                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 4 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ANTHONY ESPINOSA,                               No.    17-15900

                Plaintiff-Appellant,            D.C. No.
                                                4:15-cv-00324-FRZ-BGM
 v.

MATTHEW G. WHITAKER, Acting                     MEMORANDUM*
Attorney General,

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Arizona
                    Frank R. Zapata, District Judge, Presiding

                    Argued and Submitted December 18, 2018
                            San Francisco, California

Before: GOULD and BERZON, Circuit Judges, and BLOCK,** District Judge.

      Anthony Espinosa (“Espinosa”) appeals the dismissal of his First Amended

Complaint alleging that the Department of Justice (“DOJ”) violated his Fifth

Amendment due process rights when it sent Espinosa’s employer—the Department



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
of Homeland Security (“DHS”)—a letter stating that it would no longer use

Espinosa as a witness in future criminal prosecutions. Because Espinosa has not

pleaded an interest protected by the Fifth Amendment, we affirm. 1

      The requirements of due process apply only when a liberty or property

interest protected by the Fifth Amendment has been impaired. See Bd. of Regents

of State Colleges v. Roth, 408 U.S. 564, 569 (1972). Where there is no such

protected interest, no process is due under the Constitution.

      Espinosa has not pleaded a constitutionally protected due process interest.

First, Espinosa has no protected interest in serving as a witness in criminal

prosecutions. “[A] benefit is not a protected entitlement if government officials

may grant or deny it in their discretion.” Town of Castle Rock v. Gonzales, 545

U.S. 748, 756 (2005). Whether Espinosa will be called to testify in federal criminal

prosecutions is well within the discretion of federal prosecutors. See Roe v. City &

Cty. of S.F., 109 F.3d 578, 584 (9th Cir. 1997). Espinosa therefore cannot claim

that DOJ improperly denied him the right to testify because he has no such right.

      Nor does due process protect Espinosa from reputational damage by DOJ,

which is not his employer. Under Roth, a government employee can claim a

protected interest if the government (1) impugns the employee’s “good name,


      1
         Because we affirm the district court on the grounds that Espinosa has failed
to state a constitutionally protected due process interest, we do not decide whether
DOJ is entitled to absolute immunity from suit.

                                          2
reputation, honor, or integrity”; (2) or imposes “a stigma or other disability that

foreclose[s] his freedom to take advantage of other employment opportunities.”

408 U.S. at 574. However, “the defamation had to occur in the course of the

termination of employment.” Paul v. Davis, 424 U.S. 693, 709 (1976); see also

Siegert v. Gilley, 500 U.S. 226, 234 (1991) (holding that an individual had no due

process interest in challenging his former government employer’s negative

employment reference after he was not hired by a prospective government

employer because of that reference).

      In this case, DOJ was not Espinosa’s employer and therefore did not damage

Espinosa’s reputation in the course of terminating his employment. DOJ sent DHS

a letter communicating its decision not to use Espinosa as a witness in future

prosecutions, reasoning that, if it did so, it would be required to disclose

Espinosa’s relationship with an alleged narcotics trafficker pursuant to Giglio v.

United States, 405 U.S. 150 (1972). The letter also accused Espinosa of

“untrustworthiness and lack of judgment.” As a result of the letter, DHS demoted

Epinosa from his role as a Lead Border Patrol Agent. Espinosa submitted written

and oral responses to DHS contesting the demotion, but DHS made the decision to

demote him without considering the factual basis underlying his disqualification

from serving as a witness. However, we have no occasion to decide whether




                                           3
Espinosa would have a claim under Roth against DHS, as the agency is not a party

to this suit.

       AFFIRMED.




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