                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           DEC 24 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BART D. KIMBER,                                  No. 13-56632

              Plaintiff - Appellant,             D.C. No. 3:13-cv-00424-JM-
                                                 WMC
 v.
                                                 MEMORANDUM*
RAY MABUS, Secretary of the Navy;
DEPARTMENT OF THE NAVY;
FELICIA BAKER, Marine Corp Base
Camp Pendleton Injury Compensation
Specialist, in her individual and official
capacity,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Southern District of California
                     Jeffrey T. Miller, District Judge, Presiding

                     Argued and Submitted December 10, 2015
                               Pasadena, California

Before: REINHARDT, LUCERO,** and NGUYEN, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Carlos F. Lucero, Circuit Judge for the U.S. Court of
Appeals for the Tenth Circuit, sitting by designation.
      Bart Kimber appeals the district court’s dismissal of his complaint for lack

of jurisdiction. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

      Kimber, a former employee of the Department of the Navy, alleges that

defendants refused to cooperate with a Department of Labor (“DOL”) investigation

into his claim for benefits under the Federal Employees’ Compensation Act

(“FECA”). He claims that he was wrongfully denied FECA benefits as a result of

this misconduct.

      We review a dismissal for lack of jurisdiction de novo. Bramwell v. U.S.

Bureau of Prisons, 348 F.3d 804, 806 (9th Cir. 2003). A decision by DOL denying

FECA benefits is “not subject to review by another official of the United States or

by a court by mandamus or otherwise.” 5 U.S.C. § 8128(b). Thus, “courts do not

have jurisdiction to review FECA claims challenging the merits of benefit

determinations.” Markham v. United States, 434 F.3d 1185, 1187 (9th Cir. 2006).

This jurisdictional bar extends to collateral attacks on a benefits decision. See

Vilanova v. United States, 851 F.2d 1, 6 n.20 (1st Cir. 1988).

      Because Kimber’s claims rest on his allegation that DOL wrongly denied

him benefits, we agree with the district court that they constitute impermissible

collateral attacks. This court has recognized that we “retain jurisdiction to consider

constitutional challenges” notwithstanding § 8128(b). Markham, 434 F.3d at 1187.


                                           2
Although Kimber pled a due process claim, we conclude that it is “wholly

insubstantial, rendering the federal courts without subject matter jurisdiction.” Id.

at 1188.

      AFFIRMED.1




      1
        Kimber has apprised this court of further administrative proceedings that
have occurred since the district court entered judgment. These proceedings do not
affect our analysis because “[s]ubject matter jurisdiction must exist as of the time
the action is commenced.” Morongo Band of Mission Indians v. Cal. State Bd. of
Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988).

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