                                                                            FILED
                             NOT FOR PUBLICATION                            SEP 02 2015

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


ROBERT MICHAEL MILLER,                           No. 13-17137

                Plaintiff - Appellant,           D.C. No. 3:13-cv-01856-EDL

 v.
                                                 MEMORANDUM*
SHAYNA OLESIUK; et al.,

                Defendants - Appellees.


                     Appeal from the United States District Court
                        for the Northern District of California
                  Elizabeth D. Laporte, Magistrate Judge, Presiding**

                             Submitted August 25, 2015***

Before:         McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.

      Robert Michael Miller appeals pro se from the district court’s judgment

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

          **The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).

          ***The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, we deny
Miller’s request for oral argument, set forth in his opening brief.
dismissing for failure to exhaust administrative remedies his action alleging

various federal and state law claims in connection with his employment. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo, Vinieratos v. U.S., Dep’t

of Air Force, 939 F.2d 762, 767-68 (9th Cir. 1991), and we affirm.

      The district court properly concluded that Title VII and the Rehabilitation

Act (“RA”) were Miller’s exclusive remedies for claims of discrimination in

federal employment. See Boyd v. U.S. Postal Serv., 752 F.2d 410, 413-14 (9th Cir.

1985) (Title VII is the exclusive remedy for discrimination by the federal

government on the basis of sex, and the RA is the exclusive remedy for

discrimination by the federal government on the basis of disability); see also Brock

v. United States, 64 F.3d 1421, 1424 (9th Cir. 1995) (Title VII’s exclusivity

regarding discrimination on the basis of sex also applies to discrimination on the

basis of gender); Clemente v. United States, 766 F.2d 1358, 1364 n.7 (9th Cir.

1985) (“To the extent that plaintiff’s Bivens claims are founded in actions

proscribed by Title VII, they may not be maintained because Title VII provides the

exclusive remedy.”).

      The district court properly concluded that Miller failed to exhaust his

administrative remedies on his Title VII and RA claims because he failed to

complete the negotiated grievance procedure. See Vinieratos, 939 F.2d at 767-68


                                          2                                     13-17137
(“Title VII specifically requires a federal employee to exhaust his administrative

remedies as a precondition to filing suit.”); Boyd, 752 F.2d at 413-14 (the same

requirement applies to RA claims); see also Vinieratos, 939 F.3d at 768 (a federal

employee who is a union member and alleges employment discrimination must

elect to pursue his claim under either a statutory procedure or a negotiated

grievance procedure, but “he cannot pursue both avenues, and his election is

irrevocable”).

      Because Miller failed to exhaust, we do not consider Miller’s arguments

regarding the merits of his claims.

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      Miller’s requests, set forth in his opening brief, are denied.

      AFFIRMED.




                                           3                                      13-17137
