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 2021-04

Michael Swanson v. United States ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED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.
2                                      20-35126