Norman Peck v. Beth Wenstrom , 514 F. App'x 657 ( 2013 )

FILED
NOT FOR PUBLICATION MAR 25 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NORMAN PECK, No. 11-17894
Plaintiff - Appellant, D.C. No. 2:11-cv-00151-JAM-
DAD
v.
BETH WENSTROM; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted March 12, 2013 **
Before: PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.
Norman Peck appeals pro se from the district court’s judgment denying his
motion for remand and dismissing for lack of subject matter jurisdiction his action
challenging his termination from the Department of the Interior’s Bureau of Land
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Management. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
the existence of subject matter jurisdiction, and for clear error any factual findings
regarding jurisdictional issues. Schnabel v. Lui, 302 F.3d 1023, 1029 (9th Cir.
2002). We affirm.
The district court properly denied Peck’s motion for remand because Peck
failed to establish that his state law claims against individual federal employees
who were certified by the U.S. Attorney General to be acting within the scope of
their employment should not proceed in federal court under the Federal Tort
Claims Act (“FTCA”) with the United States as the proper defendant. See Osborn
v. Haley, 549 U.S. 225, 229-32, 252 (2007) (where tort claims are brought against
a federal employee, U.S. Attorney General’s certification that employee acted
within the scope of his employment requires that the employee be dismissed from
the action, the United States be substituted in, and the case proceed in federal court
under the FTCA); Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1995)
(Attorney General’s certification that a federal employee was acting within the
scope of employment must be disproved by a preponderance of the evidence).
The district court properly dismissed without prejudice Peck’s action
because each of his claims related to defendants’ conduct within the scope of their
employment in allegedly improperly removing him from federal service, and, as
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such, were preempted by the exclusive administrative remedies provided under the
Civil Service Reform Act (the “CSRA”). See 5 U.S.C. § 2302 (CSRA applies to
claims concerning prohibited personnel practices, which broadly include any
decision taken for an improper motive as to a federal employee’s appointment,
promotion, reassignment, training, termination, or reinstatement); Mahtesian v.
Lee, 406 F.3d 1131, 1134 (9th Cir. 2005) (if the challenged conduct constitutes a
prohibited personnel practice under the CSRA, then the CSRA’s administrative
procedures are plaintiff’s exclusive remedy, preempting all other claims, and
federal courts cannot resolve such claims under the FTCA).
Peck’s contentions regarding the district court’s alleged errors in failing to
address his motions for discovery, sanctions, and other relief are unpersuasive. See
Wages v. IRS, 915 F.2d 1230, 1234 (9th Cir. 1990) (after ordering dismissal for
lack of subject matter jurisdiction, a district court retains no power to issue order
relating to the merits of the case).
AFFIRMED.
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