                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 29 2015

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

VINCENT BURROUGHS,                               No. 13-35793

              Plaintiff - Appellant,             D.C. No. 6:13-cv-00141-TC

 v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                  Thomas M. Coffin, Magistrate Judge, Presiding

                        Argued and Submitted July 9, 2015
                                Portland, Oregon

Before: PREGERSON, N.R. SMITH, and OWENS, Circuit Judges.

      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.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      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., 48 P.3d 137,

144–45 (Or. 2002) (clarifying that Oregon’s Fearing test for “scope of

employment” is an alternative test only for allegations of intentional torts); Fearing

v. Bucher, 977 P.2d 1163, 1166–68 (Or. 1999) (stating Oregon’s alternate test for

“scope of employment” for intentional tort claims). Pursuant to the Federal Tort

Claims Act, the United States does not waive sovereign immunity for the alleged

tortious acts of its employees committed outside the scope of their employment as

determined by state law. See 28 U.S.C. § 1346(b)(1). The United States also does

not ordinarily waive sovereign immunity for claims arising out of assault, battery,




                                          2
or an abuse of process. 28 U.S.C. § 2680(h).1 Because the United States has not

waived sovereign immunity as to Burroughs’s respondeat superior claims—the

only claims he appeals—the district court did not err in dismissing the action for

lack of subject matter jurisdiction.

      We review for an abuse of discretion a district court’s denial of leave to

amend. AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir.

2012). Because the “bar of sovereign immunity is absolute,” Frigard v. United

States, 862 F.2d 201, 204 (9th Cir. 1988) (per curiam), the United States cannot be

liable under the doctrine of respondeat superior for the acts alleged. The district

court therefore did not abuse its discretion by dismissing the action with prejudice

because the complaint cannot be redrafted to bring the respondeat superior claims

under the Federal Tort Claims Act.

      AFFIRMED.




      1
         We need not and do not consider Burroughs’s belated contention, raised for
the first time at oral argument, that § 2680(h) does not apply because an IRS
revenue agent is an investigative officer. See Johnson v. Gruma Corp., 614 F.3d
1062, 1069 (9th Cir. 2010) (arguments not raised until oral argument are waived).

                                          3
