Marco A. Frausto v. DANIEL MURRAY, Auditor, in his individual and official capacity;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCO A. FRAUSTO,
Plaintiff-Appellant,
v.
DANIEL MURRAY, Auditor, in his
individual and official capacity; et al.,
Defendants-Appellees.
No. 17-56586
D.C. No. 2:17-cv-00177-SVW-PLA
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted March 13, 2018**
Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.
Marco A. Frausto appeals pro se from the district court’s order dismissing
his action against the Internal Revenue Service and federal officials arising from
tax return audits. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo a dismissal based on sovereign immunity. Harger v. Dep’t of Labor, 569
* 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).
FILED
MAR 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 17-56586
F.3d 898, 903 (9th Cir. 2009). We affirm.
The district court properly dismissed Frausto’s action for lack of subject
matter jurisdiction because Frausto failed to allege facts sufficient to show an
explicit waiver of sovereign immunity. See Gilbert v. DaGrossa, 756 F.2d 1455,
1458 (9th Cir. 1985) (stating that the United States is immune from suit unless it
has expressly waived its sovereign immunity, and “sovereign immunity cannot be
avoided by naming officers and employees of the United States as defendants”).
The district court did not abuse its discretion by dismissing the complaint
without leave to amend because amendment would be futile. See Cervantes v.
Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth
standard of review and explaining that dismissal without leave to amend is proper
when amendment would be futile).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

-- 2 of 2 --