NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TERRENCE WHITCOMB, an individual,

Plaintiff

- Appellant,

v.
JANA MOSER, an individual; et al.,

Defendants

- Appellees. No. 23

- 55723

D.C. No. 3:23

- cv

- 00019

- L

- KSC

MEMORANDUM *

Appeal from the United States District Court for the Southern District of California M. James Lorenz, District Judge, Presiding

Submitted September 13, 2024 * * Pasadena, California

Before: FRIEDLAND and DESAI, Circuit Judges, and SCHREIER, ** * District Judge.

Terrence Whitcomb appeals the district court’s dismissal of his defamation

suit against federal employee Jana Moser. We review the district court’s dismissal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation. 

# FILED

SEP 18 2024

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

for lack of subject matter jurisdiction de novo, Leuthauser v. United States , 71

F.4th 1189, 1193 (9th Cir. 2023), and its determinations as to jurisdictional

discovery and evidentiary hearings for abuse of discretion, Yamashita v. LG Chem,

Ltd. , 62 F.4th 496, 507 (9th Cir. 2023); McLachlan v. Bell , 261 F.3d 908, 910 (9th

Cir. 2001). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. T he district court did not err in affirming the Government’s scope of

employment certification . Applying California law, see Saleh v. Bush
, 848 F.3d

880, 8 8 9 (9th Cir. 2017)
, the allegedly defamatory statements here were within the

scope of Moser’s employment , because she made them during an interview as part

of a workplace investigation into sexual harassment
, s ee Fowler v. Howell
, 50 Cal.

Rptr. 2d 484, 487 ( Ct. App. 1996) (“[A]n employee who has been encouraged to

complain and provided a procedure to complain of sexual harassment by a

coworker acts within ‘ the scope of [her] employment ’ by making such complaint.”

( quoting Cal. Gov’t Code § 950.2 ) )

. Even accepting that Whitcomb’s claims are based solely on statements that

Moser made to coworkers other than the interviewer, w hich is not supported by the

Complaint, th os e statements were also broadly incidental to her employment under

California respondeat superior doctrine

. See McLachlan
, 261 F.3d at 91 2

( applying California law and holding that even “willful and malicious defamation”

in the workplace may be within the scope of employment); Jacobus v. Krambo3

Corp.
, 93 Cal. Rptr. 2d 425, 431 ( Ct. App. 2000) ( “[T]he risk that one worker may

accuse another of sexual harassment to deflect an adverse performance review is a

risk inherent in employment, analogous to the risk . . . that one worker may assault

another in a job

- related dispute.” ).

2. T he district court did not abuse its discretion in declining to allow

discovery or conduct additional proceedings. See Arthur v. United States , 45 F.3d

292, 296 (9th Cir. 1995) (holding that in reviewing certification under the Westfall

Act, a district court “should hold such hearings as appropriate”). To warrant an

evidentiary hearing, the complaint itself must sufficiently allege that the defendant

acted outside the scope of employment. See Saleh , 848 F.3d at 892; U

- Haul Int’l,

Inc. v. Est. of Albr ight , 626 F.3d 498, 501 (9th Cir. 2010) (per curiam) . Here, the

district court properly construed the allegations in the complaint as true and based

its conclusion solely on Whitcomb’s allegations. Whitcomb has not identified,

either before the district court or o n appeal, any disputes of fact that need to be

resolved to address whether Moser was acting within the scope of her employment.

See Yamashita , 62 F.4th at 507 (explaining that jurisdictional discovery is

unwarranted when there are no controverte d, pertinent facts bearing on

jurisdiction). 1

1 Moser does not challenge the district court’s denial of leave to amend on appeal. See Patel v. City of Los Angeles , 72 F.4th 1103, 1106 n.5 (9th Cir. 2023)4

AFFIRMED.

(“[Plaintiffs] do not argue ‘specifically and distinctly’ that the district court abused its discretion by denying leave to amend, so we do not review that issue.” (quoting Greenwood v. FAA , 28 F.3d 971, 977 (9th Cir. 1994)) ).