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Sczygelski v. United States Office of Special Counsel

United States District Court, District of Columbia

March 1, 2013

Douglas SCZYGELSKI, Plaintiff,
v.
UNITED STATES OFFICE OF SPECIAL COUNSEL, Defendant.

Page 239

Douglas Sczygelski, Grand Forks, ND, pro se.

Hubert T. Lee, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, 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.

Id.

Mr. Sczygelski's claims range from a challenge to 5 U.S.C. § 2301(b)(6)[1] 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.[2] According to

Page 240

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 Fed.Appx. 680, cert. denied, __ U.S. __, 132 S.Ct. 857, 181 L.Ed.2d 552 (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.

I. FACTS

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 Fed.Appx. 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 ...


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