Opinion
20-16012
10-11-2022
ANTHONY T. RIVERA, Plaintiff-Appellant, v. U.S. DEPARTMENT OF ENERGY, Defendant-Appellee.
NOT FOR PUBLICATION
Submitted October 11, 2022 [**]
Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding D.C. No. 4:19-cv-01304-PJH
Before: FRIEDLAND, BENNETT, and BRESS, Circuit Judges
MEMORANDUM [*]
Anthony T. Rivera, proceeding pro se, appeals the district court's summary judgment affirming the Administrative Law Judge's ("ALJ") decision upholding under the U.S. Department of Energy's Contractor Employee Protection Program, 10 C.F.R. § 708, et seq., the termination of Rivera's employment by a private contractor, Lawrence Livermore National Security, LLC ("LLNS"). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Ctr. for Biological Diversity v. Esper, 958 F.3d 895, 903 (9th Cir. 2020), setting aside the agency's decision only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A). We affirm.
The district court properly affirmed the ALJ's decision because LLNS showed by clear and convincing evidence that it would have terminated Rivera's employment based on his inappropriate and insubordinate behavior, even absent any protected disclosures. See 10 C.F.R. § 708.29 (once an employee shows a protected disclosure, the burden shifts to the contractor "to prove by clear and convincing evidence that it would have taken the same action without the [employee's] disclosure").
We do not consider arguments raised for the first time on appeal or matters not specifically raised and argued in the opening brief, including Rivera's contention in his motion for summary judgment that LLNS violated his rights under the First Amendment. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
[*] 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).