Jeffrey Rische v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 23, 2018
• Docket: 17-35591
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JEFFREY ALAN RISCHE, No. 17-35591

Plaintiff-Appellant, D.C. No. 2:16-cv-00339-RSL

v. MEMORANDUM* UNITED STATES OF AMERICA; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding

Submitted May 15, 2018**

Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.

Jeffrey Alan Rische appeals pro se from the district court’s summary

judgment in favor of the United States and denial of Rische’s motion for judgment

on the pleadings in Rische’s tax refund action. We have jurisdiction under 28

U.S.C. § 1291. We review de novo. United States v. Alameda Gateway Ltd., 213

* 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). Rische’s request for oral argument, set forth in the opening brief, is denied. F.3d 1161, 1164 (9th Cir. 2000) (summary judgment); 3550 Stevens Creek Assocs.

v. Barclays Bank of Cal., 915 F.2d 1355, 1357 (9th Cir. 1990) (judgment on the

pleadings). We affirm.

The district court properly granted summary judgment for the government

because Rische failed to raise a genuine dispute of material fact as to whether he is

entitled to refunds for tax years 2013 and 2014. See United States v. Janis, 428

U.S. 433, 440 (1976) (in a tax refund suit the taxpayer bears the burden of proving

the amount the taxpayer is entitled to recover).

The district court properly denied Rische’s motion for judgment on the

pleadings because Rische failed to establish that he is entitled to judgment as a

matter of law. See Fed. R. Civ. P. 12(c); Gen. Conference Corp. of Seventh-Day

Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230

(9th Cir. 1989) (“[A] plaintiff is not entitled to judgment on the pleadings when the

answer raises issues of fact that, if proved, would defeat recovery.”).

We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

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