[00:00:00] Speaker 03:
aside whenever you are ready counsel Thank you hold on one second.

[00:00:08] Speaker 03:
I think we're ten on each side on this one Okay, thank you counsel.

[00:00:17] Speaker 04:
Thank you honors may it please the court.

[00:00:20] Speaker 04:
My name is Luke Busby I'm appearing for appellant Michael Irwin in this matter the central question before this court is straightforward

[00:00:28] Speaker 04:
Did Mr. Irwin's standard form 95 provide the minimal notice required under the Federal Tort Claims Act to exhaust his administrative remedies?

[00:00:36] Speaker 04:
The record makes clear that it did, and the district court imposed requirements far beyond what this circuit's precedents demand.

[00:00:44] Speaker 04:
The Claims Act waived sovereign immunity for claims against the United States arising from negligent or wrongful conduct by federal employees acting within the scope of their employment, provided administrative remedies are exhausted.

[00:00:57] Speaker 04:
This court has repeatedly defined what exhaustion requires, and it has done so in terms that are minimal and claimant friendly.

[00:01:05] Speaker 04:
In Warren v. BLM, this court held that a claim on the FTCA is presented when a plaintiff files a written statement describing the injury to enable the investigation and a some certain damages claim.

[00:01:17] Speaker 03:
That's our in-bank case, yes?

[00:01:19] Speaker 04:
Yes, it is, Your Honor.

[00:01:22] Speaker 04:
Court further clarified, citing Avery v. US, that minimal notice requires claimants to give an agency sufficient written notice, commits an investigation, and place a value on its claim, and further held that even a skeletal claim form containing only the bare elements of notice of accident and injury accompanied by some certain representing damages suffices to meet these requirements.

[00:01:45] Speaker 04:
The court reinforced the standard in Chippec, VUS, holding that the FTCISA requirement is met when a claimant provides minimal information describing the injury to enable agency investigation.

[00:01:55] Speaker 04:
And in Goodman, VUS, this court went even further, holding that the notice requirement is minimal and that the plaintiff's administrative claims are sufficient even if a separate basis for liability arising under the same incident is later pled in federal court.

[00:02:10] Speaker 04:
Now turning to Mr. Irwin's Form 95,

[00:02:14] Speaker 04:
It was timely submitted following his termination and provided sufficient written notice of his injury, which is clearly his termination.

[00:02:21] Speaker 04:
The Form 95 stated that Mr. Irwin was terminated and included a fact section noting that from the beginning of his employment until his termination, he had not been found to have committed any misconduct which would warrant termination under the tribe's policies and that he was denied a hearing and given no meaningful opportunity to be heard as reflected in the record.

[00:02:40] Speaker 04:
He also included a some certain personal injury amount.

[00:02:44] Speaker 04:
These statements, combined with that damaged claim, sufficiently notify the United States of tort claims, such as wrongful termination and bad faith discharge at issue before the court today, enabling the agency to begin its investigation.

[00:02:56] Speaker 04:
And moreover, the record confirms that that's actually what happened.

[00:02:59] Speaker 04:
The Department's own denial letter of Mr. Irwin's claims

[00:03:02] Speaker 01:
Demonstrates they understood mr.. Irwin's claim to be based on his termination that that was his injury as they said so specifically Mr.. Busby was was the form required to mention We know one of the torches discharge or the the wrongful termination claims.

[00:03:18] Speaker 01:
I think the district court noted was that

[00:03:21] Speaker 01:
that Mr Irwin was fired because he refused to follow unlawful orders.

[00:03:26] Speaker 01:
And that was not specifically mentioned in the claim itself to the agency.

[00:03:31] Speaker 01:
Is that fatal to your case?

[00:03:34] Speaker 04:
We don't believe it is, Your Honor, because that's an element of a claim that was brought and you're not required under the statute or this court's interpretation of the statute to state what your claim is or even elements of your claim.

[00:03:44] Speaker 04:
And we did

[00:03:45] Speaker 04:
state in the Form 95 that he didn't do anything that would justify his termination, inviting the agency to do an investigation of the totality of the facts and circumstances surrounding his termination.

[00:03:57] Speaker 04:
Now, Goodman explicitly held that the claims are sufficient even if a separate basis is pled.

[00:04:03] Speaker 04:
And that's what we did here.

[00:04:07] Speaker 04:
The thing that the Form 95 focused on, which was kind of the overarching issue in this entire case, is that Mr. Irwin was an officer for the tribe.

[00:04:15] Speaker 04:
The tribe discovered at some point his fellow officer defendants not the tribe discovered at some point that he Had an existing lawsuit against another police agency from that moment on his employment became incredibly difficult He was accused of misconduct to the deed clearly didn't commit he He was subject to reinvestigation for misconduct which he was cleared from and then he was fired by

[00:04:42] Speaker 04:
these tribal defendants without being able to avail himself of the grievance process at the tribe, which he was clearly entitled to do.

[00:04:49] Speaker 04:
And he knew that because he had done it before.

[00:04:50] Speaker 04:
He'd been accused of misconduct before for failure to arrest a guy for a DUI where the guy wasn't intoxicated.

[00:04:57] Speaker 04:
He challenged that determination for the tribe's internal review board and was cleared.

[00:05:02] Speaker 04:
So the denial of due process itself isn't a limited concept.

[00:05:09] Speaker 04:
a concept that's limited to a constitutional claim only, which is, I think, where the district court went astray.

[00:05:14] Speaker 04:
It basically said due process necessarily means the US Constitution.

[00:05:18] Speaker 04:
But when we mentioned due process in the claim form, we're referring to the tribe's due process, the grievance process to which Mr. Irwin was entitled to avail himself because he was a post-probationary employee.

[00:05:31] Speaker 04:
That forms a nucleus of fact that runs through this case

[00:05:36] Speaker 04:
and the basis for his claim in his Form 95.

[00:05:39] Speaker 04:
Now turning, if I may, very briefly, I'd like to reserve three minutes for rebuttal, if I may.

[00:05:45] Speaker 04:
I'm supposed to do that at the beginning, I'm sorry.

[00:05:46] Speaker 04:
But I don't think there's been any presentation of any cases to this court where a person has done what Mr. Irwin done, stated clearly what his injury was, made a some certain damage claim, and then a court finding that that wasn't sufficient for exhaustion under the FTCA.

[00:06:02] Speaker 04:
And this is similar to the concept you see in insurance law.

[00:06:05] Speaker 04:
When you get into a car accident, you're not required to plead a claim when you put your insurance company on notice that you've been injured.

[00:06:11] Speaker 04:
You're required to basically provide them with notice that, hey, there was an accident and I've been injured.

[00:06:17] Speaker 04:
And the FTCA follows that same format.

[00:06:18] Speaker 04:
It's essentially an insurance regime.

[00:06:21] Speaker 04:
for the federal government to try and resolve claims early, if possible, by enabling sufficient information to conduct an investigation.

[00:06:29] Speaker 04:
And we think Mr. Irwin clearly did that here.

[00:06:32] Speaker 04:
The district court went far beyond what was required, basically stating that we didn't include elements or statements of what the claims were.

[00:06:40] Speaker 04:
But that isn't the law, based on our understanding.

[00:06:43] Speaker 04:
It's notice of the injury, not of the claim.

[00:06:47] Speaker 04:
And they were basically

[00:06:51] Speaker 04:
The district court subscribed to the view that was submitted by the US attorney before the district court that we didn't plead something that would be plausible in our Form 95, but we think that's a completely different standard that doesn't apply at all.

[00:07:06] Speaker 04:
The plausibility standard comes into play when you actually file your case in district court and make claims.

[00:07:11] Speaker 04:
You're not required to do that under the FDCA.

[00:07:13] Speaker 04:
And with that, I'd like to reserve three minutes for Robert Alfami, your honor.

[00:07:17] Speaker ?:
Yes.

[00:07:25] Speaker 02:
Good morning, Your Honors.

[00:07:27] Speaker 02:
Assistant United States Attorney Edne Martinez, on behalf of the United States, may please the court.

[00:07:34] Speaker 02:
Appellant failed to provide notice of injury in his administrative claims prior to filing his state tort claims in federal court in two ways.

[00:07:42] Speaker 02:
First, the constitutional due process rights violations enumerated in his SF95 are not recognizable under the Federal Tort Claims Act.

[00:07:51] Speaker 02:
And because these are separate rights provided under a different source,

[00:07:55] Speaker 02:
He failed to provide proper notice.

[00:07:58] Speaker 02:
Second, Appellant's SF95 does not sufficiently describe the injury or even generally state the date, the time, the cause, and nature of the alleged injuries that he claims, as is required under Avery versus the United States and in Goodman versus the United States.

[00:08:15] Speaker 03:
Your Honor, I'm starting with the language in our in-bank decision in Warren.

[00:08:20] Speaker 03:
Yes.

[00:08:22] Speaker 03:
What's required is

[00:08:24] Speaker 03:
Written statement we have a written statement right yes, we do your honor, and then it says sufficiently This can we and it also requires a some certain we have that right that's correct though the other requirement that we have in Warren is sufficiently describing the injury to enable the agency to begin its own investigation now the agency began an investigation right and

[00:08:52] Speaker 03:
That's correct, your honor.

[00:08:53] Speaker 03:
So the agency had enough information to actually begin an investigation.

[00:09:01] Speaker 02:
Yes, but.

[00:09:03] Speaker 03:
And in fact, in the denial letter, the agency had this for about six months, right?

[00:09:09] Speaker 03:
Correct.

[00:09:10] Speaker 03:
This claim arises from the termination of claimant from his position as a police officer.

[00:09:17] Speaker 03:
So from the Washa tribe on March 4, 2022.

[00:09:22] Speaker 03:
So they knew he was complaining about being fired.

[00:09:25] Speaker 03:
They knew he was complaining about who fired him.

[00:09:28] Speaker 03:
And they knew when he was fired, right?

[00:09:32] Speaker 02:
Yes, your honor, but what they didn't know.

[00:09:33] Speaker 03:
And then the letter says, after reviewing this claim and the applicable law, I hereby deny this claim.

[00:09:42] Speaker 03:
So where is it that from our language in Warren, where you need to have a sufficient description to enable the agency to begin its own investigation, and we know the agency began and ended its investigation, how is it that this was deficient under the law?

[00:10:02] Speaker 02:
It isn't sufficient because the specific towards that he claims later in federal court the torches discharge and the bath faith discharge claims are Require a certain level of notice that is not like the cases in Goodman or Rooney's not a straightforward negligence case where for instance and Rooney where the court held that

[00:10:31] Speaker 02:
Notice of allegations of negligence for the fall itself can be inferred by his administrative claim alleging receive negligent medical care Or in Goodman where the court?

[00:10:43] Speaker 02:
Held that asserting medical malpractice sufficed to provide notice of injury as to lack of informed consent This is different the court also said in Goodman the notice requirement under 2675 is minimal and

[00:10:58] Speaker 03:
and a plaintiff's administrative claims are sufficient, even if a separate basis of liability arising out of the same incident as pled in federal court?

[00:11:08] Speaker 02:
Our position, Your Honor, is that this is not just a different basis of liability for the same incident, but it's under a completely different source of law, which is constitutional due process, right, that he's claiming in DSF 95 and not tort law.

[00:11:24] Speaker 01:
State tort law which is what is required under the FTC a But if that's so then that would mean that there's a requirement to plead a legal theory in our cases Consistently reject that notion so what what case would you rely on for the proposition that?

[00:11:41] Speaker 02:
Someone has to assert a legal theory within that within the claim notice the argument is not that they have to assert a legal theory honor But that or even a source of law that the injury For even a source of law

[00:11:54] Speaker 02:
Well, in Goodman, right, the court did go back to statutory interpretation and legislative intent.

[00:12:01] Speaker 02:
They looked at statutory precedent to resolve the issue of ambiguity as to what is sufficient notice.

[00:12:07] Speaker 02:
And in that case, as well as in Avery, it was Avery and then Goodman, the court stated this language so that there could be the time, the cause, and the nature of the alleged injuries could be actually

[00:12:24] Speaker 02:
stated in the administrative claims.

[00:12:27] Speaker 02:
And that wasn't done here.

[00:12:28] Speaker 02:
So it's more than just skeletal or minimal claims, but it has to also include certain details like the time, date, cause, and nature of the alleged injuries, which he didn't do so here.

[00:12:40] Speaker 00:
What the case law says, as Judge Bennett noted, is the form has to contain information sufficient to put the government on notice to commence an investigation, right?

[00:12:54] Speaker 00:
And as you noted, the government did undertake an investigation.

[00:13:00] Speaker 00:
How would the investigation have been different if Mr. Irwin's Form 95 had been perfect?

[00:13:07] Speaker 00:
That is, if it said word for word what he later said in his claims six and seven in his complaint.

[00:13:14] Speaker 00:
How would the investigation have been different?

[00:13:16] Speaker 02:
We're not contending that it should have been perfect or that it should have stated his claims.

[00:13:20] Speaker 02:
But at the very least, state

[00:13:24] Speaker 02:
I was terminated for refusing to follow or being on lawful orders, which is a policy violation under state tort law.

[00:13:33] Speaker 00:
My question is a little bit different.

[00:13:35] Speaker 00:
How would the investigation have been different if the Claim Form 95 had said what you think it needed to say?

[00:13:45] Speaker 02:
Well, the congressional intent as part of the congressional intent of the STCA is to allow the government to

[00:13:53] Speaker 02:
legally recognize what the injuries are, what the claims are, so that they can then address them.

[00:13:58] Speaker 03:
They can settle the matter.

[00:13:59] Speaker 03:
I don't think you're answering my colleague's question.

[00:14:02] Speaker 03:
I think we understand the point of the government as to what the statute does and doesn't require.

[00:14:10] Speaker 03:
But I know my colleague's question is different.

[00:14:14] Speaker 03:
How would the government's investigation have been different if the form had been, as you say, it should have been?

[00:14:21] Speaker 03:
And if you don't know, you can say that.

[00:14:25] Speaker 03:
If it wouldn't have been different, you can say that.

[00:14:27] Speaker 03:
And we understand your point that you think that it's irrelevant whether the investigation would have been different or not.

[00:14:33] Speaker 03:
But could you please answer my colleague's question?

[00:14:35] Speaker 02:
Yes, Your Honor.

[00:14:36] Speaker 02:
I believe I was answering the question.

[00:14:38] Speaker 02:
The investigation, I think, could have went differently if the government was aware that

[00:14:44] Speaker 02:
Appellant was relying on a policy violation based on state tort law and therefore try to negotiate and settle the matter instead of Denying the claim at that level I think that that's that's a different that the difference that it could have made but if there was notice of the actual Injury the claim denial.

[00:15:06] Speaker 00:
I'm sorry the claim denial letter that Judge Bennett read from specifically said

[00:15:14] Speaker 00:
I'm paraphrasing we read Claim arises from the termination of claimant from his position as a police officer with the tribe After viewing this claim an applicable law hereby deny this claim So it appears it was an investigation about the termination of

[00:15:43] Speaker 00:
Mr. Irwin's position as a police officer.

[00:15:46] Speaker 00:
His claims are for torsious discharge and bad faith discharge of employment.

[00:15:51] Speaker 00:
I just don't see how the investigation would have been different, which is what the case law requires.

[00:15:57] Speaker 00:
That requires a plaintiff to exhaust his administrative revenues by putting the government on notice of what investigation they need to commence.

[00:16:08] Speaker 02:
Well, Your Honor, in Goodman, the case looked at the language in Murray, the Seventh Circuit case.

[00:16:17] Speaker 02:
That case was specifically about lack of informed consent, both Goodman and Murray.

[00:16:25] Speaker 02:
But the court looked into the holding in Murray as persuasive authority, because in that case, it was a little bit different than just a regular negligent, allegations of negligence.

[00:16:38] Speaker 02:
for the injury.

[00:16:39] Speaker 02:
And there, the court held that the language in the administrative claim has to at least include or at least allude to the issue that you later claim in federal court.

[00:16:52] Speaker 02:
And I think that's useful language to apply in this case as well, that this case is the tort that he's alleging later in his federal complaint or requires some more notice than

[00:17:09] Speaker 03:
Is required any regular negligence so counsel did the interior solicitor have the who denied the claim?

[00:17:16] Speaker 03:
Did that office have the ability to seek further information from the claimant?

[00:17:23] Speaker 03:
Believe they may have I mean back in the last century when I was in a USA administrative agencies routinely asked claimants attorneys for Information if they thought it would help them resolve the case or conclude their investigation to your knowledge does that still go on and

[00:17:45] Speaker 02:
My understanding is that we do endeavor to do that, your honor, to try to resolve matters before they go to litigation.

[00:17:54] Speaker 03:
So if the solicitor had thought there were deficiencies in the form that impeded their ability to begin an investigation, they could have contacted Mr. Busby, who I believe's name was on the letter.

[00:18:10] Speaker 02:
And said we need more information in order to be able to begin our investigation and appropriately resolve this Sure, yes Alternatively I'm not sure that I have time to get into the the exceptions the discretionary function exception But the court and the district court didn't get to but to that you develop that argument in your brief we briefly

[00:18:41] Speaker 04:
Talk about the discretionary function exception in the brief your honor, but I'll rely on our briefs Thank you, thank you Thank you honors, I'll be I'll be very brief The sufficiency test is whether the injury was sufficiently described to enable the agency to conduct the investigation

[00:19:08] Speaker 04:
There's no real genuine disputed issue of fact that actually occurred here.

[00:19:14] Speaker 04:
The tortious discharge and bad faith discharge claims are part of the ambit of potential tort claims that can arise in the state of Nevada when someone alleges an injury Resulting from their termination I think basically if the court were to accept the US attorney's argument here my friend on the other side they would essentially be overruling Goodman and requiring claimants to state with specificity elements or the types of claims that they want to bring

[00:19:39] Speaker 04:
Later when they fill out a form 95 and that's just not the case in the existing law that as we see it here And to answer the court's question.

[00:19:49] Speaker 04:
We don't think the investigation would have been any difference at all There were some things that occurred that are outside of the record, but I did reach out to the attorney who was handling the claim We briefly discussed, but there was no

[00:20:03] Speaker 04:
Mentioned that he thought our claim was insufficient because it alleged a constitutional claim, but it didn't You should probably stick to what's in the record.

[00:20:12] Speaker 04:
I'm sorry I apologize um Just sticking to what's in the record We never alleged to do process violation under the United States Constitution simply that mr. Irwin was able to avail himself of tribal remedies and

[00:20:27] Speaker 04:
And was denied that and that denial itself clearly can form the basis for a bad faith tortious discharge claim.

[00:20:37] Speaker 04:
In the state of Nevada it's kind of a creature of the breach of the implied covenant of good faith and fair dealing in the state of Nevada and sometimes it takes on the nature of a tort sometimes it takes on the nature of a contract claim and if you allege.

[00:20:49] Speaker 04:
as a special relationship, it is a tort in the state of Nevada.

[00:20:53] Speaker 04:
And I think the US Attorney's Office would have known that when investigating Mr. Irwin's claims based on the facts we alleged.

[00:20:59] Speaker 04:
And with that, if the court has any further questions, I'm glad to answer them.

[00:21:02] Speaker 03:
Thank you.

[00:21:02] Speaker 03:
We thank counsel for their arguments.

[00:21:04] Speaker 03:
The case just argued is submitted.

[00:21:06] Speaker 03:
And with that, we will move to the final case on the argument calendar, the related case of Irwin versus Westbrook.