NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADRIAN FULLER; JERRY HUDSON, 

Plaintiffs-Appellants,

 v. 

ELAINE C. DUKE,

* Acting Secretary, 

Department Homeland Security,

Defendant-Appellee.

No. 15-35483 

D.C. No. 2:14-cv-00208-RSL 

MEMORANDUM**

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).

FILED

OCT 5 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 15-35483 

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 
3 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 
4 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.