                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             APR 10 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

VERNON WENDELL RISBY,                            No. 17-56946

              Plaintiff-Appellant,               D.C. No.
                                                 8:16-cv-02275-AG-JCG
 v.

KIRSTJEN NIELSEN, Secretary of                   MEMORANDUM*
Homeland Security; TIMOTHY
MOYNIHAN; STACY M. SMITH; and
JAMES HARRIS,

              Defendants-Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                             Submitted April 8, 2019**
                               Pasadena, California

Before: GRABER and BYBEE, Circuit Judges, and ARTERTON,*** District
Judge.



      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
      ***
          The Honorable Janet Bond Arterton, United States District Judge for the
District of Connecticut, sitting by designation.
      Plaintiff Vernon Risby timely appeals the district court’s judgment in favor

of Defendants Kirstjen Nielsen, Timothy Moynihan, Stacy M. Smith, and James

Harris. The court dismissed one claim for failure to state a claim, and the court

granted summary judgment to Defendants on another claim. Reviewing de novo

both the dismissal, Gold Medal LLC v. USA Track & Field, 899 F.3d 712, 714

(9th Cir. 2018), and the summary judgment, Lee v. City of Los Angeles, 908 F.3d

1175, 1182 (9th Cir. 2018), we affirm.

      1. We agree with Plaintiff that his claim against federal officials, brought

under 42 U.S.C. § 1983, may be construed as a claim pursuant to Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

But the district court correctly held that issue preclusion bars the Bivens claim.

      In the complaint, Plaintiff alleged that the Law Enforcement Officers Safety

Act of 2004 ("LEOSA") grants him a right to an identification card and that

Defendants unlawfully denied him a LEOSA card. The Supreme Court has

clarified that a claim asserting a statutory right may be brought only to the extent

that the statute grants a private right of action. Ziglar v. Abbasi, 137 S. Ct. 1843,

1855–56 (2017). Whether Plaintiff may bring a Bivens claim seeking to assert a

purported right under LEOSA thus hinges on whether LEOSA creates a "private

right of action." Id. at 1856 (internal quotation marks omitted).


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      In Plaintiff’s earlier action, the district court held that "LEOSA does not

establish a private right of action." In that earlier proceeding, that identical issue

was actually litigated and decided, was necessary to the decision, and was decided

after a full and fair opportunity to litigate. Accordingly, in this case, the district

court correctly held that issue preclusion bars Plaintiff’s Bivens claim. See, e.g.,

Offshore Sportswear, Inc. v. Vuarnet Int’l, B.V., 114 F.3d 848, 850 (9th Cir. 1997)

(describing the requirements for issue preclusion).

      Plaintiff may not, on appeal, broaden the scope of the Bivens claim to assert

employment discrimination. The complaint asserts only a right under LEOSA and

nowhere ties allegations of discrimination to this claim. See, e.g., Ross v.

Williams, 896 F.3d 958, 969 (9th Cir. 2018) (holding that we may not construe a

claim beyond the allegations in the complaint); Byrd v. Maricopa Cty. Sheriff’s

Dep’t, 629 F.3d 1135, 1140 (9th Cir. 2011) (en banc) ("Even construing Byrd’s pro

se complaint liberally, the allegations failed to state an equal protection claim

because they asserted only allegedly harmful treatment and mentioned nothing

about disparate treatment, much less about the specific jail policy or gender

classification in general."). In any event, Plaintiff is "barred from bringing a

constitutional challenge under [Bivens] because Title VII provides the exclusive

judicial remedy for claims of discrimination in federal employment." Zeinali v.


                                            3
Raytheon Co., 636 F.3d 544, 549 n.3 (9th Cir. 2011) (internal quotation marks

omitted). The district court correctly dismissed this claim.

      2. The district court correctly granted summary judgment to Defendants on

Plaintiff’s claims of disability discrimination in violation of the Rehabilitation Act

of 1973, race discrimination in violation of Title VII, and retaliation for past Equal

Employment Opportunity ("EEO") activity in violation of Title VII. The "familiar

McDonnell Douglas burden-shifting framework" applies to all three legal theories.

Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1012 (9th Cir. 2018) (race

discrimination); Curley v. City of North Las Vegas, 772 F.3d 629, 632 (9th Cir.

2014) (disability1 discrimination); Emeldi v. Univ. of Or., 673 F.3d 1218, 1223

(9th Cir. 2012) (Title VII retaliation). Viewing the evidence in the light most

favorable to Plaintiff, Martin v. City of Boise, 902 F.3d 1031, 1036 (9th Cir. 2018),

even assuming that he has a prima facie case, he cannot show pretext on any of his

claims.




      1
        The Rehabilitation Act expressly adopts the standards under Title I of the
Americans with Disabilities Act of 1990. 29 U.S.C. § 794(d); see generally
Fleming v. Yuma Reg’l Med. Ctr., 587 F.3d 938, 940–41 (9th Cir. 2009). "[C]ases
interpreting either [statute] are applicable and interchangeable." Douglas v. Cal.
Dep’t of Youth Auth., 285 F.3d 1226, 1229 n.3 (9th Cir. 2002) (internal quotation
marks omitted).
                                           4
      There is no evidence that, at the relevant time, Agent Christopher Foster was

aware of Plaintiff’s disability or EEO activity. Nor is there any evidence that

Foster acted on account of race. Plaintiff’s speculation to the contrary is

insufficient to defeat summary judgment. See, e.g., Loomis v. Cornish, 836 F.3d

991, 997 (9th Cir. 2016) ("Mere allegation and speculation do not create a factual

dispute for purposes of summary judgment." (brackets omitted)).

      Similarly, no evidence suggests that Agent Alfonso Lozano was even aware

of Plaintiff’s disability, race, or EEO activity, let alone that he or anyone else acted

on account of those attributes. Instead, the evidence in the record suggests only

that the invalid database entry—which was never accessed until Plaintiff’s request

for information—was an accidental mistake.

      Finally, Plaintiff has not introduced sufficient evidence to suggest that James

Harris denied him a LEOSA card for any discriminatory or retaliatory reason.

Instead, Harris stated that Plaintiff was ineligible for a card because he was

medically unfit to carry a firearm. Harris’ decision is entirely logical and appears

to fall well within the bounds of the agency’s internal policy. But even if his

decision was faulty in some way, an inference of pretext does not arise solely from

an honest mistake. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063

(9th Cir. 2002) (holding that summary judgment was appropriate even where the


                                            5
decision-maker’s reason is "foolish or trivial or even baseless" (internal quotation

marks omitted)); see also Pottenger v. Potlatch Corp., 329 F.3d 740, 748 (9th Cir.

2003) ("[The defendant] has leeway to make subjective business decisions, even

bad ones."). The unexplained statement made to Harris by Stacy Smith that

Plaintiff is "crazy" does not give rise to an inference that Harris discriminated

against Plaintiff because of a physical disability, race, or EEO activity. See Nidds

v. Schindler Elevator Corp., 113 F.3d 912, 918–19 (9th Cir. 1997) (holding that

comments such as "old timers" and "we don’t necessarily like grey hair" do not

necessarily defeat summary judgment in age-discrimination cases).

      AFFIRMED.




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