Vincent Burroughs v. United States

MEMORANDUM

Vincent Burroughs appeals the district court’s dismissal with prejudice of his Federal Tort Claims Act action. The district court dismissed the action for lack of subject matter jurisdiction based on sovereign immunity. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm.

We review de novo issues of sovereign immunity and subject matter jurisdiction. Orff v. United States, 358 F.3d 1137, 1142 (9th Cir.2004). The district court properly concluded that it lacked subject matter jurisdiction over Burroughs’s claims that the United States is liable under the doctrine 'of respondeat superior for the alleged tortious acts of an IRS revenue agent. The conduct alleged was either outside the scope of employment as determined by Oregon state law, or arose out of assault, battery, or an abuse of process. See Doe v. Holy See, 557 F.3d 1066, 1082-83 (9th Cir.2009) (interpreting “scope of employment” for respondeat superior liability under Oregon law); Minnis v. Or. Mut. Ins. Co., 334 Or. 191 , 48 P.3d 137, 144-45 (2002) (clarifying that Oregon’s Fearing test for “scope of employment” is an alternative test only for allegations of intentional torts); Fearing v. Bucher, 328…