Anthony Parrish v. Ray Mabus

FILED
NOT FOR PUBLICATION
MAR 09 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY C. PARRISH and PETER J. No. 14-15228
HEBERT,
D.C. No. 1:12-cv-00621-BMK
Plaintiffs-Appellants,

v. MEMORANDUM*

RAY MABUS, in his official capacity as
the Secretary of the Navy,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Hawaii
Barry M. Kurren, Magistrate Judge, Presiding

Submitted February 24, 2017**
Honolulu, Hawaii

Before: KOZINSKI, HAWKINS, and BEA, Circuit Judges.

*
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).
Appellants Anthony Parrish and Peter Hebert (collectively, “Plaintiffs”) appeal

the adverse grant of summary judgment on their Title VII race discrimination and

retaliation claims. We affirm.

Summary judgment was properly granted on all claims involving adverse

employment actions due to the revocation of Plaintiffs' security clearances because we

lack the ability to review the merits of a decision to grant or revoke a security

clearance. Dep’t of the Navy v. Egan, 484 U.S. 518, 527–29 (1988). In conducting

a Title VII analysis, it is “impossible for the court to establish in the first place

whether the [Defendant’s] proffered reasons were legitimate without evaluating their

merits.” Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 197 (9th Cir. 1995). Even if

the failure to follow normal agency procedures were circumstantial evidence of

discriminatory intent, in order to evaluate the Title VII claims we would still need to

weigh the merits of the proffered nondiscriminatory reasons for revoking the

clearances, which we cannot do under Brazil. Id.

Plaintiffs failed to include any argument in their opening brief regarding the

Title VII and retaliation claims that did not involve security clearances, and have thus

waived any argument that the district court erred in granting summary judgment on

these claims. McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009). A bare

assertion in a brief with no supporting argument, or an argument made only in

2
passing, is insufficient to avoid waiver. See Christian Legal Soc. Chapter of the Univ.

of Cal. v. Wu, 626 F.3d 483, 488 (9th Cir. 2010).

AFFIRMED.