                             NOT FOR PUBLICATION                         FILED
                     UNITED STATES COURT OF APPEALS                      MAR 23 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT

MARCO A. FRAUSTO,                               No. 17-56586

                 Plaintiff-Appellant,           D.C. No. 2:17-cv-00177-SVW-PLA

  v.
                                                MEMORANDUM*
DANIEL MURRAY, Auditor, in his
individual and official capacity; et al.,

                 Defendants-Appellees.

                    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).
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.




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