                                                                           FILED
                           NOT FOR PUBLICATION                             AUG 12 2014

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



                            FOR THE NINTH CIRCUIT


WILLIAM MARINESE; et al.,                        No. 13-35261

              Plaintiffs - Appellants,           D.C. No. 1:10-cv-00008-JWS

  v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA,

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Alaska
                    John W. Sedwick, District Judge, Presiding

                        Argued and Submitted June 2, 2014
                               Anchorage, Alaska

Before: WALLACE, WARDLAW, and CHRISTEN, Circuit Judges.

       After William Marinese was injured while delivering mail in Craig, Alaska,

Marinese and several of his family members sued the United States Postal Service

(USPS) for negligence under the Federal Tort Claims Act (FTCA). They appeal

from the district court’s order granting the USPS’s motion to dismiss for lack of



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and its

discretionary denial of Marinese’s motion to certify three questions to the Alaska

Supreme Court.1 We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      “As a sovereign, the United States is immune from suit except to the extent

that it has unequivocally consented to litigation against itself.” LaBarge v. Cnty. of

Mariposa, 798 F.2d 364, 366 (9th Cir. 1986). The FTCA provides a limited

waiver of the government’s sovereign immunity. Id. Under the FTCA: “The

United States shall be liable . . . in the same manner and to the same extent as a

private individual under like circumstances.” 28 U.S.C. § 2674. The FTCA

requires us “to analogize the government to a private actor in a similar situation

and apply state law to determine amenability to suit.” LaBarge, 798 F.2d at 366.

We review de novo a district court’s legal conclusions regarding the United States’

amenability to suit under the FTCA. Id.

      The district court stated that here “the analogous private actor would be a

private sector package delivery company such as FedEx.” The district court’s

analogy was appropriate. Although FedEx would not be in “identical




      1
            Because the parties are familiar with the facts of the case, we will not
recount them here.

                                           2
circumstances” as the USPS, it would be in “like circumstances.” Xue Lu v.

Powell, 621 F.3d 944, 947 (9th Cir. 2010).

      The Alaska Workers’ Compensation Act (AWCA) governs the liability of

private employers in Alaska for job-related injuries sustained by their employees.

The relevant sections of the AWCA are Alaska Statutes §§ 23.30.045 and

23.30.055. Section 23.30.045(a) explains that employers in Alaska are liable for

securing payment of workers’ compensation benefits to their employees who are

injured on the job. And § 23.30.055 provides: “The liability of an employer

prescribed in AS 23.30.045 is exclusive and in place of all other liability of the

employer,” and “‘employer’ includes . . . a person who, under AS 23.30.045(a), is

liable for or potentially liable for securing payment of compensation.” This

provision is known as the exclusive liability provision of the AWCA. See

Anderson v. Alyeska Pipeline Serv. Co., 234 P.3d 1282, 1285 (Alaska 2010).

      The district court did not err by using the analogy of FedEx as a private

party in like circumstances to the USPS in this case. Marinese was an employee of

Promech Air (“Promech”), a private carrier that delivered mail for the USPS.

FedEx and Promech would have a contractual agreement of some sort governing

their agreement for Promech to deliver mail. It is immaterial whether the contract

would have been written, oral, or implied. Under any such scenario, Promech


                                           3
would be “a person who undertakes by contract performance of certain work for

another,” and Promech would qualify as a “contractor” under the AWCA. See AS

§ 23.30.045(f)(1). If FedEx engaged the services of Promech, a contractor, in the

course of its business as a mail and package delivery company, FedEx would

“enjoy the beneficial use” of Promech’s work because its mail and packages would

be delivered. As such, FedEx would be a “project owner” under the AWCA. Id. §

23.30.045(f)(2). Because FedEx would “fall[] within the statutory definition of

‘project owner,’” we do not need to consider the applicability of the AWCA to

other businesses that might use Promech’s services. See Anderson, 234 P.3d at

1288. As a project owner, FedEx would be entitled to protection under the

exclusivity provision. See AS § 23.30.055.

      Appellants’ suit against the USPS cannot proceed under the FTCA because a

private party in like circumstances would be protected from tort liability under

Alaska law. See LaBarge, 798 F.2d at 366, 369. We affirm the district court’s

order granting the government’s motion to dismiss for lack of subject matter

jurisdiction because the FTCA does not waive the government’s sovereign

immunity under the circumstances of this case. See 28 U.S.C. § 2674.

      The decision to certify a question to a state court is a matter of discretion.

See White v. Celotex Corp., 907 F.2d 104, 106 (9th Cir. 1990). Marinese failed to


                                           4
show that the district court abused its discretion. And because there are no

determinative questions of Alaska law in this case that lack controlling precedent

from the Alaska Supreme Court, see Alaska R. App. P. 407(a), we decline to

exercise our discretion to certify any questions to the Alaska Supreme Court.

      The district court’s order granting the USPS’s motion to dismiss and

denying Marinese’s motion to certify is AFFIRMED.




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