Michael Goncalves v. United States

FILED
NOT FOR PUBLICATION AUG 4 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL C. GONCALVES, CPT., No. 12-16209
Plaintiff - Appellant, D.C. No. 3:11-cv-02452-JSW
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted July 22, 2014**
Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges
Michael C. Goncalves, Cpt., appeals pro se the district court’s judgment
dismissing his Federal Tort Claims Act action for lack of subject matter
jurisdiction under Feres v. United States, 340 U.S. 135 (1950). We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under the
*
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).
Feres doctrine. Jackson v. Tate, 648 F.3d 729, 732 (9th Cir. 2011). We affirm.
The district court properly dismissed Goncalves’s claims relating to his
internal military complaints for lack of subject matter jurisdiction under the
Feres doctrine because Goncalves was an active duty service member of the
United States Army Reserve during the events that formed the basis of this
controversy, and his claims arose incident to his active military service. See Feres,
340 U.S. at 146 (“[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.”); Bowen v. Oistead, 125 F.3d 800, 803-05 (9th Cir.
1997) (discussing Feres doctrine and finding plaintiff’s tort and constitutional
claims contesting personnel decisions barred).
The district court properly concluded that Goncalves’s constitutional claims
seeking monetary damages were also barred under the Feres doctrine, see Wilkins
v. United States, 279 F.3d 782, 784-85 (9th Cir. 2002), as were any medical
malpractice claims, Jackson v. United States, 110 F.3d 1484, 1489 (9th Cir. 1997).
We do not consider Goncalves’s arguments, raised for the first time on
appeal, concerning an alleged violation of the Health Insurance Portability and
Accountability Act of 1996. See Int’l Union of Bricklayers & Allied Craftsman
Local Union No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.
2 12-16209
1985) (“We will not . . . review an issue not raised below unless necessary to
prevent manifest injustice.”).
AFFIRMED.
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