NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ADRIAN FULLER ; JERRY HUDSON,

Plaintiffs

- Appellants,

v.
ELAINE C. DUKE , * Acting Secretary, Depart ment 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 fo r decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

OCT 5 2017
MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 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 becaus e their claims were raised, or could have been raised, in prior federal action s between the parties or their privies that resulted in final judgment s on the merits. See Frank v. United Airlines, Inc. , 216 F.3d 845, 850 & n. 4 (9th Cir. 2000) (elements of r es judicata)

. T he district court properly granted summary judgment on plaintiffs’ Title
VII retaliation claims because plaintiffs failed to initiate contact with an Equal Employmen t Opportunity (“EEO”) Counselor or any agency official logically connected with the EEO process within 45 days of becoming aware of the facts underlying thei r retaliation claims

. See 29 C.F.R. § 1614.105(a)(1) (“An aggrieved person must initiate contact w ith 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 plaintif f 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 can3 15

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comply with § 1614.105(a)(1) by initiating contact with “an y 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 co nvincing 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 Sta tes 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 be fore 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 argued4 15

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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.