                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 DOUGLAS P. SCZYGELSKI,

         Plaintiff,
                v.                                           Civil Action No. 13-1672 (JEB)
 U.S. CUSTOMS AND BORDER PATROL
 AGENCY,

         Defendant.


                                  MEMORANDUM OPINION

       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


                                                  1
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.

I.     Background

       “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



                                                  2
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 (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 Fed. 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 OSC had



                                                  3
continued to refuse to open his case, and named a new government entity did not change the

verdict that Plaintiff was claim precluded. See Sczygelski III, 926 F. Supp. 2d at 244.

       Undeterred, Sczygelski filed this new Complaint against CBP on October 28, 2013,

asserting six reasons why its failure to rehire him is unconstitutional. First, he alleges that due

process was violated because Rule 6.11.2 of the CPB standards of conduct, the one cited for his

termination, is “void for vagueness.” See Compl. at 1. His next five allegations all claim that he

was denied equal protection of the laws because: (1) CBP allegedly would not fire a black person

“for advocating discrimination against whites” and therefore cannot refuse to hire him; (2) as a

federal civil servant cannot be fired for expressing the political opinion he expressed, “there is no

rational reason for CBP’s refusal to hire [him] for expressing that opinion”; (3) CBP cannot

refuse to hire him even if “views might upset some people” because then they “must also refuse

to hire other people who have views that might upset some people, such as opposition to

legalizing gay marriage”; (4) since a federal civil servant cannot be fired for taking part in the

political process, CBP cannot refuse to hire him for that reason; and (5) federal employees

cannot be discriminated against based on their “political affiliation,” and there is “no rational

reason for [the] distinction” between discrimination based on the views he expressed and

discrimination based on political affiliation. See id. at 2-3.

       CBP filed the instant Motion to Dismiss on March 12, 2014. See ECF No. 6. The

Motion argued that Plaintiff’s claim was barred by both res judicata and issue preclusion, but did

not set forth an argument as to why issue preclusion applies in this case. Plaintiff filed a

response to Defendant’s Motion on March 20, see ECF No. 7, and Defendant filed a Reply on

March 31, see ECF No. 8, this time setting forth arguments on issue preclusion as well. See

Reply at 5-6. Plaintiff filed a Motion to Strike the portions of Defendant’s Reply arguing issue



                                                  4
preclusion, but the Motion was denied without prejudice for failure to comply with Local Rule

7(m). See Minute Order, April 24, 2014.

II.     Legal Standard

        Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a

complaint fails to “state a claim upon which relief can be granted.” When the sufficiency of a

complaint is challenged under Rule 12(b)(6), the factual allegations presented must be presumed

to be true and should be construed liberally in the plaintiff's favor. Leatherman v. Tarrant Cty.

Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993). Although notice-pleading rules are

“not meant to impose a great burden on a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336,

347 (2005), and “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)

motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (internal quotation marks omitted). A plaintiff must

put forth “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. Though a plaintiff may survive a 12(b)(6)

motion even if “recovery is very remote and unlikely,” Twombly, 550 U.S. at 555 (citing

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint “must be

enough to raise a right to relief above the speculative level.” Id. at 555.

        Res judicata may be brought as “an affirmative defense that is generally pleaded in a

defendant’s answer, but is also properly brought in a pre-answer Rule 12(b)(6) motion when all

relevant facts are shown by the court’s own records, of which the court takes notice.”

Hemphill v. Kimberly-Clark Corp., 605 F. Supp. 2d 183, 186 (D.D.C. 2009) (internal quotation

marks and citations omitted); see also Stanton v. D.C. Court of Appeals, 127 F.3d 72, 76-77



                                                    5
(D.C. Cir. 1997) (collecting cases allowing parties to assert res judicata on (12)(b)(6) motion).

In addition, “[a] court may take judicial notice of public records from other proceedings.”

Hemphill, 605 F. Supp 2d at 186 (citing Covad Comms. Co. v. Bell Atl. Corp., 407 F.3d 1220,

1222 (D.C. Cir. 2005); Does I through III v. District of Columbia, 238 F. Supp. 2d 212, 216-17

(D.D.C. 2002)).

III.      Analysis

          In seeking dismissal here, CBP relies on the defenses of both claim preclusion and issue

preclusion. As the Court may dispose of the matter under the former, it need not discuss the

latter.

          “Under the doctrine of res judicata, or claim preclusion, a subsequent lawsuit will be

barred if there has been prior litigation (1) involving the same claims or cause of action, (2)

between the same parties or their privies, and (3) there has been a final, valid judgment on the

merits, (4) by a court of competent jurisdiction.” Smalls v. United States, 471 F.3d 186, 192

(D.C. Cir. 2006). The doctrine of res judicata “precludes the parties . . . from relitigating issues

that were or could have been raised in that action.” Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir.

2002) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)).

          There is little dispute here that the last three prerequisites apply. More specifically, the

North Dakota litigation was also between Sczygelski and CBP. There was a final, valid

judgment on the merits in that case. See Sczygelski III, 926 F. Supp. 2d at 244 (“Mr.

Sczygelski’s discharge was adjudicated finally on the merits by the district court and affirmed by

the Eighth Circuit.”). And no one questions that the federal courts involved in Sczygelski I were

courts of competent jurisdiction. The principal issue here, therefore, relates to the first

requirement – namely whether this case and Sczygelski I involve the “same claim or cause of



                                                    6
action.” Sczygelski argues that he is not challenging his termination, but rather CBP’s refusal to

rehire him, while Defendant counters that this is a distinction without a difference since the basis

of the decision not to rehire was the prior termination. 1

         A “judgment bars any further claim based on the same ‘nucleus of facts,’ for ‘it is the

facts surrounding the transaction or occurrence which operate to constitute the cause of action,

not the legal theory upon which a litigant relies.’” Page v. United States, 729 F.2d 818, 820

(D.C. Cir. 1984) (quoting Expert Elec., Inc. v. Levine, 554 F.2d 1227, 1234 (2d Cir. 1977))

(emphasis added). In order to determine whether factual events are part of the same transaction,

a court must “determine[] pragmatically. . . whether the facts are related in time, space, origin, or

motivation, whether they form a convenient trial unit, and whether their treatment as a unit

conforms to the parties’ expectations or business understanding or usage.” Stanton, 127 F.3d at

78 (D.C. Cir. 1997) (citing Restatement (Second) of Judgments § 24(2) comment c (1982))

(internal quotation omitted).

         Although framed somewhat differently, this action plainly concerns the same “nucleus of

facts” that the District of North Dakota was faced with in Sczyelski I. In other words, Plaintiff is

asserting that because his termination was improper, CBP must rehire him. His complaint makes

this plain: “It is clear that the reason why CBP chose to not hire me is 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. This, of course, is precisely why he was fired.

The district court in Sczygelski I considered the “hundreds of unsolicited letters to students in


1Defendant also cites to Sczygelski III (the OSC suit) in its Motion as having res judicata effects on this claim.
Given that the Court will dismiss the case based on Sczygelski I, it need not reach this question.

                                                           7
several universities, in which he claimed that on average black people are ‘less intelligent than

whites, and the reason is genetic,’” when deciding the legality of his termination. See Report

and Recommendation at 2, 5.

        Sczygelski makes it even more obvious that he is attempting to relitgate his firing when

he lists his allegations here. See Compl. at 2 (“[A]s long as CBP has no policy of firing blacks

for advocating discrimination against whites, it may not refuse to hire me.”); see also id. at 2

(“Five U.S.C. § 7323(c) and 5 C.F.R. § 4.1 make it clear that a federal civil servant cannot be

fired for expressing the exact same political opinion that I expressed[;] therefore there is no

rational reason for CBP’s refusal to hire me for expressing that political opinion.”); id. at 2-3

(“Five U.S.C. § 7321 says a civil servant cannot be fired for taking part in political process. . . .

If a civil servant is allowed to do that, there is no rational reason why a job applicant for a civil

service position can be rejected for expressing the views that I have expressed.”) (internal

quotations omitted).

        Any determination on the merits, therefore, would simply be another trial of what the

North Dakota court already decided. Labels aside, what Sczygelski argues is that his firing was

illegal, thus rendering the decision not to rehire him similarly suspect. See Harrison v. Norton,

429 F. Supp. 2d 83, 91 (D.D.C. 2006) (plaintiff was claim precluded when “the reasons that []

she [alleges she] was denied eligibility in the present action are exactly the same reasons that she

was denied eligibility in her prior 1998 action brought in the Tenth Circuit”).

        Sczygelski was already given an opportunity (or two) to litigate the propriety of his

termination, and CBP’s subsequent refusal to rehire him should not give him a second or third

bite at the apple. Indeed, in Sczygelski III, where Plaintiff also tried to relitigate his firing, the

court refused to treat OSC’s subsequent refusal to reopen his case as a new transaction. See



                                                   8
Sczygelski III, 926 F. Supp. 2d. at 244; see also Peugeot Motors of Am., Inc. v. E. Auto Distrib.,

Inc., 892 F.2d 355, 359 (4th Cir. 1989) (continued application of previously challenged policies

does not create new claim for purposes of res judicata). This Court similarly cannot allow

Plaintiff to force CBP, the original defendant in Sczygelski I, to endure another action litigating

the same events and the same legal question, simply because the agency refuses to change its

mind and give Sczygelski his job back.

          Plaintiff responds that the D.C. Circuit’s decision in Stanton, 127 F.3d 72, undermines

the application of res judicata here. In Stanton the court found that a lawyer was not claim

precluded from challenging the reinstatement procedures he was subjected to, even though he

had already litigated his suspension. The court held that “[f]ederal law is clear that post-

judgment events give rise to new claims, so that claim preclusion is no bar” where a new suit

rests on new facts. See id. at 78-79. The lawyer, accordingly, was not barred from making

procedural challenges to the reinstatement process as “long as they concern post-judgment

events.” Id. at 79. Yet such a ruling offers Sczygelski no support. In fact, the court in Stanton

precluded the lawyer from relitigating the events and rules that had led to his original suspension,

just as Sczygelski is barred from relitigating his termination. Id. at 75, 78-79. If Sczygelski

were claiming something different here – e.g., the actual hiring procedure was flawed or

agencies should reinstate fired employees after a certain time has elapsed – the outcome might be

different. In other words, were he not to challenge the legality of the termination and truly focus

on the unique legal questions surrounding his rehiring, the Court might be able to address those

issues.

          Plaintiff next cites Page, 729 F.2d 818, as authority for the proposition that “prior

adjudication does not bar [a] similar action based on subsequent acts if both suits involve



                                                    9
‘essentially the same course of wrongful conduct.’” Id. at 820 n.12 (quoting Lawlor v. National

Screen Serv. Corp., 349 U.S. 322, 327-28 (1955)). In Page the plaintiff was subjected to toxic

exposure from chemicals for an extended period of time. The D.C. Circuit held that the prior

dismissal of a 1972 suit was res judicata as to exposure from 1961-72, but that the plaintiff was

not claim precluded from suing again on the basis of the post-1972 exposure. See id. at 819-20.

Page may be distinguished because, unlike this case, all of the complained-of facts alleged in the

subsequent suit – i.e., the additional chemical exposure – happened after the first case had been

brought. Here, however, the conduct at issue in this new dispute – i.e., the basis of Plaintiff’s

termination and CBP’s refusal to rehire – happened before Sczygelski I was filed. See Harrison,

429 F. Supp. 2d at 90 (D.D.C. 2006) (“Plaintiff's ‘new’ application is insufficient to

overcome res judicata where Plaintiff is still challenging the same factual circumstances - i.e.,

the denial of her CDIB [(Certificate Degree of Indian Blood)] status.”). If claim preclusion did

not govern in this case, a plaintiff could apply for a job an infinite number of times and sue after

each failure, even if the refusal to hire were based on the same original set of facts.

       Finally, Plaintiff’s reliance on new legal theories – e.g., equal protection – does not alter

the outcome. Such claims could have been brought in his North Dakota action. See Apotex, Inc.

v. Food & Drug Admin., 393 F.3d 210, 218 (D.C. Cir. 2004) (The plaintiff “is simply raising a

new legal theory. This is precisely what is barred by res judicata.”); see also Youngin’s Auto

Body v. D.C., 775 F. Supp. 2d 1, 7 (D.D.C. 2011) (“[F]or the purposes of claim preclusion, the

legal theory upon which the plaintiff relies is irrelevant; rather, the relevant inquiry is whether

the plaintiff’s claims arise out of the same common nucleus of facts.”) (internal quotation marks

omitted); see also Capitol Hill Grp. v. Pillsbury Winthrop Shaw Pittman, LLP, 574 F. Supp. 2d

143, 150 (D.D.C. 2008) aff’d sub nom. Capitol Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman,



                                                 10
LLC, 569 F.3d 485 (D.C. Cir. 2009) (“Mere failure to discover viable arguments in support of a

claim during previous litigation does not preclude the application of res judicata.”); SBC

Commc’ns Inc. v. FCC, 407 F.3d 1223, 1229 (D.C. Cir. 2005) (claim preclusion, unlike issue

preclusion, is intended “to prevent litigation of matters that should have been raised in an earlier

suit”) (internal quotation marks and citations omitted). Plaintiff’s new legal theories,

consequently, do not require the Court to revisit his termination.

IV.    Conclusion

       For the aforementioned reasons, the Court will grant Defendant’s Motion to Dismiss and

dismiss this case with prejudice. A separate Order consistent with this Opinion will be issued

this day.



                                                              /s/ James E. Boasberg
                                                              JAMES E. BOASBERG
                                                              United States District Judge
Date: June 16, 2014




                                                 11
