October 21, 2009, concluding that the City
owed a non-delegable duty to “maintain public order” by
“provid[ing] police services.” As discussed below, the non-
delegable duty doctrine is an exception to the general rule that
an employer cannot be held liable for torts committed by its
independent contractors. See infra Discussion, Part 2; see
also Ward v. Lutheran Hosps. & Homes Soc’y of Am., Inc.,
963 P.2d 1031, 1034 n.5 (Alaska 1998).

    Nearly one-and-a-half years later, the district court
reconsidered this determination and ordered supplemental
briefing on the issue. With the benefit of that briefing, the
district court reversed course and granted summary judgment
to the City on May 18, 2011. The district court concluded
that the City was not vicariously liable to Plaintiffs, because
it did not owe a non-delegable duty to provide police
services. Plaintiffs appealed.

    After Plaintiffs filed their Notice of Appeal, the United
States made an offer of judgment to M.J. for $150,000 under
Federal Rule of Civil Procedure 68. M.J. accepted this offer,
and the district court entered judgment against the United
States in that amount on November 10, 2011.3

                  STANDARD OF REVIEW

   “We review de novo a district court’s grant of summary
judgment.” Shelley v. Geren, 666 F.3d 599, 604 (9th Cir.


    3
   Because J.P. did not sue Johnson, the United States did not become a
defendant as to any of her claims. The United States, therefore, did not
make her a Rule 68 offer.
                       M.J. V . UNITED STATES                               9

2012). When conducting this review, “[w]e may affirm on
any ground supported by the record.” Olson v. Morris,
188 F.3d 1083, 1085 (9th Cir. 1999).

                             DISCUSSION

    Plaintiffs seek to hold the City liable for Johnson’s
alleged negligence on the theory that the City had a “non-
delegable” duty to provide law enforcement services to the
community. No Alaska law clearly holds that the City owed
such a duty. However, we can resolve this case without
deciding whether it did. Instead, we need only determine (1)
whether Johnson qualifies for any immunity from tort
liability, and, if so, (2) whether Johnson’s immunity extends
to the City to bar Plaintiffs’ claims. We answer both
questions in the affirmative, and accordingly AFFIRM the
district court.4




   4
     As a threshold matter, we reject the City’s argument that M.J.’s
acceptance of the United States’ $150,000 Rule 68 offer moots her appeal
under res judicata principles. Assuming that the district court’s judgment
based on the United States’ offer of judgment was a final judgment for res
judicata purposes, see Wilkes v. Wy. Dep’t of Emp’t Div. of Labor
Standards, 314 F.3d 501, 504 (10th Cir. 2002) (assuming that judgment
pursuant to Rule 68 offer has res judicata effect because parties did not
contest that determination), res judicata does not preclude M.J. from
pursuing an additional judgment against the City, see Gonzalez v.
Hernandez, 175 F.3d 1202, 1207 (10th Cir. 1999) (“Courts applying
section 51(2) [of the Restatement (Second) of Judgments] have held that
a judgment in favor of the injured party in a vicarious liability relationship
does not preclude a second action against nonparties except as to the
amount of damages.”).
10                 M.J. V . UNITED STATES

1. Johnson is immune from tort liability as to M.J. and
   J.P.

     Johnson is immune from individual liability for Plaintiffs’
tort claims, both under the Federal Tort Claims Act (“FTCA”)
and the tribe’s sovereign immunity. The FTCA immunizes
federal employees from individual liability for an “action
[that] is properly against the United States under the FTCA.”
See Meridian Int’l Logistics, Inc. v. United States, 939 F.2d
740, 743 n.1 (9th Cir. 1991). In such cases, “the FTCA is the
‘exclusive mode of recovery for the tort of a Government
employee even when the FTCA itself precludes Government
liability.’” Id. (quoting United States v. Smith, 499 U.S. 160,
166 (1991)). Thus, if a claim is properly against the United
States under the FTCA, the FTCA becomes the sole remedy
and the individual tortfeasor is immunized from liability.

    Here, Plaintiffs do not dispute that their tort claims are
properly against the United States under the FTCA.
Controlling federal regulations plainly dictate that this is so:
“No claim may be filed against a self-governance
Tribe/Consortium or employee based upon performance of
functions under a self-governance AFA. All claims shall be
filed against the United States and are subject to the
limitations and restrictions of FTCA.” 25 C.F.R. § 1000.279
(emphasis added). Plaintiffs’ tort claims fall squarely within
the terms of the regulation, because they are based on
Johnson’s performance of functions under NVK’s 2006 AFA.
In that AFA, NVK agreed to “assume responsibility for
implementation and administration of . . . programs, services,
functions and activities” including “Public Safety/Policing.”
At the time of the accident, Johnson was providing policing
services under this agreement. Accordingly, Plaintiffs’ tort
claims are properly against the United States under the
                   M.J. V . UNITED STATES                    11

FTCA, and Johnson is immune from liability, as Plaintiffs’
“exclusive” remedy is against the federal government. See
Smith, 499 U.S. at 166.

    Johnson is also immune from tort liability by application
of NVK’s sovereign immunity as an Indian tribe. “Indian
tribes have long been recognized as possessing the
common-law immunity from suit traditionally enjoyed by
sovereign powers.” Linneen v. Gila River Indian Cmty.,
276 F.3d 489, 492 (9th Cir. 2002) (quoting Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 58 (1978)). This immunity
“protects tribal employees acting in their official capacity and
within the scope of their authority.” Cook v. AVI Casino
Enters., Inc., 548 F.3d 718, 727 (9th Cir. 2008). Here, NVK
employed Johnson as a TPO at the time of the accident.
Plaintiffs do not dispute that Johnson was acting in that
official capacity when he engaged in the conduct giving rise
to Plaintiffs’ claims. Accordingly, Johnson is also immune
from tort liability under tribal sovereign immunity.

2. Johnson’s immunity precludes Plaintiffs’ claims
   against the City.

    Because Johnson is immune, Plaintiffs’ claims against the
City for Johnson’s negligence fail if those claims are based on
the City’s vicarious liability for Johnson’s negligence. Under
Alaska law, “[f]or vicarious liability to attach, some sort of
underlying liability must be established for which the
employer can be held liable.” See City of N. Pole v. Zabek,
934 P.2d 1292, 1300 (Alaska 1997); see also 57 Am. Jur. 2d
Municipal, etc., Tort Liability § 11 (2013) (“The tort
immunity of a local government entity may, in some cases, be
derived from the official immunity of its officers and
12                    M.J. V . UNITED STATES

employees.”).5 Because Plaintiffs cannot establish Johnson’s
“underlying liability,” we must determine whether Plaintiffs’
claims against the City—premised on the theory that the City
owed them a “non-delegable” duty—are based on vicarious
liability. We conclude that they are.

    In Ward v. Lutheran Hospitals & Homes Society of
America, Inc., the Alaska Supreme Court noted that, under
the non-delegable duty doctrine, “the [employer] bears
vicarious liability for the torts of at least some of its
[independent contractors].” 963 P.2d at 1034 n.5 (emphasis
added); see also Fletcher v. S. Peninsula Hosp., 71 P.3d 833,
838–39 (Alaska 2003) (discussing non-delegable duty
doctrine using vicarious liability terminology).6 Additionally,
the conclusion that the non-delegable duty doctrine is a
theory of vicarious liability flows logically from the
doctrine’s relationship to other tort rules. Specifically, the
doctrine constitutes an “exception to the rule that an employer
is not liable for the negligence of an independent contractor.”
Jackson v. Power, 743 P.2d 1376, 1383 (Alaska 1987),
overruled on other grounds by Alaska Stat. § 09.65.096, as
recognized in Evans ex rel. Kutch v. State, 56 P.3d 1046,
1067 (Alaska 2002). That general rule, which shields an


 5
   W e acknowledge that some treatises are in conflict with this rule. See
Restatement (Second) of Agency § 217(b)(ii) (2012) (“The principal has
no defense because of the fact that . . . the agent had an immunity from
civil liability as to the act.”); 2A C.J.S. Agency § 438 (2013) (“Under the
doctrine of respondeat superior, a principal has no defense based on an
agent’s official immunity from civil liability for an act committed in the
course of employment.”). However, Plaintiffs provide no persuasive
reason why Alaska would adopt those positions.

  6
    At least one treatise also supports this position. See 41 Am. Jur. 2d
Independent Contractors § 43 (2013).
                   M.J. V . UNITED STATES                     13

employer from liability for the conduct of its independent
contractors, cuts off the employer’s vicarious liability for the
contractor’s torts. See Sievers v. McClure, 746 P.2d 885, 889
n.6 (Alaska 1987). Therefore, if the non-delegable duty
doctrine is an exception to the general rule that an employer
cannot be held vicariously liable for the torts of his
independent contractor, applying the doctrine would permit
such vicarious liability to attach. Therefore, we conclude that
Plaintiffs have premised their “non-delegable duty” claim
against the City on a theory of vicarious liability.

    We reject Plaintiffs’ argument that the non-delegable duty
doctrine is not a theory of vicarious liability. Plaintiffs’ best
case in support of this argument comes from New Mexico.
See Saiz v. Belen Sch. Dist., 827 P.2d 102 (N.M. 1992).
However, the Saiz decision does not represent the majority
view, nor is it the rule applicable in Alaska. Plaintiffs cite no
reason why Alaska courts would adopt the Saiz view.

    Because Plaintiffs’ claims against the City are based on
a theory of vicarious liability, their claims fail. We
acknowledge that this result may seem harsh, because
Plaintiffs cannot recover for their injuries against the City.
However, this result is not unjust. Plaintiffs could have
sought relief from the United States under the FTCA. Indeed,
M.J. obtained such relief by filing a claim against Johnson
individually, later settling with the United States for
$150,000—$50,000 more than the minimum she sought in
her complaint. J.P., on the other hand, never filed a claim
against Johnson or the United States under the FTCA. Her
failure to pursue that remedy does not justify setting aside the
14                     M.J. V . UNITED STATES

principles of immunity and vicarious liability discussed above
so that she may pursue a claim against the City.7

                           CONCLUSION

    We affirm the district court’s grant of summary judgment
in favor of the City. Johnson’s immunity under the FTCA
and as a tribal employee precludes Plaintiffs from succeeding
on their vicarious liability claims against the City.

     AFFIRMED.




 7
    W e note that the question of whether the FTCA’s statute of limitations
is subject to equitable tolling is currently pending before an en banc panel.
See Wong v. Bebee, 704 F.3d 816 (9th Cir. 2013) (taking the case en
banc). Compare Marley v. United States, 567 F.3d 1030, 1035–36 (9th
Cir 2008) (holding that equitable tolling does not apply to the FTCA’s
statute of limitations), with Alvarez-Machain v. United States, 107 F.3d
696, 701 (9th Cir. 1996) (holding that “equitable tolling is available for
FTCA claims in appropriate circumstances”). However, the availability
of such equitable tolling is not before us and does not affect our
conclusion that immunity bars J.P.’s vicarious liability claims against the
City.
