David Head v. United States ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID HEAD, M.D., No. 19-36103
Plaintiff-Appellant, D.C. No. 3:19-cv-00023-TMB
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant-Appellee,
and
NORTON SOUND HEALTH
CORPORATION; JACOB IVANOFF;
ANGIE GORN,
Defendants.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, Chief District Judge, Presiding
Submitted December 7, 2020**
Seattle, Washington
*
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).
Before: MILLER and BRESS, Circuit Judges, and BASTIAN,*** District Judge.
In this employment-related dispute, Dr. David Head appeals the district
court’s dismissal of his complaint for lack of subject matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1). We review the grant of a Rule 12(b)(1)
motion de novo. See Banks v. N. Tr. Corp., 929 F.3d 1046, 1049 (9th Cir. 2019).
We affirm.
1. The district court properly dismissed Head’s claim for damage to his
reputation. The United States is immune from suit unless it has waived sovereign
immunity. Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1327
(2020). The Federal Tort Claims Act (FTCA) does not waive sovereign immunity
for “[a]ny claim arising out of . . . libel[] [or] slander.” 28 U.S.C. § 2680(h). Head
asserts without discussion that the district court erred when it concluded that his
claim for damage to his reputation was a defamation claim (i.e., libel or slander).
Head has failed to preserve this issue for our review. See D.A.R.E. Am. v. Rolling
Stone Magazine, 270 F.3d 793, 793 (9th Cir. 2001) (“A bare assertion of an issue
does not preserve a claim.” (quotations omitted)).
Regardless, the argument lacks merit. Courts look beyond the label a plaintiff
uses to decide “whether the conduct upon which the claim is based constitutes one
***
The Honorable Stanley Allen Bastian, Chief United States District
Judge for the Eastern District of Washington, sitting by designation.
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of the torts listed in § 2680(h).” Sabow v. United States, 93 F.3d 1445, 1456 (9th
Cir. 1996). Head’s claim for “damage to his reputation” rests on two bases:
defendants’ issuing “press releases defaming his reputation” and their “declining to
re-employ” him. The former is a defamation claim for which the United States has
not waived sovereign immunity. 28 U.S.C. § 2680(h). The latter, discussed below,
is a contract claim over which the district court otherwise lacked jurisdiction.
2. The district court correctly dismissed Head’s claim for intentional or
negligent infliction of emotional distress. Insofar as this claim is based on damage
to Head’s reputation, it is a defamation claim for which the United States has not
waived sovereign immunity. 28 U.S.C. § 2680(h); Sabow, 93 F.3d at 1456. Insofar
as it is based on a breach of contract, the district court lacked jurisdiction for the
reasons explained below.
3. The district court correctly dismissed Head’s claim for breach of the
implied covenant of good faith and fair dealing. The FTCA does not waive the
sovereign immunity of the United States for claims “arising out of . . . interference
with contract rights.” 28 U.S.C. § 2680(h). In addition, under 28 U.S.C.
§ 1346(a)(2), a district court lacks jurisdiction over a breach of contract claim against
the United States, except in circumstances not alleged to be present here. Head
concedes that his claim for breach of the implied covenant of good faith and fair
dealing is a contract claim and not a tort claim. See State Farm Fire & Cas. Co. v.
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Nicholson, 777 P.2d 1152, 1156 (Alaska 1989) (“[A]n employer’s breach of the duty
of good faith and fair dealing implied in an employment contract is a breach of
contract which does not constitute an independent tort.”).
Nor could the district court have exercised supplemental jurisdiction over this
claim, as Head argues for the first time on appeal. Under 28 U.S.C. § 1367(a), the
district court may exercise “jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of the same
case or controversy.” As explained above, the district court lacked jurisdiction over
Head’s other claims. Thus, it had no discretion to exercise supplemental
jurisdiction. See Prather v. AT&T, Inc., 847 F.3d 1097, 1108 (9th Cir. 2017).
AFFIRMED.
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