Daniel Gabino Martinez v. United States of America;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
GT/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL GABINO MARTINEZ,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA; et al.,
Respondents - Appellees.
No. 08-15948
D.C. No. 4:07-cv-00158-FRZ
MEMORANDUM *
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Daniel Gabino Martinez appeals pro se from the district court’s judgment
dismissing his tort action against the United States for lack of subject matter
jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

GT/Research 08-15948 2
novo. Billings v. United States, 57 F.3d 797, 799 (9th Cir. 1995) (certification by
the Attorney General, pursuant to 28 U.S.C. § 2679(d)(1), that named defendant
was federal employee acting within the scope of her employment). We affirm.
Martinez filed this action in Arizona state court against employees of the
United States Forest Service, alleging unlawful seizure of his cattle.
“When a federal employee is sued for wrongful or negligent conduct, the
[Westfall] Act empowers the Attorney General to certify that the employee was
acting within the scope of his office or employment . . . . [T]he United States is
substituted as defendant in place of the employee. The litigation is thereafter
governed by the Federal Tort Claims Act (“FTCA”). If the action commenced in
state court, the case is to be removed to a federal district court, and the certification
remains conclusive for purposes of removal.” Osborn v. Haley, 549 U.S. 225, 229-
30 (2007) (internal quotation marks, citations, ellipses and brackets omitted).
Accordingly, substitution of the United States for the individually named
defendants, and removal of this action to federal court, was proper because the
United States Attorney, acting on behalf of the Attorney General, certified that the
named defendants were acting within the scope of their employment.
Martinez failed to disprove the certification. See Billings, 57 F.3d at 800
(“Certification by the Attorney General is prima facie evidence that a federal
employee was acting in the scope of her employment at the time of the incident

-- 2 of 3 --

GT/Research 08-15948 3
and is conclusive unless challenged. The party seeking review bears the burden of
presenting evidence and disproving the Attorney General’s certification by a
preponderance of the evidence.”) (citation omitted).
Because Martinez failed to demonstrate that he exhausted the administrative
remedies of the FTCA, the district court properly dismissed the action against the
United States. See Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992)
(explaining that a court lacks subject matter jurisdiction where the plaintiff has
failed to exhaust the FTCA’s administrative remedies).
Martinez’s remaining contentions are unpersuasive.
AFFIRMED.

-- 3 of 3 --