[00:00:00] Speaker 03: Case number 14S5266. [00:00:05] Speaker 03: Douglas Sogelski, Appellant vs. United States Customs and Border Protection. [00:00:09] Speaker 03: Mr. Sogelski for the Appellant and Mr. Burch for the Appellate. [00:00:59] Speaker 02: May I please the court? [00:01:00] Speaker 02: My name is Douglas Zagelski. [00:01:02] Speaker 02: I'm the appellant. [00:01:03] Speaker 02: I've reserved three minutes for rebuttal. [00:01:06] Speaker 02: May I please the court? [00:01:09] Speaker 02: My case here is pretty simple and straightforward. [00:01:12] Speaker 02: I filed a complaint. [00:01:13] Speaker 02: It has six claims or six different accusations or arguments, if you prefer that terminology. [00:01:20] Speaker 02: The district court has decided that all six are barred by race judicata. [00:01:24] Speaker 02: I feel very confident that at least the third claim and the fifth claim are not barred by race judicata because I did not have standing to bring those claims in my first lawsuit. [00:01:34] Speaker 02: I'm arguing in the third claim that rejecting my job application for the civil service job in New York was a violation of the Equal Protection Clause because I was rejected for making statements that civil servants are allowed to make, and I don't see any rational reason why an applicant is rejected for saying something that a civil servant is allowed to say. [00:01:54] Speaker 02: But obviously I could not bring that argument until I became a rejected civil service applicant. [00:02:00] Speaker 04: You could have raised it in the December 2011 complaint in New York, regarding New York. [00:02:09] Speaker 02: The 2011 complaint? [00:02:11] Speaker 04: This is the third complaint, right? [00:02:14] Speaker 04: I guess you could call it the third lawsuit, yes. [00:02:16] Speaker 04: Yeah, the third lawsuit. [00:02:17] Speaker 04: You could have raised it in the second one. [00:02:19] Speaker 02: Well, in that lawsuit, I was seeing occupation. [00:02:22] Speaker 02: I'm sorry. [00:02:22] Speaker 04: It doesn't matter. [00:02:23] Speaker 04: There's privity. [00:02:24] Speaker 04: There are a lot of cases that say there's privity between government officials across lines. [00:02:31] Speaker 04: And you don't dispute that if what was done in South Dakota or North Dakota, whatever, [00:02:40] Speaker 04: was proper, as found by the first case, you could be barred in New York. [00:02:45] Speaker 04: You're not doubting that. [00:02:47] Speaker 04: You could have raised your claim in the second suit. [00:02:49] Speaker 04: I realize the focus has been raised on the third one, but you could have raised it in the second one. [00:02:54] Speaker 04: The focus has been on the first one, but you could have raised it in the second one. [00:02:57] Speaker 04: And it doesn't matter that it was a 12b6, because that still raised you to condom. [00:03:04] Speaker 02: Yes, I could have brought it in the second lawsuit if I wanted to sue. [00:03:07] Speaker 04: Right, and if you failed to do it, it's raised you to condom. [00:03:10] Speaker 04: Well, your honor, it's over. [00:03:12] Speaker 04: You had your opportunity. [00:03:13] Speaker 04: No, I mean, it's just the law. [00:03:15] Speaker 04: You had your opportunities. [00:03:16] Speaker 04: So long as there is privity, you had your opportunity to raise the point. [00:03:20] Speaker 04: And it's the same point you're raising again. [00:03:23] Speaker 04: You could have raised it in that second suit. [00:03:26] Speaker 04: You didn't do it. [00:03:29] Speaker 02: I could have sued both OSC and CVP in that second lawsuit if I'd wanted to. [00:03:34] Speaker 02: Yes, you're right about that. [00:03:36] Speaker 02: But in that second lawsuit, I was talking about something that was, in my opinion anyway, completely irrelevant to the decision to reject my check application for the New York Civil Service job. [00:03:48] Speaker 02: I was talking about my belief. [00:03:49] Speaker 04: The reason for the rejection of the position in the Civil Service job was what happened in South Dakota, right? [00:03:59] Speaker 02: Yes. [00:04:00] Speaker 04: That's what we're talking about now. [00:04:03] Speaker 02: Well, I don't think that in my second lawsuit, you see, I was arguing that OIC had done a negligent job of investigating my complaints. [00:04:10] Speaker 04: My point is not that. [00:04:11] Speaker 04: My point is that these are all related, and it's the first job action against you that you continue to contest, and you should have raised that, or could have raised that, in the second, your failure to do so and the dismissal precludes you from trying again. [00:04:29] Speaker 04: It just can't go on and on and on. [00:04:30] Speaker 04: You had the opportunity, and you agree. [00:04:33] Speaker 04: You could have raised it in the second lawsuit. [00:04:35] Speaker 04: You didn't do it. [00:04:36] Speaker 04: And there's profiting across government lines. [00:04:41] Speaker 04: We have case law that says that. [00:04:43] Speaker 02: But I think it was a separate cause of action, even though the defendant would have been the same. [00:04:46] Speaker 04: I mean, you're not, you're not understanding v. Giordano. [00:04:49] Speaker 02: Well, obviously, Your Honor, you're entitled to opinion. [00:04:52] Speaker 04: You can't force it up that way. [00:04:53] Speaker 04: You can't keep going on and on and on and on. [00:04:55] Speaker 04: If you have an opportunity, if the basis for the claim is essentially the same, that is, that first action against you, you can't take a piece here and a piece there and a piece here and keep filing lawsuits. [00:05:09] Speaker 04: And you clearly had an opportunity in that second lawsuit to raise it, and you didn't. [00:05:15] Speaker 04: So whether or not the district court was right with respect to race judicata with relation to the first lawsuit, there's no doubt that you missed on the second one. [00:05:25] Speaker 04: And we can raise that. [00:05:27] Speaker 02: Your Honor, I think that it's a different cause of action when OSC negligently handles my complaints about being fired and when CBP rejects my job application for a different job in New York. [00:05:39] Speaker 02: I think those are two different causes of action. [00:05:42] Speaker 02: So I don't think I had, obviously I could have brought it up in the second lawsuit if I wanted to make that an even larger and more unwieldy lawsuit, but I didn't want to do that. [00:05:52] Speaker 02: I thought about it, but I decided not to. [00:05:55] Speaker 02: Because I didn't think it was necessary. [00:05:58] Speaker 02: If somebody punches me on the face on January 1st and then does it again on February 1st, I can sue about those two incidents separately. [00:06:05] Speaker 04: The basis for the New York rejection was the South Dakota action, right? [00:06:10] Speaker 02: It was the government's belief that I'm a certain type of person that they don't want to hire. [00:06:14] Speaker 04: Based on the South Dakota action. [00:06:17] Speaker 04: Sure. [00:06:17] Speaker 04: Right. [00:06:18] Speaker 04: That's the point. [00:06:18] Speaker 04: So the punching in the face is entirely different. [00:06:21] Speaker 04: You're going after the South Dakota action three different times. [00:06:26] Speaker 02: Well, I think the government did something separate in the case of me being applying for that job in New York, because after I applied for that job, [00:06:36] Speaker 02: They advertised the opening. [00:06:37] Speaker 02: They invited the whole country to apply. [00:06:38] Speaker 04: He punched me in the face in one suit. [00:06:40] Speaker 04: It was negligence. [00:06:41] Speaker 04: He punched me in the face in the second suit with animus. [00:06:45] Speaker 04: He punched me in the face in the third suit because of my race. [00:06:50] Speaker 04: It's not the way we allow you to proceed. [00:06:54] Speaker 04: The whole thing is that the punch in the face is the basis for every one of your actions. [00:06:59] Speaker 02: Well, Your Honor, you're certainly entitled to your opinion. [00:07:02] Speaker 02: Thank you. [00:07:04] Speaker 02: I really appreciate that. [00:07:06] Speaker 02: But the D.C. [00:07:07] Speaker 02: Circuit said in the Stanton case that I mentioned in my brief, every single time a taxpayer pays a tax, that's a new cause of action. [00:07:13] Speaker 02: And I think that's pretty much the same case I've got here. [00:07:16] Speaker 03: We had a case in the name of it escaping me where we had someone who was fired, claimed discrimination, [00:07:24] Speaker 03: didn't bring the lawsuit yet, asked for his job back and claimed discrimination when he didn't get it. [00:07:30] Speaker 03: We held at that point that he couldn't start the period for filing the lawsuit over again by asking for another job when he's alleged in the same kind of discrimination as the first and where the time had latched. [00:07:43] Speaker 03: Without being able to remember the name of that case, wouldn't that control here that same kind of reasoning that you can't? [00:07:49] Speaker 03: refresh your right to bring a lawsuit by asking for a new job and then claiming the same discrimination? [00:07:58] Speaker 02: Well, I don't know the details of that particular case. [00:08:00] Speaker 02: I know in my particular case, the government had no obligation to reject my application. [00:08:05] Speaker 02: No statute, no regulation said they had to do it. [00:08:08] Speaker 02: They simply decided to do it because of a policy. [00:08:12] Speaker 02: And if we're talking about something such as the Harrison versus Norton case that was referred to, that was relied upon very heavily by the district court, I think that's the distinction there. [00:08:21] Speaker 02: In the Harrison versus Norton, we had a really annoying plaintiff who just kept filing the same application over and over and over again, and the law required every single time that she be rejected. [00:08:31] Speaker 02: But in my case, the government could have hired me the second time. [00:08:34] Speaker 02: No statute said they couldn't. [00:08:35] Speaker 02: No regulation said they couldn't. [00:08:37] Speaker 02: They just had this policy that they didn't want people like me working for them. [00:08:40] Speaker 00: Can I ask, you agree that you can't challenge the basis for their firing you, original decision to fire you, right? [00:08:54] Speaker 00: That is precluded, correct? [00:08:56] Speaker 02: What was decided by the Eighth Circuit, well, only two decisions were made. [00:09:00] Speaker 02: First, that firing me did not violate the First Amendment, and second, that they did not have jurisdiction to decide whether or not... But you agree on the... [00:09:08] Speaker 00: with respect to that one, you couldn't make an argument today that the firing you violated the equal protection clause. [00:09:17] Speaker 00: That clearly arises out of the same facts and circumstances as the argument that you couldn't have been fired under the First Amendment, right? [00:09:27] Speaker 00: You couldn't file a lawsuit today saying... Oh, about the original firing? [00:09:32] Speaker 00: Yes. [00:09:32] Speaker 00: No, I couldn't do that. [00:09:33] Speaker 00: You agree with that, right? [00:09:34] Speaker 00: Right. [00:09:34] Speaker 00: So you're precluded from challenging [00:09:37] Speaker 00: the validity, let's limit ourselves to the constitutional validity now, the constitutional validity of the original firing, right? [00:09:46] Speaker 00: That's why you're making an argument about hiring now, right? [00:09:50] Speaker 00: How is hiring, if you can challenge the constitutional validity of the firing, [00:09:58] Speaker 00: Isn't the constitutional validity of not hiring you a for sure? [00:10:03] Speaker 00: That is, isn't it whatever rights you had because you were already in place, wouldn't you have even less rights as somebody who's trying to be hired? [00:10:15] Speaker 02: As far as the constitution goes, I don't think there would be fewer rights for an applicant. [00:10:18] Speaker 00: Would you have more? [00:10:20] Speaker 00: I would say more. [00:10:21] Speaker 00: Well then, if the ground for not hiring you is the same as the ground was for not firing you, if the ground for firing you is acceptable, because now you can't challenge it, doesn't that off or sure mean that you can't challenge your hiring? [00:10:40] Speaker 00: Because your only argument is, they didn't hire me for the same reason that they fired me. [00:10:47] Speaker 02: I think it's because this is a different event and a different cause of action. [00:10:51] Speaker 02: If a taxpayer can sue over and over again about every time he or she has to pay a tax, then I don't see how it's different. [00:10:56] Speaker 00: Well, that's only – each one's a new tax. [00:11:01] Speaker 00: A taxpayer can't hire – if the taxpayer's original argument is that I can't be taxed in the United States because I'm a citizen of Britain, [00:11:12] Speaker 00: And in the first case, the court says, you're not a citizen of Britain. [00:11:15] Speaker 00: You are a citizen of the United States. [00:11:18] Speaker 00: You can't come back in and say, in a second suit, I can't be text because I'm a citizen of Britain, unless you can prove something new, like I've suddenly become a citizen of Britain. [00:11:29] Speaker 00: Do you have anything new? [00:11:33] Speaker 02: No, I wouldn't say anything new happened, except that [00:11:39] Speaker 02: Well, it's just a new event. [00:11:42] Speaker 02: Firing somebody and then a few months later or years later refusing to hire them are two separate events in my opinion. [00:11:48] Speaker 03: Okay, the case I was thinking of is Cuffman v. Perez. [00:11:52] Speaker 03: The issue there was not the same issue as here, but the situation was that a job action was taken against the employee of Cuffman. [00:12:02] Speaker 03: He was removed from a position of responsibility. [00:12:06] Speaker 03: His time period for bringing the action ran out. [00:12:09] Speaker 03: He applied to reassume his prior position of responsibility. [00:12:14] Speaker 03: They denied him again. [00:12:16] Speaker 03: And he tried to bring it within the 90 days running from that time. [00:12:21] Speaker 03: We held that where you've had a job action taken, in this case it would be a termination, and then you later come back and claim it back, you can't start the time running over. [00:12:31] Speaker 03: Why would you be able to resurrect the right to relitigate the same point any more than you would be able to start the time running over? [00:12:41] Speaker 02: Well, your honor, I've never heard of that case and the way you describe it really does make it sound like it would be tough for me to overcome. [00:12:48] Speaker 02: All I can say is it sounds to me though that contradicts what was said in the Stanton case that I mentioned in my brief about a taxpayer being allowed to sue over the same tax over and over and over again. [00:13:10] Speaker 03: 745 F3 521 Saturday, March 14, 2014. [00:13:19] Speaker 03: Okay. [00:13:33] Speaker 02: Well, all right, sir, but I still I just still don't see the rationale for why a taxpayer can sue over attacks over and over again, but I can't see over and over again. [00:13:44] Speaker 02: I think this is the same thing. [00:13:45] Speaker 00: Thank you. [00:13:48] Speaker 02: Thank you. [00:13:58] Speaker 01: May it please the court, Alan Birch? [00:14:00] Speaker 01: I'd first like to address Judge Edwards' point about the second case in which Mr. Shajelsky could have brought it. [00:14:10] Speaker 01: There is support in the Capitol Hill case that the court can raise, raise judicata suesponte, so the court would be free to address that, even though the parties haven't, and the district court didn't rely on it either. [00:14:24] Speaker 04: No, I understand I was perplexed when I read the record as to why that didn't come up, and the appellant has already conceded he could have raised it, and he clearly could have, and it relates to precisely the same question that's being raised again. [00:14:37] Speaker 01: And it seems to me a clear path to affirmance through that very line of thought then. [00:14:42] Speaker 04: And the only question I wondered about was privity, but we have cases that say there is privity across [00:14:46] Speaker 04: across government officials. [00:14:48] Speaker 01: That's clearly established as well, Your Honor, and so that's a clear path to affirmance that makes a lot of sense. [00:14:56] Speaker 01: The path the government has argued relies on the fact that this was an issue that was a claim that was litigated before. [00:15:05] Speaker 01: We don't rely on the other half of Race to your Decatur for claims that could have been brought with respect to... What argument? [00:15:12] Speaker 00: This is the government's argument in its brief. [00:15:15] Speaker 00: I know, but his argument is that he wasn't hired for non-constitutional reason. [00:15:20] Speaker 00: The argument that was decided was he wasn't fired for non-constitutional reason, right? [00:15:24] Speaker 01: Right. [00:15:25] Speaker 01: He couldn't, obviously, he couldn't earlier have got the, I couldn't be hired. [00:15:30] Speaker 00: That's not our theory. [00:15:31] Speaker 00: So how is he precluded from making the hired argument since he couldn't have made it before? [00:15:37] Speaker 01: Well, because his hired argument is that it relies entirely on the notion that he was fired improperly. [00:15:46] Speaker 01: And that is what he cannot do. [00:15:47] Speaker 01: That is the one way that he cannot challenge the failure to hire, by saying that the only reason, or the core reason, is that I was fired improperly. [00:15:59] Speaker 01: And that's exactly what he's done here. [00:16:00] Speaker 04: But I mean, that problem is overcome if you refer to the second suit, which he agrees he could have raised the issue. [00:16:06] Speaker 04: You don't have the problem when you focus on the second lawsuit. [00:16:12] Speaker 00: That's right. [00:16:12] Speaker 00: You don't have the problem at all. [00:16:13] Speaker 00: Just to put that aside for one moment, I'm still a little confused about the hiring and firing. [00:16:19] Speaker 00: He's making a different argument that maybe a [00:16:24] Speaker 00: Without addressing the merits of the argument, he's making a different argument. [00:16:28] Speaker 00: He's saying that not hiring me is unconstitutional. [00:16:31] Speaker 01: He certainly could have made a different argument, Your Honor, but he hasn't presented any grounds that the hiring decision was wrong, other than it relied on the firing decision. [00:16:42] Speaker 00: Well, I thought his argument is that the grounds are that they're not hiring me because I have controversial views. [00:16:53] Speaker 01: Yes, and those views have always been presented as the same views that got him fired. [00:16:57] Speaker 01: He invariably links it back to the same views. [00:17:01] Speaker 01: The core is the same. [00:17:04] Speaker 01: I would point you to the Juan case cited in our brief which involves an analogous situation in that the precise claim could not have been brought in the first lawsuit because it was a bankruptcy proceeding and the challenge was to [00:17:23] Speaker 01: enforcement, it was the second case involved, a Fair Debt Collection Procedure Act claim, that the way you're trying to collect this debt is improper. [00:17:33] Speaker 01: That could not have arisen in the first action, which was the bankruptcy proceeding itself, because they hadn't tried to collect the debt, yet the creditor hadn't tried to collect. [00:17:41] Speaker 01: But nevertheless, the second lawsuit was deemed barred because the challenge was essentially to the challenge of the claim itself. [00:17:50] Speaker 01: And so it's analogous, and under the pragmatic approach for preclusion that is talked about in several of the cases discussed in our brief, it seems like an easy fit, even under the theory that the government has relied on. [00:18:05] Speaker 01: But as Judge Edward has pointed out, that we don't need to go there. [00:18:08] Speaker 01: We can rely on the second lawsuit that Mr. Shigelsky has brought. [00:18:14] Speaker 01: If there are no further questions, we would ask the court to affirm. [00:18:20] Speaker 00: Thank you. [00:18:20] Speaker 00: Can I ask on the Juan case? [00:18:23] Speaker 00: Sure. [00:18:23] Speaker 00: I had written that off because it said it was based on Illinois law of claim preclusion. [00:18:30] Speaker 01: I don't take the preclusion law in Juan to be significantly different. [00:18:34] Speaker 01: I think it relies on the principles. [00:18:36] Speaker 00: Is it not a broader issue about [00:18:43] Speaker 00: Wait, you're arguing now about collateral, about claim preclusion, right? [00:18:49] Speaker 00: This is, they arose from a single group of operative facts, regardless of whether they assert different theories. [00:18:55] Speaker 00: That was the Illinois theory. [00:18:57] Speaker 00: That sounds more like race judicata then. [00:18:59] Speaker 00: I mean, that sounds like a broader version of race judicata. [00:19:02] Speaker 00: Do you think not? [00:19:04] Speaker 01: It's simply a statement of the first element of race judicata, the transactional test for what is the same claim. [00:19:09] Speaker 00: Yeah, yeah. [00:19:13] Speaker 00: Okay, thank you. [00:19:13] Speaker ?: Thank you. [00:19:14] Speaker 00: Does Mr. Sikorsky have any time? [00:19:18] Speaker 00: We'll give you another minute. [00:19:21] Speaker 02: Okay. [00:19:22] Speaker 02: Thank you. [00:19:23] Speaker 02: Well, all I can say, though, is that I wasn't anticipating any discussion about my South Dakota – I mean, about the second lawsuit against OSC. [00:19:32] Speaker 02: All I can say is that at the time I thought that the negligence of OIC in investigating my complaints was a totally different event than the government's refusal to hire me for the New York Civil Service job. [00:19:43] Speaker 02: I considered assuming about them both at the same time, but I just decided that would make the case too unwieldy. [00:19:50] Speaker 02: And I'd like to say that, emphasize again, what I'm saying here is that every single time a person applies for a civil service job, I think that's a new cause of action. [00:19:58] Speaker 02: Just like every time a person pays a tax, it's a new cause of action. [00:20:01] Speaker 02: Especially in my case when the government told me I was tentatively selected and directed me to do a bunch of things. [00:20:07] Speaker 02: Take a drug test, fill out a bunch of forms, send in copies of my tax returns, tell them the names and addresses of my brothers and sisters. [00:20:14] Speaker 03: Under your theory, why wouldn't a person be able to create a perpetual cause of action if he's discriminated against one time just by continuing to file applications and getting himself refused to create a perpetual cause of action, even though he lost over time? [00:20:31] Speaker 02: Yes, as long as a collateral stop could certainly be a bar. [00:20:34] Speaker 02: But I would say that no, a res judicata would not be a bar if a person applies for a job a hundred different times. [00:20:40] Speaker 02: Just like a tax. [00:20:42] Speaker 02: Just like paying a tax. [00:20:43] Speaker 02: I think it's the same principle. [00:20:45] Speaker 03: Now the government's the one that keeps causing him to have a cause of action on the tax. [00:20:48] Speaker 03: They keep assessing the tax. [00:20:50] Speaker 02: Right. [00:20:51] Speaker 02: Well? [00:20:51] Speaker 03: The government didn't go out and find you to do something to you this time. [00:20:55] Speaker 03: You went in and took the new action. [00:20:58] Speaker 02: Yes, but the government advertised that vacancy and invited the whole country to apply. [00:21:02] Speaker 02: And I was certainly qualified. [00:21:03] Speaker 02: They sent me a letter saying I was tentatively selected. [00:21:07] Speaker 02: And then they asked me to do a bunch of stuff, just like the taxpayer loses, you know, just like they take money out of the taxpayer's pocket. [00:21:14] Speaker 02: They told me to go take a drug test. [00:21:15] Speaker 02: They told me to sit for an interview with a background investigator. [00:21:18] Speaker 02: It did cost me a small amount of money and time. [00:21:21] Speaker 02: So I think the government was doing something in this hiring process when they ultimately rejected me. [00:21:27] Speaker 00: Thank you. [00:21:29] Speaker 00: We'll take the matter under submission. [00:21:31] Speaker 02: Thank you.