             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                                                          [DO NOT PUBLISH]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
