Ian Nacke v. United States

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-2419
IAN A. NACKE,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Louise W. Flanagan, District Judge. (5:18-cv-00196-FL)
Submitted: July 12, 2019 Decided: July 30, 2019
Before HARRIS and RUSHING, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Steven C. Lawrence, ANDERSON, JOHNSON, LAWRENCE & BUTLER L.L.P.,
Fayetteville, North Carolina, for Appellant. Robert J. Higdon, Jr., United States
Attorney, Joshua B. Royster, Assistant United States Attorney, Rudy E. Renfer, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ian A. Nacke filed a civil action in North Carolina superior court raising state law
tort claims against Andrea Gerard. At the time of the alleged events, Nacke and Gerard
were both active-duty officers in the Army. The United States removed the action to
federal court pursuant to 28 U.S.C. §§ 1442(a)(1), 2679 (2012), certifying that Gerard
was acting in the course and scope of her federal employment at the time of the incident
alleged in the complaint and substituting itself for Gerard as the sole defendant. Nacke
moved to remand, and the United States moved to dismiss the action pursuant to Fed. R.
Civ. P. 12(b)(1). After concluding that Nacke’s claims were barred by the Feres 1
military abstention doctrine, the district court denied Nacke’s motion, granted the United
States’ motion, and dismissed the action for lack of subject matter jurisdiction. Nacke
now appeals the dismissal order, raising a variety of challenges to the court’s Rule
12(b)(1) ruling. We affirm.
We review the district court’s Rule 12(b)(1) dismissal de novo. Wilner v. Dimon,
849 F.3d 93, 103 (4th Cir. 2017). Where, as here, the defendant raises a facial attack to
jurisdiction, the district court must afford the plaintiff “the same procedural protection as
he would receive under a [Fed. R. Civ. P.] 12(b)(6) consideration,” accepting the facts
alleged in the complaint as true and drawing all reasonable inferences in favor of the
plaintiff. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (internal quotation
1
Feres v. United States, 340 U.S. 135 (1950).
2
marks omitted); see Singer v. Reali, 883 F.3d 425, 437 (4th Cir. 2018) (Rule 12(b)(6)
standard).
Nacke first argues that the district court misapplied the Rule 12(b)(1) standard by
treating his complaint as asserting claims brought against the United States under the
Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680 (2012). He asserts
that, in construing the complaint in this manner, the court viewed the complaint in the
light least favorable to him and improperly relied on materials extrinsic to the complaint.
He also asserts that the United States effectively consented to federal jurisdiction through
its voluntary substitution as defendant.
Nacke’s arguments are misplaced, as the substitution of both parties and claims
occurred by operation of the Federal Employees Liability Reform and Tort Compensation
Act of 1988 (“Westfall Act”), 28 U.S.C. § 2679. When a federal employee is sued for
wrongful conduct, the Westfall Act empowers the Attorney General 2 to certify that “the
defendant employee was acting within the scope of his office or employment at the time
of the incident out of which the claim arose.” 28 U.S.C. § 2679(d)(2). “Upon the
Attorney General’s certification, the employee is dismissed from the action, and the
United States is substituted as defendant in place of the employee.” Osborn v. Haley, 549
U.S. 225, 230 (2007); see 28 U.S.C. § 2679(d)(2). The action then becomes a suit against
the United States under the FTCA, which provides the plaintiff’s exclusive mode of
2
By regulation, the United States Attorneys are authorized to issue certifications
on behalf of the Attorney General. See 28 C.F.R. § 15.4 (2019).
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recovery, even where the claim falls within an exception to the FTCA that precludes
liability. United States v. Smith, 499 U.S. 160, 165-67 (1991); Maron v. United States,
126 F.3d 317, 321-22 (4th Cir. 1997); see 28 U.S.C. § 2679(d)(4). The United States’
“certification is conclusive unless challenged.” Gutierrez de Martinez v. Drug Enf’t
Admin., 111 F.3d 1148, 1153 (4th Cir. 1997).
Nacke claims that he challenged the scope-of-employment certification through
his motion to remand the action to state court, and that the court was obliged to provide
him an opportunity for discovery and an evidentiary hearing on the matter. We disagree.
First, although the Attorney General’s scope-of-employment certification is subject to
judicial review, Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995), it remains
“conclusive for purposes of removal,” Osborn, 549 U.S. at 231; see 28 U.S.C.
§ 2679(d)(2). Thus, the court was not required to consider the propriety of the
certification in resolving Nacke’s request for remand. Second, Nacke’s motion to remand
did little to challenge the certification on the ground that Gerard’s actions fell outside the
scope of her employment for purposes of § 2679(d)(2), instead raising a separate legal
challenge to removal. Further, Nacke does not dispute the district court’s conclusion that,
even if the certification were unwarranted, his claims would remain barred by Feres, and
we decline to address the issue sua sponte. See United States v. Bartko, 728 F.3d 327,
335 (4th Cir. 2013) (deeming issue not raised in opening brief waived).
Nacke correctly observes that “[§] 2679(d)(2) does not preclude a district court
from resubstituting the federal official as defendant for purposes of trial if the court
determines, postremoval, that the Attorney General’s scope-of-employment certification
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was incorrect.” Osborn, 549 U.S. at 242. But “[s]ubstitution of the United States is not
improper simply because the Attorney General’s certification rests on an understanding
of the facts that differs from the plaintiff’s allegations.” Id. at 231. Instead, the 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.” Id. Nacke did not submit “specific
evidence or forecast specific evidence that contradicts the Attorney General’s
certification decision,” Borneman v. United States, 213 F.3d 819, 827 (4th Cir. 2000), as
required to justify discovery or an evidentiary hearing on the certification question. See
Maron, 126 F.3d at 323 (describing procedure for challenging certification); Gutierrez de
Martinez, 111 F.3d at 1153-55 (same).
Nacke provides no authority for his assertion that the scope-of-employment
certification constitutes a de facto waiver of sovereign immunity, and we find his
argument unpersuasive. See Smith, 499 U.S. at 165-66; Maron, 126 F.3d at 321-22; see
also United States v. Sherwood, 312 U.S. 584, 587-88 (1941) (recognizing that
jurisdiction to entertain suits against United States exists only to extent Congress has
consented). Because the unrefuted scope-of-employment certification effectively
converted Nacke’s claims to FTCA claims against the United States, the district court did
not consider matters outside the complaint, or construe any facts against Nacke, in
treating the action as an FTCA action against the United States.
Nacke next asserts that the district court erred in applying Feres to bar his action.
Under the Feres doctrine, “the Government is not liable under the FTCA for injuries to
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servicemen where the injuries arise out of or are in the course of activity incident to
service.” Stewart v. United States, 90 F.3d 102, 104 (4th Cir. 1996) (alteration and
internal quotation marks omitted). “‘Incident to service’ is not . . . a narrow term
restricted to actual military operations such as field maneuvers or small arms instruction,”
but instead has been applied to various recreational activities by active-duty service
members, even when they were temporarily in off-duty status. Hass v. United States, 518
F.2d 1138, 1141-42 (4th Cir. 1975).
The courts have not developed “a specific element-based or bright-line rule
regarding what type of conduct is ‘incident to service’” for purposes of Feres. Aikens v.
Ingraham, 811 F.3d 643, 650 (4th Cir. 2016) (internal quotation marks omitted). Instead,
the Court looks to “whether particular suits would call into question military discipline
and decisionmaking [and would] require judicial inquiry into, and hence intrusion upon,
military matters.” Cioca v. Rumsfeld, 720 F.3d 505, 515 (4th Cir. 2013) (alteration in
original) (internal quotation marks omitted). The doctrine is broad enough “to
encompass, at a minimum, all injuries suffered by military personnel that are even
remotely related to the individual’s status as a member of the military.” Stewart, 90 F.3d
at 105 (internal quotation marks omitted).
Importantly, the Feres test “does not inquire whether the discrete injuries to the
victim were committed in support of the military mission,” but instead whether the
asserted injuries “stem from the relationship between the plaintiff and the plaintiff’s
service in the military.” Cioca, 720 F.3d at 515 (internal quotation marks omitted).
Accepting the allegations in the complaint as true and drawing all reasonable inferences
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in favor of Nacke, we conclude that Nacke’s complaint alleges injuries stemming from
his relationship to the military. Further, his claims “are the type of claims that, if
generally permitted, would involve the judiciary in sensitive military affairs at the
expense of military discipline and effectiveness.” See Minns v. United States, 155 F.3d
445, 449 (4th Cir. 1998) (internal quotation marks omitted). Thus, we conclude that
Nacke’s action was properly subject to dismissal under the Feres doctrine.
Finally, we reject Nacke’s contention that the dismissal of his action violated his
procedural due process rights. See D.B. v. Cardall, 826 F.3d 721, 741 (4th Cir. 2016)
(requiring “notice and opportunity for hearing appropriate to the nature of the case” to
comply with due process (internal quotation marks omitted)); Sansotta v. Town of Nags
Head, 724 F.3d 533, 540 (4th Cir. 2013) (recognizing that due process requires “a fair
process, . . . but does not require certain results” (internal quotation marks omitted)).
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED
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