NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________

No. 20-1006 __________

REGINALD L. SYDNOR, Appellant

v.

MARK A. ROBBINS, VICE CHAIRMAN, ET AL.; UNITED STATES MERIT SYSTEMS PROTECTION BOARD ("BOARD"), IN THEIR OFFICIAL MEMBER CAPACITY, AS WELL AS THEIR PREDECESSORS, SUCCESSORS OR ASSIGNS __________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 2-18-cv-02631) District Judge: Hon. C. Darnell Jones, II __________

Submitted Under Third Circuit L.A.R. 34.1(a) on September 17, 2020

Before: KRAUSE, RESTREPO, and BIBAS, Circuit Judges

(Filed: September 21, 2020) __________

OPINION * __________

* This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.

Reginald Sydnor, formerly a federal administrative law judge, was terminated and

debarred in late 1998. This is his fourth attempt to challenge that decision in federal

court. 1 Perhaps unsurprisingly, the arguments he now advances are untimely and could

have been or were resolved in previous decisions. We therefore will affirm the District

Court’s orders dismissing Sydnor’s complaint and denying his motion for reconsidera-

tion.

DISCUSSION 2

At bottom, this dispute is the same one Sydnor has been pressing for over two

decades: that in finding him unsuitable for federal employment, the Merit Systems Pro-

tection Board (MSPB or the Board) wrongfully denied him substantive and procedural

protections under

. The Board’s final decision on that point came in De-

cember 1998. Sydnor v. OPM, Nos. PH-0731-98-0188-I-1 & PH-0752-98-0213-I-1,

(MSPB Dec. 30, 1998). That poses a major problem for Sydnor’s cur-

rent efforts. Typically, a litigant in his position has at most two months to seek judicial

review, see

(b)(1)–(2) (establishing thirty- and sixty-day periods depend-

ing on the nature of the claim), and even the more forgiving catch-all provision for suits

1 See Sydnor v. LaChance, No. 00-1035,

(4th Cir. Mar. 30, 2000) (per curiam), cert. denied,

(2000); Sydnor v. OPM,

(3d Cir. 2009); Sydnor v. MSPB,

(Fed. Cir. 2012) (per curiam). 2 Because we write only for the parties, who are familiar with the background of this case, we need not reiterate the factual or procedural history. The District Court had jurisdiction under

, and we have jurisdiction under

. We review the dismissal of Sydnor’s complaint de novo, Vallies v. Sky Bank,

(3d Cir. 2006), and the denial of his motion for reconsideration for abuse of dis- cretion, Lazaridis v. Wehmer,

(3d Cir. 2010) (per curiam).

2 against the United States allows for only six years, see

(a). Using basic

arithmetic, the District Court concluded Sydnor’s claims were “untimely and must there-

fore be dismissed.” App. 3a n.1. That conclusion could hardly have been a surprise, as it

was not the first time a court rejected one of Sydnor’s collateral attacks against the MSPB

decision as untimely. See Sydnor v. OPM, No. 06-cv-0014,

, at *4–6

(E.D. Pa. July 11, 2007), aff’d on other grounds,

(3d Cir. 2009).

Trying to avoid that conclusion, Sydnor argues the District Court should have

started the clock in April 2015, when—in response to his letter urging the MSPB to reo-

pen the 1998 proceedings—the Clerk of the Board told him he had “no further right to

review.” App. 61. The District Court wisely rejected that argument, reasoning that Syd-

nor’s claims against the Board accrued as of the 1998 decision denying his administrative

appeal, not as of “[a] letter sent . . . seventeen years later. . . . [that] merely reiterated the

prior final decision and had absolutely no effect on [his] legal rights.” App. 4a n.1. We

agree. Accepting Sydnor’s argument to the contrary would give all aggrieved litigants

with time-barred claims the ability to solicit a pro forma statement from the agency that

no more remedies were available and thereby revive long-expired periods to seek judicial

review.

Even apart from the timeliness issue, Sydnor’s claims were properly dismissed for

an independent reason: They are precluded. Here, we need not reinvent the wheel.

Faced in 2009 with similar claims by Sydnor about the Government’s “failure to comply

with

in making its unsuitability . . . determination,” we held those claims

were “barred by the doctrine of res judicata” because Sydnor was “attack[ing] the same

decision challenged in his prior action[s] (albeit not on precisely the same grounds).”

Sydnor v. OPM,

, 180–81 (3d Cir. 2009). Now, as then, the “final 3 judgment on the merits” in Sydnor’s previous judicial actions “precludes . . . relitigati[on]

[of] issues that were or could have been raised” before.

at 181 (quoting Federated

Dep’t Stores v. Moitie,

(1981)).

Again trying to skirt well-tread ground, Sydnor argues preclusion is inappropriate

because he has sued the members of the MSPB rather than the Board itself. That argu-

ment runs aground on settled precedent. An official-capacity suit, “in all respects other

than name, [is] treated as a suit against the entity.” Kentucky v. Graham,

(1985). For that reason, our preclusion case law looks past such nominal distinctions

among governmental defendants. See, e.g., Nat’l R.R. Passenger Corp. v. Pa. Pub. Util.

Comm’n,

, 527 (3d Cir. 2002) (holding that because “commissioners in their

official capacity comprise the [agency],” the commissioners and agency are the “same

parties” for preclusion purposes (capitalization altered)); see also Sunshine Anthracite

Coal Co. v. Adkins,

, 402–03 (1940) (“[A] judgment in a suit between a par-

ty and a representative of the United States is res judicata in relitigation of the same issue

between that party and another officer of the government.”).

Sydnor’s last resort is an argument that, he contends, he could not have raised be-

fore: that he is entitled to relief under Lucia v. SEC,

(2018), which the

Supreme Court decided one day before he filed this lawsuit. We see at least three fun-

damental flaws with that argument. First, Sydnor failed to raise it before the District

Court until his motion for reconsideration, which abandoned his previous lines of argu-

ment and was entirely based on the Lucia decision. While reconsideration may be appro-

priate upon “an intervening change in the controlling law,” Max’s Seafood Cafe ex rel.

Lou-Ann, Inc. v. Quinteros,

, 677 (3d Cir. 1999), Sydnor makes no effort to

explain why he could not have raised it in his initial or corrected complaint, in a subse- 4 quent motion to amend, or in opposing the Government’s motion to dismiss. Second, we

question the basic premise of Sydnor’s argument: that Lucia was a doctrinal sea change

he could not have anticipated in his initial appeal and subsequent collateral attacks. See,

e.g., Malouf v. SEC,

(10th Cir. 2019) (reasoning that Lucia did not

“change[] the law”); Island Creek Coal Co. v. Wilkerson,

(6th Cir.

2018) (“No precedent prevented [a litigant] from bringing the constitutional claim before

then. Lucia itself noted that existing case law ‘says everything necessary to decide th[e]

case.’” (quoting

)). Third, whatever right the Court recognized in Lu-

cia, it was limited to “one who makes a timely challenge to the constitutional validity of

the appointment of an officer who adjudicates his case.”

(emphasis

added) (citation omitted). As we have explained, a litigant who fails to present an Ap-

pointments Clause challenge in an appropriately timely manner will thereafter be “barred

from doing so.” Cirko ex rel. Cirko v. Comm’r of Soc. Sec.,

(3d Cir.

2020). Such is the case with Sydnor, whose current challenge against the appointment

method for the officer who decided his suitability for employment in 1998 is anything but

timely. The District Court therefore acted within its discretion in denying Sydnor’s mo-

tion for reconsideration based on Lucia.

CONCLUSION

For these reasons, we will affirm the orders of the District Court.

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