WALTER SHAW V. VETERANS HEALTH ADMINISTRATION, No. 14-56097 (9th Cir. 2016)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED SEP 21 2016 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT WALTER M. SHAW, M.D., Plaintiff-Appellant, U.S. COURT OF APPEALS No. 14-56097 D.C. No. 3:12-cv-02369-BENNLS v. VETERANS HEALTH ADMINISTRATION; et al., MEMORANDUM* Defendants-Appellees. Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding Submitted September 13, 2016** Before: HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges. Walter M. Shaw appeals pro se from the district court’s judgment dismissing his employment 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, including * 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). whether the United States has waived its sovereign immunity. Harger v. Dep’t of Labor, 569 F.3d 898, 903 (9th Cir. 2009). We affirm. The district court properly dismissed Shaw’s state law claims as barred by sovereign immunity because Shaw failed to show that the United States has waived its sovereign immunity from suit. See United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”); Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008) (“[A] person attempting to sue a federal agency or officer must demonstrate that the claim being asserted is covered by a specific statutory authorization to sue the United States.” (citation and internal quotation marks omitted)). Shaw has waived any claims of error relating to the dismissal of the federal claims raised in his first amended complaint because they were dismissed with leave to amend, and Shaw subsequently filed an amended complaint. See Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 973 n.14, 974 n.15 (9th Cir. 2013) (failure to replead claims after dismissal with leave to amend amounts to waiver). The district court did not abuse its discretion by denying Shaw further leave 2 14-56097 to amend because amendment would have been futile. See Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (setting forth standard of review and explaining that “[t]he district court’s discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint”). Contrary to Shaw’s contention, the district court was not required to convert defendants’ motion to dismiss to a motion for summary judgment. AFFIRMED. 3 14-56097
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