Mesbah

MEMORANDUM **

Sonny Mesbah appeals the district court’s dismissal of his complaint pursuant to Rule 12(b)(6). At oral argument, the attorney for the government conceded that Mesbah’s Title VII claim based on his non-selection for a deportation officer position in January 1997 should not have been dismissed. We .agree. We address the disputed issues in the discussion that follows. Because the parties are familiar with the facts and prior proceedings, we do not restate them unless necessary.

I

At oral argument, Mesbah contended that the district court erred by not allowing him leave to amend his complaint to restate claims made under the Americans with Disabilities Act as claims under the Rehabilitation Act of 1973. Mesbah waived this issue before us by not arguing it in his opening brief. Barnett v. U.S. Air, Inc., 228 F.3d 1105 , 1110 n. 1 (9th Cir.2000) (en banc) (“[T]he law of this circuit is that issues not raised in a party’s opening brief are waived.”). Our holding that the issue has been waived before us does not preclude the district court from deciding in its discretion, following remand, whether Mesbah should be allowed to amend his complaint to restate the…