Kenneth Humphrey v. US Department of Homeland Secu, et al

Filing

Opinion issued by court as to Appellant Kenneth D. Humphrey. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-12494

Date Filed: 03/01/2017

Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12494
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cv-22008-AOR
KENNETH D. HUMPHREY,
Former Customs and Border Protection Officer,
Plaintiff-Appellant,
versus
US DEPARTMENT OF HOMELAND SECURITY,
Jeh Charles Johnson, Secretary/US Customs and Border Protection,
US DEPARTMENT OF HOMELAND SECURITY,
Janet Napolitano, Former Secretary (Until Fall 2013)/US Customs and Border
Protection,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 1, 2017)
Before JULIE CARNES, JILL PRYOR and BLACK, Circuit Judges.
PER CURIAM:

Case: 16-12494

Date Filed: 03/01/2017

Page: 2 of 6

Kenneth Humphrey, proceeding pro se, appeals the district court’s grant of
the Department of Homeland Security’s (DHS) motion to dismiss the claims in his
complaint on the basis of res judicata and for a lack of subject matter jurisdiction.
In 2011, Humphrey filed a complaint against the Secretary of DHS, his employer,
alleging employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 and the Age Discrimination in Employment Act of 1967 (ADEA), and
a conspiracy to obstruct justice, in violation of 42 U.S.C. § 1985. After summary
judgment was entered in favor of DHS, Humphrey filed the present suit, again
against the Secretary of DHS, raising the same claims as before and adding claims
that his right to due process under the 5th and 14th Amendments was violated.
The district court held that all the claims were barred by res judicata and,
additionally, the new constitutional claims failed for lack of subject matter
jurisdiction. After review,1 we affirm.
The doctrine of res judicata bars the filing of claims that were raised or
could have been raised in an earlier proceeding. Ragsdale v. Rubbermaid, Inc.,
193 F.3d 1235, 1238 (11th Cir. 1999). Res judicata bars a claim in a prior case if:
“(1) there is a final judgment on the merits; (2) the decision was rendered by a
court of competent jurisdiction; (3) the parties, or those in privity with them, are
1

The determination that a claim is barred on the basis of res judicata is a determination
of law, and we review such a decision de novo. Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235,
1238 (11th Cir. 1999). We review questions concerning a district court’s subject matter
jurisdiction de novo. Mesa Valderrama v. United States, 417 F.3d 1189, 1194 (11th Cir. 2005).
2

Case: 16-12494

Date Filed: 03/01/2017

Page: 3 of 6

identical in both suits; and (4) the same cause of action is involved in both cases.”
Id. “It is now said, in general, that if a case arises out of the same nucleus of
operative fact, or is based upon the same factual predicate, as a former action, that
the two cases are really the same ‘claim’ or ‘cause of action’ for purposes of res
judicata.” Id. at 1239 (quotations omitted).
The doctrine of res judicata bars Humphrey from litigating all of the claims
in his current complaint. Humphrey’s prior litigation (Humphrey I) was decided in
a court of competent jurisdiction, and resulted in a final judgment on the merits
when the district court granted summary judgment in favor of DHS as to all of
Humphrey’s claims. In addition, the parties were identical because Humphrey
sued DHS in both proceedings. Even though Humphrey’s current complaint now
names Jeh Charles Johnson and Janet Napolitano, both were sued in their official
capacities, meaning that the action was treated as having been pled against DHS.
See Kentucky v. Graham, 473 U.S. 159, 165 (1985) (explaining official-capacity
lawsuits “generally represent only another way of pleading an action against an
entity of which an officer is an agent”).
Both cases involved the same cause of action, as the claims in both cases
come from a common nucleus of operative fact, namely the November 2008
dispute with airport employees and the ensuing “final hatchet issue of
discriminatory and retaliatory actions.” Moreover, Humphrey asserts in both cases
3

Case: 16-12494

Date Filed: 03/01/2017

Page: 4 of 6

identical claims of violations of Title VII, the ADEA, and § 1985. As both
Humphrey I and the current complaint arise out of the same nucleus of operative
fact, all claims that could have been raised in Humphrey I are barred by res
judicata. See Ragsdale, 193 F.3d at 1238. Therefore, while Humphrey raised his
constitutional claims for the first time in his current complaint, they are barred,
leaving him with no claims on which to proceed.2
Moreover, Humphrey’s constitutional claims were also properly dismissed
for a lack of subject matter jurisdiction. As an initial matter, his Fourteenth
Amendment claim fails because he asserts it against DHS, a federal agency.
Therefore, because his complaint fails to assert a claim arising out of a state action,
it is barred. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982)
(explaining because the Fourteenth Amendment is directed at the states, it can only
be violated by conduct fairly characterized as a “state action”). As to his Fifth
Amendment claim, it is barred even when liberally construed as seeking both
damages and equitable relief. See Alba v. Montford, 517 F.3d 1249, 1252 (11th
Cir. 2008) (stating pro se pleadings are held to a less-strict standard than counseled
pleadings and thus are liberally construed). With regard to damages, absent a
2

We have previously rejected the argument that a manifest injustice exception should
be applied, noting that “[t]here is simply no principle of law or equity which sanctions the
rejection by a federal court of the salutary principle of res judicata.” Griswold v. Cty. of
Hillsborough, 598 F.3d 1289, 1294 (11th Cir. 2010) (quoting Federated Dep’t Stores, Inc. v.
Moitie, 452 U.S. 394, 401 (1981)). We further held that, even if such an exception existed,
application of res judicata would not be unjust, because the plaintiff already had his day in court,
and could have advanced his later claims in the prior litigation. Id.
4

Case: 16-12494

Date Filed: 03/01/2017

Page: 5 of 6

waiver, sovereign immunity shields the federal government and its agencies from
suit. See JBP Acquisitions, LP v. U.S. ex rel. F.D.I.C., 224 F.3d 1260, 1263 (11th
Cir. 2000 (“Absent a waiver, sovereign immunity shields the Federal Government
and its agencies from suit,” and “[t]he terms of the federal government’s consent to
be sued in any court define that court’s jurisdiction to entertain the suit.”
(quotations omitted)). As Humphrey asserts his claim against DHS, and there is no
evidence in the record that DHS waived immunity, his claim for damages is
barred.3
With regard to equitable relief, the Civil Service Reform Act (CSRA)
provides the framework by which Humphrey had to seek redress for the alleged
adverse personnel actions taken against him. See Lee v. Hughes, 145 F.3d 1272,
1274 (11th Cir. 1998) (explaining the CSRA created an elaborate framework for
evaluating adverse personnel actions against federal employees). As he filed this
complaint instead of pursuing action under the CSRA, the district court was
precluded from hearing it. Id. at 1275-76. Finally, Humphrey’s argument that the

3

While Humphrey would be permitted to bring a Bivens action for damages against
Johnson and Napolitano in their individual capacities, he has not done so here, and the official
capacity claims he has raised are barred by sovereign immunity. See Bivens v. Six Unknown
Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971) (holding a plaintiff can
bring a suit for damages against a federal official for constitutional violations occurring under the
color of federal law); F.D.I.C. v. Meyer, 510 U.S. 471, 483-86 (1994) (explaining while a cause
of action can be brought under Bivens against federal officials in their individual capacity, such
claims may not extend to those officers in their official capacity, and those official capacity
claims against federal agencies continue to be barred by sovereign immunity).
5

Case: 16-12494

Date Filed: 03/01/2017

Page: 6 of 6

ultra vires activities of DHS officials triggered an exception to sovereign immunity
is unavailing, because he again asserts his complaint against DHS instead of a
named officer in his or her individual capacity. See Dugan v. Rank, 372 U.S. 609,
621-22 (1963) (while sovereign immunity does not bar suits for specific relief
against officers acting unconstitutionally or beyond their statutory authority, in
bringing suit, the officer’s actions can only serve as the basis for the suit against
the officer as an individual). Accordingly, because the district court did not err in
dismissing Humphrey’s complaint on the basis his claims were barred by res
judicata and for a lack of subject matter jurisdiction, we affirm.
AFFIRMED.

6