                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 10 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

NESTOR C. DOMINGO,                              Nos. 15-15907
                                                Nos. 17-15887
                Plaintiff-Appellant,
                                                D.C. Nos. 3:13-cv-04150-CRB
 v.                                                       3:13-cv-04151-CRB

MEGAN J. BRENNAN, Postmaster General
Pacific Area United States Postal Service,      MEMORANDUM*
Agency,

                Defendant-Appellee.

                   Appeals from the United States District Court
                      for the Northern District of California
                    Charles R. Breyer, District Judge, Presiding

                             Submitted May 8, 2017**

Before:      REINHARDT, LEAVY, and NGUYEN, Circuit Judges.

      Nestor C. Domingo appeals pro se from the district court’s judgments in his

federal employment actions. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009) (dismissal


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under summary judgment and Fed. R. Civ. P. 12(b)(6)); Mpoyo v. Litton Electro-

Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005) (res judicata). We may affirm on

any basis supported by the record. Hell’s Angels Motorcycle Corp. v. McKinley,

360 F.3d 930, 933 (9th Cir. 2004). We affirm.

      The district court properly granted summary judgment on Domingo’s

Rehabilitation Act claim relating to a third fitness for duty exam because Domingo

failed to raise a genuine dispute of material fact as to whether the examination was

not job-related and inconsistent with business necessity. See Brownfield v. City of

Yakima, 612 F.3d 1140, 1145 (9th Cir. 2010) (explaining business necessity

standard).

      The district court properly dismissed Domingo’s discrimination, retaliation,

harassment, and hostile work environment claims on the basis of res judicata

because the claims were raised, or could have been raised, in a prior action

between the parties that resulted in a final judgment on the merits. See Owens v.

Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713-14 (9th Cir. 2001) (stating

elements of the doctrine of res judicata and noting that it bars subsequent litigation

of both claims that were raised and claims that could have been raised in the prior

action).

                                          2                            15-15907; 17-15887
      The district court properly dismissed Domingo’s tort claims because, even if

Domingo raised his tort claims in his EEO complaints, those complaints did not

state a “sum certain,” as required by the Federal Tort Claims Act (“FTCA”). See

Blair v. IRS, 304 F.3d 861, 865, 868-69 (9th Cir. 2002) (setting forth the FTCA’s

“sum certain” requirement).

      The district court properly dismissed Domingo’s contract claim because

Domingo failed to seek redress for the alleged breach through his union. See Stupy

v. U.S. Postal Serv., 951 F.2d 1079, 1082 (9th Cir. 1991) (use of union grievance

procedure required before Postal Service employee may bring breach of contract

action against employer).

      Dismissal of Domingo’s due process claim was proper because Domingo

may not bring such a claim against the Postmaster in her official capacity. See

Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d

1157, 1173 (9th Cir. 2007) (“[A] Bivens action can be maintained against a

defendant in his or her individual capacity only, and not in his or her official

capacity.” (citation and internal quotation marks omitted)).

      The district court did not abuse its discretion in granting defendant’s motion

to file documents under seal because the documents contained sensitive medical

                                           3                            15-15907; 17-15887
information. See Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 679 (9th Cir. 2010)

(standard of review).

      We lack jurisdiction to consider the district court’s bill of costs because

Domingo failed to file a separate or amended notice of appeal. See Stone v. INS,

514 U.S. 386, 403 (1995) (order deciding post-judgment non-tolling motion must

be separately appealed).

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      AFFIRMED.




                                          4                            15-15907; 17-15887
