                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 28 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

FREDERIC PAUL SMITH,                            No. 17-35004

                Plaintiff-Appellant,            D.C. No. 1:16-cv-00126-SPW

 v.
                                                MEMORANDUM*
UNITED STATES POSTAL SERVICE,

                Defendant-Appellee.

                   Appeal from the United States District Court
                           for the District of Montana
                    Susan P. Watters, District Judge, Presiding

                          Submitted December 18, 2017**

Before:      WALLACE, SILVERMAN, and BYBEE, Circuit Judges.

      Frederic Paul Smith appeals pro se from the district court’s judgment

dismissing on the basis of sovereign immunity his action against the United States

Postal Service (“USPS”) alleging that a USPS employee stole a sapphire he sent

through the U.S. mail. We have jurisdiction under 28 U.S.C. § 1291. We review



      *
             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).
de novo. Harger v. Dep’t of Labor, 569 F.3d 898, 903 (9th Cir. 2009). We affirm.

       The district court properly dismissed Smith’s action on the basis of

sovereign immunity because the waiver of sovereign immunity under 28 U.S.C. §

1346(b) does not apply to “[a]ny claim arising out of the loss, miscarriage, or

negligent transmission of letters or postal matter.” 28 U.S.C. § 2680(b); see also

28 U.S.C. § 1346(b) (waiving United States sovereign immunity for certain tort

actions); Dolan v. U.S. Postal Serv., et al., 546 U.S. 481, 487 (2006) (discussing

meaning of “loss” under § 2680(b)).

       Contrary to Smith’s contention, the USPS did not waive its sovereign

immunity in its letter denying Smith’s administrative claim. See Gilbert v.

DaGrossa, 756 F.2d 1455, 1460 n.6 (9th Cir. 1985) (“A claim for damages against

a federal agency is barred by sovereign immunity unless Congress has consented to

suit.”).

       We do not consider documents not presented to the district court. See

United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not

presented to the district court are not part of the record on appeal.”).

       AFFIRMED.




                                           2                                   17-35004
