Anthony L. Manning v. Department of Veterans Affairs; United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY L. MANNING,
Plaintiff-Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS; UNITED STATES OF
AMERICA,
Defendants-Appellees.
No. 21-15501
D.C. No. 2:19-cv-00494-TLN-AC
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted May 17, 2022**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Anthony L. Manning appeals pro se from the district court’s judgment in his
Federal Tort Claims Act (“FTCA”) action. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo. Sandoval v. County of Sonoma, 912 F.3d 509, 515
* 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
MAY 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(9th Cir. 2018) (summary judgment); Warren v. Fox Fam. Worldwide, Inc., 328
F.3d 1136, 1139 (9th Cir. 2003) (dismissal for lack of jurisdiction under Federal
Rule of Civil Procedure 12(b)(1)). We affirm.
The district court properly granted summary judgment on Manning’s claim
alleging negligence in the treatment of his mental health issues because Manning
failed to raise a genuine dispute of material fact as to whether the medical
treatment he received breached the applicable standard of care. See Conrad v.
United States, 447 F.3d 760, 767 (9th Cir. 2006) (FTCA actions are governed by
the substantive law of the state in which the alleged tort occurred); Powell v.
Kleinman, 59 Cal. Rptr. 3d 618, 626 (Ct. App. 2007) (setting forth elements of a
medical malpractice claim and explaining that the plaintiff must present expert
evidence to establish “that the defendant breached his or her duty to the plaintiff
and that the breach caused and that the breach caused the injury to the plaintiff”).
The district court properly dismissed for lack of subject matter jurisdiction
under the Veterans’ Judicial Review Act (“VJRA”) Manning’s claim alleging that
the Department of Veterans Affairs wrongfully denied him benefits for sleep apnea
and failed to schedule an appointment with a pulmonary specialist. See 38 U.S.C.
§ 511(a); Tunac v. United States, 897 F.3d 1197, 1202, 1205-06 (9th Cir. 2018)
(explaining that the VJRA precludes district court jurisdiction over claims relating
to or affecting the provision of benefits to veterans, including claims alleging

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“administrative negligence in scheduling appointments”). The district court did
not abuse its discretion by dismissing this claim without leave to amend because
further amendment would be futile. See Cervantes v. Countrywide Home Loans,
Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (dismissal without leave to amend is
proper if amendment would be futile).
The district court did not abuse its discretion by denying Manning’s request
to reopen discovery and “revert” to the pre-discovery phase of the action because
Manning failed to raise any concerns about the court closures caused by the
COVID-19 pandemic until his objections to the magistrate judge’s findings and
recommendation—nearly a year after the court closures went into effect. See Fed.
R. Civ. P. 16(b)(4); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609-10
(9th Cir. 1992) (setting forth standard of review and explaining that Rule 16(b)’s
“good cause” standard primarily considers the diligence of the party seeking the
modification of the court’s scheduling order).
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. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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