Joseph Etherage v. United States

MEMORANDUM

The facts and procedural posture of this case are known to the parties, and we do not repeat them here. Plaintiffs-appellants Joseph and Kirstin Etherage (collectively, “Etherage”) appeal from a district court judgment dismissing their tort suit against the United States on the basis of sovereign immunity. We affirm the decision of the district court.

The Westfall Act provides that, when a federal employee is sued in tort, if the Attorney General or a U.S. Attorney certifies that the employee was acting within the scope of his employment when he took the actions giving rise to the lawsuit, the United States is substituted as the defendant. 28 U.S.C. § 2679 (d); see Osborn v. Haley, 549 U.S. 225, 230-31, 238 , 127 S.Ct. 881 , 166 L.Ed.2d 819 (2007). We review the U.S. Attorney’s certification de novo and review any factual findings by the district court for clear error. Kashin v. Kent, 457 F.3d 1033, 1036 (9th Cir.2006). “The party seeking review bears the burden of presenting evidence and disproving the [U.S. Attorney’s] decision to grant or . deny scope of employment certification by a preponderance of the evidence.” Id. (internal quotation marks, citation, and…