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 2021-04

Gary Kendall v. United States ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        APR 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARY OWEN KENDALL,                              No. 20-35433
Plaintiff-Appellant,            D.C. No. 1:20-cv-00140-BLW
v.
MEMORANDUM*
UNITED STATES OF AMERICA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Submitted April 20, 2021**
Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.
Gary Owen Kendall appeals pro se from the district court’s judgment
dismissing his action concerning his veterans’ benefits. We have jurisdiction
under
    28 U.S.C. § 1291
    . We review de novo. Bishop Paiute Tribe v. Inyo County,
    863 F.3d 1144
    , 1151 (9th Cir. 2017) (dismissal for lack of subject matter
*
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).
jurisdiction); Watison v. Carter,
    668 F.3d 1108
    , 1112 (9th Cir. 2012) (dismissal
under
    28 U.S.C. § 1915
    (e)(2)(B)(ii)). We affirm.
The district court properly dismissed Kendall’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
    38 U.S.C. § 511
    (a); Veterans for Common Sense v. Shinseki,
    678 F.3d 1013
    , 1022-25 (9th
Cir. 2012) (en banc) (the Veterans’ Judicial Review Act generally precludes
district court jurisdiction over claims relating to or affecting veterans’ benefits
decisions, “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 Veterans Affair’s] ultimate decision on his claim,
affected his or her benefits proceeding” (citations omitted)). However, a dismissal
for lack of subject matter jurisdiction should be without prejudice. Kelly v.
Fleetwood Enters., Inc.,
    377 F.3d 1034
    , 1036 (9th Cir. 2004). We affirm the
dismissal, and instruct the district court to amend the judgment to reflect that the
dismissal of this action is without prejudice.
We reject Kendall’s contention that the denial of his petition for ex parte
injunction was unconstitutional as unpersuasive.
We do not consider allegations raised for the first time on appeal. See
2                                     20-35433
Padgett v. Wright,
    587 F.3d 983
    , 985 n.2 (9th Cir. 2009).
AFFIRMED; REMANDED with instructions to amend the judgment.
3                   20-35433