Richard Sellers v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RICHARD SELLERS,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
No. 18-56526
D.C. No.
2:18-cv-03183-PA-FFM
MEMORANDUM
*
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted February 3, 2020
**
Pasadena, California
Before: IKUTA and LEE, Circuit Judges, and MARBLEY,
***
District Judge.

Richard Sellers appeals the district court’s judgment dismissing his claims
for lack of subject matter jurisdiction. We affirm.
FILED
FEB 5 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
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).
* * *
The Honorable Algenon L. Marbley, Chief United States District
Judge for the Southern District of Ohio, sitting by designation.

Because Express Alliance is an independent contractor with the United
States, and the Federal Tort Claims Act does not waive the government’s immunity
from suit for the negligent or wrongful acts of an independent contractor, see 28
U.S.C. § 1346(b)(1); Logue v. United States, 412 U.S. 521, 528 (1973), we lack
subject matter jurisdiction over Sellers’s claim that the government is vicariously
liable for Express Alliance’s negligent actions.
Nor is the government liable for Express Alliance’s negligence under
California’s peculiar risk doctrine. See Bowman v. Wyatt, 186 Cal. App. 4th 286,
309 (2010). Driving does not involve a peculiar risk because it is a “normal,
routine matter of customary human activity.” Restatement (Second) of Torts § 413
cmt. b. And Sellers gives no indication that Express Alliance’s vehicles, the items
that they transported, or the routes that they drove created special dangers.
Bowman, 186 Cal. App. 4th at 308–09; Am. States Ins. Co. v. Progressive Cas. Ins.
Co., 180 Cal. App. 4th 18, 31 (2009). Similarly, the peculiar risk doctrine does not
give the government a nondelegable duty to ensure that Express Alliance used safe
procedures in its retention of drivers, because making retention decisions about
drivers is not inherently dangerous. See Restatement (Second) of Torts, § 413.
Sellers’ argument that the government had a nondelegable duty under
California’s public franchise doctrine also fails. See Serna v. Pettey Leach
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Trucking, Inc., 110 Cal. App. 4th 1475, 1486 (2003); Eli v. Murphy, 39 Cal. 2d
598, 600 (1952). This doctrine applies only to carriers who undertake an activity
under a public franchise, and the government here is not a carrier and does not
require government permission for its operations. See Serna, 110 Cal. App. 4th at
1486; Murphy, 39 Cal. 2d at 599.
Finally, because California does not impose liability on the party that hires
an independent contractor for that contractor’s acts or omissions in the absence of a
nondelegable duty, see Edison v. United States, 822 F.3d 510, 519 (9th Cir. 2016),
the government is not liable under California law for Express Alliance’s retention
decisions. Moreover, because the government’s decision to use Express Alliance
as an independent contractor is not barred by any federal statute, regulation, or
policy, see Berkovitz v. United States, 486 U.S. 531, 536 (1988), and is susceptible
to policy balancing, see United States v. Gaubert, 499 U.S. 315, 325 (1991), the
discretionary function exception to the FTCA also bars Sellers’ direct claim against
the Government, see 28 U.S.C. § 2680(a).
AFFIRMED.
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