                                                                            FILED
                            NOT FOR PUBLICATION                             AUG 25 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


LARRY TEVIS; NANCY TEVIS,                        No. 15-16962

               Plaintiffs-Appellants,            D.C. No. 2:15-cv-00972-TLN-
                                                 GGH
 v.

CALIFORNIA DEPARTMENT OF                         MEMORANDUM*
VETERANS AFFAIRS,

               Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                     Troy L. Nunley, District Judge, Presiding

                            Submitted August 16, 2016**

Before:        O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.

      Nancy and Larry Tevis appeal pro se from the district court’s judgment

dismissing their action for lack of subject matter jurisdiction. We have jurisdiction

under 28 U.S.C. § 1291. We affirm.


          *
             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).
      The district court dismissed plaintiffs’ action for lack of subject matter

jurisdiction, finding that plaintiffs claim under 42 U.S.C. § 1983 was so

insubstantial and without merit as to not create subject matter jurisdiction under 28

U.S.C. § 1331. See Poulos v. Caesars World, Inc., 379 F.3d 654, 662 (9th Cir.

2004) (there is no jurisdiction where a claim “appear[s] to be immaterial and made

solely for the purpose of obtaining jurisdiction” or is “wholly insubstantial and

frivolous” (citation and internal quotation marks omitted)). The district court also

determined there was no basis for diversity jurisdiction under 28 U.S.C. § 1332.

      In their opening brief, plaintiffs fail to address how the district court erred in

making either ruling. As a result, they have waived their appeal of the dismissal

order. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal,

arguments not raised by a party in its opening brief are deemed waived.”); see also

Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture

arguments for an appellant, and a bare assertion does not preserve a claim. . . .”).

      Plaintiffs’ March 7, 2016 request to exclude appellees from being heard at

oral argument is denied as moot.

      AFFIRMED.




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