     Case: 17-60608   Document: 00514656954    Page: 1   Date Filed: 09/26/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals
                                                                      Fifth Circuit

                                No. 17-60608                        FILED
                                                            September 26, 2018
                                                               Lyle W. Cayce
KARLENE GILMORE,                                                    Clerk

                  Plaintiff-Appellant

v.

STATE OF MISSISSIPPI; MISSISSIPPI MILITARY DEPARTMENT;
GREGORY MICHEL, Individually; UNITED STATES OF AMERICA,

                  Defendants-Appellees


                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Karlene Gilmore’s lawsuit against the Installation Commander of Camp
Shelby Joint Forces Training Center in Mississippi was dismissed and her
remand motion denied based on the district court’s conclusion that
Colonel Michel, a member of the Mississippi National Guard, is a federal
employee shielded by the Westfall Act from individual liability. 28 U.S.C.
§ 2679(d). We AFFIRM.
                              BACKGROUND
      Karlene Gilmore (“Gilmore”) was a civilian employed by the Mississippi
Military Department at the All Ranks Club on Camp Shelby in Forrest County,
Mississippi.   In early 2017, Gilmore sued the State of Mississippi, the
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                                   No. 17-60608

Mississippi Military Department (collectively, “State Appellees”), and Colonel
Gregory Michel (“Michel”), her supervisor at the All Ranks Club, for wrongful
suspension and termination because she reported criminal acts of another
employee, Raven Fairley (“Fairley”), to Michel, who had a close relationship
with Fairley. Gilmore alleged that Fairley was stealing and giving away
alcohol in violation of state law. When Gilmore reported Fairley’s acts to
Michel in October 2015, she was instructed to gather more evidence, witness
statements, and video footage.       Cameras installed in the All Ranks Club
captured Fairley’s actions, but Gilmore was told that she needed more
evidence. She gathered more statements and evidence, but Michel allegedly
instructed her to stop “counseling and reprimanding” Fairley.                   Gilmore
formally requested Fairley’s termination on or about January 27, 2016.
       Gilmore alleged that her work environment became increasingly hostile
following this request, and Michel attempted to have her fired before she was
finally suspended and terminated.               Consequently, she alleges wrongful
discharge for reporting criminal acts of another to her employer.
       Acting on Michel’s behalf, the United States removed the action to
federal court pursuant to 28 U.S.C. § 1442, 1442(a), and the Westfall Act,
28 U.S.C. § 2679(d)(2). The government moved to substitute the United States
as a defendant in place of Michel pursuant to the Westfall Act and accompanied
its   motion   with    a   “Certification       of   Scope   of   Employment      Under
28 U.S.C. § 2679(d),” executed by the acting United States Attorney for the
Southern District of Mississippi. The certification stated that Michel was
acting within the course and scope of his employment as an active guard
reserve soldier in the Mississippi Army National Guard serving under Title 32
military orders at the time of the alleged conduct. The government also filed
a declaration by Colonel Amos P. Parker, Jr. (“Parker”) of the Mississippi



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National Guard, who also serves as the chief of staff for the Adjutant General
of the Mississippi National Guard, which stated that Michel was acting in the
course and scope of his official military duties with the Mississippi National
Guard as the installation commander for the Camp Shelby Joint Forces
Training Center for the entirety of the relevant time period. Ordinarily, such
certifications are deemed conclusive in favor of removal.                   See 28 U.S.C.
§ 2679(d)(2).
       Gilmore contested, however, that Michel could claim the status of a
federal employee in his dealings with her employment and sought remand to
state court. The State Appellees filed motions to dismiss based, inter alia, on
state sovereign immunity. 1 The federal government also moved to dismiss for
lack of subject matter jurisdiction arising from Gilmore’s failure to comply with
the pre-suit requirements of the Federal Tort Claims Act (“FTCA”).                       See
28 U.S.C. § 2671, et seq.
       The district court initially denied the United States’ motion to substitute
and granted Gilmore’s motion to remand, but upon reconsideration, it reversed
course. The district court explained that its previous order relied upon the
government’s “bare statement” in its original memorandum that Michel was a
federal employee as defined by 28 U.S.C. § 2671. The government had cured
this deficiency by subsequently elaborating that Michel was a federal employee
under 32 U.S.C. § 502(f)(1), which states that “a member of the National Guard
may . . . be ordered to perform training or other duty in addition to that
prescribed under subsection (a).” Colonel Parker’s declaration reinforced that
Colonel Michel’s position as installation commander was assigned to him


       1The district court subsequently granted the State Appellees’ motion because the
State had not waived its Eleventh Amendment immunity from money damages in federal
court. That order has not been briefed on appeal and is waived. See N.W. Enters., Inc. v. City
of Houston, 352 F.3d 162, 185 (5th Cir. 2003).


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pursuant to Section 502(f) and included the “obligation to oversee non-
appropriated fund instrumentalities” such as the All Ranks Club. Therefore,
the court concluded that Michel was a federal employee acting within the scope
of his employment, and under 28 U.S.C. § 2679(b)(1), Gilmore’s only remedy is
a suit against the United States.       The district court then granted the
government’s motion to dismiss Gilmore’s suit for lack of subject matter
jurisdiction because she had not filed an administrative claim as required by
the FTCA.
      The district court entered judgment in favor of all defendants on
August 9, 2017. Gilmore timely appealed.
                          STANDARD OF REVIEW
      This court reviews de novo issues of subject matter jurisdiction, including
a district court’s denial of a motion to remand. In re 1994 Exxon Chem. Fire,
558 F.3d 378, 384 (5th Cir. 2009). Similarly, we review de novo whether an
individual is an employee of the government as defined by the Federal Tort
Claims Act. Peacock v. United States, 597 F.3d 654, 659 (5th Cir. 2010). “We
review the district court's legal conclusions of the scope-of-employment issue
de novo.” Counts v. Guevara, 328 F.3d 212, 214 (5th Cir. 2003).
                                DISCUSSION
      Gilmore challenges on appeal the propositions that Michel was a
“federal employee” and that the government’s certification of his status met
the Westfall Act standards.     The Westfall Act protects “employees of the
[federal] government,” 28 U.S.C. § 2671, from tort suits filed because of actions
taken in the course and scope of their employment, and to that end authorizes
removal of such lawsuits to federal court and the substitution of the federal
government as a defendant pursuant to the FTCA. Although National Guard
members do not normally fall within the definition of “federal employees,” they



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are covered by the Westfall Act when “engaged in . . . duty under section . . .
502 . . . of title 32.” 28 U.S.C. § 2671.
      Gilmore first argues that the district court erred by finding that Michel
was a federal employee under 32 U.S.C. § 502(f) and that Michel was acting
within the scope of his federal employment in managing the All Ranks Club.
More specifically, Gilmore contends that Section 502(f) does not apply to
Michel’s management of the All Ranks because it only applies to “[s]upport of
training operations and training missions . . . to the extent that such training
missions and training operations . . . are only to instruct active duty military,
foreign military . . . , Department of Defense contractor personnel, or
Department of Defense civilian employees.” 32 U.S.C. § 502(f)(2). Because
Gilmore herself is neither in the military, nor a Department of Defense
contractor or civilian employee, she argues that Section 502(f) does not apply
to Michel’s actions as they relate to her supervision. We disagree.
      The text of Section 502(f) and the full description of Michel’s duties
compel the conclusion that Michel was a federal employee whose management
of the All Ranks Club was within the scope of his federal employment.
Section 502(f)(1) states that “a member of the National Guard may . . . be
ordered to perform training or other duty in addition to that prescribed under
subsection (a).” 32 U.S.C. § 502(f)(1) (emphasis added). The Ninth Circuit has
noted that the scope of this phrasing is inherently broad. Jackson v. Tate,
648 F.3d 729, 736 (9th Cir. 2011)(“Subsection 502(f)(1) of title 32 places a broad
swath of National Guard activity within the scope of federal employment for
purposes of the Westfall Act, because it covers ‘training or other duty’ that a
guardsman may be ordered to perform ‘[u]nder regulations to be prescribed by
the Secretary of the Army . . . .’”).
     The training or duty ordered to be performed under paragraph (1)
may include the following:


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           (A) Support of operations or missions undertaken by the
      member's unit at the request of the President or Secretary of
      Defense.

            (B) Support of training operations and training missions
      assigned in whole or in part to the National Guard by the Secretary
      concerned, but only to the extent that such training missions and
      training operations—

            (i) are performed in the United States or the Commonwealth
      of Puerto Rico or possessions of the United States; and

           (ii) are only to instruct active duty military, foreign military
      (under the same authorities and restrictions applicable to active
      duty troops), Department of Defense contractor personnel, or
      Department of Defense civilian employees.

32 U.S.C. § 502(f)(2).
      Gilmore contends that Section 502(f)’s language limits the scope of
“training missions and training operations” in two ways: those (a) involving
active duty military, foreign military, Department of Defense contractors, and
Department of Defense civilian employees, and (b) not the support thereof.
Such limitations are inconsistent with the uncontested facts in this case and
the overall scope of Section 502(f), which is not designed to limit but to enhance
the National Guard’s frame of actions.       Colonel Parker’s declaration thus
explains in detail both Colonel Michel’s responsibilities as an installation
commander prescribed by Army Regulation 600-20, “Army Command Policy,”
and the position description for Installation Commander/Management GS-
0340-13. The position description states:
      The primary purpose of this position is to serve as the Training
      Center Manager with responsibility for all operational aspects of
      training management in support of national defense initiatives
      and missions.      This requires critical support to the full
      mobilization of troops that are activated, trained, certified and


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      deployed for the war fight. This position is comparable to a
      directorate level, command position and complicated by the many
      facets of the training center program and mission. The incumbent
      manages personnel that are involved in professional, technical,
      trades, and administrative positions; and includes dual status and
      nondual status federal employees, state employees, contractors, full
      time AGR and traditional guard personnel. The training center
      may also support several tenant units, ARNO support facilities,
      and other non-ARNO activities. Management and executive
      knowledge and ability are the paramount qualification
      requirements and there are no requirements for specialized
      qualifications in a subject-matter or functional area. [Emphasis
      added].

Moreover, Camp Shelby is a joint training site not only for Active and Reserve
Army units, but also for the Air Force, Navy, and Marines. As installation
commander, Colonel Michel’s responsibilities support national defense
initiatives and missions, and he plainly serves in a managerial role over the
entire base, including management of state employees like those of the All
Ranks Club on Camp Shelby.
      The fact that Gilmore was technically a state employee did not take her
outside the purview of Michel’s supervision, because neither Section 502(f) nor
enabling regulations draw such a distinction. Further, the All Ranks Club is
quintessentially a facility whose purpose is to uphold the morale, welfare, and
recreation of military personnel. See Army Regulation 215-1, Ch. 4, Sections 4-
1, 4-2 (Sept. 24, 2010). Relatedly, Gilmore acknowledges that Colonel Michel’s
supervision of a medical facility, mess hall, or any other type of support facility
would fall within title 32. Accordingly, the district court did not err by finding
that Michel was a federal employee under 32 U.S.C. § 502(f) and 28 U.S.C.
§ 26781.
      Gilmore also argues that both the acting United States Attorney’s
Certification and Colonel Parker’s declaration should be disregarded for


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purposes of establishing that Michel was acting within the scope of his federal
employment because the documents are “vague and wholly conclusory.” This
position is untenable.
      The Westfall Act “accords federal employees absolute immunity from
common-law tort claims arising out of acts they undertake in the course of their
official duties.” Osborn v. Haley, 549 U.S. 225, 229, 127 S. Ct. 881, 887 (2007)
(citing 28 U.S.C. § 2679(b)(1)). The Act authorizes the Attorney General to
certify that the employee “was acting within the scope of his office or
employment at the time of the incident out of which the claim arose.” Id. at
229-30, 127 S. Ct. at 887-88 (citing 28 U.S.C. § 2679(d)(1), (2)).            Such
certification “is conclusive for purposes of removal . . . .” Id. at 225, 127 S. Ct.
at 884. Upon proper certification, the action “shall be deemed an action against
the United States . . . and the United States shall be substituted as the party
defendant.” 28 U.S.C. § 2679(d)(1); see also Gutierrez de Martinez v. Lamagno,
515 U.S. 417, 420, 115 S. Ct. 2227, 2229 (1995) (“Upon certification, the
employee is dismissed from the action and the United States is substituted as
defendant. The case then falls under the governance of the Federal Tort
Claims Act . . . .”). The Supreme Court has acknowledged that it is customary
for such certifications to state no reasons for their determinations. Id. at 421,
115 S. Ct. at 2230. The district court appropriately credited the certifications
made here when it decided to substitute the United States as the party
defendant in Michel’s place and deny remand.
      Gilmore’s Notice of Appeal indicates that she also would appeal the
district court’s order granting the Defendants’ motions to dismiss.            It is
uncontested that she did not prefile her claim concerning Michel as required
by the FTCA, and her brief does not address this issue. By failing to brief this




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issue, Gilmore waived it. See N.W. Enters., Inc. v. City of Houston, 352 F.3d
162, 185 (5th Cir. 2003).
                              CONCLUSION
      For the foregoing reasons, we AFFIRM.




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