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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-1745

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ARTHUR L. STONE,

Appellant

v.

JEH JOHNSON, 

Acting Secretary, Department of Homeland Security

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No. 2-13-cv-03765)

District Judge: Hon. Stewart Dalzell

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Argued: November 20, 2014

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Before: McKEE, Chief Judge, RENDELL and SLOVITER, Circuit Judges.

(Filed: June 23, 2015)

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OPINION*

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* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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Dennis L. Friedman, Esq. [ARGUED]

Suite 714 

1515 Market Street 

Philadelphia, PA 19102

Counsel for Appellant

Richard M. Bernstein, Esq. [ARGUED]

Office of United States Attorney 

615 Chestnut Street 

Suite 1250 

Philadelphia, PA 19106 

Counsel for Appellee

MCKEE, Circuit Judge.

Plaintiff Arthur L. Stone appeals the District Court’s order granting the 

Department of Homeland Security’s Motion to Dismiss in the action that Stone filed 

alleging employment discrimination on the basis of his disability. For the reasons that 

follow, we will reverse the order of the District Court and remand.

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I.

Stone was a Federal Air Marshal employed by the Transportation Security 

Administration (“TSA”). He was removed from his position because he had a medical 

condition that rendered him unable to perform his duties. Less than a year after being 

removed, he claimed to have recovered and requested that he be returned to duty. 

However, he continued to receive disability benefits from the Office of Workers’ 

Compensation Program (“OWCP”). When the TSA refused to reinstate him, Stone filed 

a complaint before the Equal Employment Opportunity Commission alleging 

 

1 The District Court had jurisdiction of this case pursuant to 42 U.S.C. § 2000e-16(c). 

This court has jurisdiction of this appeal under 28 U.S.C. § 1291.
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discrimination in violation of Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 

791 et seq., as reprisal for “engaging in prior EEO activity challenging his termination.” 

The Administrative Judge ruled in favor of the TSA, concluding that, although Stone 

established a prima facie case of reprisal, the TSA articulated a legitimate, 

nondiscriminatory reason for its action: Stone continued to receive benefits. The 

Commission affirmed the Administrative Judge’s order.

Stone appealed the EEOC’s affirmance of the Administrative Judge’s order to the 

District Court. The Department of Homeland Security (“DHS”) filed a motion to 

dismiss, contending that Stone’s action should be dismissed as collaterally estopped. The 

District Court granted the motion and this appeal followed.2

II.

Four requirements must be met in order for a claim to be collaterally estopped: (1) 

the identical issue must have been previously adjudicated; (2) the issue must have been

actually litigated; (3) the previous determination of the issue must have been necessary to 

the decision; and (4) the party being precluded from relitigating the issue must have been

fully represented in the prior action. Jean Alexander Cosmetics, 458 F.3d at 249. Mr. 

Stone does not deny that all four factors are present here. Stone contends, however, that 

 

2 We exercise plenary review of a district court’s order granting a motion to dismiss on 

the basis of collateral estoppel. See, e.g., Jean Alexander Cosmetics, Inc. v. L'Oreal USA, 

Inc., 458 F.3d 244, 248-49 (3d Cir. 2006). Such a motion to dismiss under Rule 12(b)(6) 

should be “granted only if, accepting the well-pleaded allegations in the complaint as true 

and viewing them in the light most favorable to the plaintiff, a court concludes that those 

allegations ‘could not raise a claim of entitlement to relief.’” Simon v. FIA Card Servs., 

N.A., 732 F.3d 259, 264 (3d Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 558 (2007)).
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the District Court should not have relied on the EEOC’s ruling that the TSA did not 

discriminate against him because the EEOC’s decision was “not a final, unappealable 

decision” and that he is entitled to trial de novo under 5 U.S.C. §§ 7702(a)(3)(B), (e)(1) 

and § 7703. We agree.

Agency decisions under Title VII do not have preclusive effect because, under that 

statute, federal employees are entitled to a trial de novo of their employment 

discrimination claims in federal court. See Chandler v. Roudebush, 425 U.S. 840, 845 

(1976). While Stone’s claim of discrimination arises under the Rehabilitation Act of 

1973,

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instead of Title VII, we have previously explained that federal employees suing 

under the Rehabilitation Act are also entitled to de novo review of administrative 

decisions in federal court:

On conclusion of the administrative proceeding, a district court may 

provide two distinct forms of relief. First, a federal employee who prevails

in the administrative process may sue in federal court to enforce an 

administrative decision with which an agency has failed to comply. Such 

an enforcement action does not trigger de novo review of the merits of the 

employee's claims. . . . Alternatively, a federal employee unhappy with the

 

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 In his brief before this court, Stone argued he was “alleging that the Agency had failed 

to restore him to his position, in violation of the restoration regulations and that the 

Agency’s decision to deny him his restoration rights was motivated by impermissible 

discrimination under the Rehabilitation Act and, in particular, in reprisal for his having 

engaged in prior EEO activity.” (Appellant Br. at 2-3.) Likewise, in his Amended 

Complaint before the District Court, Stone stated that “the Agency had failed to restore 

him to his position, in violation of the restoration regulations and that the Agency's 

decision to deny him his restoration rights was motivated by impermissible 

discrimination under the Rehabilitation Act of 1973 and, in particular, in reprisal for his 

having engaged in prior EEO activity.” (J.A. 63.) In its decision, the EEOC also noted 

that “in his decision, the [ALJ] referred to Title VII of the Civil Rights Act of 1964, 42 

U.S.C. § 2000e et seq. (Title VII). Complainant's reprisal allegation, however, falls 

under the Rehabilitation Act.” (J.A. 26.)
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administrative decision may bring his or her claims to a district court, under 

Section 505(a) of the Rehabilitation Act, 29 U.S.C. § 794a(a), and receive 

the same de novo consideration that a private sector employee enjoys in a 

Title VII action, under 42 U.S.C. § 2000e-16(c). 

Morris v. Rumsfeld, 420 F.3d 287, 290 (3d Cir. 2005) (citing Chandler, 425 U.S. at 863. 

Because Stone appealed the EEOC’s decision, the District Court should have reviewed 

Stone’s claims de novo. Therefore, it erred in dismissing Stone’s suit as collaterally 

estopped.

III.

For the reasons set forth above, we will reverse the judgment of the District Court

and remand for proceedings in accordance with this decision.