Affirmance on Alternative Merits Grounds and Strict Limits on Pro Se Repleading: No First Amendment Bivens and WPA Applies Only to Federal Employees

Introduction

In Jean Guillaume v. United States (Eleventh Circuit, No. 24-13584, Sept. 10, 2025), a non-argument, unpublished per curiam decision, the Court of Appeals affirmed the Southern District of Florida’s dismissal with prejudice of a pro se plaintiff’s multifaceted complaint arising from the removal of materials from his application for designation as a service‑disabled veteran‑owned small business under 38 U.S.C. § 8127 (the Veterans First Contracting Program).

The defendants included the U.S. Department of Veterans Affairs (VA), the U.S. Small Business Administration (SBA), the SBA Office of Hearings and Appeals, and individual officials. The amended complaint advanced numerous federal constitutional, statutory, and common-law style theories, including First Amendment violations, Bivens claims, whistleblower retaliation, conspiracy under 42 U.S.C. §§ 1985 and 1986, False Claims Act (FCA) theories, double jeopardy, and requests for declaratory relief, among others.

The case posed three core issues on appeal:

Whether sovereign immunity barred certain counts (and whether dismissal on jurisdictional grounds could be with prejudice);
Whether multiple counts failed to state a claim as a matter of law; and
Whether aspects of the amended complaint were impermissible “shotgun pleadings,” and whether the district court gave the pro se plaintiff the liberal pleading latitude required before dismissal with prejudice.

Summary of the Opinion

The Eleventh Circuit affirmed the dismissal with prejudice across the board, rejecting the appellant’s challenges and deeming additional amendment futile. Key points include:

Counts I and XII (First Amendment/redress and res judicata; Declaratory Judgment): The panel agreed the district court erred in dismissing on sovereign-immunity grounds “with prejudice” (jurisdictional dismissals are typically without prejudice), but nevertheless affirmed because the counts failed to state a claim and could be dismissed on Rule 12(b)(6) merits grounds.
Counts II–III (Whistleblower Protection Act): Dismissed because the Whistleblower Protection Act protects federal employees, and the plaintiff did not plausibly allege he was one.
Counts VI and IX (Bivens): No Bivens remedy was available for the First Amendment claim (Count VI), and official-capacity Bivens claims are not cognizable (Count IX).
Count VII (§§ 1985 and 1986; FCA): The conspiracy allegations under §§ 1985/1986 were conclusory, and the FCA theory lacked the particularity Rule 9(b) requires.
Count X (Double Jeopardy): Double jeopardy protects against multiple criminal punishments; removal of application documents is not a criminal penalty.
Counts IV and XI (Shotgun Pleadings): Properly dismissed as shotgun pleadings; the district court had already given instructions and an opportunity to cure.
Abandonment: Counts V and VIII, and a party-identification issue, were deemed abandoned for failure to brief on appeal.
Pro se latitude and futility: The district court applied liberal standards but further amendment would be futile; dismissal with prejudice was appropriate.

Analysis

Precedents Cited and Their Role in the Decision

FDIC v. Meyer, 510 U.S. 471 (1994); McElmurray v. Consolidated Government of Augusta-Richmond County, 501 F.3d 1244 (11th Cir. 2007); Stalley ex rel. U.S. v. Orlando Regional Healthcare System, Inc., 524 F.3d 1229 (11th Cir. 2008): These authorities underscore that sovereign immunity is jurisdictional and that jurisdictional dismissals are entered without prejudice. The panel acknowledged the district court’s “with prejudice” misstep but relied on alternative merits grounds to affirm.
Wright v. City of St. Petersburg, 833 F.3d 1291 (11th Cir. 2016); Silberman v. Miami Dade Transit, 927 F.3d 1123 (11th Cir. 2019): Provide the appellate rule that a judgment can be affirmed on any ground supported by the record. Even if the district court dismissed on an incorrect ground, affirmance is proper where the complaint fails to state a claim.
Timson v. Sampson, 518 F.3d 870 (11th Cir. 2008): Sets the de novo review standard for Rule 12(b)(6) dismissals, requiring courts to accept well-pleaded facts as true and view them favorably to the plaintiff.
Griswold v. County of Hillsborough, 598 F.3d 1289 (11th Cir. 2010): Defines the four-part res judicata test. The panel found the plaintiff’s allegations failed to plausibly establish identity of parties and causes of action vis-à-vis prior suits.
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); Bush v. Lucas, 462 U.S. 367 (1983); Reichle v. Howards, 566 U.S. 658 (2012); Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001): Establish that Bivens is narrowly confined; the Supreme Court has not extended Bivens to First Amendment claims and forbids Bivens suits against officials in their official capacities. The panel relied on these constraints to reject Counts VI and IX.
Park v. City of Atlanta, 120 F.3d 1157 (11th Cir. 1997): Section 1986 is derivative of § 1985; without a viable § 1985 conspiracy, § 1986 fails. The panel found the conspiracy allegations conclusory.
Hopper v. Solvay Pharmaceuticals, Inc., 588 F.3d 1318 (11th Cir. 2009): FCA fraud must be pled with Rule 9(b) particularity. The complaint lacked time, place, substance, and identity details of any false claim.
Hudson v. United States, 522 U.S. 93 (1997); Cole v. Dept. of Agriculture, 133 F.3d 803 (11th Cir. 1998): Double jeopardy protects against criminal punishment; civil or administrative measures count only if “so punitive” in purpose or effect that they are criminal. Removing application documents is not punitive in that sense.
Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015); Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291 (11th Cir. 2018); Kyle K. v. Chapman, 208 F.3d 940 (11th Cir. 2000); United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004): Define and police “shotgun pleadings,” emphasizing the need for fair notice of who did what. The panel held Counts IV and XI improperly lumped defendants and claims.
Woldeab v. DeKalb County Board of Education, 885 F.3d 1289 (11th Cir. 2018); Marrache v. Bacardi U.S.A., Inc., 17 F.4th 1084 (11th Cir. 2021): Pro se litigants ordinarily receive at least one chance to amend, but leave may be denied where amendment would be futile. The panel found further amendment futile here.
Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324 (11th Cir. 2004); Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014): Appellate abandonment principles. The panel deemed Counts V and VIII and a party-identification challenge forfeited by failing to brief them adequately on appeal.

The Court’s Legal Reasoning

The panel organized its analysis by groups of claims and procedural issues, ultimately concluding that none of the surviving counts could proceed.

1) Counts I and XII: Sovereign Immunity Labeling Error, but Merits Defeat the Claims

The district court dismissed the First Amendment/res judicata claim (Count I) and the request for declaratory relief (Count XII) with prejudice on sovereign-immunity grounds. The Eleventh Circuit noted the well-settled rule that dismissals for lack of subject-matter jurisdiction should be without prejudice, but it exercised its authority to affirm on any ground supported by the record. It then reviewed both counts de novo under Rule 12(b)(6).

First Amendment “right of redress” (Count I): The complaint contained only conclusory assertions and failed to set out facts making a plausible First Amendment claim. Conclusory labels do not cross the plausibility threshold.
Res judicata within Count I: The four-part Griswold test was not satisfied because the earlier litigation involved different parties (e.g., references to “Afily8 Government Solutions”) and the complaint did not plausibly show the same cause of action.
Declaratory Judgment (Count XII): The Declaratory Judgment Act requires an underlying, viable claim. Because no other claim was viable, declaratory relief could not stand on its own.

2) Counts II–III: Whistleblower Protection Act (WPA)

The WPA protects federal employees from reprisal for protected disclosures. The plaintiff did not plausibly allege he was a federal employee, and his alternative theory of third‑party beneficiary status did not cure the pleading gap. Without employee status (or facts establishing a different statutory hook), the WPA counts failed as a matter of law.

3) Counts VI and IX: Bivens

First Amendment Bivens (Count VI): The Supreme Court has never recognized a Bivens remedy for First Amendment claims, and it has repeatedly cautioned against expanding Bivens to new contexts. The panel therefore rejected the claim.
Official-capacity Bivens (Count IX): Bivens actions lie only against federal officers in their individual capacities. To the extent the count targeted official-capacity conduct for “seizure” of documents, it was not cognizable.

4) Count VII: §§ 1985, 1986 Conspiracy and FCA Theories

Sections 1985/1986: The complaint set out a repetitive, confusing list of acts and asserted inferential conspiracy among named officials, but it lacked non-conclusory facts showing agreement, purpose, or unlawful animus. Without a viable § 1985 claim, § 1986 necessarily failed.
False Claims Act: FCA allegations must satisfy Rule 9(b) by pleading the “who, what, when, where, and how” of a false claim presented to the United States. The complaint did not identify any specific false claim, time, place, substance, or responsible person, and thus fell well short of particularity.

5) Count X: Double Jeopardy

The Double Jeopardy Clause is limited to criminal punishment. Administrative or civil measures count as “criminal” only if “so punitive” in intent or effect that they are transformed into criminal penalties. The alleged removal of application documents to assess program eligibility is regulatory, not punitive; double jeopardy does not apply.

6) Counts IV and XI: Shotgun Pleadings

The Eleventh Circuit affirmed the district court’s application of the Weiland taxonomy:

Count IV: Failed to specify which defendants were responsible for which acts, depriving defendants of fair notice.
Count XI: Though it named defendants, it alternated between “Defendant” and “Defendants” and failed to match particular conduct to particular parties or claims, causing confusion.

Importantly, the district court had identified these defects and afforded an opportunity to amend with guidance. The amended complaint did not cure the problems, justifying dismissal with prejudice.

7) Abandonment and Pro Se Standards

Abandonment: Counts V and VIII, and an argument about the proper naming of the party in interest (“DBA Negro American”), were not briefed on appeal and were deemed abandoned.
Pro se latitude and futility: The district court cited and applied liberal pleading rules. Because the plaintiff had “two bites at the apple” and still failed to state plausible claims, further amendment would be futile, supporting dismissal with prejudice.

Impact

While unpublished and non-precedential, the decision consolidates several recurring themes in federal litigation, particularly in the Eleventh Circuit:

Affirmance on alternative grounds: Even when a district court mislabels a jurisdictional dismissal “with prejudice,” the Eleventh Circuit will affirm if the record supports a Rule 12(b)(6) merits dismissal.
Stringent limits on Bivens: Litigants should not expect Bivens remedies for First Amendment claims or official‑capacity suits. The Supreme Court’s trend is to restrict, not expand, Bivens.
WPA is employee‑centric: Contractors, applicants for certifications, and other non‑employees cannot shoehorn claims into the WPA without clear employment status.
Conspiracy and fraud pleading standards matter: Conclusory conspiracy allegations and vague FCA claims will not survive; Rule 9(b) rigor is strictly enforced.
Double jeopardy is not a catch‑all: Administrative or program‑eligibility actions are regulatory, not criminal, and do not implicate the Fifth Amendment’s double‑jeopardy protection absent exceptional punitive characteristics.
Shotgun pleading doctrine remains a powerful gatekeeper: Plaintiffs must attribute conduct to specific defendants and give clear notice of which claim is asserted against whom; pro se status does not excuse noncompliance after an opportunity to cure.
Declaratory relief is not a standalone remedy: Without an underlying viable claim, the Declaratory Judgment Act cannot sustain a case.

Practically, for veterans and small businesses challenging SBA/VA eligibility decisions, the opinion signals that constitutional tort and generalized federal‑question theories are unlikely to succeed if the pleadings do not identify a valid cause of action, plausible facts, and the correct defendants. Litigants should consider the appropriate administrative avenues and, where applicable, targeted judicial review frameworks rather than broad constitutional claims.

Complex Concepts Simplified

Sovereign immunity: The federal government can’t be sued unless it has clearly consented. If immunity applies, courts lack jurisdiction, and dismissals are typically without prejudice.
Subject‑matter jurisdiction vs. failure to state a claim: Jurisdiction asks “Can this court hear this type of case?” Failure to state a claim asks “Even if the court can hear it, does the complaint allege a legally adequate claim?” Jurisdictional dismissals are without prejudice; merits dismissals are generally with prejudice.
Affirming on any ground: On appeal, a court can affirm a judgment even if the trial court’s reason was wrong, so long as another valid reason appears in the record.
Bivens: A limited doctrine allowing suits for damages against federal officers in their individual capacity for certain constitutional violations. Courts have consistently refused to extend Bivens to First Amendment claims.
First Amendment right “to petition” or “redress”: Guarantees the ability to petition the government. A plaintiff still must allege specific facts showing unconstitutional interference, not just generalized dissatisfaction.
Res judicata (claim preclusion): Bars re‑litigation of the same claim between the same parties after a final judgment. It requires the same parties (or their privies), the same cause of action, a final judgment, and a court of competent jurisdiction.
Whistleblower Protection Act: Protects federal employees from retaliation for protected disclosures; it does not generally cover non‑employees.
Sections 1985 and 1986: Provide remedies for conspiracies to deprive civil rights (§ 1985) and for failing to prevent such conspiracies (§ 1986). § 1986 is dependent on a viable § 1985 claim.
False Claims Act and Rule 9(b): FCA claims alleging fraud on the government must be pled with particularity—who submitted what false claim, when, where, and how.
Double jeopardy: Prevents multiple criminal prosecutions or punishments for the same offense; it rarely applies to civil or administrative actions, which must be “so punitive” to be treated as criminal.
Shotgun pleading: A complaint that confuses who did what or bundles claims and defendants in a way that denies fair notice. Courts will typically allow one chance to fix it; failure to cure can lead to dismissal with prejudice.
Pro se leniency and futility: Courts read pro se complaints liberally and often allow at least one amendment. But if defects cannot be cured, courts may deny further leave as futile and dismiss with prejudice.

Conclusion

The Eleventh Circuit’s unpublished decision in Guillaume solidifies several practical rules for federal litigants:

Appellate courts can affirm on alternative merits grounds even if the district court misapplied sovereign-immunity labeling.
Bivens remains tightly cabined: no First Amendment extension and no official‑capacity route.
The WPA covers federal employees, not all persons interacting with federal programs.
Pleading standards for conspiracy and fraud claims are exacting; conclusory allegations and generalized grievances will not suffice.
Administrative or eligibility decisions do not trigger double jeopardy.
Declaratory relief cannot stand without an underlying viable claim.
Shotgun pleadings will be dismissed, and pro se status will not rescue a complaint after an opportunity to replead goes unused.

For future litigants—especially pro se participants—the opinion underscores the importance of choosing the correct cause of action, identifying the proper defendants in the proper capacities, and pleading specific, plausible facts with clarity and particularity. When administrative decisions are at issue, the more promising path typically lies in adhering to the designated administrative review processes and, where appropriate, pursuing narrowly tailored judicial review, rather than proceeding through broad constitutional tort theories.