NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 10 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NESTOR C. DOMINGO, Nos. 15-15907
Nos. 17-15887
Plaintiff-Appellant,
D.C. Nos. 3:13-cv-04150-CRB
v. 3:13-cv-04151-CRB
MEGAN J. BRENNAN, Postmaster General
Pacific Area United States Postal Service, MEMORANDUM*
Agency,
Defendant-Appellee.
Appeals from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted May 8, 2017**
Before: REINHARDT, LEAVY, and NGUYEN, Circuit Judges.
Nestor C. Domingo appeals pro se from the district court’s judgments in his
federal employment actions. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009) (dismissal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under summary judgment and Fed. R. Civ. P. 12(b)(6)); Mpoyo v. Litton Electro-
Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005) (res judicata). We may affirm on
any basis supported by the record. Hell’s Angels Motorcycle Corp. v. McKinley,
360 F.3d 930, 933 (9th Cir. 2004). We affirm.
The district court properly granted summary judgment on Domingo’s
Rehabilitation Act claim relating to a third fitness for duty exam because Domingo
failed to raise a genuine dispute of material fact as to whether the examination was
not job-related and inconsistent with business necessity. See Brownfield v. City of
Yakima, 612 F.3d 1140, 1145 (9th Cir. 2010) (explaining business necessity
standard).
The district court properly dismissed Domingo’s discrimination, retaliation,
harassment, and hostile work environment claims on the basis of res judicata
because the claims were raised, or could have been raised, in a prior action
between the parties that resulted in a final judgment on the merits. See Owens v.
Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713-14 (9th Cir. 2001) (stating
elements of the doctrine of res judicata and noting that it bars subsequent litigation
of both claims that were raised and claims that could have been raised in the prior
action).
2 15-15907; 17-15887
The district court properly dismissed Domingo’s tort claims because, even if
Domingo raised his tort claims in his EEO complaints, those complaints did not
state a “sum certain,” as required by the Federal Tort Claims Act (“FTCA”). See
Blair v. IRS, 304 F.3d 861, 865, 868-69 (9th Cir. 2002) (setting forth the FTCA’s
“sum certain” requirement).
The district court properly dismissed Domingo’s contract claim because
Domingo failed to seek redress for the alleged breach through his union. See Stupy
v. U.S. Postal Serv., 951 F.2d 1079, 1082 (9th Cir. 1991) (use of union grievance
procedure required before Postal Service employee may bring breach of contract
action against employer).
Dismissal of Domingo’s due process claim was proper because Domingo
may not bring such a claim against the Postmaster in her official capacity. See
Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d
1157, 1173 (9th Cir. 2007) (“[A] Bivens action can be maintained against a
defendant in his or her individual capacity only, and not in his or her official
capacity.” (citation and internal quotation marks omitted)).
The district court did not abuse its discretion in granting defendant’s motion
to file documents under seal because the documents contained sensitive medical
3 15-15907; 17-15887
information. See Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 679 (9th Cir. 2010)
(standard of review).
We lack jurisdiction to consider the district court’s bill of costs because
Domingo failed to file a separate or amended notice of appeal. See Stone v. INS,
514 U.S. 386, 403 (1995) (order deciding post-judgment non-tolling motion must
be separately appealed).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
4 15-15907; 17-15887