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United States Court of Appeals, Ninth Circuit.

Stephen W. COLE, Plaintiff-Appellant, v. ALASKA ISLAND COMMUNITY SERVICES, aka AICS; et al., Defendants-Appellees.

No. 19-35894

Decided: January 26, 2021

Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges. Stephen W. Cole, Pro Se Kendri Marietta Marie Cesar, Esquire, Attorney, Richard Drake Monkman, Esquire, Attorney, Sonosky, Chambers, Sachse, Miller & Munson, LLP, Juneau, AK, for Defendants-Appellees Alaska Island Community Services, Southeast Alaska Regional Health Consortium Marie Scheperle, Ms, U.S. Department of Justice, Federal Building and U.S. Courthouse, Anchorage, AK, Steven Skrocki, Assistant U.S. Attorney, Office of the U.S. Attorney, Anchorage, AK, for Defendants-Appellees U.S. Attorney Office, Health and Human Services, Federal Trade Commission Nicholas J.R. Gasca, Esquire, Tanana Chiefs Conference, Inc., Fairbanks, AK, for Amicus Curiae Dena' Nena' Henash


Stephen W. Cole appeals pro se from the district court's judgment dismissing his antitrust 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 on the basis of sovereign immunity. Ariz. Students’ Ass'n v. Ariz. Bd. of Regents, 824 F.3d 858, 864 (9th Cir. 2016) (sovereign immunity); Cook v. AVI Casino Enters., Inc., 548 F.3d 718, 722 (9th Cir. 2008) (tribal sovereign immunity). We may affirm on any basis supported by the record, Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008), and we affirm.

The district court properly dismissed Cole's claims against Southeast Alaska Regional Health Consortium and Alaska Island Community Services because those claims are barred by tribal sovereign immunity. See White v. Univ. of Cal., 765 F.3d 1010, 1025 (9th Cir. 2014) (factors to determine whether an entity is an “arm of the tribe” for purposes of tribal sovereign immunity); see also Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (“In the context of a Rule 12(b)(1) motion to dismiss on the basis of tribal sovereign immunity, the party asserting subject matter jurisdiction has the burden of proving its existence, i.e. that immunity does not bar the suit.” (internal quotation marks omitted)).

The district court properly dismissed Cole's claims against the Department of Health and Human Services because those claims are barred by sovereign immunity. See Sierra Club v. Whitman, 268 F.3d 898, 901 (9th Cir. 2001) (suits against any agency of the United States “are barred by sovereign immunity unless there has been a specific waiver of that immunity”). Dismissal of Cole's claims against the Federal Trade Commission was proper on the same basis.

Cole failed to include any argument in his opening brief regarding the district court's dismissal of the United States Attorney's Office, and thus has waived any challenge to that issue. See McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009) (arguments not raised in an appellant's opening brief are waived).

We do not consider arguments raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).


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