Gerardo S. Gallares, Plaintiff-appellant, v. Marvin Runyon, Postmaster General; Robert v. Conser;michael Daley; Consuelo Lightner, Defendants-appellees, 103 F.3d 138 (9th Cir. 1996)

MEMORANDUM^** 

Gerardo Gallares appeals pro se the district court's summary judgment in favor of the defendants in his action alleging discrimination on the basis of his physical handicap in violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 791. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 496 U.S. 937 (1990), and affirm.

Here, it is undisputed that Gallares failed to exhaust his administrative remedies. The district court ruled that the defendants should not be estopped from arguing that Gallares failed to exhaust his administrative remedies. Specifically, the district court concluded that Gallares failed to raise a genuine issue of material fact as to whether he reasonably relied upon an Equal Employment Opportunity counselor's alleged misstatement of the law concerning exhaustion of administrative remedies because Gallares was represented by counsel at the time. We agree. See Cooper v. Bell, 628 F.2d 1208, 1214 (9th Cir. 1980) (stating that in order to establish estoppel against the government, a litigant must show, among other things, that he reasonably relied upon the alleged misrepresentation). Accordingly, we affirm the district court's summary judgment.

AFFIRMED.