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Niskey v. McAleenan

United States District Court, District of Columbia

October 28, 2019

KEVIN K. McALEENAN, Defendant.[[1]]


          JOHN D. BATES United States District Judge

         This 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.

         I. BACKGROUND

         Lawrence 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 termination:

[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 Department's decision.

Id. at 4-5.

         This 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).

         Niskey's 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.


         A. Dismissal Under Rule 12(b)(6)

         A 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 ...

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