                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 17 2014

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



                            FOR THE NINTH CIRCUIT


JOSEPH ETHERAGE; KIRSTIN                         No. 13-35368
ETHERAGE, and the marital community
thereof,                                         D.C. No. 3:11-cv-05091-BHS

              Plaintiffs - Appellants,
                                                 MEMORANDUM*
  v.

JOHNNY L WEST,

              Defendant,

  and

UNITED STATES OF AMERICA,

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                           Submitted October 9, 2014**
                              Seattle, Washington


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges.

      The facts and procedural posture of this case are known to the parties, and

we do not repeat them here. Plaintiffs-appellants Joseph and Kirstin Etherage

(collectively, “Etherage”) appeal from a district court judgment dismissing their

tort suit against the United States on the basis of sovereign immunity. We affirm

the decision of the district court.

      The Westfall Act provides that, when a federal employee is sued in tort, if

the Attorney General or a U.S. Attorney certifies that the employee was acting

within the scope of his employment when he took the actions giving rise to the

lawsuit, the United States is substituted as the defendant. 28 U.S.C. § 2679(d); see

Osborn v. Haley, 549 U.S. 225, 230–31, 238 (2007). We review the U.S.

Attorney’s certification de novo and review any factual findings by the district

court for clear error. Kashin v. Kent, 457 F.3d 1033, 1036 (9th Cir. 2006). “The

party seeking review bears the burden of presenting evidence and disproving the

[U.S. Attorney’s] decision to grant or deny scope of employment certification by a

preponderance of the evidence.” Id. (internal quotation marks, citation, and

alteration omitted).

      We agree with the district court that Etherage did not meet his burden to

disprove the U.S. Attorney’s certification that Johnny West was acting within the


                                          2
scope of his employment when he made the statements that Etherage alleges were

defamatory. Under Washington law, an employee acts outside the scope of his

employment if his actions are “different in kind from that authorized, far beyond

the authorized time or space limits, or too little actuated by a purpose to serve the

master.” Robel v. Roundup Corp., 59 P.3d 611, 621 (Wash. 2002) (quoting

Restatement (Second) of Agency § 228(2) (1958)). None of those conditions is

satisfied in this case.

       West’s actions were not different in kind from those the Army had

authorized him to perform. The United States presented ample evidence that West

was responsible for supervising the ABHC project and ensuring its success. It was

entirely consistent with that supervisory responsibility for West to report concerns

about Etherage’s performance on the project to appropriate Army personnel.

       Nor were West’s statements concerning Etherage so “little actuated by a

purpose to serve” the Army as to be outside the scope of his employment. Id.

Etherage alleges that West acted solely out of a personal motive—i.e., a desire to

damage Etherage’s standing in the Army—but such a personal motive does not

place West’s actions outside the scope of his employment as long as “the purpose

of serving [his] employer’s business actuate[d him] to any appreciable extent.”

McNew v. Puget Sound Pulp & Timber Co., 224 P.2d 627, 629 (Wash. 1950). It is


                                           3
Etherage’s burden, in other words, to prove that West had no appreciable motive to

serve the Army when he raised his concerns about Etherage’s performance on the

project. Etherage has not met that burden; his evidence demonstrates, at most, that

West could have acted out of both personal and professional motives.1

      Because Etherage has not disproved the U.S. Attorney’s scope-of-

employment certification by a preponderance of the evidence, the United States

was properly substituted as the defendant in this action. Accordingly, Etherage’s

lawsuit must be dismissed, as the Federal Tort Claims Act expressly preserves the

United States’ sovereign immunity with respect to actions for the intentional torts

Etherage pled in his complaint. See 28 U.S.C. § 2680(h).

      AFFIRMED.




      1
      Relatedly, we conclude that the district court did not abuse its discretion
when it denied Etherage’s motion to compel discovery related to West’s motive for
making the statements at issue.
                                         4
