Milo D. Burroughs v. United States Department of the Army

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILO D. BURROUGHS,
Plaintiff - Appellant,
v.
UNITED STATES DEPARTMENT OF
THE ARMY,
Defendant - Appellee.
No. 14-35057
D.C. No. 3:13-cv-05712-RJB
MEMORANDUM*
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).
FILED
JUN 6 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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

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