Marvin Stewart v. Alejandro Mayorkas

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 23, 2023
• Docket: 21-56354
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 23 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARVIN L. STEWART, LL.B, MBA-PPM, No. 21-56354 J.D, D.C. No. 2:21-cv-03605-DSF-E Plaintiff-Appellant,

v. MEMORANDUM*

ALEJANDRO N. MAYORKAS, in his official capacity as Secretary of The U.S. Department of Homeland Security; JULIA ANDREW, in her official capacity as Chair of The Board for Correction of Military Records United States Coast Guard,

Defendants-Appellees.

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

Submitted February 14, 2023**

Before: FERNANDEZ, FRIEDLAND, and H.A. THOMAS, Circuit Judges.

Marvin L. Stewart appeals pro se from the district court’s judgment

* 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). dismissing his action alleging that the Board for Correction of Military Records of

the United States Coast Guard (“BCMR”) violated the Administrative Procedure

Act (“APA”) by declining to docket his request for reconsideration of BCMR

Docket No. 176-95. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Mpoyo v. Litton

Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005). We affirm.

The district court properly dismissed Stewart’s action on the basis of claim

preclusion because Stewart’s claims arise out of the same transactional nucleus of

operative fact as Stewart’s claims in his prior APA action against the same parties

or their privies that resulted in a final judgment on the merits. See id. at 987-88

(setting forth elements of res judicata and explaining this court’s transaction test

used to determine whether two suits share a common nucleus of operative fact).

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

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

AFFIRMED.

2 21-56354