                           NOT FOR PUBLICATION                           FILED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


                                           2                                    15-35483
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


                                           3                                    15-35483
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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