John W. BLUE, Plaintiff-Appellant, v. Sheila WIDNALL, Officially as Sec'y of the Air Force, Defendant-Appellee, 162 F.3d 541 (9th Cir. 1998). · Go Syfert
John W. BLUE, Plaintiff-Appellant, v. Sheila WIDNALL, Officially as Sec'y of the Air Force, Defendant-Appellee, 162 F.3d 541 (9th Cir. 1998). Cases Citing This Book View Copy Cite
“as the does not authorize judicial review of alleged violations of the . . . we lack jurisdiction to review these claims.”
55 citation events (47 in the last 25 years) across 13 distinct courts.
Strongest positive: Alex Bilbrew v. Louis Dejoy (ca9, 2021-07-01)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 41 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Alex Bilbrew v. Louis Dejoy
9th Cir. · 2021 · signal: see · quote attribution · 1 verbatim quote · confidence high
as the does not authorize judicial review of alleged violations of the . . . we lack jurisdiction to review these claims.
cited Cited as authority (rule) Beaver v. Does 1-10
W.D. Wash. · 2025 · confidence medium
Blue v. Widnall, 162 F.3d 541, 544 (9th Cir. 1998).
discussed Cited as authority (rule) Aguda v. United States (2×) also: Cited "see"
W.D. Wash. · 2025 · confidence medium
Id. 20 at 1–2. 21 A plaintiff suing the United States must identify an unequivocal waiver of its sovereign 22 immunity, Blue v. Widnall, 162 F.3d 541, 544 (9th Cir. 1998), which Mr. Aguda does not, Dkt. 23 No. 5.
cited Cited as authority (rule) Friedmann v. Franklin Pierce Public Schools
W.D. Wash. · 2023 · confidence medium
Blue v. Widnall, 162 F.3d 541, 544 (9th Cir. 9 1998).
cited Cited as authority (rule) Shade v. United States Department of the Interior
D. Alaska · 2021 · confidence medium
“Whether the government waives its sovereign immunity is a question of subject matter jurisdiction.” Blue v. Widnall, 162 F.3d 541, 544 (9th Cir. 1998).
discussed Cited as authority (rule) Timothy Jeffries v. William Barr
D.C. Cir. · 2020 · confidence medium
See Mayorga, 928 F.3d at 90 ; see also Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 271 (4th Cir. 2005) (“[W]hile preselection may establish that an employee was unfairly treated, it does not by itself prove racial discrimination.” (citation and internal quotation marks omitted)); Blue v. Widnall, 162 F.3d 541, 547 (9th Cir. 1998) (“[O]nly preselection based on discriminatory motives violates Title VII.” (citing Goostree v. Tennessee, 796 F.2d 854 , 861- 62 (6th Cir. 1986)).
cited Cited as authority (rule) Martin Briones v. Penn Escrow
C.D. Cal. · 2020 · confidence medium
See, e.g., Loeffler v. Frank, 486 U.S. 549, 554 (1988); 4 Blue v. Widnall, 162 F.3d 541, 544 (9th Cir. 1998).
cited Cited as authority (rule) Higuera v. City of Portland
D. Or. · 2020 · confidence medium
Blue v. Widnall, 162 F.3d 541, 546 (9th Cir. 1998).
discussed Cited as authority (rule) Day v. Sears Holdings Corp.
C.D. Cal. · 2013 · confidence medium
Day “may rely on the same evidence [she] used to establish a prima facie case or put forth additional evidence.” Coleman, 232 F.3d at 1282 , “[C]ircumstantial evidence that tends to show that the employer’s proffered motives were not the actual motives ‘must be “specific” and “substantial” in order to create, a triable issue with respect to whether the employer intended to discriminate ....’” Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998) (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir.1998)).
discussed Cited as authority (rule) Tagupa v. Mabus
9th Cir. · 2009 · confidence medium
Tagupa also failed to raise a triable issue that the Navy used subjective criteria “to mask discriminatory motives.” See Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998) (affirming summary judgment for employer because plaintiff failed to present evidence “that the interview process was used to mask discriminatory motives.”).
discussed Cited as authority (rule) Tagupa v. Mabus
9th Cir. · 2009 · confidence medium
Tagupa also failed to raise a triable issue that the Navy used subjective criteria “to mask discriminatory motives.” See Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998) (affirming summary judgment for employer because plaintiff failed to present evidence “that the interview process was used to mask discriminatory motives.”).
cited Cited as authority (rule) Whitman v. Mineta
9th Cir. · 2008 · confidence medium
Blue v. Widnall, 162 F.3d 541, 544 (9th Cir. 1998).
cited Cited as authority (rule) Whitman v. Mineta
9th Cir. · 2008 · confidence medium
Blue v. Widnall, 162 F.3d 541, 544 (9th Cir.1998).
cited Cited as authority (rule) U.S. Equal Employment Opportunity Commission v. NCL America, Inc.
D. Haw. · 2008 · confidence medium
Bergene, 272 F.3d at 1142 ; Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998).
discussed Cited as authority (rule) Farina v. Compuware Corp.
D. Ariz. · 2003 · confidence medium
Plaintiffs evidence in support of her pri-ma facie case is not sufficient to refute Defendant’s proffered explanation. “[C]ir-cumstantial evidence that tends to show that the employer’s proffered motives were not the actual motives must be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to whether the employer intended to discriminate on the basis of sex.” Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998) (quoting Godwin, 150 F.3d at 1220-21 ). “[W]hen evidence to refute the defendant’s legitimate explanation is totally lacking, summary judgment…
cited Cited as authority (rule) Agha v. Rational Software Corp.
D. Or. · 2003 · confidence medium
Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998).
cited Cited as authority (rule) United States v. Shell Oil Co.
9th Cir. · 2002 · confidence medium
See Lane v. Pena, 518 U.S. 187, 192 , 116 S.Ct. 2092 , 135 L.Ed.2d 486 (1996); Blue v. Widnall, 162 F.3d 541, 544 (9th Cir.1998).
cited Cited as authority (rule) Prescott v. U.S. Department of Agriculture
9th Cir. · 2002 · confidence medium
We review de novo, Blue v. Widnall, 162 F.3d 541, 544 (9th Cir.1998), and we affirm.
discussed Cited as authority (rule) Equal Employment Opportunity Commission v. Micron Technology, Inc.
9th Cir. · 2002 · confidence medium
If direct evidence of retaliation is presented “a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.” Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998).
cited Cited as authority (rule) United States v. Shell Oil Co.
9th Cir. · 2002 · confidence medium
See Lane v. Pena, 518 U.S. 187, 192 , 116 S.Ct. 2092 , 135 L.Ed.2d 486 (1996); Blue v. Widnall, 162 F.3d 541, 544 (9th Cir.1998).
examined Cited as authority (rule) Lily Keyser Maria Sofia Robledo Richard M. Cisneros v. Sacramento City Unified School District, a Public Entity and and James Sweeney (4×)
9th Cir. · 2001 · signal: cf. · confidence medium
Cf. Blue v. Widnall, 162 F.3d 541, 546 (9th Cir. 1998) (explaining, in a Title VII case, that where evidence of pretext is not direct, but is instead merely "circumstantial evidence that tends to show that the employer's proffered motives were not the actual motives," such evidence "must be 'specific' and 'substantial'").
discussed Cited as authority (rule) Hooks v. Lockheed Martin Skunk Works
9th Cir. · 2001 · confidence medium
It is Hooks’ job to produce evi dence of his superior qualifications, and “[t]he closer the qualifications of the candidates, the less weight the court should give to the perceived differences in qualifications in deciding whether the proffered explanations were pretextual.” Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998) (quotations omitted).
discussed Cited as authority (rule) Ronald Y. Chuang and Linda Chuang v. University of California Davis, Board of Trustees and Fitz-Roy Curry
9th Cir. · 2000 · confidence medium
“With direct evidence, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.” Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998) (citing Godwin, 150 F.3d at 1220-21 ); see also Reeves , — - U.S. at -, 120 S.Ct. at 2111 (criticizing lower court for failing to draw all reasonable inferences in favor of plaintiff when analyzing direct evidence of discriminatory animus).
discussed Cited as authority (rule) Pahk v. Hawaii
D. Haw. · 2000 · confidence medium
Blue v. Widnall, 162 F.3d 541, 544 (9th Cir.1998) (“Whether the government waives its sovereign immunity is a question of subject matter jurisdiction”) (citing United States v. Sherwood, 312 U.S. 584, 586 , 61 S.Ct. 767 , 85 L.Ed. 1058 (1941)); Charley’s Taxi Radio Dispatch v. SIDA of Hawaii, 810 F.2d 869 , 873 n. 2 (9th Cir.1987) (“Like a jurisdictional bar and unlike a traditional immunity, however, the effect of the Eleventh Amendment must be considered sua sponte by federal courts”); but see Hill v. Blind Indus. and Servs. of Maryland, 179 F.3d 754, 760 , amended, 201 F.3d 1186 (…
discussed Cited as authority (rule) Fielder v. Gehring
D. Haw. · 2000 · confidence medium
Blue v. Widnall, 162 F.3d 541, 544 (9th Cir.1998) (“Whether the government waives its sovereign immunity is a question of subject matter jurisdiction”) (citing United States v. Sherwood, 312 U.S. 584, 586 , 61 S.Ct. 767 , 85 L.Ed. 1058 (1941)); Charley’s Taxi Radio Dispatch v. SIDA of Hawaii 810 F.2d 869 , 873 n. 2 (9th Cir.1987) (“Like a jurisdictional bar and unlike a traditional immunity, however, the effect of the Eleventh Amendment must be considered sua sponte by federal courts”); but see Hill v. Blind Indus. and Servs. of Maryland, 179 F.3d 754, 760 , amended, 201 F.3d 1186 (9…
examined Cited as authority (rule) Joanne Fielder v. Ual Corporation, a Delaware Corporation, Dba United Airlines, Defendantappellee (4×) also: Cited "see, e.g."
9th Cir. · 2000 · confidence medium
See also Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1017 (8th Cir. 1999) (holding that a supervisor's criticism and threat that the complainant would be "fired for any subsequent exercise of poor judgment" was not enough for an adverse employment action (emphasis added)); Sanchez v. Denver Public Schools, 164 F.3d 527, 533 (10th Cir. 1998) (holding that a supervisor's oral threats and "ageist" remarks "did not rise to the level of a materially adverse employment action"); Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998) (holding that an employee had not suffered an adverse employment ac…
discussed Cited "see" Bruce v. Becerra
9th Cir. · 2026 · signal: see · confidence high
See Blue v. Widnall, 162 F.3d 541, 546 (9th Cir. 1998) (“‘The closer the qualifications of the candidates, the less weight the court should give to perceived differences in qualifications in deciding whether the proffered explanations were pretextual.’” (quoting Odima, 991 F.2d at 602)). 3 We have also held that deviations from an employer’s established policy or practice can support an inference of pretext.
cited Cited "see" Juan Cuevas v. Skywest Airlines, Inc.
9th Cir. · 2016 · signal: see · confidence high
See Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998).
examined Cited "see" Banks v. Pocatello School District No. 25 (3×)
D. Idaho · 2006 · signal: see · confidence high
See Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998); Cotton v. City of Alameda, 812 F.2d 1245, 1249 (9th Cir.1987); Denney v. City of Albany, 247 F.3d 1172 , 1187-88 (11th Cir.2001). *1203 The qualifications of the selected applicant for the 2001 Pocatello head girls’ basketball coach position present a closer question.
discussed Cited "see" Batson v. University & Community College System
9th Cir. · 2006 · signal: see · confidence high
See Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998) (analyzing Title VII claim); see also Apeceche v. White Pine County, 96 Nev. 723 , 615 P.2d 975, 977-78 (1980) (applying Title VII burden-shifting analysis to state-law discrimination claims).
cited Cited "see" Mora v. Mathur
9th Cir. · 2005 · signal: see · confidence high
See Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998) (noting that “very little evidence of discriminatory motive” is required to defeat summary judgment). 2.
discussed Cited "see" Edwards v. England (2×)
9th Cir. · 2005 · signal: see · confidence high
See Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998).
discussed Cited "see" Frazier v. Career Systems Development Corp.
9th Cir. · 2005 · signal: see · confidence high
See Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998) (analyzing Title VII claim); see also Patterson v. McLean Credit Union, 491 U.S. 164, 186 , 109 S.Ct. 2363 , 105 L.Ed.2d 132 (1989) (holding Title VII and section 1981 claims subject to same analysis).
discussed Cited "see" Terry L. Whitman v. Department of Transportation Norman Y. Mineta, U.S. Secretary of Transportation
9th Cir. · 2004 · signal: accord · confidence high
In fact, as the district court correctly recognized, our well-established rule is to the contrary: 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.” Veit, 746 F.2d at 511 ; accord Blue v. Widnall, 162 F.3d 541, 545 (9th Cir.1998) (quoting Veit).
cited Cited "see" Dorrego v. Public Health Trust of Miami Dade County
S.D. Fla. · 2003 · signal: see · confidence high
See Blue v. Widnall, 162 F.3d 541, 547 (9th Cir.1998).
discussed Cited "see" Deneal v. Sanwa Bank
9th Cir. · 2003 · signal: see · confidence high
See Blue v. Widnall, 162 F.3d 541, 546 (9th Cir.1998) (analyzing Title VII claim); see also Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir.2000) (finding Title VII and FEHA claims subject to same analysis); Wallis, 26 F.3d at 888-89 (finding Title VII and ADEA claims subject to same analysis).
discussed Cited "see" Mukaida v. Hawaii
D. Haw. · 2001 · signal: accord · confidence high
Accord Blue v. Widnall, 162 F.3d 541, 544 (9th Cir.1998); Charley's Taxi Radio Dispatch v. SIDA of Hawaii, 810 F.2d 869 , 873 n. 2 (9th Cir.1987); but see Hill v. Blind Indus. and Servs. of Maryland, 179 F.3d 754, 760 , as amended, 201 F.3d 1186 (9th Cir.1999). 6 .To the extent these counts were alleged against the State and UH, the court has already dismissed them on Eleventh Amendment immunity grounds.
discussed Cited "see, e.g." Miller v. McWilliams
E.D. Va. · 2021 · signal: see, e.g. · confidence medium
See, e.g., Blue v. Widnall, 162 F.3d 541, 544-45 (9th Cir. 1998) (citing Veit, 746 F.2d at 508 ) (“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.
discussed Cited "see, e.g." New Jersey v. Yeutseun Chen (In Re Yeutseun Chen)
D.N.J. · 1998 · signal: compare · confidence medium
See Wisconsin Dep’t of Corrections v. Schacht, — U.S. —, —, 118 S.Ct. 2047, 2054 , 141 L.Ed.2d 364 (1998) *622 (observing “that [whether] Eleventh Amendment immunity is a matter of subject matter jurisdiction [is] a question we have not decided”); compare Blue v. Widnall, Civil Action No. 97-15107, 162 F.3d 541, 544-45 (9th Cir.1998) (“Whether the government waives its sovereign immunity is a question of subject matter jurisdiction.”) and Federal Express Corp. v. United States Postal Serv., 151 F.3d 536, 539 (6th Cir.1998) (“The federal courts may exercise subject matter juri…
Retrieving the full opinion text from the archive…
98 Cal. Daily Op. Serv. 8813, 98 Daily Journal D.A.R. 12,267 John W. Blue
v.
Sheila Widnall, Officially as Secretary of the Air Force
97-15107.
Court of Appeals for the Ninth Circuit.
Dec 3, 1998.
162 F.3d 541
William Tagupa, Honolulu, Hawaii, for plaintiff-appellant., R. Michael Burke, Assistant United States Attorney, Honolulu, Hawaii, for defendant-appellee.
Browning, Brunetti, Rymer.
Cited by 47 opinions  |  Published

ORDER

The opinion filed August 14, 1998, slip.op. 8949 [152 F.3d 1149], is amended as follows;

1. At slip op. 8954 [152 F.3d at 1150-51], the second full paragraph is deleted, and the following paragraph is inserted in its place:

We agree with the district court, but for a different reason. In Veit v. Heckler, 746 F.2d 508 (9th Cir.1984), we held that the general judicial review provisions of the APA never confer jurisdiction to review federal personnel actions. Id. at 511. “[F]ederal courts have no power to review federal personnel decisions and procedures unless such review is expressly authorized by Congress in the CSRA or elsewhere.” Id. Accordingly, the district court had no jurisdiction under the APA to review the personnel actions challenged by Blue.

2. At slip op. 8954 [152 F.3d at 1151], third paragraph, the first sentence and “[h]owever” from the second sentence is deleted. The paragraph shall read:

Blue also sought review of the challenged personnel actions pursuant to the CSRA. Blue, however, has forfeited any[*544] remedies he might have had under the CSRA. Blue did not present the allegations alleged in Counts II and III of his complaint to the OSC or the MSPB. * As the CSRA does not authorize judicial review of Blue’s alleged violations of the VP A, even if those violations deprived Blue of property and procedural rights, see Saul v. United States, 928 F.2d 829, 839 (9th Cir.1991), we lack jurisdiction to review these claims.

3. At slip op. 8956 [152 F.3d at 1151-52], the second full paragraph, the last sentence beginning with “Particularly, he must have shown ....” is deleted and is replaced with the following language:

With direct evidence, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220-21 (9th Cir.1998). On the other hand, circumstantial evidence that tends to show that the employer’s proffered motives were not the actual motives “must be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to whether the employer intended to discriminate on the basis of sex.” Id. at 1222.

With these amendments, the panel has voted unanimously to deny the petition for rehearing and to reject the suggestion for rehearing en bane.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en bane. Fed. R.App. P. 35.

The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.

OPINION

BRUNETTI, Circuit Judge:

John Blue, an African-American male and disabled veteran, applied for a civilian intelligence position with the Air Force and was not selected. The district court dismissed Counts II, III, and IV of Blue’s complaint, which alleged violations of veteran’s preference and merit system principles in the selection process, on the grounds that the court lacked subject matter jurisdiction due to Blue’s failure to point to a waiver of sovereign immunity and, alternatively, that Blue failed to state a claim for which relief could be granted. The court then granted summary judgment in favor of the Air Force on Count I, Blue’s Title VII race/color discrimination claim, on the ground that Blue failed to present sufficient evidence that the Air Force’s proffered explanation for Blue’s non-selection was pretextual. Blue appeals the district court’s dismissal of Counts II-IV and its grant of summary judgment on Count I. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. Dismissal of Counts II-IV

The district court dismissed Counts II-TV of Blue’s complaint on the grounds that it lacked subject matter jurisdiction and, alternatively, that Blue failed to state a claim for which relief could be granted. We affirm on the first ground and do not discuss the second.

The plaintiff in a lawsuit against the United States must point to an unequivocal waiver of sovereign immunity. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir.1983). Whether the government waives its sovereign immunity is a question of subject matter jurisdiction. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). We review de novo a dismissal for lack of subject matter jurisdiction. Ma v. Reno, 114 F.3d 128, 130 (9th Cir.1997).

On appeal, Blue asserts jurisdiction under 5 U.S.C. § 702 et seq., the Administrative Procedure Act (“APA”). The APA[*545] waives sovereign immunity for actions against the United States and its agencies brought under 28 U.S.C. § 1331 (i.e., federal question jurisdiction) to the extent that non-monetary relief is sought. Better v. Middendorf, 632 F.2d 788, 797 (9th Cir.1980). The district court determined that the APA did not provide a basis for jurisdiction, because jurisdiction was preempted by 5 U.S.C. §§ 7511 and 7701 et seq., the Civil Service Reform Act (“CSRA”).

We agree with the district court, but for a different reason. In Veit v. Heckler, 746 F.2d 508 (9th Cir.1984), we held that the general judicial review provisions of the APA never confer jurisdiction to review federal personnel actions. Id. at 511. “[Fjederal courts have no power to review federal personnel decisions and procedures unless such review is expressly authorized by Congress in the CSRA or elsewhere.” Id. Accordingly, the district court had no jurisdiction under the APA to review the personnel actions challenged by Blue.

Blue also sought review of the challenged personnel actions pursuant to the CSRA. Blue, however, has forfeited any remedies he might have had under the CSRA. Blue did not present the allegations alleged in Counts II and III of his complaint to the OSC or the MSPB. [1] As the CSRA does not authorize judicial review of Blue’s alleged violations of the VP A, even if those violations deprived Blue of property and procedural rights, see Saul v. United States, 928 F.2d 829, 839 (9th Cir.1991), we lack jurisdiction to review these claims.

Blue did file a written complaint with the OSC alleging that the Ah’ Force violated certain parts of 5 U.S.C. § 2302(b). [2] The violations alleged in that complaint appear in Count IV of his complaint to the trial court. The OSC responded to Blue by letter on August 23, 1996, stating that it lacked jurisdiction to entertain his claims.

Blue now argues that we have limited jurisdiction to review whether the OSC performed an adequate inquiry into his complaint. See Veit, 746 F.2d at 510-11 (stating that the system established by the CSRA provides review of prohibited personnel practices by the OSC with judicial scrutiny “limited, at most, to insuring compliance with the statutory requirement that the OSC perform an adequate inquiry .... ” (citation omitted)). [3] However, if Blue wanted the district court or this court to determine whether the OSC adequately performed its function, he needed to make the OSC a party to the action. As he failed to do so, we are not in a position to exercise limited jurisdiction to determine whether the OSC performed an adequate inquiry into Blue’s complaint.

Thus, the district court properly dismissed Counts II-TV for lack of subject matter jurisdiction.

II. Summary Judgment on Count I

Blue presented a prima facie case of race/color discrimination under Title VII. The Air Force presented legitimate, nondiseriminatory reasons for its actions with regard to Blue. Thus, the burden of production rested with Blue to show by a preponderance of the evidence that the reasons put forth by the Air Force were pretextual. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The dis[*546] trict court found that Blue failed to produce such evidence and granted summary judgment in favor of the Air Force.

Blue needed to “produce very little evidence of discriminatory motive to raise a genuine issue of fact as to pretext.” Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir.1995)(internal quotation omitted). Still, Blue needed to “produce evidence of facts that either directly show[ed] a discriminatory motive or show[ed] that the [Air Force’s] explanation for his rejection [was] not credible.” Id. With direct evidence, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220-21 (9th Cir.1998). On the other hand, circumstantial evidence that tends to show that the employer’s proffered motives were not the actual motives “must be ‘specific’ and ‘substantial’ in order to create a triable issue with respect to whether the employer intended to discriminate on the basis of sex.” Id. at 1222.

On appeal, Blue claims that he put forth several pieces of evidence that demonstrated that the Air Force’s proffered explanation for its employment decision was pretextual. We agree with the district court that Blue did not satisfy his burden of production. The following discusses Blue’s main arguments. Any arguments not discussed are similarly rejected.

Blue argues that his qualifications were so superior to the selectee’s qualifications that a rational trier of fact could find discriminatory intent. However, Blue did not present evidence that his qualifications were superior. Indeed, Blue and the selectee were scored almost identically twice prior to the interview based on their qualifications. “The closer the qualifications of the candidates, the less weight the court should give to perceived differences in qualifications in deciding whether the proffered explanations were pretextual.” Odima v. Westin Tucson Hotel Co., 991 F.2d 595, 602 (9th Cir.1993). Thus, the asserted superiority of Blue’s qualifications does not raise a genuine issue of fact of pretext. See Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th Cir.1986) (subjective personal judgments of qualifications do not raise genuine issues of material fact).

Blue cites Jauregui v. City of Glendale, 852 F.2d 1128, 1135-36 (9th Cir.1988), and out-of-circuit cases, for the proposition that the use of subjective factors (i.e., the interview process) to evaluate applicants is not illegal per se, but may be used as a covert means to effect intentional discrimination. However, Blue offers no evidence that the interview process was used to mask discriminatory motives. He merely asserts again that his qualifications were so superior that the use of the interview process shows pretext. This is simply not sufficient.

Blue argues that because the Air Force refused or failed to follow its affirmative action policies, its proffered reasons were pretextual. However, the affirmative employment plan at issue in this case does not target the position sought by Blue. The position falls within a category under the plan for which there was no underrepresentation of African-American males during the relevant time period. Blue did not dispute this evidence below nor does he do so now.

Blue argues that statements made by the selecting official after the selection process show discriminatory intent. After the selection was made, the selecting official asked an equal employment staffing specialist whether he was supposed to take into account affirmative action or veteran’s preference in making the selection. The nature of these statements in conjunction with the elaborate selection process seems to demonstrate that the selecting official was merely being cautious. These statements are not specific, substantial evidence that the Air Force’s proffered reasons for not selecting Blue were pretextual. Regardless, this argument was not raised below and we are not obligated to entertain it here. See Fry, 939 F.2d at 835.

Blue contends that the fact that the selection process violated personnel regulations shows pretext. Blue argues that after the Consolidated Civilian Personnel Office assigned the five or ten-point veteran’s preference points to the appropriate applicants, the Air Force was required by 5 C.F.R. § 302.303(d)(2)(ii) to list all applicants by cat[*547] egory in the following order: those eligible for a ten-point preference, those eligible for a five-point preference, those not eligible for a preference. This process would have placed Blue in the top three candidates and removed the selectee from the top three. The district court correctly noted that the Intelligence Authorization Act of 1987, 10 U.S.C. § 1590 (repealed), covered the position sought and noted that Air Force Instruction 36-1101, directing local personnel offices on the application of Section 1590, mandates that various veteran’s preference regulations do not apply in the appointment of civilian intelligence positions. Specifically, the Air Force was not required to list the candidates by preference category and select from the top three applicants on that list.

Blue argues that the Air Force’s failure to record and inform him of the reasons it selected a non-veteran’s preference eligible candidate over him, as required by 5 C.F.R. § 302.401(b), is evidence of pretext. However, the failure to record the reasons for non-selection, unaccompanied by any evidence of discrimination, does not raise a genuine issue of fact whether the reasons now offered are pretext for discrimination.

Blue asserts that the Air Force’s failure to employ affirmative action with respect to his status as a disabled veteran shows pretext. The district court correctly found that the affirmative action plan at issue did cover disabled veterans, but that it did not apply to this position. Regardless, this would not demonstrate that the Air Force’s proffered reasons were pretext for race/col- or-based discrimination.

Finally, Blue relies on Kolstad v. American Dental Ass’n, 108 F.3d 1431, 1436 (D.C.Cir.1997), rev’d in part, 139 F.3d 958 (D.C.Cir.1998)(en banc), and argues that the panel’s improper consideration of recommendations submitted on the selectee’s behalf shows that the selectee was “preselected” for the position, which shows discriminatory intent. Blue did not present evidence that the selecting official was aware of any prohibitions against considering recommendations. Additionally, the fact that the selectee was credited for his enthusiasm in obtaining recommendations does not show that the selec-tee was, in fact, preselected. Regardless, only preselection based on discriminatory motives violates Title VII. See Goostree v. Tennessee, 796 F.2d 854, 861-62 (6th Cir.1986). Blue has not presented evidence that any preselection resulted from a discriminatory motive instead of political considerations. Again, Blue fails to present sufficient evidence of pretext.

Blue simply has not presented evidence that the Air Force’s proffered explanation was pretextual so that a rational trier of fact could find discriminatory intent.

AFFIRMED.

*

Blue alleged in Count II of his complaint "that he was discriminated against on the basis of his veteran’s preference/status contrary to 5 U.S.C. Sections 2108, 3309(1), 38 U.S.C. Section 4414(c), 5 C.F.R. Sections 302.201, 302.202, 302.304 and 720.301 etseq.”

Blue Alleged in Count III that "his Section 3309(1) 10-point preference is a benefit property right and that he was deprived of said right by Defendants without due process or equal protection. ...”

1

. Blue alleged in Count II of his complaint "that he was discriminated against on the basis of his veteran’s preference/status contrary to 5 U.S.C. Sections 2108, 3309(1), 38 U.S.C. Section 4414(c), 5 C.F.R. Sections 302.201, 302.202, 302.304 and 720.301 et seq.”

Blue Alleged in Count III that "his Section 3309(1) 10-point preference is a benefit property right and that he was deprived of said right by Defendants without due process or equal protection. ..."

2

. The OSC's August 23, 1996, letter to Blue states that his complaint alleged violations of 5 U.S.C. §§ 2302(b)(1)(A) and (b)(2). Blue's Opening and Reply Briefs suggest that his complaint to the OSC also alleged a violation of (b)(6). Blue's complaint to the OSC was not entered into the record.

3

.Blue did not make this argument to the district court. "As a general rule, we will not consider an issue raised for the first time on appeal, although we have the power and discretion to do so.” Fry v. Melaragno, 939 F.2d 832, 835 (9th Cir.1991). We can consider such an issue where it is purely one of law and the pertinent record has been developed. Id.