Eugene D. Messerschmidt, Plaintiff-appellant, v. State of Arizona; Charles Cowan, Director, Arizonadepartment of Economic Security; Timothy M. Hogan,executive Director, Arizona Center for Law in the Publicinterest; Linda J. Blessing, Director of Eeoc, Defendants,andrichard Riley, Secretary, U.S. Department of Education;william L. Smith, Acting Commissioner,rehabilitation Services Administration,defendants-appellees, 97 F.3d 1459 (9th Cir. 1996)

MEMORANDUM^** 

Eugene Messerschmidt appeals pro se the district court's dismissal of his action alleging that defendants discriminated against him on the basis of disability. Specifically, Messerschmidt claimed that defendants failed to fund his business plan pursuant to section 641 of the Rehabilitation Act of 1973, 29 U.S.C. § 795r, a program that was never funded by Congress. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

We review de novo the district court's Rule 12(b) (6) dismissal of an action. Tanner v. Heise, 879 F.2d 572, 576 (9th Cir. 1989). A pro se pleading may not be dismissed without notice of the deficiencies and an opportunity to amend, unless amendment would be futile. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

We agree with the district court that Messerschmidt cannot state a claim for relief because Congress never appropriated funds to carry out the Rehabilitation Act business program. See Office of Personnel Management v. Richmond, 496 U.S. 414, 424 (1990) (" [N]o money can be paid out of the Treasury unless it has been appropriated by an act of Congress.") (internal quotations and citation omitted).¹ 

Because the district court did not consider matters outside the pleadings, Messerschmidt's contention that the district court converted defendants' motion to dismiss into a motion for summary judgment lacks merit. See Tanner, 879 F.2d at 576.

Messerschmidt contends on appeal that the district court erred by denying his motions for appointment of counsel. We are unable to conclude that Messerschmidt's likelihood of success or the complexity of the issues were so "exceptional" as to render the district court's decision not to appoint counsel an abuse of discretion. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). All pending motions are denied.

AFFIRMED.