Harold Wilborn v. Alejandro Mayorkas ( 2022 )

NOT FOR PUBLICATION FILED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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