                                                                              FILED
                                                                  United States Court of Appeals
                                       PUBLISH                            Tenth Circuit

                    UNITED STATES COURT OF APPEALS                        July 29, 2020
                                                                     Christopher M. Wolpert
                          FOR THE TENTH CIRCUIT                          Clerk of Court
                      _________________________________

 ALEXIS STOKES, individually and as
 guardian and next friend of Baby Boy
 D.S., a minor; TAYLOR STOKES,
 individually and as guardian and next
 friend of Baby Boy D.S., a minor,

       Plaintiffs - Appellees/Cross-
       Appellants,

 v.                                                 Nos. 19-7034 & 19-7035

 UNITED STATES OF AMERICA, ex
 rel. Indian Health Service & Chickasaw
 Nation Medical Center, an agency of the
 Chickasaw Nation,

       Defendant - Appellant/Cross-
       Appellee.
                     _________________________________

                   Appeal from the United States District Court
                      for the Eastern District of Oklahoma
                          (D.C. No. 6:17-CV-00186-JH)
                     _________________________________

Casen B. Ross, Attorney, Appellate Staff, United States Department of Justice, Civil
Division, Washington, D.C. (Robert P. Charrow, General Counsel, Brian Stimson,
Principal Deputy General Counsel for Litigation, United States Department of Health
and Human Services; Joseph H. Hunt, Assistant Attorney General, Brian J. Kuester,
United States Attorney, Susan Stidham Brandon, Assistant United States Attorney,
and Abby C. Wright, Attorney, Appellate Staff, United States Department of Justice,
Civil Division, Washington, D.C., with him on the briefs), for Defendant-Appellant.

George W. Braly of Braly, Braly, Speed & Morris, PLLC, Ada, Oklahoma (William
W. Speed and Sheila Southard of Braly, Braly, Speed & Morris, PLLC, Ada,
Oklahoma, and Lawrence R. Murphy Jr. of Smolen Law, Tulsa, Oklahoma, with him
on the briefs), for Plaintiffs-Appellees.
                         _________________________________

Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.
                 _________________________________

MORITZ, Circuit Judge.
                    _________________________________

      The district court awarded damages to Baby Boy D.S. (Baby Stokes) and his

parents, Alexis Stokes and Taylor Stokes, (collectively, the Stokes) in this Federal

Tort Claims Act (FTCA), 28 U.S.C. § 2674, action. The government appeals, arguing

that the district court erred in structuring damage payments. The Stokes cross appeal,

arguing that the district court erred both by miscalculating the present value of a

portion of the award and by awarding too little in noneconomic damages. For the

reasons explained below, we affirm in part, vacate in part, and remand.

                                      Background

      An employee of a federally supported health center failed to properly

administer a drug to Alexis Stokes while she gave birth to Baby Stokes. As a result,

Baby Stokes suffers from “cerebral palsy and spastic quadriplegia,” along with other

disabilities, and his life expectancy is 22 years. App. vol. 2, 79.

      The Stokes brought this FTCA case against the government. After a bench

trial, the district court found the government liable and ordered it to pay a total of

$15.9 million in damages, including the cost of Baby Stokes’s future care and

noneconomic damages. As relevant to this appeal, the district court (1) ordered the

government to pay the cost of Baby Stokes’s future care into a trust, granting the

                                            2
government a diminishing reversionary interest in the trust and permitting the trustee

to withdraw funds as needed to provide for Baby Stokes; (2) applied a zero-percent

discount rate in calculating the present value of the award for Baby Stokes’s future

care; and (3) awarded Baby Stokes $1,000,000 in noneconomic damages, Alexis

Stokes $500,000 in noneconomic damages, and Taylor Stokes $400,000 in

noneconomic damages. 1 The government and the Stokes both appeal.

                                        Analysis

      On appeal, the government does not challenge liability or the amount of

damages. It appeals only how the trust is structured with respect to the future-care

award. In their cross-appeal, the Stokes argue that (1) the district court applied the

wrong discount rate when calculating the present value of the future-care award and

(2) their noneconomic damages are erroneously low. 2

I.    Structure of the Trust

      The government argues that the district court erroneously structured Baby

Stokes’s future-care award by not approximating Oklahoma’s periodic-payment

statute to the fullest extent possible. The FTCA generally requires courts to hold the

      1
         The district court initially awarded each of the three Stokes $350,000 in
noneconomic damages because of a state-law statutory cap. See Okla. Stat. tit. 23,
§ 61.2(B). But shortly thereafter, the Oklahoma Supreme Court found that statutory
cap unconstitutional. Beason v. I. E. Miller Servs., Inc., 441 P.3d 1107, 1109 (Okla.
2019). At the Stokes’s request, the district court then increased the noneconomic-
damages award.
       2
         Citing the limited nature of their appeals, the parties filed an agreed
stipulation for partial summary disposition, requesting that we order that the
government pay the portion of the damages awarded in the judgment that are
uncontested on appeal. We granted that request.
                                            3
government liable for tort claims “in the same manner and to the same extent as a

private individual under like circumstances,” which includes applying relevant state

law. § 2674; see Hill v. United States, 81 F.3d 118, 120–21 (10th Cir. 1996). In

Oklahoma, private individuals ordered to pay more than $100,000 in future-care

damages can request that they pay those damages through periodic payments instead

of as a lump sum. Okla. Stat. tit. 23, § 9.3(C). 3 Those payments may not continue for

more than seven years. Id. If the recipient dies before all periodic payments are made,

the statute explains that the “obligation of the defendant [payor] to make further

payments ends.” § 9.3(H). But courts cannot neatly apply this Oklahoma law to the

      3
          As relevant here, § 9.3 provides:
      C. Upon request of a party, the court may order that future damages be paid
      in whole or in part in periodic payments rather than by a lump-sum
      payment. Periodic payments shall not exceed seven (7) years from the date
      of entry of judgment.
      D. The court shall make a specific finding of the dollar amount of periodic
      payments that will compensate the plaintiff for the future damages. The
      court shall specify in its judgment ordering the payment of future damages
      by periodic payments the:
      1. Recipient of the payments;
      2. Dollar amount of the payments;
      3. Interval between payments; and
      4. Number of payments or the period of time over which payments must be
      made.
      ...
      H. On the death of the recipient, money damages awarded for loss of future
      earnings shall continue to be paid to the estate of the recipient of the award
      without reduction. Following the satisfaction or termination of any
      obligations specified in the judgment for periodic payments, any obligation
      of the defendant health care provider to make further payments ends and
      any security given reverts to the defendant.

                                              4
federal government because they may not order the government to make periodic

payments. Hull ex. rel. Hull v. United States, 971 F.2d 1499, 1505 (10th Cir. 1992).

When facing a situation like this, courts must “approximate the result contemplated

by the” state statute. Hill, 81 F.3d at 121. And one common way to approximate

periodic-payment statues is for the government to pay future damages into an account

as a lump sum and then model disbursements from that account around the state’s

periodic-payment statute. See, e.g., Dixon v. United States, 900 F.3d 1257, 1260–61

(11th Cir. 2018) (noting that district court “granted the government’s request to make

a single payment into a trust for periodic disbursement” to approximate Florida’s

periodic-payment statute); Lee v. United States, 765 F.3d 521, 527 (5th Cir. 2014)

(vacating district court order because it “should have structured the [FTCA] damage

award in a manner resembling” Texas’s periodic-payment statute); Dutra v. United

States, 478 F.3d 1090, 1092 (9th Cir. 2007) (explaining that “FTCA authorizes courts

to craft remedies that approximate the results contemplated by state statutes, and

nothing in the FTCA prevents district courts from ordering the United States to

provide periodic payments in the form of a reversionary trust”; requiring that FTCA

award approximate Washington’s periodic-payment statute); Hill, 81 F.3d at 121

(ordering district court to create reversionary trust for FTCA award to approximate

Colorado’s periodic-payment statute).

      Here, after trial and in anticipation of a damages award, the Stokes created a

trust that (1) permitted the trustee to withdraw funds to care for Baby Stokes as

needed and (2) granted the government a 14-year fractional reversionary interest in

                                           5
the future-care award. 4 When the district court awarded damages, it approved this

trust structure with one exception: citing § 9.3, it ordered that the trust be modified to

ensure that “at the end of seven years no amount is payable to the government.” App.

vol. 2, 91.

       Citing the requirement that it be treated the same as a private individual, the

government asked the court to amend its order to more closely model the trust on

Oklahoma law. See § 2674. Specifically, the government requested that the district

court (1) order it to pay a lump sum for the amount of Baby Stokes’s future-care

award into an account, (2) order the trustee of that account to pay one-seventh of the

lump sum to Baby Stokes each year for seven years, and (3) order that in the event

Baby Stokes were to die before all payments were made, the remaining funds from

the lump sum would revert to the government. The district court declined to modify

the trust structure, stating that it “fashioned a remedy [that] approximated the result

contemplated by state law but complied with federal law. Strict adherence to state

law is not mandated.” App. vol. 2, 153.

       On appeal, the government argues that the district court erred by not

“approximat[ing] the result contemplated by” § 9.3 as required by the FTCA. Hill, 81

F.3d at 121; see also § 2674. The parties agree that the district court failed to

       4
         Specifically, the trust provided that, in the event of Baby Stokes’s premature
death, the government would recover a portion of the future-care award. The trust
agreement reduced the amount the government would recover by one-seventh every
two years such that after fourteen years, the government would not recover any of the
future-care award if Baby Stokes were to die prematurely.
                                            6
approximate all of § 9.3’s provisions. 5 But they disagree on whether the district court

was required to do so. Because we must hold the government liable for tort claims

“in the same manner and to the same extent as a private individual under like

circumstances,” § 2674, we first consider how the statute would apply to a private

party. Next, we determine whether the district court fully approximated that result for

the government. In doing so, we interpret § 9.3 de novo. 6 See Burlington N. & Santa

Fe Ry. Co. v. Grant, 505 F.3d 1013, 1024 (10th Cir. 2007); Dixon, 900 F.3d at 1261

(reviewing de novo whether the district court erred in applying Florida’s periodic-

payment statute); Vanhoy v. United States, 514 F.3d 447, 451 (5th Cir. 2008) (noting

that “[t]he question whether [Louisiana’s Medical Malpractice Act] requires the

district court to provide protection to the government in the form of a reversionary

       5
         The government asserts that the district court failed to approximate
(1) § 9.3(C) and (D) when it permitted the trustee to withdraw funds from Baby
Stokes’s future-care award on an as-needed basis, as opposed to structuring
withdrawals as set periodic payments, and (2) § 9.3(H) when it granted the
government a diminishing fractional reversionary interest, as opposed to granting the
government a full reversionary interest in the amount of the future-care award that a
private party would not have yet paid if Baby Stokes were to die prematurely. The
Stokes do not argue that that district court fully approximated § 9.3(C), (D), or (H).
       6
         The Stokes argue that we should review the trust’s structure for abuse of
discretion. It is true that in Hull we reviewed the district “court’s decision as to the
structure of the [FTCA] award . . . only for an abuse of discretion.” Hull, 971 F.2d at
1506. But there was no state statute at issue in Hull, so our review did not involve
statutory interpretation. Moreover, in Dixon, which the Stokes rely on for this point,
the Eleventh Circuit interpreted Florida’s periodic-payment statute de novo. Dixon,
900 F.3d at 1261. Only after determining—under de novo review—that Florida’s
statute “leaves the trial court free to exercise its discretion in fashioning the periodic-
payment schedule” did the Dixon court review the periodic-payment schedule for
abuse of discretion. Id. at 1269. Thus, Dixon does not support the Stokes’s argument
and instead provides further support for reviewing this issue de novo.
                                             7
trust” is one of legal interpretation; reviewing “district court’s ruling de novo”). And

because we are interpreting an Oklahoma statute, we use Oklahoma’s “rules of

statutory construction.” Ward v. Utah, 398 F.3d 1239, 1248 (10th Cir. 2005). So we

will not look beyond the statute’s text if “the language of the statute is plain and

unambiguous.” Antini v. Antini, 440 P.3d 57, 60 (Okla. 2019).

      A.     Application of § 9.3 to a Private Party

      Turning to the text of § 9.3, the statute provides that “[u]pon request of a

party, the court may order that future damages be paid . . . in periodic payments.”

§ 9.3(C) (emphasis added). As the Stokes argue, because § 9.3 permits a private party

to request periodic payments, it gives the district court discretion whether to grant

that request. See Okla. Pub. Emps. Ass’n v. State ex rel. Okla. Office of Pers. Mgmt.,

267 P.3d 838, 845 n.18 (Okla. 2011) (“The term ‘may’ is ordinarily construed as

permissive . . . .”). Focusing on the word “may,” the Stokes then argue that none of

§ 9.3 is mandatory because it “uses the word ‘may’ rather than ‘shall,’ thus defining

the discretionary nature of implementing (or not) the statute.” Aplee. Br. 16 (quoting

§ 9.3). But the Stokes’s argument ignores the remainder of the statute, which

repeatedly uses the term “shall” in describing the court’s responsibilities. For

example, it states that “[p]eriodic payments shall not exceed [seven] years” and that

the “court shall specify . . . [the r]ecipient of the payments,” the “[d]ollar amount of

the payments,” the “[i]nterval between payments,” and the “[n]umber of payments or

the period of time over which payments must be made.” § 9.3(C)–(D) (emphases

added). The statute’s use of “shall” in these provisions indicates that once a court

                                            8
grants a private party’s request to apply the statute, it must apply these provisions

when structuring payments. See Keating v. Edmondson, 37 P.3d 882, 888 (Okla.

2001) (explaining that “shall” “signifies a mandatory directive or command”). As the

government notes, under § 9.3, “a private party would never be required to make

periodic payments for future life-care expenses on anything other than a fixed

schedule . . . . Rather, a private party would either make a lump-sum payment or be

ordered to make periodic payments on a specific schedule set by the court.” Aplt. Br.

25.

      We agree and conclude that, as applied to a private party, § 9.3 permits the

district court discretion to grant or deny a party’s request to apply the statute. But,

once a court grants that request, the statute’s provisions become mandatory.

      B. Approximation of the Result of § 9.3

      Having considered and determined how § 9.3(C) would apply to a private

party, we must now decide whether the district court fully “approximate[d] the result

contemplated by” § 9.3 as required by the FTCA. Hill, 81 F.3d at 121; see also

§ 2674. As such, we must first determine whether the district court granted the

government’s request to apply the statute. If it did, we must then determine whether

the district court fully approximated § 9.3.

       The Stokes argue that the district court declined to apply § 9.3 because it

“explicitly declined to order periodic payments.” Aplee. Br. 23. Specifically, the

Stokes point to the district court’s order denying the “establishment of a specific

payment schedule.” App. vol. 2, 154. But, in its initial order awarding damages—and

                                            9
in response to the government’s request to structure the trust according to § 9.3—the

district court noted that it structured the trust “based on Oklahoma’s statute” and, in

doing so, cited to § 9.3. App. vol. 2, 90. Moreover, a later order modifying the

damages award stated that “the court fashioned a remedy [that] approximated the

result contemplated by state law but complied with federal law. Strict adherence to

state law is not mandated.” App. vol. 2, 153. Thus, the district court clearly did not

reject application of § 9.3 in the first instance. Rather, the district court’s deviation

from § 9.3 appears to stem from a failure to understand its duty to fully approximate

the result contemplated by the statute, as required by the FTCA. Accordingly, we

conclude that the district court granted the government’s request to apply § 9.3.

Because, as explained above, this decision renders the remainder of § 9.3 mandatory

as applied to a private party, we now must determine whether the district court

approximated that result for the government. Hill, 81 F.3d at 121.

       Here, the district court approved a trust that (1) permitted the trustee to

withdraw funds to care for Baby Stokes as needed and (2) granted the government a

seven-year fractional reversionary interest in the future-care award. The government

argues that this structure did not adequately approximate § 9.3. As described above,

courts often approximate periodic-payment statues by ordering the government to pay

future damages into an account as a lump sum and then modeling disbursements from

that account around the state’s periodic-payment statute. See, e.g., Hill, 81 F.3d at

121 (ordering district court to create reversionary trust for FTCA award to

approximate Colorado’s periodic-payment statute). And, citing cases where other

                                            10
courts approximated periodic-payment statutes, the government asserts that the

district court should have approximated § 9.3 by doing just that. See, e.g., Askew v.

United States, 786 F.3d 1091, 1093 (8th Cir. 2015) (“[T]o best approximate the

results contemplated by the Missouri statutes, the district court should have specified

[the tort victim’s] future medical damages, created a reversionary trust to hold those

funds, and ordered periodic payments of future medical damages from the trust, with

the corpus of the trust to revert to the United States upon [victim’s] death.”); Lee,

765 F.3d at 527 (“Although the district court could not impose a continuing

obligation on the government, it should have structured the damage award in a

manner resembling the periodic[-]payment scheme.”). Thus, the government

concludes, the district court did not “approximate the result contemplated by” § 9.3

as required by the FTCA. Hill, 81 F.3d at 121; see also § 2674.

       The Stokes argue that the district court was not required to approximate § 9.3

by creating a reversionary trust. In doing so, they first assert that the discretionary

nature of § 9.3 makes it “fundamentally different” from the statutes at issue in the

FTCA cases the government cites. Aplee. Br. 18. In those cases, courts generally

either approved of or ordered the district court to create trust structures similar to

what the government requests here. See, e.g., Askew, 786 F.3d at 1093; Lee, 765 F.3d

at 527. But, as the Stokes point out, those cases involved periodic-payment statutes

that require a court to order periodic payments once a party has requested them,

whereas § 9.3 allows a court to deny a party’s request. Compare, e.g., Hill, 81 F.3d at

120–21 (applying Colorado’s periodic-payment statute, Colo. Rev. Stat. § 13-64-203,

                                            11
which mandates periodic payments in certain circumstances), with § 9.3(C)

(explaining that “the court may order that future damages be paid . . . in periodic

payments”). Contrary to the Stokes’s argument, however, this distinction does not

make § 9.3 “fundamentally different” from the statutes at issue in the government’s

cases. Aplee. Br. 18. As explained above, § 9.3’s provisions became mandatory once

the district court granted the government’s request to apply the statute. And because

§ 9.3’s provisions are mandatory here, the government’s cases are both relevant and

support its contention that the district court should have more fully approximated

§ 9.3.

         The Stokes next explain that the government is not actually requesting

application of all of § 9.3 because the government does not argue that the district

court should have better approximated § 9.3(J), a provision which requires periodic

payments to include postjudgment interest. And therefore, they maintain, the

government’s argument that the district court failed to fully approximate § 9.3 is

internally inconsistent. But the Stokes do not explain how the district court could

have better approximated § 9.3(J). 7 And even assuming that the government’s

argument is internally inconsistent, the Stokes do not demonstrate how such

inconsistency impacts how a court should approximate § 9.3. Thus, the Stokes’s

§ 9.3(J) argument does not alter our analysis.

         7
         In this section of their brief, the Stokes assert that the government’s proposed
trust structure would deprive them of earning postjudgment interest, but nothing in
§ 9.3 limits the Stokes’s ability to invest the lump-sum payment, and the government
never suggests otherwise.
                                           12
      Finally, the Stokes argue that Hull and Hill require courts to find that any

reversionary interest be in the best interests of the tort victim and that granting the

government a full reversionary interest here is not in the best interest of Baby Stokes.

Therefore, the Stokes conclude, the district court did not err by failing to fully

approximate § 9.3. But the FTCA says nothing about the best interests of the victim,

and Hull and Hill do not suggest otherwise. True, Hull acknowledged that district

courts may structure FTCA awards according to the best interests of the tort victim.

Hull, 971 F.2d at 1505. But, as discussed above, see supra note 6, Hull did not

involve a state statute. Thus, in Hull, the fact that future-care awards may be

structured in the victim’s best interest was not displaced by state law, like it is here.

       Hill similarly does not indicate that the victim’s best interests supersedes the

FTCA’s requirement to approximate state statutes. True, in Hill, we considered the

victim’s best interests in declining to exercise our inherent authority to order the

district court to grant the government a reversionary interest in the victim’s future-

earnings award. Hill, 81 F.3d at 121. But the state periodic-payment statute at issue

in Hill did not permit reversion of future-earnings awards, so there was no conflict

between our decision and the FTCA’s requirement to approximate state statutes. Id.

Thus, like Hull, Hill does not give courts permission to deviate from the FTCA’s

approximation requirement, even if doing so is in the best interests of the victim.

Accordingly, we decline to deviate from this requirement here.

       Based on § 9.3’s plain language, we conclude that if a court applies § 9.3 to a

private party then it must apply all of § 9.3’s requirements. See Antini, 440 P.3d at

                                            13
60. And that conclusion, in this case, means the court must approximate that result

for the government. Hill, 81 F.3d at 121. But, as noted above, the district court did

not fully approximate § 9.3. Instead, although it granted the government’s request to

apply the statute, it did not establish a specific payment schedule, as contemplated by

§ 9.3(C) and (D). Nor did it provide the government, in the event of Baby Stokes’

premature death, a full reversionary interest in any portion of the future-care award

that a private party making periodic payments would not yet have made, as

contemplated by § 9.3(H). Thus, the district court erred by not approximating the

result contemplated by the statute. See Hill, 81 F.3d at 121.

                                         ***

      We therefore vacate the portion of the district court’s order approving the

trust’s structure with respect to the future-care award and remand with instructions to

approximate § 9.3 to the fullest extent possible. Such approximation should specify

the “[r]ecipient of the payments,” the “[d]ollar amount of the payments,” the

“[i]nterval between payments,” and the “[n]umber of payments or the period of time

over which payments must be made.” § 9.3(D). In structuring these payments, the

district court should make “a specific finding of the dollar amount of periodic

payments that will compensate” Baby Stokes for his future care. Id. In addition, the

structure should provide that in the event of Baby Stokes’s premature death, the

government will receive a full reversionary interest in any portion of the future-care

award that a private party making periodic payments would not yet have made, as

contemplated by § 9.3(H).

                                          14
II.    Discount Rate

       In their cross appeal, the Stokes argue that the district court erred when it

calculated the present value of Baby Stokes’s future-care award. When a court

awards damages to compensate for losses that will be suffered in the future, the court

must reduce the award to present value “to account for the effects of investment” and

“the effects of inflation.” Hull, 971 F.2d at 1510. The parties agree that the proper

way to calculate present value is to apply a discount rate, which is the interest rate

minus the inflation rate. But the Stokes argue that the district court (1) committed

legal error by determining that the discount-rate rule from Jones & Laughlin Steel

Corp. v. Pfeifer, 462 U.S. 523 (1983), did not apply to FTCA cases and

(2) committed factual error by relying on an interest rate that is not currently

available.

       Here, the district court applied a zero-percent discount rate. In doing so, it did

not state which interest rate or inflation rate it used, nor did it clearly state the rule it

used for determining a discount rate. Instead, the district court stated that it “t[ook]

into account the current inflation rate of medical costs, current interest rates, and the

disparity between the experts’ opinions,” and then it concluded “that a net discount

rate of [zero] percent is appropriate.” App. vol. 2, 88. But the district court did

explicitly state that Pfeifer does not apply because that case “was not an action

brought under the FTCA.” Id. at 88 n.38.

       On appeal, the Stokes first argue that the district court erred by determining

that Pfeifer does not apply to FTCA cases. Because this is a legal issue, we review it

                                             15
de novo. 8 See El Encanto, Inc., 825 F.3d at 1162 (noting that courts “decide the

presence or absence of legal error de novo”).

      In Pfeifer, the Supreme Court stated that, when calculating present value of

future awards, the discount rate should reflect the rate of interest that would be

“earned on ‘the best and safest investments’” that are “available” and should also

“represent the after-tax rate of return.” Pfeifer, 462 U.S. at 537–38 (quoting

Chesapeake & Ohio Ry. Co. v. Kelly, 241 U.S. 485, 491 (1916)). As noted above, the

district court concluded that Pfeifer did not apply here because Pfeifer was not an

FTCA case. But, as the Stokes explain, we have previously applied Pfeifer in an

FTCA case. 9 See Hull, 971 F.2d at 1511 (citing Pfeifer when determining discount

rate in FTCA case); cf. Trevino v. United States, 804 F.2d 1512, 1519 (9th Cir. 1986)

(noting that Pfeifer’s “discussion of discount rates technically is only an

interpretation of . . . the Longshoremen’s and Harbor Workers’ Compensation Act”

and thus “is not binding in an FTCA case” but that “the Court’s guidance on the issue

of economic predictions and discount rates [in Pfeifer] cannot be disregarded”). And

      8
          The government argues for a clearly erroneous standard, asserting that the
appropriate interest rate is a question of fact. See Hull, 971 F.2d 1512 (“We review the
district court’s choice of a discount rate under a clearly erroneous standard.”). But
this argument assumes we are reviewing the district court’s choice of a zero-percent
discount rate for factual error. Instead, we are reviewing the district court’s method of
selecting a discount rate for “the presence or absence of legal error” and thus apply de
novo review. El Encanto, Inc, v. Hatch Chile Co., Inc., 825 F.3d 1161, 1162 (10th
Cir. 2016).
        9
          The district court also implied that Pfeifer requires courts to use the
“Treasury Bill rate” when calculating interest rates. App. vol. 2, 88 n.38. But Pfeifer
makes no mention of which investment vehicle is appropriate, as long as that vehicle
is a safe investment. See Pfeifer, 462 U.S. at 537–38.
                                           16
the government does not argue that Pfeifer is inapplicable here—indeed, it cites

favorably to Pfeifer in its briefing on appeal. Given our reliance on Pfeifer in Hull,

we conclude that Pfeifer applies to FTCA cases and that the district court committed

legal error in determining otherwise.

       We thus vacate the portion of the district court’s order calculating the present

value of Baby Stokes’s future-care award 10 and remand with instructions to apply

Pfeifer in determining the discount rate. But we express no opinion on whether a

zero-percent discount rate itself is incorrect. Although the Stokes argue that, contrary

to Pfeifer, this zero-percent discount rate is based on an interest rate that is not

currently available, the district court did not state which interest or inflation rates it

used. Because the district court did not state the basis for its chosen discount rate, we

cannot determine whether this rate is an error. See Hull, 971 F.2d at 1511 (“[W]e

remand for the district court to make appropriate findings of fact explaining its

method of calculating present value for all awards for future damages . . . .”).

III.   Noneconomic Damages

       The Stokes argue that the district court’s noneconomic-damages award was too

low. As noted above, the district court ultimately awarded Baby Stokes $1,000,000 in

noneconomic damages, Alexis Stokes $500,000 in noneconomic damages, and Taylor

Stokes $400,000 in noneconomic damages. We “review the award of noneconomic

       10
         In addition to the future-care award, the district court reduced both Baby
Stokes’s and Alexis Stokes’s lost-future-income awards to present value. But neither
party contests these other calculations on appeal, and thus we do not vacate the
portion of the order reducing these awards to present value.
                                             17
damages for clear error, to determine whether ‘the award shocks the judicial

conscience.’” Deasy v. United States, 99 F.3d 354, 360 (10th Cir. 1996) (quoting

Miller v. United States ex rel. Dep’t of the Army, 901 F.2d 894, 897 (10th Cir.1990)).

This standard is difficult to meet as “[t]rial courts are vested with broad discretion in

awarding damages, and [we] do not lightly engage in a review of a trial court’s

actions.” Dolenz v. United States, 443 F.3d 1320, 1321 (10th Cir. 2006) (quoting

Hoskie v. United States, 666 F.2d 1353, 1354 (10th Cir. 1981)).

       The Stokes argue that the amounts of their noneconomic damages are so low

that they shock the judicial conscience because (1) they are substantially lower than

awards in factually similar cases and (2) Baby Stokes’s injuries are so severe. The

Stokes first identify other cases that they assert are factually similar, noting that the

noneconomic damages awarded to children in those similar cases average about $9.3

million and range from about $7.6 million to $11 million. In response, the

government asserts that it is inappropriate under both Tenth Circuit and Oklahoma

law to compare awards in factually similar cases when determining whether the

award shocks the conscience. But caselaw from both our circuit and the Oklahoma

Supreme Court suggest otherwise. See Hill v. J.B. Hunt Transp., Inc., 815 F.3d 651,

670–71 (10th Cir. 2016) (noting that although “[b]oth this court and Oklahoma courts

discourage comparisons to awards from other cases, . . . [w]e have made exceptions

where a previous case is similar enough to serve as a meaningful benchmark”); Okla.

Ry. Co. v. Strong, 226 P.2d 950, 952 (Okla. 1951) (noting that when reviewing

                                            18
damages, “[appellate] courts may . . . consider the amount of verdicts rendered in

similar cases”).

      However, we need not resolve this dispute here because even considering the

difference between the amounts awarded in the cases the Stokes urge us to consider

and the amounts awarded here, the Stokes’s noneconomic damage awards do not

shock the judicial conscience. This is true even taking into consideration the extent of

Baby Stokes’s injuries, as the Stokes also urge us to do. Although not necessarily an

award we would endorse on de novo review, the district court has wide discretion in

determining noneconomic damages. See Dolenz, 443 F.3d at 1321. And the Stokes do

not meet their high burden of demonstrating that the district court erred in exercising

that discretion here. We therefore affirm the portion of the district court’s order

regarding noneconomic damages.

                                      Conclusion

      For the reasons stated above, we (1) vacate and remand the portion of the

district court’s order structuring the trust with respect to Baby Stokes’s future-care

award, with instructions to fully approximate § 9.3; (2) vacate and remand the

portion of the district court’s order calculating the present value of Baby Stokes’s

future-care award, with instructions to apply Pfeifer; and (3) affirm the portion of the

district court’s order regarding noneconomic damages.

                                           19
19-7034, 19-7035, Stokes, et al. v. United States of America, ex rel. Indian Health Service
                  & Chickasaw Nation Medical Center

McHUGH, Circuit Judge, concurring:

       I join in much of the majority’s thoughtful analysis and in its conclusion that the

district court’s judgment should be vacated and the case remanded. I write separately,

however, to explain where my analysis differs.

       First, with respect to the structure of the Stokes’s life care trust: Rather than order

the district court to modify the trust so that it complies to the extent possible with the

requirements of Oklahoma’s periodic payment statute, I would leave the district court

free to clarify on remand whether it intended to apply that statute. In my view, the record

is not clear in that regard.

       Second, with respect to the discount rate applicable to the Stokes’s damage award:

Rather than leave the district court free to again apply a zero percent discount rate, I

would find that its use of a zero percent discount rate for Baby Stokes’s life care costs

was clear error.

       I agree with the panel majority’s discussion of noneconomic damages and join that

portion of the opinion in full.

                          I.      STRUCTURE OF THE TRUST

       I agree with the panel majority that if the district court had ordered periodic

distributions from the life care trust pursuant to Okla. Stat. Ann. tit. 23, § 9.3, the district

court would then be required to approximate the result that would obtain against a private

party under all that statute’s provisions. But I cannot agree that the district court “granted
the government’s request to apply § 9.3.” Maj. Op. at 11. The district court did not order

periodic trust distributions. And the district court’s treatment of Oklahoma law in its

various orders is, at best, ambiguous. Accordingly, I would remand so that the district

court has an opportunity to clarify its intentions.

       Consider the structure of Oklahoma’s periodic payments statute. Okla. Stat. Ann.

tit. 23, § 9.3 provides that, “[u]pon request of a party, the court may order that future

damages be paid in whole or in part in periodic payments rather than by a lump-sum

payment.” Id. § 9.3(C) (emphasis added). If a court does order periodic payments, it must

“specify in its judgment . . . the: 1. Recipient of the payments; 2. Dollar amount of the

payments; 3. Interval between payments; and 4. Number of payments or the period of

time over which payments must be made.” Id. § 9.3(D). But, in any event, “[p]eriodic

payments shall not exceed seven (7) years from the date of entry of judgment.” Id.

§ 9.3(C).

       Section 9.3 also imposes several conditions to guarantee that a defendant makes

court-ordered periodic payments:

       As a condition to authorizing periodic payments of future damages, the
       court shall require a defendant who is not adequately insured to provide
       evidence of financial responsibility in an amount adequate to assure full
       payment of damages awarded by the judgment. The judgment shall
       provide for payments to be funded by:

              1. An annuity contract issued by a company licensed to do
              business as an insurance company, including an assignment
              within the meaning of Section 130, Internal Revenue Code of
              1986, as amended;

              2. An obligation of the United States;

                                              2
              3. Applicable and collectible liability insurance from one or more
              qualified insurers; or

              4. Any other satisfactory form of funding approved by the court.

       On termination of periodic payments of future damages, the court shall
       order the return of the security, or as much as remains, to the defendant.

Id. § 9.3(F)-(G).

       When the recipient of periodic payments dies, “damages awarded for loss of future

earnings shall continue to be paid to the estate of the recipient of the award without

reduction.” Id. § 9.3(H). By contrast, “[f]ollowing the satisfaction or termination of any

obligations specified in the judgment for periodic payments, any obligation of the

defendant health care provider to make further payments ends and any security given

reverts to the defendant.” Id.

       There are three reasons we should be skeptical the district court intended to adopt

all, or even most, of § 9.3. First, under our decision in Hull v. United States, 971 F.2d

1499 (10th Cir. 1992), a court may not order the United States to make periodic

payments. See id. at 1505. Strict compliance with § 9.3 is therefore impossible in FTCA

actions. The United States concedes as much. But that concession also defeats the United

States’ argument that the district court “opted-in” to § 9.3 by limiting the partial

reversionary interest to seven years. The district court did not “opt-in” to § 9.3; it could

not do so because it had no power to order periodic payments.

       Second, § 9.3—by its plain terms—never requires periodic payments. It states that

a court “may order that future damages be paid in whole or in part in periodic payments.”

Id. § 9.3(C) (emphasis added). Because a similarly situated Oklahoma court would not be

                                              3
required to order periodic payments in a non-FTCA case analogous to this one, the

district court was not required to do so here.

       Third, it would be anomalous for the district court to impose all the various

requirements of § 9.3 on this life care trust. For example, § 9.3(F) requires that periodic

payments be funded by one of four means, including “[a]n obligation of the United

States.” Id. § 9.3(F)(2). The United States does not argue that it should be required to

make a lump sum payment to the life care trust using Treasury bills or some other

government-backed instrument. But that is the logical endpoint of its all-encompassing

position that the FTCA requires the district court’s judgment to approximate Oklahoma

law in every possible respect.

       To be sure, the district court determined that it would order the life care trust to

make payments within seven years “based on Oklahoma’s statute.” App., Vol. II at 90. In

addition, the district court stated that it was doing so “on the basis of the statute rather

than plaintiffs’ consent.” App., Vol. II at 91 n.41. And, the district court later described

its prior order as “fashion[ing] a remedy which approximated the result contemplated by

state law.” App., Vol. II at 153. But the district court was permitted to draw inspiration

from Oklahoma’s periodic payment statute without adopting it wholesale. Indeed, how

could it be otherwise when § 9.3(C) states that periodic payments “shall not exceed seven

(7) years” but says nothing about the duration of reversionary interests.

       The panel majority sees clarity in the district court’s confusing and scattered

references to § 9.3 because it proceeds as if the district court were faced with a binary

choice between applying some of § 9.3 or none of it. See Maj. Op. at 11 (referring to the

                                                 4
district court’s “duty to fully approximate the result contemplated by the statute”). But if

§ 9.3 does not apply to this life care trust, then the district court possessed “inherent

authority” to structure the trust in an alternative way that furthered Baby Stokes’s

interests. 1 Hull, 971 F.2d at 1505.

       Because the district court did not order periodic trust distributions, we should not

assume that it intended to apply § 9.3. Instead, we should vacate and remand so the

district court can clarify its intentions. On remand, the district court should be free (1) to

order periodic trust distributions based on § 9.3 or (2) to explain that it elects not to

approximate the statutory scheme and to instead show how its alternative arrangement

advances Baby Stokes’s interests.

                              II.        THE DISCOUNT RATE

       I agree with the panel majority that the district court misstated the law when it

calculated the applicable discount rate, but I would go further and also hold that—on this

record—the district court committed clear error in assessing a zero percent discount rate

applicable to the damage award for Baby Stokes’s future care.

                                    A.     Legal Framework

       I agree with the panel majority that the district court was wrong to disregard Jones

& Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983), when calculating the applicable

       1
          Unlike the majority, I do not view Oklahoma’s statute as a rejection of the “best
interests” test. Instead, I see it as the Oklahoma Legislature’s attempt to codify a one-
size-fits-all procedure to protect the best interests of judgment beneficiaries, while
allowing the court to opt out of that procedure if the best interests of the particular
beneficiary would be better served outside that framework.
                                               5
discount rate. In Jones & Laughlin, the Supreme Court discounted a lump sum damages

award “based on the rate of interest that would be earned on ‘the best and safest

investments’” because an injured plaintiff “is entitled to a risk-free stream of future

income to replace his lost wages.” Id. at 537 (quoting Chesapeake & Ohio Ry. Co. v.

Kelly, 241 U.S. 485, 491 (1916)). The rate should therefore “not reflect the market’s

premium for investors who are willing to accept some risk of default.” Id.

       In Hull, we applied Jones & Laughlin to an FTCA damages award for injuries to a

child. “In calculating damages,” we explained,

       the trier of fact should discount awards for future damages to present
       value to account for the effects of investment, but the effects of inflation
       should also be considered, and, with regard to wages, other factors may
       need to be considered that may reasonably lead to a projection of
       increased wages over time.

971 F.2d at 1510–11.

       Hull cited favorably to our pre-Jones & Laughlin decision in Hoskie v. United

States, 666 F.2d 1353 (10th Cir. 1981). See 971 F.2d at 1511. There, we explained that

the object of discounting a damages award is to identify “an amount of money that can be

invested in a reasonably safe long-term investment available to the average person.”

Hoskie, 666 F.2d at 1355. Applying that rule, we held it was not clear error for a district

court to adopt a “9.5 percent discount rate . . . based on the current yield of triple A-rated

corporate bonds” when calculating the net present value of an FTCA damage award for

lost future earnings. Id. at 1355 (emphasis added).

       Together, these cases teach that the first step in calculating an appropriate discount

rate is to identify the best and safest investment available to the plaintiff. After the district

                                               6
court identifies such an investment, the second step is to identify the rate of return that

can be earned on that investment. The third step is to subtract the resulting rate of return

from the projected rate of inflation (whether for wages, healthcare, general expenses, or

any other relevant bundle of goods and services).

       I offer two additional observations to assist the district court on remand. First, I

disagree with the United States’ contention that municipal bonds are categorically a safe

and available investment. Appellant Resp. at 26 (citing Chesapeake & Ohio Ry. Co., 241

U.S. at 490). Courts must make specific findings about the current availability of a safe

investment or safe set of investments. Cf. Hoskie, 666 F.2d at 1355 (referring to “the

current yield of triple A-rated corporate bonds” (emphasis added)).

       I therefore also disagree with the plaintiffs’ contention that “the only risk free and

available investment vehicle” is a portfolio of Treasury bills. Appellee Resp. at 34. In

fact, the testimony at trial indicated otherwise. For example, on cross-examination, the

defense expert agreed that certain high-grade municipal bonds are “representative of a

highly secure investment.” App., Vol. V at 181.

       Second, I note that historical rates of return are one tool that can help a district

court estimate future returns but are not an end unto themselves. “We cannot deny

history, nor can history provide an always reliable basis for predicting the future.”

Trevino v. United States, 804 F.2d 1512, 1518 (9th Cir. 1986). In this field of “rough

approximation,” Jones & Laughlin, 462 U.S. at 546, expert testimony on the usefulness

of historical data deserves careful consideration. E.g., App., Vol. IV at 121 (expert

testimony that it would not be appropriate to calculate a discount rate using historic

                                               7
municipal bond yields because “we don’t know if [those rates] will ever return”); see also

Trevino, 804 F.2d at 1518 (criticizing a district court’s interest-rate calculation because

“it relied on an unrepresentative timespan”).

                                      B.     Clear Error

       “We review the district court’s choice of a discount rate under a clearly erroneous

standard.” Hull, 971 F.2d at 1512. The district court committed clear error by adopting a

rate of return that the parties’ experts agreed is not currently available to the plaintiffs.

       First, some housekeeping. The panel majority states: “Because the district court

did not state the basis for its chosen discount rate, we cannot determine whether this rate

is an error.” Maj. Op. at 18. But in Hull, we stated: “Because the district court adopted

the figure proposed by [an] expert, we may conclude that the district court also adopted

the expert’s methodology.” Hull, 971 F.2d at 1512.

       The district court adopted a figure within the defense expert’s range of proposed

discount rates (zero to 1.82 percent) and above the plaintiffs’ expert’s proposed discount

rate (below zero). Consequently, we may review the correctness of the defense expert’s

methodology, which employed historical average rates of return on high-grade municipal

bonds. 2

       2
        The panel majority observes, accurately, that the defense expert calculated “three
separate discount rates each applying to a different component of the future-care award.”
Maj. Op. at 19 n.13. But the defense expert calculated all three of those discount rates
using the historical rate of return on high-grade municipal bonds. That is where the error
lies.
                                                8
       On this record, the district court committed clear error by relying on the defense

expert’s methodology. The defense expert calculated a historical rate of return on high-

grade municipal bonds of 5.92 percent. At trial, plaintiffs’ counsel asked the plaintiffs’

expert whether there are “any Triple A rated municipal bonds that are presently available

with an interest rate anywhere close to 5.92 percent,” and he answered, “No. None that

have a decent rating anyway. Maybe you could buy some, what they call garbage bonds.

But that wouldn’t be satisfactory either because they’re not risk free.” App., Vol. IV at

145. Likewise, the defense expert acknowledged on cross examination that he would “be

surprised if by the end of the year [the Stokes could] find a high-grade municipal bond

yielding 5.92 percent.” App., Vol. V at 173.

       In sum, the district court committed clear error by adopting a discount rate that

relied on a rate of return not available to the plaintiffs were they to promptly invest the

life care portion of their damage award in the best and safest investment. I therefore

concur in the panel’s decision to vacate and remand so the district court may calculate a

new discount rate.

                                               9


582 F.2d 1287
Balhuizenv.N. Kansas City
No. 77-1972
United States Court of Appeals, Eighth Circuit
8/8/78

1
W.D.Mo.

AFFIRMED


439 F.2d 1128
Kenneth Morton GUTNICK, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.No. 28932 Summary Calendar.**Rule 18, 5th Cir.; See Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5th Cir., 1970,431 F.2d 409, Part I.
United States Court of Appeals, Fifth Circuit.
Dec. 16, 1970.

Ruben Montemayor, San Antonio, Tex., for petitioner.
John N. Mitchell, Atty. Gen. of the U.S., Dept. of Justice, Washington, D.C. Tory A. Adams, Jr., Director, U.S. Immigration & Nat. Service, New Orleans, La., Seagal V. Wheatley, U.S. Atty., San Antonio, Tex., for respondent.
Petition for Review of an Order of the Immigration and Naturalization service
Before JOHN R. BROWIN, Chief Judge, and MORGAN and INGRAHAM, Circuit Judges.
PER CURIAM:

Review denied.  See Local Rule 21.1

1
 See NLRB v. Amalgamated Clothing Workers of America, 430 F.2d 906 (5th Cir. 1970)


Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/19/2018 09:12 AM CDT

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                                  Nebraska Supreme Court A dvance Sheets
                                          301 Nebraska R eports
                               STATE EX REL. RHILEY v. NEBRASKA STATE PATROL
                                              Cite as 301 Neb. 241

                      State      of     Nebraska   ex rel.    Billy D. R hiley, appellant
                             and cross-appellee, v.          Nebraska State Patrol,
                                          appellee and      cross-appellant.
                                                      ___ N.W.2d ___

                                          Filed October 5, 2018.    No. S-17-1261.

                1.	 Immunity: Jurisdiction. Sovereign immunity is jurisdictional in nature,
                     and courts have a duty to determine whether they have subject matter
                     jurisdiction over a matter.
                2.	 Jurisdiction: Appeal and Error. A jurisdictional question which does
                     not involve a factual dispute is determined by an appellate court as a
                     matter of law, which requires the appellate court to reach a conclusion
                     independent of the lower court’s decision.
                 3.	 ____: ____. Before reaching the legal issues presented for review, it is
                     the duty of an appellate court to determine whether it has jurisdiction
                     over the appeal.
                4.	 Immunity. A state’s immunity from suit is a fundamental aspect of
                     sovereignty.
                5.	 Constitutional Law: Actions: Legislature. The provisions of Neb.
                     Const. art. V, § 22, are not self-executing, and no suit may be maintained
                     against the State unless the Legislature, by law, has so provided.
                6.	 Statutes: Immunity: Waiver. Statutes that purport to waive the State’s
                     protection of sovereign immunity are strictly construed in favor of the
                     sovereign and against the waiver.
                7.	 ____: ____: ____. A waiver of sovereign immunity is found only
                     where stated by the most express language of a statute or by such over-
                     whelming implication from the text as will allow no other reasonable
                     construction.
                8.	 Immunity: Waiver: Jurisdiction: Legislature. Absent legislative
                     action waiving sovereign immunity, a trial court lacks subject matter
                     jurisdiction over an action against the State.
                9.	 Criminal Law: Political Subdivisions: Immunity: Waiver. Neb. Rev.
                     Stat. § 29-3528 (Reissue 2016) does not expressly waive sovereign
                                - 242 -
           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
         STATE EX REL. RHILEY v. NEBRASKA STATE PATROL
                        Cite as 301 Neb. 241

   immunity for actions brought against a state agency seeking to compel
   compliance with the Security, Privacy, and Dissemination of Criminal
   History Information Act, nor does the text overwhelmingly imply that
   waiver of sovereign immunity is the only reasonable construction.

  Appeal from the District Court for Hall County: John H.
M arsh, Judge. Vacated and dismissed.
  Jared J. Krejci, of Leininger, Smith, Johnson, Baack, Placzek
& Allen, for appellant.
   Douglas J. Peterson, Attorney General, and David A. Lopez
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Stacy, J.
   Billy D. Rhiley filed this mandamus action against the
Nebraska State Patrol (NSP) seeking an order commanding
the NSP to remove from the public record information regard-
ing his 1991 arrest. The NSP argued (1) the mandamus action
was barred by sovereign immunity and thus the court lacked
subject matter jurisdiction, (2) the action was moot, and (3)
mandamus relief was unavailable because Rhiley had an ade-
quate remedy at law. The district court rejected the sovereign
immunity defense, but granted judgment in favor of the NSP
and dismissed the mandamus action on the other grounds.
Rhiley appeals the dismissal of his mandamus action, and
the NSP cross-appeals the rejection of its sovereign immu-
nity defense. We conclude the sovereign immunity defense is
meritorious and dismiss the appeal for lack of subject mat-
ter jurisdiction.
                          FACTS
   On February 1, 1991, Rhiley was arrested by police in
Grand Island, Nebraska, pursuant to a felony arrest warrant for
burglary issued in Laramie, Wyoming. The arresting officers
informed the NSP’s Criminal Identification Division (CID)
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                 Nebraska Supreme Court A dvance Sheets
                         301 Nebraska R eports
               STATE EX REL. RHILEY v. NEBRASKA STATE PATROL
                              Cite as 301 Neb. 241

of the arrest. The CID serves as a repository of criminal his-
tory information1 in Nebraska. Under Nebraska’s Security,
Privacy, and Dissemination of Criminal History Information
Act 2 (the Criminal History Act), each criminal justice agency
is required to maintain “complete and accurate criminal his-
tory record information with regard to the actions taken by the
agency.”3 Under the Criminal History Act, “complete” infor-
mation means that “arrest records shall show the subsequent
disposition of the case as it moves through the various stages
of the criminal justice system” and “accurate” information
“shall mean containing no erroneous information of a mate-
rial nature.” 4
   According to Rhiley, after he was arrested, officials deter-
mined he was not involved in the burglary, he was released,
and Wyoming prosecutors voluntarily dismissed the burglary
charge. The NSP’s CID was not notified of the Wyoming
action.
   In 2016, Rhiley obtained a copy of his NSP criminal history
information and found it included information about the 1991
arrest for burglary. Regarding disposition of the arrest, the
report provided: “ARREST DISPOSITION: TRANSFERRED
TO ANOTHER AGENCY—WYOMING.” The criminal his-
tory report did not indicate the burglary charge had been
dismissed by the Wyoming prosecutor. Rhiley’s attorney tele-
phoned the NSP’s CID to request correction, and was told to
contact the arresting agency. Rhiley’s counsel then contacted

 1
      See Neb. Rev. Stat. § 29-3506 (Reissue 2016) (“[c]riminal history record
      information [means] information collected by criminal justice agencies on
      individuals consisting of identifiable descriptions and notations of issuance
      of arrest warrants, arrests, detentions, indictments, charges by information,
      and other formal criminal charges, and any disposition arising from such
      arrests, charges, sentencing, correctional supervision, and release”).
 2
      See Neb. Rev. Stat. §§ 29-209, 29-210, 29-3501 to 29-3528 (Reissue
      2016), and 81-1423 (Cum. Supp. 2016).
 3
      § 29-3515.
 4
      § 29-3507.
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              STATE EX REL. RHILEY v. NEBRASKA STATE PATROL
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the Hall County Attorney in an attempt to resolve the matter,
but was unsuccessful.
   On March 28, 2017, Rhiley filed a lawsuit in the Hall
County District Court seeking to have the 1991 arrest informa-
tion removed from the public record pursuant to § 29-3523.
That statute generally provides that in the case of an arrest, all
criminal history record information relating to the case “shall
be removed from the public record” as follows:
          (a) When no charges are filed as a result of the deter-
      mination of the prosecuting attorney, the criminal history
      record information shall not be part of the public record
      after one year from the date of arrest, citation in lieu of
      arrest, or referral for prosecution without citation;
          (b) When charges are not filed as a result of a com-
      pleted diversion, the criminal history record information
      shall not be part of the public record after two years from
      the date of arrest, citation in lieu of arrest, or referral for
      prosecution without citation; and
          (c) When charges are filed, but the case is dismissed by
      the court (i) on motion of the prosecuting attorney, (ii) as
      a result of a hearing not the subject of a pending appeal,
      (iii) after acquittal, or (iv) after completion of a program
      prescribed by a drug court or any other problem solving
      court approved by the Supreme Court, the criminal his-
      tory record information shall not be part of the public
      record immediately upon notification of a criminal justice
      agency after acquittal pursuant to subdivision (3)(c)(iii)
      of this section or after the entry of an order dismissing
      the case.5
   Initially, Rhiley’s lawsuit was brought against several
defendants, including the city of Grand Island, Hall County,
the Hall County Attorney, and the NSP’s Superintendent
of Law Enforcement and Public Safety, individually and in
his official capacity. On July 13, 2017, Rhiley voluntarily

 5
      § 29-3523 (3)(a) through (c) (emphasis supplied).
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         STATE EX REL. RHILEY v. NEBRASKA STATE PATROL
                        Cite as 301 Neb. 241

dismissed all defendants except the NSP. Thus, Rhiley elected
to proceed with a mandamus action against only the NSP,
seeking to compel the removal of criminal history information
regarding his 1991 arrest from the public record. After the
lawsuit was filed, the NSP removed Rhiley’s arrest informa-
tion from the public record.
   Rhiley claims that § 29-3528 authorizes a mandamus action
directly against the NSP to compel compliance with the
Criminal History Act. Section 29-3528 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 imple-
      ment [that 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.
   The NSP moved for judgment on the pleadings, arguing
the mandamus action was barred by the doctrine of sovereign
immunity. The district court overruled the motion. The NSP
subsequently filed another motion, styled as a motion for sum-
mary judgment, asserting: (1) Rhiley’s mandamus action was
barred by sovereign immunity; (2) Rhiley had a plain and ade-
quate remedy at law, so mandamus was not available; and (3)
the action was rendered moot when the 1991 arrest information
was removed from the public record shortly after the manda-
mus action was filed. No party challenges the use of summary
judgment within a mandamus action.
   The district court again rejected the sovereign immunity
defense, but granted judgment in favor of the NSP on the other
two grounds and denied mandamus relief. It reasoned Rhiley’s
claim was rendered moot by the NSP’s removal of his arrest
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              STATE EX REL. RHILEY v. NEBRASKA STATE PATROL
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information from the public record. Alternatively, it reasoned
regulations promulgated pursuant to the Criminal History Act
created procedures for challenging incorrect criminal history 6
and found such procedures were a “plain and adequate rem-
edy” available to Rhiley that precluded mandamus relief.7
   Rhiley appeals, and the NSP cross-appeals. We granted the
NSP’s petition to bypass.

                  ASSIGNMENTS OF ERROR
   Rhiley assigns, restated and summarized, that the district
court erred in (1) determining the action is moot, (2) determin-
ing he failed to avail himself of a plain and adequate remedy at
law, (3) relying on an administrative exhaustion defense when
the NSP did not assert such a defense in its answer, (4) sustain-
ing the NSP’s hearsay objection to certain evidence, and (5)
failing to bind the NSP to its guidance documents.
   On cross-appeal, the NSP contends both the district court
and this court lack jurisdiction, because Rhiley’s claim against
the NSP, a state agency, is barred by the doctrine of sovereign
immunity and the language in § 29-3528 is not a waiver of
such immunity.

                   STANDARD OF REVIEW
   [1] Sovereign immunity is jurisdictional in nature, and courts
have a duty to determine whether they have subject matter
jurisdiction over a matter.8
   [2] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
independent of the lower court’s decision.9

 6
      See, § 29-3526; 78 Neb. Admin. Code, ch. 1 (1978).
 7
      Neb. Rev. Stat. § 25-2157 (Reissue 2016).
 8
      Cappel v. State, 298 Neb. 445, 905 N.W.2d 38 (2017).
 9
      Tilson v. Tilson, 299 Neb. 64, 907 N.W.2d 31 (2018); In re Interest of
      Meridian H., 281 Neb. 465, 798 N.W.2d 96 (2011).
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                           ANALYSIS
   [3] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the appeal.10 Because the NSP’s cross-appeal
presents a jurisdictional question, we address it first.

           Actions Against State A re Barred Unless
                 Sovereign Immunity Is Waived
   [4] The 11th Amendment makes explicit reference to the
states’ immunity from suits “commenced or prosecuted against
one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.”11 This court has, as
a result, sometimes referred to the 11th Amendment when dis-
cussing Nebraska’s sovereign immunity from suit.12 However,
the sovereign immunity of a state neither derives from nor is
limited by the terms of the 11th Amendment.13 Rather, as we
have recognized, a state’s immunity from suit is a fundamen-
tal aspect of sovereignty.14
   [5] Neb. Const. art. V, § 22, provides: “The state may
sue and be sued, and the Legislature shall provide by law
in what manner and in what courts suits shall be brought.”
Long ago, we held that this provision is not self-executing
and that no suit may be maintained against the State unless
the Legislature, by law, has so provided.15 Over time, we
have examined the Legislature’s limited waivers of the

10
      Bloedorn Lumber Co. v. Nielson, 300 Neb. 722, 915 N.W.2d 786 (2018).
11
      U.S. Const. amend. XI. See Alden v. Maine, 527 U.S. 706, 119 S. Ct.
      2240, 144 L. Ed. 2d 636 (1999).
12
      See, e.g., Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d
      551 (2018); Gillpatrick v. Sabatka-Rine, 297 Neb. 880, 902 N.W.2d 115
      (2017); Lamb v. Fraternal Order of Police Lodge No. 36, 293 Neb. 138,
      876 N.W.2d 388 (2016).
13
      Alden, supra note 11.
14
      Id. See Jill B. & Travis B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017).
15
      Shear v. State, 117 Neb. 865, 223 N.W. 130 (1929).
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State’s sovereign immunity, usually in the context of either
the State Tort Claims Act or the Political Subdivisions Tort
Claims Act.16
   [6-8] In doing so, we have found it well settled that stat-
utes that purport to waive the State’s protection of sovereign
immunity are strictly construed in favor of the sovereign and
against the waiver.17 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.18 Absent legislative action
waiving sovereign immunity, a trial court lacks subject matter
jurisdiction over an action against the State.19
   This action originally involved other parties and claims, but
Rhiley voluntarily dismissed all parties except the NSP and
all claims except mandamus. The NSP is an administrative
department of the State of Nebraska,20 and an action against a
state agency is an action against the State.21 Therefore, Rhiley’s
mandamus action against the NSP is barred by sovereign
immunity unless the Legislature has waived it.
   Rhiley argues § 29-3528 waives the State’s sovereign immu-
nity in a mandamus action seeking to compel compliance with
the Criminal History Act. His argument is generally twofold.
First, he asserts we should construe § 29-3528 as a waiver
of the State’s sovereign immunity. Second, he contends our

16
      See, e.g., Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455
      (2012).
17
      Amend, supra note 12; Zawaideh v. Nebraska Dept. of Health & Human
      Servs., 285 Neb. 48, 825 N.W.2d 204 (2013).
18
      Amend, supra note 12; Jill B. & Travis B., supra note 14.
19
      Henderson v. Department of Corr. Servs., 256 Neb. 314, 589 N.W.2d 520
      (1999).
20
      Neb. Rev. Stat. § 81-2001 (Reissue 2014).
21
      See Henderson, supra note 19. See, also, Perryman v. Nebraska Dept. of
      Corr. Servs., 253 Neb. 66, 568 N.W.2d 241 (1997), disapproved on other
      grounds, Johnson v. Clarke, 258 Neb. 316, 603 N.W.2d 373 (1999).
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decision in Henderson v. Department of Corr. Servs.22 inter-
preting the Nebraska mandamus statutes was incorrect and
should be overruled. We address these arguments in reverse
order and ultimately reject both.

        Henderson Correctly Held M andamus Statutes
                 Do Not Waive Sovereign Immunity
                         for State Agency
   Rhiley seeks a writ of mandamus. Mandamus is a law action
and is defined as an extraordinary remedy, not a writ of right,
issued to compel the performance of a purely ministerial act
or duty, imposed by law upon an inferior tribunal, corporation,
board, or person, where (1) the relator has a clear right to the
relief sought, (2) there is a corresponding clear duty existing
on the part of the respondent to perform the act, and (3) there
is no other plain and adequate remedy available in the ordinary
court of law.23 Mandamus is statutorily authorized by Neb.
Rev. Stat. §§ 25-2156 to 25-2169 (Reissue 2016).
   In State ex rel. Steinke v. Lautenbaugh,24 we addressed
whether a suit seeking a writ of mandamus against the Douglas
County election commissioner, in his official capacity, was
barred by sovereign immunity. We found it was not, reasoning:
      When an action is brought against an individual employee
      of a state agency, a court must determine whether the
      action against the individual official is in reality an action
      against the state and therefore barred by sovereign immu-
      nity.[25] In addressing this issue, we have stated that an
      action against a public officer to obtain relief from an
      invalid act or from an abuse of authority by the officer or
      agent is not a suit against the state and is not prohibited

22
      Henderson, supra note 19.
23
      State ex rel. Steinke v. Lautenbaugh, 263 Neb. 652, 642 N.W.2d 132
      (2002).
24
      Id.
25
      See County of Lancaster v. State, 247 Neb. 723, 529 N.W.2d 791 (1995).
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      by sovereign immunity.[26] This exception to the rule of
      sovereign immunity exists because “‘acts of state offi-
      cers not legally authorized, or which exceed or abuse the
      authority conferred upon them, are judicially regarded as
      their own acts and not acts of the state.’” [27] . . .
         Application of the foregoing principles demonstrates
      that this is not in reality an action brought against the
      state or one of its political subdivisions. The basis for
      relators’ claims is that [the election commissioner]
      exceeded his statutory authority to adjust subdistrict
      boundaries, and thus, they seek relief from what they
      allege to be an invalid act or an abuse of authority by [the
      commissioner].28
   Lautenbaugh did not rely on any Legislative waiver of sov-
ereign immunity to find the action proper. Instead, it relied on
the rationale that an act done by a state official that exceeds or
abuses his or her authority is not an act of the State. As such,
Lautenbaugh recognized the general principle that sovereign
immunity does not bar mandamus actions against a public
officer seeking relief from what is alleged to be an invalid act
or an abuse of authority by the public officer.
   Under the principle announced in Lautenbaugh, if Rhiley
had proceeded with his mandamus action against a public
officer of the NSP, our sovereign immunity analysis would
be different. But Rhiley’s mandamus action against the NSP
superintendent was voluntarily dismissed, leaving the NSP, a
state agency, as the only named party.
   We addressed a similar situation in Henderson.29 There, an
inmate sought a writ of mandamus directing the Department

26
      Johnson, supra note 21.
27
      Concerned Citizens v. Department of Environ. Contr., 244 Neb. 152, 156,
      505 N.W.2d 654, 658 (1993), quoting Rein v. Johnson, 149 Neb. 67, 30
      N.W.2d 548 (1947).
28
      Lautenbaugh, supra note 23, 263 Neb. at 661-62, 642 N.W.2d at 140.
29
      Henderson, supra note 19.
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of Correctional Services to establish his projected release date
in accordance with his interpretation of a statute. The inmate
sued several state officers in addition to the Department of
Correctional Services, but he failed to perfect service on any
of the officers. Thus, the mandamus action proceeded against
only the department, and we phrased the jurisdictional ques-
tion as whether the district court had subject matter jurisdic-
tion over a mandamus action against the department, a state
agency, absent legislative action waiving the State’s sover-
eign immunity.30
   In considering whether sovereign immunity had been
waived, Henderson looked to the general statute authorizing
mandamus, § 25-2156. That statute provides in relevant part:
“The writ of mandamus may be issued to any inferior tribunal,
corporation, board or person, to compel the performance of an
act which the law specifically enjoins as a duty resulting from
an office, trust or station.”31 We concluded that “[n]othing in
the statutes governing mandamus . . . indicates a legislative
intent to waive sovereign immunity for mandamus actions
against a state agency.”32
   Rhiley argues we erred in Henderson, and he invites us to
overrule that case. He contends that although the NSP is a state
agency, it can also be an “inferior tribunal” within the context
of § 25-2156, and he asks us to find that the Legislature has
waived the State’s sovereign immunity for inferior tribunals.
   We adhere to the holding in Henderson and do not con-
sider Rhiley’s argument, because it is hypothetical. There is
nothing in the record suggesting the NSP acted as a tribunal
in this case, and it is not the function of the courts to render
a judgment that is merely advisory.33 Moreover, appellate

30
      Id.
31
      § 25-2156.
32
      Henderson, supra note 19, 256 Neb. at 317, 589 N.W.2d at 522.
33
      In re Applications of Koch, 274 Neb. 96, 736 N.W.2d 716 (2007).
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courts do not generally consider arguments and theories raised
for the first time on appeal,34 and there is nothing in the
record indicating Rhiley ever presented this theory to the dis-
trict court.

        § 29-3528 Does Not Waive Sovereign Immunity
                for Actions Seeking to Enforce
                     Criminal History Act
   Rhiley argues § 29-3528 waives sovereign immunity for
actions brought against state agencies to compel compliance
with the Criminal History Act. As noted, § 29-3528 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 imple-
     ment [that act], any person aggrieved may bring an
     action, including but not limited to an action for man-
     damus, 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.
   As we recently reiterated in Amend v. Nebraska Pub. Serv.
Comm.35:
     It is well settled that statutes that purport to waive the
     State’s protection of sovereign immunity are strictly con-
     strued in favor of the sovereign and against the waiver.
     . . . 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.

34
      Maria T. v. Jeremy S., 300 Neb. 563, 915 N.W.2d 441 (2018).
35
      Amend, supra note 12, 298 Neb. at 624, 905 N.W.2d at 557 (emphasis
      supplied).
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   The question, then, is whether, strictly construed against
waiver, § 29-3528 contains language that either (1) expressly
waives sovereign immunity for actions brought against a state
agency seeking compliance with the Criminal History Act or
(2) contains text from which the overwhelming implication
allows no other reasonable construction.
   Rhiley concedes, as he must, that there is no language in
§ 29-3528 which expressly waives sovereign immunity for
actions to compel compliance with the Criminal History Act.
He argues, however, that the overwhelming implication of the
statutory language allows no other reasonable construction.
Rhiley essentially contends that because the statute references
“state agency” and, later in the same sentence, references
bringing an “action, including but not limited to an action for
mandamus,” to compel compliance, the only reasonable way
to construe the statute is that it waives the State’s sovereign
immunity in such actions. We disagree.
   When strictly construed in favor of the sovereign and
against waiver, a reasonable construction of the relevant text
in § 29-3528 is that it recognizes a private civil right of action
to enforce the Criminal History Act. So construed, § 29-3528
allows an aggrieved party to bring a civil action, including
a mandamus action, to enforce compliance with the require-
ments of the Criminal History Act, assuming all other jurisdic-
tional and statutory requirements for bringing any particular
action are met.
   But nothing about allowing a private right of action is an
express or implied waiver of the State’s sovereign immunity.
While a court must attempt to give effect to all parts of a stat-
ute, and if it can be avoided, no word, clause, or sentence will
be rejected as superfluous or meaningless,36 a court also must
not read into a statute a meaning that is not there.37 Section

36
      Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015).
37
      DMK Biodiesel v. McCoy, 290 Neb. 286, 859 N.W.2d 867 (2015).
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29-3528 simply does not address the issue of sovereign immu-
nity either expressly or by necessary implication, and we reject
Rhiley’s suggestion to the contrary.
   We also reject Rhiley’s contention that the federal district
court for Nebraska has determined that § 29-3528 waives the
State’s sovereign immunity. In Estate of Wondercheck, ex rel.
Wondercheck v. Nebraska,38 an unpublished opinion of the U.S.
District Court for the District of Nebraska, that court discussed
§ 29-3528. It did so, however, in the context of analyzing
a different issue—whether § 29-3528 authorized a party to
bring a mandamus action against the State of Nebraska in fed-
eral court.
   As to that issue, the federal court concluded “section
29-3528 does not constitute a waiver [of the State’s] immu-
nity from suit in federal court for violation of the [Criminal
History Act].”39 It reached this conclusion because the statu-
tory language did not include a clear declaration that the
State intended to submit to federal jurisdiction, and instead
referenced only “‘the district court of any district in which
the records involved are located or in the district court of
Lancaster County.’” 40 In the course of explaining its reasoning,
the federal court broadly stated that “section 29-3528 waives
Nebraska’s immunity only for [Criminal History Act] claims
brought in state district court.” 41 We read this statement in the
context of the court’s entire analysis of federal jurisdiction,
and not as a precise holding on the statutory interpretation
question presented in the instant case. In any event, to the
extent the federal district court’s interpretation of § 29-3528

38
      Estate of Wondercheck, ex rel. Wondercheck v. Nebraska, No. 4:06CV3087,
      2006 WL 3392185 (D. Neb. Oct. 18, 2006) (unpublished memorandum
      and order).
39
      Id. at *4.
40
      Id., quoting § 29-3528.
41
      Id. at *4.
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differs from ours, we respectfully observe that this court is
the final arbiter of Nebraska law.42
   [9] We hold that § 29-3528 does not expressly waive sov-
ereign immunity for actions brought against a state agency
seeking to compel compliance with the Criminal History Act,
nor does the text overwhelmingly imply that waiver of sov-
ereign immunity is the only reasonable construction. We thus
hold that Rhiley’s mandamus action against the NSP seeking to
compel compliance with the Criminal History Act is barred by
the doctrine of sovereign immunity.

                         CONCLUSION
   The Legislature has not waived the State’s sovereign immu-
nity in mandamus actions brought directly against a state
agency to enforce the Criminal History Act. As such, the
district court lacked subject matter jurisdiction over Rhiley’s
mandamus action against the NSP, a state agency.43 When a
lower court does not gain jurisdiction over the case before it,
an appellate court also lacks the jurisdiction to review the mer-
its of the claim.44 We thus vacate the district court’s judgment,
and dismiss this appeal for lack of subject matter jurisdiction.
                                        Vacated and dismissed.

42
      State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
43
      See Henderson, supra note 19.
44
      Id.