author: FISHER, Circuit Judge:

text:
    Leslie A. KERR, Plaintiff-Appellant, v. Sally JEWELL, Secretary of Department of the Interior, Defendant-Appellee.
    No. 14-36000
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted August 2, 2016 Anchorage, Alaska
    Filed September 6, 2016

      Stephani Ayers (argued) and Thad M. Guyer, T.M. Guyer & Friends, P.C., Med-ford, Oregon, for Plaintiff-Appellant.
    Charles W. Scarborough (argued), Stephanie R: Marcus, and Marleigh D. Dover; Karen L. Loeffler, United States Attorney; Benjamin C. Mizer, Principal. Deputy Assistant Attorney General; Civil Division, Department of Justice, Washington, D.C.; for Defendant-Appellee.
    Before: RAYMOND C. FISHER, RICHARD A. PAEZ and ANDREW D. HURWITZ, Circuit Judges.
   OPINION

FISHER, Circuit Judge:

Leslie Kerr, a former employee of the United States Fish and Wildlife Service (FWS), contended she was discriminated and retaliated against in violation of Title VII and retaliated against in violation of the Whistleblower Protection Act (WPA). Kerr presented her claims to FWS’s Equal Employment Opportunity (EEO) office, which denied her Title VII claims on the merits and dismissed her WPA claim for lack of jurisdiction. Rather than appealing the EEO office’s decision to the Merit Systems Protection Board (MSPB), which had jurisdiction to review the WPA claim on the merits, Kerr filed a civil action in federal district court, asserting both her Title VII claims and her WPA claim. The district court dismissed the WPA claim for lack of jurisdiction based on Kerr’s failure to present the claim to the MSPB. Kerr appeals, and we affirm.

We hold, first, that the statutory scheme governing the Civil Service Reform Act (CSRA) and the WPA did not authorize Kerr to file her WPA claim in district court without first presenting it to the MSPB. Kerr has what is known as a “mixed case,” because she challenges a serious personnel action — her removal — on account of discrimination. In a mixed case, a decision of an agency’s EEO office is subject to review in the district court, without an intervening stop at the MSPB. See 5 U.S.C. § 7702(a)(2). Kerr was free to take her Title VII claims directly from FWS’s EEO office to district court, bypassing the MSPB. Nothing in § 7702(a)(2), however, authorizes an employee to present an entirely unreviewed WPA claim in district court without first presenting it to the MSPB.

Second, although a federal district court can exercise federal question jurisdiction under 28 U.S.C. § 1331, that general grant of jurisdiction does not apply where it is fairly discernible that Congress intended a statutory review scheme to provide the exclusive avenue to judicial review. See Elgin v. Dep’t of Treasury, — U.S. —, 132 S.Ct. 2126, 2132-33, 183 L.Ed.2d 1 (2012). In Elgin, the Supreme Court applied this principle to the CSRA, holding that, “[g]iven the painstaking detail with which the CSRA sets out the method for covered employees to obtain review of adverse employment actions, it is fairly discernible that Congress intended to deny such employees an additional avenue of review in district court.” Id. at 2134. The WPA is part of the CSRA, and nothing in the WPA alters the conclusion the Court reached in Elgin. The statutory scheme places exclusive original jurisdiction in the MSPB. Accordingly, the scheme precluded the district court from exercising original jurisdiction over Kerr’s WPA claim.

BACKGROUND

We described the facts underlying this case in an unpublished decision resolving a previous appeal. See Kerr v. Jewell, 549 Fed.Appx. 635, 636-38 (9th Cir. 2013). As we explained there, Kerr was employed by FWS as director of the Kodiak National Wildlife Refuge. Over a period of months, Kerr was subjected to a series of adverse personnel actions. These included a negative performance evaluation rating her “minimally successful,” a warning letter stemming from an allegedly inappropriate contact with another employee and a 60-day temporary assignment (or “detail”) to a position in Anchorage. Later, her superiors made the assignment to the Anchorage position permanent. When Kerr refused the reassignment, the agency approved her removal from employment, and Kerr involuntarily retired on the day her removal would have taken effect.

While these events were unfolding, Kerr was also subjected to alleged sex discrimination. . During a performance review, a supervisor asked Kerr whether she could “learn to be more feminine.” Id. at 636. She also reported finding Playboy magazines in a cabin at the refuge. During the same period, Kerr filed a series of complaints with her superiors, the human resources office and the Department of the Interior’s Office of Inspector General, challenging her adverse treatment, complaining about the magazines and her supervisor’s comment and reporting what she described as gross mismanagement by her supervisors, including widespread alcohol abuse among FWS employees.

Kerr eventually asserted claims of discrimination and retaliation against FWS. The process began in March 2006, when Kerr filed an informal complaint with the FWS EEO counselor. In May 2006, after the counselor failed to resolve the casé, Kerr filed a formal complaint with FWS’s EEO office, alleging claims of sex discrimination, religious discrimination and retaliation. As amended, the complaint challenged, among other things, the negative performance review, the warning letter, the 60-day detail in Anchorage, the decision to remove her from employment and her resulting involuntary retirement.

In June 2006, while the EEO complaint was pending, Kerr filed an “appeal” with the MSPB, challenging her removal. The MSPB appeal alleged not only discrimination and retaliation on account of sex and religion, in violation of Title VII, but also retaliation for engaging in protected whis-tleblower activities, in violation of the WPA and arising from her complaints of mismanagement. The WPA prohibits retaliation against an employee for disclosing “any violation of any law, rule, or regulation, or ... gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8).

In July 2006, FWS’s EEO office accepted Kerr’s claims for investigation, other than those relating to her removal. The EEO office dismissed those claims because she had decided to challenge her removal before the MSPB: “By filing with the MSPB first, you elected to pursue this matter with them.”

In October 2006, the MSPB informed Kerr it lacked original jurisdiction over her claims pertaining to the less serious adverse personnel actions — the warning letter, the negative performance evaluation and the 60-day detail. See 5 U.S.C. § 7512 (listing five serious personnel actions, including “a removal,” over which the MSPB has jurisdiction); 5 C.F.R. § 1201.3(a)(1) (same); see also Reddick v. FDIC, 809 F.3d 1253, 1256 & n.1 (Fed. Cir. 2016). The MSPB advised Kerr it had jurisdiction solely over claims related to her removal.

The MSPB also informed Kerr she had a “mixed case,” “in which an employee ... alleges that a personnel action appealable to the Board was based, in whole or in part, on prohibited discrimination.” 5 C.F.R. § 1201.151(a)(1); see also 29 C.F.R. § 1614.302(a). The Board gave Kerr two options with respect to her claims relating to her removal. She could either present the claims to FWS’s EEO office, later appealing them to the MSPB, or she could bypass the EEO office and present them in the first instance to the MSPB, by filing an original “appeal” with the Board. See 5 C.F.R. § 1201.154(a) (“Where the appellant has been subject to an action appeal-able to the Board, he or she may either file a timely complaint of discrimination with the agency or file an appeal with the Board .... ”). But she could not challenge her removal in both forums simultaneously. See 29 C.F.R. § 1614.302(b) (“An aggrieved person may initially file a mixed case complaint with an agency pursuant to this part or an appeal on the same matter with the MSPB pursuant to 5 CFR 1201.151, but not both.”). The Board thus advised Kerr she could either “move to withdraw this appeal without prejudice to the underlying claims, exhaust the agency’s EEO procedure, then file a new appeal to the Board concerning her removal within the time limits set forth at 5 C.F.R. § 1201.154(b),” or “she may abandon the EEO procedure with respect to her removal only, and continue to pursue this appeal.” Kerr chose the first option, informing the Board “she elects to exhaust EEO procedures before filing a new appeal with the Board concerning her removal.”

Accordingly, in November 2006, the MSPB dismissed Kerr’s appeal “as premature, without prejudice to the underlying claims.” The Board noted Kerr could “file a new appeal to the Board” after conclusion of the EEO proceedings. See 5 C.F.R. § 1201.154(b) (“If the appellant has filed a timely formal complaint of discrimination with the agency ... [a]n appeal must be filed [with the MSPB] within 30 days after the appellant receives the agency resolution or final decision on the discrimination issue .... ”). In light of the MSPB dismissal, FWS’s EEO office accepted Kerr’s claims arising from her removal for investigation.

In September 2008, the Department of the Interior’s Office of Civil Rights issued a final decision on Kerr’s formal EEO complaint. The decision rejected Kerr’s Title VII claims on the merits. To the extent Kerr claimed she was removed in violation of the WPA,. however, the Civil Rights Office dismissed the claims, stating “such actions [are] outside the purview of the EEO process and, therefore, not protected activities under Title VII.” This.ruling was consistent with longstanding Equal Opportunity Employment Commission (EEOC) precedent declining jurisdiction over claims of retaliation not based on discrimination. See, e.g., Petitioner v. Shinseki, 2014 WL 899672, at *1 n.1 (EEOC Feb. 27, 2014) (“[T]he Whistleblower Protection Act is a statute that is not under the Commission’s purview.”); Remsburg v. Daley, 1998 WL 72077, at *2 (EEOC Feb. 9, 1998) (“[T]he agency properly dismissed that portion of appellant’s complaint based on retaliation for unprotected activities ... [because] whistleblower activities are generally outside the purview of the EEO process.”).

When the EEO process was resolved, Kerr did not file an appeal with the MSPB, as she had previously indicated she would do. Instead, she filed this civil action in federal district court, alleging violations of Title VII and the WPA. The district court granted summary judgment to the defendants. Kerr appealed, and we vacated and remanded. See Kerr, 549 Fed.Appx. 635.

On remand, the government moved to dismiss the WPA claim, arguing for the first time that the district court lacked jurisdiction over the claim because Kerr had failed to present it to the MSPB. The district court granted the motion, noting it was

undisputed that Kerr failed to fully present her whistleblower retaliation claim to the MSPB before she brought her “mixed claim” action in the district court. Rather, she proceeded with her ' mixed case before the EEO, which has no jurisdiction to review a WPA claim, and informed her of such. Thus, she has not preserved that claim for judicial review. Indeed, when an employee bypasses the MSPB, federal courts cannot possibly apply the proper deferential standard of review to the agency’s action, because there is no record to review, and therefore no decision to defer to. Kerr cites no authority that would allow this Court to decide the WPA claims in the first instance.

See 5 U.S.C. § 7703(c) (providing for deferential judicial review of decisions of the MSPB). Following trial, the jury returned a verdict in favor of the government on the Title VII claim, and the district court entered final judgment dismissing Kerr’s case.

Kerr filed a motion for relief under Federal Rule of Civil Procedure 59(e), urging the district court to reconsider its jurisdictional ruling on the WPA claim or, alternatively, to remand the WPA claim to the MSPB. The district court denied the motion and declined to remand the claim, noting it could not “ ‘remand’ a matter to an agency that did not issue a decision.” This timely appeal followed.

STANDARD OF REVIEW

“We review de novo a district court’s dismissal for lack of subject matter jurisdiction.” Rattlesnake Coal. v. U.S. EPA, 509 F.3d 1095, 1100 (9th Cir. 2007). The district court’s factual findings are reviewed for clear error. See id. “We review a district court’s denial of a Rule 59(e) motion for abuse of discretion.” McQuillion v. Duncan, 342 F.3d 1012, 1014 (9th Cir. 2003).

DISCUSSION

Kerr’s appeal requires us to address two questions: (1) whether the statutory scheme authorized her to. assert her entirely unreviewed WPA claim in the district court without first presenting it to the MSPB and (2) if not, whether her failure to follow the statutory scheme deprived the district court of jurisdiction over the claim. We consider these questions in turn.

A. The Statutory Scheme Did Not Authorize Kerr to Present Her Unre-viewed WTA Claim in District Court

We first address whether the statutory scheme authorized Kerr to present her unreviewed WPA claim in district court— i.e., whether the CSRA and the WPA affirmatively granted the district court jurisdiction over the claim. We begin by briefly describing the respective statutory and' regulatory schemes through which a federal employee can obtain administrative and judicial review of claims under the WPA and Title VII.

1. Administrative and Judicial Review of WPA Claims

The WIPA makes it unlawful to “take ... a personnel action with respect to any employee or applicant for employment because of ... any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences ... any violation of any law, rule,- or regulation, or ... gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8).

The applicable statutes and regulations establish a comprehensive scheme whereby federal employees can obtain administrative and judicial review of their WPA claims. As a general matter, WPA claims must be presented initially to either the Office of Special Counsel (OSC) or the MSPB. See id. §§ 1214, 1221(a); 5 C.F.R. § 1209.2. If the employee follows the first path, she files initially with the OSC. She may appeal an adverse decision by the OSC to the MSPB. See 5 C.F.R. § 1209.5(a). An adverse decision by the MSPB, in turn, is subject to judicial review. See 5 U.S.C. § 1214(c). If the employee follows the second path, she files initially with the MSPB. See id. § 1221(a). The MSPB’s decision is then subject to judicial review. See id. §§ 1221(h); 7703(b).

2. Administrative and Judicial Review of Discrimination Claims Generally

For federal employees who- claim they have been discriminated against by their respective agency in violation of Title VII (or other federal antidiscrimination laws), the process for obtaining administrative and judicial review begins with an informal complaint. Employees “who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age, disability, or genetic information must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter.” 29 C.F.R. § 1614.105(a). If the matter is not resolved by the counselor, the employee may file a formal discrimination complaint with the agency’s EEO office. See id. §§ 1614.105(d), 1614.106(a). When the EEO office issues a final decision, the employee has the right to appeal the decision to the EEOC, see id. § 1614.401, or file a civil action in federal district court, see id. § 1614.407. When an employee elects to appeal first to the "EEOC, the EEOC’s decision is subject to review in district court. See id. § 1614.405(c).

3. Administrative and Judicial Review of Discrimination Claims Involving Serious Personnel Actions ("Mixed Cases”)

A different scheme applies to mixed cases. “When an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a ‘mixed case.’ ” Kloeckner v. Solis, — U.S. —, 133 S.Ct. 596, 601, 184 L.Ed.2d 433 (2012); see 29 C.F.R. § 1614.302(a)(1) (defining a “mixed case” as a complaint of “employment discrimination ... based on race, color, religion, sex, national origin, age, disability, or genetic information related to or stemming from an action that can be appealed to the Merit Systems Protection Board (MSPB)”); 5 C.F.R. § 1201.151(a)(1) (establishing rules for “any case in which an employee or applicant for employment alleges that a personnel action appealable to the Board was based, in whole or in part, on prohibited discrimination”); accord Washington v. Garrett, 10 F.3d 1421, 1428 (9th Cir. 1993) (“A ‘mixed case’ brought under 5 U.S.C. § 7703(b)(2) is one which involves both a personnel action normally appealable to the MSPB and a claim of discrimination.”). “The complaint may contain only an allegation of employment discrimination or it may contain additional allegations that the MSPB has jurisdiction to address,” such as a claim under the WPA. 29 C.F.R. § 1614.302(a)(1).

A federal employee bringing a mixed case may proceed in a variety of ways. She may first file a discrimination complaint with the agency itself, much as an employee challenging a personnel practice not appealable to the MSPB could do. See 5 CFR § 1201.154(a); 29 CFR § 1614.302(b). If the agency decides against her, the employee may then either take the matter to the MSPB or bypass further administrative review by suing the agency in district court. See 5 CFR § 1201.154(b); 29 CFR § 1614.302(d)(1)(i). Alternatively, the employee may initiate the process by bringing her case directly to the MSPB, forgoing the agency’s own system for evaluating discrimination charges. See 5 CFR § 1201.154(a); 29 CFR § 1614.302(b). If the MSPB upholds the personnel action (whether in the first instance or after the agency has done so), the employee again has a choice: She may request additional administrative process, this time with the EEOC, or else she may seek judicial review. See 5 U.S.C. §§ 7702(a)(3), (b); 5 CFR § 1201.161; 29 CFR § 1614.303.

Kloeckner, 133 S.Ct. at 601.

4. Application of These Principles to Kerr’s Action

Under these principles, Kerr was free to present her WPA claim challenging her removal in a direct appeal to the MSPB. Her Title VII claims challenging the less serious personnel actions (the negative performance evaluation, the warning letter and the 60-day detail) had to be presented to FWS’s EEO office. Her Title VII claims ' challenging her removal (her mixed case) could have been presented initially to either FWS’s EEO office or the MSPB.

Kerr instead presented all of her claims to FWS’s EEO office. When that office ruled against her on her Title VII claims and declined to exercise jurisdiction over her WPA claim, Kerr proceeded directly to district court, bypassing the MSPB. There is no dispute that Kerr was permitted to raise her Title VII claims in district court. The parties dispute, however, whether Kerr was also permitted to assert her WPA claim there, having failed to present it to the MSPB.

Kerr maintains her actions were authorized by the CSRA and WPA statutory scheme, relying on Wells v. Shalala, 228 F.3d 1137 (10th Cir. 2000), and 5 U.S.C. § 7702. Section 7702(a)(2) authorizes a direct route from the EEO office to district court in mixed cases. It states:

In any matter before an agency which involves — (A) any action [which the employee or applicant may appeal to the Merit Systems Protection Board]; and (B) any issue of discrimination prohibited under [section 717 of the Civil Rights Act of 1964, section 6(d) of the Fair Labor Standards Act of 1938, section 501 of the Rehabilitation Act of 1973 or sections 12 and 15 of the Age Discrimination in Employment Act of 1967]; the ... decision of the agency in any such matter shall be a judicially renewable action unless the employee appeals the matter to the Board ....

5 U.S.C. § 7702(a)(2).

In Wells, a federal employee alleged two claims — constructive discharge on the basis of discrimination, in violation of the Rehabilitation Act (a mixed case claim), and retaliation, in violation of the WPA. See Wells, 228 F.3d at 1140. The employee filed a formal complaint with her agency’s EEO office, which investigated and denied the claims. See id. at 1142. The employee then filed a civil action in district court, raising both claims and relying on § 7702(a)(2)(B). See id. Although the government argued the district court lacked jurisdiction to hear the employee’s WPA claim because he failed to exhaust the claim before the MSPB, the Tenth Circuit disagreed:

As it applies in this case, § 7702(a)(2)(B) provides that in “any matter” before an executive agency which involves “any issue of discrimination” prohibited under the Rehabilitation Act of 1973, specifically 29 U.S.C. § 791, the agency shall resolve such matter, (emphasis added). The section then provides: “The decision of the agency in any such matter shall be a judicially renewable action unless the employee appeals the matter to the [MSPB].” 5 U.S.C. § 7702(a)(2)(B). Thus, the plain language of § 7702(a)(2)(B) provides that if an employee alleges disability discrimination under § 791 as a basis for agency action, he may either file suit in the district court or pursue an administrative procedure after an adverse agency decision. 5 U.S.C. § 7702(a)(2)(B); see also 29 C.F.R. § 1614.310(a). In addition to his [WPA] retaliation claim, Plaintiff plainly alleges disability discrimination under 29 U.S.C. § 791 as a basis for his constructive discharge.

Id. The court thus concluded § 7702(a)(2) authorizes an employee with a mixed case to bring a WPA claim directly from an agency’s EEO office tu district court, without first presenting it to the MSPB. See id. at 1142-43.

Kerr relies on Wells, arguing § 7702(a)(2) authorized her to bring her claims, including her WPA claim, directly from the EEO office to district court. We disagree. Although Wells offers one plausible reading of § 7702(a)(2), there are several drawbacks to the Tenth Circuit’s analysis.

First, the Tenth Circuit did not discuss the practical import of its interpretation of § 7702 where, as here, the EEO declines jurisdiction over the WPA claim. When an employee presents a WPA claim only to the EEO office, the EEO office declines to exercise jurisdiction over the claim, and the employee elects to bypass the MSPB, the employee winds up presenting an entirely unreviewed WPA claim to the district court. It is highly unlikely Congress intended that result. As the Supreme Court has explained, the CSRA “ ‘comprehensively overhauled the civil service system,’ creating an elaborate ‘new framework for evaluating adverse personnel actions against federal employees.’ ” United States v. Fausto, 484 U.S. 439, 443, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988) (alterations omitted) (quoting Lindahl v. OPM, 470 U.S. 768, 773-74, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985)). “It prescribes in great detail the protections and remedies applicable to such action, including the availability of administrative and judicial review.” Id. The WPA strengthened the CSRA’s protections for whistleblowers, expanding the role of the Office of Special Counsel, see 5 U.S.C. §§ 1211-15, authorizing employees to seek corrective action directly from the MSPB, see id. § 1221(a), and adopting a set of robust procedural rules to protect employees in MSPB proceedings, see, e.g., id. § 1221(c)(1) (authorizing the MSPB to stay the allegedly retaliatory personnel action); id. § 1221(d)(1) (granting the MSPB subpoena power); id. § 1221(e)(1) (requiring an employee to establish only that the protected activity was a “contributing factor” in the challenged personnel action); id. § 1221(e)(2) (requiring the government, to avoid corrective action, to prove by “clear and convincing evidence” that it would have taken the same personnel action in the absence of the employee’s protected activity); id. § 1221(g) (authorizing broad remedies and an award of “reasonable attorney’s fees and other reasonable costs”); id. § 1221(h)(1) (providing for judicial review of the MSPB’s decision). Nothing in the WPA suggests Congress intended to permit employees to bypass this comprehensive system of administrative review. As the D.C. Circuit has observed, “[u]nder no circumstances does the WPA grant the District Court jurisdiction to entertain a whistleblower cause of action brought directly before it in the first instance.” Stella v. Mineta, 284 F.3d 135, 142 (D.C. Cir. 2002).

Second, judicial review of agency decisions on WPA claims is deferential. See Sloan v. West, 140 F.3d 1255, 1260 (9th Cir. 1998); Washington, 10 F.3d at 1428. “[T]he court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be ... (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). When an employee bypasses the MSPB, there is no administrative record to review, and no decision to which a court may defer, but rather only a decision that the EEO lacked jurisdiction.

Third, the Tenth Circuit’s reliance on the “plain language” of § 7702(a)(2) lacks persuasive force where, as here, an agency’s EEO office refuses to consider the WPA claim on the merits. The statutory language authorizes judicial review of the “decision • of the agency.” Id. § 7702(a)(2) (emphasis added). When the employee’s agency declines to exercise jurisdiction over the WPA claim, there is no decision on the merits of the WPA claim for the court to review.

Finally, the Tenth Circuit’s decision is at odds with our decision in Sloan v. West, 140 F.3d 1255 (9th Cir. 1998). Sloan did not address a WPA claim, but it did prescribe the proper procedure to be followed when an employee asserts both a mixed case discrimination claim (i.e., a discrimination claim challenging a serious personnel action) and a nondiscrimination claim subject to the MSPB’s original jurisdiction. We held that, “[i]f a complainant wishes to preserve both claims, he or she must not pursue an appeal of the EEO decision with-the EEOC [or the district court]. Rather, he or she must file the appeal with the MSPB, or be deemed to have waived the non-discrimination claim.” Id. at 1260. “Once the MSPB issues a decision, ... the employee may ... appeal the entire case (including all claims) to the appropriate United States District Court.” Id. (citing 29 C.F.R. § 1614.310(b)). Thus, Sloan suggests the MSPB furnishes the exclusive path for obtaining judicial review of a WPA claim.

In light of these authorities, we are not persuaded by Kerr’s argument that the statutory scheme in general, or § 7702(a)(2) in particular, granted the district court jurisdiction over her WPA claim.

B. Because the MSPB Provides the Exclusive Avenue for Obtaining Judicial Review of a WPA Claim, the District Court Lacked Jurisdiction Over Kerr’s WPA Claim

Even without an affirmative grant of jurisdiction by the CSRA or the WPA, district courts have general federal question jurisdiction under 28 U.S.C. § 1331. See Elgin v. Dep’t of Treasury, — U.S. —, 132 S.Ct. 2126, 2132, 183 L.Ed.2d 1 (2012). This grant of jurisdiction, however, is not absolute. As the Supreme Court explained in Elgin, a statutory scheme precludes district court jurisdiction when “it is ‘fairly discernible’ from the [statute] that Congress intended covered employees appealing covered agency actions to proceed exclusively through the statutory review scheme.” Id. at 2132-33 (quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994)). In applying this standard, “we examine the [statute’s] text, structure, and purpose.” Id. at 2133.

In Elgin, the Court concluded it was fairly discernible from the CSRA’s text, structure and purpose that Congress precluded district court jurisdiction over claims not proceeding through the MSPB. “Given the painstaking detail with which the CSRA sets out the method for covered employees to obtain review of adverse employment actions, it is fairly discernible that Congress intended to deny such employees an additional avenue of review in district court.” Id. at 2134. Thus, “extra-statutory review is not available to those employees to whom the CSRA grants administrative and judicial review.” Id. at 2133 (emphasis omitted).

Similarly, we have long held that the remedies set forth in the CSRA are exclusive. In Veit v. Heckler, 746 F.2d 508, 511 (9th Cir. 1984), we held “the federal courts have no power to review federal personnel decisions and procedures unless such review is expressly authorized by Congress in the CSRA or elsewhere,” agreeing with other circuits that “the comprehensive nature of the procedures and remedies provided by the CSRA indicates a clear congressional intent to permit federal court review as provided in the CSRA or not at all.” In Rivera v. United States, 924 F.2d 948, 951 (9th Cir. 1991), we likewise explained that “Congress’s purpose in enacting the CSRA was to channel grievances and disputes arising out of government employment into a single system of administrative procedures and remedies, subject to judicial review.”

That Kerr’s whistleblowing claim arises under a provision — 5 U.S.C. § 2302(b)(8)— associated with the WPA does not alter this conclusion. The CSRA and the “WPA are integrated into a single statutory scheme. “The Whistleblower Protection Act of 1989 increases protections for whis-tleblowers, but it does so within the context of the CSRA.” Rivera, 924 F.2d at 954; see also Richards v. Kiernan, 461 F.3d 880, 885-86 (7th Cir. 2006) (citing cases) (“[T]he CSRA provides the exclusive remedy for claims brought pursuant to the WTPA.”); Ugarte v. Johnson, 40 F.Supp.2d 178, 181 (S.D.N.Y. 1999) (Rakoff, J.) (“That plaintiff claims here to have been a whistleblower does not create any greater right for her in a district court than under the general CSRA scheme because enactment of the WPA left the role of the federal courts unchanged in the review of employment decisions affecting federal employees. ... The WPA ... expanded the MSPB’s jurisdiction to enable it to hear claims of retaliation for whistle-blowing which had been previously outside its jurisdiction, but conferred no jurisdiction in th[e district] court.” (citations omitted)).

In light of these authorities, the statutory scheme under the CSRA and the WPA provided the exclusive means for Kerr to obtain judicial review of her WTPA claim. That scheme “alloeate[s] initial review to an administrative body” — the MSPB— rather than the district court. See Thunder Basin, 510 U.S. at 207, 114 S.Ct. 771. Because Congress intended the MSPB to have exclusive original jurisdiction over her WTPA claim, the district court properly dismissed the claim for lack of jurisdiction.

C. The District Court Did Not Abuse Its Discretion By Declining to Remand to the MSPB

Kerr argues in the alternative that the district court should have remanded her WPA claim to the MSPB rather than dismissing it without prejudice. The district court, however, acted reasonably by declining to remand a matter to an agency that had not issued a decision. See McQuillion, 342 F.3d at 1014.

D. Further Proceedings

If Kerr wishes to pursue her WPA claim, her proper course is to file an appeal before the MSPB. At oral argument, the government acknowledged the deadlines for presenting claims to the MSPB are subject to equitable tolling. Tolling may be warranted here in light of Kerr’s reasonable reliance on the Tenth Circuit’s opinion in Wells. Cf. Harris v. Carter, 515 F.3d 1051, 1055-56 (9th Cir. 2008) (applying equitable tolling when a habeas petitioner relied in good faith on Ninth Circuit precedent later overruled by the Supreme Court); York v. Galetka, 314 F.3d 522, 528 (10th Cir. 2003) (applying equitable tolling when Tenth Circuit law was unsettled and the relevant statute was ambiguous). The question of tolling should be addressed in the first instance by the MSPB.

CONCLUSION

The district court properly dismissed Kerr’s WPA claim for lack of jurisdiction. The judgment of the district court, therefore, is affirmed.

AFFIRMED.

      . Although the statute refers to this type of filing as an "appeal,” in fact these are original MSPB proceedings.

      . Kerr does not challenge the agency's decision that it lacked jurisdiction over her WPA claim. We therefore have no occasion to address that issue.

      . Section 2302(b)(8) was first enacted as part of the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111 (1978). The Whistleblower Protection Act of 1989 (WPA), Pub. L. No. 101-12, 103 Stat. 16 ' (1989), amended and strengthened the provision. Although the provision derives from both laws, a claim under § 2302(b)(8) is commonly referred to as a WPA claim, and we follow that convention here, as do the parties.

      . Judicial review ordinarily occurs in the Federal Circuit, subject to two .exceptions. First, cases of discrimination subject to 5 U.S.C. § 7702, known as mixed cases, are filed in district court. See 5 U.S.C. § 7703(b)(2). Second, under the Whistleblower Protection Enhancement Act of 2012, non-mixed cases involving solely whistleblower claims under the WPA can be filed in any federal circuit court, not just the Federal Circuit, for a five-year period. See id. § 7703(b)(1)(B); Daniels v. Merit Sys. Prot. Bd., No. 13-73913, 2016 WL 4191522 at *5 & n. 8 (9th Cir. Aug. 9, 2016).

      . Wells does not discuss whether the agency's EEO office declined to exercise jurisdiction over the employee’s WPA claim, as occurred here.

      . The Fourth Circuit also has permitted a direct path from the EEO to district court when an employee has a mixed case that also includes a WPA claim, albeit in different circumstances. See Bonds v. Leavitt, 629 F.3d 369, 377, 379 (4th Cir. 2011) (applying 5 U.S.C. § 7702(e)(1)(A), the provision that governs when an agency's EEO office fails to resolve a formal complaint within a reasonable period of time, rather than § 7702(a)(2), the provision authorizing judicial review of an unfavorable decision by the EEO office). Under § 7702(e)(1)(B), Kerr would have been entitled to present her entire case, including her WPA claim, in district court had she presented the claims to the MSPB and the MSPB did not resolve them in a timely manner. See Ikossi v. Dep't of Navy, 516 F.3d 1037, 1043 (D.C. Cir. 2008). That did not occur here, however.

      . Kerr correctly points out that "[m]ost exhaustion requirements established by Congress do not result in a loss of subject matter jurisdiction.” Maronyan v. Toyota Motor
        Sales, U.S.A., Inc., 658 F.3d 1038, 1040 (9th Cir. 2011). Elgin, however, addresses a different question — whether a statutory scheme precludes district court jurisdiction because it is fairly discernible that Congress intended the statute’s review scheme to provide the exclusive avenue to judicial review.


source: Caselaw Access Project

author: GOULD, Circuit Judge:

license: Public Domain

text:
    DIRECT TECHNOLOGIES, LLC, a California limited liability company, Plaintiff-Appellant, v. ELECTRONIC ARTS, INC., a Delaware corporation, Defendant-Appellee.
    No. 14-56266, No. 14-56745
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted June 8, 2016 Pasadena, California
    Filed September 6, 2016

      John Tehranian (argued), Christopher W. Arledge, and Peter R. Afrasiabi, One LLP, Newport Beach, California, for Plaintiff-Appellant.
    Robert N. Klieger (argued), Hueston Hennigan LLP, Los Angeles, California, for Defendant-Appellee.
    Before: ALEX KOZINSKI, RONALD M. GOULD, and ANDREW D. HURWITZ, Circuit Judges.
   OPINION

GOULD, Circuit Judge:

Electronic Arts (EA) is the creator of The Sims, a popular computer game. EA contracted with a production company called Lithomania to produce a USB flash drive shaped like a “PlumbBob,” a gem-shaped icon from the computer game, to promote a “Collector’s Edition” of The Sims. Lithomania in turn contracted with Direct Technologies (DT) to produce a prototype of the PlumbBob-shaped flash drive. EA approved the prototype, but DT’s prototype was shipped to a company in China to make essentially the same flash drives for $0.50 cheaper per unit than DT proposed.

After DT settled breach of contract claims with Lithomania, DT sued EA under the federal Copyright Act and the California Uniform Trade Secrets Act (CUTSA). The district court granted summary judgment to EA. The district court held that the flash drive was not sufficiently “original” when compared to the Plumb-Bob icon to qualify for copyright protection. The court also held that DT had not taken “reasonable efforts” to keep the flash drive design secret because DT had voluntarily given the prototype to Litho-mania without explicit confidentiality restrictions. EA then moved for attorneys’ fees under each statute, but the district court denied fees on both claims, concluding that DT’s claims were neither objectively specious nor brought in bad faith.

With regard to the copyright claim, we hold that the district court erred by concluding as a matter of law that the flash drive was not copyrightable. There is a genuine issue of material fact as to whether DT’s cut-away design for removing the USB flash drive from the PlumbBob object is sufficiently non-functional and non-trivial to warrant copyright protection. A reasonable jury could decide these questions in either party’s favor.

On the CUTSA claim, we affirm the district court’s grant of summary judgment to EA, although we rely on different grounds than did the district court. We hold that DT’s contribution to the Plumb-Bob USB drive — that is, DT’s design for the flash drive’s removal from the Plumb-Bob object — does not “derive[] independent economic value, actual or potential, from not being generally known to the public.” Cal. Civ. Code § 3426.1(d)(1). Rejecting EA’s cross-appeal, we further hold that the district court did not clearly err or otherwise abuse its discretion in denying attorneys’ fees for this claim.

I

The Sims is a popular video game in which players “create virtual people called ‘Sims,’ customize the homes and neighborhoods in which [the Sims] live, and help direct them in their relationships, careers, and social lives as they progress through various life stages.” When a player controls a specific character, a green icon called a “PlumbBob” appears over the character’s head.

This logo is “an iconic symbol of The Sims.” EA holds a copyright in the Plumb-Bob icon.

For the release of The Sims 3, EA decided to order USB flash drives shaped like a PlumbBob as a promotional trinket to be sold with the game. In May 2008, EA turned to Lithomania, a print production company, to find a manufacturer for the PlumbBob flash drives. Lithomania president Gina Long contacted DT and sent pictures of the PlumbBob. DT was asked to produce prototype samples of a Plumb-Bob-shaped flash drive for EA’s approval. EA approved DT’s prototype, and the parties began negotiating over a Vendor Agreement in August 2008.

Less than two weeks later, Lithomania sent DT’s prototype to TREK2000, a Chinese company, without telling DT. TREK2000 offered to make identical PlumbBob USB drives for $0.50 less per unit. EA asked Lithomania whether TREK2000 “swear[s] they can match what we already had” from DT, and Lithomania assured EA that “they don’t think they will have a problem matching it at all.” In the end, the only difference between TREK2000’s product and DT’s prototype was that the corners were “a little less sharp than the corners of the prototype.”

Rather than tell DT that it had been cut out of the deal, Lithomania lied, first telling DT that the project was on hold and “who knows???” why. Then, just one day after Lithomania told EA that it was “ready to start the preproduction sample [with TREK2000] as soon as you confirm an order for the manufacturing tool,” Li-thomania sent DT a vendor agreement stating that Lithomania would purchase the USB flash drives from DT. The agreement also purported to transfer all intellectual property rights from DT to EA. DT signed the agreement, thinking that it had sealed the deal. Lithomania, on the other hand, told EA that it had received a vendor agreement from DT, “so IP’s are all protected.” EA responded, “Great.... Protect us all.”

For the next few weeks, Lithomania had DT sign other agreements and assignments of IP interests. DT was never actually told that it had lost the project. DT suspected its loss, but it did not know for sure until DT’s owner and CEO saw the PlumbBob drive available in stores.

DT first sued Lithomania in California state court for fraud, breach of contract, and breach of the implied covenant of good faith and fair dealing. That suit settled.

DT then brought this case against EA, seeking a declaratory judgment that DT was “joint author of a copyrighted work” in the PlumbBob drive and was “entitled to an equal share of the profits related to the PlumbBob USB.” The district court dismissed for failure to state a claim, holding that DT did not “sufficiently allege[] that it is a joint owner of the USB Drive” because it had signed a vendor agreement transferring all rights in the USB drive to EA. On appeal, we vacated and remanded, holding that DT could prevail “if the contract was fraudulently induced, such that it was invalid from the beginning.” 525 Fed. Appx. 560, 561 (9th Cir. 2013).

On remand, DT amended its complaint to add a claim for Trade Secret Misappropriation under the California Uniform Trade Secret Act (CUTSA), Cal. Civ. Code §§ 3426-3246.11. EA moved for summary judgment on both claims. On the copyright claim, EA argued: (1) that “DT did not contribute any independently copyrightable expression to the PlumbBob Drive”; (2) that even if DT did, it was not a joint author; and (3) that DT had assigned any copyright interest it had to Lithomania. The district court granted summary judgment on the copyright claim, concluding that DT’s contributions to the drive were either trivial or functional, and that even if not, DT was not a joint author.

On the trade secrets claim, the district court at first denied summary judgment, holding that a reasonable jury “could find that Plaintiff had done enough to protect the secrets of the samples” and that DT could prove misappropriation if EA “knew Lithomania had a duty to maintain the samples’ secrecy or limit their use.” But after additional discovery, EA filed a renewed motion for summary judgment, which the district court granted, holding that there was “no reasonable dispute of material fact that DT did not take reasonable efforts to maintain the secrecy of its prototypes.” DT appealed both claims.

EA then moved for attorneys’ fees on both claims under the respective statutes. The district court denied fees for both claims. The district court found that DT’s copyright claim was not frivolous or unreasonable and that DT’s motivations were not improper. The court also found that DT’s trade secrets claim was not objectively specious and that DT did not bring the claim in bad faith. EA cross-appeals the denial of attorneys’ fees on only the trade secrets claim.

II

The federal copyright claim

Because EA holds a copyright in the original 2-D PlumbBob icon, the question at the heart of this claim is whether DT’s 3-D rendition of the PlumbBob as a USB flash drive is entitled to copyright protection as a derivative work. See 17 U.S.C. § 101 (defining derivative work). If DT contributed material “distinguished from the preexisting material employed in the work,” DT can claim a copyright in its contributions. 17 U.S.C. § 103(b). DT alleges that two aspects of its work make the PlumbBob-shaped drive original enough to warrant copyright protection: (1) the USB drive had 12 equal sides, whereas the icon had 20 unequal sides; and (2) DT designed the USB drive to fit into the PlumbBob with a “futuristic cut away look ... at a unique angle.”

We have established a two-step inquiry for determining whether a derivative work is original enough to receive copyright protection. First, courts address the question whether any aspects of the work seeking copyright protection “are purely functional, utilitarian or mechanical.” Entm’t Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1221 (9th Cir. 1997) (hereinafter ERG) (citing 17 U.S.C. § 101 (describing the limitations on copyrighting mechanical or utilitarian aspects of a work)). If so, “any differences in appearance between a derivative work and the preexisting work which are not conceptually separable from any utilitarian, functional or mechanical purposes” are set aside and excluded from the determination “whether sufficient artistic differences exist to constitute ‘originality.’ ” Id. at 1222.

Second, when addressing originality, courts apply the two Durham factors from the Second Circuit:

First, to support a copyright the original aspects of a derivative work must be more than trivial. Second, the original aspects of a derivative work must reflect the degree to which it relies on preexisting material and must not in any way' affect the scope of any copyright protection in that preexisting material.

Id. at 1220 (quoting Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 909 (2d Cir. 1980)). “[T]he amount of creative input by the author required to meet the originality standard is low” but “not negligible.” Satava v. Lowry, 323 F.3d 805, 810 (9th Cir. 2003); see also Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1163 n.5 (9th Cir. 1977).

A. Functionality

In ERG, we discussed at length how the functionality standard applies to 3-D representations of 2-D objects. That case involved costumes derived from drawings of famous cartoon characters such as the Pillsbury Doughboy, Geoffrey the Giraffe, and Cap’n Crunch. When analyzing the differences between the costumes and the drawings, we concluded that differences in “form, texture and proportionality” were “necessitated by the fact that a human body must fit inside the costumes.” 122 F.3d at 1223. Those differences were thus functional or utilitarian and had to be excluded from the originality analysis. On the contrary, we recognized that the facial expressions on the costumes were a' “truly ‘artistic’ difference” that was not merely functional. Id. We held that that non-functional artistic difference could be considered in our originality analysis.

Here, DT alleges that it made a non-functional contribution to the USB drive by designing the flash drive to fit into the PlumbBob with a “futuristic cut away look ... at a unique angle.”

We hold that there is a genuine issue of material fact regarding whether the manner in which DT designed the USB flash drive stick to fit into the PlumbBob object was merely functional or utilitarian. See Poe v. Missing Persons, 745 F.2d 1238, 1242-43 (9th Cir. 1984) (explaining that functionality is a question of fact for a jury); see also N. Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1034-35 (9th Cir. 1992) (explaining that originality is a question of fact for a jury).

Of course, the mere feature of having a USB flash drive that can be removed from the PlumbBob object is not copyrightable; that is a functional attribute “necessitated by the fact” that the 3-D PlumbBob was designed for use as a USB flash drive. ERG, 122 F.3d at 1223. But the “cut away” manner in which the flash drive is to be removed is potentially non-functional. DT ■claims that it designed this feature to have a “futuristic” appearance. The record shows that DT considered at least four other design options that had different aesthetic characteristics.

And the designer, Erik Jones, submitted a sworn declaration explaining that his ultimate choice was made “for aesthetic reasons.” Like the court found with the costume faces in ERG, a jury could find that this design feature was “truly ‘artistic.’” Id. There is a genuine issue of material fact whether the unique and creative manner in which DT designed the USB drive to fit into the PlumbBob was nonfunctional and could potentially qualify for copyright protection.

EA’s arguments to the contrary do not persuade us. EA argues that the record contains evidence that the choice of design “was driven by functional considerations.” EA cites testimony from a DT employee, Shaun Secours, who said that he talked with Jones and that Jones’s decision was “just for the functionality of the drive, there’s no other way we can make this come out. Otherwise, the portion that you are plugging into the computer will be too fat and you — it would interfere with cables and other USB slots and it wouldn’t be— people wouldn’t use it.” But Secours was not the designer of the drive; Jones was, and as stated above, Jones declared that his design decisions were made for aesthetic reasons. This type of factual dispute supports our conclusion that this issue is mappropriate for resolution on summary judgment. See Doe v. Cutter Biological, Inc., 971 F.2d 375, 381 (9th Cir. 1992) (explaining that the existence of conflicting testimony on an issue “underscores the inappropriateness of a grant of summary judgment”). Secours’s assertion that the final design reflected the only way to de- • sign the drive while maintaining its functionality is certainly debatable — at least two of the other options that Jones considered appear to have been able to function as a normal USB flash drive. If Jones said one thing and Secour said another on the same subject, it is the role of the jury, not a court on summary judgment, to determine the facts.

In sum, it cannot properly be said as a matter of law that the manner in which DT designed the flash drive to emerge from the PlumbBob object was merely utilitarian or functional. A reasonable jury could answer that question in either party’s favor.

B. Originality

As discussed above, .when determining whether a derivative work is sufficiently original to warrant copyright protection, the pertinent question is whether “the difference between the [derivative] work and the preexisting work is non-trivial.” N. Coast Indus., 972 F.2d at 1033. In North Coast Industries, we held that the district court erred by concluding that a minor difference in the arrangement of rectangular shapes on two different clothing patterns was trivial as a matter of law; the question of triviality should have been sent to a jury. Id. at 1034-35. To the contrary, our opinion in ERG held that the differences in facial expressions between cartoons and their derivative costumes were trivial as a matter of law because “no reasonable trier of fact would see anything but the underlying copyrighted character when looking at ERG’s costumes.” 122 F.3d at 1223. We distinguished North Coast Industries by explaining that the different geometric shapes on the clothes in that case were “so crucial to the derivative work” that “a reasonable trier of fact [cjould find the derivative works to be recognizably the derivative creator’s own product.” Id. at 1224.

Turning to the facts of this case, we reject DT’s first argument that its Plumb-Bob drive merits copyright protection because it has 12 rather than 20 sides. While some images of the PlumbBob have 20 unequal sides, others have only 12. The PlumbBob has apparently evolved throughout multiple editions of The Sims- — also including, for instance, changes in whether the icon is translucent or solid. Even assuming that DT’s version has a slightly different shape than the drawing presented by EA, we have held that a character’s copyright encompasses its “distinctive character traits and attributes, even if the character does not maintain the same physical appearance in every context.” DC Comics v. Towle, 802 F.3d 1012, 1020 (9th Cir. 2015). The number of sides on DT’s USB flash drive is not a copyrightable contribution in this case.

On the. other hand, if a jury determines that the manner in which DT designed the USB drive to fit into the PlumbBob object is artistic and non-functional, see Sec. II.A & n.3, supra, we hold that there is a genuine issue of material fact as to whether DT’s USB drive is sufficiently original to warrant copyright protection. That aesthetic feature is “something recognizably the artist’s own,” and a reasonable jury could determine that it meets the “low” standard for originality. Satava, 323 F.3d at 810; see also N. Coast Indus., 972 F.2d at 1034-35.

EA argues that the district court correctly determined that DT failed the second prong of the Durham test that “derivative works are not copyrightable if they ‘affect the scope of any copyright protection in th[e] preexisting material.’ ” ERG, 122 F.3d at 1224 (quoting Durham, 630 F.2d at 909). EA parrots the district court in saying that DT’s design was “so similar to the well known and copyrighted Plumb-Bob [it’s] based on” that if it were copyrightable, DT would have “a monopoly on all USB[ drives] shaped like the Plumb-Bob, and perhaps even any other 3-D embodiment of the PlumbBob.” That statement is incorrect. As a derivative copyright holder, DT would only have a copyright in its unique contribution- — -the artistic manner in which it designed the USB flash drive to fit into the PlumbBob object. See 17 U.S.C. § 103(b). Anyone' else would be free to create a USB flash drive that used a different method or design for flash-drive removal, and DT’s copyright would obviously not preclude others from making a 3-D. PlumbBob without a flash drive.

We conclude that the question of originality warrants decision by a jury.

C. Joint authorship

In the alternative, EA argues that even if the differences between the 2-D and 3-D PlumbBobs were not trivial, DT was not a joint author as required by the Copyright Act. The district court adopted this argument as an alternative basis for granting summary judgment.

We have set forth three criteria to determine authorship for copyright purposes, of which the most important factor is who is “exercising control”: that is, who is “‘the inventive or master mind’ who ‘creates, or gives effect to the idea.’ ” Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th Cir. 2000) (quoting Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 61, 4 S.Ct. 279, 28 L.Ed. 349 (1884)). EA argues that it “had ultimate control and final decision-making authority over the design of the PlumbBob Drives,” dictating shape, color, “and all other material particulars.” While the record suggests that Long at some point requested that the USB drive be a flat stick removable from the top of the Drive rather than have the Drive split in the center to reveal the USB, such evidence, viewed in the light most favorable to DT, does not prove that EA held ultimate control over the drive’s design. A reasonable factfinder could find that EA was merely in a position to offer suggestions, but did not ultimately “give[ ] effect to the idea” of how the USB flash drive fit into the PlumbBob object. Aalmuhammed, 202 F.3d at 1234 (quoting Burrow-Giles, 111 U.S. at 61, 4 S.Ct. 279).

EA also argues that the “audience appeal” of the PlumbBob drive did not derive from DT’s contributions to the shape of the design port. See id. (listing audience appeal as a factor to consider in determining joint authorship). But a reasonable factfinder could conclude that the drive design DT ultimately adopted was more aesthetically pleasing than the designs it rejected, suggesting that DT’s contribution helped entice consumers to purchase the Collector’s Edition of the game.

We hold that there is a genuine issue of material fact as to whether DT was sufficiently in control of its artistic contribution to qualify as a joint author in the resulting USB drive prototype. Again, this issue warrants decision by a jury.

D. The assignment contract

EA argues finally that DT’s copyright claim fails because DT assigned away its copyright interest in the PlumbBob drives in the vendor agreement it signed with Lithomania. The district court did not address this claim, but we consider it because we may affirm on any basis apparent in the record. Hell’s Angels Motorcycle Corp. v. McKinley, 360 F.3d 930, 933 (9th Cir. 2004).

DT claims that fraud in the inducement invalidates this vendor agreement, but EA draws a distinction between fraud in the inducement and fraud in the execution. EA states, “even if DT had been fraudulently induced to enter into the Vendor and Confidentiality and Anti-Piracy Agreements, those agreements would still bar DT’s claim.” This argument is barred by law of the case. In our prior memorandum disposition, we reasoned that “if the contract was fraudulently induced, such that it was invalid from the beginning, there would be no valid contract for EA to enforce.” 525 Fed.Appx. at 561. That statement in our prior decision forecloses EA’s argument here.

To reiterate the facts that led to this contract: Lithomania knew it was going to be sending DT’s prototype to a Chinese company for manufacturing, but rather than disclose that to DT, it sent DT a vendor agreement stating that Lithomania would purchase the USB drives from DT while asking DT to sign over its intellectual property rights. Lithomania then bragged to EA that it had secured this contract, stating that “IP’s are all protected,” to which EA responded “Great.... Protect us all.” As we stated in the prior appeal, “[bjecause DT may be able to prove that the contract is unenforceable, this case is inappropriate for dismissal.” Id. at 561-62. Nothing has changed materially since then. The vendor agreements are not a proper basis for summary judgment.

For these reasons, we reverse the district court’s grant of summary judgment on the copyright claim.

Ill

The California trade secret claim

In California, the tort of misappropriation of a trade secret is governed by statute. A trade secret is defined as

information, including a formula, pattern, . compilation, program, device, method, technique, or process, that:
(1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and
(2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Cal. Civ. Code § 3426.1(d). The district court ruled that no reasonable jury could find that DT took reasonable efforts to maintain the secrecy of its prototype. As we explain below, we decline to affirm on that basis.

To be sure, the record shows that DT did not do much, if anything, to explicitly protect its prototype design. EA points to substantial evidence that DT “placed no limitations on what could be done with the prototypes that DT sold to Lithomania,” and EA stresses that DT did not label the prototypes as confidential “or otherwise communicate to Lithomania that it regarded them as such.” DT does not contest this evidence, but the thrust of DT’s claim is that it reasonably relied on implicit business expectations that Lithomania would keep the prototype secret — that is, expectations that Lithomania would not send the prototype to a Chinese competitor to manufacture effectively the same product at a lower price. As we explained in Pachmayr Gun Works, Inc. v. Olin Mathieson Chem. Corp., 502 F.2d 802 (9th Cir. 1974), “courts will consider the factual circumstances of each case on an individual basis, to determine whether a confidential relationship may reasonably be implied” such that an entity has the duty to maintain the secrecy of confidential information. Id. at 808. We quoted the Seventh Circuit for the proposition that

Where the facts show that a disclosure is made in order to further a particular relationship, a relationship of confidence may be implied, e.g., disclosure to a prospective purchaser to enable him to appraise the value of the secret, disclosure to a prospective lender to assure him of the prospects of a borrower’s business, disclosure to agent, partner, or joint adventurer.

Id. (quoting Cloud v. Standard Packaging Corp., 376 F.2d 384, 388-89 (7th Cir. 1967)).

EA contends that this common law theory of trade secret misappropriation has been preempted by California’s trade secret statute, which was passed after Pach-mayr was decided. EA claims that the statute requires plaintiffs “to prove as an essential element of a CUTSA claim that it made affirmative efforts to maintain the secrecy of its purported trade secret.”

That is not, however, the language of the statute, The statute instead requires “efforts that are reasonable under the circumstances to maintain its secrecy.” Cal. Civ. Code § 3426.1(d)(2). It may be that in some factual circumstances, a rational jury could find that when an implied relationship of confidentiality exists between two business partners, it is “reasonable under the circumstances” for the prospective seller to not make additional efforts to maintain secrecy of the prototype. But because we can affirm on an alternate ground, see Hell’s Angels, 360 F.3d at 933, we decline to address whether the CUTSA statute preempts Pachmayr, and we assume without deciding that DT raised a genuine issue of material fact as to whether it had such an implied confidential relationship with Lithomania.

We instead affirm the district court’s grant of summary judgment on alternate grounds. CUTSA defines trade secrets as having “independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use.” Cal. Civ. Code § 3426.1(d)(1); see Altavion, Inc. v. Konica Minolta Sys. Lab. Inc., 226 Cal.App.4th 26, 171 Cal.Rptr.3d 714, 743 (2014) (“[T]he information alleged to be a trade secret” must be “ ‘valuable because it is unknown to others.’ ”) (quoting DVD Copy Control Ass’n Inc. v. Burner, 116 Cal.App.4th 241, 10 Cal.Rptr.3d 185, 192 (2004)). EA argues that DT’s design is not a trade secret because it has no “actual or even potential value to DT outside of a single ephemeral project for a single customer.” DT has not presented any evidence that there was value in the secrecy of its design. We affirm the district court’s grant of summary judgment on this ground.

Attorneys’ fees

EA argues that it is entitled to attorneys’ fees on DT’s trade secrets claim under Cal. Civ. Code § 3426.4, which authorizes attorneys’ fees when “a claim of misappropriation is made in bad faith.” California courts have held that bad faith “requires objective speciousness of the plaintiffs claim, as opposed to frivolousness, and its subjective bad faith in bringing or maintaining the claim.” Gemini Aluminum Corp. v. Cal. Custom Shapes, Inc., 95 Cal.App.4th 1249, 116 Cal.Rptr.2d 358, 368 (2002). A “specious” action “may superficially appear to have merit,” id. so attorneys’ fees may be proper even if the claim is not frivolous.

The district court held that DT’s claim was not objectively specious and found that DT did not bring the claim in bad faith, explaining that “Plaintiff had reason to believe its action against Defendants was valid.” The district court did not clearly err or abuse its discretion in drawing these conclusions. Even assuming that bad faith includes recklessness (which the parties dispute), there is no evidence to suggest that DT brought the claim for an improper purpose such as to extort a settlement. The allegations here are consistent with the normal scope of vigorous advocacy, and these are not the type of specious claims that could justify an attorneys’ fee award under California law. The district court did not clearly err or otherwise abuse its discretion in denying EA an attorneys’ fee award.

IV

We reverse the district court’s grant of summary judgment on the copyright claim and remand for further proceedings consistent with this opinion. We affirm the district court’s grant of summary judgment on the trade secret claim and we affirm the denial of attorneys’ fees.

AFFIRMED IN PART, REVERSED IN PART, REMANDED. Each party shall bear its own costs on appeal. See Fed. R. App. P. 39(a)(4).

      . EA claims this was because of a disagreement over the use of certain flash drive technology, although DT disputes that explanation.

      . For examples of other cases discussing functionality, see Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1146-47 (9th Cir. 2003) (holding that additions designed to turn a ceiling lamp into a table lamp were functional), and Pickett v. Prince, 207 F.3d 402, 405 (7th Cir. 2000) (Posner, C.J.) (stating that the differences between a guitar based on Prince's symbol and Prince’s symbol may be "nothing more than the functional difference between a two-dimensional symbol and a guitar in the shape of that symbol,” but also positing that perhaps “the juxtaposition of the symbol and the guitar is enough to confer on the ensemble sufficient originality” for copyright protection).

      . Because we view the facts in the light most favorable to the non-moving party when analyzing whether summary judgment is appropriate, we will consider this design feature when discussing the originality of the Plumb-Bob drive.

      . For instance, "disclosure to a prospective purchaser to enable him to appraise the value of the secret.” Pachmayr, 502 F.2d at 808 (quoting Cloud, 376 F.2d at 389).

      . EA also argues that Pachmayr is "inappo-site” because it concerned “unfair competition or breach of confidence,” but the claim very clearly was for "Unfair Competition— Misappropriation of Trade Secret.” 502 F.2d at 807.