Michael Botelho v. ALEJANDRO N. MAYORKAS, U.S. Secretary of Homeland Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL BOTELHO,
Plaintiff-Appellant,
v.
ALEJANDRO N. MAYORKAS, U.S.
Secretary of Homeland Security,
Defendant-Appellee.
No. 21-17006
D.C. No.
1:18-cv-00032-ACK-WRP
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding
Submitted June 7, 2023**
Honolulu, Hawaii
Before: BADE, BUMATAY, and SANCHEZ, Circuit Judges.
Michael Botelho appeals the district court’s order dismissing his
Rehabilitation Act claim and its separate order granting summary judgment in
favor of the government on his Title VII claims. We have jurisdiction under 28
* 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).
FILED
JUN 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
U.S.C. § 1291. We review de novo. Davidson v. Kimberly-Clark Corp., 889 F.3d
956, 963 (9th Cir. 2018) (dismissal); Zetwick v. Cnty of Yolo, 850 F.3d 436, 440
(9th Cir. 2017) (summary judgment). We may affirm on any basis supported by the
record. Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 811 (9th Cir.
2004).
1. The district court properly dismissed the Rehabilitation Act claim
brought by Botelho, a TSA security screener, as preempted by the Aviation and
Transportation Security Act (“ATSA”). We recently joined several of our sister
circuits and numerous district courts in holding that Congress’s decision to vest the
TSA Administrator with broad authority over the TSA screening workforce and to
create and require specific physical qualifications for these positions conflicts with
the Rehabilitation Act’s broader and more general standards. Galaza v. Mayorkas,
61 F.4th 669, 670–71 (9th Cir. 2023). Accordingly, the ATSA preempts Botelho’s
Rehabilitation Act claim.1 See id.
2. Botelho forfeited his argument that the Whistleblower Protection
Enhancement Act (“WPEA”) overrides the ATSA’s preemption of Rehabilitation
Act claims brought by TSA security screeners because he presents this argument
for the first time on appeal. See Orr v. Plumb, 884 F.3d 923, 932 (9th Cir. 2018)
1 Although Galaza was decided after the briefing in this case closed, in April
2023, the government filed a letter under Fed. R. App. P. 28(j) arguing that Galaza
forecloses Botelho’s Rehabilitation Act and Botelho did not respond.

-- 2 of 4 --

3
(explaining that generally, “arguments raised for the first time on appeal . . . are
deemed forfeited” (citation omitted)). Botelho has not shown that an exception to
the presumption against considering newly raised arguments on appeal applies.
See AMA Multimedia, LLC v. Wanat, 970 F.3d 1201, 1214 (9th Cir. 2020). Even if
we considered the merits of his argument, Botelho was terminated on March 9,
2012 before the WPEA took effect, and our precedent establishes that the WPEA
does not apply retroactively. See Galaza, 61 F.4th at 673–74 (citations omitted).
3. The district court properly entered summary judgment for the
government on Botelho’s Title VII retaliation claim because he failed to establish a
genuine dispute of material fact on the causation element of his prima facie case.
See Bergene v. Salt River Project Agr. Imp. & Power Dist., 272 F.3d 1136, 1140–
41 (9th Cir. 2001) (setting forth prima facie case); see also Cohen v. Fred Meyer,
Inc., 686 F.2d 793, 796 (9th Cir. 1982) (“Essential to a causal link is evidence that
the employer was aware that the plaintiff had engaged in the protected activity.”).
Accordingly, we do not reach Botelho’s claims regarding pretext. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (discussing burden-shifting
analysis).
4. The district court properly entered summary judgment for the
government on Botelho’s hostile work environment claim because his conclusory
allegations are insufficient to establish a genuine dispute of material fact related to

-- 3 of 4 --

4
this claim. See Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Circ. 2008)
(discussing circumstances relevant to hostile work environment claims); Surrell v.
Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008) (“Conclusory
statements without factual support are insufficient to defeat a motion for summary
judgment.”).
AFFIRMED.

-- 4 of 4 --