Ramirez v. United States

604 F. App'x 567

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 19, 2015
• Docket: No. 13-56088
• Status: Published

Opinion

MEMORANDUM

**

John B. Ramirez appeals pro se from the district court’s judgment dismissing his action alleging claims arising from the Internal Revenue Service’s (IRS) inquiries into his tax liabilities and the court’s order denying Ramirez’s petition to quash IRS summonses issued to third-party financial institutions. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for lack of subject matter jurisdiction, Serra v. Lappin, 600 F.3d 1191, 1195 (9th Cir.2010), and review for clear error summons enforcement decisions, United States v. Richey, 632 F.3d 559, 563 (9th Cir.2011). We affirm.

The district court properly dismissed Ramirez’s Bivens claim against the IRS agents. See Adams v. Johnson, 355 F.3d 1179, 1183-86, 1188 (9th Cir.2004) (Bivens relief is unavailable for “allegedly unconstitutional actions of IRS officials engaged in tax assessment and collection” or where Congress has provided meaningful statutory remedies for federal wrongs).

The district court properly dismissed Ramirez’s abuse of process claim because it was preempted. by the Federal Tort Claims Act (“FTCA”). See 28 U.S.C. § 2680(c) (excluding from the FTCA “[a]ny claim arising in respect of the assessment or collection of any tax”); Meridian Int’l Logistics, Inc. v. United States, 939 F.2d 740, 743 n. 1 (9th Cir.1991) (“[T]he FTCA is the exclusive mode of recovery for the tort of a Government employee even when the FTCA itself precludes Government liability.” (citation and internal quotation marks omitted)).

The district court did not abuse its discretion by denying Ramirez leave to amend his complaint because amendment would have been futile. See Serra, 600 F.3d at 1195, 1200 (setting forth standard of review and explaining that leave to amend may be denied where amendment would be futile).

The district court properly denied Ramirez’s petition with respect to the three December 12, 2012, summonses because Ramirez failed to rebut the IRS’s showing that the summonses were issued in good faith. See Richey, 632 F.3d at 564 (a taxpayer has a heavy burden to show an abuse of process or lack of good faith once the IRS makes a prima facie showing that a summons was issued for a legitimate . purpose).

Ramirez failed to raise any arguments with respect to the November 13, 2012, and January 30, 2013, summonses. Because “arguments not raised by a party in its opening brief are deemed waived,” Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999), we affirm the district court’s denial as to these summonses.

We reject Ramirez’s contentions concerning protection from witness tampering.

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) (per curiam).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.