L. B. V. USA, ET AL, No. 20-35514 (9th Cir. 2022)

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In light of the Montana Supreme Court’s August 16, 2022, opinion in response to the Ninth Circuit's August 6, 2021, certification order, this case is reversed and remanded to the district court for further proceedings. (“The certified facts establish that the Officer was not, as a matter of law, acting outside the scope of his employment when he sexually assaulted L.B. and the question is one for a trier of fact.”).

Court Description: Montana Law The panel reversed the district court’s summary judgment in light of the Montana Supreme Court’s response to this court’s certification order, and remanded to the district court for further proceedings pursuant to L.B. v. Unites States, 2022 MT 166 ¶ 26, __ P.3d __ (holding that the question whether Officer Bullcoming was acting outside the scope of his employment when he sexually assaulted L.B. is one for a trier of fact).

This opinion or order relates to an opinion or order originally issued on August 6, 2021.

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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT L. B., individually and on behalf of D.B., a minor, Plaintiff-Appellant, v. UNITED STATES OF AMERICA; BUREAU OF INDIAN AFFAIRS; DANA BULLCOMING, agent of the Bureau of Indian Affairs sued in his individual capacity, Defendants-Appellees. No. 20-35514 D.C. No. 1:18-cv-00074SPW ORDER Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding Argued and Submitted May 6, 2021 Submission Vacated August 6, 2021 Resubmitted September 15, 2022 Seattle, Washington Filed September 23, 2022 2 L.B. V. UNITED STATES Before: Mary H. Murguia, Chief Judge, and Danny J. Boggs * and Marsha S. Berzon, Circuit Judges. Order SUMMARY ** Montana Law The panel reversed the district court’s summary judgment in light of the Montana Supreme Court’s response to this court’s certification order, and remanded to the district court for further proceedings pursuant to L.B. v. Unites States, 2022 MT 166 ¶ 26, __ P.3d __ (holding that the question whether Officer Bullcoming was acting outside the scope of his employment when he sexually assaulted L.B. is one for a trier of fact). COUNSEL Timothy M. Bechtold (argued), Bechtold Law Firm PLLC, Missoula, Montana; John Heenan, Heenan & Cook, Billings, Montana; for Plaintiff-Appellant. Timothy A. Tatarka (argued), Assistant United States Attorney; Kurt G. Alme, United States Attorney; United The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ** L.B. V. UNITED STATES 3 States Attorney’s Office, Billings, Montana; for DefendantsAppellees. ORDER In light of the Montana Supreme Court’s August 16, 2022, opinion in response to this Court’s August 6, 2021, certification order, this case is reversed and remanded to the district court for further proceedings. See L.B. v. United States, 2022 MT 166, ¶ 26, ___ P.3d ___ (“The certified facts establish that Officer Bullcoming was not, as a matter of law, acting outside the scope of his employment when he sexually assaulted L.B. and the question is one for a trier of fact.”). Appellee’s motion for leave to file supplemental briefing is DENIED (Doc. 46). A copy of this order shall serve as the mandate of this court. REVERSED AND REMANDED.

Primary Holding

The Ninth Circuit reversed the district court’s summary judgment in light of the Montana Supreme Court’s response to this court’s certification order and remanded it to the district court for further proceedings pursuant to L.B. v. Unites States, 2022 MT 166.

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