Case Explained: ELLAWENDY V. DRISCOLL

Court: United States Court of Appeals for the Ninth Circuit Filed: 2026-08-05 Docket: 3:24-cv-00265-WHO The Ninth Circuit affirmed the district court’s dismissal of Abdelfatah Ellawendy’s ten claims against the Secretary of the Army arising from his resignation from the Defense Language Institute Foreign Language Center. The court reviewed the dismissals de novo and applied the following standards and rules to each claim: 1. **Title VII Hostile Work Environment and Retaliation Claims:** Dismissed as barred by res judicata because Ellawendy raised almost identical claims in a prior lawsuit (“Ellawendy I”) where a final judgment on the merits was entered, and the parties were identical. 2. **Whistleblower Protection Act (WPA) Claim:** Dismissed for lack of subject matter jurisdiction because Ellawendy failed to present the claim to the Merit Systems Protection Board, which holds exclusive original jurisdiction over WPA claims. The court affirmed the denial of leave to amend but remanded for the judgment to reflect dismissal without prejudice. 3. **Freedom of Information Act (FOIA) Claim:** Dismissed because Ellawendy failed to allege that he exhausted administrative remedies or that such exhaustion would be futile. 4. **Privacy Act Claim:** Dismissed as barred by res judicata and the statute of limitations, as the claim arose from the same nucleus of facts as “Ellawendy I” and was time-barred under 5 U.S.C. § 552(g)(5). 5. **Copyright Infringement Claim:** Dismissed for lack of subject matter jurisdiction because copyright claims against the United States must be filed in the Court of Federal Claims under 28 U.S.C. § 1498(b), and the claim did not satisfy the Little Tucker Act exception. The court affirmed the denial of leave to amend but remanded for the judgment to reflect dismissal without prejudice. 6. **Equal Protection, State Law Wrongful Termination, and Defamation Claims:** Dismissed as barred by res judicata due to the same nucleus of facts and privity with the prior litigation. 7. **Fourth Amendment/18 U.S.C. § 242 Claim:** Dismissed because 18 U.S.C. § 242 does not give rise to civil liability, and the claim was also barred by res judicata. The practical consequence is that all claims are dismissed; however, for the jurisdictional dismissals (WPA and Copyright), the dismissal is without prejudice, allowing Ellawendy to potentially refile in the proper forum or agency if he satisfies procedural requirements. The parties will bear their own costs on appeal. Do It For The Case Law is a news reporting service. Nothing in this episode constitutes legal advice.