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 2017-04

Norman Diamond v. United States ( 2017 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        APR 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORMAN DOUGLAS DIAMOND,                         No. 15-56100
Plaintiff-Appellant,           D.C. No. 2:14-cv-09196-GHK-
AGR
v.
UNITED STATES OF AMERICA,                       MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Submitted April 11, 2017**
Before:       GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Norman Douglas Diamond appeals pro se from the district court’s judgment
dismissing his damages action under 26 U.S.C. § 7433 arising from various
interactions with defendant involving his federal income taxes. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for lack of
*
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).
subject matter jurisdiction. Harger v. Dep’t of Labor,
    569 F.3d 898
    , 903 (9th Cir.
2009). We affirm.
The district court properly dismissed Diamond’s action without prejudice for
lack of subject matter jurisdiction because Diamond failed to show his claims fell
within a waiver of sovereign immunity. See Holloman v. Watt,
    708 F.2d 1399
    ,
1401 (9th Cir. 1983) (waiver of sovereign immunity “must be unequivocally
expressed,” and “[t]he party who sues the United States bears the burden of
pointing to such an unequivocal waiver of immunity” (citation and internal
quotation marks omitted)); Miller v. United States,
    66 F.3d 220
    , 222-23 (9th Cir.
1995) (waiver of sovereign immunity under § 7433 permitting taxpayers to sue for
misconduct in collection of taxes does not extend to improper determination or
assessment of taxpayer’s liabilities); see also Shwarz v. United States,
    234 F.3d 428
    , 433 (9th Cir. 2000) (“Section 7433 creates a private right of action only for
tax collection activity that violates some provision of the Revenue Code or the
regulations promulgated thereunder.”).
We reject as meritless Diamond’s contentions that he was improperly denied
discovery and injunctive relief.
We do not consider matters not specifically and distinctly raised and argued
2                                   15-56100
in the opening brief, or arguments, allegations, or evidence raised for the first time
on appeal. See Padgett v. Wright,
    587 F.3d 983
    , 985 n.2 (9th Cir. 2009); Kirshner
v. Uniden Corp. of Am.,
    842 F.2d 1074
    , 1077 (9th Cir. 1988).
Diamond’s motions for leave to file supplemental briefs (Docket Entry Nos.
39, 41) are granted. The Clerk shall file the supplemental briefs (Docket Entry
Nos. 40, 42).
All other pending motions and requests (Docket Entry Nos. 2, 6) are denied.
AFFIRMED.
3                                     15-56100