                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 06 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



JANETRA JOHNSON,                                 No. 10-16450

               Plaintiff - Appellant,            D.C. No. 1:09-cv-00281-LJO-DLB

  v.
                                                 MEMORANDUM *
DEPARTMENTS OF THE ARMY AND
AIR FORCE; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       Janetra Johnson appeals pro se from the district court’s judgment dismissing

her action arising out of her dual status military and civilian employment with the

National Guard and the United States Air Force Reserve. We have jurisdiction


          *
             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).
under 28 U.S.C. § 1291. We review de novo both a district court’s dismissal under

the Feres intra-military immunity doctrine, Jackson v. United States, 110 F.3d

1484, 1486 (9th Cir. 1997), and a dismissal for failure to state a claim, Webb v.

Smart Document Solutions, LLC, 499 F.3d 1078, 1082 (9th Cir. 2007). We affirm.

      The district properly dismissed Johnson’s employment discrimination and

tort claims as precluded by the Feres intra-military immunity doctrine. See Zuress

v. Donley, 606 F.3d 1249, 1250, 1252-55 (9th Cir. 2010) (noting that Feres

doctrine applies “whenever a legal action would require a civilian court to examine

decisions regarding management, discipline, supervision, and control of members

of the armed forces of the United States[,]” and affirming that Feres doctrine

precluded dual status military and civilian employee’s Title VII claims (citation

and internal quotation marks omitted)); Stauber v. Cline, 837 F.2d 395, 399-401

(9th Cir. 1988) (Feres doctrine precluded dual status military and civilian

employee’s common law tort claims arising from workplace conduct); see also

Jackson, 110 F.3d at 1489 (“Feres bars suits for medical malpractice even when

the treatment was not for military-related injuries.”).

      The district court properly dismissed Johnson’s claims under the Health

Insurance Portability and Accountability Act (“HIPAA”) and the Family and

Medical Leave Act (“FMLA”) because Johnson did not have a private right of


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action. See Webb, 499 F.3d at 1082 (“HIPAA . . . does not provide for a private

right of action[.]”); Russell v. U.S. Dep’t of the Army, 191 F.3d 1016, 1018-19 (9th

Cir. 1999) (no private right of action under the FMLA for federal employees with

more than twelve months of service).

       The district court properly dismissed as time-barred Johnson’s

Rehabilitation Act claim and her Privacy Act claim arising from the alleged

disclosure of her medical information. See Cal. Civ. Proc. Code § 335.1

(establishing two year statute of limitation for personal injury claims); Douglas v.

Cal. Dep’t of Youth Auth., 271 F.3d 812, 823 & n.11 (9th Cir. 2001) (forum state’s

statute of limitations for personal injuries applies to Rehabilitation Act claim),

abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101 (2002); Rose v. United States, 905 F.2d 1257, 1259 (9th Cir. 1990) (“The

Privacy Act provides a two year statute of limitation, 5 U.S.C. § 552a(g)(5), which

commences when the person knows or has reason to know of the alleged

violation.”).

       The district court did not abuse its discretion by dismissing Johnson’s third

amended complaint without leave to amend. See Gordon v. City of Oakland, 627

F.3d 1092, 1094 (9th Cir. 2010) (setting forth standard of review and noting that

leave to amend may be denied if amendment would be futile).


                                           3                                     10-16450
      Johnson’s remaining contentions are unpersuasive.

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, nor arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      Johnson’s request to file a late supplemental excerpts of record is granted.

      Defendants’ motion to strike those portions of Johnson’s supplemental

excerpts of record that were not part of the district court record is granted.

      AFFIRMED.




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