Harold Wilborn v. Janet Napolitano

MEMORANDUM

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