                                                                            FILED
                            NOT FOR PUBLICATION                               FEB 2 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


BRIAN KENNER; KATHLEEN                            No. 12-57343
KENNER,
                                                  D.C. No. 3:12-cv-01011-MMA-
               Plaintiffs - Appellants,           WVG

  v.
                                                  MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General;
et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Southern District of California
                    Michael M. Anello, District Judge, Presiding

                            Submitted January 21, 2015**

Before:        CANBY, GOULD, and N.R. SMITH, Circuit Judges.

       Brian and Kathleen Kenner appeal pro se from the district court’s judgment

dismissing their action alleging that defendants violated their constitutional rights

by relying on 26 U.S.C. §§ 7432, 7433, the Federal Torts Claims Act, and the

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
doctrine of judicial immunity in prior litigation. We have jurisdiction under 28

U.S.C. § 1291. We review de novo the district court’s dismissal under Federal

Rule of Civil Procedure 12(b)(1), Mills v. United States, 742 F.3d 400, 404 (9th

Cir. 2014), and we affirm.

      The district court properly dismissed the Kenners’ action for lack of federal

subject matter jurisdiction because defendants are entitled to sovereign immunity

and the Kenners failed to demonstrate waiver. See id. at 405 (“Suits against the

government are barred for lack of subject matter jurisdiction unless the government

expressly and unequivocally waives its sovereign immunity.”); see also Gilbert v.

DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (“[T]he bar of sovereign immunity

cannot be avoided by naming officers and employees of the United States as

defendants.”).

      The district court did not abuse its discretion in denying leave to amend

because amendment would have been futile. See Gardner v. Martino, 563 F.3d

981, 990 (9th Cir. 2009) (setting forth standard of review and explaining that a

district court may deny leave to amend where the amendment would be futile).

      Because we affirm dismissal on the basis of sovereign immunity, we do not

address the parties’ arguments concerning other bases for dismissal.

      The Kenners’ request for judicial notice, filed on April 7, 2013, is granted.


                                          2                                    12-57343
Defendants’ motion to dismiss, filed on March 4, 2014, is denied as moot.

AFFIRMED.




                                  3                                  12-57343
