Marilyn Bryant v. Bnsf Railway Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE 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
D.C. No. 2:16-cv-01267-DSF-JEM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted May 29, 2018 **
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.
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.
* 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 31 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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).

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All pending motions are denied.
AFFIRMED.

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