Khan v. Veneman

105 F. App'x 160

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 23, 2004
• Docket: No. 03-16720; D.C. No. CV-02-05066-REC
• Status: Published

Opinion

MEMORANDUM

**

Appellant Hazoor A. Khan appeals the district court’s affirmance of a final administrative decision upholding his removal from federal employment.

I

Khan was terminated by his employer, the United States Department of Agriculture (“USDA”) for misconduct. Khan appealed to the Merit Systems Protection Board (“MSPB”), alleging national origin and disability discrimination. The MSPB rejected Khan’s appeal, finding no evidence of discrimination and upholding the USDA’s non-discriminatory basis for termination. The MSPB found the penalty of termination reasonable and consistent with the USDA’s policies and regulations.

Khan filed a complaint in the United States District Court for the Eastern District of California against the Secretary of the USDA (“the Secretary”), asserting a Title VII claim of national origin discrimination and seeking review of the MSPB’s personnel decision under 5 U.S.C. § 7703(b)(2). The district court entered judgment for the USDA.

II

Khan’s filing of a notice of non-opposition to the Secretary’s summary judgment motion did not reserve his right to appeal. The consent to the district court’s entry of judgment for the Secretary constituted a waiver of any subsequent challenge to that judgment on the merits. Paracor Finance, Inc. v. General Elec. Capital Corp., 96 F.3d 1151, 1168 (9th Cir.1996); cf. Slaven v. American Trading Transp. Co., Inc., 146 F.3d 1066, 1069-70 (9th Cir.1998) (stating exception to rule that judgments entered by consent cannot be appealed where the consenting party explicitly reserves its right to appeal).

III

Any claim Khan may have had that he did not consent to his counsel’s filing of the notice of non-opposition was properly raised in the first instance before the district court. Paracor Finance, Inc., at 1168 n. 22 (citing Telco Leasing, Inc. v. Transwestern Title Co., 630 F.2d 691, 693 (9th Cir.1980)). Even if such a claim was properly before this court, Khan failed to raise the issue in his appellate brief and we therefore deem it waived. Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir. 1988) (“It is well established in this Circuit that claims which are not addressed in the appellant’s brief are deemed abandoned.”).¹

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . Khan’s motion to extend the time to file his reply brief is denied as moot.