Gregory D. Bruce v. Secretary of the Army

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15045
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-00248-MHC
GREGORY D. BRUCE,
Plaintiff-Appellant,
versus
SECRETARY OF THE ARMY,
Defendant-Appellee,
SARAH A. BERCAW,
Director, ABCMR, et al.,
Defendants.
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Appeal from the United States District Court
for the Northern District of Georgia
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(May 27, 2016)
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Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
Gregory Bruce appeals pro se the dismissal of his complaint against the
Secretary of the Army. The district court dismissed Bruce’s complaint, in part, for
lack of subject matter jurisdiction and, in part, for failure to state a claim, Fed. R.
Civ. P. 12(b)(6). We affirm.
The district court did not err by dismissing Bruce’s complaint. The Court of
Federal Claims had exclusive jurisdiction to review Bruce’s claim that the
Secretary should have construed his grievances about his military record, see 10
U.S.C. § 1552, as a request for review of his retirement for a physical disability,
see id. § 1554(a). See 28 U.S.C. § 1491(a)(1); Friedman v. United States, 391 F.3d
1313, 1315 (11th Cir. 2004). Because of the sovereign immunity enjoyed by the
federal government and its agencies, the district court also lacked jurisdiction to
entertain Bruce’s claims to recover damages based on an alleged conspiracy or
failure to prevent a conspiracy to violate his civil rights, see 42 U.S.C. §§§ 1983,
1985(3), 1986; United States v. Timmons, 672 F.2d 1373, 1380 (11th Cir. 1982)
(“the United States has not waived its immunity to suit under the provisions of the
civil rights statutes”), or Bruce’s claims against the Secretary in his official
capacity, see Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70–72 (2001) (“The
purpose of Bivens [v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, (1971),]
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is to deter individual federal officers from committing constitutional violations,”
not their agencies.). And Bruce was barred from pursuing claims about an abuse of
legal process, false imprisonment, and an intentional infliction of emotional
distress because he never “presented th[ose] claim[s] to the appropriate Federal
agency and . . . [obtained a] deni[al] by the agency in writing,” 28 U.S.C.
§ 2675(a). See Douglas v. United States, 814 F.3d 1268, 1279 (11th Cir. 2016)
(“Before filing an FTCA lawsuit, a plaintiff must fully exhaust administrative
remedies for his claims.”).
Bruce argues for relief on three additional grounds, but his arguments are not
properly before us. We have held repeatedly “that an issue not raised in the district
court and raised for the first time in an appeal will not be considered by this court.”
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)
(internal quotation marks and citation omitted). We will not consider, in the first
instance, Bruce’s arguments that the ruling in the Secretary’s favor is
“inappropriate with the ‘doctrine of [un]clean hands,’” that he should have been
given the “benefit of the doubt” by the Secretary, 38 U.S.C. § 5107, and that he
should have had access to records and had his claims reviewed under the
Administrative Procedures Act, 5 U.S.C. § 552a(d), (g).
We AFFIRM the dismissal of Bruce’s complaint.
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