Harold L. Wilborn v. Jeh Johnson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAROLD L. WILBORN,
Plaintiff - Appellant,
v.
JEH JOHNSON,* in his official capacity as
Secretary, Department of Homeland
Security (Customs and Border Protection),
Agency,
Defendant - Appellee.
No. 13-55674
D.C. No. 3:11-cv-02252-IEG-RBB
MEMORANDUM**
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, District Judge, Presiding
Submitted January 21, 2015***
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Harold L. Wilborn appeals pro se from the district court’s judgment in his
FILED
JAN 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* Jeh Johnson has been substituted for his predecessor, Janet A.
Napolitano, as Secretary of Homeland Security under Fed. R. App. P. 43(c)(2).
** 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).

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action alleging violations of the Uniformed Services Employment and
Reemployment Rights Act (“USERRA”), Title VII, and the First and Fifth
Amendments. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (dismissal
under Fed. R. Civ. P. 12(b)(6)); Sommatino v. United States, 255 F.3d 704, 707
(9th Cir. 2001) (subject matter jurisdiction). We affirm.
The district court properly dismissed Wilborn’s USERRA claim concerning
the U.S. Border Patrol’s alleged failure to promote him and his 5-day suspension
because it lacked jurisdiction. See 38 U.S.C. § 4324 (USERRA claims against the
federal government must be presented to Merit Systems Protection Board
(“MSPB”), with right to appeal to Federal Circuit); see also 5 U.S.C. § 7703(b)
(with limited exception, MSPB decisions are appealable only to the Federal
Circuit). Contrary to Wilborn’s contention, the district court did not have
jurisdiction on the basis that he brought a mixed case.
The district court properly dismissed Wilborn’s Title VII claim because
Wilborn failed to comply with the administrative exhaustion requirement. See
Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039,
1043 (9th Cir. 2009) (explaining Title VII exhaustion requirements for federal
employees).
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The district court properly dismissed Wilborn’s First and Fifth Amendment
claims because the Civil Service Reform Act precludes him from “seeking
injunctive relief for his asserted constitutional injury just as it precludes him from
bringing a Bivens action for damages.” Saul v. United States, 928 F.2d 829, 843
(9th Cir. 1991).
The district court did not abuse its discretion in refusing to transfer
Wilborn’s action to the Federal Circuit because Wilborn did not file his complaint
within 60 days of the MSPB’s decision. See 5 U.S.C. § 7703(b)(1)(A) (a petition
to review an MSPB decision must be filed within 60 days of that decision); Hays v.
Postmaster Gen. of U.S., 868 F.2d 328, 331 (9th Cir. 1989) (per curiam) (standard
of review).
We reject Wilborn’s contentions concerning standing and the alleged
violation of his right to a jury trial.
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. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED.
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