L.B. v. United States, 515 P.3d 818

Background

L.B., a Northern Cheyenne tribal member, called a BIA officer after reporting her intoxicated mother; Officer Dana Bullcoming responded and later went to L.B.’s home.
Bullcoming administered a breath test (~.132–.136), threatened arrest and child-services intervention, and repeatedly stated that “something had to be done.”
L.B. interpreted the threats as coercion for sex, had intercourse with Bullcoming to avoid arrest, became pregnant, and later sued the United States under the FTCA seeking vicarious liability for the officer’s conduct.
The District Court granted summary judgment for the Government, ruling Bullcoming’s sexual assault was outside the scope of employment; the Ninth Circuit certified the scope question to the Montana Supreme Court.
The Montana Supreme Court held the question is not resolvable as a matter of law: an on‑duty officer’s misuse of authority to obtain sex may be within the scope of employment if the wrongful act "arose out of and was committed in prosecution of the task" the officer was performing; scope is a fact question using Restatement §229 factors.
Officer Bullcoming pleaded guilty to deprivation of rights under color of law (18 U.S.C. §242); the Court rejected the Government’s reliance on Maguire as dispositive.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether, as a matter of law, an on-duty law‑enforcement officer acts outside the scope of employment when he uses official authority to coerce sex from a person under investigation	L.B.: coercion was incident to an authorized criminal investigation and may be within scope — factual issue for trier of fact	U.S.: such sexual misconduct is necessarily outside scope and therefore FTCA bars liability	Held: No — not as a matter of law; scope may include such misuse of authority if it arose out of and was committed in prosecution of the authorized task (fact issue)
Whether Maguire precludes respondeat superior liability for officer sexual assault	L.B.: Maguire is distinguishable and did not decide scope issues here	U.S.: Maguire bars recovery because sexual assault is outside scope	Held: Maguire is not dispositive or controlling here; facts differ and scope analysis still applies
Proper legal standard for "scope of employment" when act is unauthorized or criminal	L.B.: follow Montana precedent and Restatement factors — mixed motives permitted	U.S.: urges a narrower reading that excludes this conduct as a matter of law	Held: Adopt Restatement (Second) of Agency §229 factors; unauthorized, criminal, or egregious acts can nonetheless be within scope if closely connected and at least partially motivated to serve employer's interest
Whether summary judgment was appropriate based on certified facts	L.B.: certified facts permit reasonable inferences that misconduct was incident to employment — summary judgment improper	U.S.: facts concede sexual misconduct so only issue is law (officer outside scope)	Held: Summary judgment for Government was improper on scope; trier of fact must decide motives and connection to employment

Key Cases Cited

Kornec v. Mike Horse Mining & Milling Co., 120 Mont. 1, 180 P.2d 252 (Mont. 1947) (scope inquiry: unauthorized acts may be within scope if they "grow out of" and were committed in prosecution of an authorized task)
Keller v. Safeway Stores, 111 Mont. 28, 108 P.2d 605 (Mont. 1940) (acts closely intermingled with employment may impose employer liability, even if malicious or criminal)
Brenden v. City of Billings, 399 Mont. 352, 470 P.3d 168 (Mont. 2020) (adopts mixed‑motive approach; scope may include acts incidental to authorized conduct)
Maguire v. State, 254 Mont. 178, 835 P.2d 755 (Mont. 1992) (involving sexual assault by caretaker; Court distinguishes Maguire as addressing a different doctrine and factual record)
Paull v. Park Cty., 352 Mont. 465, 218 P.3d 1198 (Mont. 2009) (nondelegable-duty analysis—held inapplicable to FTCA respondeat superior question here)
United States v. Olson, 546 U.S. 43 (U.S. 2005) (federal precedent cited by Government on FTCA waiver scope; Court addressed but did not adopt Olson as dispositive)