United States District Court, D. Columbia.
DOUGLAS P. SCZYGELSKI, Plaintiff,
U.S. CUSTOMS AND BORDER PATROL AGENCY, Defendant
Douglas Sczygelski, Plaintiff, Pro se, Bismarck, ND.
For U.S. Customs And Border Protection, Defendant: Robert N. Englund, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
JAMES E. BOASBERG, United States District Judge.
Plaintiff Douglas Sczygelski was terminated from his internship with the U.S. Customs and Border Patrol Agency in July 2008 after CBP discovered that he
had sent unsolicited letters to college students expressing his negative views about blacks. He reacted by filing suit in the District of North Dakota, alleging, among other things, that his removal violated his First Amendment rights. The district court dismissed the case, and the Eighth Circuit affirmed the decision on appeal. Plaintiff next sued the Office of Special Counsel for refusing to prosecute his complaint regarding his termination. A court in this district similarly dismissed that action.
Plaintiff finally brought this suit, his third in federal court, claiming that CBP, after conducting a background check and learning of his prior termination, has refused to rehire him. He states in his Complaint that he was not rehired because, " at various times in my life, I have said publicly that the United States should not militarily intervene to create democracy in black countries, as was attempted in Somalia in 1993, because such interventions would surely accomplish nothing useful, due to the fact that blacks on average are less intelligent than whites, due to their genes." Compl. at 1. CBP now moves to dismiss. Although Sczygelski relies on a new legal theory -- namely, the Equal Protection Clause -- this does not give him the ability to relitigate the legality of his termination. Because this new suit is nothing more than another challenge to his prior removal, the doctrine of res judicata requires that Defendant's Motion be granted.
" The United States Customs and Border Protection agency (CBP) hired Douglas P. Sczygelski as an Agricultural Specialist [in North Dakota] in 2006, through a paid internship program, and his job duties included interacting with the public at a border crossing." Sczygelski v. CBP (Sczygelski II), 419 F.App'x 680, 680 (8th Cir. 2011). After disseminating " hundreds of unsolicited letters to college students expressing negative opinions about African Americans," Sczygelski was terminated in April 2008. See Am. Compl., Sczygelski v. CBP (Sczygelski I), No. 08-75 (D.N.D. March 3, 2009) at 5. He appealed this termination to the Merit Systems Protection Board, but the MSPB ruled in July 2008 that it lacked jurisdiction because Sczygelski, as an intern, was not an employee under the Civil Service Reform Act. Sczygelski I, 2009 WL 2982871, at *1 (D.N.D. Sept. 14, 2009). Meanwhile, after his termination from his position in North Dakota, Sczygelski applied for the same job, " CBP Agriculture Specialist," in New York, and in June 2008 he was " tentatively hired" subject to a background check. See Compl. at 1. Before he actually began working, however, he received a letter from CBP in 2010 withdrawing its offer of employment. See id.
Plaintiff filed his first suit against CBP on July 21, 2008, in the District of North Dakota, arguing that: his actions did not violate CBP standards because his conduct was not " invidious or derogatory" ; his termination violated his First Amendment right to free speech; " the firing was illegal because it was motivated by racial bias against the plaintiff" ; and his firing was grossly disproportionate to the offense. See Compl., Sczygelski I, No. 08-75 at 5. Sczygelski then amended his complaint on March 3, 2009, dropping the racial-discrimination charge. See id., Am. Compl. The court initially dismissed all of the claims for lack of jurisdiction (because Sczygelski was not a federal employee under CSRA), except for the First Amendment claim. See id., 2009 WL 2982871, at *2. Magistrate Judge Karen Klein then recommended summary judgment in favor of CBP on the lone surviving claim on August
8, 2010, after applying the Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cnty., Illinois, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), balancing test for freedom of speech of public employees. See Opp., App. 1 (Report and Recommendation) at 5. She concluded that " [w]hile plaintiff's speech involved a matter of public concern, the defendant has carried its burden in showing that its interest in the efficient operation of the government agency outweighs the plaintiff's free speech in this matter." Id. at 9. After the recommendation, Plaintiff attempted to amend his complaint to include an equal-protection claim, but the district refused to grant leave and adopted the Report and Recommendation in its entirety. See Order, Sczygelski I, No. 08-75 at 5 . The Eighth Circuit affirmed the decision on March 17, 2011. See Sczygelski II, 419 F.App'x at 681.
Plaintiff filed his next suit relating to his termination against the Office of Special Counsel on December 14, 2011, this time in this district. See Sczygelski v. OSC (Sczygelski III), 926 F.Supp.2d 238 (D.D.C. 2013). His third amended complaint there enumerated twenty-one claims against OSC, including some nearly identical ones to those he asserts here -- e.g., CBP Code of Conduct 6.11.2 was void for vagueness. See id., Am. Compl. at 9-18. Judge Rosemary Collyer decided on March 1, 2013, that all of Sczygelski's claims were barred by res judicata because they could have been raised in Sczygelski I, the North Dakota case. The fact that he now asserted new legal theories, claimed as a new factual development that ...