                                                                            FILED
                            NOT FOR PUBLICATION                                 SEP 11 2013

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



                            FOR THE NINTH CIRCUIT


JOHN DAVID MITCHELL,                              No. 12-35322

              Plaintiff - Appellant,              D.C. No.     3:10-cv-0263-TMB

  v.

U.S. DEPARTMENT OF THE AIR                        MEMORANDUM*
FORCE, JOINT BASE
ELMENDORF/RICHARDSON, 732 AIR
MOBILITY SQUADRON,

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Alaska
                   Timothy M. Burgess, District Judge, Presiding

                       Argued and Submitted August 14, 2013
                                Anchorage, Alaska

Before: KOZINSKI, Chief Judge, BERZON, and IKUTA, Circuit Judges.

       The record reveals sufficient evidence to support the district court’s

conclusion that an authorized employee or officer appointed Mitchell to his

position and that he performed a federal function in the course of his employment


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
with the government. See 5 U.S.C. § 2105(a). The form used to memorialize

Mitchell’s employment references his appointee status multiple times, and an

authorized designee of the Secretary of the Air Force appointed Mitchell to his

position. 5 U.S.C. § 2105(a)(1)(C)–(D); see 5 U.S.C. § 302(b)(1) (“[T]he head of

an agency may delegate to subordinate officials the authority . . . to take final

action on matters pertaining to the employment, direction, and general

administration of personnel under his agency.”). This conforms with the statutory

requirements for appointment. 5 U.S.C. § 2105(a)(1)(C)–(D). Finally, his work as

an Air Force employee handling cargo at a military base is a federal function under

5 U.S.C. § 2105(a)(2).

      AFFIRMED.




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