Curtiss Wilson v. Horton's Towing

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CURTISS WILSON, No. 16-35320
Plaintiff-Appellant,
D.C. No.
v. 2:15-cv-00629-
JCC
HORTON’S TOWING, a Washington
corporation; UNITED STATES OF
AMERICA, OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, Senior District Judge, Presiding

Argued and Submitted June 11, 2018
Seattle, Washington

Filed October 9, 2018

Before: Dorothy W. Nelson and Paul J. Watford, Circuit
Judges, and Dean D. Pregerson, * District Judge.

Opinion by Judge Pregerson

*
The Honorable Dean D. Pregerson, United States District Judge
for the Central District of California, sitting by designation.
2 WILSON V. HORTON’S TOWING

SUMMARY **

Tribal Jurisdiction / Westfall Act

In an 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.

After 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.

The 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

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 WILSON V. HORTON’S TOWING 3

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.

The 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.

The 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.

COUNSEL

William Joseph Johnston (argued), Bellingham,
Washington, for Plaintiff-Appellant.

Robert W. Novasky (argued), Forsberg & Umlauf P.S.,
Tacoma, Washington, for Defendants-Appellees.

Teal Luthy Miller (argued), Assistant United States
Attorney; Annette L. Hayes, United States Attorney; United
4 WILSON V. HORTON’S TOWING

States Attorney’s Office, Seattle, Washington; for
Defendants-Appellees.

OPINION

PREGERSON, District Judge:

This 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.

Wilson 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).

At the 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.

We have 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
 WILSON V. HORTON’S TOWING 5

refiling after Plaintiff has exhausted the appropriate
remedies.

FACTUAL AND PROCEDURAL BACKGROUND

On October 22, 2014, Plaintiff Curtiss Wilson drove his
1999 Dodge Ram pickup to a casino located on the Lummi
Indian Reservation. 1 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. 2

Officer 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.

The 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

1
Plaintiff is not a member of the Lummi Tribe, which is a federally
recognized Indian tribe. See Indian Entities Recognized and Eligible To
Receive Services From the United States Bureau of Indian Affairs,
81 Fed. Reg. 5021 (Jan. 29, 2016).
2
Although the district court’s order and Plaintiff’s brief refer to
Officer Assink as “Grant Austick,” the underlying documents in this
case, including the Notice of Seizure, all name him as “Grant Assink.”
6 WILSON V. HORTON’S TOWING

with the forfeiture notice, and Horton’s Towing released the
truck to Officer Gates.

On the 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. § 2679(d).

Subsequently, 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).

Plaintiff timely appealed. See Fed. R. App. P. 4(a)(1).

STANDARD OF REVIEW

We review de novo a district court’s decision to grant
summary judgment. Fair Hous. Council of Riverside Cty.,
Inc. v. Riverside Two, 249 F.3d 1132, 1135 (9th Cir. 2001).

ANALYSIS

This appeal turns on two separate determinations of the
district court. The first concerns its decision to dismiss
Wilson’s case against Horton’s Towing for failure to exhaust
tribal remedies. The second concerns the district court’s
decision to substitute the United States for Officer Gates as
a party defendant, pursuant to the Westfall Act, 28 U.S.C.
§ 2679(d).
 WILSON V. HORTON’S TOWING 7

We address each issue in turn.

A. Exhaustion of Tribal Remedies against Horton’s
Towing

“Principles of comity require federal courts to dismiss or
to abstain from deciding claims over which tribal court
jurisdiction is colorable, provided that there is no evidence
of bad faith or harassment.” Marceau v. Blackfeet Hous.
Auth., 540 F.3d 916, 920 (9th Cir. 2008) (quotations
omitted). If tribal jurisdiction is “colorable” or “plausible,”
a plaintiff must first exhaust any remedies before the tribal
court. Atwood v. Fort Peck Tribal Court Assiniboine,
513 F.3d 943, 948 (9th Cir. 2008). This exhaustion
requirement provides “the forum whose jurisdiction is being
challenged the first opportunity to evaluate the factual and
legal bases for the challenge.” 3 Nat’l Farmers Union Ins.
Companies v. Crow Tribe of Indians, 471 U.S. 845, 856
(1985).

Applying this exhaustion of remedies requirement, the
district court concluded that principles of comity warranted
the dismissal of Wilson’s conversion claim against Horton’s
Towing. The district court ruled that tribal jurisdiction was
colorable because “the transactions forming the basis of
Plaintiff’s case” happened or began on tribal lands.
Specifically, the district court found that the stretch of state

3
In addition to situations where tribal jurisdiction is plainly lacking,
the exhaustion requirement is excused when the defendant asserts tribal
jurisdiction in bad faith; when exhaustion would be futile; or when tribal
jurisdiction is barred by “express jurisdictional prohibitions.” Nevada v.
Hicks, 533 U.S. 353, 369 (2001). Plaintiff argues that the bad faith
exception has been triggered. However, because this argument was made
below but not raised in Plaintiff’s opening brief, we deem it waived. See
Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990).
8 WILSON V. HORTON’S TOWING

road upon which Plaintiff was arrested was tribal land, and
therefore subject to the tribe’s civil jurisdiction.

We agree with the district court’s ultimate conclusion
that tribal jurisdiction is colorable in this case. For the
reasons discussed below, however, we part ways with the
district court on why tribal jurisdiction is colorable and
whether the state road is properly deemed tribal land.

1. A Tribe’s Civil Jurisdiction over Non-Members

Broadly speaking, a tribe’s source of authority may stem
from statutory and treaty rights or, as relevant here, a tribe’s
“inherent sovereignty.” Montana v. United States, 450 U.S.
544, 563 (1981). The foundational case on the scope of a
tribe’s inherent sovereign authority is Montana v. United
States, 450 U.S. 544 (1981). Montana voiced the “general
proposition that the inherent sovereign powers of an Indian
tribe do not extend to the activities of nonmembers.” 4 Id. at
565.

Subsequent decisions have clarified that Montana’s rule
“ordinarily applies only to non-Indian land.” 5 Water Wheel
Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802,
813 (9th Cir. 2011). “[T]ribes retain considerable control

4
Montana addressed the scope of a tribe’s civil jurisdiction over
nonmembers. See Strate v. A-1 Contractors, 520 U.S. 438, 445 (1997).
Separately, in the criminal context, the Supreme Court has held that
tribes have no jurisdiction over non-Indians. See Oliphant v. Suquamish
Tribe, 435 U.S. 191, 195 (1978).

5
That is, in the absence of the competing state interests at issue in
Nevada v. Hicks, 533 U.S. 353 (2001), tribes generally maintain civil
adjudicative authority over non-members on tribal land. See Window
Rock Unified Sch. Dist. v. Reeves, 861 F.3d 894, 898–99 (9th Cir. 2017),
as amended (Aug. 3, 2017), cert. denied, 138 S. Ct. 648 (2018).
 WILSON V. HORTON’S TOWING 9

over nonmember conduct on tribal land.” Strate v. A-1
Contractors, 520 U.S. 438, 454 (1997). The question of
“whether tribal courts may exercise jurisdiction over a
nonmember defendant may turn on how the claims are
related to tribal lands.” Smith v. Salish Kootenai Coll.,
434 F.3d 1127, 1132 (9th Cir. 2006) (en banc). For this
reason, land status is often dispositive of the issue of a tribe’s
civil jurisdiction over non-members. See Nevada v. Hicks,
533 U.S. 353, 360 (2001).

On tribal lands, a tribe generally retains the inherent
sovereign “right to exclude,” together with regulatory and
adjudicative authority that flows from that right. Window
Rock Unified Sch. Dist. v. Reeves, 861 F.3d 894, 898, 899
(9th Cir. 2017), as amended (Aug. 3, 2017), cert. denied,
138 S. Ct. 648 (2018).

Off tribal lands, however, a tribe generally lacks such
authority unless one of the two exceptions set forth in
Montana applies. Id. at 898. First, a tribe may exercise
control over “the activities of nonmembers who enter
consensual relationships with the tribe or its members,
through commercial dealing, contracts, leases, or other
arrangements.” Montana, 450 U.S. at 565. Second, a tribe
may “exercise civil authority over the conduct of non-
Indians on fee lands within its reservation when that conduct
threatens or has some direct effect on the political integrity,
the economic security, or the health or welfare of the tribe.”
Id. at 566.

Although Montana does not address the issue of
exhaustion of tribal remedies, its reasoning informs our
inquiry into whether tribal jurisdiction is colorable.
Specifically, when “it is plain that no federal grant provides
for tribal governance of nonmembers’ conduct on land
covered by Montana’s main rule,” then “it will be equally
10 WILSON V. HORTON’S TOWING

evident that tribal courts lack adjudicatory authority over
disputes arising from such conduct.” Strate, 520 U.S. at 459
n.14. Under these circumstances, the exhaustion requirement
“must give way, for it would serve no purpose other than
delay.” Id.

In this case, the threshold question is whether Plaintiff’s
claim “bears some direct connection to tribal lands,” such
that tribal jurisdiction is colorable. Smith, 434 F.3d at 1135.
Our inquiry is not narrowly focused on “deciding precisely
when and where the claim arose.” Id. Rather, we must
examine “how the claims are related to tribal lands.” Id. at
1132. Tribal jurisdiction is colorable, for example, when the
events that “form the bases for [Plaintiff’s] claims occurred
or were commenced on tribal territory.” A & A Concrete,
Inc. v. White Mountain Apache Tribe, 781 F.2d 1411, 1416
(9th Cir. 1986).

If Plaintiff’s claim is directly tied to events that occurred
on tribal land, then tribal jurisdiction is colorable and the
exhaustion of tribal remedies is required. Conversely, if
those events did not take place on tribal land, we must ask
whether either of Montana’s two exceptions could confer an
alternative basis for tribal jurisdiction.

2. Whether Tribal Civil Jurisdiction Is Colorable

In granting summary judgment, the district court
reasoned that tribal jurisdiction over Plaintiff’s claim was
colorable because the Washington state road on which the
traffic stop occurred was tribal land.

Under similar circumstances, the Supreme Court has
deemed a state highway running through a reservation to be
“alienated, non-Indian” land. Strate, 520 U.S. at 454. In
Strate, it was the tribe’s right to “exercise dominion or
 WILSON V. HORTON’S TOWING 11

control over the right-of-way” that determined the status of
the land. 6 Id. at 455; see McDonald v. Means, 309 F.3d 530,
538 (9th 2002).

The district court did not properly consider the factors
articulated in Strate when it concluded that the state road was
tribal land. However, we need not decide, on this record,
whether the roadway is tribal land. That is because
jurisdiction is colorable for other reasons. Specifically,
Wilson’s conversion claim may still “bear[] some direct
connection to” his conduct on tribal lands. Smith, 434 F.3d
at 1135.

Immediately after leaving the casino, Wilson was found
with several containers of marijuana in his truck. Lummi law
prohibits the possession of over one ounce of marijuana, and
makes the vehicle used to transport this contraband the target
of civil forfeiture. Although Wilson was stopped on the state
road, one could logically conclude that the forfeiture was a
response to his unlawful possession of marijuana while on
tribal land. So interpreted, the events giving rise to the
conversion claim reveal a “direct connection to tribal lands,”

6
The Strate Court acknowledged that it did not question a tribe’s
authority to “patrol roads within a reservation, including rights-of-way
made part of a state highway, and to detain and turn over to state officers
nonmembers stopped on the highway for conduct violating state law.”
520 U.S. at 456 n.11. Thus, a tribe’s authority to patrol state highways
on reservation lands does not mean that events occurring on those
highways necessarily take place on tribal land, and are subject to a tribe’s
civil jurisdiction.
12 WILSON V. HORTON’S TOWING

id., and provide at least a colorable basis for the tribe’s civil
jurisdiction over the dispute. 7

Therefore, we affirm the district court’s decision to
dismiss the case for comity reasons, but we do so for reasons
different from the ones that the court had articulated. See
Cigna Prop. & Cas. Ins. Co. v. Polaris Pictures Corp.,
159 F.3d 412, 418 (9th Cir. 1998) (“If the decision below is
correct, it must be affirmed, even if the district court relied
on the wrong grounds or wrong reasoning.”).

Our holding leaves open the question of whether the
Lummi Tribal Court has civil jurisdiction over Plaintiff’s
action. Plaintiff, in his briefing, conflates the issue of
jurisdiction with the issue of exhaustion. But we need not
reach the ultimate issue of whether tribal jurisdiction exists
before resolving the threshold question of whether
exhaustion is required because tribal jurisdiction is
colorable. We therefore conclude that, because tribal
jurisdiction is colorable here, the Lummi Tribal Court must
be given an opportunity to address the jurisdictional question
first. See Nat’l Farmers Union Ins. Companies, 471 U.S. at
856.

7
Plaintiff argues that the focus of his conversion claim is the seizure
of the truck itself, which took place off tribal lands. However, “[o]ur
inquiry is not limited to deciding precisely when and where the claim
arose, a concept more appropriate to determining when the statute of
limitations runs or to choice-of-law analysis.” Smith, 434 F.3d at 1135.
Furthermore, the conversion claim involves a determination of whether
the seizure was made with “lawful justification.” W. Farm Serv., Inc. v.
Olsen, 151 Wash. 2d 645, 648 n.1 (2004) (en banc). This determination
may implicate Plaintiff’s prior conduct on tribal lands.
 WILSON V. HORTON’S TOWING 13

B. The Substitution of the United States for Officer
Gates

Next, Wilson challenges the district court’s decision to
substitute the United States as a party for Officer Gates, the
Lummi tribal police officer who executed the forfeiture.
Under the Westfall Act, 28 U.S.C. § 2679(d), the Attorney
General may certify that a “defendant employee was acting
within the scope of his office or employment [for the United
States government] at the time of the incident out of which
the claim arose.” 8 Id. § 2679(d)(1). In such cases, the action
“shall be deemed an action against the United States,” and
“the United States shall be substituted as the party
defendant.” Id.

The substitution leads, in effect, to “a single avenue of
recovery” against the United States under the Federal Tort
Claims Act. Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993).
In this manner, 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 (2007).

This process, however, does not leave a plaintiff without
recourse. Rather, the Attorney General’s certification is
“prima facie evidence that a federal employee was acting
within the scope of her employment at the time of the
incident,” and shifts the burden to the plaintiff to “disprov[e]
the Attorney General’s certification by a preponderance of

8
This Act, officially the Federal Employees Liability Reform and
Tort Compensation Act of 1988, is commonly referred to as the Westfall
Act. See Osborn v. Haley, 549 U.S. 225, 229 (2007).
14 WILSON V. HORTON’S TOWING

the evidence.” Billings v. United States, 57 F.3d 797, 800
(9th Cir. 1995).

Under the circumstances presented here, where the
United States is substituted for an employee and where that
employee is a tribal employee, there is an additional step.
The tribal employee must also be deemed to have acted as a
federal employee in carrying out the allegedly tortious
activity.

In Shirk, we delineated a two-step test for determining
whether a tribal employee can be deemed a federal Bureau
of Indian Affairs (“BIA”) employee for the purposes of
FTCA liability. Shirk v. U.S. ex rel. Dep’t of Interior,
773 F.3d 999, 1006 (9th Cir. 2014). Although Shirk did not
involve a certification challenge, the parties do not dispute,
and consistency favors, the application of Shirk’s two-step
analysis to the present case.

In general, tribal employees may be deemed to be acting
as federal BIA employees when they carry out certain
agreements between a tribe and the federal government. Id.
at 1002–03. The Indian Self-Determination and Education
Assistance Act (“ISDEAA”) provides for the creation of
agreements, commonly known as “638 contracts,” whereby
tribes may administer programs formerly provided by the
BIA. Id. at 1002. Following ISDEAA’s enactment, Congress
extended FTCA liability to tribal employees acting under a
“638 contract,” or any other federal agreement authorized
under ISDEAA. See Department of Interior and Related
Agencies Appropriation Act, Pub. L. 101-512, § 314, 104
Stat. 1915 (1990)). In these situations, tribal employees “are
deemed employees of the Bureau [of Indian Affairs] . . .
while acting within the scope of their employment in
carrying out the contract or agreement.” Id. at 1960.
 WILSON V. HORTON’S TOWING 15

Parsing this language, Shirk held that, to be considered
BIA employees, tribal employees must act “within the scope
of their employment where the relevant ‘employment’ is
‘carrying out the contract or agreement.’” 773 F.3d at 1008
n.6. Shirk distills the analysis into two parts. Id. at 1006.
First, does the language of the federal contract “encompass
the activity that the plaintiff ascribes to the employee”? Id.
at 1007. Second, did the employee’s activity fall “within the
scope of employment”? Id. A tribal employee is only
deemed a federal employee if, “while executing his
contractual obligations under the relevant federal contract,
his allegedly tortious conduct falls within the scope of
employment as defined by state law.” Id. at 1005.

In this case, the Attorney General’s certification
contained two representations. First, the Attorney General
represented that Officer Gates had acted “within the course
and scope of a Compact of Self-Governance with the United
States” adopted by the Lummi Tribe. Secondly, the Attorney
General maintained that Officer Gates had acted “within the
scope of his employment in carrying out the Compact.” 9 The
Attorney General’s certification having issued, the burden
then shifted to Plaintiff to rebut the government’s
representations with evidence. As the district court properly
concluded, Plaintiff failed to meet this burden.

9
The Attorney General’s certification creates a presumption that the
challenged activity falls within the scope of the individual’s
employment. See, e.g., Saleh v. Bush, 848 F.3d 880, 889 (9th Cir. 2017);
see also 28 U.S.C. § 2679(d). In this case, we find it appropriate that the
presumption should extend to each of the representations certified by the
Attorney General here, including the representation that the federal
contract encompasses the challenged activity. Cf. Billings, 57 F.3d at 800
(applying the presumption to the question of “whether a defendant is a
federal employee.”).
16 WILSON V. HORTON’S TOWING

First, Plaintiff did not rebut the presumption that the
tribal self-governance agreement encompassed the law
enforcement duties performed by Officer Gates. Plaintiff
submitted as evidence a Multi-Year Funding Agreement for
2011–2015 between the Lummi Nation and the United
States. This funding agreement served as a 638 contract for
the tribe’s “assumption of responsibilities” for various
programs and services that would otherwise be provided by
the BIA.

One of these services was law enforcement. By statute,
BIA employees may be authorized to perform law
enforcement duties, including executing or serving “orders
relating to a crime committed in Indian country and issued
under” tribal law. 25 U.S.C. § 2803(2)(B). These law
enforcement duties may be reassigned, as here, to tribal
employees pursuant to 638 contracts. See Salazar v. Ramah
Navajo Chapters, 567 U.S. 182, 185 (2012). As the district
court acknowledged, the funding agreement “specifically
contemplated that the tribe would provide for its own law
enforcement.” 10

Next, Plaintiff failed to rebut the presumption that
Officer Gates acted within the scope of his employment
when he executed the forfeiture. Instead, Plaintiff speculated
that the forfeiture exceeded the authority of the Lummi
Tribe. As the district court observed, however, “Plaintiff
appears to have confused the question of tribal jurisdiction

10
Because the funding agreement provides sufficient basis to
conclude that the government contemplated the Lummi Tribe’s
assumption of law enforcement duties under a 638 contract, we deny the
government’s motion for judicial notice of the Compact of Self-
Governance.
 WILSON V. HORTON’S TOWING 17

(and whether Defendant Gates’s actions were legally
authorized) with the question of whether Defendant Gates
acted within the scope of his employment” when he effected
the forfeiture. 11

To answer the question of whether Officer Gates was
acting within the scope of his employment, we look to
Washington law. 12 Washington courts have held that an
employee acts within the scope of employment when
performing duties required by the contract of employment or
by “specific direction of [the] employer,” or “in furtherance
of the employer’s interest.” Ball-Foster Glass Container Co.
v. Giovanelli, 163 Wash. 2d 133, 160 (2008) (en banc). By
failing to come forward with evidence, Plaintiff has not met
his burden of showing that the execution of the forfeiture
was not within the scope of Officer Gates’ employment
duties.

On both prongs of Shirk’s analysis, Plaintiff has not
rebutted the presumptions created by the Attorney General’s

11
Similarly, Plaintiff claims that the agreement cannot encompass
Officer Gates’ conduct because it does not expressly authorize the
execution of law enforcement duties off the reservation. In support of
this proposition, Plaintiff cites a concurring opinion in Shirk. See Shirk,
773 F.3d at 1009 (Sack, J., concurring). The concurrence reasoned that
certain tribal officers had the authority to enforce state law off the
reservation because the agreement required the tribal officers to be
certified as state peace officers. Id. Plaintiff argues that the “reverse
premise applies.” However, Plaintiff’s argument commits the logical
fallacy of mistaking a sufficient factor for a necessary one. In addition,
the concurrence acknowledged that it addressed an issue that “the panel’s
opinion need not and, properly . . . does not reach.” Id.
12
We recognize, however, that the federal agreement “defines the
relevant ‘employment’ for purposes of the scope of employment analysis
at step two.” Shirk, 773 F.3d at 1006.
18 WILSON V. HORTON’S TOWING

certification. Accordingly, we hold that the district court
properly substituted the United States as a party for Officer
Gates pursuant to the Westfall Act.

C. Dismissal with Prejudice

The district court dismissed this action as a result of
Wilson’s failure to meet exhaustion requirements. Although
we hold that dismissal on this ground was proper, we
conclude that the district court erred by dismissing the entire
action with prejudice.

When a party has not exhausted tribal remedies, a district
court may elect to “dismiss a case or stay the action while a
tribal court handles the matter.” Atwood, 513 F.3d at 948.
The exhaustion process leaves open “the possibility that the
exercise of [tribal] jurisdiction [can] be later challenged in
federal court.” Brendale v. Confederated Tribes & Bands of
Yakima Indian Nation, 492 U.S. 408, 427 n.10 (1989). Here,
the district court dismissed Plaintiff’s case against Horton’s
Towing with prejudice, but did not specify the reason why
pursuing the case would be futile if, at a later date, Plaintiff
returned to federal court after exhausting his remedies before
the Lummi Tribal Court.

Similarly, the district court did not adequately explain
the basis for its dismissal with prejudice of Plaintiff’s suit
against the United States. When a plaintiff fails to exhaust
administrative remedies against the United States, as
required by the FTCA, the proper route is dismissal. See
McNeil v. United States, 508 U.S. 106, 113 (1993).
However, a plaintiff may generally return to federal court
after timely exhausting administrative remedies before the
relevant federal agency. See 28 U.S.C. § 2679(d)(5)(B); see
also Frigard v. United States, 862 F.2d 201, 204 (9th Cir.
1988).
 WILSON V. HORTON’S TOWING 19

Because Plaintiff can potentially renew his claims in
federal court after the appropriate remedies have been
exhausted, we hold that dismissal with prejudice was
improper.

CONCLUSION

For the foregoing reasons, we AFFIRM the district
court’s order entering summary judgment against Plaintiff.
We VACATE the district court’s judgment dismissing
Plaintiff’s action with prejudice and REMAND to the
district court. On remand, the district court shall enter
judgment dismissing this action without prejudice to refiling
after Plaintiff has exhausted his remedies. Each party shall
bear its own costs.

AFFIRMED IN PART; VACATED IN PART; and
REMANDED.