                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 21 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

RHETT BRYCE DUNLAP, individually, as            No.    16-15630
surviving son, and as statutory plaintiff for
and on behalf of: Ann Bryson Dunlap, Cortt      D.C. No. 2:11-cv-01360-FJM
Trae Dunlap, deceased, R. Terrence Dunlap,

                Plaintiff-Appellant,            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


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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.




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