Underwood Livestock, Inc. v. Abbey

Ninth Circuit

Underwood Livestock, Inc. v. Abbey

128 F. App'x 613

CourtCourt of Appeals for the Ninth Circuit

DecidedApril 15, 2005

DocketNo. 03-16728; D.C. No. CV-03-00178-HDM

StatusPublished

This text of 128 F. App'x 613 (Underwood Livestock, Inc. v. Abbey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Underwood Livestock, Inc. v. Abbey, 128 F. App'x 613 (9th Cir. 2005).

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Opinion

MEMORANDUM

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Underwood Livestock, Inc. (Underwood) appeals from the district court’s order dismissing its complaint for lack of jurisdiction. Underwood challenges the district [614]*614court’s determination that the individually-named defendants were acting within the scope of their employment for purposes of the Westfall Act. See 28 U.S.C. § 2679(d)(2). We affirm.

Even if removal of the dam exceeded the authority granted to the Bureau of Land Management (BLM) by statute, Nevada’s scope-of-employment inquiry focuses on whether the employees’ conduct was “committed in the course of the very task assigned to [them].... ” Prell Hotel Corp. v. Antonacci, 86 Nev. 390, 391, 469 P.2d 399 (1970). The government’s certifications serve as “prima facie evidence that a federal employee was acting in the scope of her employment at the time of the incident,” and Underwood failed to disprove the certifications by a preponderance of the evidence. Pauly v. U.S. Dep’t of Agric., 348 F.3d 1143, 1151 (9th Cir. 2003) (citation omitted). This being so, the United States was correctly substituted for the BLM employees, and the action was properly removed and dismissed for failure to exhaust administrative remedies.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM

**

Underwood Livestock, Inc. (Underwood) appeals from the district court’s order dismissing its complaint for lack of jurisdiction. Underwood challenges the district [614]*614court’s determination that the individually-named defendants were acting within the scope of their employment for purposes of the Westfall Act. See 28 U.S.C. § 2679(d)(2). We affirm.

Even if removal of the dam exceeded the authority granted to the Bureau of Land Management (BLM) by statute, Nevada’s scope-of-employment inquiry focuses on whether the employees’ conduct was “committed in the course of the very task assigned to [them].... ” Prell Hotel Corp. v. Antonacci, 86 Nev. 390, 391, 469 P.2d 399 (1970). The government’s certifications serve as “prima facie evidence that a federal employee was acting in the scope of her employment at the time of the incident,” and Underwood failed to disprove the certifications by a preponderance of the evidence. Pauly v. U.S. Dep’t of Agric., 348 F.3d 1143, 1151 (9th Cir. 2003) (citation omitted). This being so, the United States was correctly substituted for the BLM employees, and the action was properly removed and dismissed for failure to exhaust administrative remedies.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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128 F. App'x 613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/underwood-livestock-inc-v-abbey-ca9-2005.

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