John Ramirez v. United States , 604 F. App'x 556 ( 2015 )

FILED
NOT FOR PUBLICATION MAY 19 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN B. RAMIREZ, as the person (last No. 13-56088
shareholder responsible for the assets and
liabilities of the dissolved corporation Pro D.C. No. 8:13-cv-00268-JVS-RNB
Business Coach, Inc.),
Petitioner - Appellant, MEMORANDUM*
v.
UNITED STATES OF AMERICA; et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted May 13, 2015**
Before: LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.
John B. Ramirez appeals pro se from the district court’s judgment
dismissing his action alleging claims arising from the Internal Revenue Service’s
*
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).
(IRS) inquiries into his tax liabilities and the court’s order denying Ramirez’s
petition to quash IRS summonses issued to third-party financial institutions. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for lack
of subject matter jurisdiction, Serra v. Lappin, 600 F.3d 1191, 1195 (9th Cir.
2010), and review for clear error summons enforcement decisions, United States v.
Richey, 632 F.3d 559, 563 (9th Cir. 2011). We affirm.
The district court properly dismissed Ramirez’s Bivens claim against the IRS
agents. See Adams v. Johnson, 355 F.3d 1179, 1183-86, 1188 (9th Cir. 2004)
(Bivens relief is unavailable for “allegedly unconstitutional actions of IRS officials
engaged in tax assessment and collection” or where Congress has provided
meaningful statutory remedies for federal wrongs).
The district court properly dismissed Ramirez’s abuse of process claim
because it was preempted by the Federal Tort Claims Act (“FTCA”). See 28
U.S.C. § 2680(c) (excluding from the FTCA “[a]ny claim arising in respect of the
assessment or collection of any tax”); Meridian Int’l Logistics, Inc. v. United
States, 939 F.2d 740, 743 n.1 (9th Cir. 1991) (“[T]he FTCA is the exclusive mode
of recovery for the tort of a Government employee even when the FTCA itself
precludes Government liability.” (citation and internal quotation marks omitted)).
The district court did not abuse its discretion by denying Ramirez leave to
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amend his complaint because amendment would have been futile. See Serra, 600
F.3d at 1195, 1200 (setting forth standard of review and explaining that leave to
amend may be denied where amendment would be futile).
The district court properly denied Ramirez’s petition with respect to the
three December 12, 2012, summonses because Ramirez failed to rebut the IRS’s
showing that the summonses were issued in good faith. See Richey, 632 F.3d at
564 (a taxpayer has a heavy burden to show an abuse of process or lack of good
faith once the IRS makes a prima facie showing that a summons was issued for a
legitimate purpose).
Ramirez failed to raise any arguments with respect to the November 13,
2012, and January 30, 2013, summonses. Because “arguments not raised by a
party in its opening brief are deemed waived,” Smith v. Marsh, 194 F.3d 1045,
1052 (9th Cir. 1999), we affirm the district court’s denial as to these summonses.
We reject Ramirez’s contentions concerning protection from witness
tampering.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or 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).
AFFIRMED.
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