Daniel Rhine v. Gina Perez

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 30 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL RHINE, No. 22-35245
Plaintiff-Appellant, D.C. No.
2:21-cv-00876-RAJ-BAT
v.
GINA PEREZ; UNITED STATES OF MEMORANDUM*
AMERICA,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted August 28, 2023**
Before: BENNETT, SUNG, and H.A. THOMAS, Circuit Judges.
Daniel Rhine appeals the district court’s dismissal of his defamation claim
against Gina Perez and the United States, which partially substituted itself as a
defendant pursuant to 28 U.S.C. § 2679(d). We have appellate jurisdiction under
28 U.S.C. § 1291. We review the district court’s dismissal de novo. Saleh v. Bush,
*
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).
848 F.3d 880, 886 (9th Cir. 2017). We affirm.
1. The only statements that Rhine challenges on appeal were made by Perez
while she was an employee of the Federal Aviation Administration (FAA).1 But
the United States has substituted itself as a defendant with respect to those claims.
See 28 U.S.C. § 2679(d) (Westfall Act). “A party may bring an action against the
United States only to the extent that the government waives its sovereign
immunity.” Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir. 1995). The
Federal Tort Claims Act (FTCA) “represent[s] a limited waiver of that sovereign
immunity for tort claims arising out of the conduct of a government employee
acting within the scope of his or her employment.” Id. But a defamation claim is
not actionable under the FTCA, as the FTCA does not apply to “[a]ny claim arising
out of . . . libel [or] slander.” 28 U.S.C. § 2680(h).
Rhine, however, also challenges the United States’ partial substitution. To
succeed in this challenge, Rhine “bears the burden of presenting evidence and
disproving the [] decision to grant . . . scope of employment certification by a
preponderance of the evidence.” Saleh, 848 F.3d at 889 (quoting Green v. Hall, 8
F.3d 695, 698 (9th Cir. 1993) (per curiam)). Even assuming that Rhine’s challenge
1
Rhine’s complaint describes two specific statements, one made on March 4,
2019, and the other made on July 12, 2019. He also mentions a statement made on
January 24, 2020, but the complaint does not contain allegations related to this
statement.
2
is preserved for appeal, he fails to meet that burden. Under Washington law, an
employee acts outside of the scope of their employment when their actions are
“different in kind from that authorized, far beyond the authorized time or space
limits, or too little actuated by a purpose to serve the master.” Robel v. Roundup
Corp., 59 P.3d 611, 621 (Wash. 2002) (en banc) (quoting Restatement (Second) of
Agency § 228(2) (Am. L. Inst. 1958)). Because Perez made her statements about
Rhine as a FAA employee, because the statements were made to FAA
investigators, and because they concerned Rhine’s alleged workplace conduct,
Perez’s statements were at least in part “actuated by a purpose to serve the” FAA.
Id. The district court therefore correctly dismissed Rhine’s defamation claim
against the United States for lack of subject matter jurisdiction.2
2. To the extent that any claim remains against Perez, the district court
correctly dismissed Rhine’s complaint for failure to state a claim. Rhine fails to
adequately plead the elements of a cause of action for defamation under
Washington law: (1) a false statement; (2) lack of privilege; (3) fault; and (4)
damages. Herron v. KING Broad. Co., 776 P.2d 98, 101 (Wash. 1989) (en banc).
2
Although Rhine seeks “leave to amend through the FTCA,” the district court’s
“[d]ismissal with prejudice and without leave to amend” was appropriate because
“it is clear on de novo review that the complaint could not be saved by
amendment.” Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.
2003) (per curiam). As explained previously, the FTCA categorically does not
apply to any claim arising out of libel or slander. See 28 U.S.C. § 2680(h).
3
“[E]xpressions of opinion” are “not actionable.” Robel, 59 P.3d at 621 (citation
omitted). The statements identified by Rhine amount to, at most, statements of
opinion.
AFFIRMED.
4