NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 5 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADRIAN FULLER; JERRY HUDSON, No. 15-35483
Plaintiffs-Appellants, D.C. No. 2:14-cv-00208-RSL
v.
MEMORANDUM**
ELAINE C. DUKE,* Acting Secretary,
Department Homeland Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted September 26, 2017***
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Adrian Fuller and Jerry Hudson appeal pro se from the district court’s
*
Elaine Duke has been substituted for her predecessor, Jeh Charles
Johnson, as Acting Secretary of Homeland Security under Fed. R. App. P.
43(c)(2).
**
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
summary judgment in their employment action alleging that defendant fraudulently
concealed evidence in their prior Title VII actions. We have jurisdiction under 28
U.S.C. § 1291. We review de novo. FTC v. Stefanchik, 559 F.3d 924, 927 (9th
Cir. 2009). We affirm.
The district court properly granted summary judgment on plaintiffs’ Title
VII discrimination claims as barred by res judicata because their claims were
raised, or could have been raised, in prior federal actions between the parties or
their privies that resulted in final judgments on the merits. See Frank v. United
Airlines, Inc., 216 F.3d 845, 850 & n.4 (9th Cir. 2000) (elements of res judicata).
The district court properly granted summary judgment on plaintiffs’ Title
VII retaliation claims because plaintiffs failed to initiate contact with an Equal
Employment Opportunity (“EEO”) Counselor or any agency official logically
connected with the EEO process within 45 days of becoming aware of the facts
underlying their retaliation claims. See 29 C.F.R. § 1614.105(a)(1) (“An aggrieved
person must initiate contact with a Counselor within 45 days of the date of the
matter alleged to be discriminatory[.]”); Lukovsky v. City & County of San
Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008) (Title VII claim accrues upon
awareness of the actual injury and not when a plaintiff suspects a legal wrong); see
also Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572 F.3d
1039, 1044-46 (9th Cir. 2009) (explaining that for a retaliation claim, plaintiff can
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comply with § 1614.105(a)(1) by initiating contact with “any agency official
logically connected with the EEO process, even if that official is not an EEO
Counselor, and by exhibiting an intent to begin the EEO process”).
The district court did not abuse its discretion in denying plaintiffs’ request to
set aside the judgments in their prior actions because Fuller and Hudson failed to
establish by clear and convincing evidence that any party perpetrated a “fraud on
the court.” Pizzuto v. Ramirez, 783 F.3d 1171, 1180-81 (9th Cir. 2015) (to set
aside a prior judgment based on fraud under Fed. R. Civ. P. 60(d)(3) or 60(b)(6), a
party must demonstrate “an unconscionable plan or scheme which is designed to
improperly influence the court in its decision” (citation and internal quotation
marks omitted)); United States v. Estate of Stonehill, 660 F.3d 415, 443 (9th Cir.
2011) (standard of review).
The district court did not abuse its discretion in denying plaintiffs’ request to
amend their complaint because amendment would be futile. See Chappel v. Lab.
Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth standard of
review and explaining that a district court acts within its discretion to deny leave to
amend a complaint when amendment would be futile).
We do not consider matters not properly raised before the district court. See
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
We do not consider matters not specifically and distinctly raised and argued
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in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Plaintiffs’ motion for oral argument (Docket Entry No. 34) is denied.
AFFIRMED.
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