[DO NOT PUBLISH]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 a nd 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 62 Kenneth Humphrey , proceeding pro se , appeals th e district court’s grant of the Depa rtment 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 196 4 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 th e same claims as before and adding claims that his right to due process under the 5th and 14th Amendments was violate d. 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 clai ms 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 63 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).
T he 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 fi nal judgment on the merits when the district court granted summary judgment in favor of DHS a s 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 no w

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 “ge nerally represent only another way of pleading an action against an entity of which an officer is an agent ” ).
B oth cases involved the same cause of action , as the claims in both cases

co me 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 64 identical claims of violations of Title VII, the ADEA , and § 1985

. A s 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, w hile 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 mat ter 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. Edmondso n Oil Co. , 457 U.S. 922, 924 (1982) (explaining b ecause the Fourteenth Amendment is directed at the states, it can only be violated by conduct fairly c haracterized as a “state action ” ). As to his Fifth Amendment claim, it is barred even when liberally con strued 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 De p’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 i n the prior litigation. Id

.

Case: 16-12494 Date Filed: 03/01/2017 Page: 4 of 65 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 ( “ A bsent 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 th ere is no evidence in the record that DHS waived immunity, his claim for damages is barred. 3 With regard to equitable relief, the C ivil S ervice R eform Act (CSRA) provides the framework by which Humphrey had to seek redress for the alleged adverse personne l 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 W hile 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 cap acity, 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 66 ultra vires activities of DHS officials triggered an exception to sovereign im munity 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 s overeign 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 dismis sing Humphre y’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