United States District Court, District of Columbia
D. BATES United States District Judge
matter is before the Court on defendant's Motion to
Dismiss (ECF No. 9). For the reasons discussed below, the
Court will grant the motion.
Niskey, an African American male, is a former employee of the
U.S. Department of Homeland Security (“DHS”)
whose prior lawsuit in this Court alleged
“discrimination, retaliation, and failure to comply
with agency regulations.” Niskey v. Johnson,
69 F.Supp.3d 270, 271 (D.D.C. 2014), aff'd sub nom.
Niskey v. Kelly, 859 F.3d 1 (D.C. Cir. 2017). The
decision of the D.C. Circuit recounts events from April 2002
through his removal in September 2007, including his
suspension and the revocation of his security clearance, in
some detail. See Niskey, 859 F.3d at 3-4. Relevant
to this case are the events following Niskey's
[O]n October 12, 2007, Niskey appealed his termination to the
Merit Systems Protection Board. However, Niskey's appeal
documents and hearing testimony before the Board's
administrative law judge (“ALJ”) made no mention
of racial discrimination or retaliation, focusing instead on
alleged procedural errors in the security revocation and
termination process. A Board ALJ affirmed Niskey's
termination, finding no material error in the procedures that
led to his security clearance revocation or his removal.
Niskey filed pro se a petition for review of the
ALJ's decision with the Board. In his petition for
review, Niskey alleged that race discrimination played a part
in his initial temporary suspension for being “absent
without leave, ” which led to his security clearance
suspension and, ultimately, to his termination. The Board
affirmed the decision of the ALJ, ruling that Niskey did not
present any new or previously unavailable evidence, and did
not demonstrate that the ALJ committed any material legal
error. The Board issued its final decision on July 9, 2008.
Over a year later, in November 2009, Niskey contacted the
Equal Employment Opportunity Commission's Washington
Field Office about his termination, and was advised to file a
formal complaint with the Department of Homeland
Security's Equal Employment Opportunity
(“EEO”) office. Niskey claims that he was told
that his time limit for filing his complaint would be
equitably tolled. In August 2010, Niskey contacted a
counselor in the Department's EEO office, and in
September 2010, Niskey filed a formal complaint with that
office. The complaint alleged that race discrimination and
retaliation stemming from the 2002 discriminatory leave
policy led to the suspension of his security clearance and
his eventual termination.
The Department's EEO office found that Niskey had failed
to initiate contact with a Department EEO counselor within 45
days of the unlawful termination or other discriminatory act,
as required by regulation. Niskey appealed to the Equal
Employment Opportunity Commission, which affirmed the
Id. at 4-5.
Court did not entertain Niskey's discrimination and
retaliation claims directly, concluding that it could not do
so because Niskey had not exhausted his administrative
remedies prior to filing suit. See Niskey, 69
F.Supp.3d at 273-75. The D.C. Circuit affirmed, see
Niskey, 859 F.3d at 3, and the Supreme Court denied
Niskey's petition for a writ of certiorari, see
Niskey v. Dule, 138 S.Ct. 427 (2017).
current complaint alleges very few facts. Based on the
Court's review of its “Statement of Issues, ”
Compl. at 3-4 (page numbers designated by plaintiff), and
Niskey's Response in Opposition to Motion to Dismiss (ECF
No. 12, “Pl.'s Opp'n”) at 8-10, Niskey
appears to raise claims under the Administrative Procedure
Act (“APA”) and the due process clause of the
Fifth Amendment to the United States Constitution. Niskey
also raises, again, Title VII retaliation and discrimination
claims coupled with the allegation that he suffered a
“continuing violation” of his rights in the form
of a “hostile work environment.” Compl. at 4-5.
But the events giving rise to all of these claims are the
same events which Niskey sued upon previously: they pertain
to race discrimination and retaliation he allegedly
experienced at DHS, his suspension, revocation of his
security clearance, termination, and denial of retirement and
pension benefits. See generally Compl. at 7-10.
Niskey demands an “award [of] back pay, attorney
fees, lost benefits, front pay, compensatory and punitive
damages and reinstatement to make [him] whole again.”
Id. at 18.
Dismissal Under Rule 12(b)(6)
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief,
” Fed.R.Civ.P. 8(a)(2), “in order to give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests, ” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citation and internal
quotation marks omitted). A motion under Federal Rule of
Civil Procedure 12(b)(6) “tests the legal sufficiency
of a complaint.” Browning v. Clinton, 292 F.3d
235, 242 (D.C. Cir. 2002). The Court must construe the
complaint liberally and in Niskey's favor, see Kowal
v. MCI ...