FILED
NOT FOR PUBLICATION MAY 19 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IDA FOSTER, No. 13-16567
Plaintiff - Appellant, D.C. No. 3:12-cv-04304-LB
v.
MEMORANDUM*
DEPARTMENT OF VETERANS
AFFAIRS; OFFICE OF PERSONNEL
MANAGEMENT,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Laurel D. Beeler, Magistrate Judge, Presiding**
Submitted May 13, 2015***
Before: LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.
Ida Foster appeals pro se from the district court’s judgment dismissing for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
lack of subject matter jurisdiction her Federal Tort Claims Act (“FTCA”) action
concerning the elimination of her life insurance benefits. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We review de novo a dismissal for lack of subject
matter jurisdiction, Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000), and
we affirm.
The district court properly dismissed Foster’s negligence claim for lack of
subject matter jurisdiction because Foster failed to exhaust her administrative
remedies as required by the FTCA. See 28 U.S.C. § 2675(a); Brady, 211 F.3d at
502 (“The requirement of an administrative claim is jurisdictional.”); see also
Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040 (9th Cir. 2003) (a party
opposing a motion to dismiss for lack of subject matter jurisdiction “must furnish
affidavits or other evidence necessary to satisfy its burden of establishing subject
matter jurisdiction”).
We do not consider Foster’s contentions regarding the Employee Retirement
Portability and Accountability Act because they were not properly raised before
the district court. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). We
also do not consider matters not specifically and distinctly raised and argued in the
opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per
2 13-16567
curiam).
AFFIRMED.
3 13-16567