M.S. v. Dave Hoon

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
M. S., No. 18-71918
Petitioner, DHS No. 17B00060
v.
MEMORANDUM*
DAVE S.B. HOON, John Wayne Cancer
Institute; OFFICE OF CHIEF
ADMINISTRATIVE HEARING OFFICER,
Respondents.
On Petition for Review of an Order of the
Department of Homeland Security
Submitted June 11, 2019**
Before: CANBY, GRABER, and MURGUIA, Circuit Judges.
M.S. petitions pro se for review of the Office of the Chief Administrative
Hearing Officer’s (“OCAHO”) order dismissing her complaint alleging national
origin and citizenship status discrimination, retaliation, and misuse of documents
in violation of the Immigration Reform and Control Act, 8 U.S.C. § 1324b. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
have jurisdiction under 8 U.S.C. § 1324b(i)(1). We review de novo the
Administrative Law Judge’s (“ALJ”) conclusions of law, and for substantial
evidence the ALJ’s findings of fact. Mester Mfg. Co. v. INS, 879 F.2d 561, 565
(9th Cir. 1989). We deny the petition for review.
The ALJ properly dismissed M.S.’s complaint because M.S. failed to file a
timely charge with the Department of Justice’s Immigrant and Employee Rights
Section before filing her complaint with OCAHO. See 8 U.S.C. § 1324b(d)(3); cf.
Dakarapu v. Arvy Tech, Inc., 13 OCAHO 1308, *4 (Feb. 16, 2018) (emails must
contain sufficient information to put agency on notice of allegations of 8 U.S.C.
§ 1324b discrimination to constitute a timely charge under 8 U.S.C.
§ 1324b(d)(3)). We do not consider any argument or evidence M.S. failed to raise
or include in her response to the order to show cause issued by the ALJ regarding
the timeliness of M.S.’s complaint. We reject as unpersuasive M.S.’s equitable
tolling argument. See Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (“A
petitioner seeking equitable tolling bears the heavy burden of showing . . . some
extraordinary circumstance stood in [her] way.” (internal quotation marks
omitted)).
The district court did not abuse its discretion in denying M.S.’s motion for
reconsideration because M.S. failed to establish any basis for such relief. See Sch.
Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir.
2 18-71918
1993) (standard of review and setting forth grounds for reconsideration).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We reject as unpersuasive M.S.’s contentions regarding disqualifying
respondent Hoon’s counsel, error by the ALJ, the False Claims Act, and fiduciary
duty.
M.S.’s motion to treat her correspondence filed at Docket Entry No. 44 as
her reply brief (Docket Entry No. 53) is granted. The brief has been filed and
considered.
M.S.’s correspondence filed at Docket Entry No. 54 is construed as a motion
to strike respondents’ excerpts of record and is denied.
PETITION FOR REVIEW DENIED.
3 18-71918