Gary Kendall v. United States , 541 F. App'x 781 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 04 2013
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
GARY OWEN KENDALL, No. 12-35841
Plaintiff - Appellant, D.C. No. 1:12-cv-00330-EJL-
LMB
v.
UNITED STATES OF AMERICA; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted September 24, 2013 **
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Gary Owen Kendall appeals pro se from the district court’s judgment
dismissing his putative class action arising from alleged wrongs directed against
veterans and their families. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo a dismissal under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren v. Harrington, 152
F.3d 1193, 1194 (9th Cir. 1998) (order). We may affirm on any ground supported
by the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th
Cir. 2008). We affirm.
Dismissal of Kendall’s action was proper because the district court lacked
subject matter jurisdiction over Kendall’s claims relating to or affecting veteran’s
benefits decisions, including the RICO claims. See 38 U.S.C. § 511(a); Veterans
for Common Sense v. Shinseki, 678 F.3d 1013, 1021-26 (9th Cir. 2012) (en banc)
(district court does not have jurisdiction over claims that would require it to review
a question of fact or law relating to or affecting veteran’s benefit decision, “even if
the veteran dresses his claim as a constitutional challenge, and even where the
veteran has challenged some other wrongful conduct that, although unrelated to the
[Department of Veteran’s Affair’s] ultimate decision on his claim, affected his or
her benefits proceeding” (citations omitted)).
The district court properly dismissed Kendall’s claims on behalf of a
putative class because non-attorney pro se litigants have no authority to represent
anyone other than themselves. See Simon v. Hartford Life, Inc., 546 F.3d 661, 664
(9th Cir. 2008) (non-attorney plaintiff may not attempt to pursue claim on behalf of
others).
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Kendall’s requests in his opening briefs for class counsel are denied because
Kendall has failed to demonstrate extraordinary circumstances warranting
appointment of counsel. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)
(setting forth standard of review and “exceptional circumstances” requirement for
appointment of counsel).
Kendall’s request in his addendum to his opening brief to be recognized as a
private attorney general is denied.
The request for an order of mandamus of prohibition, contained in Kendall’s
filing submitted on July 9, 2013, is denied.
AFFIRMED.
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