Nassir Kourbanov v. United States ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        SEP 17 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    NASSIR NAZAROVICH KOURBANOV,                    No. 20-16444
    AKA Milan Frank Fargo,
    D.C. No. 1:19-cv-00004
    Plaintiff-Appellant,
    v.                                             MEMORANDUM*
    UNITED STATES OF AMERICA, Federal
    Emergency Management Agency (FEMA),
    Defendant-Appellee.
    Appeal from the United States District Court
    for the District of the Northern Mariana Islands
    Ramona V. Manglona, District Judge, Presiding
    Submitted September 14, 2021**
    Before:      PAEZ, NGUYEN, and OWENS, Circuit Judges.
    Nassir Nazarovich Kourbanov AKA Milan Frank Fargo appeals pro se from
    the district court’s judgment dismissing his action seeking judicial review of
    Federal Emergency Management Agency (“FEMA”) decisions under the
    *
    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).
    Administrative Procedure Act, 5 U.S.C. § 702. We have jurisdiction under 28
    U.S.C. § 1291. We review de novo. Davidson v. Kimberly-Clark Corp., 
    889 F.3d 956
    , 963 (9th Cir. 2018) (dismissal under Fed. R. Civ. P. 12(b)(1) and 12(b)(6));
    Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 
    824 F.3d 858
    , 864 (9th Cir. 2016)
    (dismissal for lack of subject matter jurisdiction). We affirm.
    The district court properly dismissed as moot Fargo’s claim arising from
    FEMA’s recoupment efforts because FEMA agreed to cease recoupment efforts.
    See Am. Cas. Co. of Reading, Pa. v. Baker, 
    22 F.3d 880
    , 896 (9th Cir. 1994) (a
    case is moot when there is no longer a present controversy as to which effective
    relief can be granted).
    The district court properly dismissed Fargo’s remaining claims for lack of
    subject matter jurisdiction because the Stafford Act precludes judicial review of
    FEMA’s discretionary actions when performing its duties under the Act. See 42
    U.S.C. § 5148 (“The Federal Government shall not be liable for any claim based
    upon the exercise or performance of or the failure to exercise or perform a
    discretionary function or duty on the part of a Federal agency or an employee of
    the Federal Government in carrying out the provisions of this chapter.”); Graham
    v. FEMA, 
    149 F.3d 997
    , 1005 (9th Cir. 1998) (Section 5148 “preclude[s] judicial
    review of all disaster relief claims based upon the discretionary actions of federal
    employees.” (citation and internal quotation marks omitted)), abrogated on other
    2                                    20-16444
    grounds as recognized in Novak v. United States, 
    795 F.3d 1012
     (9th Cir. 2015).
    The district court did not abuse its discretion in denying Fargo’s motion for
    reconsideration because Fargo failed to establish any basis for relief. See Sch.
    Dist. No. 1J, Multnomah County, Or., 
    5 F.3d 1255
    , 1262-63 (9th Cir. 1993)
    (setting forth standard of review and discussing when reconsideration is
    appropriate).
    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).
    We do not consider documents not presented to the district court. See
    United States v. Elias, 
    921 F.2d 870
    , 874 (9th Cir. 1990).
    We reject as meritless Fargo’s contentions that he was entitled to a jury trial
    and that the district court judge was biased against him.
    AFFIRMED.
    3                                       20-16444