                             NOT FOR PUBLICATION                         FILED
                      UNITED STATES COURT OF APPEALS                      JUN 6 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 MILO D. BURROUGHS,                               No. 14-35057

              Plaintiff - Appellant,              D.C. No. 3:13-cv-05712-RJB

    v.
                                                  MEMORANDUM*
 UNITED STATES DEPARTMENT OF
 THE ARMY,

              Defendant - Appellee.

                     Appeal from the United States District Court
                       for the Western District of Washington
                      Robert J. Bryan, District Judge, Presiding

                               Submitted May 24, 2016**

Before: REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.

         Milo D. Burroughs appeals pro se from the district court’s judgment

dismissing for lack of subject matter jurisdiction his employment discrimination

action. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.



         *
             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).
Pakootas v. Teck Cominco Metals, Ltd., 646 F.3d 1214, 1218 (9th Cir. 2011). We

affirm.

      The district court properly determined that it lacked subject matter

jurisdiction over Burroughs’s Uniformed Services Employment and

Reemployment Rights Act (“USERRA”) claims because USERRA claims against

federal executive agencies must be presented to Merit Systems Protection Board

(“MSPB”), with a right to appeal to the Federal Circuit. See 38 U.S.C. § 4324;

see also 5 U.S.C. § 7703(b) (with limited exception, MSPB decisions are

appealable only to the Federal Circuit). Contrary to Burroughs’s contention, the

district court did not have jurisdiction on the basis that Burroughs brought a mixed

case, Kloeckner v. Solis, 133 S. Ct. 596, 601 & n. 1 (2012) (defining “mixed

case”), or a whistleblower retaliation claim, 5 U.S.C. § 1221(a), (h) (Whistleblower

Protection Act claims must be appealed to the MSPB, with right to seek judicial

review from circuit courts of appeals).

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments raised for the first time on appeal. See Padgett

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      Burroughs’s motion to depose, filed on September 15, 2014, and request for

                                          2
judicial notice, filed on December 8, 2014, are denied as unnecessary.

      AFFIRMED.




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