                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 9 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

RASHID EL MALIK,                                No.    18-55322

                Plaintiff-Appellant,            D.C. No.
                                                2:17-cv-05085-FMO-AS
 v.

UNITED STATES OF AMERICA,                       MEMORANDUM*

                Defendant-Appellee.

                    Appeal from the United States District Court
                       for the Central District of California
                   Fernando M. Olguin, District Judge, Presiding

                            Submitted March 31, 2020**
                               Pasadena, California

Before: BEA and BADE, Circuit Judges, and McCALLA,*** District Judge.

      Rashid El Malik, a disabled veteran of the U.S. Army, appeals from the

district court’s dismissal of his Federal Tort Claims Act (“FTCA”) action pursuant



      *
             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 Honorable Jon P. McCalla, United States District Judge for the
Western District of Tennessee, sitting by designation.
to Federal Rule of Civil Procedure 12(b)(1). El Malik proceeded pro se in the

district court and we appointed counsel on appeal. We have jurisdiction under 28

U.S.C. § 1291. We review de novo, Warren v. Fox Family Worldwide, Inc., 328

F.3d 1136, 1139 (9th Cir. 2003), and affirm.

1.    The district court properly dismissed El Malik’s FTCA claim for lack of

subject matter jurisdiction pursuant to the Veterans’ Judicial Review Act

(“VJRA”). The VJRA jurisdictionally barred El Malik’s claims. See 38 U.S.C.

§ 511(a). As alleged in the second amended complaint, El Malik’s claims were

premised on delays of the Department of Veterans Affairs (“VA”) in processing

his claims for home-adaptation benefits and in providing those benefits. Resolving

El Malik’s claims would require the district court to “determine whether the VA

acted properly in handling [El Malik’s] request for benefits,” and thus, § 511(a)

bars jurisdiction over those claims. Tunac v. United States, 897 F.3d 1197, 1202

(9th Cir. 2018) (quoting Veterans for Common Sense v. Shinseki, 678 F.3d 1013,

1025 (9th Cir. 2012)).

2.    El Malik contends on appeal that the district court erred in dismissing his

FTCA claim without leave to amend because, liberally construed, the operative

complaint alleges the VA negligently supervised a third-party contractor who

performed home-adaption work. No fair reading of the complaint reflects any

negligent-supervision theory of liability. Nor did El Malik oppose dismissal in the


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district court on the grounds that the operative complaint alleged such a negligence

theory. Because El Malik’s opposition to the government’s motion to dismiss did

not argue that dismissal was unwarranted because he meant to allege a negligent-

supervision claim, any such argument is forfeited. See Smith v. Marsh, 194 F.3d

1045, 1052 (9th Cir. 1999) (“As a general rule, we will not consider arguments that

are raised for the first time on appeal.”).

AFFIRMED.




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