Jackson v. Tate

• Decision Date: 02 June 2011
• Docket Number: No. 10–35355.,10–35355.
• Citation: 2011 Daily Journal D.A.R. 8047,648 F.3d 729,11 Cal. Daily Op. Serv. 6746
• Parties: Keith J. JACKSON, Plaintiff–Appellant,v.Richard A. TATE; Randy L. DeCoteau, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

648 F.3d 729

11 Cal. Daily Op. Serv. 6746

2011 Daily Journal D.A.R. 8047

Keith J. JACKSON, Plaintiff–Appellant,

v.Richard A. TATE; Randy L. DeCoteau, Defendants–Appellees.

No. 10–35355.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 11, 2011.Filed June 2, 2011.

James W. Beck (argued), Eric D. Gilman, Gordon Thomas Honeywell LLP, Tacoma, WA, for the appellant.Jenny A. Durkan, United States Attorney, Philip H. Lynch (argued), Assistant United States Attorney, Seattle, WA, for the appellees.Appeal from the United States District Court for the Western District of Washington, Robert S. Lasnik, Chief District Judge, Presiding. D.C. No. 2:09–cv–00874–RSL.Before: ANDREW J. KLEINFELD, A. WALLACE TASHIMA, and BARRY G. SILVERMAN, Circuit Judges.

OPINION

SILVERMAN, Circuit Judge:

We hold today that the Feres doctrine does not bar a discharged serviceman, who remains in the Individual Ready Reserve, from suing active duty National Guard recruiters whom he accuses of forging his signature on re-enlistment papers. Feres does not apply because the alleged injury is not “incident to” the plaintiff's service; indeed, the tortious conduct complained of allegedly occurred as a predicate to agreeing to a new service obligation, unrelated to any benefit or duty connected to any service obligation he has already incurred. We also hold that the two National Guard recruiters meet the prima facie test as federal employees under the Westfall Act.

Background

I. Jackson's Duty Status

Keith Jackson appeals from the district court order dismissing for lack of subject matter jurisdiction his suit against Sergeant First Class Richard Tate and Captain Randy DeCoteau of the Washington Army National Guard. Jackson's complaint asserts federal constitutional and state common law torts arising out of allegations that Tate and DeCoteau fraudulently re-enlisted Jackson into the Guard.

Jackson was honorably discharged from the Washington Army National Guard on May 16, 2006. Jackson's discharge notice from the Guard states that he had been assigned to “[United States Army Reserve] Control Group (Reinforcement) ... to complete [his] remaining service obligation with an expiration date of [July 18, 2008].” United States Army Reserve control groups are part of the Individual Ready Reserve.¹ Certain members of the IRR are “subject to being ordered to active duty involuntarily in accordance with [ 10 U.S.C. § 12304],” 10 U.S.C. § 10144(b)(1), “when the President determines that it is necessary to augment the active forces for any operational mission or that it is necessary” to respond to “a use or threatened use of a weapon of mass destruction; or a terrorist attack or threatened terrorist attack in the United States.” 10 U.S.C. § 12304(a)- (b). “IRR members do not participate in any regularly scheduled training, and they are not paid for their membership in the IRR.” ²

II. Events Giving Rise to Jackson's Complaint

Jackson alleges the following: on or about June 24, 2006, Tate and DeCoteau completed paperwork re-enlisting Jackson for two years and four weeks of service with the Washington Army National Guard. In this paperwork, Tate and DeCoteau swore under oath that Jackson was present before them in Issaquah, Washington; was personally administered the required oath; and was observed signing the enlistment contract. Jackson, however, alleges that he was not in Issaquah, Washington at that time, but working as a private contractor in Iraq. Upon discovering his purported re-enlistment, Jackson complained that it was fraudulent. The State of Washington investigated Jackson's claims and found that the enlistment contract was enforceable. Jackson then filed a declaratory judgment action against Washington and the United States seeking an order that the enlistment agreement was not enforceable. That case was resolved after Washington agreed to honorably discharge Jackson.

III. Proceedings Before the District Court

After the resolution of his declaratory judgment action, Jackson filed a complaint against Tate and DeCoteau pursuant to 42 U.S.C. § 1983 or, in the alternative, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging federal constitutional and state law tort claims based on the alleged fraudulent re- enlistment. The complaint seeks compensatory and punitive damages, as well as attorneys fees and costs.

Tate and DeCoteau, represented by the United States Attorney, moved to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The government argued first that Jackson's complaint is properly cognizable as a suit against the United States under the Federal Tort Claims Act because Tate and DeCoteau were federal employees acting within the scope of their employment at the time of the acts giving rise to Jackson's cause of action. The government further argued that (1) under the Westfall Act, 28 U.S.C. § 2671, et seq., Tate and DeCoteau are entitled to absolute immunity from suit in their personal capacities for their alleged actions, because at the time they were federal employees acting within the scope of their employment; and (2) Jackson's claims against the United States are barred by the FTCA's two-year statute of limitations because he failed to first present his claims to the Army in an administrative action within two years. In support of these arguments, the government submitted the certification of Assistant United States Attorney Brian Kipnis, which states that, based on the information available to him, Tate and DeCoteau were acting within the scope of their employment as employees of the United States at the time of the acts giving rise to Jackson's cause of action.

The government also argued that Jackson's suit is barred by the doctrine of intra-military immunity, first announced in Feres v. United States, because it seeks monetary damages for injuries that “arise out of or are in the course of activity incident to [military] service.” 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950).

The district court rejected the government's first argument, finding the Attorney General's Westfall Act certification ineffective because Tate's and DeCoteau's allegedly fraudulent enlistment activity was not included within the scope of activities that qualify a member of the National Guard as an “[e]mployee of the government” under 28 U.S.C. § 2671. Nonetheless, the district court granted Tate's and DeCoteau's motion to dismiss on the basis of their second argument, applying this court's holding in Zaputil v. Cowgill, 335 F.3d 885, 887 (9th Cir.2003), in ruling that Jackson's claims are barred pursuant to the Feres doctrine.

This appeal followed.

Standard of Review

A dismissal pursuant to the Feres doctrine is reviewed de novo. Costo v. United States, 248 F.3d 863, 865–66 (9th Cir.2001). “ ‘In reviewing an order dismissing an action for lack of subject matter jurisdiction, we must accept all of the plaintiff's factual allegations as true.’ ” Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1997) (quoting McGowan v. Scoggins, 890 F.2d 128, 136 (9th Cir.1989)).

We review de novo the district court's decision to reject the Attorney General's Westfall Act certification of the defendants; however, the Westfall Act “grants the Attorney General the right to decide the scope of employment issue in the first instance.” Green v. Hall, 8 F.3d 695, 698 (9th Cir.1993). “Accordingly, the party seeking review bears the burden of presenting evidence and disproving the Attorney General's decision to grant or deny scope of employment certification by a preponderance of the evidence.” Id. (citations omitted). When the plaintiff challenges the Attorney General's scope of employment certification, “[t]he United States ... must remain the federal defendant in the action unless and until the District Court determines that the employee, in fact, and not simply as alleged by the plaintiff, engaged in conduct beyond the scope of his employment.” Osborn v. Haley, 549 U.S. 225, 231, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007) (emphasis in original).

Discussion

I. Feres Doctrine Background

The Federal Tort Claims Act effects a broad waiver of the United States' sovereign immunity from suit for tort damages. See 28 U.S.C. § 2674. In an exception to this waiver, the FTCA withholds the United States' consent to be sued for “[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.” Id. at 2680(j). In Feres, the Court expanded this exception, holding “that the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U.S. at 146, 71 S.Ct. 153. The Feres doctrine has expanded over time to apply to constitutional claims brought under section 1983 and Bivens, as well as tort claims brought under the FTCA; to suits between service members, including National Guardsmen, as well as against the United States; to inactive duty service members, as well as active duty; and to intentional torts as well as negligence claims “whenever a legal action would require a civilian court to examine decisions regarding management, discipline, supervision, and control of members of the armed forces.” Bowen v. Oistead, 125 F.3d 800, 803–04 (9th Cir.1997) (citations and internal quotations omitted).

Courts have applied the Feres doctrine in cases where “two common factors” have been present: “One. The injured person was a member of the armed forces of the United States at the time the injury was sustained. Two. The injury must arise out of or occur in the course of activity incident to military service.” McGowan, 890 F.2d at 132 (citations omitted). Because there is no dispute that Jackson was a member of the Individual Ready Reserve component of the United States Army...