                                                                       FILED
                           NOT FOR PUBLICATION                         MAY 31 2018
                                                                   MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                   U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

MARILYN BRYANT,                                 No.    16-56333

                Plaintiff-Appellant,            D.C. No. 2:16-cv-01267-DSF-JEM

 v.

BNSF RAILWAY COMPANY AND                        MEMORANDUM*
BURLINGTON NORTHERN SANTA FE
CORPORATION, Successor to Atchison,
Topeka and Santa Fe Railway and Santa Fe
Pacific Corporation; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                    Dale S. Fischer, District Judge, Presiding

                             Submitted May 29, 2018**

Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.

      Marilyn Bryant appeals pro se from the district court’s judgment dismissing

for lack of subject matter jurisdiction her action alleging state law claims. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo, Ass’n of Am. Med.

      *
             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).
Colleges v. United States, 217 F.3d 770, 778 (9th Cir. 2000), and we affirm.

       The district court properly dismissed Bryant’s action for lack of subject

matter jurisdiction because Bryant failed to exhaust her claim as required under the

Railroad Retirement Act. 45 U.S.C. § 355(b) (“The Board is authorized and

directed to make findings of fact with respect to any claim for benefits and to make

decisions as to the right of any claimant to benefits.”); id. § 355(c)(7) (“Any issue

determinable pursuant to this subsection and subsection (f) of this section shall not

be determined in any manner other than pursuant to this subsection and subsection

(f) of this section.”).

       The district court properly dismissed without leave to amend because

amendment would have been futile. See Am. W. Airlines, Inc. v. GPA Grp., Ltd.,

877 F.2d 793, 801 (9th Cir. 1989) (holding that the district court properly

determined amendment was futile because allegations failed to establish

jurisdiction).

       Contrary to Bryant’s contention, the district court did not assess costs.

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

in the opening brief, or arguments and allegations raised for the first time on

appeal. Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

                                           2                                       16-56333
All pending motions are denied.

AFFIRMED.




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