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NOT FOR PUBLICATION FILED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.

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