Dennis Moore v. Susan Grundmann , 671 F. App'x 686 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENNIS MOORE, No. 15-55023
Plaintiff-Appellant, D.C. No. 3:11-cv-01570-GPC-
MDD
v.
SUSAN TSUI GRUNDMANN, Chairman MEMORANDUM*
U.S. Merit Systems Protection Board; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Dennis Moore appeals pro se from the district court’s judgment dismissing
his action arising from the Merit Systems Protection Board’s (“MSPB”) denial of
*
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). Thus, Moore’s request for
oral argument, set forth in his reply brief, is denied.
his request to reopen his appeal. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo. See Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011) (Fed.
R. Civ. P. 12(b)(6)); Crum v. Circus Circus Enters., 231 F.3d 1129, 1130 (9th Cir.
2000) (subject matter jurisdiction). We affirm.
The district court properly concluded that it lacked subject matter
jurisdiction to review the MSPB’s denial of Moore’s request to reopen his appeal.
See 5 U.S.C. § 7703 (“Any employee . . . aggrieved by a final order or decision of
the Merit Systems Protection Board may obtain judicial review of the order or
decision”); Haines v. Merit Sys. Prot. Bd., 44 F.3d 998, 1000 (Fed. Cir. 1995)
(holding that MSPB denials of repetitive informal requests to reopen did not
constitute final decisions that the court could review).
The district court properly dismissed Moore’s due process claims because
Moore failed to allege facts sufficient to state a plausible claim. See Wright v.
Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (setting forth elements of a procedural
due process claim).
The district court did not abuse its discretion in granting defendants’ motion
for an extension of time to file a response to the Third Amended Complaint. See
Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir. 2010) (standard
of review); FTC v. Gill, 265 F.3d 944, 957 (9th Cir. 2001) (district court has broad
discretion to control its docket and set deadlines).
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We do not consider matters not specifically and distinctly raised and argued
in the opening brief, including Moore’s contentions regarding the Notification and
Federal Employees Antidiscrimination Act, 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).
All pending motions and requests are denied.
AFFIRMED.
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