USCA11 Case: 19-13903   Date Filed: 10/22/2020   Page: 1 of 19



                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 19-13903
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 1:16-cv-23582-JEM



DR. BOZORGMEHR POUYEH,

                                                         Plaintiff-Appellant,

                               versus

PUBLIC HEALTH TRUST OF JACKSON HEALTH SYSTEM,
a.k.a. the “Trust”,
CARLOS A. MIGOYA,
Chief Executive Officer of the Trust,
DR. STEVEN J. GEDDE,
Program Director of Ophthalmology Residency
Program,
DR. STEFANIE R. BROWN,
Program Director of Preliminary & Internal
Medicine, formerly known as Dr. Doe,
DR. J. DONALD TEMPLE,
Program Director of Harrington Program,
DR. DOE,
Former Program Director of Preliminary and
Internal Medicine,

                                                       Defendants-Appellees.
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                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                     (October 22, 2020)

Before ROSENBAUM, BRANCH, and FAY, Circuit Judges.

PER CURIAM:

       This is the third case that Dr. Bozorgmehr Pouyeh, an Iranian national who

received his medical degree in 2004 in Iran, has filed alleging that he has been

discriminated against when applying to medical residency positions after he

immigrated to the United States. 1 According to Pouyeh, he must complete a

residency in the United States in order to practice medicine here. But he believes

that the defendants—the individuals and entities that oversee the residency programs

to which he applied—have not accepted him for any residency program because,

despite his superior qualifications and experience, the programs arbitrarily and

illegally discriminate against international medical-school graduates (“IMGs”) and

illegally discriminate based on national origin and alienage.

       In a pro se second amended complaint, Pouyeh alleged violations of Title VII,

the Florida Civil Rights Act (“Act”), 42 U.S.C. § 1981, and equal-protection and


       1
        Pouyeh states that he became a legal permanent resident of the United States in 2007 and
was naturalized as a citizen in 2014.

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substantive-due-process principles under 42 U.S.C. § 1983. The district court

dismissed the complaint in part as barred by res judicata and in part for failure to

state a viable claim to relief. Pouyeh now appeals, arguing that res judicata does

not apply, that he stated viable claims, and that the district court failed to address

most of his claims. After careful review, we affirm in part and vacate and remand

in part.

                                   I. Background

       Because they are relevant to the current case, we take a moment to describe

Pouyeh’s prior two cases before turning to his current claims and the district court’s

decision in this case.

       A. Pouyeh’s Prior Cases

       Pouyeh first filed a lawsuit in October 2012 after he applied for but did not

receive a position in the ophthalmology residency program at the Bascom Palmer

Eye Institute (“Bascom Palmer”), which is part of the University of Miami and

which operates under the Public Health Trust of Jackson Health System (the

“Trust”). The operative third amended complaint alleged that he applied for a

position in the program in each of the years 2010, 2011, and 2012, but all slots were

filled by graduates of U.S. medical schools (“USMGs”). Pouyeh was told by the

program director that the program did not accept IMGs.




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      Pouyeh brought claims for (a) education-based discrimination in violation of

Title VI, 42 U.S.C. § 2000d; (b) employment discrimination, in violation of Title

VII, 42 U.S.C. § 2000e-2, the Florida Civil Rights Act (“FCRA”), Fla. Stat.

§ 760.10, and 42 U.S.C. § 1981; (c) retaliation in violation of Title VII, the FCRA,

and 42 U.S.C. § 1981; (d) deprivation of his due-process right to employment,

education, and to obtain a medical license, in violation of 42 U.S.C. § 1983;

(e) conspiracy to interfere with his constitutional rights in violation of 42 U.S.C.

§ 1985; and (f) negligent failure to prevent a conspiracy from depriving him of his

civil rights in violation of 42 U.S.C. § 1986.

      The district court dismissed Pouyeh’s complaint with prejudice, and we

affirmed that judgment on appeal. Pouyeh v. Bascom Palmer Eye Inst. (Pouyeh I),

613 F. App’x 802 (11th Cir. 2015). We concluded that Pouyeh had abandoned some

of his claims on appeal and that his other claims failed on the merits. In relevant

part, we stated that discrimination against IMGs alone did not qualify as

discrimination based on national origin, and that his allegations were otherwise too

conclusory to show discrimination based on national origin. See

We

declined to address Pouyeh’s equal-protection arguments because they were raised

for the first time on appeal.

      In December 2012, two months after he filed his first complaint, Pouyeh filed

another lawsuit raising similar allegations against the University of Alabama at


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Birmingham School of Ophthalmology. In a fourth amended complaint, he alleged

that he applied for but was denied a residency position at the School of

Ophthalmology in each of the years 2010, 2011, and 2012, because he did not

graduate from an AMA- or CMA-accredited medical school. He brought claims of

national-origin discrimination under Title VI, Title VII, and § 1981, and he alleged

violations of his due-process rights to employment, education, and to obtain a

medical license under 42 U.S.C. § 1983.

      Again, the district court dismissed the complaint with prejudice, and we

affirmed that judgment on appeal. Pouyeh v. UAB Dep’t of Ophthalmology (Pouyeh

II), 625 F. App’x 495 (11th Cir. 2015). We found that Pouyeh’s claims of national-

origin discrimination failed because “[r]ejecting applicants based on whether the

medical schools they attended were accredited by the AMA or the CMA is not

discrimination based on national origin,” and because his allegations were otherwise

insufficient to show discrimination based on national origin.

As for

Pouyeh’s equal-protection claims, we concluded that a policy that discriminates

against applicants based on the accreditation of their medical school was “subject

only to rational basis review, and it satisfies the rational-basis test.”

Finally, we found that Pouyeh did not have a substantive-due-process right to

employment, to education, and to obtain a medical license.

      B. Pouyeh’s Current Case


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      In August 2016, Pouyeh filed the current action, relying in part on allegations

from his first lawsuit and presenting a more comprehensive challenge to the Trust’s

residency programs. He alleged that he applied for but did not receive a position in

the Trust’s internal-medicine and ophthalmology residency programs or its

preliminary medicine-internship program in each of the years 2010, 2011, 2012,

2013, 2014, and 2015. He argued that the Trust irrationally discriminated against

IMGs like himself and treated certain IMGs worse than others based on national

origin, and that, but for this discrimination, he would have been hired due to his

superior qualifications, which he alleged in detail. He named as defendants the

Trust, the CEO and president of the Trust, and the directors of the programs at issue.

      The operative second amended complaint contained the following claims.

Counts I, II, and III alleged that the Trust’s internal-medicine and preliminary

medicine programs use hiring quotas for certain IMGs and rely on applicants’

“race/ethnicity, national origin, and citizenship status” in violation of Title VII, the

FCRA, § 1981, and equal-protection and substantive-due-process principles under

§ 1983. As support for these claims, he alleged that the Trust required applicants to

list their race, ethnicity, place of birth, native language, and citizenship status on

their applications. Pouyeh also pointed to the Trust’s Harrington Program, which is

an internal-medicine residency program that admits IMG physicians from Latin

American or Caribbean countries so that these physicians will return to their home


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countries and serve those communities. Finally, he asserted that the internal-

medicine program had a quota of hiring “at least one Latino from Puerto Rico and

at least one Arab,” and that, between 2013 and 2015, “Arabs constituted 11.3% (5

out of 44) IMGs” while “only 6.8% of the IMGs were from the rest of the world.”

      Counts IV–VIII alleged that the Trust’s programs unlawfully impose more

stringent requirements on IMG applicants. In Counts IV, VI, and VII, Pouyeh

alleged that the Trust violated his equal-protection rights by applying different

admission standards to IMGs than it does to USMGs or U.S. senior medical students

(“US Seniors”). In particular, he contends that the Trust required IMG applicants to

the internal-medicine and preliminary medicine programs to (a) have higher scores

on “Step 1” exams; (b) take “Step 2” exams before being admitted to a residency

program; (c) pass Step 2 exams on the first attempt; and (d) apply within five years

of graduation. Counts V and Count VIII alleged that some of these requirements

were a pretext for national-origin discrimination—because USMGs and US Seniors

are predominately born in the United States and IMGs are predominately born

elsewhere—in violation of Title VII and the FCRA.

      Counts IX and X concerned the Bascom Palmer ophthalmology residency

program. Pouyeh alleged this program had a policy of rarely if ever admitting IMGs.

In Pouyeh’s view, this policy was both arbitrary, in violation of his equal-protection




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and substantive-due-process rights (Count IX), and a pretext for national-origin

discrimination, in violation of Title VII and FCRA (Count X).

      Finally, Count XI alleged that the Trust violated equal-protection principles

by irrationally “set[ting] aside at least 7 positions” in the preliminary medicine

program for “applicants who pursue neurology, while they exclude IMGs if they

want to pursue ophthalmology instead of neurology.”

      C. The District Court’s Decision

      The defendants filed a motion to dismiss, arguing that dismissal was

warranted on three grounds: (a) Pouyeh failed to timely perfect service of process;

(b) res judicata barred him from relitigating his claims; and (c) the second amended

complaint was a “shotgun pleading” that did not comply with Rule 8 of the Federal

Rules of Civil Procedure. Pouyeh filed a response opposing each argument.

      In a report and recommendation (“R&R”), a magistrate judge recommended

that the district court grant the motion to dismiss, but mostly not for the grounds

raised in that motion. The magistrate judge began by describing this action as arising

from the “decision to not admit him to [the Trust’s] ophthalmology residency

program at the Bascom Palmer Eye Institute for the years 2010–2015,” and then

succinctly described each of Pouyeh’s eleven claims and the facts which were

intended to support those claims. The magistrate judge also reviewed the procedural

history of this case and Pouyeh’s prior cases.


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      Turning to the grounds for dismissal raised by the defendants, the magistrate

judge concluded that (a) Pouyeh timely served the complaint; (b) Pouyeh’s claims

relating to the years 2010–2012 were barred by res judicata in light of his first

lawsuit against Bascom Palmer, but his claims based on the years 2013–2015 were

not so barred; and (c) the second amended complaint was “arguably” a shotgun

pleading that did not comply with Rule 8(a)(2).

      Nevertheless, the magistrate judge, acknowledging Pouyeh’s pro se status,

chose to “liberally construe the second amended complaint” to determine “whether

any of the factual allegations . . . support Pouyeh’s different causes of action.”

According to the magistrate judge, Pouyeh’s “allegations of discrimination boil

down to one complaint—[the Trust] supposedly has a policy of not admitting IMGs

to its Bascom Palmer residency program and Pouyeh is being denied acceptance to

the program for this reason.” Citing our decisions in Pouyeh I and Pouyeh II, the

magistrate judge concluded that this policy did not amount to prohibited

discrimination and that rational-basis review was satisfied.

      The magistrate judge addressed Pouyeh’s remaining claims in a footnote.

With regard to Pouyeh’s allegations of more stringent requirements for IMGs

(Counts IV–VIII), the magistrate judge stated that these allegations were not specific

to the Trust’s residency programs or his applications thereto, and so were “irrelevant

to his discrimination claims.” With regard to Pouyeh’s claims of unlawful quotas in


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the internal-medicine and preliminary medicine programs, the magistrate judge

stated that Pouyeh did not allege “any facts showing that he is qualified” for these

programs, and that “he also later states that [the Trust] actually admits many other

applicants who attended medical school in Iran to those residency programs, which

contradicts his claim that [the Trust] is excluding Iranian-born applicants based on

their national origin.”

      Accordingly, the magistrate judge concluded that Pouyeh had failed to state a

plausible claim to relief. The magistrate judge further recommended that dismissal

of the complaint be with prejudice because the complaint still suffered from some

procedural defects that the court had identified in Pouyeh’s prior complaints and

because his claims had “a fatal flaw that he cannot overcome – medical schools may

deny admission to students who are not graduates from AMA or CMA schools.”

      Pouyeh filed objections, arguing among other things that the magistrate judge

addressed only one group of claims in his complaint—related to the exclusion of

IMGs from the Bascom Palmer ophthalmology residency program—and ignored his

remaining claims. Pouyeh also objected to the magistrate judge’s conclusions

regarding whether res judicata barred some of his claims and whether the second

amended complaint was a shotgun pleading.

      In a two-page order, the district court adopted the R&R over Pouyeh’s

objections, which the court described as “conclusory and repetitive.” The court


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stated that Pouyeh’s claims hinged on the “same essential argument” that was

rejected in both Pouyeh I and Pouyeh II, namely, “that a medical residency

program’s policy of rejecting graduates of international medical schools . . .

constitutes discrimination based on national origin.” Therefore, the court stated,

“[i]nasmuch as the wrongdoing alleged by Pouyeh is not barred by res judicata, the

dispositive legal question implicated by those allegations has already been addressed

and resolved adversely to Pouyeh.” Pouyeh now appeals.

                              II. Standards of Review

      We review a dismissal for failure to state a claim de novo, accepting the

complaint’s factual allegations as true and construing them in the light most

favorable to the plaintiff. Hunt v. Aimco Props., L.P., 

, 1221 (11th

Cir. 2016). Likewise, we review de novo a district court’s application of the doctrine

of res judicata. Ragsdale v. Rubbermaid, Inc., 

, 1238 (11th Cir. 1999).

“We review a dismissal on Rule 8 shotgun pleading grounds for an abuse of

discretion.” Vibe Micro, Inc. v. Shabanets, 

, 1294 (11th Cir. 2018).

We may affirm on any ground supported by the record, “regardless of the grounds

addressed, adopted or rejected by the district court,” Fla. Wildlife Fed’n Inc. v. U.S.

Army Corps of Eng’rs, 

, 1316 (11th Cir. 2017), although we ordinarily

prefer district courts to address issues in the first instance, see Wilkerson v. Grinnell




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Corp., 

, 1322 n.4 (11th Cir. 2001) (“We do not reach these issues

today, preferring that the district court address them in the first instance.”).

      We liberally construe the filings of pro se litigants. See Erickson v. Pardus,

, 94 (2007). “Yet even in the case of pro se litigants this leniency does

not give a court license to serve as de facto counsel for a party, or to rewrite an

otherwise deficient pleading in order to sustain an action.” Campbell v. Air Jamaica

Ltd., 

, 1168–69 (11th Cir. 2014) (quotation marks omitted).

                                    III. Discussion

      Pouyeh challenges the district court’s decision on a number of grounds. He

contends that that his second amended complaint was not a shotgun pleading, that

res judicata does not apply, and that the court failed to address many of his claims

and erred in dismissing the claims it did address. We take each argument in turn.

      A. Shotgun Pleading

      Rule 8(a)(2), Fed. R. Civ. P., requires a complaint to provide “a short and

plain statement of the claim showing that the pleader is entitled to relief.” The

purpose of the “statement” is to “give the defendant fair notice of what the claim is

and the grounds upon which it rests.” 

(cleaned up). We

have recognized that this rule aims to enable the responding party to identify the

pleader’s claim, frame a responsive pleading, and to permit the court to determine




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which facts are intended to support which claims. Weiland v. Palm Beach Cty.

Sheriff’s Office, 

, 1320 (11th Cir. 2015).

      Here, we decline to affirm the dismissal of Pouyeh’s second amended

complaint on the ground that it is a shotgun pleading. To begin with, it’s not clear

that the district court exercised its discretion to dismiss the complaint on that basis.

Although the court described the complaint as a shotgun pleading, neither the

magistrate judge nor the court clearly stated that dismissal was warranted on that

ground. Rather, both the magistrate judge and the court concluded that dismissal

was warranted primarily due to deficiencies in the merits of Pouyeh’s claims.

      Nor can we say that dismissal clearly was warranted on shotgun-pleading

grounds. Although Pouyeh’s second amended complaint displays some of the

characteristics of what we have described as shotgun pleadings

(identifying characteristics of “four rough types or categories of shotgun

pleadings”), we do not think the complaint, when liberally construed, fails “to give

the defendants adequate notice of the claims against them and the grounds upon

which each claim rests,”

(“The unifying characteristic of all types of

shotgun pleadings is that they fail . . . to give the defendants adequate notice of the

claims against them and the grounds upon which each claim rests.”). In fact, the

magistrate judge was able to succinctly describe each of Pouyeh’s claims and the




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factual allegations that were intended to support each claim. And the defendants in

their motion to dismiss did not assert an inability to understand Pouyeh’s claims.

      For these reasons, we decline to affirm the dismissal of the second amended

complaint on the ground that it is an impermissible shotgun pleading.

      B. Res Judicata

      Next, we consider res judicata. The district court dismissed Pouyeh’s claims

relating to the years 2010–2012 (but not the years 2013–2015) as barred by res

judicata in light of his previous litigation concerning the Bascom Palmer

ophthalmology residency program.

      The doctrine of res judicata “bars the filing of claims which were raised or

could have been raised in an earlier proceeding.” 

. A

claim will be barred by prior litigation if these four elements are met: “(1) there is

a final judgment on the merits; (2) the decision was rendered by a court of competent

jurisdiction; (3) the parties, or those in privity with them, are identical in both suits;

and (4) the same cause of action is involved in both cases.”

fourth

element, two cases are generally considered to involve the same cause of action if

the latter case arises out of the same nucleus of operative fact, or is based upon the

same factual predicate, as the former one.” Maldonado v. U.S. Att’y Gen., 

, 1375 (11th Cir. 2011) (quotation marks omitted).

      Pouyeh’s claims relating to the ophthalmology residency program (Counts IX


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and X) for the years 2010–2012 are barred by res judicata. Pouyeh challenges only

the fourth element, contending that the legal theories in this case are different from

the legal theories he pursued in his previous case against Bascom Palmer, and that

some crucial evidence was not available until 2014. But res judicata bars “all legal

theories and claims arising out of the same operative nucleus of fact,” whether or not

those theories and claims were raised in the previous litigation.

Because these claims arise out of the same factual predicate as the previous

litigation—Pouyeh’s non-admission to the ophthalmology residency program for the

years 2010–2012—res judicata applies even though Pouyeh is pursuing different

legal theories and offering new evidence. See

however, that his claims arising from his non-admission to

the internal-medicine residency and preliminary medicine internship programs

during the years 2010–2012, which were not the subject of previous litigation, do

not arise out of the same operative nuclear of facts. See

does not

bar these distinct claims.

      C. The Merits

      Turning to the merits of the case, Pouyeh contends that the district court and

magistrate judge simply ignored most of his claims in their analyses. He strives to

clarify the specific claims he raised below and why his factual allegations support

those claims.


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      We agree that the district court appears to have overlooked certain claims, and

we vacate and remand for the court to address them in the first instance. We affirm

the dismissal of the remainder of Pouyeh’s claims.

      To avoid dismissal for failure to state a claim, the complaint “must include

enough facts to state a claim to relief that is plausible on its face.” 

(quotation marks omitted). A claim is facially plausible when “the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.’”

In

other words, the “[f]actual allegations must be enough to raise a right to relief above

the speculative level.” Bell Atl. Corp. v. Twombly, 

, 570 (2007). The

plaintiff must offer “more than labels and conclusions, and a formulaic recitation of

the elements of a cause of action will not do.”

Oxford Asset Mgmt., Ltd.

v. Jaharis, 

, 1188 (11th Cir. 2002) (“[C]onclusory allegations,

unwarranted deductions of facts or legal conclusions masquerading as facts will not

prevent dismissal.”).

      In dismissing Pouyeh’s second amended complaint, the district court and

magistrate judge “boil[ed] down” his claims to the allegation that Bascom Palmer

had a policy of excluding IMGs from its ophthalmology residency program. Pouyeh

alleged that this policy was a proxy for discrimination based on national origin, in

violation of Title VII, and lacked a rational basis, in violation of his equal-protection


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and substantive-due-process rights.

      As the district court and magistrate judge explained, we rejected these same

basic arguments in Pouyeh I and Pouyeh II. In Pouyeh I, we held that Bascom

Palmer’s alleged policy of excluding IMGs did not amount to discrimination based

on national origin. Pouyeh I, 613 F. App’x at 810–11. Then, in Pouyeh II, we held

that a similar policy that “[r]eject[ed] applicants based on whether the medical

schools they attended were accredited by the AMA or the CMA” did not amount to

“discrimination based on national origin” and also satisfied rational-basis review.

Pouyeh II, 625 F. App’x at 498; Maceluch v. Wysong, 

, 1065 (5th

Cir.1982) (explaining that a policy “based upon the locality of the education

received” does not discriminate based on alienage because “[s]ubstantial numbers

of Americans attend medical schools abroad, just as some foreigners attend medical

schools in the United States”). And despite Pouyeh’s complaints, we are not

persuaded that Pouyeh I and Pouyeh II were wrongly decided or that his allegations

in this case warrant a different result. Accordingly, we affirm the dismissal of

Pouyeh’s claims under Counts IX and X.

      But as Pouyeh stresses at great length on appeal, his claims extended beyond

the Bascom Palmer ophthalmology residency program. In Counts IV–VIII, Pouyeh

challenges separate requirements in other residency programs which make it more




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difficult for IMGs to be admitted to these programs.2 These requirements were not

at issue in either Pouyeh I or Pouyeh II. In addition, in Counts I–III, Pouyeh alleges,

among other things, that twelve first-year positions in the Trust’s internal-medicine

residency program, approximately one-third of the total positions, are dedicated each

year to applicants from the Harrington Program, which is limited to applicants from

countries in Latin America and the Caribbean. Thus, Pouyeh claims that the internal-

medical residency program distinguishes between IMGs—favoring some and

disfavoring others—on the basis of national origin, and that his applications to this

program were not considered on an equal footing with applications from members

of the favored national origin groups. Finally, Count XI challenges another alleged

quota in the preliminary medicine internship program.

       Neither the magistrate judge nor the district court meaningfully addressed

Pouyeh’s claims as to matters beyond Bascom Palmer. The magistrate judge stated

that Counts IV–VIII were not specific to the Trust and so were “irrelevant,” but a

liberal construction of the second amended complaint shows that Pouyeh alleged

that the requirements at issue were Trust policies, not policies generally applicable

to all residency programs in the United States. The magistrate judge also stated

Pouyeh failed to show he was qualified for the internal-medicine and preliminary

       2
          Pouyeh at times seems to include the ophthalmology residency program in these counts,
but since he alleges that the ophthalmology program excludes IMGs altogether, it does not appear
that these requirements are relevant to that program.

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medicine programs, but we disagree. Pouyeh covered his objective qualifications in

substantial detail, and we think his factual allegations are enough to plausibly

establish that he applied to and was qualified for these programs, apart from the

requirements he challenges in this case. Accordingly, the grounds cited by the

magistrate judge do not support dismissal of these claims.

      Although we may affirm on any ground supported by the record, it is “the

responsibility of the district court in the first instance” to render a reasoned decision

on the sufficiency of the allegations in the complaint. Danley v. Allen, 

, 1092 (11th Cir. 2007); see 

n.4 (“We do not reach

these issues today, preferring that the district court address them in the first

instance.”). We therefore vacate in part the dismissal of the second amended

complaint and remand for further proceedings on Pouyeh’s remaining claims.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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