Opinion
No. 08-5157.
Filed On: October 7, 2009.
BEFORE: BROWN, GRIFFITH, and KAVANAUGH, Circuit Judges.
ORDER
Upon consideration of the motions for summary affirmance and the opposition thereto, it is
ORDERED that the motion for summary affirmance filed by the federal appellees be granted and the motion for summary affirmance filed by the District of Columbia appellees be denied. The merits of the parties' positions are not so clear as to warrant summary action with respect to the claims against the District of Columbia appellees. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). With respect to the federal appellees, the district court properly dismissed appellant's claims against federal appellee Carter under Title VII. See Brown v. GSA, 425 U.S. 820, 835 (1976) (establishing that Title VII is the exclusive remedy for claims of discrimination in federal employment). Even if the 45-day period for contacting an Equal Employment Opportunity ("EEO") counselor did not begin until appellant heard the trial testimony in his prior action on April 14, 2003, he failed to exhaust his administrative remedies because he did not file his complaint with the EEO office until August 28, 2003, which was 136 days later.See 29 C.F.R. § 1614.105(a)(1). The district court correctly awarded summary judgment to the appellees regarding the claims against the FBI that arose prior to June 9, 1998, because those claims were precluded by a 1998 settlement agreement. Although appellant claims the appellees breached the settlement agreement, he did not raise this argument before the district court, and this court will not consider arguments raised for the first time on appeal. See United States v. Stover, 329 F.3d 859, 872 (D.C. Cir. 2003). It is
FURTHER ORDERED, on the court's own motion, that
Professor Steven Goldblatt
Georgetown University Law Center
111 F Street, NW
Washington, D.C. 20001
a member of the Bar of this court, be appointed as amicus curiae to present arguments in favor of the appellant on his claims against the District of Columbia appellees.
Because the court has determined that summary disposition is not in order with respect to the District of Columbia appellees, the Clerk is instructed to calendar this case for presentation to a merits panel. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until resolution of the remainder of the appeal.