Walter Shaw v. Veterans Health Administration ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALTER M. SHAW, M.D., No. 14-56097
Plaintiff-Appellant, D.C. No. 3:12-cv-02369-BEN-
NLS
v.
VETERANS HEALTH MEMORANDUM*
ADMINISTRATION; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted September 13, 2016**
Before: HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges.
Walter M. Shaw appeals pro se from the district court’s judgment dismissing
his employment action. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo a district court’s dismissal for lack of subject matter jurisdiction, including
*
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).
whether the United States has waived its sovereign immunity. Harger v. Dep’t of
Labor, 569 F.3d 898, 903 (9th Cir. 2009). We affirm.
The district court properly dismissed Shaw’s state law claims as barred by
sovereign immunity because Shaw failed to show that the United States has waived
its sovereign immunity from suit. See United States v. Mitchell, 463 U.S. 206, 212
(1983) (“It is axiomatic that the United States may not be sued without its consent
and that the existence of consent is a prerequisite for jurisdiction.”); Weber v.
Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008) (“[A] person
attempting to sue a federal agency or officer must demonstrate that the claim being
asserted is covered by a specific statutory authorization to sue the United States.”
(citation and internal quotation marks omitted)).
Shaw has waived any claims of error relating to the dismissal of the federal
claims raised in his first amended complaint because they were dismissed with
leave to amend, and Shaw subsequently filed an amended complaint. See Chubb
Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 973 n.14, 974 n.15 (9th
Cir. 2013) (failure to replead claims after dismissal with leave to amend amounts
to waiver).
The district court did not abuse its discretion by denying Shaw further leave
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to amend because amendment would have been futile. See Ascon Props., Inc. v.
Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (setting forth standard of
review and explaining that “[t]he district court’s discretion to deny leave to amend
is particularly broad where plaintiff has previously amended the complaint”).
Contrary to Shaw’s contention, the district court was not required to convert
defendants’ motion to dismiss to a motion for summary judgment.
AFFIRMED.
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