Vincent Burroughs v. United States , 610 F. App'x 697 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 29 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
VINCENT BURROUGHS, No. 13-35793
Plaintiff - Appellant, D.C. No. 6:13-cv-00141-TC
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Thomas M. Coffin, Magistrate Judge, Presiding
Argued and Submitted July 9, 2015
Portland, Oregon
Before: PREGERSON, N.R. SMITH, and OWENS, Circuit Judges.
Vincent Burroughs appeals the district court’s dismissal with prejudice of
his Federal Tort Claims Act action. The district court dismissed the action for lack
of subject matter jurisdiction based on sovereign immunity. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We review de novo issues of sovereign immunity and subject matter
jurisdiction. Orff v. United States, 358 F.3d 1137, 1142 (9th Cir. 2004). The
district court properly concluded that it lacked subject matter jurisdiction over
Burroughs’s claims that the United States is liable under the doctrine of respondeat
superior for the alleged tortious acts of an IRS revenue agent. The conduct alleged
was either outside the scope of employment as determined by Oregon state law, or
arose out of assault, battery, or an abuse of process. See Doe v. Holy See, 557 F.3d
1066, 1082–83 (9th Cir. 2009) (interpreting “scope of employment” for respondeat
superior liability under Oregon law); Minnis v. Or. Mut. Ins. Co., 48 P.3d 137,
144–45 (Or. 2002) (clarifying that Oregon’s Fearing test for “scope of
employment” is an alternative test only for allegations of intentional torts); Fearing
v. Bucher, 977 P.2d 1163, 1166–68 (Or. 1999) (stating Oregon’s alternate test for
“scope of employment” for intentional tort claims). Pursuant to the Federal Tort
Claims Act, the United States does not waive sovereign immunity for the alleged
tortious acts of its employees committed outside the scope of their employment as
determined by state law. See 28 U.S.C. § 1346(b)(1). The United States also does
not ordinarily waive sovereign immunity for claims arising out of assault, battery,
2
or an abuse of process. 28 U.S.C. § 2680(h).1 Because the United States has not
waived sovereign immunity as to Burroughs’s respondeat superior claims—the
only claims he appeals—the district court did not err in dismissing the action for
lack of subject matter jurisdiction.
We review for an abuse of discretion a district court’s denial of leave to
amend. AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir.
2012). Because the “bar of sovereign immunity is absolute,” Frigard v. United
States, 862 F.2d 201, 204 (9th Cir. 1988) (per curiam), the United States cannot be
liable under the doctrine of respondeat superior for the acts alleged. The district
court therefore did not abuse its discretion by dismissing the action with prejudice
because the complaint cannot be redrafted to bring the respondeat superior claims
under the Federal Tort Claims Act.
AFFIRMED.
1
We need not and do not consider Burroughs’s belated contention, raised for
the first time at oral argument, that § 2680(h) does not apply because an IRS
revenue agent is an investigative officer. See Johnson v. Gruma Corp., 614 F.3d
1062, 1069 (9th Cir. 2010) (arguments not raised until oral argument are waived).
3