Jackson v. Tate

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEITH J. JACKSON, 

Plaintiff-Appellant, No. 10-35355

v.

 D.C. No.

2:09-cv-00874-RSL

RICHARD A. TATE; RANDY L.

DECOTEAU, OPINION

Defendants-Appellees.



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

7267

7270 JACKSON v. TATE

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, Washing-

ton, for the appellees.

OPINION

SILVERMAN, Circuit Judge:

We hold today that the Feres doctrine does not bar a dis-

charged 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 con-

duct complained of allegedly occurred as a predicate to agree-

ing 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

JACKSON v. TATE 7271

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 dismiss-

ing for lack of subject matter jurisdiction his suit against Ser-

geant First Class Richard Tate and Captain Randy DeCoteau

of the Washington Army National Guard. Jackson’s com-

plaint asserts federal constitutional and state common law

torts arising out of allegations that Tate and DeCoteau fraudu-

lently 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 (Reinforce-

ment) . . . 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 Presi-

dent 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 train-

ing 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).

7272 JACKSON v. TATE

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 mem-

bers 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 con-

tract. 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, Jack-

son complained that it was fraudulent. The State of Washing-

ton 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 Per-

sonnel 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).

JACKSON v. TATE 7273

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 Attor-

ney, 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 Fed-

eral 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 inci-

dent 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-

7274 JACKSON v. TATE

fective because Tate’s and Decoteau’s allegedly fraudulent

enlistment activity was not included within the scope of activ-

ities 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 plain-

tiff’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 defen-

dants; 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).

JACKSON v. TATE 7275

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 dam-

ages. 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 mil-

itary 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 ser-

vice.” 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 inten-

tional 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 mili-

tary 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

7276 JACKSON v. TATE

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 mil-

itary 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 activ-

ity “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 activ-

ity 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 omit-

ted).

In McGowan, we reversed a district court’s order dismiss-

ing pursuant to the Feres doctrine the damages action of a

JACKSON v. TATE 7277

retired military officer who alleged that he was forcibly

detained and injured by military personnel—including an on-

duty 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 McGo-

wan 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 mili-

tary 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 regula-

tions 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 park-

ing 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 McGo-

wan’s “presence on the base [had] little to do with

[his prior] military services.” Johnson, 704 F.2d at

1437.

Id. at 139.

7278 JACKSON v. TATE

[4] Applying the four factors articulated in Johnson in light

of McGowan, we conclude that the district court erred in dis-

missing 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 super-

vision, 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 cer-

tainly made him subject to be ordered to active duty at a

moment’s notice; however, he was under no obligation to re-

enlist. 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 trans-

ferred 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-

JACKSON v. TATE 7279

less of whether the order was erroneous or unlawful, impli-

cated 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 obliga-

tion. 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, Jack-

son challenges the validity of his supposed consent to incur an

additional service obligation, entirely distinct from his “cur-

rent 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 involun-

tary 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 Attor-

ney 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 Attor-

ney 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

7280 JACKSON v. TATE

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 evi-

dence 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 consid-

ered 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 cov-

ers “training or other duty” that a guardsman may be ordered

to perform “[u]nder regulations to be prescribed by the Secre-

tary 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 posi-

tions within the National Guard’s Recruiting and Retention

Command. Recruiting activities performed by service mem-

bers 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 fed-

eral statute, see 32 U.S.C. § 502(f), and created to provide

full-time military support personnel to assist in the adminis-

tration 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 promul-

gated regulations that apply to Army National Guard Reserve

JACKSON v. TATE 7281

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 inte-

grat[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 mem-

bers 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 bur-

den 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 devel-

opment, 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).

7282 JACKSON v. TATE

We therefore remand for further proceedings consistent

with this opinion.

REVERSED and REMANDED.