United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane United States District Judge.
United States of America moves to substitute the United
States as Defendant in place of the Oregon Army National
Guard and Theodore Santoyo in his official
capacity. Because Amber Cordry-Martinez and Theodore
Santoyo were federal employees and acted within the scope of
their employment when the alleged violations occurred, the
motion to substitute is GRANTED.
AND FACTUAL BACKGROUND
the relevant period beginning mid-April 2012 until September
30th, 2015, Cordry-Martinez and her supervisor, Theodore
Santoyo, were members of the Oregon Army National Guard
(Guard). See ECF 1-3, State Ct. Compl., at 3. They
were stationed at the Guard's primary facility in Marion
County and served on the Guard's counter-drug task force
(task force). Id. at 4. The task force collaborates
with local law enforcement in their mission of locating and
eradicating illegal marijuana growth in Oregon. Id.
During the relevant period, Cordry-Martinez and Santoyo were
ordered to Full Time National Guard Duty (FTNGD) to provide
operational support to the counter drug mission pursuant to
32 U.S.C. § 502(f). See ECF 1-1,
Cordry-Martinez Active Duty Orders, at 1-21; ECF 1-2, Santoyo
Active Duty Orders, at 1-16. On March 16th, 2017,
Cordry-Martinez brought a civil action in Marion County
Circuit Court against the Guard and Santoyo alleging various
violations including: unlawful discrimination, unlawful
retaliation, wrongful discharge and a violation of 42 U.S.C.
§ 1983. On April 27th, 2015, on behalf of the defendants
and pursuant to 28 U.S.C §§ 1441-1446, Billy
Williams, the U.S. Attorney for the District of Oregon,
removed the case to this court certifying that
Cordry-Martinez and Santoyo were acting within their scope of
employment with the United States Army (U.S. Army) when the
alleged violations occurred. See ECF 1, Notice of
Removal, at 1-3. This motion to substitute followed.
Attorney General's decision to certify that a Federal
employee was acting within the scope of his employment when
he committed an alleged violation is subject to judicial
review. Gutierrez de Martinez v. Lamagno, 515 U.S.
417, 430 (1995). The district court reviews the Attorney
General's scope of employment certification de novo.
Thompson v. United States, 2014 WL 1652605 at * 2
(D. Haw. April 22, 2014). The moving party bears the burden
of proving beyond the preponderance of evidence that the
Attorney General's decision to grant or deny scope of
employment certification should be affirmed or reversed.
Id. Once this Court affirms the Attorney
General's scope of employment certification, the United
States is substituted in as the defendant. Id.
the U.S. attorney, representing the Attorney General,
certified that both Cordry-Martinez and Santoyo were employed
by the U.S. Army and acted within the scope of their
employment when the alleged violations occurred. See
Motion to Substitute at 2.
Cordry-Martinez and Santoyo were employees of the United
argues that as members of the Guard, she and Santoyo were
state employees because they were not under the authority of
the federal military. See ECF 9, Resp. at 2.
Cordry-Martinez does not dispute that she and Santoyo were
ordered to FTNGD pursuant to 32 U.S.C. § 502(f) when the
alleged violations occurred. See ECF 9, Resp. at 2.
32 U.S.C. § 502(f) authorizes the U.S. Army to order
members of the National Guard to perform training or other
duties with or without the members' consent, as well as
with or without pay.
National Guard personnel operating under orders pursuant to
32 U.S.C. § 502(f) are at best dual federal-state
employees. United States ex rel. Conover v. Anthony,
731 F.Supp.2d 257, 264 (D. Md. February 9, 2011) (citing
Matreale v. New Jersey Dept. of Military and Veteran
Affairs, 487 F.3d 150, 156-157 (3rd Cir. 2007)). It is
also well established that the federal government's
supremacy over the states with regards to military affairs
mandates that a member of any state National Guard who is
ordered to federal active duty service be relieved of his
status in the state National Guard for the duration of his
federal service. Perpich v. Department of Defense,
496 U.S. 334, 346 (1990). Likewise, the court in
Matreale held that even when not in federal active
duty service, “a state guardsman serving under orders
issued pursuant to Title 32, whether serving under
§502(a) or §502(f), has and retains his federal
status, along with his state status . . . .”, 487 F.3d
at 156. These cases align with the plain language of 28
U.S.C. § 2671, which states an “‛Employee of
the Government' includes . . . members of the National
Guard while engaged in training or duty under section . . .
502 . . . of title 32 . . . .” Because Cordry-Martinez
and Santoyo were ordered to FTNGD by the U.S. Army pursuant
to 32 U.S.C. 502 (f) when the alleged violations occurred,
they were federal employees.
further argues that she and Santoyo worked for the state
counter-drug task force and thus were not federal employees
because the law providing for the task force's underlying
funding precluded Guard personnel within the federal service
from engaging in counter-drug operations. See ECF 9,
Resp. at 5; 32 U.S.C. § 112. However, as an exception to
that same law, Guard members ordered to FTNGD pursuant to 32
U.S.C. § 502(f), can engage in counter drug activities.
32 U.S.C. § 112(b). Thus, members of a state National
Guard who are in federal service can engage in counter-drug
activities. Id. Accordingly, because Cordry-Martinez
and Santoyo were in federal service pursuant to 32 U.S.C.
§ 502(f), they were not precluded from engaging in
Cordry-Martinez and Santoyo as employees of the United States
acted within the scope of their employment
determined above that the Cordry-Martinez and Santoyo were
federal employees, to succeed in its motion to substitute,
the United States must prove by a preponderance of the
evidence that they acted within the scope of their employment
when the alleged violations occurred. Thompson, 2014
WL 1652605 at* 3. When deciding a scope of employment
question, this Circuit applies the law of the state where the
alleged violation occurred. Schwarder v. United
States, 974 F.2d 1118, 1125 (9th Cir. 1992) (citing
Williams v. United States, 350 U.S. 857, 857 (1955)
(per curiam)). Because ...