Bart D. Kimber v. RAY MABUS, Secretary of the Navy

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BART D. KIMBER,
Plaintiff - Appellant,
v.
RAY MABUS, Secretary of the Navy;
DEPARTMENT OF THE NAVY;
FELICIA BAKER, Marine Corp Base
Camp Pendleton Injury Compensation
Specialist, in her individual and official
capacity,
Defendants - Appellees.
No. 13-56632
D.C. No. 3:13-cv-00424-JM-
WMC
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted December 10, 2015
Pasadena, California
Before: REINHARDT, LUCERO,** and NGUYEN, Circuit Judges.
FILED
DEC 24 2015
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 Honorable Carlos F. Lucero, Circuit Judge for the U.S. Court of
Appeals for the Tenth Circuit, sitting by designation.

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Bart Kimber appeals the district court’s dismissal of his complaint for lack
of jurisdiction. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Kimber, a former employee of the Department of the Navy, alleges that
defendants refused to cooperate with a Department of Labor (“DOL”) investigation
into his claim for benefits under the Federal Employees’ Compensation Act
(“FECA”). He claims that he was wrongfully denied FECA benefits as a result of
this misconduct.
We review a dismissal for lack of jurisdiction de novo. Bramwell v. U.S.
Bureau of Prisons, 348 F.3d 804, 806 (9th Cir. 2003). A decision by DOL denying
FECA benefits is “not subject to review by another official of the United States or
by a court by mandamus or otherwise.” 5 U.S.C. § 8128(b). Thus, “courts do not
have jurisdiction to review FECA claims challenging the merits of benefit
determinations.” Markham v. United States, 434 F.3d 1185, 1187 (9th Cir. 2006).
This jurisdictional bar extends to collateral attacks on a benefits decision. See
Vilanova v. United States, 851 F.2d 1, 6 n.20 (1st Cir. 1988).
Because Kimber’s claims rest on his allegation that DOL wrongly denied
him benefits, we agree with the district court that they constitute impermissible
collateral attacks. This court has recognized that we “retain jurisdiction to consider
constitutional challenges” notwithstanding § 8128(b). Markham, 434 F.3d at 1187.
2

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Although Kimber pled a due process claim, we conclude that it is “wholly
insubstantial, rendering the federal courts without subject matter jurisdiction.” Id.
at 1188.
AFFIRMED.1
1 Kimber has apprised this court of further administrative proceedings that
have occurred since the district court entered judgment. These proceedings do not
affect our analysis because “[s]ubject matter jurisdiction must exist as of the time
the action is commenced.” Morongo Band of Mission Indians v. Cal. State Bd. of
Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988).
3

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