[DO NOT PUBLISH]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: 1 of 6 
2

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). 

Case: 16-12494 Date Filed: 03/01/2017 Page: 2 of 6 
3

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 

Case: 16-12494 Date Filed: 03/01/2017 Page: 3 of 6 
4

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. 

Case: 16-12494 Date Filed: 03/01/2017 Page: 4 of 6 
5

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). 

Case: 16-12494 Date Filed: 03/01/2017 Page: 5 of 6 
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.

 

Case: 16-12494 Date Filed: 03/01/2017 Page: 6 of 6