M.S. v. Dave Hoon

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 18, 2019
• Docket: 18-71918
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 18 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

M. S., No. 18-71918

Petitioner, DHS No. 17B00060

v. MEMORANDUM* DAVE S.B. HOON, John Wayne Cancer Institute; OFFICE OF CHIEF ADMINISTRATIVE HEARING OFFICER,

Respondents.

On Petition for Review of an Order of the Department of Homeland Security

Submitted June 11, 2019**

Before: CANBY, GRABER, and MURGUIA, Circuit Judges.

M.S. petitions pro se for review of the Office of the Chief Administrative

Hearing Officer’s (“OCAHO”) order dismissing her complaint alleging national

origin and citizenship status discrimination, retaliation, and misuse of documents

in violation of the Immigration Reform and Control Act, 8 U.S.C. § 1324b. We

* 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). have jurisdiction under 8 U.S.C. § 1324b(i)(1). We review de novo the

Administrative Law Judge’s (“ALJ”) conclusions of law, and for substantial

evidence the ALJ’s findings of fact. Mester Mfg. Co. v. INS, 879 F.2d 561, 565

(9th Cir. 1989). We deny the petition for review.

The ALJ properly dismissed M.S.’s complaint because M.S. failed to file a

timely charge with the Department of Justice’s Immigrant and Employee Rights

Section before filing her complaint with OCAHO. See 8 U.S.C. § 1324b(d)(3); cf.

Dakarapu v. Arvy Tech, Inc., 13 OCAHO 1308, *4 (Feb. 16, 2018) (emails must

contain sufficient information to put agency on notice of allegations of 8 U.S.C.

§ 1324b discrimination to constitute a timely charge under 8 U.S.C.

§ 1324b(d)(3)). We do not consider any argument or evidence M.S. failed to raise

or include in her response to the order to show cause issued by the ALJ regarding

the timeliness of M.S.’s complaint. We reject as unpersuasive M.S.’s equitable

tolling argument. See Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (“A

petitioner seeking equitable tolling bears the heavy burden of showing . . . some

extraordinary circumstance stood in [her] way.” (internal quotation marks

omitted)).

The district court did not abuse its discretion in denying M.S.’s motion for

reconsideration because M.S. failed to establish any basis for such relief. See Sch.

Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir.

2 18-71918 1993) (standard of review and setting forth grounds for reconsideration).

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).

We reject as unpersuasive M.S.’s contentions regarding disqualifying

respondent Hoon’s counsel, error by the ALJ, the False Claims Act, and fiduciary

duty.

M.S.’s motion to treat her correspondence filed at Docket Entry No. 44 as

her reply brief (Docket Entry No. 53) is granted. The brief has been filed and

considered.

M.S.’s correspondence filed at Docket Entry No. 54 is construed as a motion

to strike respondents’ excerpts of record and is denied.

PETITION FOR REVIEW DENIED.

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