Rosemary Greenlaw v. JULIE A. SU, Acting Secretary of Labor

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSEMARY GREENLAW,
Plaintiff-Appellant,
v.
JULIE A. SU, Acting Secretary of Labor,
Defendant-Appellee.
No. 20-16514
D.C. No. 5:18-cv-04932-VKD
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Virginia K. DeMarchi, Magistrate Judge, Presiding**
Submitted April 17, 2023***
Before: CLIFTON, R. NELSON, and BRESS, Circuit Judges.
Rosemary Greenlaw, a former federal employee, appeals pro se from the
district court’s judgment in her action alleging Title VII, Rehabilitation Act, Age
Discrimination in Employment Act (“ADEA”), Freedom of Information Act
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
*** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
APR 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 20-16514
(“FOIA”), and Privacy Act claims. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo. Leong v. Potter, 347 F.3d 1117, 1121 (9th Cir. 2003) (failure
to exhaust administrative remedies); Arrington v. Wong, 237 F.3d 1066, 1069 (9th
Cir. 2001) (dismissal for lack of subject matter jurisdiction under Fed. R. Civ. P.
12(b)(1)). We affirm in part, vacate in part, and remand.
The district court dismissed Greenlaw’s Title VII, Rehabilitation Act, and
ADEA claims for failure to exhaust administrative remedies because Greenlaw’s
appeal to the Merit Systems Protection Board (“MSPB”) remained pending.
However, MSPB issued final decisions during the pendency of this appeal. We
thus vacate the judgment on these claims and remand for further proceedings.
Greenlaw has waived any challenge to the district court’s order granting
summary judgment on her FOIA and Privacy Act claims because she failed to raise
these claims in her opening brief. See Indep. Towers of Wash. v. Washington, 350
F.3d 925, 929 (9th Cir. 2003) (explaining that “we cannot manufacture arguments
for an appellant and . . . will not consider any claims that were not actually argued
in appellant’s opening brief” (citation and internal quotation marks omitted)). We
thus affirm the grant of summary judgment on Greenlaw’s FOIA and Privacy Act
claims.
The parties will bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.

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