Joseph Ferrari v. United States

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH FERRARI, No. 20-36071
Plaintiff-Appellant, D.C. No.
3:19-cv-05996-RJB-TLF
v.
UNITED STATES OF AMERICA, MEMORANDUM*
Defendant-Appellee,
and
ERIN FORD,
Defendant.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted November 9, 2021**
Seattle, Washington
Before: WARDLAW, TALLMAN, and BUMATAY, Circuit Judges.
Joseph Ferrari appeals the district court’s orders denying Ferrari’s motion for
*
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).
denial of certification and substitution of the United States as defendant under the
Westfall Act and granting the United States’ motion to dismiss Ferrari’s complaint.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court properly substituted the United States as the
defendant in this case under the Westfall Act, 28 U.S.C. § 2679(d)(1). The district
court made specific findings to determine that Naval Lt. Ford was acting within the
scope of her employment in reporting Ferrari’s alleged misconduct, and those
findings of disputed fact were not clearly erroneous. See Billings v. United States,
57 F.3d 797, 800 (9th Cir. 1995) (reviewing the “relevant district court’s findings of
disputed fact for clear error”).
2. The district court properly dismissed this case under the Feres
doctrine. See Feres v. United States, 340 U.S. 135 (1950). Under the Feres doctrine,
“members of the armed services [cannot] sue the government for injuries that arise
out of or are in the course of activity incident to service.” Stauber v. Cline, 837 F.2d
395, 397 (9th Cir. 1988) (quotation and citation omitted). The district court
concluded that Ferrari’s claims were incident to his service as an active-duty military
member and dismissed the case for lack of subject matter jurisdiction under Feres.
See Stauber, 837 F.2d at 400.
Ferrari did not appeal the district court’s dismissal for lack of subject matter
jurisdiction under Feres in his opening brief. “[A]rguments not raised by a party in
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its opening brief are deemed waived.” Smith v. Marsh, 194 F.3d 1045, 1052 (9th
Cir. 1999); see also Brookfield Commc’ns, Inc. v. W. Coast Ent. Corp., 174 F.3d
1036, 1046 n.7 (9th Cir. 1999).
3. The Federal Tort Claims Act (FTCA) also bars the relief that Ferrari
seeks. Ferrari seeks damages arising from the slander and libel that Ford allegedly
committed in reporting Ferrari’s alleged misconduct to naval officers. But the FTCA
explicitly provides that the statutory waiver of federal sovereign immunity “shall not
apply to . . . [a]ny claim arising out of . . . libel [or] slander.” 28 U.S.C. § 2680(h).
4. Ferrari’s failure to administratively exhaust his claims operates as
another bar to judicial review of his claims. Under the FTCA, “[a]n action shall not
be instituted upon a claim against the United States for money damages . . . unless
the claimant shall have first presented the claim to the appropriate Federal agency.”
Id. § 2675(a). Ferrari does not dispute that he failed to make his defamation claim
to the Navy, as was required before he could bring suit against the United States in
district court. See 28 C.F.R. § 14.2(a); Wiseman v. United States, 976 F.2d 604, 605
(9th Cir. 1992).
AFFIRMED.
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