Niskey v. McAleenan

LAWRENCE NISKEY, Plaintiff, v. KEVIN K. McALEENAN, Defendant.¹

Civil Action No. 18-3044 (JDB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

October 28, 2019

MEMORANDUM OPINION

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 affirmedNiskey'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'sResponse 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.

II. DISCUSSION

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 Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994), and "grant plaintiff[] the benefit of all inferences that can be derived from the facts alleged," id.

Defendant moves to dismiss the complaint under Rule 12(b)(6) on the ground that Niskey's claims are barred by the doctrine of res judicata. See Def.'s Mem. at 5-6. A party may raise res judicata "in a pre-answer Rule 12(b)(6) motion when all relevant facts are shown by the court'sown records, of which the court takes notice." McMillan v. Washington Metro. Area Transit Auth., No. 18-CV-2362, 2019 WL 3388559, at *3 (D.D.C. July 26, 2019) (citations omitted); see Covad Commc'ns Co. v. Bell Atlantic Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (permitting the Court to take judicial notice of public records of other proceedings).

"The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as 'res judicata.'" Taylor v. Sturgell, 553 U.S. 880, 892 (2008). Res judicata "prevents repetitious litigation involving the same causes of action or the same issues." L.A.M. Nat'l Pension Fund v. Indus. Gear Mfg. Co., 723 F. 2d 944, 946 (D.C. Cir. 1983).

1. Claim Preclusion

"Under the doctrine of . . . 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." Capitol Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 490 (D.C. Cir. 2009) (quoting Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006)). Parties are prevented from relitigating in a separate proceeding "any ground for relief which they already have had an opportunity to litigate[,] even if they chose not to exploit that opportunity," and regardless of the soundness of the earlier judgment. Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981).

"Whether two cases implicate the same cause of action turns on whether they share the same 'nucleus of facts.'" Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002) (quoting Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984)). To determine whether two cases share a nucleus of facts, courts consider "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 v. District of Columbia Court of Appeals, 127 F.3d 72, 78 (D.C. Cir. 1997).

Defendant argues that Niskey's claims "are either functionally the same as his prior claims or are claims he could have lodged in his prior suit." Def.'s Mem. at 5. Niskey counters that the "issues in [this] complaint are not the same identical issues," Pl.'s Opp'n at 8, because here he relies on the APA and its provision for judicial review of agency actions found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law," id. (quoting 5 U.S.C. § 706(a)(2)). Similarly, Niskey argues that the denial of "constitutional and procedural rights during the removal process," Pl.'s Opp'n at 10, has not been litigated to date and, he asserts, is not barred by res judicata. Neither argument is persuasive.

It is apparent that the substance of the current complaint and that of Niskey's prior civil action share a nucleus of facts - race discrimination, retaliation, challenges to his suspension and revocation of his security clearance, termination, and post-termination denial of pension and retirement benefits. With respect to the first prong of the analysis, then, it is apparent that this case and Niskey's prior civil action involve the same claims or causes of action. It is also apparent that the prior suit was between the same parties as here and that there was a final, valid judgment on the merits by a court of competent jurisdiction. See Niskey, 69 F. Supp. 3d at 275, aff'd sub nom. Niskey, 859 F.3d at 11.

"Claim preclusion bars a party from re-litigating a claim that was or should have been asserted in a prior action." Hurd v. District of Columbia, 864 F.3d 671, 697 (D.C. Cir. 2017); see also Apotex, Inc. v. FDA, 393 F.3d 210, 218 (D.C. Cir. 2004). Niskey had an opportunity to characterize his Title VII claim as a hostile work environment claim, or to raise an APA or constitutional claim, in the prior civil action. He cannot evade the consequences of claimpreclusion by conjuring up new theories and applying them to old facts that he has already litigated. See Richardson v. Sauls, 319 F. Supp. 3d 52, 62 (D.D.C. 201...