NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM J. WHITSITT, 

Plaintiff-Appellant, 

 v. 

CATO, IRS Agent 1000158004; et al., 

Defendants-Appellees.

No. 18-16757 

D.C. No. 2:17-cv-01818-TLN-EFB 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Troy L. Nunley, District Judge, Presiding

Submitted July 15, 2019**

Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.

William J. Whitsitt appeals pro se from the district court’s judgment 

dismissing his action arising from levies imposed by the Internal Revenue Service 

(“IRS”) to collect unpaid taxes. We have jurisdiction under 28 U.S.C. § 1291. We 

review de novo. Dexter v. Colvin, 731 F.3d 977, 980 (9th Cir. 2013) (subject 

 

* 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

JUL 19 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-16757 

matter jurisdiction); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) 

(order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim). 

We affirm.

The district court properly dismissed Whitsitt’s due process claim because 

Whitsitt failed to allege facts sufficient to state a plausible claim. See Hebbe v. 

Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are 

construed liberally, plaintiff must present factual allegations sufficient to state a 

plausible claim for relief); see also West v. Atkins, 487 U.S. 42, 48 (1988) 

(elements of a § 1983 claim); cf. 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”).

The district court properly dismissed Whitsitt’s claim for damages under 26 

U.S.C. § 7433 because Whitsitt failed to allege facts sufficient to show that he 

exhausted his administrative remedies as required under § 7433(d)(1). See

Conforte v. United States, 979 F.2d 1375, 1377 (9th Cir. 1992) (failure to exhaust 

administrative remedies deprived the court of jurisdiction over a taxpayer’s 

damages claims regarding improper tax collection under § 7433(a)); see also 26 

C.F.R. § 301.7433–1(e) (specifying required administrative remedies).

To the extent Whitsitt alleged claims seeking injunctive relief, the district 

court properly dismissed such claims as barred by the Anti-Injunction Act (“the 
3 18-16757 

Act”) as an attempt to restrain the IRS’s tax assessment and collection activities, 

and no exception to the Act applies. See 26 U.S.C. § 7421(a) (listing statutory 

exceptions); Elias v. Connett, 908 F.2d 521, 523, 525 (9th Cir. 1990) (explaining 

that the district court “must dismiss for lack of subject matter jurisdiction any suit 

that does not fall within one of the exceptions to the Act” and setting forth limited 

judicial exception).

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). 

AFFIRMED.