NOT FOR PUBLICATION FILED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.

2 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.

3 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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