                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 19 2015

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



                            FOR THE NINTH CIRCUIT


ROMEO R. DE FERNANDEZ; et al.,                   No. 13-15526

              Plaintiffs - Appellants,           D.C. No. 4:10-cv-02468-SBA

 v.
                                                 MEMORANDUM*
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS; et al.,

              Defendants - Appellees.


                  Appeal from the United States District Court
                     for the Northern District of California
                 Saundra B. Armstrong, District Judge, Presiding

                             Submitted May 14, 2015**
                              San Francisco, California

Before: O’SCANNLAIN and IKUTA, Circuit Judges and BURNS,*** District
Judge.




        *
             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).
        ***
             The Honorable Larry A. Burns, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
      Appellants Romeo R. De Fernandez, Ciriaco C. dela Cruz, Valeriano C.

Marcelino, and the Veterans Equity Center appeal the district court's dismissal of

their claims for lack of jurisdiction. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      Under provisions of the American Recovery and Reinvestment Act of 2009

establishing the Filipino Veterans Equity Compensation Fund, certain Filipino

veterans of World War II, or their surviving spouses, are entitled to one-time

payments. Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200–02 (2009). The

Department of Veterans Affairs (VA) requires applicants to prove they are entitled

to benefits, and specifies what evidence is acceptable. Id. at § 1002(c)(1).

Appellants brought this putative class action on behalf of themselves and certain

other Filipino veterans of World War II, arguing that the evidentiary requirements

violate their First and Fifth Amendment rights.

      The Veterans' Judicial Review Act of 1988 provides that most benefits

decisions of the Secretary of Veterans Affairs are final and unreviewable by district

courts. 38 U.S.C. § 511(a). In Recinto v. U.S. Dept. of Veterans Affairs, 706 F.3d

1171 (9th Cir.), cert. denied, 134 S. Ct. 83 (2013), we held that § 511 forecloses

judicial review of the VA's evidentiary requirements, where addressing the




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constitutionality of the VA's procedures would require us to inquire into at least

some individual cases. Id. at 1176.

      Appellants concede they are raising the same types of claims as were raised

in Recinto (Appellants' Br. at 9, 16), and we agree. They have asked us to

reconsider Recinto in light of McNary v. Haitian Refugee Center, 498 U.S. 479

(1991). (Id.) We lack the authority to do this, however. See Miller v. Gammie, 335

F.3d 889, 900 (9th Cir. 2003) (en banc) (holding that one three-judge panel cannot

overrule the decision of an earlier three-judge panel, in the absence of clearly

irreconcilable intervening higher authority).

      The arguments Appellants raise for the first time in their reply brief are

waived, see Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (holding that

arguments not raised in the opening brief are waived), and in any event lack merit.

      Because Recinto was binding on the district court, and is binding on us, we

hold that the district court properly dismissed Appellants' claims without leave to

amend.

      AFFIRMED.




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