USCA11 Case: 21-12347 Date Filed: 01/05/2022 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12347
Non-Argument Calendar
____________________
SHAWN BURNS,
Plaintiff-Appellant,
versus
MOIRA LOZADA,
PARKER BELLAIRE,
UNITED STATES OF AMERICA,
Defendants-Appellees.
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2 Opinion of the Court 21-12347
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cv-00582-JA-EJK
____________________
Before JORDAN, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
In 2018, Shawn Burns sued Moira Lozada and Parker Bel-
laire—two of his colleagues at the Transportation Security Admin-
istration—for defamation in a Florida state court. The United
States Attorney for the Middle District of Florida removed the case
to federal court after certifying that Ms. Lozada and Mr. Bellaire
had been acting within the scope of their employment with the De-
partment of Homeland Security at all times material to Mr. Burns’
complaint. The United States Attorney also moved to substitute
the United States as the sole defendant. See
28 U.S.C. § 2769(d)(1)-
(2). Mr. Burns did not move to remand or oppose substitution, and
the district court ordered that the United States be substituted as
the sole defendant in place of Ms. Lozada and Mr. Bellaire.
The United States then moved to dismiss Mr. Burns’ com-
plaint because he had not exhausted his administrative remedies as
required by the Federal Tort Claims Act,
28 U.S.C. § 1346(b). Mr.
Burns, represented by counsel, did not timely respond to the mo-
tion to dismiss. The district court granted the motion and
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21-12347 Opinion of the Court 3
dismissed the action for lack of subject-matter jurisdiction. Mr.
Burns sought relief from the order of dismissal and filed objections
to the motion to dismiss, arguing that the United States’ notice of
substitution had been improper under the Middle District’s local
rules and that Ms. Lozada and Mr. Bellaire had not been acting
within the scope of their employment when making the allegedly
defamatory statements. He asked for an evidentiary hearing on the
scope-of-employment issue. The district court denied Mr. Burns’
motion.
On appeal, we affirmed. As relevant here, we held that (1)
Mr. Burns was not entitled to a hearing on the question of substi-
tution because he had not timely responded to the United States’
motion to dismiss; (2) the district court had properly substituted
the United States for Ms. Lozada and Mr. Bellaire on the certifica-
tion of the United States Attorney; (3) the district court had cor-
rectly determined that it lacked subject-matter jurisdiction under
the FTCA; and (4) the district court had correctly dismissed the
complaint and denied Mr. Burns’ motion for relief from judgment.
See Burns v. United States, 809 F. App’x 696 (11th Cir. 2020) (Burns
I).
Following our decision in Burns I, Mr. Burns refiled an iden-
tical copy of his dismissed complaint in a Florida state court. The
United States again removed the case to federal court, again filed a
notice of substitution, and again moved to dismiss due to Mr.
Burns’ failure to exhaust his administrative remedies under the
FTCA. Mr. Burns opposed dismissal and moved to remand,
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4 Opinion of the Court 21-12347
arguing that Ms. Lozada and Mr. Bellaire had been acting outside
of the scope of their employment.
The district court ordered the parties to brief why Mr.
Burns’ refiled complaint was not barred by the litigation in Burns
I, including the Eleventh Circuit’s affirmance of the dismissal of Mr.
Burns’ initial complaint. Mr. Burns argued that claim preclusion
(i.e., res judicata) did not apply because the dismissal in Burns I was
for lack of subject-matter-jurisdiction. The United States conceded
that claim preclusion was inapplicable, but asserted that issue pre-
clusion (i.e., collateral estoppel) barred Mr. Burns from relitigating
the scope-of-employment issue which had been fully litigated in his
motion from relief from judgment in Burns I. The district court
agreed with the United States and dismissed the refiled complaint,
ruling that Mr. Burns was trying to relitigate “what has already
been decided and affirmed by the Eleventh Circuit.” D.E. 18 at 1.
Mr. Burns now appeals. He argues that (1) the district court
erred in substituting the United States for Ms. Lozada and Mr. Bel-
laire and in failing to provide a de novo hearing on the scope-of-
employment issue; (2) the district court erred in dismissing the re-
filed complaint for lack of subject-matter jurisdiction; and (3) issue
preclusion does not apply because (a) the issues in the first and sec-
ond actions were not identical, (b) the scope-of-employment issue
was not actually litigated in Burns I, (c) the scope-of-employment
issue was not a necessary part of the earlier dismissal, and (d) he did
not have a full and fair opportunity to be heard on the scope-of-
employment issue in Burns I.
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21-12347 Opinion of the Court 5
Issue preclusion requires that (1) the issue be identical to the
one involved in the prior litigation; (2) the issue have been actually
litigated in the prior action; (3) the determination of the issue must
have been a critical and necessary part of the judgment in the prior
action; and (4) the party against whom the earlier decision is as-
serted must have had a full and fair opportunity to litigate the issue
in the earlier proceeding. See CSX Transp., Inc. v. Brotherhood of
Maintenance of Wag Employees,
372 F.3d 1309, 1317 (11th Cir.
2003). Exercising de novo review with respect to the applicability
of issue preclusion, see EEOC v. Pemco Aeroplex, Inc.,
383 F.3d
1280, 1285 (11th Cir. 2004), we affirm.
Our precedent establishes that issue preclusion applies to ju-
risdictional determinations. “Although the dismissal of a complaint
for lack of jurisdiction does not adjudicate the merit[s] so as to
make the case res judicata on the substance of the asserted claim, it
does adjudicate the court’s jurisdiction, and a second complaint
cannot command a second consideration of the same jurisdictional
claims.” Boone v. Kurtz, 617 f.2d 435, 436 (5th Cir. 1980). See also
North Georgia Elec. Membership Corp. v. City of Calhoun,
989
F.2d 429, 432-33 (11th Cir. 1993) (holding that earlier dismissal for
lack of federal jurisdiction had collateral estoppel effect and
“bar[red] relitigation of the jurisdictional question” when second
action was filed).
Here issue preclusion applies to the scope-of-employment
issue. That issue was litigated and determined in Burns I, and it
was critical and necessary to the dismissal. The district court
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6 Opinion of the Court 21-12347
accepted the certification of the United States Attorney, substituted
the United States for Ms. Lozada and Mr. Bellaire, and ruled that
Mr. Burns had not exhausted his administrative remedies under the
FTCA. Mr. Burns also had a full and fair opportunity to litigate the
issue. When the United States moved to dismiss, Mr. Burns did not
file a timely response in opposition and the district court granted
the motion. And when Mr. Burns moved for relief from judgment,
he challenged the scope-of-employment certification. The district
court denied his motion, and we affirmed in Burns I. We expressly
addressed the scope-of-certification issue, and held that Mr. Burns
had failed to timely challenge the certification by the United States
Attorney, and as a result the district court understandably treated
the certification as uncontested. For the same reason, we ruled
that the district court was not required to hold an evidentiary hear-
ing on Mr. Burns’ post-dismissal challenge and properly substituted
the United States as the sole defendant in place of Ms. Lozada and
Mr. Bellaire. See Burns I, 809 F. App’x at 700-01.
Our conclusion that issue preclusion applies is reinforced by
the fact that the arguments that Mr. Burns is presenting in this ap-
peal are in many ways identical to the ones he presented in Burns
I. For example, he contends that the district court was required to
hold a hearing on the certification as to the scope-of-employment
issue pursuant to Gutierrez de Martinez v. Lamagno,
515 U.S. 417
(1995), and S.J. & W. Ranch, Inc. v. Lehtinen,
913 F.2d 1538 (11th
Cir. 1990). We rejected those same argument in Burns I because
Mr. Burns had failed to timely challenge the certification filed by
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21-12347 Opinion of the Court 7
the United States Attorney. See Burns I, 809 F. App’x at 700-01.
Issue preclusion bars Mr. Burns from relitigating the validity of the
certification by filing a complaint identical to the one that was dis-
missed in Burns I.
AFFIRMED.
