David O’beirn v. Department of Veterans Affairs

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID O’BEIRN,
Plaintiff - Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Defendant - Appellee.
No. 12-35576
D.C. No. 2:11-cv-00345-RSL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
David O’Beirn 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 the existence of subject matter jurisdiction. Schnabel
FILED
MAR 03 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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v. Lui, 302 F.3d 1023, 1029 (9th Cir. 2002). We may affirm on any ground
supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.
2008). We affirm.
Dismissal of O’Beirn’s action was proper because the district court lacked
subject matter jurisdiction over O’Beirn’s claims relating to or affecting veterans’
benefits decisions. See 38 U.S.C. § 511(a); Veterans for Common Sense v.
Shinseki, 678 F.3d 1013, 1023-25 (9th Cir. 2012) (en banc) (Veterans’ Judicial
Review Act 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)). We treat the judgment as a dismissal without prejudice. See Kelly v.
Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004) (dismissals for lack
of subject matter jurisdiction should be without prejudice).
The district court did not abuse its discretion by denying O’Beirn’s motions
for appointment of counsel because O’Beirn failed to demonstrate circumstances
that would warrant appointment of counsel. See Johnson v. U.S. Treasury Dep’t,
27 F.3d 415, 416-17 (9th Cir. 1994) (per curiam) (standard of review and factors
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relevant to appointment of counsel).
O’Beirn’s contentions that the district court erred by denying him oral
argument and evidentiary hearings are unpersuasive.
We 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 curiam).
O’Beirn’s request to sanction defendant, set forth in his reply brief, is
denied.
AFFIRMED.
12-35576 3

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