Jackson v. Tate
2011 U.S. App. LEXIS 11059
| 9th Cir. | 2011Background
- Jackson, an Individual Ready Reserve member, was honorably discharged from the Washington Army National Guard in 2006 to complete a service obligation, later alleged fraudulent re-enlistment by Tate and DeCoteau in 2006.
- Enlistment paperwork purportedly swore Jackson was present in Issaquah, WA and observed signing, though Jackson alleges he was in Iraq working as a private contractor.
- Washington investigated and found the enlistment contract enforceable; Jackson filed a declaratory judgment action which Washington subsequently honored with an honorable discharge.
- Jackson then filed suit under 42 U.S.C. § 1983 or Bivens, claiming federal constitutional and state torts for fraudulent re-enlistment, seeking damages and costs.
- The district court dismissed the case for lack of subject matter jurisdiction, accepting the Westfall Act but rejecting the FTCA route and applying Feres to bar the action; the Ninth Circuit reviews de novo for Feres and for scope of employment certifications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Feres bars Jackson's suit | Jackson argues the injury was not incident to service | Tate/DeCoteau contend Feres applies | Feres does not bar the suit |
| Whether the Westfall Act certification was proper | United States failed to prove scope of employment | Westfall Act applies; certification should substitute the United States | Remanded for factual determination on scope of employment |
| Whether the district court erred in ruling on subject-matter jurisdiction given Westfall Act | Westfall Act certification controls; court should proceed | Certification governs unless beyond scope | Remand to resolve scope of employment; U.S. may be substituted if certified |
| Whether Zaputil v. Cowgill controls here | Zaputil bars Jackson | Zaputil distinguishable; not recall within existing obligation | Zaputil distinguished; not controlling; Feres does not bar here |
Key Cases Cited
- Feres v. United States, 340 U.S. 135 (U.S. 1950) (established intramilitary immunity for injuries incident to service)
- Johnson v. United States, 704 F.2d 1431 (9th Cir. 1983) (four-factor test for injury incident to service)
- McGowan v. Scoggins, 890 F.2d 128 (9th Cir. 1989) (parking decal case; injury not incident to current service; limits to current duty status)
- Zaputil v. Cowgill, 335 F.3d 885 (9th Cir. 2003) (recall within ongoing service obligation distinguished from re-enlistment)
- Osborn v. Haley, 549 U.S. 225 (U.S. 2007) (Westfall Act scope-of-employment determination; burden on plaintiff to prove beyond conclusory allegations)