FILED

NOT FOR PUBLICATION

AUG 11 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TAMMY WILHITE, No. 21-35693

Plaintiff-Appellee, D.C. Nos. v. 1:19-cv-00020-SPW-TJC 1:19-cv-00102-SPW-TJC PAUL LITTLELIGHT; et al.,

Defendants-Appellants, MEMORANDUM*

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Submitted August 9, 2022** Anchorage, Alaska

Before: S.R. THOMAS, McKEOWN, and CLIFTON, 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). Defendants appeal the district court’s order denying their petition for

Federal Tort Claims Act (“FTCA”) certification pursuant to the Westfall Act, 28

U.S.C. § 2679(b)(1). We have jurisdiction under 28 U.S.C. § 1291. See Osborn v.

Haley, 549 U.S. 225, 238 (2007) (stating that certification denials are reviewable).

We affirm. Because the parties are familiar with the factual and procedural history

of this case, we need not recount it here.1

I

The district court properly denied Defendants’ petition for FTCA course and

scope-of-employment certification and substitution of the United States as a party

because the FTCA precludes such certification for federal statutory claims. The

FTCA preserved suits against individual federal employees for violations of

federal statutes that authorize recovery against a government employee. See 28

U.S.C. § 2679(b)(2)(B); United States v. Smith, 499 U.S. 160, 166–67 (1991)

(discussing Section 2679(b)(2)’s “express preservation[]” of liability). In this suit,

Wilhite alleged a civil claim against the Defendants for alleged violations of the

Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964.

The district court correctly concluded that RICO claims against individuals

1 We grant Defendants’ motion for judicial notice. Dkt. 12. 2 constitute claims that are “otherwise authorized” by federal statutes, and thus are

excluded from the FTCA certification and substitution procedure. See 28 U.S.C. §

2679(b)(2)(B). The district court had jurisdiction over Wilhite’s RICO claims

under 28 U.S.C. § 1331.

II

The district court did not err in declining to construe Wilhite’s RICO claim

as a common-law wrongful-discharge claim. As the magistrate judge correctly

observed, there is no “authority for the proposition that the Court may recast a

federal statutory cause of action as one sounding in tort in order to extend Westfall

Act immunity for the claim.” There is nothing in the FTCA to support the

proposition, and we have held that we must “strictly constru[e]” the FTCA so as

not to “enlarge [it] beyond what the statute requires.” F.D.I.C. v. Craft, 157 F.3d

697, 707 (9th Cir. 1998).

The district court did not err in treating Wilhite’s factual allegations as true

when determining its subject-matter jurisdiction. Bibeau v. Pac. Nw. Rsch. Found.,

Inc., 339 F.3d 942, 944 (9th Cir. 2003) (accepting the complaint’s factual

allegations). While a district court “need not presume the truthfulness of the

plaintiff’s allegations” when a defendant challenges the factual grounds for

subject-matter jurisdiction, Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039

3 (9th Cir. 2004), Defendants’ challenges to the truth and adequacy of Wilhite’s

allegations attacked their merits—not the court’s subject-matter jurisdiction.

III

The district court correctly declined to dismiss Wilhite’s RICO claim sua

sponte. A court must provide the plaintiff with the opportunity to submit written

argument opposing dismissal before dismissing an action sua sponte for failure to

state a claim. See Franklin v. Oregon, 662 F.2d 1337, 1340–41 (9th Cir. 1981).

Here, Defendants had not filed a motion to dismiss for failure to state a claim at the

time of the appealed judgment, and Wilhite had no opportunity to submit written

opposition to dismissal.

IV

The district court did not abuse its discretion in declining to hold evidentiary

hearings on scope of employment or the application of Section 2679(b)(2)(B). See

Saleh v. Bush, 848 F.3d 880, 886 (9th Cir. 2017) (stating standard). There were no

relevant factual disputes. The parties agree that the Defendants were acting within

their employment, and the magistrate judge assumed as much in reaching his

conclusions.

4 V

In sum, we affirm the district court’s denial of the petition for certification

pursuant to the Westfall Act. The district court did not err, in considering the

petition at this stage of the proceedings, in declining to construe the RICO

allegations as common-law claims, declining to hold an evidentiary hearing, or

declining to sua sponte dismiss the complaint on the merits. On issuance of the

mandate, the case should proceed in the normal course to conclusion in the district

court.

AFFIRMED.

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