                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         OCT 5 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

WILLIAM F. HOLDNER, Holdner Farms,              No.    16-36046

                Plaintiff-Appellant,            D.C. No. 3:16-cv-00475-BR

 v.
                                                MEMORANDUM*
UNITED STATES OF AMERICA,

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Oregon
                    Anna J. Brown, District Judge, Presiding

                          Submitted September 26, 2017**

Before:      SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.

      William F. Holdner appeals pro se from the district court’s judgment

dismissing his action challenging income taxes and penalties for the tax years

2004, 2005, and 2006. We have jurisdiction under 28 U.S.C. § 1291. We review

de novo a dismissal for lack of subject matter jurisdiction. Mills v. United States,



      *
             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).
742 F.3d 400, 404 (9th Cir. 2014). We affirm.

      The district court properly dismissed Holdner’s action for lack of subject

matter jurisdiction because Holdner failed to show that he paid the taxes in full

prior to filing suit, or that he filed a refund claim, and Holdner previously

petitioned the Tax Court challenging the assessments raised in his complaint. See

Flora v. United States, 362 U.S. 145, 177 (1960) (full payment of assessment

required before filing suit); Omohundro v. United States, 300 F.3d 1065, 1067-69

(9th Cir. 2002) (a taxpayer’s failure to file a timely refund claim divests the district

court of jurisdiction over a refund suit); First Nat’l Bank of Chicago v. United

States, 792 F.2d 954, 955-56 (9th Cir. 1986) (26 U.S.C. § 6512 has a “broad

general application so as to provide that if the taxpayer files a petition with the tax

court, the mere filing of the petition operates to deprive the district court of

jurisdiction to entertain a subsequent suit for refund.” (citation and internal

quotations omitted)).

      We reject as without merit Holdner’s contention that his action qualifies as a

citizen suit under 33 U.S.C. § 1365(a).

      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.




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