NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 28 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARY OWEN KENDALL, No. 20-35433

Plaintiff-Appellant, D.C. No. 1:20-cv-00140-BLW

v.

MEMORANDUM*

UNITED STATES OF AMERICA; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, District Judge, Presiding

Submitted April 20, 2021**

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

Gary Owen Kendall 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. Bishop Paiute Tribe v. Inyo County,

863 F.3d 1144, 1151 (9th Cir. 2017) (dismissal for lack of subject matter

* 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). jurisdiction); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (dismissal

under 28 U.S.C. § 1915(e)(2)(B)(ii)). We affirm.

The district court properly dismissed Kendall’s action for lack of subject

matter jurisdiction because the United States Courts of Appeals for Veterans

Claims and the Federal Circuit have exclusive jurisdiction over questions that

relate to benefits administered by the Veterans Administration. See 38 U.S.C.

§ 511(a); Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1022-25 (9th

Cir. 2012) (en banc) (the Veterans’ Judicial Review Act generally 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)). However, a dismissal

for lack of subject matter jurisdiction should be without prejudice. Kelly v.

Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004). We affirm the

dismissal, and instruct the district court to amend the judgment to reflect that the

dismissal of this action is without prejudice.

We reject Kendall’s contention that the denial of his petition for ex parte

injunction was unconstitutional as unpersuasive.

We do not consider allegations raised for the first time on appeal. See

2 20-35433 Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED; REMANDED with instructions to amend the judgment.

3 20-35433