[00:00:00] Speaker 03:
of the Court of Appeals now resumes.

[00:00:03] Speaker 04:
Please be seated.

[00:00:04] Speaker 04:
Thank you.

[00:00:05] Speaker 04:
Our final case on calendar for argument today is LB versus United States.

[00:00:12] Speaker 04:
Counsel for appellant, please approach.

[00:00:14] Speaker 04:
Please proceed.

[00:00:17] Speaker 04:
You beat me to the punch.

[00:00:18] Speaker 01:
I thought I would be efficient with the court's time, Your Honor.

[00:00:24] Speaker 04:
Thank you.

[00:00:24] Speaker 04:
Please proceed, counsel.

[00:00:25] Speaker 01:
Thank you, Your Honor.

[00:00:26] Speaker 01:
I would ask for five minutes for rebuttal, please.

[00:00:30] Speaker 04:
All right.

[00:00:30] Speaker 04:
Could you please introduce yourself for the record?

[00:00:32] Speaker 01:
yes your honor my name is john heenan i along with mister back told represent lb uh... and we have done so continuously for almost nine years now and uh... lb is a very brave woman and she has been a very brave fighter for those nine years she recognizes that this is uh... she doesn't know why she was chosen but she has been and she is very much been committed to

[00:01:01] Speaker 01:
be a catalyst to advance rights.

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And those rights are the rights of survivors.

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Those rights are the rights of Native people, which the court is aware, I'm sure.

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By population and by coverage, this circuit has the most Native people under its jurisdiction, over a million Native people.

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I think it's interesting that yesterday was the 100th anniversary of the Indian Citizenship Act.

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which was a law that was passed a hundred years ago to try and address the corruption within the BIA.

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As this court has recognized previously in its 2021 decision, that's 8F4 868, at the time in 2021 there was a dichotomy that existed in Montana.

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The approximately 94% of people off reservation had an absolute right to pursue a civil vicarious liability action against the employer of a state, county, or municipal law enforcement officer for exactly this type of conduct.

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And this court said to our Montana Supreme Court, hey, there's this dichotomy that exists because 94% of the people in the state have this right, 6% of the people, Native people residing on reservations don't have the right.

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And this court appropriately asked the Montana Supreme Court to address it as an issue of Montana law.

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Montana resoundingly said that LB did have the right to pursue vicarious liability.

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And I would say, don't take my word for it.

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The most important paragraph, I think, of what the Montana Supreme Court's announcement of Montana law was, was the first paragraph of the dissent.

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That's paragraph 27 of the LB case, 2022 MT-166, where the minority, the dissenting judge,

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said that the Montana Supreme Court has reached a result holding the federal government financially liable to an innocent victim for the outrageous torsious conduct of a rogue federal law enforcement officer.

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That is an accurate statement of what Montana law has been since the Montana Supreme Court weighed in on this, in this case.

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And so we were remanded to the district court.

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We won.

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The ball was on the one yard line.

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The district court just needed to let us get it into the end zone.

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Instead, we got this 180 decision.

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Yes, Your Honor.

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Do you read the Montana Supreme Court's decision as requiring trial just automatically?

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I don't.

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I think, and I've anticipated that question, and I think the Montana Supreme Court was being deferential to this court, given the circumstances.

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It's a case with federal jurisdiction.

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This court certified a question.

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But as reflected in the dissent, Your Honor,

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Montana Supreme Court wade through the factors and applied the facts of this case to reach the result that Officer Bullcoming's conduct was within the course and scope of employment.

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The dissent's not actually part of the opinion.

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The opinion actually says we conclude that whether Officer Bullcoming acted outside the scope of his employment when he used that employment as a vehicle to obtain LB's consent to sexual intercourse must be answered by the trier of fact.

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Yes, Your Honor.

[00:04:57] Speaker 00:
Both sides were arguing that this case, as far as I can tell with no new information, is appropriate for some re-judgment when the Montana Supreme Court said, no, this has to go to a trier fact.

[00:05:09] Speaker 01:
They did say that, Your Honor.

[00:05:11] Speaker 01:
I do think that it was in the context of not being able to say LB wins unequivocally because of the procedural posture of the case where it was sent on a certified question.

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I would say, though,

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in our mind the record is complete and that is a point that I want to touch on that isn't really it was kind of round one and I view this as round two we hammered it in round one and then didn't really reiterate it necessarily in round two so I want to emphasize the posture of this case as it sits here now is

[00:05:45] Speaker 01:
In Montana, under Montana law, vicarious liability is an indirect cause of action against the employer.

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The direct cause of action is against the employee.

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We sued Office for Bullcoming under Montana law for Montana torts

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And those torts were not just the sexual assault, they were kidnapping, false arrest, false imprisonment, deprivation of rights, abuse of process, infliction of emotional distress, and also sexual assault and battery.

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That's docket number one at paragraph 15.

[00:06:17] Speaker 04:
What's the status of that case?

[00:06:19] Speaker 01:
we prevailed your honor so that's the point that I want to make is is we asserted various torts against officer bull coming he didn't appear um... default was entered the district court had accepted the allegations in our complaint as true

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The district court recognized the cause of action that we raised.

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Our complaint against Officer Bullcoming was not isolated to sexual assault, both in terms of the torts that we claimed, but then also the allegations.

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I mean, we alleged, and it's all in docket number one, the complaint

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that he entered her home without permission, that he threatened to take away her kids, that he threatened her that she was going to lose her job, that he placed her under arrest and deprived her of her freedom by... I guess I'm not quite sure what the... I mean, I understand that history.

[00:07:12] Speaker 03:
I'm not sure the point that you're trying to make.

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You aren't arguing that somehow the result of the default judgment is law of the case, because that's not...

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an actual deliberative decision.

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It's just a default because the officer didn't come and defend himself.

[00:07:30] Speaker 01:
Well, the district court reviewed, even though it was default, the district court, and that's docket number 88.

[00:07:39] Speaker 03:
We have a case law that says that a default judgment can be binding in terms of merits issues.

[00:07:46] Speaker 03:
It's the default is absolutely binding and that's the point is binding as to the officer Yes, your honor, but I'm not sure that the resolution of the issues that weren't actually litigated And were just resolved at default can be binding as to the government

[00:08:01] Speaker 01:
Well, there is no direct claim against the government, so the government is bound by both the facts and the causes of action that were asserted against the employee.

[00:08:10] Speaker 01:
Those claims, Your Honor, respectfully were adjudicated, and even to show the length that the decision... Doesn't that deny the government the opportunity to defend itself in the way the officer chose not to?

[00:08:21] Speaker 01:
Well, a couple things I'd say, Your Honor.

[00:08:23] Speaker 01:
The United States chose not to participate in that proceeding.

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They had every ability to.

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They were a party to the case and had notice.

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And for instance, I guess one thing I just want to emphasize is that we didn't just present a paper to the court to sign.

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We had a hearing, we presented evidence, we had a counselor talk about all the psychological effects that L.B.

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endures because she had a child that's the product of this incident, and the counselor, you know, I asked for $10 million.

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The district court considered it for five and a half months and said no, 1.6 million.

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So the district court very much did make liability findings against Officer Bullcoming.

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And the way that Montana law works, Your Honor, is yes.

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There is no direct claim against the government.

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It's just an indirect claim.

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So now the United States as the employer is bound by the facts and the causes of action that were prosecuted successfully against the officer.

[00:09:26] Speaker 03:
Was that procedural history with regard to the claims against the officer known to the Montana Supreme Court when it answered the certified question?

[00:09:36] Speaker 01:
The factual history was as recited by this court.

[00:09:42] Speaker 03:
Let me make it more specific.

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Was the Montana Supreme Court aware of the default judgment?

[00:09:46] Speaker 01:
I believe so, Your Honor.

[00:09:48] Speaker 03:
So then I guess I'm still questioning your argument that you're making.

[00:09:51] Speaker 03:
If that is true, then why wouldn't the Montana... And if you were right in the argument you're making, why wouldn't the Montana Supreme Court just say, based on the default judgment, this case is over, the government's liable?

[00:10:01] Speaker 01:
I think procedurally, Your Honor, because the Montana Supreme Court didn't have jurisdiction except for the limited certified question.

[00:10:09] Speaker 01:
I mean, the federal court had jurisdiction.

[00:10:11] Speaker 01:
It sent it for a limited question, giving Montana the chance to weigh in on its law.

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And Montana has weighed in on its law.

[00:10:19] Speaker 01:
And the other things I wanted to, I guess, just expand on or raise.

[00:10:25] Speaker 04:
Before you do that, Counselor.

[00:10:27] Speaker 01:
Yes, Your Honor.

[00:10:27] Speaker 04:
I think we understand your point.

[00:10:29] Speaker 01:
Sorry, Your Honor.

[00:10:31] Speaker 04:
But what I wanted to ask you is it appears that the pivotal issue before the district court, which the district court relied on, and correct me if my understanding is not consistent with yours, is that at bottom, the officer was a rogue officer and was not acting within his official capacity when he committed these acts.

[00:10:54] Speaker 04:
Do you agree that that was the basis upon which the district court granted judgment in favor of the defense?

[00:11:03] Speaker 01:
Yes, Your Honor.

[00:11:05] Speaker 04:
Tell me why that was wrong.

[00:11:06] Speaker 01:
Well, I guess what's interesting kind of getting ready for this hearing, round one that I'll call it, the district court went through the restatement factors, found some of those restatement factors favored LB actually.

[00:11:18] Speaker 01:
um... but then but then said uh... this montana supreme court the maguire case which is eight thirty five p second seven fifty five that's a nineteen ninety two decision and the district court said essentially montana law uh... under maguire says that sexual assault is always outside the course and scope of employment we understand what happened we understand that the montana supreme court disagreed with that and then said that there it's a

[00:11:47] Speaker 00:
The scope of employment is a question for the trier of fact under essentially the facts of this case.

[00:11:55] Speaker 00:
then it gets remanded and the district court, my understanding is based on the deposition testimony regarding motive, that summary judgment in favor of the employer.

[00:12:09] Speaker 00:
So my understanding of your argument is either that testimony is not credible, so summary judgment was, or there's a credibility dispute, so summary judgment isn't appropriate, or the district court defined this relative scope of conduct too narrowly.

[00:12:25] Speaker 00:
And that precludes summary judgment in favor of the employer.

[00:12:29] Speaker 00:
A lot of your arguments are geared towards why your motion for summary judgment was denied, but we have to deal with them separately.

[00:12:39] Speaker 00:
So here, summary judgment was granted in favor of the employer.

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I would appreciate you focusing your argument on why that decision, in your opinion, was error.

[00:12:49] Speaker 00:
Why shouldn't summary judgment in favor of the United States?

[00:12:54] Speaker 00:
Why was that improper in your opinion?

[00:12:57] Speaker 01:
Sure.

[00:12:57] Speaker 01:
Well, thank you, Your Honor.

[00:12:58] Speaker 01:
A couple of things.

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To answer your question, Your Honor, and Justice Rawlinson's at the same time.

[00:13:04] Speaker 04:
Judge, not Justice.

[00:13:05] Speaker 01:
Judge Rawlinson, excuse me.

[00:13:06] Speaker 01:
On round two, so what are the errors?

[00:13:12] Speaker 01:
On round two, the district court said, I'm going to disregard what the Montana Supreme Court said the act is.

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And if you look at Montana law with respect to vicarious liability,

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The analysis is not what's the tortious criminal act.

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We had the Cornick case where somebody, a mining employee used a shovel to beat somebody up with a shovel.

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If we analyzed it through that lens, the employer would say we don't

[00:13:39] Speaker 01:
Employ people to beat other people with a shovel and then the Brendan case which came out subsequent to district court round one But before this court certified it to the Montana Supreme Court this court said to the Montana Supreme Court Well, you've got this McGuire case that seems to say sex assault can never be within the course and scope But now you've issued this Brendan decision, which is a really

[00:14:05] Speaker 01:
strange case where essentially a city employee on a Saturday at his house calls a tip line and lies about his co-worker to try and tank his employment at a new job.

[00:14:18] Speaker 01:
And the Montana Supreme Court said in Brendan,

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That's within the course and scope of employment.

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And so this court said, okay, you've got McGuire, which seems to say never sex assault, but then you just issued this Brendan decision, which is arguably even further afield than what Officer Bullcoming did here.

[00:14:36] Speaker 01:
And plus, under Montana law, with a non-delegable duty, officers are liable, plus this dichotomy where 6% of Montanans don't have the same rights as 94%, what are you going to do about it?

[00:14:52] Speaker 01:
Judge District Court gets the Montana Supreme Court and she puts it in footnote 2.

[00:14:58] Speaker 01:
She says, I'm going to disregard what Montana says the act is, even though the Montana Supreme Court said you need to carefully analyze the act.

[00:15:07] Speaker 01:
That's at paragraph 15 of its decision, because they say the act is what informs whether it arose out of employment.

[00:15:15] Speaker 04:
But Counselor, isn't your stronger argument the fact that there is a potential

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issue of fact because of the contradiction between the plea colloquy and the deposition.

[00:15:28] Speaker 04:
Isn't that your stronger argument?

[00:15:30] Speaker 01:
I think they're equally strong, Your Honor.

[00:15:33] Speaker 01:
I think it was frankly shocking to us when Officer Bullcoming, who was still in federal custody, has this private conversation with the Assistant U.S.

[00:15:44] Speaker 01:
Attorneys.

[00:15:44] Speaker 01:
He shows up for deposition.

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he recants the testimony that he gave under oath to the same district court that resulted in a very lenient sentence for his conduct and all of that is accepted but i would say your honor i don't think we need to get there because i think the district court committed a clear legal error

[00:16:02] Speaker 01:
when she disregarded Montana's statement of what the act is that needed to be analyzed.

[00:16:07] Speaker 01:
The act here is beyond just the act of sexual assault.

[00:16:11] Speaker 01:
The act includes all the context that Officer Bullcoming committed against my client, going into his house, threatening her, taking her into custody.

[00:16:21] Speaker 01:
Those are all the actions that he was sued for and adjudicated liable for.

[00:16:26] Speaker 01:
And so to narrowly focus on the tortious conduct,

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eviscerates Montana law because nobody's ever going to be held vicariously liable if all we're looking at is the tortious criminal act.

[00:16:40] Speaker 00:
Well, I think my trouble is that it seems clear to me that the Montana Supreme Court rejected the idea that

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the motive with respect to the sexual conduct itself was the only thing that's relevant.

[00:16:55] Speaker 00:
They say over and over again, even if that particular, the sex essentially, was for his own personal sexual gratification, that does not preclude a finding that he was acting within the scope of employment.

[00:17:07] Speaker 00:
But at other times, they don't seem to say, they seem to say there's some that you have to define the wrongful

[00:17:14] Speaker 00:
act more broadly than that, right?

[00:17:18] Speaker 00:
That seems clear.

[00:17:19] Speaker 00:
What's not clear to me is how broad the scope of conduct is that they are saying we should look at.

[00:17:29] Speaker 00:
It's not just the sexual activity, it's something broader than that.

[00:17:34] Speaker 00:
The Montana Supreme Court seems to say

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It could be the wrongful deprivation, but then we have the problem with wrongful deprivation can't be the tort under the FTCA.

[00:17:45] Speaker 00:
So then it has to be some other course of conduct that constitutes the tort.

[00:17:51] Speaker 00:
So can you identify what state law tort would form the basis of liability that would define the scope of conduct for which his motive is relevant?

[00:18:02] Speaker 01:
Yes, Your Honor, thank you.

[00:18:03] Speaker 01:
And that's the point that I was trying to make in artfully at the beginning about what were the clauses of action that were asserted.

[00:18:10] Speaker 00:
Any of them other than wrongful deprivation?

[00:18:12] Speaker 01:
Yes, Your Honor, infliction of emotional distress, deprivation, false arrest, false imprisonment, abuse of process.

[00:18:20] Speaker 01:
Abuse of process is a Montana tort that's specifically enumerated under the FTCA.

[00:18:27] Speaker 01:
So I think the district court also committed error when

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the court reframed what's the tortious conduct under this FTCA analysis when we'd already enumerated and succeeded against the officer on specific causes of action.

[00:18:47] Speaker 01:
I do think it was a disregard of the Montana Supreme Court's opinion to change the act when the Montana Supreme Court went to lengths to explain we're not just looking at the sex act.

[00:18:59] Speaker 01:
And I would say, Your Honors, that also it was our to do this subjective intent of the rapist and have that be an element that the victim of a sexual assault has to prove.

[00:19:13] Speaker 01:
No victim could ever prove that, and it was not enumerated by the Montana Supreme Court as a required element.

[00:19:21] Speaker 01:
And so to your point, Judge Rawlinson, I don't think this, I mean, we can have this fight about what did the officer, what was he really thinking, and what were his motives, but I don't- But the Montana Supreme Court said it's an issue of fact, whether or not he was acting within his authority.

[00:19:38] Speaker 04:
They do say that's- That's where it leaves us.

[00:19:41] Speaker 04:
in terms of how we should resolve this case.

[00:19:43] Speaker 04:
And when we sent the case to the Montana Supreme Court, we said we would abide by the Montana Supreme Court's decision.

[00:19:51] Speaker 04:
So that's our guidance from the Montana Supreme Court.

[00:19:55] Speaker 04:
And so if it says it's an issue of fact, then that's our starting point.

[00:20:01] Speaker 04:
And I think your stronger argument is, yes, there is an issue of fact, and there should not have been some re-judgment granted because of these two very differing statements by the officer.

[00:20:12] Speaker 04:
But if you want to argue it differently, that's fine with me.

[00:20:15] Speaker 01:
Understood, Your Honor.

[00:20:16] Speaker 01:
I see I ran out of my reserve time.

[00:20:18] Speaker 04:
Well, I'll give you a couple of minutes.

[00:20:19] Speaker 01:
Thank you, Your Honor.

[00:20:20] Speaker 01:
I do just want to say that.

[00:20:22] Speaker 01:
Yes, we should certainly win on that, but I don't think that it's Montana law, and I don't think we should be remanded to have to climb inside the head of a police officer that did these acts to my client.

[00:20:34] Speaker 04:
We asked the Montana Supreme Court to tell us what to do, and they told us.

[00:20:39] Speaker 04:
And we said, we will abide by your ruling.

[00:20:42] Speaker 04:
And so that's our commitment.

[00:20:43] Speaker 04:
We have to abide by the Montana Supreme Court ruling.

[00:20:46] Speaker 01:
I think if this court's committed to abide by the Montana Supreme Court ruling, then LB wins all day because the Montana Supreme Court clearly said that LB should win.

[00:20:55] Speaker 04:
That Supreme Court said it's a question of fact whether or not he acted within the course and scope of his employment.

[00:21:00] Speaker 04:
So that doesn't mean you win.

[00:21:02] Speaker 04:
That means you get an opportunity to try your case against the United States.

[00:21:07] Speaker 04:
That's how I read it.

[00:21:09] Speaker 01:
then if that's the view of the court, which I certainly understand, as we asked in our brief and would reiterate, I would ask that this case be reassigned to a different district court judge if this case is remanded.

[00:21:22] Speaker 04:
Do you think the district court judge is biased?

[00:21:25] Speaker 01:
I think that the district court disregarded the Montana Supreme Court.

[00:21:31] Speaker 01:
I think that it was strange that the district court addressed LB at Officer Bullcoming's sentencing.

[00:21:39] Speaker 01:
And I think that the process by which the government was allowed to insulate Officer Bullcoming's deposition testimony was unfair to my client.

[00:21:52] Speaker 04:
Do you think that the district court would have difficulty putting aside its expressed views of this case?

[00:21:58] Speaker 01:
I think the district court explicitly said that it was disregarding Montana law with respect to what the act is.

[00:22:07] Speaker 01:
That's footnote two of the district court's order, which is troubling to me anyway.

[00:22:13] Speaker 01:
All right.

[00:22:13] Speaker 01:
Thank you, counsel.

[00:22:14] Speaker 01:
Thank you, Your Honor.

[00:22:14] Speaker 04:
We'll hear from the government.

[00:22:19] Speaker 02:
Good morning, your honor.

[00:22:20] Speaker 02:
Randy Tanner for the United States.

[00:22:23] Speaker 02:
The Montana Supreme Court did give this court direction on how to decide this case.

[00:22:29] Speaker 02:
And it did so in the two-pronged test that it articulated.

[00:22:33] Speaker 02:
And that was the basis for the district courts granting summary judgment in favor of the United States, because when Bullcoming assaulted L.B., he did so purely for his personal interest and not some interest of the BIA.

[00:22:47] Speaker 00:
I want to cut to the chase because I understand that you're representing this as a two-pronged test, but the way I read the decision, you're taking that out of context.

[00:22:58] Speaker 00:
I don't see the court itself representing that as a two-pronged test as rather a summary of a prior decision.

[00:23:05] Speaker 00:
And then it goes on and on and on and says repeatedly that even though motive is a factor, that you can't just consider the officer's motive with respect to the sexual conduct and that it could still be even

[00:23:21] Speaker 00:
if wrongful, even if against the law, even if not authorized, even if purely for his self-gratification, that it could still be within the scope of employment, that there could be mixed motive with respect to other aspects, and that this is a question for the trier of fact.

[00:23:39] Speaker 00:
And then I see on remand a deposition testimony that only addresses motive with respect to the sexual encounter and nothing, no other aspects of the tortious conduct.

[00:23:51] Speaker 00:
Why does that entitle the government to summary judgment here when the Montana Supreme Court explicitly said even if the sexual conduct is for the employee's own self-gratification or self-benefit, this could still be within the scope of employment and it's for a trier fact?

[00:24:09] Speaker 02:
So a couple different points on that question because there's a bit to unpack there.

[00:24:14] Speaker 02:
And what the Montana Supreme Court said is that if you have a mixed motive, if there's both personal motivation and a motivation to serve the employer, then that's a circumstance where you might have conduct that arises in the course and scope of the employment.

[00:24:28] Speaker 02:
But paragraph 17 of the Montana Supreme Court's decision expressly articulates those two considerations that you have to keep in mind when analyzing course and scope.

[00:24:39] Speaker 02:
And the second of those considerations was, quote, the wrongful act, quote, the wrongful act was at least partially motivated by an intent or purpose to serve the interest of his employer.

[00:24:50] Speaker 02:
And so the converse of that is if the employee was motivated solely by personal interest, then the act is not within the court's scope.

[00:24:59] Speaker 04:
That's not consistent with what the Montana Supreme Court said, though.

[00:25:02] Speaker 04:
Your argument is not consistent with what the Montana Supreme Court said.

[00:25:09] Speaker 04:
At bottom, the court said this is an issue of fact.

[00:25:13] Speaker 02:
That's right.

[00:25:14] Speaker 02:
And in this court's, as we talked about in our brief, in the West decision, in this court's West decision, this court has recognized time and again that when you have facts that are undisputed, then issues are appropriate for summary judgment.

[00:25:26] Speaker 04:
And here- But what about the colloquy, the plea colloquy?

[00:25:29] Speaker 04:
How is this undisputed if in court when he pled guilty, he accepted that he was abusing his position when he committed these acts?

[00:25:40] Speaker 04:
That's a classic.

[00:25:41] Speaker 04:
question of fact then, because he says one thing in his plea colloquy and says a different thing in his deposition.

[00:25:49] Speaker 02:
Well, and the issue of coercion, that's what came up in his deposition and in the plea colloquy also, was whether or not he coerced L.B.

[00:25:58] Speaker 02:
into having sex with him.

[00:26:00] Speaker 04:
Well, whatever he did, he admitted that it was abuse of his position, which would say he was within the scope of his employment.

[00:26:09] Speaker 04:
Otherwise, he could not have utilized his position to coerce her.

[00:26:13] Speaker 02:
Well, and that's a critical point, Your Honor, and a distinction I want to make is that abusive process is not the same as being within the course and scope of employment.

[00:26:23] Speaker 02:
Just because the officer was on duty at the time and wearing a badge does not mean that the officer was acting in the course and scope of the employment.

[00:26:32] Speaker 02:
And if you look at the Montana Supreme Court's decision in paragraph 17, it makes that point.

[00:26:36] Speaker 02:
The court says, if an on-duty police officer obtains consent by misusing his official authority, that's the abusive process, then you analyze course and scope by looking to the wrongful act and whether it arose out of the employment and was partially motivated to serve the employer's interest.

[00:26:53] Speaker 03:
I tend to agree that there's probably a ton of overlap between under color of law and within course and scope of employment, but maybe not perfect overlap.

[00:27:02] Speaker 03:
And it's not an element of the crime he was convicted of to be within the course and scope of his employment as Montana Supreme Court has defined it.

[00:27:09] Speaker 03:
What I'm curious about is are there any additional facts beyond the deposition testimony that Judge Rollinson has referenced from the time that the Montana Supreme Court gave us its guidance to now?

[00:27:20] Speaker 02:
Yes, there is, your honor.

[00:27:21] Speaker 02:
And in fact, you could disregard Officer Bull Cummings' deposition testimony entirely, and you'd be forced to reach the same conclusion.

[00:27:29] Speaker 03:
Because the undisputed facts- I guess I'm confused.

[00:27:33] Speaker 03:
I'm asking about, are there new facts?

[00:27:35] Speaker 02:
There are facts that weren't articulated in the certified facts that were transmitted to the Montana Supreme Court.

[00:27:41] Speaker 03:
OK, so what are the new facts?

[00:27:42] Speaker 02:
It was Bullcoming and LB's long-standing personal relationship that they had.

[00:27:49] Speaker 02:
They had known each other for 30 years.

[00:27:51] Speaker 02:
Bullcoming had always had a romantic interest in her.

[00:27:54] Speaker 02:
LB stated that they had been neighbors.

[00:27:57] Speaker 02:
They had gone to grade school together.

[00:27:58] Speaker 02:
Their family members had been friends.

[00:28:01] Speaker 02:
And on the night of the assault, LB asked Bullcoming, quote, you've always had a crush on me since a long time ago.

[00:28:09] Speaker 02:
Because what that shows is that his interest in sexually assaulting her was purely personal.

[00:28:17] Speaker 02:
He had this personal relationship, a crush on L.B., and he was not sexually assaulting her to serve some interest of the BIA.

[00:28:26] Speaker 02:
There's no conceivable interest that he was serving.

[00:28:28] Speaker 03:
Your argument is if the Montana Supreme Court had known about that history, it would not have concluded there's a question of fact here.

[00:28:34] Speaker 03:
It would have just said there's a definitive answer.

[00:28:36] Speaker 03:
What in the Montana Supreme Court opinion leads you to that conclusion?

[00:28:40] Speaker 02:
What the Montana Supreme Court said is that this is indeed a question of fact, course and scope of employment.

[00:28:45] Speaker 02:
I think everybody agrees with that, that ultimately course and scope is a question of fact.

[00:28:49] Speaker 02:
And that was the reason for the remand, so that further facts could be gathered.

[00:28:55] Speaker 02:
And we did that.

[00:28:56] Speaker 03:
I think your argument is we now have some more facts, and so it's no longer a question of fact.

[00:29:01] Speaker 03:
There's a determinative answer.

[00:29:03] Speaker 03:
And I'm asking you, if those new facts that you're relying on were in front of the Montana Supreme Court, what in that decision suggests to you that that court would have concluded it was a definitive answer and still not a question of fact?

[00:29:15] Speaker 02:
Because what the Montana Supreme Court said in that decision is that there was no way, there were no facts before it that would have allowed it to assess Bull Cumming's personal motive.

[00:29:26] Speaker 02:
And that's what it said in the decision.

[00:29:28] Speaker 02:
But now we have those.

[00:29:29] Speaker 00:
It squarely rejects the idea that his motive with respect to the sexual act itself was determinative.

[00:29:36] Speaker 00:
It assumes, it says even if that sexual conduct is for an employee's self gratification,

[00:29:43] Speaker 00:
a reasonable trial fact could still find that it's within the scope of employment, in part because you have to define the wrongful act more broadly.

[00:29:52] Speaker 00:
And that affects how you define the wrongful act, and then the context in which it occurs, all affects the scope of employment analysis.

[00:30:01] Speaker 00:
So I don't understand how even assuming that Officer Bullcoming was motivated purely for self-gratification in having sex with LB,

[00:30:12] Speaker 00:
that changes the outcome of the decision when the Montana Supreme Court said essentially even assuming that this could still be within the scope of employment.

[00:30:23] Speaker 02:
I think what the Montana Supreme Court there was saying was whether, you know, if Bullcoming had some sort of mixed motive or was at least partially motivated to serve the interest of the employer.

[00:30:34] Speaker 00:
in defining the wrongful act more broadly than just the sex itself?

[00:30:39] Speaker 02:
In paragraph 15 of the Montana Supreme Court, that's where it talks about the need to focus on what the act at issue is.

[00:30:47] Speaker 02:
And I'll admit that paragraph 15 of the Montana Supreme Court's decision