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WATERS v. UNITED STATES

January 8, 1993

WRENE WATERS, Plaintiff,
v.
UNITED STATES OF AMERICA and ROUND VALLEY INDIAN HEALTH CENTER, Defendants.



The opinion of the court was delivered by: STANLEY A. WEIGEL

 I. Background

 Plaintiff is a former employee of Round Valley Indian Health Center ("Round Valley"). Defendant Round Valley is a health care provider serving the Round Valley Indian community in Northern California. Gerald O. Kane is the Director of Round Valley.

 Plaintiff filed a complaint against Round Valley and Kane, alleging that Kane physically and sexually assaulted her while she was a Round Valley employee. Plaintiff further alleges that as a result of her refusal to respond to Kane's sexual advances, she was terminated from her employment and forced to vacate her home, which was provided by Round Valley. Plaintiff's First Amended Complaint, filed in state court in Sonoma County, alleges nine causes of action. Seven of Plaintiff's causes of action allege common law tort claims. *fn1" Two causes of action allege statutory claims: violation of the Unruh Civil Rights Act ("Unruh Act"), Cal. Civ. Code §§ 51.7, et seq., and violation of the California Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code § 12940. On May 4, 1992, the complaint was removed to federal court in anticipation of the substitution of the United States as defendant on at least some of the causes of action.

 Round Valley moves to substitute the United States for Round Valley for the two statutory claims, and to dismiss those claims for Plaintiff's failure to exhaust administrative remedies. The United States opposes the motion, and also moves to dismiss Round Valley's cross-claim against the United States. *fn2" Plaintiff has not opposed any of the motions.

 II. Discussion

 A. Round Valley's Motion to Substitute the United States

 Round Valley moves to substitute the United States as Defendant for the Unruh Act and FEHA claims asserted against Round Valley pursuant to the Indian Self Determination Act ("ISDA"). ISDA provides that any civil action against an Indian contractor operating under contract with the Indian Health Service shall be deemed an action against the United States and the United States shall be substituted as defendant. Such actions shall be afforded the full protection of the Federal Tort Claims Act ("FTCA"). Pub. L. No. 101-512 § 314, 104 Stat. 1960 (1990).

 FTCA is a limited waiver of sovereign immunity, allowing a person injured by a United States employee to seek tort damages against the federal government. Smith v. Supreme Court of the United States, 113 L. Ed. 2d 134, 111 S. Ct. 1180, 1180(1991). Absent such a waiver, Plaintiff's claims against the United States would be barred under the sovereign immunity doctrine. Schwarder v. United States, 974 F.2d 1118, 1121-22(9th Cir. 1992). For persons injured by a United States employee, the Federal Employees Liability Reform and Tort Compensation Act ("FELRTCA") provides that the remedy against the United States under FTCA is "exclusive of any other civil action or proceeding for money damages." 28 U.S.C. 2679 (b)(1).

 Specifically, FTCA waives sovereign immunity for 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 if a private persons. . . 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).

 The moving parties do not dispute that Round Valley was an Indian contractor acting within the scope of its employment when the events giving rise to this litigation occurred. Nor do they dispute that both the Unruh Act and FEHA apply to private persons. Thus, putting ISDA and FTCA together, the United States must be substituted for Round Valley as Defendant if Plaintiff's statutory claims allege "negligent or wrongful acts or omissions" within the meaning of FTCA.

 The United States relies upon FELRTCA legislative history to conclude that FTCA does not include statutory intentional torts within the phrase ...


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