Brian Kenner v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION FEB 2 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN KENNER; KATHLEEN No. 12-57343
KENNER,
D.C. No. 3:12-cv-01011-MMA-
Plaintiffs - Appellants, WVG
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Brian and Kathleen Kenner appeal pro se from the district court’s judgment
dismissing their action alleging that defendants violated their constitutional rights
by relying on 26 U.S.C. §§ 7432, 7433, the Federal Torts Claims Act, and the
*
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).
doctrine of judicial immunity in prior litigation. We have jurisdiction under 28
U.S.C. § 1291. We review de novo the district court’s dismissal under Federal
Rule of Civil Procedure 12(b)(1), Mills v. United States, 742 F.3d 400, 404 (9th
Cir. 2014), and we affirm.
The district court properly dismissed the Kenners’ action for lack of federal
subject matter jurisdiction because defendants are entitled to sovereign immunity
and the Kenners failed to demonstrate waiver. See id. at 405 (“Suits against the
government are barred for lack of subject matter jurisdiction unless the government
expressly and unequivocally waives its sovereign immunity.”); see also Gilbert v.
DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (“[T]he bar of sovereign immunity
cannot be avoided by naming officers and employees of the United States as
defendants.”).
The district court did not abuse its discretion in denying leave to amend
because amendment would have been futile. See Gardner v. Martino, 563 F.3d
981, 990 (9th Cir. 2009) (setting forth standard of review and explaining that a
district court may deny leave to amend where the amendment would be futile).
Because we affirm dismissal on the basis of sovereign immunity, we do not
address the parties’ arguments concerning other bases for dismissal.
The Kenners’ request for judicial notice, filed on April 7, 2013, is granted.
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Defendants’ motion to dismiss, filed on March 4, 2014, is denied as moot.
AFFIRMED.
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