9th Circuit sends BIA case back, reverses judgment, orders new federal judge to be assigned

The James F. Battin federal courthouse in Billings, Montana (Photo by Darrell Ehrlick of the Daily Montanan).

The U.S. Ninth Circuit Court of Appeals on Wednesday removed and reversed Montana District Court Judge Susan P. Watters from a case involving a former Bureau of Indian Affairs Officer who raped and impregnated a Northern Cheyenne woman while on duty.

The federal case, which is seven years old, has bounced through federal and state courts as a plaintiff, known only as “L.B.,” has fought against the U.S. government to hold it liable for former officer Dana Bullcoming’s actions, which led to a subsequent pregnancy.

Bullcoming took a plea deal in the criminal case against him, but the U.S. Attorney’s Office has steadfastly argued that the federal government shouldn’t have any liability in the matter, even though the victim has not seen a dime in child support, according to her attorney, John Heenan of Billings.

Heenan said he spoke to his client on Wednesday, who relayed the following message:

“I have a neighbor who was hit by a BIA officer’s vehicle, and she was paid for her injuries. I thought it would be the same here, and I would be compensated for what the BIA officer did to me. I don’t know why the government has spent 7 years fighting me instead of paying what the judge ordered I was owed. My daughter is now 8 years old, and I hope they stop dragging this out so that I can get the money and use it to help raise my daughter.”

Previously, the Northern Cheyenne woman was given a $1.6 million verdict from Watters, but the BIA has previously said that it shouldn’t be held responsible for the payment because of Bullcoming’s actions.

Watters had previously ruled that the government was not responsible for Bullcoming’s actions, even though he was on duty and had threatened to have her children removed if she didn’t have sex with him. However, Watters had also presided over Bullcoming’s criminal plea deal.

During his criminal trial, Bullcoming had argued that he had committed the assault while on duty and serving in his role as a federal law enforcement officer. But during the course of his civil trial against L.B., Bullcoming told the court, with Watters presiding, that the assault was purely a matter of his own personal, prurient interest.

The three-judge appeals panel said that there were more facts that needed to be established and that Watters had erred in making a summary judgment. Moreover, they said that Watters should not be forced to preside over both Bullcoming’s civil case and criminal case in which the former federal officer makes two contradictory statements, leaving her to decide which statement was more credible, or disregarding one case while attending to the other. The appeals panel said:

“The district court judge in this case presided over Officer Bullcoming’s criminal case, including accepting Officer Bullcoming’s guilty plea, after engaging in a plea colloquy during which Officer Bullcoming admitted coercing L.B. into committing sexual acts. The district court judge subsequently granted summary judgment in favor of the United States after crediting Officer Bullcoming’s deposition testimony disavowing the statements made during his plea colloquy. Because a bench trial is mandated for this case, the same judge would be tasked with reevaluating Officer Bullcoming’s credibility in light of his deposition testimony, which recanted his plea colloquy statements admitting to sexual coercion. This circumstance would place the district court judge in the untenable position of ruling on her prior credibility determinations of two conflicting statements from Officer Bullcoming. Therefore, we deem it prudent to reassign this case to a different judge.”

The three-judge panel was unanimous and featured judges appointed by Presidents Bill Clinton, Donald Trump and Joe Biden respectively.

Wednesday’s decision also marks another circuitous turn for the case which has bounced between federal and state court. Previously, the Ninth Circuit had sent a certified question to the Montana Supreme Court because there was ambiguity in the state’s laws as to whether a federal law enforcement officer had complete immunity because they work for the federal government.

However, the Montana Supreme Court said that a federal law enforcement officer could be held liable for actions, including criminal actions, even if working for a federal agency.

With that, the case went back to Watters, even though Bullcoming had already accepted a plea deal for the criminal action, which included sexual assault.

In the five-page ruling on Wednesday, the three-judge panel did not discuss the other issues in the case, which included whether the federal government had any responsibility to the victim because Bullcoming was acting on his authority as a Bureau of Indian Affairs officer.

Instead, it said that the case should be assigned to a different judge. According to federal online court records, no judge has been reassigned the case as of noon on Wednesday.

“The government’s position on this case was wrong seven years ago when they chose to fight L.B., a brave woman who did nothing other than get coerced into sex by its federal police officer employee. At numerous instances over the past seven years, the government could have done the right thing and settled with her and paid what the judge determined is fair,” Heenan told the Daily Montanan. “Instead, they have fought and staked out positions which were offensive to the court and offensive to Americans. Now they have another opportunity to do the right thing and stop fighting this woman and pay her what they owe. If not, for my part and the part of our legal team, I hope the federal government knows by now that we will never stop fighting for L.B. until she gets justice.”

A spokesman for the U.S. District Attorney Jesse Laslovich was not available Wednesday.

Though Laslovich’s office has continued to defend the case, the decision of the federal government to challenge the case was brought under the Trump administration and his appointee, Kurt Alme.

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