Robert L. Theede v. United States of America;

* 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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT L. THEEDE,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA; et al.,
Defendants - Appellees.
No. 11-17427
D.C. No. 2:11-cv-01084-MCE-
DAD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Chief District Judge, Presiding
Submitted October 26, 2012 **
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Robert Theede appeals pro se from the district court’s judgment dismissing
his action for failure to state a claim and denying his motion for a preliminary
injunction. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
FILED
NOV 21 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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district court’s dismissal of a complaint pursuant to 28 U.S.C. § 1915(e)(2),
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012), and we review the denial
of a preliminary injunction for abuse of discretion, Sierra Forest Legacy v. Rey,
577 F.3d 1015, 1021 (9th Cir. 2009). We affirm.
The district court properly dismissed Theede’s claims against the Social
Security Administration and the Department of Health and Human Services
because it is clear from the face of the complaint that Theede failed to exhaust
administrative requirements and obtain a final agency decision. 42 U.S.C. §
405(g); Heckler v. Ringer, 466 U.S. 602, 617 (1984); Bass v. Soc. Sec. Admin., 872
F.2d 832, 833 (9th Cir. 1989) (claimant’s failure to exhaust the procedures set forth
in the Social Security Act deprives the district court of jurisdiction); Kaiser v. Blue
Cross of Calif., 347 F.3d 1107, 1111 & 1115-16 (9th Cir. 2003) (claims arising
under Medicare must satisfy the presentment and exhaustion requirements under
42 U.S.C. § 405(g)).
The district court properly dismissed Theede’s claims against the
Department of Labor regarding termination of benefits under the Federal
Employees Compensation Act (“FECA”) because federal courts do not have
subject matter jurisdiction to review claims challenging the merits of a benefits
determination under FECA. 5 U.S.C. § 8128; Markham v. United States, 434 F.3d

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1185, 1187 (9th Cir. 2006). Additionally, Theede fails to allege that he would
meet the exception for constitutional challenges or claims of violation of a clear
statutory mandate or prohibition. Id.
The district court did not abuse its discretion in denying Theede’s request for
injunctive relief because he failed to demonstrate a likelihood of success on the
merits. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20-21 (2008).
The district court did not abuse its discretion in denying Theede’s motions
for appointment of counsel because Theede did not demonstrate exceptional
circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (setting
forth standard of review and requiring “exceptional circumstances” for the
appointment of counsel). We likewise deny Theede’s motion in this court for
appointment of counsel. Id.
Theede’s remaining contentions are unpersuasive.
AFFIRMED.

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