Michael Swanson v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 29, 2021
• Docket: 20-35126
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 29 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL RAY SWANSON, No. 20-35126

Plaintiff-Appellant, D.C. No. 3:18-cv-02148-JR

v. MEMORANDUM* UNITED STATES OF AMERICA; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding

Submitted April 20, 2021**

Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.

Michael Ray Swanson appeals pro se from the district court’s summary

judgment in his Federal Tort Claims Act (“FTCA”) action arising from his time at

Camp Lejeune in North Carolina. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo. Sandoval v. County of Sonoma, 912 F.3d 509, 515 (9th Cir.

* 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). 2018). We affirm.

The grant of summary judgment, construed as a dismissal for lack of

jurisdiction, was proper because Swanson’s injuries were sustained incident to

military service. See Feres v. United States, 340 U.S. 135, 146 (1950) (“[T]he

Government is not liable under the Federal Tort Claims Act for injuries to

servicemen where the injuries arise out of or are in the course of activity incident

to service.”); Monaco v. United States, 661 F.2d 129, 132-33 (9th Cir. 1981)

(negligence claims barred by the Feres doctrine because the alleged negligence,

exposure to radiation, occurred while plaintiff was on active duty); see also

Jackson v. United States, 110 F.3d 1484, 1486 (9th Cir. 1997) (“A motion to

dismiss pursuant to the Feres doctrine, even if raised after the answer to the

complaint, should be treated as a motion to dismiss for lack of subject matter

jurisdiction under Fed. R. Civ. P. 12(b)(1) rather than as a motion for summary

judgment.”).

We reject as without merit Swanson’s contentions that the district court was

biased.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Swanson’s motion to expedite the case (Docket Entry No. 25) is denied.

AFFIRMED.

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