                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 January 15, 2016
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 ANGELA NAILS,

          Plaintiff - Appellant,
                                                         No. 15-3138
 v.                                         (D.C. No. 5:15-CV-04858-RDR-KGS)
                                                          (D. Kan.)
 CERITA SLUSHER, employee of the
 Department of Veteran’s Affairs,

          Defendant - Appellee.


                              ORDER AND JUDGMENT *


Before KELLY, LUCERO, and McHUGH, Circuit Judges. **


      Plaintiff-Appellant Angela Nails appeals from the district court’s order

dismissing her complaint against the defendant Cerita Slusher for lack of subject

matter jurisdiction and for failure to state a claim. Nails v. Slusher, No. 15-cv-

04858-RDR-KGS (D. Kan. May 20, 2015). Our jurisdiction arises under 28

U.S.C. § 1291, and we affirm.

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
         Ms. Nails filed the underlying damages action in Kansas state court against

Veteran’s Affairs (VA) employee Cerita Slusher for terminating her VA health

care benefits. Ms. Slusher determined that Ms. Nails had not served the requisite

number of months in the military to be eligible for such benefits. On behalf of

Ms. Slusher, the United States removed the case to federal court and filed a

motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ.

P. 12(b)(1), or in the alternative, for failure to state a claim pursuant to Fed. R.

Civ. P. 12(b)(6). The district court granted the defendant’s motion to dismiss,

finding that it lacked subject matter jurisdiction because of sovereign immunity

and because of the substance of Ms. Nails’ allegations. See Order, Nails v.

Slusher, No. 15-cv-04858-RDR-KGS (D. Kan. May 20, 2015), ECF No. 17. The

court also found that Ms. Nails’ complaint failed to state a claim. Id.

         We review de novo a district court’s dismissal for lack of subject matter

jurisdiction. Montoya v. Chao, 296 F.3d 952, 954–55 (10th Cir. 2002). We find

the district court correctly dismissed Ms. Nails’ complaint. Ms. Nails’ claims

challenge the VA’s denial of benefits, and therefore, are outside the jurisdiction

of the district court. See 38 U.S.C. § 511(a); see also Weaver v. United States, 98

F.3d 518, 519 (10th Cir. 1996). Likewise, the district court would not have

jurisdiction to consider a Privacy Act claim that ultimately concerns the propriety

of the denial of benefits. Rosen v. Walters, 719 F.2d 1422, 1424–25 (9th Cir.

1983).

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      Accordingly, we DISMISS this appeal for lack of jurisdiction and DENY

Ms. Nails’ request to proceed in forma pauperis.


                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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