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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13834
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-23237-MGC
ROBERT JOSEPH SARHAN,
Plaintiff-Appellant,
versus
DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 14, 2017)
Before HULL, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Robert Sarhan, proceeding pro se, is a former federal employee who was
terminated by the Federal Bureau of Prisons (“BOP”) in 2007. Since that time,
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Sarhan has twice appealed his termination to the Merits Systems Protection Board
(“MSPB” or “Board”), which first affirmed his termination and then dismissed his
appeal as barred by res judicata. After each proceeding before the MSPB, Sarhan
appealed to the United States Court of Appeals for the Federal Circuit, which
affirmed the final decisions of the MSPB. In 2014 he filed the present complaint
in federal district court, alleging that he had been discriminated and retaliated
against because of his Arab ethnicity, in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a), among other statutes. The
district court dismissed his complaint with prejudice on two main grounds. The
court determined that he had waived his discrimination claims by appealing his
termination to the Federal Circuit and that the action was barred by the doctrine of
res judicata. After careful review, we affirm.
I.
Sarhan worked as a physician assistant for the BOP from 1994 until June
2007, when the BOP terminated his employment. He appealed his termination to
the MSPB. After holding a hearing, an administrative law judge (“ALJ”) issued an
initial decision sustaining Sarhan’s termination. Sarhan appealed the ALJ’s
decision to the full MSPB, which adopted the ALJ’s decision as final. He then
sought judicial review from the Federal Circuit, which affirmed the Board’s
decision. Sarhan v. Dep’t of Justice, 325 Fed. App’x 914 (Fed. Cir. 2009).
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After his termination was upheld by the Federal Circuit, Sarhan filed a
complaint of discrimination with the equal employment opportunity (“EEO”)
office of the U.S. Department of Justice. He alleged that the BOP’s decision to
terminate his employment was discriminatory and that his prior MSPB proceedings
were improperly conducted. The EEO office dismissed his complaint in
September 2009 because he had elected to appeal his termination to the MSPB.
The EEO office advised that he could appeal its decision to the Equal Employment
Opportunity Commission (“EEOC”) or file a civil action under Title VII in federal
district court.
Sarhan took no action until May 2013, when he petitioned the MSPB to
reopen his case and reconsider its prior decision. Sarhan alleged fraud and other
procedural irregularities in the proceedings upholding his termination. The Board
denied his request. Then, in July 2013, Sarhan filed another appeal with the MSPB
for review of his termination, again raising his allegations of fraud, perjury, and
concealment of evidence. After allowing the parties to respond to an order to show
cause why the appeal was not barred by the doctrine of res judicata, the ALJ
issued an initial decision dismissing Sarhan’s appeal.
Sarhan appealed the ALJ’s decision to the full MSPB, which issued a final
decision affirming the ALJ in July 2014. The Board noted that, under the banner
of “fraud,” Sarhan had presented myriad allegations, including that the agency
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discriminated against him based on his Arab ancestry; the investigation into his
misconduct was initiated based on the allegations of his former wife, who suffered
from mental illness; the agency hid relevant documents within its discovery
production, including an email from his former wife; the deciding official
orchestrated his removal and committed perjury; the deciding official denied him
due process by failing to consider his response to the notice of proposed removal;
the agency failed to establish its charges; and another employee was treated more
favorably than he. The Board found that most of these allegations related to the
merits of the removal action and either were or could have been raised in the
earlier proceedings. As for the allegations of perjury and concealment of evidence,
the Board found that, even assuming they were true, they did not constitute fraud
sufficient to defeat the application of res judicata because they did not
substantially change the posture of the case. Thus, the Board found that Sarhan’s
appeal was barred by res judicata.
In its final decision, the Board advised Sarhan of his rights to further review.
The Board noted that, because Sarhan had alleged discrimination, he could request
review of the decision on his discrimination claims either by submitting a request
with the EEOC or by filing a civil action in an appropriate federal district court for
review of both his discrimination claims and his other claims.
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Sarhan appealed the MSPB’s decision to the Federal Circuit, which affirmed
in April 2015. See Sarhan v. Dep’t of Justice, 610 Fed. App’x 985 (Fed. Cir.
2015). In its opinion, the Federal Circuit specifically rejected Sarhan’s argument
that res judicata did not apply because the final decision sustaining his removal
was tainted by fraud. See
id. at 987. The Federal Circuit found that “many of [his]
allegations go to the merits of the Bureau’s removal action, and either were raised
or could have been raised in the prior proceeding.”
Id. The court also concluded
that Sarhan’s allegations of fraud “did not substantially change the posture of the
case and thus did not provide a basis for reversing the initial decision.”
Id.
Meanwhile, Sarhan sued the BOP in federal district court in September
2014, which is the lawsuit at issue in this appeal. He alleged national origin
discrimination, race discrimination, harassment, and retaliation under both Title
VII and the Florida Civil Rights Act, Fla. Stat. § 760.01, et seq., wrongful
termination in violation of public policy, violations of California’s Fair
Employment and Housing Act, Cal. Gov. Code § 12900, et seq., and defamation.
Sarhan also broadly challenged the propriety of his termination, restating his
allegations of fraud, perjury, and other procedural irregularities.
The district court granted the BOP’s motion to dismiss. The court first
concluded that Sarhan waived his current discrimination claims when, after the
MSPB issued its final decision upholding his termination in 2009, he chose to
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appeal to the Federal Circuit instead of bringing an action in federal district court
raising both discrimination and non-discrimination claims. Second, and
alternatively, the court found that the doctrine of res judicata precluded Sarhan
from relitigating claims surrounding his termination from the BOP. Finally, the
court found that Sarhan’s remaining claims—for violations of the California Fair
Employment and Housing Act and the Florida Civil Rights Act and for
defamation—failed either because they were preempted by Title VII or barred by
the Federal Tort Claims Act. Sarhan now appeals.
II.
We review de novo a district court’s order granting a motion to dismiss.
McGinley v. Houston,
361 F.3d 1328, 1330 (11th Cir. 2004). Likewise, we review
de novo the district court’s application of the doctrine of res judicata. Griswold v.
Cty. of Hillsborough,
598 F.3d 1289, 1292 (11th Cir. 2010).
We liberally construe the filings of pro se parties, but we may not act as “de
facto counsel.” Campbell v. Air Jam. Ltd.,
760 F.3d 1165, 1168–69 (11th Cir.
2014). Issues not briefed on appeal, even by pro se litigants, are deemed
abandoned. Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008).
III.
When a federal employee is subject to a certain serious adverse employment
action, such as removal or suspension, he is entitled to appeal to the MSPB under
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the Civil Service Reform Act of 1978 (“CSRA”). See 5 U.S.C. §§ 7701, 7512,
7513(d). In appealing to the MSPB, the employee may “present a civil-service
claim only”—a claim that the agency had insufficient cause for taking the action
under the CSRA—or a claim that the agency action was taken, in whole or in part,
because of discrimination prohibited by another federal statute, such as Title VII.
Perry v. Merit Sys. Prot. Bd.,
137 S. Ct. 1975, 1980 (2017).
When an employee appeals his removal from federal employment to the
MSPB and asserts that the removal was based totally or partially on discrimination,
he has brought a “mixed case” appeal. 1 Id.; see 5 U.S.C. § 7702(a)(1); 29 C.F.R.
§ 1614.302(a). If the MSPB upholds the personnel action, the employee may
request additional administrative process, with the EEOC, or he may seek judicial
review. Kloeckner v. Solis,
568 U.S. 41, 45 (2012).
Judicial review of MSPB decisions is governed by § 7703. As a general
rule, judicial review of MSPB decisions is available by filing a petition for review
with the United States Court of Appeals for the Federal Circuit. 5 U.S.C.
§ 7703(b)(1). But an exception applies in any mixed case involving
discrimination. See 5 U.S.C. § 7703(b)(2). Cases involving discrimination must
be filed in federal district court.
Kloeckner, 568 U.S. at 49–50; Chappell v. Chao,
1
Alternatively, a federal employee who believes that her removal was motivated in
whole or in part by discrimination may first file a discrimination complaint (a “mixed case
complaint”) with the agency itself in the agency’s EEO office.
Perry, 137 S. Ct. at 1980. If the
EEO office decides against the employee, she may then either appeal to the MSPB or bypass
further administrative review and sue the agency in federal district court.
Id.
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388 F.3d 1373, 1378 (11th Cir. 2004) (“[F]ederal district court is the only forum in
which a federal employee may seek judicial review of a mixed case after a final
order from the MSPB.”) District courts have jurisdiction to consider both
discrimination claims and civil-service claims when brought jointly in a civil
action under § 7703(b)(2). See
Chappell, 388 F.3d at 1378.
The employee’s choice of forum for judicial review is significant. “[T]he
language, legislative history, and underlying policies of 5 U.S.C. § 7702 indicate
that Congress did not direct or contemplate bifurcated review of any mixed case.”
Id. (internal quotation marks omitted). If the employee seeks judicial review from
the Federal Circuit, he “waives his right to pursue not only any discrimination
claims he raised before the MSPB, but also any other discrimination claims arising
out of the same facts.”
Id. Therefore, a federal employee who wishes “to preserve
both discrimination and non-discrimination claims after a final order from the
MSPB must do so by bringing all his related claims in federal district court.”
Id.
(emphasis in original).
Here, the district court properly concluded that Sarhan waived his
discrimination claims relating to his termination when he appealed the MSPB’s
final decision upholding his termination to the Federal Circuit. “[A]ll of [Sarhan’s]
discrimination claims were related to his termination claims, and could have been
brought before the MSPB as mixed claims. Because all of these claims could have
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been brought together, they should have been brought together—before the district
court, if not before the MSPB.”
Id. at 1379. But Sarhan instead sought judicial
review of the MSPB’s decision from the Federal Circuit, and, by doing so, he
“waive[d] his right to pursue . . . any . . . discrimination claims arising out of the
same facts.”
Id. at 1378.
To the extent Sarhan raises independent claims of discrimination relating to
the second round of proceedings before the MSPB—though it does not appear that
he does—again, he waived such claims when he appealed the MSPB’s final July
2014 decision to the Federal Circuit, which affirmed in April 2015. Accordingly,
Sarhan waived his right to pursue any of the discrimination claims he brought in
federal district court.
IV.
Liberally construing his complaint, Sarhan also challenges his termination
on civil-service grounds. Indeed, that is the focus of his briefing to this Court on
appeal. Because he elected to pursue judicial review of the MSPB’s decisions with
the Federal Circuit both in 2009 and 2014, however, it does not appear that he can
obtain judicial review in federal district court also. See
Chappell, 388 F.3d at
1378. As we outlined in Chappell, the CSRA does not contemplate that a federal
employee could obtain judicial review of the same decision in multiple fora.
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But even if Sarhan has not waived his right to judicial review by appealing
the MSPB’s decision to the Federal Circuit, such review is limited to the MSPB’s
July 2014 decision, which was the basis for Sarhan’s lawsuit in federal district
court.2 See 5 U.S.C. § 7703(b)(2); Doc. 1 at 15 ¶ 40. In its July 2014 decision, the
MSPB found that Sarhan’s second appeal of his termination was barred by the
doctrine of res judicata notwithstanding his allegations of fraud, concealment of
evidence, perjury, and other procedural improprieties.
The doctrine of res judicata bars a subsequent suit on the same cause of
action when four elements are present: (1) the prior decision was rendered by a
forum of competent jurisdiction; (2) there was a final judgment on the merits;
(3) both cases involve the same parties or their privies; and (4) both cases involve
the same causes of action. In re Piper Aircraft Corp.,
244 F.3d 1289, 1296 (11th
Cir. 2001). Prior and present causes of action are the same if they arise out of the
same nucleus of operative fact or are based upon the same factual predicate. See
id. at 1296–97. If the claim in the new suit was or could have been raised in the
prior action, res judicata applies to bar the subsequent suit.
Id. at 1296.
2
As we see it, there is no jurisdictional bar to considering Sarhan’s complaint regarding
the July 2014 decision. Because Sarhan sought review of a final decision of the MSPB in a
mixed case, the district court had subject-matter jurisdiction to consider both discrimination and
terminations claims. See
Chappell, 388 F.3d at 1378 & n.8; 5 U.S.C. §§ 7702–7703. That
Sarhan may have waived his rights to pursue these claims in federal district court does not
deprive the court of subject-matter jurisdiction. See
Chappell, 388 F.3d at 1378 n.8.
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As a general matter, res judicata applies where an administrative agency has
acted in a judicial capacity and has resolved disputed factual issues that the parties
have had an opportunity to litigate. See Astoria Fed. Sav. & Loan Ass’n v.
Solimino,
501 U.S. 104, 107 (1991). The MSPB applies res judicata when the
criteria set forth above are satisfied. See Peartree v. U.S. Postal Serv., 66 M.S.P.B.
332, 337 (1995). However, according to the MSPB, “[o]ne exception to the
doctrine of res judicata . . . allows reopening as a matter of discretion where the
earlier decision was obtained by fraud, concealment, or misrepresentation by a
party.” See Anderson v. Dep’t of Transp., F.A.A., 46 M.S.P.B. 341, 349 (1990).
Here, res judicata applies. The 2009 decision by the MSPB was a final
decision by a forum of competent jurisdiction acting in a judicial capacity, and
Sarhan’s subsequent appeal of his termination to the MPSB involved the same
parties and arose out of the same factual predicate. See Peartree, 66 M.S.P.B. at
337. Sarhan does not dispute that the general elements of res judicata are met.
Instead, he maintains that res judicata does not apply because of fraud,
concealment of evidence, procedural-due-process violations, and prohibited
personnel practices under the CSRA.
However, in affirming the MSPB’s July 2014 decision, the Federal Circuit
rejected the arguments Sarhan presents here. And, upon review of the Board’s July
2014 decision, the Federal Circuit’s affirmance, and Sarhan’s briefs on appeal, we
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see no reason to reach a different result. As the Federal Circuit explained, many of
Sarhan’s assertions and arguments go the merits of the BOP’s removal decision,
and either were or could have been raised in the initial proceeding upholding his
termination. Moreover, Sarhan’s allegations of concealment of evidence and
perjury do not call into question the integrity of the prior proceeding. In fact, the
ALJ relied in large part on Sarhan’s own testimony in sustaining the charges
against him. Sarhan has not explained how the alleged perjury or the allegedly
concealed evidence would have changed the outcome of the prior proceeding.
Accordingly, Sarhan has not shown the MSRP improperly applied res judicata to
bar the second appeal of his termination or that the district court erred by failing to
“void the judgment of the administrative courts.”
Finally, Sarhan does not address the district court’s determinations that his
state-law discrimination claims were preempted by Title VII, see Canino v. U.S.
Equal Emp. Opportunity Comm’n,
707 F.2d 468, 472 (11th Cir. 1983) (“[A]
federal employee’s exclusive judicial remedy for alleged employment
discrimination lies with . . . Title VII.”), or that his defamation claim was not
cognizable under the Federal Tort Claims Act, see 28 U.S.C. § 2680(h) (providing
that the United States and its agencies are immune from suits “arising out of . . .
libel, slander, [or] misrepresentation”). Accordingly, he has abandoned these
issues. See
Timson, 518 F.3d at 874.
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For the reasons stated, we AFFIRM the dismissal of Sarhan’s complaint.
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