Adele Jeter v. the President of the United St , 670 F. App'x 493 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 2 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADELE T. JETER, AKA Adele Jeter- No. 15-15416
Wheaton,
D.C. No. 2:14-cv-01489-LDG-
Plaintiff-Appellant, NJK
v.
MEMORANDUM*
THE PRESIDENT OF THE UNITED
STATES, in his Official Capacity; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Submitted October 25, 2016**
Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.
Adele T. Jeter, a.k.a. Adele Jeter-Wheaton, appeals pro se from the district
court’s judgment dismissing for lack of subject matter jurisdiction her action
alleging copyright infringement. We have jurisdiction under 28 U.S.C. § 1291.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review de novo, Rattlesnake Coal. v. U.S. EPA, 509 F.3d 1095, 1100 (9th Cir.
2007), and we affirm.
The district court properly dismissed Jeter’s copyright infringement claims
for lack of subject matter jurisdiction because Jeter alleged those claims against the
United States and individuals acting on behalf of the United States, and the Court
of Federal Claims therefore has exclusive jurisdiction over those claims. See 28
U.S.C. § 1498(b).
The district court properly dismissed Jeter’s tort and unjust enrichment
claims because Jeter failed to show that she exhausted her administrative remedies
as required by the Federal Tort Claims Act (“FTCA”) before filing suit, and the
FTCA does not provide for equitable relief. See FDIC v. Craft, 157 F.3d 697, 706
(9th Cir. 1998) (“The FTCA is the exclusive remedy for tortious conduct by the
United States….”); see also Goodman v. United States, 298 F.3d 1048, 1054-55
(9th Cir. 2002) (a district court must dismiss for lack of subject matter jurisdiction
a claim for damages under the FTCA that is not administratively exhausted);
Westbay Steel, Inc. v. United States, 970 F.2d 648, 651 (9th Cir. 1992) (courts lack
jurisdiction under the FTCA to award equitable relief against the federal
government).
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The district court properly accepted defendants’ notice of substitution of the
United States as defendant because the alleged conduct occurred within the scope
of the individual defendants’ office or employment. See 28 U.S.C. § 2679(d)(1)
(United States “shall be substituted as the party defendant” upon certification by
the Attorney General that the defendant employee was acting within the scope of
his office or employment).
The district court properly denied Jeter’s request for default judgment
because the district court lacked jurisdiction over the underlying claims. See Axess
Int’l, Ltd. v. Intercargo Ins. Co., 183 F.3d 935, 943 (9th Cir. 1999) (without an
exercise of jurisdiction, a district court lacks the power to adjudicate other issues).
The district court did not abuse its discretion in dismissing Jeter’s action
without leave to amend. See Cervantes v. Countrywide Home Loans, Inc., 656
F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and explaining
that “a district court may dismiss without leave where . . . amendment would be
futile”).
The district court did not abuse its discretion in granting defendants’ motion
for a discovery stay because the pending motion to dismiss required resolution of
jurisdictional issues. See Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988)
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(no abuse of discretion where the district court stayed discovery pending the
resolution of an immunity issue).
The district court did not abuse its discretion in denying Jeter’s motion to
proceed in forma pauperis because Jeter had already paid the filing fee.
The district court did not err in failing to sua sponte recuse itself because
Jeter did not demonstrate extrajudicial bias or prejudice. See 28 U.S.C. § 455; see
also Noli v. CIR, 860 F.2d 1521, 1527 (9th Cir. 1988) (“[I]f no motion is made to
the judge . . . a party will bear a greater burden on appeal in demonstrating that the
judge . . . [erred] in failing to grant recusal under section 455.” (citation and
internal quotation marks omitted)).
AFFRIMED.
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