9th Circuit Reloads Case of Re-Enlistment Fraud

     (CN) – The 9th Circuit on Thursday revived a Washington man’s lawsuit against two National Guard recruiters who he says forged his name on re-enlistment papers.

     Keith Jackson had been honorably discharged from the Washington Army National Guard and was working as a private contractor in Iraq in 2006 when he discovered someone had signed him up for two more years of service. Jackson accused Issaquah, Wash.-based recruiters Sgt. First Class Richard Tate and Capt. Randy DeCoteau of forging his signature on an enlistment contract while he was working overseas.
     Jackson initially sued Washington and the United States to have the enlistment agreement cancelled. Eventually the state agreed to an honorable discharge. Chief U.S. District Judge Robert Lasnik later dismissed his subsequent action against Tate and DeCoteau for lack of jurisdiction.
     The judge ruled that Jackson could not sue the recruiters because they had immunity under the so-called Feres doctrine – a tenant of the Federal Tort Claims Act that bars lawsuits brought by soldiers against the United States and its employees for military service-related injuries.
     In reversing Lasnik’s ruling Thursday, the federal appeals panel in Seattle found that the Feres doctrine did not apply to the case because Jackson was not in the military at the time the alleged forgery took place. Jackson was a member of Washington’s Individual Ready Reserve – a volunteer force that can be called up in the event of an emergency such as a domestic terror attack – but that is not the same as being an active military member, the panel found.
     “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,” Judge Barry Silverman wrote for the unanimous three-judge panel (emphasis in original). “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.'”
     Silverman added 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.”
     The panel further rejected the District Court’s finding that Tate and DeCoteau, as federal employees, may be immune under the Westfall Act because they were “acting within the scope of their employment.”
     Judge Lasnik had reasoned that the recruiters’ “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.'”
     But the 9th Circuit found that recruiting activities clearly “fall within the ambit of activities” eligible for immunity.
     Whether the recruiters acted outside their regular duties remains to be seen, and proven by Jackson, according to the panel, which remanded the case back to the District Court for just such a determination.
     “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,'” Silverman wrote (emphasis in original). “And, as we have further indicated, Jackson bears the burden of proof by a preponderance of the evidence on this issue. This factual determination remains to be made in this case.”

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