Wayne Christian Hawkes v. Marta D. Van Loan; United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WAYNE CHRISTIAN HAWKES,
Plaintiff-Appellant,
v.
MARTA D. VAN LOAN; UNITED
STATES OF AMERICA,
Defendants-Appellees.
No. 14-17300
D.C. No. 3:14-cv-02072-EDL
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding**
Submitted January 18, 2017***
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Wayne Christian Hawkes appeals pro se from the district court’s judgment
dismissing his action alleging that a fellow employee of the United States
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
*** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JAN 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 14-17300
Department of Agriculture slandered him. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo a dismissal under Federal Rule of Civil Procedure
12(b)(1) and a denial of a challenge to certification. McLachlan v. Bell, 261 F.3d
908, 910 (9th Cir. 2001). We affirm.
The district court properly denied Hawkes’s motion to strike the 28 U.S.C.
§ 2679(d) certification because Van Loan was acting within the scope of her
employment at the time the alleged slander and libel claims arose. See id. at 912.
Thus, the district court properly dismissed Hawkes’s action for lack of subject
matter jurisdiction. See 28 U.S.C. § 2680(h).
The district court did not abuse its discretion in denying Hawkes’s motion
for leave to file an amended complaint alleging a Bivens claim because the
allegations in Hawkes’s proposed complaint failed to state any federal claim. See
Siegert v. Gilley, 500 U.S. 226, 234 (1991) (explaining that whenever the alleged
“damage flows from injury caused by the defendant to a plaintiff’s reputation, it
may be recoverable under state tort law but it is not recoverable in a Bivens
action”); see also Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir.
1998) (leave to amend not required “where the amended complaint would also be
subject to dismissal”); Chodos v. West. Publ’g Co., 292 F.3d 992, 1003 (9th Cir.

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3 14-17300
2002) (setting forth standard of review).
Hawkes’s request for judicial notice, filed on March 31, 2015, is denied.
AFFIRMED.

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