United States v. 2010-11-22 | 07-16482 | U-HAUL INTERNATIONAL V. WILCHER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 U-HAUL INTERNATIONAL, INC.; U-
HAUL COMPANY OF NEVADA, INC.
(“U-HAUL”),
Plaintiffs-Appellants,
No. 07-16482 v.
D.C. No. ESTATE OF NATHAN W. ALBRIGHT,  CV-06-00618-BES Intervenor-Appellee,
OPINION DEBRA WILCHER; STEVEN WAMSER;
GREGORY J. KAMER LTD, doing
business as Kamer Zucker &
Abbott; JENNIFER A. CORY,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of Nevada
Brian E. Sandoval, District Judge, Presiding
Argued and Submitted
November 2, 2010—San Francisco, California
Filed November 22, 2010
Before: Alex Kozinski, Chief Judge, Pamela Ann Rymer,
Circuit Judge and David G. Trager, District Judge.*
Per Curiam Opinion
*The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
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COUNSEL
Gary L. Birnbaum and Scot L. Claus (argued), Mariscal,
Weeks, McIntyre & Friedlander, Phoenix, Arizona, and Den-
nis L. Kennedy and Kimberly McGhee, Bailey Kennedy, Las
Vegas, Nevada, for the appellants.
Gregory A. Brower, United States Attorney and Roger W.
Wenthe (argued), Assistant United States Attorney, Las
Vegas, Nevada; Leland Eugene Backus (argued) and Marc S.
Cwik, Backus & Carranza, Las Vegas, Nevada; Nathan R.
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Reinmiller (argued) and Nathan D. Severson, Alverson, Tay-
lor, Mortensen & Sanders, Las Vegas, Nevada; and Norman
H. Kirshman (argued), Las Vegas, Nevada, for the appellees.
OPINION
PER CURIAM:
Nathan Albright and Steven Wamser acted as counsel for
the National Labor Relations Board in an action against U-
Haul. U-Haul sued Albright and Wamser, alleging that they
improperly obtained privileged information and used it
against U-Haul during the proceedings. The United States
Attorney for Nevada certified under the Westfall Act, 28
U.S.C. § 2679(d), that Wamser was acting within the course
and scope of his employment at the time of the alleged con-
duct. Accordingly, the United States Attorney filed a notice of
removal and sought to substitute the United States as the
defendant for Wamser. The government then moved to dis-
miss the claims against Wamser, in part because U-Haul had
failed to exhaust its claims as required by the Federal Tort
Claims Act (FTCA). 28 U.S.C. § 2675(a). U-Haul challenged
Wamser’s certification and opposed the government’s motion
to dismiss.
The district court upheld Wamser’s certification and went
on sua sponte to substitute the United States as a defendant
for Albright, even though the government never certified
Albright or intervened on his behalf. The district judge con-
cluded that Albright was acting within his scope of employ-
ment pursuant to Nevada’s law of respondeat superior. See
Nev. Rev. Stat. § 41.745. Having substituted the United States
for both Wamser and Albright, the district court granted the
government’s motion to dismiss. It held that U-Haul’s failure
to exhaust under the FTCA deprived the court of subject mat-
ter jurisdiction over the action against the United States,
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Wamser and Albright. 28 U.S.C. § 2675(a). U-Haul appeals
and we review de novo. See Kashin v. Kent, 457 F.3d 1033,
1036 (9th Cir. 2006).
[1] When the Attorney General refuses to certify a federal
employee under the Westfall Act, the employee may petition
the court for certification. See 28 U.S.C. § 2679(d)(3);
Kashin, 457 F.3d at 1037. But “[t]he Attorney General’s deci-
sion regarding scope of employment certification is conclu-
sive unless challenged.” Green v. Hall, 8 F.3d 695, 698 (9th
Cir. 1993) (emphasis added); see also Gutierrez de Martinez
v. Lamagno, 515 U.S. 417, 423-24 (1995). Because Albright
never petitioned the district court to review the decision not
to certify him, the Attorney General’s decision is “conclu-
sive.”
[2] The Westfall Act doesn’t empower the district court
sua sponte to abrogate the federal government’s sovereign
immunity and subject it to the risk of liability. Reading the
Act otherwise would have serious implications for the separa-
tion of powers. And, by failing to provide U-Haul and the
United States with any opportunity to oppose Albright’s sub-
stitution, the district court denied those parties due process.
See Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981). We
therefore conclude that the district court erred in substituting
the United States for Albright.
[3] The district court did not err, however, in upholding the
Attorney General’s certification that Wamser was acting
within the scope of his employment. Under the Westfall Act,
“certification is ‘prima facie evidence that a federal employee
was acting in the scope of [his] employment at the time of the
incident.’ ” Pauly v. U.S. Dep’t of Agric., 348 F.3d 1143,
1151 (9th Cir. 2003) (per curiam) (quoting Billings v. United
States, 57 F.3d 797, 800 (9th Cir. 1995)). U-Haul did not
rebut the presumption created by the certification, and in
seeking to sever certain claims against Wamser, even con-
ceded that aspects of his conduct were likely certified prop-
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erly. The district judge didn’t err in holding that Wamser’s
alleged misconduct was “committed in the course of the very
task assigned to the employee, namely the prosecution of the
case.” See Nev. Rev. Stat. § 41.745; Prell Hotel Corp. v.
Antonacci, 469 P.2d 399, 400-01 (Nev. 1970). U-Haul argues
that it should have been able to present evidence that Wamser
was not acting within the scope of his employment. But the
district judge didn’t abuse his discretion in refusing to grant
U-Haul an evidentiary hearing, since he upheld Wamser’s
certification while assuming all of U-Haul’s allegations to be
true. See McLachlan v. Bell, 261 F.3d 908, 910-11 (9th Cir.
2001).
* * *
[4] We remand for proceedings consistent with this deci-
sion. The district court shall reinstate U-Haul’s claims against
Albright. The district court shall also reinstate the claims
against the other defendants, Debra Wilcher and Kamer,
Zucker & Abbott, because the district court dismissed those
claims under the mistaken belief that it lacked subject matter
jurisdiction over Albright under the FTCA. The district court
may then decide whether to exercise supplemental jurisdiction
over the remaining claims.
AFFIRMED in part, REVERSED in part and
REMANDED. No costs.
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