Stephen Cole v. Alaska Island Cmty. Servs.

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 26, 2021
• Docket: 19-35894
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

STEPHEN W. COLE, No. 19-35894

Plaintiff-Appellant, D.C. No. 1:18-cv-00011-TMB

v. MEMORANDUM* ALASKA ISLAND COMMUNITY SERVICES, AKA AICS; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, District Judge, Presiding

Submitted January 20, 2021**

Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.

Stephen W. Cole appeals pro se from the district court’s judgment

dismissing his antitrust action. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo a district court’s dismissal for lack of subject matter jurisdiction on

the basis of sovereign immunity. Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824

* 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 858, 864 (9th Cir. 2016) (sovereign immunity); Cook v. AVI Casino Enters.,

Inc., 548 F.3d 718, 722 (9th Cir. 2008) (tribal sovereign immunity). We may

affirm on any basis supported by the record, Thompson v. Paul, 547 F.3d 1055,

1058-59 (9th Cir. 2008), and we affirm.

The district court properly dismissed Cole’s claims against Southeast Alaska

Regional Health Consortium and Alaska Island Community Services because those

claims are barred by tribal sovereign immunity. See White v. Univ. of Cal., 765

F.3d 1010, 1025 (9th Cir. 2014) (factors to determine whether an entity is an “arm

of the tribe” for purposes of tribal sovereign immunity); see also Pistor v. Garcia,

791 F.3d 1104, 1111 (9th Cir. 2015) (“In the context of a Rule 12(b)(1) motion to

dismiss on the basis of tribal sovereign immunity, the party asserting subject matter

jurisdiction has the burden of proving its existence, i.e. that immunity does not bar

the suit.” (internal quotation marks omitted)).

The district court properly dismissed Cole’s claims against the Department

of Health and Human Services because those claims are barred by sovereign

immunity. See Sierra Club v. Whitman, 268 F.3d 898, 901 (9th Cir. 2001) (suits

against any agency of the United States “are barred by sovereign immunity unless

there has been a specific waiver of that immunity”). Dismissal of Cole’s claims

against the Federal Trade Commission was proper on the same basis.

Cole failed to include any argument in his opening brief regarding the

2 19-35894 district court’s dismissal of the United States Attorney’s Office, and thus has

waived any challenge to that issue. See McKay v. Ingleson, 558 F.3d 888, 891 n.5

(9th Cir. 2009) (arguments not raised in an appellant’s opening brief are waived).

We do not consider arguments 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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