Marvin L. Stewart, Ll.b, Mba-Ppm, J.d v. Alejandro N. Mayorkas

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARVIN L. STEWART, LL.B, MBA-PPM,
J.D,
Plaintiff-Appellant,
v.
ALEJANDRO N. MAYORKAS, in his
official capacity as Secretary of The U.S.
Department of Homeland Security; JULIA
ANDREW, in her official capacity as Chair
of The Board for Correction of Military
Records United States Coast Guard,
Defendants-Appellees.
No. 21-56354
D.C. No. 2:21-cv-03605-DSF-E
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted February 14, 2023**
Before: FERNANDEZ, FRIEDLAND, and H.A. THOMAS, Circuit Judges.
Marvin L. Stewart appeals pro se from the district court’s judgment
* 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).
FILED
FEB 23 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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dismissing his action alleging that the Board for Correction of Military Records of
the United States Coast Guard (“BCMR”) violated the Administrative Procedure
Act (“APA”) by declining to docket his request for reconsideration of BCMR
Docket No. 176-95. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Mpoyo v. Litton
Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005). We affirm.
The district court properly dismissed Stewart’s action on the basis of claim
preclusion because Stewart’s claims arise out of the same transactional nucleus of
operative fact as Stewart’s claims in his prior APA action against the same parties
or their privies that resulted in a final judgment on the merits. See id. at 987-88
(setting forth elements of res judicata and explaining this court’s transaction test
used to determine whether two suits share a common nucleus of operative fact).
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
or in the reply brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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