                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           NOV 10 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DOUGLAS J. VANDERPOL, a                          No. 13-35417
Washington resident, in his individual
capacity,                                        D.C. No. 2:12-cv-00773-MJP

              Plaintiff - Appellee,
                                                 MEMORANDUM*
 v.

STEVE SWINGER,

              Defendant - Appellant,

  And

JANE DOE SWINGER, in their individual
and marital community; THE UNITED
STATES OF AMERICA, GSA FUND, a
governmental entity,

              Defendants.


                  Appeal from the United States District Court
                     for the Western District of Washington
                Marsha J. Pechman, Chief District Judge, Presiding

                      Argued and Submitted October 13, 2015
                               Seattle, Washington


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: W. FLETCHER and FISHER, Circuit Judges and WILKEN,** Senior
District Judge.

      Steve Swinger appeals the district court’s grant of summary judgment

against him, contending that the district court lacked subject matter jurisdiction to

decide this case. We agree.

      Douglas J. Vanderpol owns property lying to the southeast of the Nooksack

River in Whatcom County, Washington. The United States also owns property

lying to the southeast of the Nooksack and immediately to the north of Vanderpol’s

property. Swinger owns property lying to the northwest of the Nooksack and just

across the river from Vanderpol’s property and the United States’ property.

Vanderpol brought this quiet title action against Swinger in federal district court.

His complaint alleged that, over roughly the last 125 years, the location of the

Nooksack has changed due to accretion. Consequently, the complaint alleges, land

that was once part of Swinger’s property when the United States originally

patented the property is now a part of either Vanderpol’s property or the United

States’ property.




       **
             The Honorable Claudia Wilken, Senior District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.

                                           2
      The district court concluded that it had subject matter jurisdiction under 28

U.S.C. § 1346(f), which grants district courts exclusive original jurisdiction over

civil actions arising under the Quiet Title Act, 28 U.S.C. § 2409a. The Quiet Title

Act allows a plaintiff to name the United States as a defendant in a civil action “to

adjudicate a disputed title to real property in which the United States claims an

interest . . . .” Id. § 2409a(a). We narrowly construe the requirement that the

United States “claim[] an interest” in the “disputed” title. See Mills v. United

States, 742 F.3d 400, 405 (9th Cir. 2014). “For a title to be disputed for purposes

of the [Quiet Title Act], the United States must have adopted a position in conflict

with a third party regarding that title.” Id.

      This requirement is not met here. Before Vanderpol filed this lawsuit, the

United States had never asserted ownership or taken actions implying ownership

over the disputed land. Further, in its amended answer to Vanderpol’s complaint,

the United States denied that there was a genuine dispute between it and Vanderpol

over title to the disputed land and further denied that the district court had subject

matter jurisdiction under the Quiet Title Act. Because the United States never

claimed an interest in the disputed land, the district court lacked subject matter

jurisdiction to decide this case. For this reason, we do not reach the merits of the

other issues raised on appeal. The district court’s judgment, order granting


                                            3
attorney fees and statutory damages dated June 4, 2013, and stipulated order dated

May 3, 2013 are vacated, and this case is remanded with instructions to dismiss for

lack of jurisdiction.

      VACATED and REMANDED with instructions.

Each side to bear its own costs on appeal.




                                         4
