NOT FOR PUBLICATION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 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).

FILED

MAY 22 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 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 alleging 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 only 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 forbidden de facto appeal under Rooker-Feldman 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 Mitrano’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) (setting 
3 17-35460 

forth standard of review and explaining that dismissal without leave to amend is 

proper when amendment would be futile).

We need not resolve whether the district court should have reviewed the 

magistrate judge’s findings and recommendations de novo instead of for clear error 

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

dismissed Mitrano’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 third extension of time to file a reply brief (Docket 

Entry No. 18) is denied.

AFFIRMED.