Daniel Rhine v. Gina Perez

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 30 2023

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL RHINE, No. 22-35245

Plaintiff-Appellant, D.C. No.

2:21-cv-00876-RAJ-BAT v. GINA PEREZ; UNITED STATES OF MEMORANDUM* AMERICA,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding Submitted August 28, 2023**

Before: BENNETT, SUNG, and H.A. THOMAS, Circuit Judges.

Daniel Rhine appeals the district court’s dismissal of his defamation claim against Gina Perez and the United States, which partially substituted itself as a defendant pursuant to 28 U.S.C. § 2679(d). We have appellate jurisdiction under 28 U.S.C. § 1291. We review the district court’s dismissal de novo. Saleh v. Bush,

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

848 F.3d 880, 886 (9th Cir. 2017). We affirm.

1. The only statements that Rhine challenges on appeal were made by Perez while she was an employee of the Federal Aviation Administration (FAA).1 But the United States has substituted itself as a defendant with respect to those claims. See 28 U.S.C. § 2679(d) (Westfall Act). “A party may bring an action against the United States only to the extent that the government waives its sovereign immunity.” Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir. 1995). The Federal Tort Claims Act (FTCA) “represent[s] a limited waiver of that sovereign immunity for tort claims arising out of the conduct of a government employee acting within the scope of his or her employment.” Id. But a defamation claim is not actionable under the FTCA, as the FTCA does not apply to “[a]ny claim arising out of . . . libel [or] slander.” 28 U.S.C. § 2680(h).

Rhine, however, also challenges the United States’ partial substitution. To succeed in this challenge, Rhine “bears the burden of presenting evidence and disproving the [] decision to grant . . . scope of employment certification by a preponderance of the evidence.” Saleh, 848 F.3d at 889 (quoting Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993) (per curiam)). Even assuming that Rhine’s challenge is preserved for appeal, he fails to meet that burden. Under Washington law, an employee acts outside of the scope of their employment when their actions are “different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.” Robel v. Roundup Corp., 59 P.3d 611, 621 (Wash. 2002) (en banc) (quoting Restatement (Second) of Agency § 228(2) (Am. L. Inst. 1958)). Because Perez made her statements about Rhine as a FAA employee, because the statements were made to FAA investigators, and because they concerned Rhine’s alleged workplace conduct, Perez’s statements were at least in part “actuated by a purpose to serve the” FAA. Id. The district court therefore correctly dismissed Rhine’s defamation claim against the United States for lack of subject matter jurisdiction.2

2. To the extent that any claim remains against Perez, the district court correctly dismissed Rhine’s complaint for failure to state a claim. Rhine fails to adequately plead the elements of a cause of action for defamation under Washington law: (1) a false statement; (2) lack of privilege; (3) fault; and (4) damages. Herron v. KING Broad. Co., 776 P.2d 98, 101 (Wash. 1989) (en banc). “[E]xpressions of opinion” are “not actionable.” Robel, 59 P.3d at 621 (citation omitted). The statements identified by Rhine amount to, at most, statements of opinion.

AFFIRMED.