William Schmidt v. United States , 595 F. App'x 720 ( 2015 )

FILED
NOT FOR PUBLICATION MAR 04 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM SCHMIDT, County No. 12-36089
Prosecutor,
D.C. No. 2:12-cv-01116-MJP
Plaintiff - Appellant,
v. MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief Judge, Presiding
Submitted February 17, 2015**
Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.
Taxpayer William Schmidt appeals pro se from the district court’s order
dismissing his action alleging theft and conversion by a revenue agent of the
Internal Revenue Service. We have jurisdiction under 28 U.S.C. § 1291. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo. Orff v. United States, 358 F.3d 1137, 1142 (9th Cir. 2004)
(questions of sovereign immunity and subject matter jurisdiction); Clamor v.
United States, 240 F.3d 1215, 1216-17 (9th Cir. 2001) (certification under 28
U.S.C. § 2679(d)(2)). We affirm.
The district court properly denied Schmidt’s motion to remand because the
Attorney General certified that the agent was an employee of the Internal Revenue
Service, and was acting within the scope of his employment during the incidents
described in Schmidt’s complaint. See 28 U.S.C. § 2679(d)(2); Osborn v. Haley,
549 U.S. 225, 231 (2007) (“[C]ertification is conclusive for purposes of removal,
i.e., once certification and removal are effected, exclusive competence to
adjudicate the case resides in the federal court, and that court may not remand the
suit to the state court.”); Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1995)
(Attorney General certification is prima facie evidence that a federal employee was
acting in the scope of his employment at the time of the incident).
The district court properly dismissed Schmidt’s action because Schmidt
failed to show that the United States has waived its sovereign immunity from suit.
See 28 U.S.C. § 2680(c) (excluding from the Federal Tort Claims Act “[a]ny claim
arising in respect of the assessment or collection of any tax”).
AFFIRMED.
2 12-36089