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John Doe, appellant, v. 

State of Nebraska et al., appellees.

___ N.W.2d ___

Filed October 21, 2022. No. S-21-472.

1. Tort Claims Act: Appeal and Error. Whether a complaint alleges a 

cause of action under the State Tort Claims Act, or alleges a claim which 

is precluded by an exemption under the State Tort Claims Act, presents 

a question of law.

2. Jurisdiction. Subject matter jurisdiction is a question of law. When a 

jurisdictional question does not involve a factual dispute, the issue is a 

matter of law.

3. Judgments: Appeal and Error. An appellate court reviews questions of 

law independently of the lower court’s conclusion.

4. Jurisdiction: Immunity: Appeal and Error. A state’s sovereign immunity from suit is a matter of subject matter jurisdiction that an appellate 

court cannot ignore.

5. Jurisdiction. Whether a court has subject matter jurisdiction is a threshold issue that should be resolved prior to an examination of the merits.

6. Negligence: Liability: Public Officers and Employees. A state is not 

liable to a person injured by the negligence of its employees, unless 

there is a statute or constitutional provision permitting recovery.

7. Constitutional Law: Legislature: Immunity: Waiver. Nebraska’s 

Constitution provides that “[t]he state may sue and be sued, and the 

Legislature shall provide by law in what manner and in what courts 

suits shall be brought.” But this constitutional provision is not selfexecuting, and it requires legislative action to waive the State’s sovereign immunity.

8. Jurisdiction: Legislature: Immunity: Waiver. Absent legislative action 

waiving sovereign immunity, a trial court lacks subject matter jurisdiction over an action against the State.

9. Statutes: Immunity: Waiver. A waiver of sovereign immunity is found 

only where stated by the most express language of a statute or by such 

Nebraska Supreme Court Online Library

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overwhelming implication from the text as will allow no other reasonable construction.

10. ____: ____: ____. Statutes purporting to waive the protection of sovereign immunity are to be strictly construed in favor of the sovereign and 

against waiver.

11. Tort Claims Act: Legislature: Immunity: Waiver. Through the State 

Tort Claims Act, the Legislature has waived the State’s sovereign immunity with respect to some, but not all, types of tort claims.

12. Tort Claims Act: Immunity: Waiver. The definition of “tort claim” in 

Neb. Rev. Stat. § 81-8,210(4) (Reissue 2014) fundamentally limits the 

type of tort claims that are subject to the State Tort Claims Act’s limited 

waiver of immunity.

13. Tort Claims Act: Legislature: Immunity: Waiver. Under Neb. Rev. 

Stat. § 81-8,210(4) (Reissue 2014), the Legislature has waived the 

State’s sovereign immunity for those tort claims that (1) seek money 

damages only; (2) are on account of property damage, personal injury, 

or death; (3) are caused by the negligent or wrongful act or omission of 

a state employee acting within the scope of his or her office or employment; and (4) occur under circumstances in which a private person 

would be liable to the claimant.

14. Tort Claims Act: Immunity: Waiver: Liability. Under the plain language of Neb. Rev. Stat. §§ 81-8,210(4) and 81-8,215 (Reissue 2014), 

the State Tort Claims Act’s limited waiver of sovereign immunity 

applies only to tort claims for which a private person, under like circumstances, would be liable in tort to the plaintiff.

15. Tort Claims Act: Jurisdiction: Motions to Dismiss. Plaintiffs bringing 

an action under the State Tort Claims Act must plausibly allege a “tort 

claim” as that term is defined under the act, both to survive a motion 

to dismiss for failure to state a claim and to establish subject matter 

jurisdiction.

16. Tort Claims Act: Negligence: Proof. A negligence action brought 

under the State Tort Claims Act has the same elements as a negligence 

action brought against a private individual—a plaintiff must show a 

legal duty owed by the defendant to the plaintiff, a breach of such duty, 

causation, and damages.

17. Tort Claims Act: Jurisdiction: Negligence: Liability: Proof. To establish subject matter jurisdiction under the State Tort Claims Act, a plaintiff must plausibly allege a “tort claim” as defined under the act. That 

requires, inter alia, plausibly alleging that the State, if a private person, 

would be liable to the plaintiff for the negligent or wrongful act or omission under like circumstances.
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18. Statutes: Legislature: Intent: Torts: Liability. A court may determine 

that a statute gives rise to a tort duty to act in the manner required by 

the statute where (1) the statute is enacted to protect a class of persons 

which includes the plaintiff, (2) the statute is intended to prevent the 

particular injury that has been suffered, and (3) the statute is intended 

by the Legislature to create a private liability as distinguished from one 

of a public character.

19. Statutes: Legislature: Torts: Liability: Courts. Where the Legislature 

has not by its express terms or by implication provided for civil tort 

liability for failure to comply with a statute, under principles of judicial 

restraint, it is prudent that courts not do so.

20. Statutes: Legislature: Intent: Torts: Courts. When considering 

whether a statute gives rise to a tort duty, courts should consider the 

express remedy, if any, imposed for violating the statute, and whether 

such a remedy is inconsistent with a purported legislative intention to 

create a tort duty.

21. Statutes: Torts: Liability. Neb. Rev. Stat. § 29-3523 (Cum. Supp. 

2020) does not give rise to a legal duty that would subject a private 

person to civil tort liability for failing to act in the manner prescribed by 

statute.

22. Negligence. Nebraska does not recognize a common-law duty not to 

disclose sealed criminal history information.

23. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the District Court for Lancaster County: Kevin 

R. McManaman, Judge. Affirmed.

Zachary W. Lutz-Priefert and John A. McWilliams, of Gross 

& Welch, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and James A. 

Campbell, Solicitor General, for appellees.

Kevin Ruser and Ryan P. Sullivan, of University of Nebraska 

Civil Clinical Law Program, and Deena Keilany and Alicia 

Christensen, Senior Certified Law Students, for amicus curiae 

Nebraska College of Law Civil Clinic.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.
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Stacy, J.

Relying exclusively on the State Tort Claims Act (STCA), 1

John Doe filed suit against the State of Nebraska, the Nebraska 

State Patrol (NSP), the Nebraska Department of Correctional 

Services (DCS), and DCS director Scott Frakes, alleging they 

negligently disclosed and reviewed his sealed criminal history 

record information in violation of Neb. Rev. Stat. § 29-3523 

(Cum. Supp. 2020). The district court dismissed the action on 

a number of grounds, including that Doe’s claim was barred 

by the doctrine of sovereign immunity. Doe appealed, and we 

granted the appellees’ petition to bypass the Nebraska Court 

of Appeals.

We affirm the dismissal of Doe’s tort action on sovereign 

immunity grounds, but our reasoning differs somewhat from 

that of the district court. We conclude that Doe has not alleged 

a tort claim as that term is defined in the STCA, and the State 

has therefore not waived its sovereign immunity with respect 

to Doe’s claim.

I. BACKGROUND

Because this case was dismissed at the pleading stage, the 

facts recited below are taken from the allegations of Doe’s 

complaint and the attachments thereto. Doe was convicted of 

a felony in 2000, and a few years later, he was convicted of a 

misdemeanor. Sometime thereafter, Doe applied for pardons. In 

2016, the Nebraska Board of Pardons granted his application 

and issued pardons for both convictions.

After receiving the pardons, Doe filed a motion asking the 

sentencing court to seal his criminal history record information 

pursuant to § 29-3523(5). The court granted Doe’s motion and 

sealed the criminal history record information relating to both 

of his pardoned convictions. Because Doe’s negligence claim 

is premised on alleged violations of § 29-3523, we provide 

1 Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014 & Cum. Supp. 

2020).
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a brief overview of that statute now and address the relevant 

statutory text in more detail later in our analysis.

Section 29-3523 authorizes a court to order the sealing of criminal history record information under certain 

circumstances, and it is part of the Security, Privacy, and 

Dissemination of Criminal History Information Act (Criminal 

History Act). 2 As relevant here, that act imposes certain obligations on “[c]riminal justice agenc[ies]” 3 once “[c]riminal 

history record information” 4 has been ordered sealed pursuant to § 29-3523. Ordinarily, criminal history records are considered public records. 5 But in 2019, the Legislature amended 

§ 29-3523 to provide that once a court has ordered criminal 

history records to be sealed, they “are not part of the public 

record and shall not be disseminated to persons other than 

criminal justice agencies,” 6 except in certain limited circumstances. Moreover, § 29-3523 instructs that when responding 

to a public inquiry about criminal history records which have 

been sealed, a criminal justice agency “shall respond . . . in 

the same manner as if there were no criminal history record 

information and criminal history record information shall not 

be disseminated to any person other than a criminal justice 

agency.” 7 The statute also provides that in “any application 

for employment . . . a person cannot be questioned with 

respect to any offense for which the record is sealed” 8 and 

2 See Neb. Rev. Stat. §29-3501 (Reissue 2016) (providing that Neb. Rev. 

Stat. §§ 29-209, 29-210, 29-3501 to 29-3528, and 81-1423 (Reissue 2016 

& Cum. Supp. 2020) “shall be known and may be cited as the Security, 

Privacy, and Dissemination of Criminal History Information Act”).

3 See § 29-3509.

4 See § 29-3506.

5 See § 29-3520.

6 § 29-3523(7).

7 § 29-3523(1).

8 § 29-3523(8).
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that if such an inquiry is made, the applicant may “respond 

as if the offense never occurred.” 9

1. Doe Applies for Job With DCS

In September 2019, Doe applied for a job as a caseworker 

at DCS. A question on the application form asked whether 

Doe had a criminal history, and Doe responded, “[N]o.” DCS 

interviewed Doe for the position, and thereafter, it requested 

a criminal history background check as part of the application process. According to the allegations of the complaint, 

NSP wrongfully provided DCS with criminal history record 

information that included Doe’s sealed records. Doe was subsequently advised by DCS that he was not being hired for the 

caseworker position due to his criminal history.

2. Doe Files Suit

In July 2020, Doe filed this negligence action in the district 

court for Lancaster County against the State of Nebraska, 

NSP, DCS, Frakes, and “Unknown Employees of the State 

of Nebraska.” The district court permitted Doe to file the 

complaint using a pseudonym, and he proceeds likewise on 

appeal.

The complaint alleged a single cause of action against all 

named defendants, described as “Negligent Disclosure and 

Review of Sealed Records in Violation of Neb. Rev. Stat. 

§ 29-3523.” Doe alleged that when DCS requested his criminal 

history records, it was not acting in its capacity as a criminal 

justice agency, but instead was making a public inquiry into 

Doe’s criminal history. Doe alleged that in response to this 

public inquiry, NSP “negligently disclosed” his sealed criminal history records to DCS in violation of § 29-3523. He also 

alleged that DCS’ “consideration” of his sealed records was 

negligent and a violation of § 29-3523. The complaint alleged 

that this negligence “harmed” Doe and resulted in “lost income, 

9 Id.
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and benefits, including retirement benefits which he would 

have earned had he been employed by [DCS].” The complaint 

prayed for monetary damages in an amount to be determined 

at trial, an injunction prohibiting NSP from disclosing Doe’s 

criminal history records “except where explicitly allowed by 

statute,” and “expungement” of Doe’s criminal history records 

“to prevent future harms and injustices.”

Doe did not serve the unknown defendants, and we do not 

address them further. The remaining defendants were served, 

and they responded as follows.

DCS and Frakes moved to dismiss Doe’s complaint on two 

grounds: (1) The complaint failed to state a claim upon which 

relief could be granted, and (2) the claim was barred by sovereign immunity. NSP did not join in the motion to dismiss and 

instead filed an answer. NSP’s answer expressly denied that 

it had disclosed Doe’s criminal history record information to 

DCS, and it alleged, as affirmative defenses, the same grounds 

on which the other defendants moved for dismissal.

At the hearing on the motion to dismiss, the parties presented only argument. DCS and Frakes argued that Doe’s complaint failed to state a claim because it contained no factual 

allegations showing they owed Doe a legal duty actionable 

in tort. Alternatively, they argued that even if a legal duty 

was owed, the discretionary function exemption to the STCA 

applied and barred Doe’s tort claim. In response, Doe argued 

that § 29-3523 created an actionable tort duty, and he argued 

that the discretionary function exemption did not apply to bar 

his claim because the Criminal History Act prescribed a specific course of conduct that DCS and Frakes were required to 

follow regarding his sealed records.

(a) Claims Against DCS and Frakes Dismissed

In December 2020, the district court entered an order dismissing the claims against DCS and Frakes. The court’s order 

recited various grounds for dismissal, but we recount only 

those pertaining to jurisdiction.
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In that regard, the district court determined that Doe’s 

tort claim against DCS and Frakes was essentially one for 

common-law failure to hire and was barred by the STCA’s discretionary function exemption. 10 After dismissing the claims 

against DCS and Frakes, the court, sua sponte, 11 directed the 

remaining parties to brief two additional issues bearing on 

its subject matter jurisdiction: (1) whether Doe pled a “tort 

claim” as defined under the STCA and (2) whether a violation of § 29-3523 is actionable in tort. The court held a hearing to take up these jurisdictional questions once the briefing 

was complete.

At the hearing on jurisdiction, the State and NSP argued 

the court lacked subject matter jurisdiction under the STCA 

because Doe had not alleged a “[t]ort claim” as defined in 

§ 81-8,210(4). In relevant part, that statute provides:

Tort claim means any claim against the State of Nebraska 

for money only on account of damage to or loss of property or on account of personal injury or death caused 

by the negligent or wrongful act or omission of any 

employee of the state, while acting within the scope of 

his or her office or employment, under circumstances in 

which the state, if a private person, would be liable to the 

claimant for such damage, loss, injury, or death . . . . 12

The State and NSP argued that Doe had not alleged a “tort 

claim” as defined under the STCA because (1) his claim was 

not for money only, (2) he had not alleged a personal injury, 

and (3) the alleged violation of § 29-3523 was not a claim for 

which a private person could be liable under similar circumstances. Additionally, the State and NSP argued that under 

10 See § 81-8,219(1).

11 See Moser v. State, 307 Neb. 18, 22, 948 N.W.2d 194, 199 (2020) (holding 

State’s waiver of sovereign immunity under STCA is jurisdictional matter 

that “a court may consider sua sponte”).

12 § 81-8,210(4).
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the test articulated in Claypool v. Hibberd,

 13 § 29-3523 did 

not create an actionable tort duty which could support a claim 

for negligence.

Doe disagreed. He argued the complaint sufficiently alleged 

a plausible “tort claim” under the STCA because it sought 

money damages, on account of a personal injury, caused by 

the negligent dissemination and consideration of his sealed 

criminal history records in violation of § 29-3523. Doe also 

argued that § 29-3523 created a tort duty which applies to governmental employees and private persons alike. Alternatively, 

he argued that if the court did not agree § 29-3523 created a 

tort duty, then it should find that Nebraska recognizes a general 

common-law duty prohibiting the dissemination and consideration of sealed criminal history records.

(b) Sua Sponte Dismissal for 

Lack of Jurisdiction

After considering arguments of the parties, the court entered 

an order dismissing Doe’s complaint, in its entirety, for lack of 

subject matter jurisdiction. The court recited several reasons 

why it lacked jurisdiction.

First, the court concluded that Doe had not pled a “tort 

claim” under the STCA, reasoning primarily that Doe’s complaint failed to allege a “personal injury” within the meaning of § 81-8,210(4). Additionally, the court concluded that 

the Legislature did not create a tort duty when it enacted 

§ 29-3523 of the Criminal History Act, so the alleged violation of that statute did not present a tort claim for which the 

State had waived immunity under the STCA. The court also 

rejected Doe’s assertion that Nebraska recognized a commonlaw duty prohibiting the dissemination of truthful information 

about a person’s criminal history. Lastly, the court concluded 

that to the extent Doe’s complaint sought injunctive relief 

13 Claypool v. Hibberd, 261 Neb. 818, 626 N.W.2d 539 (2001).
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and “expungement” of his criminal records, those remedies 

fell outside the STCA’s waiver of sovereign immunity. 14 The 

court thus determined it lacked subject matter jurisdiction over 

Doe’s claim under the STCA, and it dismissed the complaint in 

its entirety on that basis.

Doe filed a timely appeal, and we granted the appellees’ 

petition to bypass. After oral argument before this court, we 

requested supplemental briefing addressing whether, under 

Nebraska tort law, a private person under like circumstances 

would be liable to Doe. Supplemental briefs were received and 

considered, and we discuss the parties’ jurisdictional arguments 

later in our analysis.

II. ASSIGNMENTS OF ERROR

Doe assigns five errors which we consolidate and restate 

into two: (1) The district court erred when it determined Doe 

had not alleged a “tort claim” within the meaning of the STCA 

and thus dismissed the complaint for lack of subject matter 

jurisdiction, and (2) the district court erred when it determined 

the discretionary function exemption applied to bar Doe’s 

claim against DCS and Frakes.

In support of his first assignment of error, Doe presents several arguments. First, he asserts that § 29-3523 of the Criminal 

History Act created a tort duty to conform to the requirements 

of the act and that the district court erred in concluding otherwise. Alternatively, he argues Nebraska recognizes a commonlaw duty to not disseminate or consider sealed criminal history 

information. Next, he argues the complaint alleged a plausible 

claim for personal injury, and the district court erred in concluding otherwise. And finally, he argues the district court 

14 See Zawaideh v. Nebraska Dept. of Health & Human Servs., 285 Neb. 48, 

58, 825 N.W.2d 204, 213 (2013) (holding definition of tort claim under 

STCA is for “‘money only’” and thus “exclude[s] nonmonetary claims, 

such as actions for injunctive relief”).
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erred in concluding that the remedies of injunctive relief and 

expungement are barred by sovereign immunity.

III. STANDARD OF REVIEW

[1] Whether a complaint alleges a cause of action under the 

STCA, or alleges a claim which is precluded by an exemption 

under the SCTA, presents a question of law. 15

[2] Subject matter jurisdiction is a question of law. 16 When 

a jurisdictional question does not involve a factual dispute, the 

issue is a matter of law. 17

[3] An appellate court reviews questions of law independently of the lower court’s conclusion. 18

IV. ANALYSIS

1. Sovereign Immunity and 

Subject Matter Jurisdiction

[4,5] A state’s sovereign immunity from suit is a matter 

of subject matter jurisdiction that an appellate court cannot 

ignore. 19 Whether a court has subject matter jurisdiction is a 

threshold issue that should be resolved prior to an examination 

of the merits. 20 We therefore begin our analysis by reviewing 

familiar principles of sovereign immunity which bear on the 

court’s subject matter jurisdiction in this case.

[6-8] Nebraska has long recognized the “‘rule that a state 

is not liable to a person injured by the negligence of its 

employees, unless there is a statute or constitutional provision 

15 See, Williams v. State, 310 Neb. 588, 967 N.W.2d 677 (2021); Brown v. 

State, 305 Neb. 111, 939 N.W.2d 354 (2020). Accord Edwards v. Douglas 

County, 308 Neb. 259, 953 N.W.2d 744 (2021) (whether allegations of 

complaint set forth claims which are precluded by exemptions under 

Political Subdivisions Tort Claims Act presents question of law).

16 See id.

17 See id.

18 See id.

19 See Edwards, supra note 15.

20 Lambert v. Lincoln Public Schools, 306 Neb. 192, 945 N.W.2d 84 (2020).
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permitting recovery.’” 21 Nebraska’s Constitution provides that 

“[t]he state may sue and be sued, and the Legislature shall 

provide by law in what manner and in what courts suits 

shall be brought.” 22 But this constitutional provision is not 

self-executing, and it requires legislative action to waive the 

State’s sovereign immunity. 23 Absent legislative action waiving sovereign immunity, a trial court lacks subject matter 

jurisdiction over an action against the State. 24

[9,10] A waiver of sovereign immunity is found only where 

stated by the most express language of a statute or by such 

overwhelming implication from the text as will allow no other 

reasonable construction. 25 Nebraska courts follow the rule that 

statutes purporting to waive the protection of sovereign immunity are to be strictly construed in favor of the sovereign and 

against waiver. 26

Doe’s complaint relies exclusively on the STCA for jurisdiction in this case. He alleged no other statutory basis for jurisdiction over his tort claim, and he argued no other statutory 

basis for jurisdiction before the district court. We thus limit our 

jurisdictional analysis to the STCA.

(a) STCA’s Limited Waiver 

of Sovereign Immunity

[11] Under the plain language of the STCA, no tort claim 

“shall be maintained against the state, any state agency, or any 

employee of the state on any tort claim except to the extent, 

and only to the extent, provided by the [STCA].” 27 We have 

21 See Jill B. & Travis B. v. State, 297 Neb. 57, 66, 899 N.W.2d 241, 250 

(2017).

22 Neb. Const. art. V, § 22.

23 See Jill B. & Travis B., supra note 21.

24 Burke v. Board of Trustees, 302 Neb. 494, 924 N.W.2d 304 (2019).

25 Edwards, supra note 15.

26 Id.

27 § 81-8,209.
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recognized that through the STCA, the Legislature has waived 

the State’s sovereign immunity with respect to some, but not 

all, types of tort claims. 28

When considering whether a particular tort claim falls 

within the STCA’s limited waiver of sovereign immunity, our 

reported opinions often focus on the applicability of the statutory exemptions set out in § 81-8,219. 29 This is because when 

one of those exemptions applies, the tort claim is not one for 

which the State has consented to be sued. 30 But, as we discuss 

next, the STCA also contains another, more fundamental, limitation on the waiver of sovereign immunity for tort claims—the 

statutory definition of “tort claim.”

(i) Definition of “Tort Claim”

For purposes of the STCA, the Legislature has defined “tort 

claim” in § 81-8,210(4). We quoted the relevant portions of 

that definition earlier in this opinion, and we repeat it here for 

convenience:

Tort claim means any claim against the State of Nebraska 

for money only on account of damage to or loss of property or on account of personal injury or death caused 

by the negligent or wrongful act or omission of any 

employee of the state, while acting within the scope of 

his or her office or employment, under circumstances in 

which the state, if a private person, would be liable to the 

claimant for such damage, loss, injury, or death . . . . 31

[12,13] The STCA’s definition of “tort claim” fundamentally 

limits the type of tort claims that are subject to the STCA’s 

limited waiver of sovereign immunity. Under this statutory 

28 See, Williams, supra note 15; Moser, supra note 11; Brown, supra note 15.

29 See, e.g., Wizinsky v. State, 308 Neb. 778, 957 N.W.2d 466 (2021) (discre

tionary function exemption); Moser, supra note 11 (analyzing applicability 

of intentional tort exemption); Brown, supra note 15 (recreational activity 

exemption); Zawaideh, supra note 14 (misrepresentation exemption).

30 See Edwards, supra note 15.

31 § 81-8,210(4) (emphasis supplied).
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definition, the Legislature has waived the State’s sovereign 

immunity for those tort claims that (1) seek money damages 

only; (2) are on account of property damage, personal injury, 

or death; (3) are caused by the negligent or wrongful act or 

omission of a state employee acting within the scope of his or 

her office or employment; and (4) occur under circumstances 

in which a private person would be liable to the claimant.

On appeal, the appellees argue that the claim alleged in Doe’s 

complaint failed to satisfy any of the definitional requirements 

for a tort claim under § 81-8,210(4). But we do not address all 

of the definitional requirements; instead, we focus our analysis on the last requirement, which limits tort claims under the 

STCA to those torts occurring under circumstances “in which 

the state, if a private person, would be liable to the claimant.” 32

Similar language appears in § 81-8,215 of the STCA, which 

sets out the general waiver of sovereign immunity and provides 

that “[i]n all suits brought under the [STCA] the state shall be 

liable in the same manner and to the same extent as a private 

individual under like circumstances . . . .” Similar provisions 

appear in the Political Subdivisions Tort Claims Act. 33 As 

stated, our settled rules of statutory construction require that 

we strictly construe these waivers of sovereign immunity in 

favor of the sovereign.

The “private person” provision in § 81-8,210(4) and the 

related “private individual” provision in § 81-8,215 have been 

part of the STCA since its adoption in 1969. 34 This court long 

ago recognized that through these statutory provisions, the 

Legislature consented to tort “liability on the part of the State 

under the same circumstances under which a private person 

would be liable.” 35 Our opinions discussing the STCA routinely 

32 § 81-8,210(4).

33 See Neb. Rev. Stat. §§ 13-903(4) and 13-908 (Reissue 2012).

34 See §§ 81-8,210(4) and 81-8,215 (Cum. Supp. 1969).

35 Cortes v. State, 191 Neb. 795, 798, 218 N.W.2d 214, 216 (1974).
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recite the “private person” provisions, 36 but we have not previously addressed the jurisdictional import of such provisions on 

the STCA’s waiver of immunity. This case affords an opportunity to develop our case law on this jurisdictional issue.

In their supplemental briefing to this court, the parties agree 

that under the plain language of §§ 81-8,210(4) and 81-8,215 

(Reissue 2014), the Legislature’s waiver of the State’s sovereign immunity is limited to claims for which a private person 

under like circumstances would be liable in tort to the claimant 

under Nebraska law. Both parties point to a dearth of Nebraska 

case law addressing this aspect of the STCA, and, as a result, 

they devote considerable discussion to federal cases addressing similar “private person” provisions within the Federal Tort 

Claims Act (FTCA). 37

The FTCA provides, in relevant part, that the “United States 

shall be liable, respecting the provisions of this title relating to 

tort claims, in the same manner and to the same extent as a private individual under like circumstances . . . .” 38 Additionally, 

§ 1346(b)(1) gives the federal district courts

36 See, e.g., Davis v. State, 297 Neb. 955, 970, 902 N.W.2d 165, 181 (2017) 

(reciting both provisions and noting that “the state defendants could not 

have committed the tortious acts set out in [plaintiff’s] complaint as 

private individuals”). See, also, Moser, supra note 11, 307 Neb. at 23, 948 

N.W.2d at 199 (“[a]s pertinent here, the STCA waives the State’s sovereign 

immunity for tort claims against the State on account of personal injury 

caused by the negligent or wrongful act or omission of any employee of 

the State, while acting within the scope of his or her office or employment, 

under circumstances in which the State, if a private person, would be liable 

to the claimant for such injury”); Northland Ins. Co. v. State, 242 Neb. 

10, 14, 492 N.W.2d 866, 869 (1992) (holding “an action for contribution 

is covered under [the STCA], but only if a private person would be liable 

to the claimant for the damage, loss, injury, or death”); Blitzkie v. State, 

228 Neb. 409, 415, 422 N.W.2d 773, 777 (1988) (“[s]ubject to certain 

exempted claims, the [STCA] provides for the State’s liability for its torts 

the same as a private person may be liable for torts”).

37 See 28 U.S.C. §§ 1346(b) and 2671 to 2680 (2018).

38 § 2674.
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exclusive jurisdiction of civil actions on 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, under circumstances where the 

United States, if a private person, would be liable to the 

claimant in accordance with the law of the place where 

the act or omission occurred.”

The U.S. Supreme Court has construed these federal statutory provisions “to mean what they say, namely, that the 

United States waives sovereign immunity ‘under circumstances’ where local law would make a ‘private person’ liable 

in tort.” 39 The Supreme Court has referred to this as the 

FTCA’s “‘private person’ standard,” 40 and other federal courts 

have described it as the “private analogue” requirement of the 

FTCA. 41 Regardless of nomenclature, federal courts have consistently held that the private person requirement is jurisdictional in nature and must be satisfied for the FTCA’s limited 

waiver of sovereign immunity to apply. 42 As the U.S. Supreme 

Court succinctly stated recently in Brownback v. King,

 43 when 

bringing a claim under the FTCA, “a plaintiff must plausibly allege that ‘the United States, if a private person, would 

be liable to the claimant’ under state law both to survive [a 

39 United States v. Olson, 546 U.S. 43, 44, 126 S. Ct. 510, 163 L. Ed. 2d 306 

(2005) (emphasis in original).

40 Id., 546 U.S. at 46.

41 See, e.g., Green Acres Enterprises, Inc. v. U.S., 418 F.3d 852, 855 (8th Cir. 

2005). See, also, D.J.C.V. v. United States, No. 20 Civ. 5747, 2022 WL 

1912254 (S.D.N.Y. June 3, 2022).

42 See, e.g., Smith v. U.S., 14 F.4th 1228 (11th Cir. 2021); Gutrejman v. U.S., 

527 F. Supp. 3d 1 (D.C. 2021); In re Marjory Stoneman Douglas High 

School, 482 F. Supp. 3d 1273 (S.D. Fla. 2020); McGonagle v. U.S., 155 F. 

Supp. 3d 130 (D. Mass. 2016).

43 Brownback v. King, ___ U.S. ___, 141 S. Ct. 740, 749, 209 L. Ed. 2d 33 

(2021).
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motion to dismiss for failure to state a claim] and to establish 

subject-matter jurisdiction.”

The Nebraska Legislature patterned the STCA after the 

FTCA, 44 and the “private person” language under the STCA 

largely mirrors the private person language under the FTCA. 

Consequently, when discussing the jurisdictional impact of 

the private person requirement under the STCA, both Doe 

and the appellees argue in their supplemental briefing that the 

jurisdictional reasoning of the federal courts, as it pertains to 

the private person requirement under the FTCA, is instructive. 

We generally agree, with the caveat that the federal courts do 

not always adhere to the same rules of strict construction that 

Nebraska courts follow when considering statutes that purport 

to waive sovereign immunity. 45

[14,15] Considering the plain language of §§ 81-8,210(4) 

and 81-8,215 under our settled rule of strict construction, we 

now expressly recognize what has been the case since the 

enactment of the STCA: The STCA’s limited waiver of sovereign immunity applies only to tort claims for which a private person, under like circumstances, would be liable in tort 

to the plaintiff. This means that plaintiffs bringing an action 

under the STCA must plausibly allege a “tort claim” as that 

term is defined under the STCA, both to survive a motion to 

dismiss for failure to state a claim and to establish subject matter jurisdiction.

[16,17] To clarify, it remains true as a general principle that 

a negligence action brought under the STCA or the Political 

Subdivisions Tort Claims Act 46 has the same elements as 

a negligence action brought against a private individual—a 

44 See Jill B. & Travis B., supra note 21.

45 See, e.g., Moser, supra note 11, 307 Neb. at 29, 948 N.W.2d at 202 

(observing that U.S. Supreme Court “has not uniformly used the same 

strict construction canon with respect to waivers of sovereign immunity” 

that Nebraska follows).

46 Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012 & Cum. Supp. 2020).
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plaintiff must show a legal duty owed by the defendant to 

the plaintiff, a breach of such duty, causation, and damages. 47

However, to establish subject matter jurisdiction under the 

STCA, a plaintiff must also plausibly allege a “tort claim” as 

defined under the STCA. That requires, inter alia, plausibly 

alleging that the State, if a private person, would be liable 

to the plaintiff for the negligent or wrongful act or omission 

under like circumstances.

(ii) Has Doe Alleged Tort Claim Under STCA?

The district court concluded that it lacked subject matter 

jurisdiction over Doe’s action because he had not alleged a 

“tort claim” as defined under the STCA. On appeal, the parties 

present arguments going to each of the definitional requirements for a tort claim under § 81-8,210(4). However, because 

we conclude the “private person” definitional requirement is 

dispositive, we confine our analysis to that issue and do not 

reach the parties’ other jurisdictional arguments. 48

(b) Private Person Analogue

We turn now to the dispositive jurisdictional issue in this 

STCA appeal: whether Doe has alleged a tort claim for which 

a private person, under like circumstances, would be liable. 

In Doe’s complaint, all of the negligent or wrongful acts or 

omissions relate to the defendants’ alleged failure to comply 

with the provisions of § 29-3523. The jurisdictional question 

under the STCA, then, is whether a private person under like 

circumstances would be liable in tort for failing to comply with 

§ 29-3523.

In his supplemental briefing, Doe argues that a private person 

would be liable in tort for disseminating and considering his 

47 See, e.g., Reiber v. County of Gage, 303 Neb. 325, 928 N.W.2d 916 

(2019).

48 State v. Webb, 311 Neb. 694, 974 N.W.2d 317 (2022) (appellate court not 

obligated to engage in analysis that is not necessary to adjudicate case and 

controversy before it).
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sealed criminal history records under either of two theories. 

His primary argument is that § 29-3523 creates a tort duty 

that applies to private persons. Alternatively, he argues that 

Nebraska law recognizes a common-law duty to not disclose 

criminal history records. We address each argument below, but 

first we recite the relevant text of § 29-3523.

Section 29-3523 provides:

(1) After . . . the granting of a motion [to seal criminal 

history record information] under subsection (4), (5), or 

(6) of this section, a criminal justice agency shall respond 

to a public inquiry in the same manner as if there were 

no criminal history record information and criminal history record information shall not be disseminated to any 

person other than a criminal justice agency, except as provided in subsection (2) of this section or when the subject 

of the record:

(a) Is currently the subject of prosecution or correctional control as the result of a separate arrest;

(b) Is currently an announced candidate for or holder 

of public office;

(c) Has made a notarized request for the release of such 

record to a specific person; or

(d) Is kept unidentified, and the record is used for purposes of surveying or summarizing individual or collective law enforcement agency activity or practices, or the 

dissemination is requested consisting only of release of 

criminal history record information showing (i) dates of 

arrests, (ii) reasons for arrests, and (iii) the nature of the 

dispositions including, but not limited to, reasons for not 

prosecuting the case or cases.

(2) That part of criminal history record information 

described in subsection (7) of this section may be disseminated to individuals and agencies for the express purpose 

of research, evaluative, or statistical activities pursuant to 

an agreement with a criminal justice agency that specifically authorizes access to the information, limits the use 
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of the information to research, evaluative, or statistical 

activities, and ensures the confidentiality and security of 

the information.

. . . .

(5) Any person who has received a pardon may file a 

motion with the sentencing court for an order to seal the 

criminal history record information and any cases related 

to such charges or conviction. Upon a finding that the 

person received a pardon, the court shall grant the motion 

and issue an order as provided in subsection (7) of this 

section.

. . . .

(7) Upon acquittal or entry of an order dismissing a 

case described in subdivision (3)(c) of this section, or 

after granting a motion under subsection (4), (5), or (6) of 

this section, the court shall:

(a) Order that all records, including any information 

or other data concerning any proceedings relating to the 

case, including the arrest, taking into custody, petition, 

complaint, indictment, information, trial, hearing, adjudication, correctional supervision, dismissal, or other disposition or sentence, are not part of the public record and 

shall not be disseminated to persons other than criminal 

justice agencies, except as provided in subsection (1) or 

(2) of this section;

(b) Send notice of the order (i) to the Nebraska 

Commission on Law Enforcement and Criminal Justice, 

(ii) to the Nebraska State Patrol, and (iii) to law enforcement agencies, county attorneys, and city attorneys referenced in the court record;

(c) Order all parties notified under subdivision (7)(b) 

of this section to seal all records pertaining to the case; 

and

(d) If the case was transferred from one court to 

another, send notice of the order to seal the record to the 

transferring court.
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(8) In any application for employment, bonding, 

license, education, or other right or privilege, any appearance as a witness, or any other public inquiry, a person 

cannot be questioned with respect to any offense for 

which the record is sealed. If an inquiry is made in violation of this subsection, the person may respond as if the 

offense never occurred.

(i) Does § 29-3523 Create Tort Duty?

As stated, Doe argues that § 29-3523 of the Criminal 

History Act creates a tort duty to act in the manner required 

by the statute, and he argues that such a duty is imposed on 

governmental employees and private persons alike. The appellees argue that § 29-3523 does not create a tort duty, and in any 

event, the pertinent requirements of § 29-3523 are not directed 

at private individuals.

[18] We have not yet had occasion to consider whether 

§ 29-3523 gives rise to a tort duty. But in Claypool, we set out 

the test for determining when a statute creates such a duty:

A court may determine that a statute gives rise to a tort 

duty to act in the manner required by the statute where 

[1] the statute is enacted to protect a class of persons 

which includes the plaintiff, [2] the statute is intended to 

prevent the particular injury that has been suffered, and 

[3] the statute is intended by the Legislature to create 

a private liability as distinguished from one of a public 

character. 49

The appellees appear to concede that Doe, as someone 

whose criminal history records have been sealed as a result of 

pardons, is generally within the class of persons that § 29-3523 

was enacted to protect. But they argue that under the third 

Claypool factor, there is nothing to suggest the Legislature 

intended § 29-3523 to create private tort liability. We agree.

[19,20] We have described the third Claypool factor as 

“central to the analysis of whether the statute defines a duty in 

49 Claypool, supra note 13, 261 Neb. at 825, 626 N.W.2d at 545.
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tort,” 50 and we have explained that “where the Legislature has 

not by its express terms or by implication provided for civil 

tort liability [for failure to comply with a statute], under principles of judicial restraint, it is prudent that we not do so.” 51

Moreover, we have said that courts should consider the express 

remedy, if any, imposed for violating the statute, and whether 

such a remedy is “inconsistent with a purported legislative 

intention to create a tort duty.” 52

The legislative purpose of the Criminal History Act is stated 

in § 29-3502:

The purposes of [the Criminal History Act] are (1) to 

control and coordinate criminal offender record keeping within this state, (2) to establish more efficient and 

uniform systems of criminal offender record keeping, 

(3) to assure periodic audits of such record keeping 

in order to determine compliance with sections 29-209, 

29-210, 29-3501 to 29-3528, and 81-1423, (4) to establish a more effective administrative structure for the 

protection of individual privacy in connection with such 

record keeping, and (5) to preserve the principle of the 

public’s right to know of the official actions of criminal 

justice agencies.

It is apparent from the plain text of § 29-3502 that the purposes of the Criminal History Act are primarily administrative 

in nature; the act is aimed at ensuring uniformity, efficiency, 

accuracy, and transparency in criminal history recordkeeping. 

We see nothing in § 29-3502 which suggests the Legislature 

intended the Criminal History Act to create a tort duty to act in 

accordance with the statutory scheme.

Presumably recognizing that the legislative purpose recited 

in § 29-3502 is of little help to his argument under the Claypool

50 Stonacek v. City of Lincoln, 279 Neb. 869, 880, 782 N.W.2d 900, 909 

(2010).

51 Id.

52 Id. at 881, 782 N.W.2d at 910.
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factors, Doe asks us to focus more specifically on the provisions of § 29-3523, which govern how sealed criminal history 

records are to be handled. But the plain language of § 29-3523 

does not expressly or impliedly create private tort liability 

for failing to comply with the statutory provisions governing 

sealed criminal history records. In fact, as we discuss next, the 

Legislature has provided express statutory remedies for violations of the Criminal History Act which are inconsistent with a 

purported legislative intent to create a private tort duty.

We identify two statutes providing express remedies for 

violations of the Criminal History Act. Section 29-3527 establishes criminal liability for “[a]ny person” who commits certain 

violations of the Criminal History Act, including the knowing dissemination of “nondisclosable criminal history record 

information in violation of [the Criminal History Act].” 53

Additionally, § 29-3528 authorizes an aggrieved person to 

compel governmental actors to comply with the requirements 

of the Criminal History Act and provides:

Whenever any officer or employee of the state, its 

agencies, or its political subdivisions, or whenever any 

state agency or any political subdivision or its agencies 

fails to comply with the requirements of [the Criminal 

History Act] or of regulations lawfully adopted to implement [the Criminal History Act], any person aggrieved 

may bring an action, including but not limited to an action 

for mandamus, to compel compliance and such action 

may be brought in the district court of any district in 

which the records involved are located or in the district 

court of Lancaster County. The commission may request 

the Attorney General to bring such action.

53 See § 29-3527(1) through (3) (providing any person who permits 

unauthorized direct access to criminal history information, who knowingly 

fails to disseminate public criminal history information, or who knowingly 

disseminates “nondisclosable criminal history record information” is guilty 

of Class IV misdemeanor).
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Based on the express statutory remedies created by the 

Legislature—one which imposes criminal penalties on any 

person who violates the act, and another which authorizes 

mandamus and similar actions against governmental actors 

“to compel compliance” with the act—we cannot find that the 

Legislature intended the Criminal History Act generally, or 

§ 29-3523 specifically, to give rise to any tort duty, let alone a 

duty that would apply to a private person. 54

[21] We thus reject Doe’s argument and hold that § 29-3523 

does not give rise to a legal duty that would subject a private 

person to civil tort liability for failing to act in the manner prescribed by statute. But that does not end our analysis.

Although Doe’s complaint identifies § 29-3523 as the primary source of the alleged duty not to disclose or consider his 

sealed criminal history records, he also argues that if the statute 

does not give rise to a tort duty, then Nebraska recognizes a 

common-law duty of reasonable care not to disclose criminal history records. The district court rejected this argument, 

reasoning that Doe had provided “no authority for a common 

law duty prohibiting the dissemination of truthful information 

about a person’s criminal history” and concluding that “no 

such duty exists.”

Doe has not assigned error to this aspect of the trial court’s 

duty ruling. But in his supplemental briefing, he argues that 

Nebraska common law provides a private analogue for the 

negligence claims he alleged against the State. We consider this 

argument next, and find it lacks merit.

(ii) Would Private Person Owe Common-Law 

Duty Under Like Circumstances?

Doe argues that Nebraska law recognizes what he describes 

as a common-law “duty to act with reasonable care when in 

custody of sealed or sensitive information, the disclosure of 

54 See Smith, supra note 42, 14 F.4th at 1232 (holding FTCA “does not cover 

breaches of federal statutory or regulatory duties that do not apply to 

private parties”).
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which would have a detrimental effect on the life and livelihood of an individual.” 55 He directs us to no Nebraska case 

recognizing such a common-law duty, and we find none.

Instead, Doe refers us to a case from 1994, Merrick v 

Thomas,

 56 which he argues recognized a general commonlaw duty of reasonable care. In that case, the plaintiff sued 

the sheriff under the Political Subdivisions Tort Claims Act, 

alleging that the sheriff had a duty to score her admissions 

test accurately and fairly and that he had breached that duty. 

This court concluded the plaintiff’s complaint, liberally construed, alleged sufficient facts to establish the sheriff “owed 

her a duty to score her test with due care.” 57 In reaching this 

conclusion, the Merrick court recited the general proposition 

that “[a] common-law duty exists to use due care so as not to 

negligently injure another person.” 58 Doe relies on this statement in Merrick to argue that under Nebraska law, a private 

person owes a general common-law duty of reasonable care 

to others. But our more recent cases expressly disavow the 

suggestion that Nebraska recognizes “a general duty of reasonable care to all others at all times.” 59 Instead, since our 

2010 decision in A.W. v. Lancaster Cty. Sch. Dist. 0001,

 60

Nebraska has consistently followed the general duty framework set out in § 7 of the Restatement (Third) of Torts. 61 The 

duty principles recited in Merrick do not reflect current tort 

law in Nebraska.

55 Brief for appellant at 22. 

56 Merrick v. Thomas, 246 Neb. 658, 522 N.W.2d 402 (1994).

57 Id. at 662, 522 N.W.2d at 406.

58 Id. at 661, 522 N.W.2d at 406.

59 Bell v. Grow With Me Childcare & Preschool, 299 Neb. 136, 154, 907 

N.W.2d 705, 718 (2018).

60 A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 

(2010).

61 See Bell, supra note 59 (discussing 1 Restatement (Third) of Torts: 

Liability for Physical and Emotional Harm § 7 (2010)).
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[22] We thus reject Doe’s suggestion that Nebraska’s 

common-law recognizes a duty not to disclose sealed criminal 

history information. Indeed, if such a common-law duty did 

exist, it seems unlikely the Legislature would have amended 

the Criminal History Act in 2019 to enact laws prohibiting the 

dissemination of sealed criminal history record information 

under certain circumstances.

(iii) No Private Analogue

For the above reasons, we conclude that Doe has failed 

to establish that a private person would owe him a legal 

duty under circumstances like those alleged in his complaint. 

Without a legal duty, a private person could not be liable in 

negligence under like circumstances. Stated differently, there is 

no “private analogue” for his claim, and Doe has thus failed to 

allege a tort claim under § 81-8,210(4) for which the State has 

waived its sovereign immunity.

For the sake of completeness, however, we note that Doe’s 

appellate briefing also argues that even if there is not a private 

person analogue for his negligence claim under § 29-3523 or 

Nebraska’s common law, there are other possible tort claims, 

such as invasion of privacy or “Interference with Economic 

Expectation,” 62 for which a private person may be liable. We 

do not address these arguments, however, because Doe neither 

pled such tort claims nor alleged conduct that would plausibly 

support such tort claims. Instead, Doe’s complaint alleged a 

negligence claim premised exclusively on conduct which he 

says failed to comply with § 29-3523, and we have already 

explained why no private analogue exists for that claim.

2. Doe’s Remaining Assignments 

and Arguments

[23] Our conclusion that Doe has not alleged a tort claim 

under the STCA for which the State has waived its sovereign 

immunity makes it unnecessary to address any of his remaining assignments of error. An appellate court is not obligated 

62 Brief for appellant at 19.
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to engage in an analysis that is not necessary to adjudicate the 

case and controversy before it. 63

Similarly, we do not address Doe’s argument, raised for the 

first time in his reply brief, that even if the STCA’s limited 

waiver of sovereign immunity does not apply to his claims, 

the district court should have construed his tort action as one 

to enforce compliance with the Criminal History Act under 

§ 29-3528. Doe has not assigned this as error on appeal, 64

nor could he. His complaint relied exclusively on the STCA 

for jurisdiction over his tort claim. The complaint neither referenced § 29-3528 nor alleged it as a possible jurisdictional 

basis. The district court did not consider Doe’s unpled jurisdictional theory, and we will not consider it for the first time 

on appeal. 65

V. CONCLUSION

Because Doe has not shown that a private person would be 

liable under Nebraska law for the allegedly tortious conduct 

alleged in the complaint, the STCA’s limited waiver of sovereign immunity does not apply. The district court therefore 

correctly concluded that Doe has not alleged a “tort claim” 

under the STCA for which the State has waived its sovereign 

immunity. The district court’s dismissal of the complaint for 

lack of subject matter jurisdiction was correct and is affirmed.

Affirmed.

63 Schmid v. Simmons, 311 Neb. 48, 970 N.W.2d 735 (2022).

64 See Adair Holdings v. Johnson, 304 Neb. 720, 936 N.W.2d 517 (2020) 

(alleged error must be both assigned and argued to be addressed by 

appellate court).

65 See Wisner v. Vandelay Investments, 300 Neb. 825, 841, 916 N.W.2d 698, 

714 (2018) (“[a]n argument not presented to or decided by the trial court 

is not appropriate for consideration on appeal”).

Cassel, J., concurring.

Our dissenting colleague relies upon a “broad interpretation” 

endorsed by the U.S. Supreme Court in determining the reach 

of the private person analogue in the Federal Tort Claims Act 
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addressing liability of the national sovereign. But, as the majority opinion makes clear, Nebraska adheres to strict construction 

of waivers of sovereign immunity as to the state sovereign. 

Thus, a “broad interpretation” is inconsistent with Nebraska 

law. And because the district court’s subject matter jurisdiction 

depended upon a waiver of sovereign immunity, this court was 

not free to avoid the jurisdictional analysis. Judicial restraint 

does not permit or justify judicial abdication.

Miller-Lerman, J., concurring in part, and in part dissenting.

I respectfully concur in part, and in part dissent. I agree 

with the majority that, given the remedies in the Security, 

Privacy, and Dissemination of Criminal History Act (Act), 

Neb. Rev. Stat. §§ 29‐209, 29‐210, 29‐3501 to 29‐3538, 

81‐1423 (Reissue 2016 & Cum. Supp. 2020), the responsibilities of the Act do not create the duty element of the tort of

negligence and that therefore, Doe has failed to state a claim 

for negligence under Neb. Rev. Stat. § 81-8,210(4) (Reissue 

2014) of the State Tort Claims Act (STCA). But STCA permits 

“tort claims” in addition to the tort claim of negligence. Other 

actions which lie in tort can be brought, such as interference 

with a business expectancy, which may be applicable here 

based on the events giving rise to the complaint. Doe should 

be permitted to amend. Further, albeit recast by the majority as 

a failure of the State to waive immunity, the majority affirmed 

the district court’s order, which concluded that there was a failure of subject matter jurisdiction. Not every failing is a jurisdictional defect. I dissent from these rulings. I see the case as 

a simple matter of failure to state a claim for negligence, and 

the district court should permit Doe leave to attempt to replead 

another tort.

The alleged facts are not repeated here. In summary, Doe 

alleged that notwithstanding the fact that Doe’s criminal record 

was sealed under § 29-3523(5), and after Doe’s job interview, 

the Nebraska State Patrol improperly transmitted the records 

identified as “Sealed Info” to the Department of Correctional 

Services and its director, Scott Frakes, in connection with 
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Doe’s application for employment. Frakes acknowledged that 

the department should not have considered Doe’s sealed record 

in connection with its rejection of Doe’s job application. Doe 

alleged negligence under STCA.

According to the Act, among the objectives of sealing criminal records is “the protection of individual privacy.” See 

§ 29-3502. Following a pardon, and sealing of a person’s 

records, the aim of the Act is to keep records private and 

protect the pardoned individual from harm due to improper 

dissemination and reliance on the sealed criminal record. The 

statutory remedies for failure to abide by the Act are provided 

by §§ 29-3527 and 29-3528 and include criminal liability and 

mandamus. See State ex rel. Rhiley v. Nebraska State Patrol, 

301 Neb. 241, 917 N.W.2d 903 (2018) (stating sovereign 

immunity does not bar mandamus under § 29-3528 against 

public officer). Because the Legislature has already provided 

explicit remedies to enforce the Act, it would be inconsistent 

for the court to create a separate private cause of action for 

negligence, based on a breach of the responsibilities described 

in the Act. This conclusion is similar to this court’s analysis 

in Stonacek v. City of Lincoln, 279 Neb. 869, 782 N.W.2d 900 

(2010). By this reasoning, I concur with the majority’s conclusion that the Act does not create a duty in negligence or a cause 

of action for negligence.

At this point, the analysis of whether Doe alleged a cause 

of action for negligence under STCA is complete, and in my 

view, the majority’s analysis of the private person analogue 

and its segue into sovereign immunity are unnecessary and 

not consistent with the widespread jurisprudence in this area. 

In my view, firstly, the analysis improperly casts the issue as 

jurisdictional, and secondly, the majority misreads the federal 

jurisprudence as requiring a too exacting private equivalence 

instead of an analogue.

I see a pleading failure, but unlike the majority, I do not 

see a jurisdictional failure. There is no dispute that the district 

court has subject matter jurisdiction to entertain an STCA 
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action. Just because Doe did not allege a viable negligence 

“[t]ort claim,” see § 81-8,210(4), for the particular tort of negligence does not bar him from attempting to plead another tort 

under STCA. In my view, the defect in the complaint identified 

by the trial court and this appellate court is not incurable as a 

matter of law. As I have observed in the past, not every failing 

is jurisdictional and we should be careful with our invocation 

of the concept of jurisdiction. State v. Crawford, 291 Neb. 

362, 865 N.W.2d 360 (2015), disapproved on other grounds, 

State v. Burries, 310 Neb. 688, 969 N.W.2d 96 (2022). See 

State v. Ryan, 287 Neb. 938, 845 N.W.2d 287 (2014), disapproved on other grounds, State v. Allen, 301 Neb. 560, 919 

N.W.2d 500 (2018). See, also, Akutowicz v. U.S., 859 F.2d 

1122 (2d Cir. 1988) (holding that where plaintiff has not satisfied private analogue requirement, plaintiff has failed to state 

cause of action under Federal Tort Claims Act). But see Geico 

General Ins. Co. v. U.S., 581 F. Supp. 3d 847 (E.D. Ky. 2022) 

(stating because plaintiff failed to plead analogue facts sufficient to state plausible claim under Federal Tort Claims Act, 

court lacked jurisdiction). In my view, we should not recast an 

inartful pleading as a jurisdictional defect merely to provide a 

vehicle to dismiss. I dissent from this approach of the majority opinion.

As I have urged, discussion of the doctrine of a private 

person analogue is not necessary to the disposition of this 

case, and I would exercise judicial restraint in this regard. Just 

because the court can write about private person analogue does 

not mean it should. To the extent dicta by the majority considers the private person analogue, I disagree with the majority’s 

analysis that the analogue must be so precise.

As the majority notes, STCA is patterned after the Federal 

Tort Claims Act (hereinafter FTCA), see 28 U.S.C. § 2680(h) 

(2018), which to some extent, we follow. Compare Moser 

v. State, 307 Neb. 18, 948 N.W.2d 194 (2020). FTCA’s private person analogue is found at 28 U.S.C. § 1346 (2018). 
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Nebraska’s private person analogue is found at § 81-8,210(4), 

which provides:

Tort claim means any claim against the State of Nebraska 

for money only on account of damage to or loss of property or on account of personal injury or death caused 

by the negligent or wrongful act or omission of any 

employee of the state, while acting within the scope of 

his or her office or employment, under circumstances in 

which the state, if a private person, would be liable to the 

claimant for such damage, loss, injury, or death . . . .

In evaluating whether a private person analogue exists 

for the plaintiff’s federal tort claim, the U.S. Supreme 

Court has stated that the State is not immune from suit 

solely because it was engaged in a uniquely governmental 

function. See, United States v. Olson, 546 U.S. 43, 126 

S. Ct. 510, 163 L. Ed. 2d 306 (2005); Rayonier, Inc. v. 

United States, 352 U.S. 315, 77 S. Ct. 374, 1 L. Ed. 2d 

354 (1957); Indian Towing Co. v. United States, 350 U.S. 

61, 76 S. Ct. 122, 100 L. Ed. 48 (1955). A court applying 

the private person standard is not restricted to “narrow” 

inquiries into the same circumstances, but must look further afield. United States v. Olson, 546 U.S. at 46.

The U.S. Supreme Court declared that it “would be attributing bizarre motives to Congress . . . to hold that it was predicating liability on such a completely fortuitous circumstance—

the presence or absence of identical private activity.” Indian 

Towing Co. v. United States, 350 U.S. at 67. The U.S. Supreme 

Court found no evidence in FTCA that Congress “intended to 

draw distinctions so finespun and capricious as to be almost 

inescapable of being held in the mind for adequate formulation.” Indian Towing Co. v. United States, 350 U.S. at 68.

It has been observed that FTCA’s private person analogue 

provision, § 1346, has been given

generous development by the Supreme Court. [FTCA] 

is given a broad interpretation to effectuate the legislative aim of putting citizen and national sovereign in tort 
- 696 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

DOE V. STAT

Cite as 312 Neb. 665

claims suits on a footing of equality as between private 

parties within that state. Nice pieces of casuistry and 

hypersensitive legalisms are avoided.

Roelofs v. United States, 501 F.2d 87, 92 (5th Cir. 1974). These 

authorities illustrate why the majority has too narrowly applied 

the private person analogue and why I dissent from such narrow understanding in this and future cases.

Turning to the complaint, Doe alleged a violation of the 

responsibilities outlined in the Act by the State Patrol, Frakes, 

and the Department of Correctional Services. According to the 

allegations, Doe suffered the financial harm of being rejected 

for a job as a result of state actors’ wrongful conducts, i.e., 

by both the improper dissemination of his sealed record and 

the subsequent knowing reliance on the sealed record. I read 

the events giving rise to the complaint as potentially involving tortious interference with Doe’s business expectancy or 

another tort. See Denali Real Estate v. Denali Custom Builders, 

302 Neb. 984, 926 N.W.2d 610 (2019) (setting forth elements of interference with business relationship or expectancy). Employing the “broad interpretation” of the private 

person analogue endorsed by the federal courts, see Roelofs v. 

United States, 501 F.2d at 92, Doe has alleged a “[t]ort claim” 

on account of the “wrongful act or omission of any employee 

of the state, while acting within the scope of his or her office 

or employment, under circumstances in which the state, if a 

private person, would be liable to the claimant for such damage, loss, injury or death . . . .” § 81-8,210(4). So, although I 

think it unnecessary to engage in the private person analogue 

exercise, were I to do so, I would find that Doe had alleged 

facts which may indicate the existence of the private analogue 

tort of interference with a business expectancy and thus should 

be permitted to amend his pleading to attempt to make such 

“tort claim” more explicit.

For the foregoing reasons, I concur in part, and in part 

dissent.