716 Fed.Appx. 871 (11th Cir. 2017), 15-13834, Sarhan v. Department of Justice Federal Bureau of Prisons

Docket Nº:15-13834
Citation:716 Fed.Appx. 871
Opinion Judge:PER CURIAM:
Party Name:Robert Joseph SARHAN, Plaintiff-Appellant, v. DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS, Defendant-Appellee.
Attorney:Robert Joseph Sarhan, Pro Se Daniel Matzkin, Stephanie I.R. Fidler, Lisette Marie Reid, Emily M. Smachetti, U.S. Attorney’s Office, Miami, FL, for Defendant-Appellee
Judge Panel:Before HULL, WILSON, and ROSENBAUM, Circuit Judges.
Case Date:November 15, 2017
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 871

716 Fed.Appx. 871 (11th Cir. 2017)

Robert Joseph SARHAN, Plaintiff-Appellant,

v.

DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS, Defendant-Appellee.

No. 15-13834

United States Court of Appeals, Eleventh Circuit

November 15, 2017

Editorial Note:

DO NOT PUBLISH. (See Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 11th Cir. Rule 36-2.)

Page 872

Appeal from the United States District Court for the Southern District of Florida, D.C. Docket No. 1:14-cv-23237-MGC

Robert Joseph Sarhan, Pro Se

Daniel Matzkin, Stephanie I.R. Fidler, Lisette Marie Reid, Emily M. Smachetti, U.S. Attorney’s Office, Miami, FL, for Defendant-Appellee

Before HULL, WILSON, and ROSENBAUM, Circuit Judges.

OPINION

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, 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.Appx. 914 (Fed. Cir. 2009).

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

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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 ALJs 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 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...

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