NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER P. MITRANO,

Plaintiff

- Appellant,

v. UNITED STATES OF AMERICA; KERI A. ADORISIO,
Defendants

- Appellees. No. 17

- 35460
D.C. No. 4:16

- cv - 00013

- BMM

MEMORANDUM *

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding Submitted May 15, 2018 **
Before: SILVERMAN , BEA, and WATFORD , Circuit Judges

. Peter P. Mitrano appeals pro se from the district court’s judgment dismissing his action alleging violations of the Posse Comitatus Act and seeking declaratory relief. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for lack of subject matter jurisdiction

. Jachetta v. United States , 653

* This disposition is not appropriate for publication and is not precede nt 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). 

# FILED

MAY 22 2018
MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 17

- 35460

F.3d 898, 903 (9th Cir. 2011) (federal sovereign immunity); Noel v. Hall , 341 F.3d 1148, 1154 (9th Cir. 2003) ( Rooker

- Feldman doctrine). We affirm. The district court properly dismissed Mitrano’s claims allegi ng violations of

the Posse Comitatus Act because Mitrano failed to establish that the United States had waived sovereign immunity for such claims. See Reed v. U.S. Dep’t of the

Interior , 231 F.3d 501, 504 (9th Cir. 2000) (“The United States can be sued on ly to the extent that it has waived sovereign immunity.”); Holloman v. Watt , 708 F.2d 1399, 1401 (9th Cir. 1983) (“The party who sues the United States bears the burden of pointing to

. . . an unequivocal waiver of immunity.”). The district court properly dismissed Mitrano’s declaratory relief claims

under the Rooker

- Feldman doctrine because Mitrano’s claims constitute a “de facto appeal” of a prior, final state court judgment. See Noel , 341 F.3d at 1163 (“ It

is a forbidd en de facto appeal under Rooker

- Fel dman when the plaintiff in federal district court complains of a legal wrong allegedly committed by the state court, and seeks relief from the judgment of that court

. ” ).

The district court did not abuse its discretion by dismissing Mi trano’s complaint without leave to amend because amendment would have been futile. See Chappel v. Lab. Corp. of Am. , 232 F.3d 719, 725

- 26 (9th Cir. 2000) ( setting3 17

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forth standard of review and explaining that dismissal without leave to amend is proper when amendm ent would be futile ).

We need not resolve whether the district court should have reviewed the magistrate judge’s findings and recommendation s de novo instead of for clear error

because we conclude upon our de novo review that the distr ict court properly

di smissed Mi trano’s action for lack of subject matter jurisdiction. We do not consider arguments 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). Mitrano’s request for a th ird extension of time to file a reply brief (Docket Entry No. 18) is denied.

AFFIRMED.