                                                                              FILED
                             NOT FOR PUBLICATION                               MAR 06 2012

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



WAYNE H. FORD,                                    No. 10-17827

               Plaintiff - Appellant,             D.C. No. 1:10-cv-01384-AWI-JLT

  v.
                                                  MEMORANDUM *
ERIC K. SHINSEKI, Secretary of
Veterans Affairs,

               Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                     Anthony W. Ishii, Chief Judge, Presiding

                            Submitted February 21, 2012 **

Before:        FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

       Wayne H. Ford appeals pro se from the district court’s judgment dismissing

for lack of subject matter jurisdiction his action alleging that the Secretary of

Veterans Affairs (“VA”) violated his constitutional rights by failing to pay him


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
interest on an award of retroactive veterans’ disability benefits. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Coyle v. P.T. Garuda

Indonesia, 363 F.3d 979, 984 n.7 (9th Cir. 2004) (subject matter jurisdiction

dismissal); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (28

U.S.C. § 1915(e) dismissal). We affirm in part, vacate in part, and remand.

      The district court properly dismissed Ford’s action because the Board of

Veterans’ Appeals has exclusive jurisdiction over the VA’s decision regarding the

provision of veterans’ benefits, even when couched as a constitutional claim. See

38 U.S.C. § 511(a) (VA decides all issues under any law affecting the provision of

benefits to veterans); id. § 7104(a) (Board of Veterans Appeals has exclusive

jurisdiction over VA’s benefits decisions); Tietjen v. U.S. Veterans Admin., 884

F.2d 514, 515 (9th Cir. 1989) (order) (affirming dismissal for lack of subject

matter jurisdiction where veteran’s due process claim related to reduced disability

benefits because the substance of the claim was the allocation of veterans benefits,

not a challenge to the constitutionality of legislation governing VA benefits).

      However, Ford’s claims should have been dismissed without prejudice. See

Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004). We

therefore affirm dismissal for lack of subject matter jurisdiction, but remand with

instructions for the district court to enter judgment of dismissal without prejudice.


                                           2                                      10-17827
      Ford’s remaining contentions are unpersuasive.

      Ford’s motion to submit additional opinions is construed as a citation of

supplemental authorities under Fed. R. App. P. 28(j), and the cases are duly noted.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




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