Terry L. Meier v. ERIC K. SHINSEKI, Secretary of Veterans Affairs;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRY L. MEIER,
Plaintiff - Appellant,
v.
ERIC K. SHINSEKI, Secretary of
Veterans Affairs; et al.,
Defendants - Appellees.
No. 13-16264
D.C. No. 3:13-cv-00189-WHA
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
Submitted September 17, 2015**
San Francisco, California
Before: CALLAHAN, CHRISTEN, and FRIEDLAND, Circuit Judges.
Terry Meier appeals the district court’s dismissal of his Federal Tort Claims
Act (FTCA) action against the United States and U.S. Department of Veterans
Affairs (VA) officials. The case follows a failed FTCA action that Meier brought
FILED
SEP 28 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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against the United States in 2005, which arose out of three colonoscopies Dr. Eddie
Cheung performed on Meier at a VA facility in 2002 and 2003. See Meier v.
United States (Meier I), No. 05-04404, 2006 WL 3798160, at *1 (N.D. Cal. Dec.
22, 2006), aff’d, 310 F. App’x 976 (9th Cir.), cert. denied, 558 U.S. 1011 (2009).
In this suit, Meier appears to seek damages for harms allegedly suffered in
connection with (1) the VA’s refusal to investigate and disclose information about
Dr. Cheung’s alleged perjury during Meier I regarding the number of malpractice
suits previously filed against him, and (2) the government’s disclosure of Meier’s
private information during the course of Meier I. The district court dismissed
Meier’s fifteen FTCA claims on several, alternative grounds. Reviewing de novo,
we affirm.
1. The FTCA waives the government’s sovereign immunity for civil
suits seeking money damages “for injury or loss of property, or personal injury or
death caused by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b)(1). To state a claim under the FTCA, a plaintiff
must show that the liability he or she alleges “arise[s] from state statutory or
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decisional law, and . . . impose[s] on the defendants a duty to refrain from
committing the sort of wrong alleged.” Delta Sav. Bank v. United States, 265 F.3d
1017, 1026 (9th Cir. 2001).
2. The district court properly dismissed Meier’s perjury-related FTCA
claims, including claims 1–6 and 13–14, because Meier has failed to establish that
the VA would be civilly liable under California law for its challenged conduct if it
were a private person. To the extent that any of Meier’s claims seek to hold the
VA liable for Dr. Cheung’s perjury, they are not cognizable under the FTCA
because there is no civil cause of action for perjury under California law. See
Pollock v. Univ. of S. Cal., 112 Cal. App. 4th 1416, 1429 (2003); see also Temple
Cmty. Hosp. v. Superior Court, 20 Cal. 4th 464, 472–73 (1999). Meier’s tort
claims alleging that the VA concealed evidence regarding Dr. Cheung’s perjury
similarly fail because, under California law, “a tort claim will not lie for the
concealment or withholding of evidence.” Temple Cmty. Hosp., 20 Cal. 4th at 472.
Meier’s attempt to frame his perjury-related claims as breaches of fiduciary duties
also fails. Meier has not established that the VA had a fiduciary duty under
California law to investigate false representations made by one its doctors during
the course of malpractice litigation—that is, after medical treatment—in order to
protect the nonmedical interests of a former patient. Cf. Arato v. Avedon, 5 Cal.
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4th 1172, 1188–89 (1993) (recognizing a “therapeutic limitation inherent in the
doctrine of informed consent,” meaning that the doctrine does not extend to the
patient’s nonmedical interests such as financial interests).
3. Meier’s conversion claim (claim 11) is similarly without basis in
California statutory or decisional law. “To establish a conversion [claim], plaintiff
must establish an actual interference with his ownership or right of possession. . . .
Where plaintiff neither has title to the property alleged to have been converted, nor
possession thereof, he cannot maintain an action for conversion.” Moore v.
Regents of the Univ. of Cal., 51 Cal. 3d 120, 136 (1990). Even assuming that the
decision in Meier I taxing costs against Meier may be collaterally attacked, the
conversion claim fails because Meier’s alleged right to the money in question is
predicated on the existence of fiduciary duties that, as explained above, are not
recognized under California law.
4. Meier has failed to allege sufficient facts to state plausible intentional
infliction of emotional distress or invasion of personal autonomy claims (claims 12
and 15). Under California law, “[a] cause of action for intentional infliction of
emotional distress exists when there is (1) extreme and outrageous conduct by the
defendant with the intention of causing, or reckless disregard of the probability of
causing, emotional distress; (2) the plaintiff’s suffering severe or extreme
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emotional distress; and (3) actual and proximate causation of the emotional distress
by the defendant’s outrageous conduct.” Hughes v. Pair, 46 Cal. 4th 1035, 1050
(2009). Meier’s complaint does not allege any facts that, if proven true, would
establish these elements. Indeed, the complaint does not identify any specific
conduct by the VA in connection with this claim, let alone conduct that could
plausibly be characterized as extreme and outrageous.
Meier similarly does not comprehensibly articulate a factual or legal basis
for his twelfth claim, which he labels “violations of personal autonomy rights”
under Article 1, § 1 of the California Constitution. As best we can tell, Meier
asserts an invasion of privacy claim under Article 1, § 1 of the California
Constitution. See Donaldson v. Lungren, 2 Cal. App. 4th 1615, 1619 (1992) (“The
right of patient autonomy has been described as the ultimate exercise of one’s right
to privacy.”). As such, Meier must allege “(1) a legally protected privacy interest,
(2) a reasonable expectation of privacy under the circumstances, and (3) a serious
invasion of the privacy interest. ” Int’l Fed’n of Prof’l & Tech. Eng’rs, Local 21,
AFL–CIO v. Superior Court, 42 Cal. 4th 319, 338 (2007). Meier does not specify
what privacy interest is at stake in the twelfth cause of action, establish that any
interest specified is protected under the California constitution, or explain how the
interest was seriously invaded by the VA. Accordingly, dismissal of claims 12 and
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15 was appropriate because Meier did not “raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
5. We affirm dismissal of Meier’s privacy-related claims (claims 7–10)
because they are barred by the FTCA’s statute of limitations, 28 U.S.C. § 2401(b).
The claims arise from the government’s filing of Meier’s private information
during the Meier I litigation. The claims are barred by the FTCA’s statute of
limitations because Meier did not file an administrative claim with the VA relating
to these claims within two years of learning of the disclosures. Meier waived any
argument for equitable tolling of these claims by not raising the argument below.
See, e.g., O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1063 n.3 (9th Cir. 2007).
Even if Meier’s briefs could be construed to seek equitable tolling, tolling would
not be merited because Meier has not established “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstances stood in his way.”
Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013).
6. Meier also argues that the district court abused its discretion in
denying his motion to recuse Judge Alsup. We affirm Judge Tigar’s denial of the
motion to recuse. Meier has not identified any extrajudicial source of alleged bias
or prejudice on behalf of Judge Aslup or provided any reason to question his
impartiality. There is no indication of “a deep-seated favoritism or antagonism”
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stemming from Judge Alsup’s adjudication of Meier I “that would [have made a]
fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994).
Indeed, the record shows that Judge Alsup was fair and cordial.
The district court’s dismissal of Meier’s action is AFFIRMED.
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