                                                                           FILED
                            NOT FOR PUBLICATION                            MAR 03 2014

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



                             FOR THE NINTH CIRCUIT


DAVID O’BEIRN,                                   No. 12-35576

               Plaintiff - Appellant,            D.C. No. 2:11-cv-00345-RSL

  v.
                                                 MEMORANDUM*
DEPARTMENT OF VETERANS
AFFAIRS,

               Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert S. Lasnik, District Judge, Presiding

                            Submitted February 18, 2014**

Before:        ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.

       David O’Beirn appeals pro se from the district court’s judgment dismissing

his action concerning his veterans’ benefits. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo the existence of subject matter jurisdiction. Schnabel


          *
             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).
v. Lui, 302 F.3d 1023, 1029 (9th Cir. 2002). We may affirm on any ground

supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.

2008). We affirm.

      Dismissal of O’Beirn’s action was proper because the district court lacked

subject matter jurisdiction over O’Beirn’s claims relating to or affecting veterans’

benefits decisions. See 38 U.S.C. § 511(a); Veterans for Common Sense v.

Shinseki, 678 F.3d 1013, 1023-25 (9th Cir. 2012) (en banc) (Veterans’ Judicial

Review Act precludes district court jurisdiction over claims relating to or affecting

veterans’ benefits decisions, “even if the veteran dresses his claim as a

constitutional challenge, and even where the veteran has challenged some other

wrongful conduct that, although unrelated to the [Department of Veterans Affair’s]

ultimate decision on his claim, affected his or her benefits proceeding” (citations

omitted)). We treat the judgment as a dismissal without prejudice. See Kelly v.

Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004) (dismissals for lack

of subject matter jurisdiction should be without prejudice).

      The district court did not abuse its discretion by denying O’Beirn’s motions

for appointment of counsel because O’Beirn failed to demonstrate circumstances

that would warrant appointment of counsel. See Johnson v. U.S. Treasury Dep’t,

27 F.3d 415, 416-17 (9th Cir. 1994) (per curiam) (standard of review and factors


                                           2                                   12-35576
relevant to appointment of counsel).

      O’Beirn’s contentions that the district court erred by denying him oral

argument and evidentiary hearings are unpersuasive.

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)

(per curiam).

      O’Beirn’s request to sanction defendant, set forth in his reply brief, is

denied.

      AFFIRMED.




                                          3                                       12-35576
