The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Plaintiff Douglas Sczygelski was terminated from his position with U.S. Customs and Border Protection in 2008 during his probationary period because he sent hundreds of unsolicited letters to newspapers, college students, and others espousing his belief that African Americans are genetically inferior. Proceeding pro se, he has filed a twenty-one count Third Amended Complaint, Dkt. 20, against the U.S. Office of Special Counsel, a federal agency that protects federal employees by investigating and prosecuting allegations of prohibited personnel practices. Mr. Sczygelski's Third Amended Complaint ("Complaint") challenges his termination by Customs and Border Protection ("CBP") and the investigation thereof by the Office of Special Counsel ("OSC"), which declined to prosecute his complaint on June 16, 2008. Compl. at 3, 6. Mr. Sczygelski summarizes his claims as follows:
[B]y firing him in 2008, CBP violated 5 U.S.C. §§ 2301(b)(6), 2302(b)(10) and (b)(12), 7321, 7323(c), and 5 C.F.R. § 4.1. . . . Rule 6.11.2 of the CBP Standards of Conduct is unconstitutionally void for vagueness . . . . By rejecting Plaintiff's complaints, OSC has erred in its interpretation of the law, violated the Plaintiff's constitutional right to equal protection of the laws, and unconstitutionally usurped the legislative branch's exclusive right to create laws. Plaintiff also contends that OSC has refused to investigate some of his complaints, and therefore he seeks writs of mandamus under 28 U.S.C. § 1361 to force OSC to investigate.
Mr. Sczygelski's claims range from a challenge to 5 U.S.C. § 2301(b)(6)*fn1 as violating the Equal Protection Clause, id. at 7, to a request that the Court declare that "OSC's interpretations of [various statutes] are so bizarre . . . that they amount to an unconstitutional usurpation by the executive branch of the legislative branch's exclusive right to create statutes, and also violate Plaintiff's constitutional right to due process of law," id. at 19.
OSC moves to dismiss or, in the alternative, for summary judgment, Dkt. 21, raising a number of arguments. Most importantly for present purposes, OSC contends that Mr. Sczygelski's claims are barred by res judicata and collateral estoppel. Mem. Supp. Def. Mot. Dismiss or Summ. J ("Def. Mem.") [Dkt. 21] at 11--17.*fn2 According to OSC, id. at 11, "[Mr. Sczygelski's] claims amount to nothing more than the contention that OSC was wrong when it found that CBP did not violate laws when it terminated [him]. . . . This Court's resolution of [Mr. Sczygelski's] claims requires inquiry into the propriety of CBP's 2008 termination and that issue has already been adjudicated." See Sczygelski v. Customs & Border Protection Agency (Sczygelski I), No. 2:08-cv-0075-RRE-KKK (D.N.D. filed July 21, 2008), aff'd, 419 F. App'x 680, cert. denied, 132 S. Ct. 857 (2011).
Mr. Sczygelski filed a lengthy opposition to OSC's motion. See Pl. Opp. [Dkt. 24]. He argues that this suit against OSC is not precluded because "[a]bsolutely nothing that was decided in Sczygelski I will have to be re-litigated in the present civil action." Pl. Opp. Mem. at 15. He asserts that the prior suit was "based on the fact that [he] was fired for no legitimate reason," but the "current lawsuit is based on the fact that OSC has refused to give [him] a benefit to which he is entitled. Hence the 'nucleus of facts' is different." Id. at 14.
Mr. Sczygelski was working as a probationary Agricultural Specialist for CBP through a federal internship program when he was terminated in 2008 after the agency learned he had sent "hundreds of unsolicited letters to college students expressing negative opinions about African--Americans." See Sczygelski v. Customs & Border Protection Agency, 419 F. App'x 680 (8th Cir. 2011). These letters stated, inter alia, that "blacks, on average, are less intelligent than whites, and the reason is genetic"; that "Thomas Jefferson thought blacks were a bunch of idiots"; that there is "no school on earth where normal blacks do as well as normal whites"; and that "every black-ruled country on Earth is a cesspool of poverty, violence, and AIDS." Mem. Opp. Pl. Mot. Summ. J. & Supp. CBP Mot. Summ. J., Ex. 16, Sczygelski I [Dkt. 53-7], at *2--3 (sample letter from Mr. Sczygelski).
In his CBP position, Mr. Sczygelski checked vehicles entering the U.S. for contraband goods at a border crossing at the North Dakota/Canada border. See Compl. at 1--2. The publicity given to Mr. Sczygelski's letters caused concern at CBP because of its law enforcement function and his job requirements that he deal with the public regularly and exercise discretion. See CBP Mot. Dismiss, Ex. 4, Sczygelski I [Dkt. 5-5], at *3 (CBP termination letter).
Mr. Sczygelski filed his first OSC complaint in May 2008, alleging that he had been fired for his political beliefs.*fn3 Compl. at 3. OSC decided not to proceed on Mr. Sczygelski's complaint because: (i) there was no information that Mr. Sczygelski was fired "based on [his] affiliation with any political party"; (ii) the "widespread distribution" of the letters would "have an adverse impact on the efficient functioning of" CBP, even though they were penned and mailed off-duty; and (iii) CBP's interest in promoting the efficiency of the public service outweighed Mr. Sczygelski's interests in publicizing his views. Def. Mem., Ex. 2 [Dkt. 21-3] (May 22, 2008 Letter from Martha Sheth to Douglas Sczygelski) at 1--3. Mr. Sczygelski appealed this decision but it was not changed. Def. Mem., Ex. 4 [Dkt. 21-5] (June 16, 2008 final decision of OSC). Second, third and fourth, and fifth complaints with variations not pertinent here, filed between June 2008 and March 2012, were also unsuccessful in convincing OSC to institute an action on Mr. Sczygelski's behalf. Def. Mem. at 8--9 (citations to complaints and OSC records omitted). Mr. Sczygelski also appealed to the Merit Systems Protection Board ("MSPB"), which rejected the appeal because it concluded that it lacked jurisdiction given that Mr. Sczygelski, a probationer, was not an "employee" under 5 U.S.C. § 7511(a)(1)(B). Sczygelski I, [Dkt. 31], at *2 (D.N.D. Sept. 14, 2009) (order denying motion to dismiss and motion for default judgment).
Mr. Sczygelski then challenged his termination in the U.S. District Court for the District of North Dakota. Sczygelski, 419 F. App'x. at 681. As discussed in detail below, his complaint was found to have no merit and was dismissed. Id. Upon appeal to the Eighth Circuit, the dismissal was affirmed. Id. The ...