Allison v. Boeing Laser Technical Servs.

• Decision Date: 10 August 2012
• Docket Number: No. 10–2237.,10–2237.
• Citation: 34 IER Cases 354,689 F.3d 1234
• Parties: Jimmie ALLISON, Plaintiff–Appellant, v. BOEING LASER TECHNICAL SERVICES, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

689 F.3d 1234

34 IER Cases 354

Jimmie ALLISON, Plaintiff–Appellant,

v.BOEING LASER TECHNICAL SERVICES, Defendant–Appellee.

No. 10–2237.

United States Court of Appeals, Tenth Circuit.

Aug. 10, 2012.

Michael L. Danoff, Michael Danoff & Associates, P.C., Albuquerque, NM, for Appellant.

James K. Mackie (Erica K. Rocush with him on the brief), Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Tucson, AZ, for Appellee.

Before TYMKOVICH, SEYMOUR, and GORSUCH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Under a body of constitutional law applicable to federal enclaves, U.S. Const. art. I, § 8, cl. 17, state law that is adopted after the creation of the enclave generally does not apply on the enclave. A federal enclave is created when a state cedes jurisdiction over land within its borders to the federal government and Congress accepts that cession. These enclaves include numerous military bases, federal facilities, and even some national forests and parks. Federal enclave doctrine operates as a choice of law doctrine that dictates which law applies to causes of action arising on these lands.

It is well-established that after a state has transferred authority over a tract of land creating a federal enclave, the state may no longer impose new state laws on these lands. But state laws enacted before the cession continue to apply unless Congress specifically overrides them. The question here is whether state common law causes of action recognized after the state ceded the enclave to the federal government are available on federal enclaves. This question is governed by a long string of Supreme Court precedent that makes it clear that the law on a federal enclave is the state law that governed the land at the time the federal government established the enclave, not state law enacted thereafter—unless that law was expressly adopted by the enclave's new sovereign, the federal government.

Jimmie Allison's causes of action arose from conduct on Kirtland Air Force Base, a federal enclave established in 1954. Because Allison's state law claims are based on legal theories created by common law after that date, they are barred unless federal statutory law allows them to go forward. Because no federal statute authorizes state employment and tort claims of the sort here to be asserted against federal contractors, Allison's suit is barred by the federal enclave doctrine.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we therefore AFFIRM.

I. Background

Allison was a civilian employee of Boeing Laser Technical Services, a federal contractor located on Kirtland Air Force Base. Kirtland Air Force Base is a federal enclave: it is located on land that New Mexico ceded to the federal government in 1952 and 1954. Since that time the federal government has exercised exclusive jurisdiction within the boundaries of the Base.

Allison was terminated by Boeing on December 31, 2007. He filed suit in state court, alleging that Boeing discharged him in retaliation for reporting corporate fraud to the Air Force. His claims were all based on state law theories—wrongful discharge, breach of implied contract, breach of covenant of good faith and fair dealing, retaliatory discharge, prima facie tort, and defamation.

Boeing removed the case to federal court and moved for summary judgment, asserting that these causes of action (except for defamation) are not available for conduct occurring on Kirtland Air Force Base under the federal enclave doctrine. The district court granted partial summary judgment in favor of Boeing on all of Allison's employment claims on the ground that those causes of action were not recognized by New Mexico courts prior to 1954. The defamation claim was dismissed, and the district court entered final judgment in favor of Boeing.

II. Discussion

Allison challenges the district court's dismissal of his employment claims, arguing that the federal enclave doctrine does not displace state common law adopted after the cession of Kirtland in 1954.

A. Federal Enclave Doctrine

The Constitution empowers Congress to exclusively regulate properties acquired from state governments. Congress “shall have Power”

To exercise exclusive Legislation ... over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.

U.S. Const. art. I, § 8, cl. 17 (emphasis added).¹

Thus, when “the United States acquires with the ‘consent’ of the state legislature land within the borders of that State ... the jurisdiction of the Federal Government becomes ‘exclusive.’ ” Paul v. United States, 371 U.S. 245, 264, 83 S.Ct. 426, 9 L.Ed.2d 292 (1963). “The power of Congress over federal enclaves that come within the scope of Art. I, § 8, cl. 17, is obviously the same as the power of Congress over the District of Columbia” and “by its own weight, bars state regulation without specific congressional action.” Id. at 263, 83 S.Ct. 426. This exclusive jurisdiction is “legislative,” meaning the laws and statutes applied to these locations must be supplied by the federal government, not the states. Pac. Coast Dairy v. Dep't of Ag. of Cal., 318 U.S. 285, 294, 63 S.Ct. 628, 87 L.Ed. 761 (1943). “When Congress legislates with respect to the District of Columbia and federal enclaves it acts as a state government with all the powers of a state government,” and thus “Congress acts as a state government with total legislative, executive and judicial power.” United States v. Jenkins, 734 F.2d 1322, 1325–26 (9th Cir.1983).

Over the years, Congress has enacted assimilative laws that permit some state laws—particularly criminal laws—to apply to federal enclaves and that allow state crimes to be prosecuted in federal courts. See United States v. Sharpnack, 355 U.S. 286, 294–95, 78 S.Ct. 291, 2 L.Ed.2d 282 (1958). But in many important areas of law that are traditionally the responsibility of states—including most state employment law—there is no federal assimilative statute.

The central principle of federal enclave doctrine is that Congress has exclusive legislative authority over these enclaves. But in the absence of applicable federal legislation displacing state law, those state laws that existed at the time that the enclave was ceded to the federal government remain in force. “Since a State may not legislate with respect to a federal enclave unless it reserved the right to do so when it gave its consent to the purchase by the United States, only state law existing at the time of the acquisition remains enforceable, not subsequent laws.” Paul, 371 U.S. at 268, 83 S.Ct. 426. Thus, the federal government acquires property subject to state law.

The Constitution does not command that every vestige of the laws of the former sovereignty must vanish. On the contrary its language has long been interpreted so as to permit the continuance until abrogated of those rules existing at the time of the surrender of sovereignty which govern the rights of the occupants of the territory transferred. This assures that no area however small will be left without a developed legal system for private rights.

James Stewart & Co. v. Sadrakula, 309 U.S. 94, 99–100, 60 S.Ct. 431, 84 L.Ed. 596 (1940). And even though state law will not remain static outside the enclave, any changes made to the state law applicable within the enclave must be a matter of federal law. Because “future statutes of the state are not a part of the body of laws in the ceded area,” “Congressional action is necessary to keep [state law] current.” James Stewart, 309 U.S. at 100, 60 S.Ct. 431.

Like most general principles, the law of federal enclaves admits exceptions. The Supreme Court has recognized at least three exceptions to the rule that only state law in effect at the time of cession applies within the federal enclave: 1) where Congress has, by statute, provided a different rule; 2) where the state explicitly retained the right to legislate over specific matters at the time of cession; and 3) where minor regulatory changes modify laws existing at the time of cession.

The first exception recognizes the obvious fact that Congress can legislate on behalf of the enclave and may provide for the application of state laws enacted after the creation of the enclave. See Sharpnack, 355 U.S. at 294–95, 78 S.Ct. 291. Thus, for example, the first Federal Crimes Act, enacted in 1790, defined a number of federal crimes that applied to federal enclaves, and in 1825 Congress adopted the first Assimilated Crimes Act, which allowed state criminal codes to apply to crimes committed on federal enclaves. Id. at 288, 290, 78 S.Ct. 291. State criminal codes now apply to crimes committed on military bases, Indian reservations, federal facilities, and public lands unless other federal statutes bar their application. Congress has also allowed the application of state law to a variety of civil claims in federal enclaves, such as wrongful death, 16 U.S.C. § 457; workers' compensation, 40 U.S.C. § 3172; unemployment compensation, 26 U.S.C. § 3305(d); and fish and game regulation, 10 U.S.C. § 2671.

But no federal statute yet allows the broad application of state employment, tort, and contract law to federal enclaves. And “it is well established that in order for Congress to subject a federal enclave to state jurisdiction, there must be a specific congressional deferral to state authority over federal property.” West River Elec. Ass'n, Inc. v. Black Hills Power and Light Co., 918 F.2d 713, 719 (8th Cir.1990).

The second exception deals with those powers the states expressly reserved at the time of cession. In James v. Dravo Contracting Co., 302 U.S. 134, 148–49, 58 S.Ct. 208, 82 L.Ed. 155 (1937), the Supreme Court upheld the power of states to transfer only partial jurisdiction to the federal government, retaining some authority over the ceded lands. Common reservations of power include the authority to collect state taxes and...