Mazen Khenaisser v. Sally Jewell , 693 F. App'x 608 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAZEN G. KHENAISSER, No. 16-16305
Plaintiff-Appellant, D.C. No. 2:15-cv-01205-MCE-
CKD
v.
RYAN ZINKE*, MEMORANDUM**
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted June 26, 2017***
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
Mazen Khenaisser appeals pro se from the district court’s judgment
dismissing his employment discrimination action. We have jurisdiction under 28
U.S.C. § 1291. We review de novo a dismissal for lack of jurisdiction under Fed.
*
Ryan Zinke has been substituted for his predecessor, Sally Jewell, as
Secretary of the Interior under Fed. R. App. P. 43(c)(2).
**
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).
R. Civ. P. 12(b)(1) and for failure to state a claim under Fed. R. Civ. P. 12(b)(6).
Serra v. Lappin, 600 F.3d 1191, 1195 (9th Cir. 2010). We affirm.
The district court properly dismissed Khenaisser’s unfair labor practice
claims that Khenaisser previously raised before the Federal Labor Relations
Authority (“FLRA”) because the district court lacked jurisdiction over such claims.
See 5 U.S.C. § 7123(a) (FLRA final order must be challenged within sixty days “in
the United States court of appeals in the circuit in which the person resides or
transacts business or in the United States Court of Appeals for the District of
Columbia”).
The district court properly dismissed Khenaisser’s defamation claim for lack
of subject matter jurisdiction because the United States has not waived sovereign
immunity over defamation claims. See 28 U.S.C. § 2680(h) (Federal Tort Claims
Act does not waive sovereign immunity for libel, slander, misrepresentation, and
deceit claims); Kaiser v. Blue Cross of Cal., 347 F.3d 1107, 1117 (9th Cir. 2003)
(Federal Tort Claims Act “does not permit suits against the United States for
defamation”).
The district court properly dismissed Khenaisser’s racial discrimination
claim because Khenaisser failed to allege facts sufficient to state a plausible claim.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged.”);
Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003) (setting forth the required
elements for racial discrimination claim under Title VII).
The district court properly dismissed Khenaisser’s disability related
discrimination claims because Khenaisser failed to allege he had a disability as
defined by the Rehabilitation Act. See Walton v. U.S. Marshals Serv., 492 F.3d
998, 1005 (9th Cir. 2007) (a disability discrimination claim requires that a plaintiff
demonstrate that he “is a person with a disability”; an individual who has “a
physical or mental impairment that substantially limits one or more of the
[individual’s] major life activities” qualifies as disabled).
The district court properly dismissed Khenaisser’s retaliation claim because
Khenaisser failed to allege the required elements for such a claim. See Ray v.
Henderson, 217 F.3d 1234, 1240-45 (9th Cir. 2000) (setting forth the required
elements for retaliation, including retaliation based on hostile work environment,
under Title VII).
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).
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Khenaisser’s pending motions (Docket Entry Nos. 22 and 23) are denied as
moot.
AFFIRMED.
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