FILED

NOT FOR PUBLICATION

JUL 6 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL B. STOKER, No. 21-55993

Plaintiff-Appellant, D.C. No. 2:21-cv-00733-JAK-E v.

UNITED STATES OF AMERICA; MEMORANDUM*

Defendants-Appellees,

and

ANDREW R. WHEELER; et al.,

Defendants.

Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding

Submitted June 13, 2022** Pasadena, California

Before: RAWLINSON, CHRISTEN, and KOH, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Plaintiff Michael Stoker (Stoker) appeals the district court’s order

substituting the United States for individual defendants on the grounds that they

were acting within the “course and scope of their employment” pursuant to 28

U.S.C. § 2679(d). The district court subsequently dismissed Stoker’s complaint

because the United States has not waived sovereign immunity for defamation suits

pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2680(h). Stoker argues: (1)

the district court denied his right to Due Process by failing to grant him discovery

or an evidentiary hearing; (2) Stoker was entitled to have a jury decide the “course

and scope” issue; and (3) defendants acted outside the scope of their employment.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Because the

parties are familiar with the facts, we recite only those necessary to decide this

appeal.

1) Stoker argues the district court erred by holding that defendants did

not act outside the scope of their employment when they issued an allegedly

defamatory statement on February 6th at 9:00 pm ET. Stoker contends the

statement fell outside the course and scope of employment because defendants

“maliciously and knowingly” made false public statements about him after he was

no longer an employee, none of which was in step with the general procedures of

the Environmental Protection Agency (“EPA”) for terminating employees.

2 Under the Westfall Act, “scope of employment” is determined by state

respondeat superior law in the state where the tort occurred. Pelletier v. Fed.

Home Loan Bank of S.F., 968 F.2d 865, 876 (9th Cir. 1992). In California, an

employee acts within the scope of employment when: (1) the challenged act was

required by or broadly incidental to the employee’s duties; or (2) the employer

reasonably could have foreseen the employee’s conduct. Sunderland v. Lockheed

Martin Aeronautical Sys. Supp. Co., 130 Cal. App. 4th 1, 9 (2005). Employee

activity falls within the course and scope of employment when, in the context of

the particular enterprise, an employee’s conduct is not so unusual or startling that it

would seem unfair to include the loss resulting from it among other costs of the

employer’s business. Farmers Ins. Group v. County of Santa Clara, 11 Cal. 4th

992, 1003 (1995).

On the facts of this case, we conclude defendants’ actions fell within the

course and scope of their employment because the February 6th statement

concerned the circumstances surrounding Stoker’s firing and their reasons for it,

and issuing press releases about EPA’s change in leadership was within the scope

of their duties. See Sanborn v. Chronicle Pub. Co., 18 Cal. 3d 406, 410–11 (1976)

(holding employee’s response to a press inquiry was within the scope of his

employment). The timing and content of the statement was not typical, but

3 defendants’ press release was issued in the wake of Stoker’s “All Hands” email

that was publicly disseminated.

2) Stoker further argues the district court erred by failing to allow limited

discovery as to whether defendants’ conduct exceeded the scope of their

employment. Limited discovery is permitted in a Westfall Act case when a

plaintiff alleges sufficient facts that, taken as true, would establish the defendant’s

actions exceeded the scope of their employment. Saleh v. Bush, 848 F.3d 880, 892

(9th Cir. 2017) (citing Wuterich v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009)).

Because Stoker has not made such a showing here, we conclude the district court

did not err by declining to give Stoker the opportunity to conduct limited

discovery.

Additionally, Stoker contends the district court violated his Due Process

rights by failing to give him the opportunity to develop his claims through

discovery or a hearing. However, whether to grant discovery or an evidentiary

hearing to resolve a Westfall Act certification challenge is a discretionary matter

for the district court’s determination. Saleh, 848 F.3d at 892. Stoker was not

entitled to discovery or a hearing as a matter of right and the district court did not

abuse its discretion in declining to allow discovery, given the nature of Stoker’s

allegations. We conclude there was no due process violation.

4 3) Finally, Stoker argues he was entitled to a jury’s determination of

whether defendants’ actions fell within the “course and scope” of their

employment. But actions against the United States ordinarily “shall be tried by the

court without a jury,” 28 U.S.C. § 2402, and, upon scope-of-employment

certification, an “action is deemed to be . . . brought against the United States . . .

unless and until the district court determines that the federal officer originally

named as defendant was acting outside the scope of his employment.” Osborn v.

Haley, 549 U.S. 225, 252 (2007). We thus conclude the district court did not err

by deciding the “course and scope” issue without a jury trial. We affirm the

district court’s substitution of the United States and dismissal of Stoker’s

complaint.

AFFIRMED.

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