Harold Wilborn v. Alejandro Mayorkas

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 26, 2022
• Docket: 21-56391
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 26 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HAROLD L. WILBORN, No. 21-56391

Plaintiff-Appellant, D.C. No. 3:20-cv-01981-LAB-BGS

v. MEMORANDUM* ALEJANDRO N. MAYORKAS,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted August 17, 2022**

Before: S.R. THOMAS, PAEZ, and LEE, Circuit Judges.

Harold L. Wilborn appeals pro se from the district court’s judgment

dismissing his employment action alleging various constitutional and Title VII

violations. 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

* 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). 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 constitutional claims as

barred by sovereign immunity and 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); Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th

Cir. 1985) (stating that the United States is immune from suit unless it has

expressly waived its sovereign immunity, and “sovereign immunity cannot be

avoided by naming officers and employees of the United States as defendants”).

The district court properly dismissed Wilborn’s Title VII retaliation claim

because Wilborn failed to allege facts sufficient to show there was a causal

relationship between any protected activity and a materially adverse employment

action. See Vasquez v. County of Los Angeles, 349 F.3d 634, 642, 646 (9th Cir.

2003) (setting forth elements of Title VII retaliation claim and explaining what

constitutes an adverse employment action).

The district court did not abuse its discretion by denying Wilborn’s request

for leave to file a sur-reply opposing defendant’s motion to dismiss because

Wilborn did not raise any new evidence or new arguments. See Preminger v.

Peake, 552 F.3d 757, 769 n.11 (9th Cir. 2008) (standard of review for a district

2 21-56391 court’s decisions concerning its management of litigation).

We reject as unsupported by the record Wilborn’s contentions that the

district court was biased against him and that he was denied due process.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments or allegations raised for the first time on appeal.

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

AFFIRMED.

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