Physicians Independent Laboratory Inc. v. Thompson

52 F. App'x 84

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 6, 2002
• Docket: No. 01-56027; D.C. No. CV-99-12209-SVW
• Status: Published

Opinion

MEMORANDUM

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We affirm the decision that the district court lacked jurisdiction for the reasons stated by the district court.

Appellants further and belatedly argue that the district court should have transferred the claims pursuant to 28 U.S.C. § 1631 or that we should transfer the claims to our circuit for direct consideration. Usually, we do not consider an issue not raised in the opening brief. Dilley v. Gunn, 64 F.3d 1365, 1367 (9th Cir.1995) (issues not raised in the opening brief usually are deemed waived). The transfer issue was first raised in appellants’ reply brief, and we here decline to exercise our discretion to address the issue, which is considered waived.¹

AFFIRMED

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . Our conclusion that the transfer issue is waived makes it unnecessary for us to address the question whether the plaintiffs’ second amended complaint, which asserts Bivens claims against individual defendants, is capable of being treated by this com! as a petition for review of agency action.