BRYANT v. BNSF RAILWAY COMPANY (2018)

United States Court of Appeals, Ninth Circuit.

Marilyn BRYANT, Plaintiff-Appellant, v. BNSF RAILWAY COMPANY and Burlington Northern Santa Fe Corporation, Successor to Atchison, Topeka and Santa Fe Railway and Santa Fe Pacific Corporation; et al., Defendants-Appellees.

No. 16-56333

Decided: May 31, 2018

Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.

Marilyn Bryant, Pro Se Kimberly C. Carter, Esquire, Kathleen Jenny Choi, Esquire, Attorney, Johnnie Alphonso James, Esquire, Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Los Angeles, CA, for Defendants-Appellees BNSF Railway Company and Burlington Northern Santa Fe Corporation, Berkshire Hathaway, Inc., Santa Fe Terminal Services, Inc., Warren E. Buffet, Laurence E. Garrett, Richard E. Weichert, Wilfred J. Theisen, Edwin R. Brunmeier Kathleen Jenny Choi, Esquire, Attorney, Johnnie Alphonso James, Esquire, Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Los Angeles, CA, for Defendant-Appellees Stephen J. Morrow Kimberly C. Carter, Esquire, Kathleen Jenny Choi, Esquire, Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Los Angeles, CA, for Defendants-Appellees Scott J. Rynearson, Burlington Northern Santa Fe, LLC Vikram Sohal, Esquire, Nemecek & Cole, LLP, Sherman Oaks, CA, for Defendant-Appellee Stephen C. Lambert and Hopkins and Sutter

MEMORANDUM **

Marilyn Bryant appeals pro se from the district court’s judgment dismissing for lack of subject matter jurisdiction her action alleging state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Ass’n of Am. Med. Colleges v. United States, 217 F.3d 770, 778 (9th Cir. 2000), and we affirm.

The district court properly dismissed Bryant’s action for lack of subject matter jurisdiction because Bryant failed to exhaust her claim as required under the Railroad Retirement Act. 45 U.S.C. § 355(b) (“The Board is authorized and directed to make findings of fact with respect to any claim for benefits and to make decisions as to the right of any claimant to benefits.”); id. § 355(c)(7) (“Any issue determinable pursuant to this subsection and subsection (f) of this section shall not be determined in any manner other than pursuant to this subsection and subsection (f) of this section.”).

The district court properly dismissed without leave to amend because amendment would have been futile. See Am. W. Airlines, Inc. v. GPA Grp., Ltd., 877 F.2d 793, 801 (9th Cir. 1989) (holding that the district court properly determined amendment was futile because allegations failed to establish jurisdiction).

Contrary to Bryant’s contention, the district court did not assess costs.

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. Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

All pending motions are denied.

AFFIRMED.

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