Janetra Johnson v. Departement of the Army and Ai , 465 F. App'x 644 ( 2012 )

FILED
NOT FOR PUBLICATION JAN 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JANETRA JOHNSON, No. 10-16450
Plaintiff - Appellant, D.C. No. 1:09-cv-00281-LJO-DLB
v.
MEMORANDUM *
DEPARTMENTS OF THE ARMY AND
AIR FORCE; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Janetra Johnson appeals pro se from the district court’s judgment dismissing
her action arising out of her dual status military and civilian employment with the
National Guard and the United States Air Force Reserve. We have jurisdiction
*
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).
under 28 U.S.C. § 1291. We review de novo both a district court’s dismissal under
the Feres intra-military immunity doctrine, Jackson v. United States, 110 F.3d
1484, 1486 (9th Cir. 1997), and a dismissal for failure to state a claim, Webb v.
Smart Document Solutions, LLC, 499 F.3d 1078, 1082 (9th Cir. 2007). We affirm.
The district properly dismissed Johnson’s employment discrimination and
tort claims as precluded by the Feres intra-military immunity doctrine. See Zuress
v. Donley, 606 F.3d 1249, 1250, 1252-55 (9th Cir. 2010) (noting that Feres
doctrine applies “whenever a legal action would require a civilian court to examine
decisions regarding management, discipline, supervision, and control of members
of the armed forces of the United States[,]” and affirming that Feres doctrine
precluded dual status military and civilian employee’s Title VII claims (citation
and internal quotation marks omitted)); Stauber v. Cline, 837 F.2d 395, 399-401
(9th Cir. 1988) (Feres doctrine precluded dual status military and civilian
employee’s common law tort claims arising from workplace conduct); see also
Jackson, 110 F.3d at 1489 (“Feres bars suits for medical malpractice even when
the treatment was not for military-related injuries.”).
The district court properly dismissed Johnson’s claims under the Health
Insurance Portability and Accountability Act (“HIPAA”) and the Family and
Medical Leave Act (“FMLA”) because Johnson did not have a private right of
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action. See Webb, 499 F.3d at 1082 (“HIPAA . . . does not provide for a private
right of action[.]”); Russell v. U.S. Dep’t of the Army, 191 F.3d 1016, 1018-19 (9th
Cir. 1999) (no private right of action under the FMLA for federal employees with
more than twelve months of service).
The district court properly dismissed as time-barred Johnson’s
Rehabilitation Act claim and her Privacy Act claim arising from the alleged
disclosure of her medical information. See Cal. Civ. Proc. Code § 335.1(establishing two year statute of limitation for personal injury claims); Douglas v.
Cal. Dep’t of Youth Auth., 271 F.3d 812, 823 & n.11 (9th Cir. 2001) (forum state’s
statute of limitations for personal injuries applies to Rehabilitation Act claim),
abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101 (2002); Rose v. United States, 905 F.2d 1257, 1259 (9th Cir. 1990) (“The
Privacy Act provides a two year statute of limitation, 5 U.S.C. § 552a(g)(5), which
commences when the person knows or has reason to know of the alleged
violation.”).
The district court did not abuse its discretion by dismissing Johnson’s third
amended complaint without leave to amend. See Gordon v. City of Oakland, 627
F.3d 1092, 1094 (9th Cir. 2010) (setting forth standard of review and noting that
leave to amend may be denied if amendment would be futile).
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Johnson’s remaining contentions are unpersuasive.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, nor arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Johnson’s request to file a late supplemental excerpts of record is granted.
Defendants’ motion to strike those portions of Johnson’s supplemental
excerpts of record that were not part of the district court record is granted.
AFFIRMED.
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