and Submitted June 11, 2018 Seattle, Washington
from the United States District Court for the Western
District of Washington John C. Coughenour, Senior District
Judge, Presiding D.C. No. 2:15-cv-00629-JCC
William Joseph Johnston (argued), Bellingham, Washington, for
W. Novasky (argued), Forsberg & Umlauf P.S., Tacoma,
Washington, for Defendants-Appellees.
Luthy Miller (argued), Assistant United States Attorney;
Annette L. Hayes, United States Attorney; United States
Attorney's Office, Seattle, Washington; for
Before: Dorothy W. Nelson and Paul J. Watford, Circuit
Judges, and Dean D. Pregerson, [*] District Judge.
Jurisdiction / Westfall Act
action challenging the civil forfeiture of plaintiff's
truck that was seized by a police officer of the Lummi Indian
Tribe, the panel affirmed the district court's order
entering summary judgment against plaintiff on his conversion
claim, but vacated the judgment of dismissal and remanded
with instructions to dismiss the action without prejudice to
refiling after plaintiff exhausts the appropriate remedies.
leaving a casino on the Lummi Indian Reservation, Wilson was
driving on a Washington state road crossing through the Lummi
Indian Reservation when he was stopped by a Lummi tribal
police officer who suspected that Wilson was driving while
intoxicated. After a search of the truck revealed marijuana,
the truck was seized and the Lummi Tribal Court issued a
notice of civil forfeiture.
panel agreed with the district court's ultimate
conclusion that tribal jurisdiction was colorable in this
case, but for a different reason than that given by the
district court. The panel held that although Wilson was
stopped on a state road, one could logically conclude that
the forfeiture was a response to his unlawful possession of
marijuana while on tribal land. The panel further held that
the events giving rise to the conversion claim revealed a
direct connection to tribal lands, and provided at least a
colorable basis for the tribe's jurisdiction over the
dispute. The panel affirmed the district court's decision
to dismiss the case for comity reasons. The panel held that
the Lummi Tribal Court must be given the opportunity to first
address the question of whether tribal jurisdiction exists.
panel held that the district court properly substituted the
United States as a party for the tribal police officer
pursuant to the Westfall Act. The panel employed the two-step
test, delineated in Shirk v. U.S. ex rel. Dep't of
Interior, 773 F.3d 999, 1006 (9th Cir. 2014), for
determining whether a tribal employee could be deemed a
federal Bureau of Indian Affairs employee for the purposes of
Federal Tort Claims Act liability. The panel held that under
both prongs of Shirk's analysis, Wilson had not
rebutted the presumptions created by the Attorney
General's certification that the officer was acting
within the scope of his employment for the United States
government at the time of the incident.
panel held that the district court erred by dismissing the
entire action with prejudice because Wilson can potentially
renew his claims in federal court after the appropriate
remedies have been exhausted.
PREGERSON, DISTRICT JUDGE
appeal concerns the seizure of Plaintiff Curtiss Wilson's
truck by Brandon Gates, a police officer of the Lummi Indian
Tribe. After visiting a casino on the Lummi reservation,
Wilson was stopped by Lummi police and found with marijuana
in his truck. Citing a violation of tribal drug laws, the
Lummi Tribe issued a notice of civil forfeiture and took
possession of Wilson's truck.
sued Officer Gates, who had served the forfeiture notice, and
Horton's Towing, the towing company that had released the
car to Officer Gates. The district court then substituted the
United States as a defendant for Officer Gates pursuant to
the Westfall Act, 28 U.S.C. § 2679(d).
summary judgment phase, Wilson's sole remaining claim was
one for conversion against Horton's Towing and the United
States (collectively, "Defendants"). The district
court entered summary judgment against Wilson and dismissed
the action with prejudice. It held that Wilson had failed to
exhaust his tribal remedies against Horton's Towing, and
that Wilson had also failed to exhaust his administrative
remedies against the United States.
jurisdiction under 28 U.S.C. § 1291, and we affirm the
district court's order entering summary judgment.
However, we vacate the judgment of dismissal and remand with
instructions to dismiss this action without prejudice to
refiling after Plaintiff has exhausted the appropriate
AND PROCEDURAL BACKGROUND
October 22, 2014, Plaintiff Curtiss Wilson drove his 1999
Dodge Ram pickup to a casino located on the Lummi Indian
Reservation. After drinking at the casino, Wilson
travelled onto a Washington state road crossing through the
reservation. Wilson was stopped on this road by Grant Assink,
a Lummi tribal police officer, who suspected that Wilson was
driving while intoxicated.
Assink searched Wilson's pickup truck and found several
containers of marijuana inside. Officer Assink then alerted
the Washington State Patrol, who arrested Wilson for driving
under the influence. At the direction of the Washington State
Patrol, Horton's Towing impounded the truck and towed it
off the reservation.
next day, the Lummi Tribal Court issued a "Notice of
Seizure and Intent to Institute Forfeiture." The notice
cited Section 5.09A.110(d)(2) of the Lummi Nation Code of
Laws, which prohibits the possession of marijuana over one
ounce, as the grounds for civil forfeiture. Lummi Tribal
Police Officer Brandon Gates presented Horton's Towing
with the forfeiture notice, and Horton's Towing released
the truck to Officer Gates.
basis of these events, Plaintiff brought suit against
Horton's Towing and Officer Brandon Gates. After the
filing of a certification by the Attorney General, the
district court substituted the United States as a party for
Officer Gates pursuant to the Westfall Act, 28 U.S.C. §
Defendants filed motions for summary judgment. The district
court entered summary judgment in Defendants' favor. It
held that principles of comity required Wilson to exhaust his
tribal remedies against Horton's Towing. It also held
that Wilson had failed to exhaust his administrative remedies
against the United States pursuant to the Federal Tort Claims
Act ("FTCA"), 28 U.S.C. § 2675(a).
timely appealed. See Fed. R. App. P. 4(a)(1).