William Marinese v. United States , 584 F. App'x 492 ( 2014 )

FILED
NOT FOR PUBLICATION AUG 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM MARINESE; et al., No. 13-35261
Plaintiffs - Appellants, D.C. No. 1:10-cv-00008-JWS
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted June 2, 2014
Anchorage, Alaska
Before: WALLACE, WARDLAW, and CHRISTEN, Circuit Judges.
After William Marinese was injured while delivering mail in Craig, Alaska,
Marinese and several of his family members sued the United States Postal Service
(USPS) for negligence under the Federal Tort Claims Act (FTCA). They appeal
from the district court’s order granting the USPS’s motion to dismiss for lack of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and its
discretionary denial of Marinese’s motion to certify three questions to the Alaska
Supreme Court.1 We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
“As a sovereign, the United States is immune from suit except to the extent
that it has unequivocally consented to litigation against itself.” LaBarge v. Cnty. of
Mariposa, 798 F.2d 364, 366 (9th Cir. 1986). The FTCA provides a limited
waiver of the government’s sovereign immunity. Id. Under the FTCA: “The
United States shall be liable . . . in the same manner and to the same extent as a
private individual under like circumstances.” 28 U.S.C. § 2674. The FTCA
requires us “to analogize the government to a private actor in a similar situation
and apply state law to determine amenability to suit.” LaBarge, 798 F.2d at 366.
We review de novo a district court’s legal conclusions regarding the United States’
amenability to suit under the FTCA. Id.
The district court stated that here “the analogous private actor would be a
private sector package delivery company such as FedEx.” The district court’s
analogy was appropriate. Although FedEx would not be in “identical
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Because the parties are familiar with the facts of the case, we will not
recount them here.
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circumstances” as the USPS, it would be in “like circumstances.” Xue Lu v.
Powell, 621 F.3d 944, 947 (9th Cir. 2010).
The Alaska Workers’ Compensation Act (AWCA) governs the liability of
private employers in Alaska for job-related injuries sustained by their employees.
The relevant sections of the AWCA are Alaska Statutes §§ 23.30.045 and
23.30.055. Section 23.30.045(a) explains that employers in Alaska are liable for
securing payment of workers’ compensation benefits to their employees who are
injured on the job. And § 23.30.055 provides: “The liability of an employer
prescribed in AS 23.30.045 is exclusive and in place of all other liability of the
employer,” and “‘employer’ includes . . . a person who, under AS 23.30.045(a), is
liable for or potentially liable for securing payment of compensation.” This
provision is known as the exclusive liability provision of the AWCA. See
Anderson v. Alyeska Pipeline Serv. Co., 234 P.3d 1282, 1285 (Alaska 2010).
The district court did not err by using the analogy of FedEx as a private
party in like circumstances to the USPS in this case. Marinese was an employee of
Promech Air (“Promech”), a private carrier that delivered mail for the USPS.
FedEx and Promech would have a contractual agreement of some sort governing
their agreement for Promech to deliver mail. It is immaterial whether the contract
would have been written, oral, or implied. Under any such scenario, Promech
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would be “a person who undertakes by contract performance of certain work for
another,” and Promech would qualify as a “contractor” under the AWCA. See AS
§ 23.30.045(f)(1). If FedEx engaged the services of Promech, a contractor, in the
course of its business as a mail and package delivery company, FedEx would
“enjoy the beneficial use” of Promech’s work because its mail and packages would
be delivered. As such, FedEx would be a “project owner” under the AWCA. Id. §
23.30.045(f)(2). Because FedEx would “fall[] within the statutory definition of
‘project owner,’” we do not need to consider the applicability of the AWCA to
other businesses that might use Promech’s services. See Anderson, 234 P.3d at
1288. As a project owner, FedEx would be entitled to protection under the
exclusivity provision. See AS § 23.30.055.
Appellants’ suit against the USPS cannot proceed under the FTCA because a
private party in like circumstances would be protected from tort liability under
Alaska law. See LaBarge, 798 F.2d at 366, 369. We affirm the district court’s
order granting the government’s motion to dismiss for lack of subject matter
jurisdiction because the FTCA does not waive the government’s sovereign
immunity under the circumstances of this case. See 28 U.S.C. § 2674.
The decision to certify a question to a state court is a matter of discretion.
See White v. Celotex Corp., 907 F.2d 104, 106 (9th Cir. 1990). Marinese failed to
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show that the district court abused its discretion. And because there are no
determinative questions of Alaska law in this case that lack controlling precedent
from the Alaska Supreme Court, see Alaska R. App. P. 407(a), we decline to
exercise our discretion to certify any questions to the Alaska Supreme Court.
The district court’s order granting the USPS’s motion to dismiss and
denying Marinese’s motion to certify is AFFIRMED.
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