                           NOT FOR PUBLICATION                           FILED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).




                                           3                                      16-16305
        Khenaisser’s pending motions (Docket Entry Nos. 22 and 23) are denied as

moot.

        AFFIRMED.




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