Taniela Kivalu v. Eric Shinseki

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TANIELA F. KIVALU, No. 16-17359
Plaintiff-Appellant, D.C. No. 2:16-cv-02929-DJH
v.
MEMORANDUM**
DAVID J. SHULKIN,* Secretary, Veterans
Administration; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Submitted October 23, 2017***
Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.
Taniela F. Kivalu appeals pro se from the district court’s judgment
dismissing his claims related to the Veterans Administration’s denial of his
*
David J. Shulkin has been substituted for his predecessor, Eric
Shinseki, as Secretary of Veterans Affairs.
**
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).
benefits. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal for lack of subject matter jurisdiction. Scholastic Entm’t, Inc. v. Fox
Entm’t Grp., Inc., 336 F.3d 982, 985 (9th Cir. 2003). We affirm in part, vacate in
part, and remand.
The district court properly dismissed Kivalu’s action for lack of subject
matter jurisdiction because the United States Courts of Appeals for Veterans
Claims and the Federal Circuit have exclusive jurisdiction over questions that
relate to benefits administered by the Veterans Administration. See Veterans for
Common Sense v. Shinseki, 678 F.3d 1013, 1022-25 (9th Cir. 2012) (the Veterans’
Judicial Review Act precludes district court jurisdiction over claims relating to or
affecting veterans’ benefits decisions). However, we vacate the judgment to the
extent that it dismissed Kivalu’s action with prejudice, and remand for entry of
dismissal without prejudice. See Missouri ex rel. Koster v. Harris, 847 F.3d 646,
656 (9th Cir. 2017) (“In general, dismissal for lack of subject matter jurisdiction is
without prejudice.”).
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 treat Kivalu’s contention regarding the denial of his motion for official
2 16-17359
transcripts as a motion for reconsideration, and deny the motion.
AFFIRMED in part, VACATED in part, and REMANDED.
3 16-17359