Keith Jackson v. Richard Tate, et al

Filing

FILED OPINION (ANDREW J. KLEINFELD, A. WALLACE TASHIMA and BARRY G. SILVERMAN) REVERSED AND REMANDED. Judge: BGS Authoring. FILED AND ENTERED JUDGMENT. [7770276]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEITH J. JACKSON,
Plaintiff-Appellant,
v.
RICHARD A. TATE; RANDY L.
DECOTEAU,
Defendants-Appellees.





No. 10-35355
D.C. No.
2:09-cv-00874-RSL
OPINION

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, Chief District Judge, Presiding
Argued and Submitted
April 11, 2011—Seattle, Washington
Filed June 2, 2011
Before: Andrew J. Kleinfeld, A. Wallace Tashima, and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Silverman

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COUNSEL
James W. Beck (argued), Eric D. Gilman, Gordon Thomas
Honeywell LLP, Tacoma, Washington, for the appellant.
Jenny A. Durkan, United States Attorney, Philip H. Lynch
(argued), Assistant United States Attorney, Seattle, Washington, for the appellees.

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

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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
1

The Individual Ready Reserve is defined as follows:
A manpower pool consisting of individuals who have had training and have previously served in the active forces or in the
Selected Reserve. The IRR consists of people who must fulfill
their Military Service Obligation (MSO) . . . , members fulfilling
a service obligation incurred via contract, and those who have
fulfilled their MSO and who voluntarily remain in the IRR. IRR
members are subject to involuntary active duty (AD) for training
and fulfillment of mobilization requirements . . . .

Seabury v. United States, No. 09-10622-JGD, 2010 WL 1528615 at *2 (D.
Mass April 15, 2010) (citing Department of Defense Instruction 1235.13).

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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
2

United States General Accounting Office, Report to the Subcommittee
on Personnel, Committee on Armed Services, U.S. Senate, Military Personnel DOD Actions Needed to Improve the Efficiency of Mobilizations
for Reserve Forces (August 2003) at 9 (available at: http://www.gao.gov/
new.items/d03921.pdf).

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Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (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. § 2670, 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 (1950).
The district court rejected the government’s first argument,
finding the Attorney General’s Westfall Act certification inef-

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fective 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 (2007) (emphasis in original).

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DISCUSSION
I.

Feres Doctrine Background

[1] 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. 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).
[2] 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 Reserve at time of the events giving rise to his cause
of action, the key inquiry before us is whether the fraudulent

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enlistment alleged in the complaint constitutes an “activity
incident to [Jackson’s] military service.” Id.
II.

The Feres Doctrine Does Not Bar Jackson’s Suit
Because His Alleged Injury Was Not Sustained
Incident to Service.

[3] The Feres doctrine precludes servicemembers from
bringing damages actions against the United States and its
employees for injuries that arise out of or in the course of military service; however, the “intramilitary immunity under
Feres applies to members of the armed forces of the United
States who are injured as an incident to their current military
service.” Id. at 137 (citing Feres, 340 U.S. at 138) (emphasis
added).
In Johnson v. United States, 704 F.2d 1431, 1436-41 (9th
Cir. 1983), we articulated four factors for determining
whether an injury has been sustained in the course of an activity “incident to service,” including (1) the location where the
activity giving rise to the injury occurred; (2) the duty status
of the plaintiff at the time of activity giving rise to the injury;
(3) the benefits accruing to the plaintiff because of his status
as a service member; and (4) the nature of the plaintiff’s
activities at the time of the activity giving rise to the injury.
See Costo, 248 F.3d at 867 (citing Dreier, 106 F.3d at 848);
see also Day v. Mass. Air Nat’l Guard, 167 F.3d 678, 682 (1st
Cir. 1999) (citing United States v. Johnson, 481 U.S. 681, 686
& n. 7 (1987); United States v. Shearer, 473 U.S. 52, 57
(1985)). “While rigid rules derived from these four factors
may sometimes be relevant, they cannot be blindly applied to
determine whether an injury occurred ‘in the course of activity incident to service.’ The only way to decide whether an
injury is incident to service is to consider the facts of each
individual case.” Johnson, 704 F.2d at 1436 (citation omitted).
In McGowan, we reversed a district court’s order dismissing pursuant to the Feres doctrine the damages action of a

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retired military officer who alleged that he was forcibly
detained and injured by military personnel—including an onduty sergeant, captain, and lieutenant colonel—for disobeying
orders while on an United States Air Force base to pick up a
base parking decal. 890 F.2d at 136-37. Although we held that
McGowan was not a member of the armed forces at the time
of events giving rise to his injury, we also independently
rejected the government’s argument “that Professor McGowan was injured as an incident to service because the right to
get a parking decal is a privilege conferred on him by virtue
of his military status.” Id. at 138. Although McGowan’s right
to a parking decal was a benefit that he enjoyed due to his
military service, the benefit was not “incident to current military service.” Id. at 138 (emphasis in original). At the time of
his injury
Professor McGowan was not employed at Mather
Air Force Base. His work as a history teacher at the
University of California at Davis is not subject to
military supervision, command, or discipline. While
on a military base, he is subject to the same regulations that govern the conduct of any other civilian
visitor. Professor McGowan, while standing in line
at the Visitor’s Center to get a parking decal was
under “compulsion of no orders or duty and on no
military mission.” Feres, 340 U.S. at 146, 71 S. Ct.
at 159 (emphasis added). The injuries Professor
McGowan sustained while attempting to get a parking decal were not incident to his former military
service “except in the sense that all human events
depend upon what has already transpired.” Brooks,
337 U.S. at 52, 69 S. Ct. at 920. Professor McGowan’s “presence on the base [had] little to do with
[his prior] military services.” Johnson, 704 F.2d at
1437.
Id. at 139.

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[4] Applying the four factors articulated in Johnson in light
of McGowan, we conclude that the district court erred in dismissing Jackson’s complaint pursuant to the Feres doctrine
because Jackson’s alleged injury did not arise incident to his
military service. The acts complained of occurred after his
service had been completed, unrelated to any benefit or duty
connected to a service obligation he has already incurred.
Like McGowan, at the time of his alleged injury, Jackson was
engaged in civilian employment, not subject to military supervision, command, or discipline. Although the government
argues that Jackson’s service obligation in the IRR placed him
under military control because he was subject to call up at any
time and required to maintain fitness for duty, we note, as we
did in McGowan, “If [Jackson] had been recalled and was
reporting for duty . . ., the resolution of this matter would
require a different analysis. That question is not before us.”
890 F.2d at 138. Jackson’s status as an inactive reservist certainly made him subject to be ordered to active duty at a
moment’s notice; however, he was under no obligation to reenlist. Cf. Qualls v. Rumsfeld, 412 F. Supp. 2d 40, 43 (D.D.C.
2006) (distinguishing involuntary extension of service due to
“stop loss” policy from voluntary re-enlistment).
In dismissing Jackson’s suit, the district court relied on our
precedent in Zaputil v. Cowgill, 335 F.3d 885 (9th Cir. 2003).
In Zaputil, the servicemember had applied for and received a
transfer from the California Air National Guard to the United
States Air Force Reserve, and, by order of the Governor, was
honorably discharged from the Air National Guard and transferred accordingly. Id. at 886. Shortly thereafter, Zaputil’s
discharge order was revoked and she was recalled to duty
with the California Air National Guard. Id. After protesting
the revocation and again receiving an honorable discharge,
Zaputil sued the California Air National Guard and several
individual guardsmen for damages; however, the district court
dismissed her suit pursuant to the Feres doctrine and we
affirmed. Id. at 887-88. We held that Zaputil’s suit was barred
by the Feres doctrine because the order to recall her, regard-

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less of whether the order was erroneous or unlawful, implicated military decisions, affairs and discipline. Id. at 887.
[5] This case is distinguishable from Zaputil because the
plaintiff in that case challenged the validity of an order that
she received within the context of her existing service obligation. In contrast, Jackson was not recalled or otherwise
ordered to active duty within his existing military service
obligation as a member of the Ready Reserve. Instead, Jackson challenges the validity of his supposed consent to incur an
additional service obligation, entirely distinct from his “current military service.” McGowan, 890 F.2d at 137. Indeed, a
servicemember’s re-enlistment, as opposed to being recalled
or otherwise ordered to duty, falls outside the scope of Feres’
“incident to service” standard because that decision is solely
the province of “the enlistee [who] . . . voluntarily submit[s]
himself to military authority by virtue of his enlistment . . . .”
Even v. Clifford, 287 F. Supp. 334, 338 (S.D. Cal. 1968)
(comparing voluntary submission of enlistees with involuntary submission selective service inductees). We therefore
hold that Jackson’s alleged injury does not arise out of an
activity incident to his service and his complaint is not barred
by the Feres doctrine.
III.

The District Court Erred in Rejecting the Attorney General’s Westfall Act Certification.

[6] Under the Westfall Act, federal employees receive
absolute immunity from suit “for their ‘negligent or wrongful
act[s] or omission[s] . . . while acting within the scope of
[their] office or employment.’ ” Green, 8 F.3d at 699 (quoting
28 U.S.C. § 2679(b)(1)). The statute “grants the Attorney
General authority to certify that a federal employee named
defendant in a tort action was acting within the scope of his
or her employment at the time in question,” and if the Attorney General makes such a certification, then “the United
States must be substituted as the defendant.” Osborn, 549
U.S. at 240-41 (citing 28 U.S.C. § 2679(d)(1)). “The United

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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.” Id.
at 231 (emphasis in original). Jackson, as the party seeking
review of the Attorney General’s decision to grant scope of
employment certification, “bears the burden of presenting evidence and disproving [that] decision . . . by a preponderance
of the evidence.” Kashin v. Kent, 457 F.3d 1033, 1036 (9th
Cir. 2006) (quoting Green, 8 F.3d at 698).
Under the Westfall Act, a National Guardsman is considered a federal employee “while engaged in training or duty
under section 115, 316, 502, 503, 504, or 505 of title 32.” 28
U.S.C. § 2671. Subsection 502(f)(1) of title 32 places a broad
swath of National Guard activity within the scope of federal
employment for purposes of the Westfall Act, because it covers “training or other duty” that a guardsman may be ordered
to perform “[u]nder regulations to be prescribed by the Secretary of the Army or Secretary of the Air Force . . . .”
Tate and DeCoteau performed recruiting duties while
assigned to full-time Active Guard and Reserve Program positions within the National Guard’s Recruiting and Retention
Command. Recruiting activities performed by service members on Active Guard and Reserve duty fall within the ambit
of activities covered by 28 U.S.C. § 502(f). “The Active
Guard/Reserve (“AGR”) [ ] program [was] authorized by federal statute, see 32 U.S.C. § 502(f), and created to provide
full-time military support personnel to assist in the administration of the National Guard of the various states.” Bowen,
125 F.3d at 802. Subsection 101(d)(6)(A) of Title 10 clearly
includes “recruiting” within the scope of Active
Guard/Reserve duties to be performed by full-time members
of the state National Guard.
[7] Furthermore, the Department of the Army has promulgated regulations that apply to Army National Guard Reserve

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soldiers serving on full-time duty under provisions of 28
U.S.C. § 502(f), setting policies and procedures for recruiting.
National Guard Regulation 600-5, Summary, ¶ 1-1 (February
20, 1990); National Guard Regulation 601-1, 1 (April 28,
2006) (applying to Army National Guard a “regulation integrat[ing] all of the recruiting and retention programs, policies
and procedures necessary for developing, implementing and
monitoring a successful strength maintenance program at the
State/Territory level”).3 These regulations indicate that Tate
and DeCoteau were acting as federal employees if they were,
in fact, participating in recruiting activities as full-time members of the Washington Army National Guard on Active
Guard/Reserve duty at the time of the events in question. The
district court’s ruling to the contrary was erroneous.
[8] This, however, is not the end of the Westfall Act
inquiry in this case. As we have indicated above, the United
States remains the named federal defendant “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, 549 U.S. at
231. And, as we have further indicated, Jackson bears the burden of proof by a preponderance of the evidence on this issue.
See Kashin, 457 F.3d at 1036. This factual determination
remains to be made in this case.
3

This regulation sets policy and procedures for management of the
Active Guard/Reserve (AGR) Program in the Army National
Guard. It provides National Guard Bureau policy and procedures
for selection, utilization, career management, professional development, separation, and administration of Army National Guard
(ARNG) soldiers serving on Full-Time National Guard Duty
(FTNGD) under provisions of section 502(f), title 32 United
States Code, for the purpose of organizing, administering,
recruiting, instructing, or training the ARNG.
Id. (emphasis added).

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We therefore remand for further proceedings consistent
with this opinion.
REVERSED and REMANDED.