                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 30 2015

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


HAROLD L. WILBORN,                               No. 13-55674

                Plaintiff - Appellant,           D.C. No. 3:11-cv-02252-IEG-RBB

  v.
                                                 MEMORANDUM**
JEH JOHNSON,* in his official capacity as
Secretary, Department of Homeland
Security (Customs and Border Protection),
Agency,

                Defendant - Appellee.


                     Appeal from the United States District Court
                        for the Southern District of California
                     Irma E. Gonzalez, District Judge, Presiding

                            Submitted January 21, 2015***

Before:         CANBY, GOULD, and N.R. SMITH, Circuit Judges.

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

          *
             Jeh Johnson has been substituted for his predecessor, Janet A.
Napolitano, as Secretary of Homeland Security under Fed. R. App. P. 43(c)(2).
          **
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
action alleging violations of the Uniformed Services Employment and

Reemployment Rights Act (“USERRA”), Title VII, and the First and Fifth

Amendments. 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

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 USERRA claim concerning

the U.S. Border Patrol’s alleged failure to promote him and his 5-day suspension

because it lacked jurisdiction. See 38 U.S.C. § 4324 (USERRA claims against the

federal government must be presented to Merit Systems Protection Board

(“MSPB”), with right to appeal to Federal Circuit); see also 5 U.S.C. § 7703(b)

(with limited exception, MSPB decisions are appealable only to the Federal

Circuit). Contrary to Wilborn’s contention, the district court did not have

jurisdiction on the basis that he brought a mixed case.

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

Wilborn failed to comply with the administrative exhaustion requirement. See

Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039,

1043 (9th Cir. 2009) (explaining Title VII exhaustion requirements for federal

employees).


                                          2                                   13-55674
       The district court properly dismissed Wilborn’s First and Fifth Amendment

claims 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).

       The district court did not abuse its discretion in refusing to transfer

Wilborn’s action to the Federal Circuit because Wilborn did not file his complaint

within 60 days of the MSPB’s decision. See 5 U.S.C. § 7703(b)(1)(A) (a petition

to review an MSPB decision must be filed within 60 days of that decision); Hays v.

Postmaster Gen. of U.S., 868 F.2d 328, 331 (9th Cir. 1989) (per curiam) (standard

of review).

       We reject Wilborn’s contentions concerning standing and the alleged

violation of his right to a jury trial.

       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) (per curiam).

       AFFIRMED.




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