RHETT DUNLAP V. USA, No. 16-15630 (9th Cir. 2017)
Annotate this Case
Download PDF
NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED AUG 21 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT RHETT BRYCE DUNLAP, individually, as surviving son, and as statutory plaintiff for and on behalf of: Ann Bryson Dunlap, Cortt Trae Dunlap, deceased, R. Terrence Dunlap, Plaintiff-Appellant, No. U.S. COURT OF APPEALS 16-15630 D.C. No. 2:11-cv-01360-FJM MEMORANDUM* v. UNITED STATES OF AMERICA, Defendant-Appellee. Appeal from the United States District Court for the District of Arizona Frederick J. Martone, District Judge, Presiding Submitted August 11, 2017** Pasadena, California Before: FARRIS, CALLAHAN, and OWENS, Circuit Judges. Rhett Bryce Dunlap, individually and as a statutory plaintiff, appeals the district court’s order reaffirming summary judgment on behalf of the United States * 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). in his Federal Tort Claims Act (“FTCA”) suit on remand from this Court. We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s compliance with our mandate de novo. See Hall v. City of Los Angeles, 697 F.3d 1059, 1066 (9th Cir. 2012). We review a grant of summary judgment de novo, Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004), and may affirm on any ground supported by the record, Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 750 (9th Cir. 2001). We affirm. Dunlap contends our December 9, 2015 order denying summary affirmance and remanding his case “for further consideration and proceedings consistent with the Supreme Court’s decision in United States v. Wong, 135 S. Ct. 1625 (2015)” required the district court to consider anew whether equitable tolling excused his untimely administrative claim. Dunlap is mistaken. We denied summary affirmance on the basis of United States v. Hooton, 693 F.2d 857, 858 (9th Cir. 1982) (per curiam), which directs that summary affirmance is appropriate where “the outcome of a case is beyond dispute” and will not be granted “where an extensive review of the record of the district court proceedings is required.” Our order therefore includes no conclusions, implied or otherwise, regarding the merits of Dunlap’s equitable tolling argument. Dunlap was not precluded from arguing equitable tolling in his original summary judgment proceedings; rather, the district court invited him to present 2 evidence in support of his argument. Instead, as the district court correctly found, Dunlap expressly abandoned equitable tolling as the basis for allowing his claims to proceed and argued his administrative complaint was timely under 28 U.S.C. § 2401(b). The district court thereafter properly granted summary judgment in favor of the government. Nothing in the Supreme Court’s decision in Wong mandates further consideration of equitable tolling in a case such as this, where not only was the plaintiff not barred from arguing equitable tolling in the first instance, but was actively encouraged by the trial court to do so. Consequently, the “further consideration and proceedings” on remand in Dunlap’s case were “consistent with” Wong and the district court was not required to allow Dunlap another chance to raise equitable tolling. AFFIRMED. 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
