FILED
NOT FOR PUBLICATION AUG 25 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LARRY TEVIS; NANCY TEVIS, No. 15-16962
Plaintiffs-Appellants, D.C. No. 2:15-cv-00972-TLN-
GGH
v.
CALIFORNIA DEPARTMENT OF MEMORANDUM*
VETERANS AFFAIRS,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted August 16, 2016**
Before: O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.
Nancy and Larry Tevis appeal pro se from the district court’s judgment
dismissing their action for lack of subject matter jurisdiction. We have jurisdiction
under 28 U.S.C. § 1291. We affirm.
*
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).
The district court dismissed plaintiffs’ action for lack of subject matter
jurisdiction, finding that plaintiffs claim under 42 U.S.C. § 1983 was so
insubstantial and without merit as to not create subject matter jurisdiction under 28
U.S.C. § 1331. See Poulos v. Caesars World, Inc., 379 F.3d 654, 662 (9th Cir.
2004) (there is no jurisdiction where a claim “appear[s] to be immaterial and made
solely for the purpose of obtaining jurisdiction” or is “wholly insubstantial and
frivolous” (citation and internal quotation marks omitted)). The district court also
determined there was no basis for diversity jurisdiction under 28 U.S.C. § 1332.
In their opening brief, plaintiffs fail to address how the district court erred in
making either ruling. As a result, they have waived their appeal of the dismissal
order. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal,
arguments not raised by a party in its opening brief are deemed waived.”); see also
Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture
arguments for an appellant, and a bare assertion does not preserve a claim. . . .”).
Plaintiffs’ March 7, 2016 request to exclude appellees from being heard at
oral argument is denied as moot.
AFFIRMED.
2 15-16962