Thomas Easton v. United States ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS DEWEY EASTON, No. 20-35351
Plaintiff-Appellant, D.C. No. 6:19-cv-01978-MK
v.
MEMORANDUM*
UNITED STATES OF AMERICA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Mustafa T. Kasubhai, Magistrate Judge, Presiding**
Submitted May 18, 2021***
Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.
Thomas Dewey Easton appeals pro se from the district court’s judgment
dismissing his action alleging federal and state law claims arising from the
suspension of his driver’s license. We have jurisdiction under 28 U.S.C. § 1291.
*
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).
We affirm.
The district court dismissed Easton’s action on the basis of res judicata. The
only challenge to the district court’s application of res judicata that Easton raises in
his opening brief is that this court has not yet resolved his previous appeal, No. 19-
35699, but on August 12, 2020, this court decided that appeal by affirming the
district court’s judgment. Because Easton raises no other challenge to the district
court’s application of res judicata, Easton has waived any such challenge. See
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009); Acosta-Huerta v. Estelle,
7 F.3d 139, 144 (9th Cir. 1993) (issues not supported by argument in pro se
appellant’s opening brief are waived).
The district court properly substituted the United States as a party for
defendant Howell. In order to challenge the Attorney General’s decision regarding
the scope of the employment certification, Easton was required to “allege sufficient
facts that, taken as true, would establish that [Howell’s] actions exceeded the scope
of [her] employment,” but Easton failed to do so. Saleh v. Bush, 848 F.3d 880,
886, 889 (9th Cir. 2017) (citation and internal quotation marks omitted) (standard
of review).
The district court properly denied Easton’s motion to remand. The Attorney
General certified that Howell was an employee of the Department of Veterans
Affairs and was acting within the scope of her employment during the incidents
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described in Easton’s complaint, and “certification is conclusive for purposes of
removal, i.e., once certification and removal are effected, exclusive competence to
adjudicate the case resides in the federal court, and that court may not remand the
suit to the state court.” Osborn v. Haley, 549 U.S. 225, 231 (2007); D-Beam Ltd.
P’ship v. Roller Derby Skates, Inc., 366 F.3d 972, 974 n.2 (9th Cir. 2004) (standard
of review).
The district court did not abuse its discretion by dismissing Easton’s
complaint without leave to amend because amendment would have been futile.
See Cervantes v. Countrywide Home Loans, 656 F.3d 1034, 1040-41 (9th Cir.
2011) (setting forth standard of review and explaining that a district court may
deny leave to amend if amendment would be futile).
We reject as without merit Easton’s contentions that the district court was
required to conduct hearings and grant discovery, and that the district court failed
to rule on his request for judicial notice.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett, 587 F.3d at 985 n.2.
AFFIRMED.
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