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Keith J. Jackson v. Richard A. Tate; Randy L.

June 2, 2011

KEITH J. JACKSON, PLAINTIFF-APPELLANT,
v.
RICHARD A. TATE; RANDY L. DECOTEAU,
DEFENDANTS-APPELLEES.



D.C. No. 2:09-cv-00874-RSL Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, Chief District Judge, Presiding

The opinion of the court was delivered by: Silverman, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted April 11, 2011-Seattle, Washington

Before: Andrew J. Kleinfeld, A. Wallace Tashima, and Barry G. Silverman, Circuit Judges.

Opinion by Judge Silverman

OPINION

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.*fn1 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."*fn2

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 ...


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