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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12179
Non-Argument Calendar
________________________
D.C. Docket No. 1:18-cv-00847-TWT
JAMES NATHANIEL DOUSE,
Plaintiff-Appellant,
versus
ELEVENTH CIRCUIT COURT OF APPEALS CLERK OF COURTS, et al.,
Defendants,
ADAM BAIN,
in his individual capacity,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(January 24, 2019)
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Before WILLIAM PRYOR, GRANT and HULL, Circuit Judges.
PER CURIAM:
Plaintiff James Nathaniel Douse brought this pro se civil lawsuit against
defendants Adam Bain, a Department of Justice (“DOJ”) attorney, and the United
States seeking damages after attorney Bain publicly disclosed Douse’s medical
records and personally-identifiable information on the district court’s docket
during a separate lawsuit. The district court granted the defendants’ motions to
dismiss the complaint, concluding, among other things, that Douse’s claims were
barred by the doctrine of res judicata and that Bain was entitled to immunity. On
appeal, Douse challenges those conclusions and also disputes the validity of the
United States’ certification that attorney Bain was acting within the scope of his
federal employment at the time of the unlawful disclosure. After careful review of
the record and the parties’ briefs, we affirm.
I. BACKGROUND FACTS
A. Disclosure of Medical and Personal Information
Separate from this case, plaintiff Douse is involved in a multidistrict
litigation against the United States, in which he and other service members and
their families allege they were injured after being exposed to toxic substances in
the water supply while living at Marine Corps Base Camp Lejeune in North
Carolina. See In re Camp Lejeune N.C. Water Contamination Litig., 263 F. Supp.
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3d 1318, 1325 (N.D. Ga. 2016). During that litigation, on February 4, 2016, DOJ
attorney Bain filed an opposition to Douse’s motion to amend his complaint, in
which Bain submitted an exhibit containing 17 pages of documents that Douse had
sent to the Department of Navy in support of his administrative claim regarding his
exposure to contaminated water. The 17 pages of documents included Douse’s
medical records and certain personally-identifiable information, such as his date of
birth, social security number, and home address (collectively, “medical and
personal information”). As a consequence, Douse’s medical and personal
information was available on the district court’s public docket for just over one
month. See id. at 1361-62.
In response, on March 8, 2016, Douse filed a motion for punitive and
exemplary damages, arguing that the disclosure of his medical and personal
information violated the Health Insurance Portability and Accountability Act and
tort laws. Id. at 1361-62. The government responded that the disclosure was
inadvertent and immediately asked the district court to remove the entire exhibit
from the court’s public docket. Id. at 1362. The government then submitted a
corrected exhibit that did not include Douse’s medical records and redacted his
personally-identifiable information as required by Federal Rule of Civil Procedure
5.2.
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On December 5, 2016, the district court denied Douse’s request for punitive
and exemplary damages because “any exposure of information was inadvertent and
for only a brief period of time.” Id. The court also dismissed all of the claims
brought by the plaintiffs in the Camp Lejeune litigation. Id. at 1365. An appeal
from the final judgment in that case is pending in this Court.
B. Two Prior Lawsuits Predicated on this Disclosure
Meanwhile, on September 30, 2016, Douse filed a pro se civil action against
DOJ attorney Bain in Georgia state court. In that complaint, he alleged common-
law tort claims and a constitutional claim under the Fourth Amendment, based on
Bain’s wrongful disclosure of Douse’s medical and personal information during
the Camp Lejeune litigation.
The government removed the state action to the federal district court for the
Northern District of Georgia, pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(2),
which provides that, if the Attorney General certifies that a tort claim against a
federal employee is premised on actions taken within the scope of his employment,
(1) any civil action commenced on that claim in state court “shall be
removed . . . at any time before trial” to federal district court, (2) the United States
is substituted as the defendant, and (3) the case proceeds under the Federal Tort
Claims Act (“FTCA”). See 28 U.S.C. § 2679(d)(2). However, the United States
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may not be substituted as a defendant when a claim “is brought for a violation of
the Constitution.” 28 U.S.C. § 2679(b)(2).
As such, after the United States certified that Bain was acting in his capacity
as a government attorney when he disclosed Douse’s medical and personal
information, the case was removed to the federal district court and the United
States was substituted as the defendant for all of Douse’s claims against Bain,
except for Douse’s Fourth Amendment constitutional claim.
Ultimately, on December 30, 2016, the district court dismissed the complaint
under Federal Rule of Civil Procedure 12(b)(6). First, the district court dismissed
the Fourth Amendment claim against Bain because (1) Bain was not properly
served with the complaint, (2) he was entitled to qualified immunity, and (3) an
improper disclosure of private information cannot form the basis of a Fourth
Amendment violation. The court dismissed the remaining claims against the
United States because the complaint was an improper “shotgun pleading” that
failed to comply with Federal Rules of Civil Procedure 8 and 10. The court also
dismissed the complaint for lack of subject matter jurisdiction because Douse
suffered no injury from the disclosure of his medical and personal information
because he “waived his privacy rights” in the records by voluntarily submitting
them as proof of his personal injuries in the Camp Lejeune lawsuit. Douse
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appealed from this order, but this Court dismissed the appeal for want of
prosecution.
A few days after filing his civil action in state court, on October 4, 2016,
Douse filed another lawsuit in federal district court predicated on the same
disclosure of his medical and personal information by attorney Bain. This time,
Douse filed a pro se FTCA personal injury action against the United States,
alleging that the United States wrongly placed that information onto the docket in
the Camp Lejeune litigation.
On January 6, 2017, the district court dismissed this second complaint under
Rule 12(b)(6) as well. As in the other lawsuit, the district court concluded that
Douse failed to allege an injury based on the inadvertent disclosure of his medical
and personal information. This Court dismissed Douse’s appeal from this order for
want of prosecution too.
C. The Present Civil Action
That brings us to the instant civil action, which is Douse’s third pro se
lawsuit based on DOJ attorney Bain’s inadvertent disclosure of his medical and
personal information during the Camp Lejeune litigation. On February 1, 2018,
Douse filed a complaint in Georgia state court against the United States and Bain,
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alleging that Bain’s filing violated his Fourth Amendment right to privacy, as well
as various federal statutes and state law provisions.1
Invoking the Westfall Act again, the United States certified that attorney
Bain was acting in the scope of his federal employment at the time of the incident
out of which Douse’s claims arose and removed the case to the federal district
court in the Northern District of Georgia. And, as in his prior lawsuit, the United
States was substituted as defendant for all of Douse’s claims, except for his Fourth
Amendment claim against Bain.
Both the United States and Bain then moved to dismiss the complaint
asserting, among other things, that Douse’s claims were barred by res judicata
because they were litigated in the prior actions.
The district court granted the motions to dismiss. As to the United States,
the district court concluded that the FTCA claims were barred by the statute of
limitations and that all of Douse’s claims against the United States were barred by
claim preclusion, as they were a “rehash of two nearly identical complaints filed by
[Douse] in 2016 and dismissed by this [c]ourt.” Similarly, the district court
concluded that the claims against Bain were foreclosed by the immunity granted in
the Westfall Act, except for the Fourth Amendment claim, and the entire action
1
Douse also named as defendants the Eleventh Circuit Clerk of Court and the Northern
District of Georgia Clerk of Court. At Douse’s request, the district court dismissed those
defendants from the case.
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was barred by res judicata because it was based on Bain’s same disclosure of
medical and personal information as in Douse’s prior lawsuits. The district court
noted as well that Douse “does not complain of any search or seizure in any
constitutionally-recognized sense” and the disclosure of information already in the
government’s hands does not constitute a Fourth Amendment violation.
II. STANDARD OF REVIEW
The district court’s Rule 12(b)(6) dismissal is subject to plenary review.
Lane v. Philbin, 835 F.3d 1302, 1305 (11th Cir. 2016). The district court’s
application of res judicata is a question of law which we review de novo. Griswold
v. Cty. of Hillsborough, 598 F.3d 1289, 1292 (11th Cir. 2010). Additionally, we
review de novo questions of statutory interpretation. United States v. DBB, Inc.,
180 F.3d 1277, 1281 (11th Cir. 1999).
III. DISCUSSION
A. Westfall Act Certification
On appeal, plaintiff Douse challenges the validity of the United States’
statutory certification that Bain was acting within the scope of his employment
when he improperly disclosed Douse’s medical and personal information.
According to Douse, the scope-of-employment certification filed in his case is
insufficient because the Westfall Act requires that certification to be made by the
Attorney General. Here, the certification was done by James G. Touhey, Jr., the
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Director of the Torts Branch of the Civil Division of the DOJ, and not the Attorney
General. This argument is unavailing.
“The Federal Employees Liability Reform and Tort Compensation Act of
1988, commonly known as the Westfall Act, accords federal employees absolute
immunity from common-law tort claims arising out of acts they undertake in the
course of their official duties.” Osborn v. Haley, 549 U.S. 225, 229, 127 S. Ct.
881, 887 (2007). When a federal employee is sued for wrongful conduct, the
statute empowers the Attorney General to certify that the employee “was acting
within the scope of his office or employment at the time of the incident out of
which the claim arose.” 28 U.S.C. § 2679(d)(1), (2). Upon such certification, the
United States is substituted as defendant in place of the employee and the litigation
is thereafter governed by the FTCA. Osborn, 549 U.S. at 230, 127 S. Ct. at 888. If
the action is commenced in state court, the Westfall Act calls for its removal to a
federal district court and renders the Attorney General’s certification conclusive
for purposes of removal. 28 U.S.C. § 2679(d)(2); Osborn, 549 U.S. at 230, 127 S.
Ct. at 888.
Significantly though, the Attorney General may delegate this certification
authority. 28 U.S.C. § 510. And in fact, the Attorney General has delegated this
authority to the Director of the Torts Branch of the Civil Division of DOJ. 28
C.F.R. § 15.4(a) (“[A]ny Director of the Torts Branch, Civil Division, Department
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of Justice, is authorized to make the statutory certification that the Federal
employee was acting within the scope of his office or employment with the Federal
Government at the time of the incident out of which the suit arose.”) Contrary to
Douse’s arguments then, Touhey’s scope-of-employment certification filed in this
case was sufficient under the Westfall Act. Thus, the case was properly removed
to the federal district court, and the court correctly accorded Bain immunity on
Douse’s tort claims.
B. Res Judicata
In addition, plaintiff Douse argues that the district court misapplied the
doctrine of res judicata to his case. We disagree.
Under the doctrine of res judicata (also known as claim preclusion), a claim
is barred by a prior suit if: “(1) there is a final judgment on the merits; (2) the
decision was rendered by a court of competent jurisdiction; (3) the parties . . . are
identical in both suits; and (4) the same cause of action is involved in both cases.”
Griswold, 598 F.3d at 1292 (quotation marks omitted). All four conditions are met
here.
First, there was a final judgment on the merits in Douse’s two prior civil
actions because the district court dismissed both of his complaints for failure to
state a claim for relief pursuant to Rule 12(b)(6). Federated Dep’t Stores, Inc. v.
Moitie, 452 U.S. 394, 399 n.3, 101 S. Ct. 2424, 2428 n.3 (1981) (“[A] dismissal for
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failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a
judgment on the merits.” (quotation marks omitted)); NAACP v. Hunt, 891 F.2d
1555, 1560 (11th Cir. 1990) (same). Second, the dismissals were rendered by a
court of competent jurisdiction because Douse’s first state court action was
properly removed to the federal district court in the Northern District of Georgia
under the Westfall Act, and his second federal action involved a federal claim and
properly invoked the jurisdiction of that federal district court. See 28 U.S.C.
§§ 1331, 2679(d)(2). Third, the parties are identical in the actions as all involved
Douse, Bain, and the United States. Fourth, the cases involve the same cause of
action because the claims Douse raised in each are based upon the same incident—
that is, on February 4, 2016, Bain publicly disclosed Douse’s medical and personal
information in the Camp Lejeune litigation. See Griswold, 598 F.3d at 1293 (“If a
case arises out of the same nucleus of operative facts, or is based upon the same
factual predicate, as a former action, the two cases are really the same ‘claim’ or
‘cause of action’ for purposes of res judicata.” (alterations and quotation marks
omitted)).
As can be reasonably construed, Douse’s arguments on appeal relate to the
second prong of the res judicata analysis—that the prior decisions were made by a
court of competent jurisdiction. Specifically, Douse argues that Bain’s and the
United States’ removal of his first action from Georgia state court was untimely
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under 28 U.S.C. §§ 1442(a) and 1446(b), and therefore the suit was not properly in
the federal district court. For this reason, he also argues that the state court should
have entered a default judgment in his favor in that first state action.
Douse is correct that § 1442(a) provides for the removal of an action against
a federal officer and that § 1446(b) generally requires that removal be
accomplished within 30 days of the federal officer’s receipt of the complaint.2
However, this case was removed pursuant to the Westfall Act, which provides that
removal may take place “at any time before trial.” 28 U.S.C. § 2679(d)(2) (stating
that once the Attorney General certifies that a tort claim against a federal employee
is premised on actions taken within the scope of his employment, any civil action
commenced upon such a claim in state court “shall be removed . . . at any time
before trial” to federal district court). Douse does not dispute on appeal, and it
appears to us, that a trial in that first state court action was never scheduled, much
less held, and thus the removal was timely. Accordingly, Douse’s arguments
regarding the propriety of the district court’s jurisdiction over his prior lawsuit
2
28 U.S.C. § 1442(a) provides in relevant part that, “[a] civil action . . . commenced in a
State court against or directed to any of the following may be removed by them to the district
court of the United States . . . (1) The United States or any agency thereof or any officer (or any
person acting under that officer) of the United States . . . .” In turn, 28 U.S.C. § 1446(b) states in
relevant part that “[t]he notice of removal of a civil action or proceeding shall be filed within 30
days after the receipt by the defendant, through service or otherwise, of a copy of the initial
pleading.”
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have no merit. We therefore conclude that the district court properly dismissed
Douse’s claims under the doctrine of res judicata.3
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s dismissal of Douse’s
complaint under Rule 12(b)(6).
AFFIRMED.
3
Douse raises several arguments on appeal regarding the merits of his claims against Bain
and the United States. For example, Douse contends that he presented sufficient evidence that
Bain unlawfully disclosed his medical and personal information and thus he is entitled to money
damages. Because we conclude that his claims are barred under the doctrine of res judicata, we
do not address the merits of his claims.
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