UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ERIC JAMES BORRELL,

Plaintiff,

v. Civil Action No. 1:19-cv-01160 (CJN)

NAVAL FACILITIES ENGINEERING COMMAND WASHINGTON,

Defendant.

MEMORANDUM OPINION

Plaintiff Eric James Borrell, proceeding pro se, alleges that he was improperly terminated

from his civil service position with the Naval Facilities Engineering Command (“NAVFAC”), a

division of the Department of the Navy, because the action lacked due process, defamed him,

violated the Rehabilitation Act,

, and improperly deprived him of his security

clearance. See generally Compl., ECF No. 1. The government moves to dismiss for lack of

subject-matter jurisdiction. See generally Def.’s Mot. to Dismiss Pl.’s Compl., ECF No. 9. The

Court agrees that it lacks jurisdiction and grants the Motion.

I. Background

According to the Complaint and a supporting attachment, Borrell accepted a permanent,

competitive, civilian position as a Community Planner at NAVFAC’s Bethesda, Maryland office

in February 2012. Compl. ¶ I; Notification of Personnel Action (“SF-50”), ECF No. 1-3. 1

1 Of course, on a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1), “[w]hile the [Court] may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction, [it] must still accept all of the factual allegations in the [C]omplaint as true.” Jerome Stevens Pharm., Inc. v. FDA,

(D.C. Cir. 2005) (internal quotations and citations omitted).

1 Borrell’s supervisor, Deputy Public Works Officer Caroline Koch, approved a telework

arrangement to permit him to work from home part-time due to unspecified medical conditions.

Compl. ¶ IV(d). Borrell alleges that he received positive performance evaluations throughout his

tenure, consistent with his experience in previous NAVFAC positions in other offices.

¶ IV(g).

In January 2014, a dispute arose between Borrell and Koch over Borrell’s absence from

work.

¶ IV(i). Borrell asserted that his absence was due to a combination of approved

telework and medical leave, and he submitted a written statement to that effect.

¶¶ IV(i), (l).

But rather than following up with him to work through the problem, Koch initiated procedures to

separate Borrell involuntarily.

¶ IV(i). NAVFAC terminated Borrell’s employment on

January 19, 2014. Id.; see also SF-50.

Borrell spent the next five years unsuccessfully applying to over sixty civil service

positions in his field. Compl. ¶ II. He then filed this suit on April 19, 2019, over five years after

his termination. See generally

The Complaint contains several allegations that NAVFAC

deprived him of due process and generally treated him unfairly, including claims that Koch, a

civilian, made the decision to terminate Borrell without consulting military officers or human

resources professionals on the staff,

¶¶ IV(a)–(b); that the organization knew Borrell was at

his home (the address for which was on file) but declared him absent without leave (a term

which, in military parlance, refers to personnel who have gone missing altogether),

¶ IV(c);

that the decision to terminate him was inconsistent with his successful performance in the

position,

¶¶ IV(e)–(g), (m); and that the organization prevented his participation in a Navy

Reserve program,

¶ IV(h). Borrell also alleges that his termination violated the Rehabilitation

Act because he was fired while on medical leave.

¶ IV(l). In addition to his due-process and

2 disability claims, Borrell alleges that his supervisors intentionally damaged his reputation by

maliciously mischaracterizing his departure.

¶ II. Finally, Borrell claims that his termination

resulted in the loss of his security clearance without his knowledge, thereby depriving him of

future employment opportunities.

¶ IV(j). Borrell seeks correction of his personnel record,

reinstatement to a comparable position, and backpay.

¶ VI.

The government moves to dismiss for lack of subject-matter jurisdiction. See generally

Def.’s Mem. of P. & A. in Support of Def.’s Mot. to Dismiss Pl.’s Compl. (“Mot.”), ECF No. 9-

1. It argues that jurisdiction over Borrell’s due-process claims rests with the Merit Systems

Protection Board,

at 4–5; that Borrell failed to exhaust administrative remedies on his

disability claim,

at 5–6; that the Federal Tort Claims Act bars actions against the federal

government for defamation or misrepresentation,

at 6–8; and that discretionary actions

regarding security clearances are not subject to judicial review, id. at 8.

II. Legal Standard

“[T]he party asserting federal jurisdiction . . . has the burden of establishing it,” and the

Court presumes that it “lack[s] jurisdiction unless the contrary appears affirmatively from the

record.” DaimlerChrysler Corp. v. Cuno,

, 342 n.3 (2006) (quoting Renne v.

Geary,

(1991)). The Court has an “independent obligation to determine

whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.”

Arbaugh v. Y & H Corp.,

(2006). “For this reason, ‘the Plaintiff’s factual

allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’ than in

resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge of the Fraternal Order of

Police v. Ashcroft,

, 13–14 (D.D.C. 2001) (quoting 5A Charles A. Wright &

Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987)). The Court “may

3 consider materials outside the pleadings in deciding whether to grant [the Motion].” Jerome

Stevens Pharm., Inc. v. FDA,

(D.C. Cir. 2005).

III. Analysis

A. Due-Process Claims

As the government correctly notes, “the Civil Service Reform Act of 1978 . . . ,

et seq., . . . established a comprehensive system for reviewing personnel action taken

against federal employees.” Mot. at 4 (quoting Elgin v. Dep’t of Treasury,

(2012)

(internal quotation omitted)). “If the agency takes final adverse action against the employee

[including termination], the [Act] gives the employee the right to a hearing and to be represented

by an attorney or other representative before the Merit Systems Protection Board.” Elgin,

(citing 5 U.S.C §§ 7513(d), 7701(a)(1)–(2)). “An employee who is dissatisfied with the

[Board’s] decision is entitled to judicial review in the United States Court of Appeals for the

Federal Circuit,” which has “‘exclusive jurisdiction’ over appeals from a final decision of the

[Board].” Id. at 6 (quoting

(a)(9)) (citing

(b)(1)). “[A]n appeal

[to the Board] must be filed no later than 30 days after the effective date . . . of the action being

appealed.”

(b)(1).

Borrell was a member of the competitive Civil Service and therefore comes within the

scope of the Civil Service Reform Act. See

(a)(1)(A); SF-50 (indicating that

Borrell was a member of the competitive service). 2 It is undisputed that Borrell did not appeal to

2 Portions of Borrell’s Complaint assert that he was employed in neither a civilian nor a military capacity but was instead a member of the “Full Time Naval Service.” See, e.g., Compl. ¶ 1; see also

¶ II (“Going by official records including salary, promotions and standard personnel actions during his Full Time Naval service, [Plaintiff] is at minimum, arguably the most qualified person in the history of the U.S. Navy for these positions giving fair consideration to past divisions between military, civilian, and Naval service within the Navy.”);

¶ IV(b) (“In and around the time in question [Plaintiff] was Naval Service. (sic) Naval service defined as military and civilian service, is therefore also military service. (sic) Despite this the decision and

4 the Merit Systems Protection Board. See Molly A. Leckey Decl., ECF No. 9-2 (asserting that the

Board has no record of any appeal by Borrell). Because the Act “provides the exclusive avenue

to judicial review when a qualifying employee challenges an adverse employment action,” Elgin,

, the Court lacks subject-matter jurisdiction over Borrell’s due-process challenges to

his termination.

B. Rehabilitation Act Exhaustion of Administrative Remedies

The government next argues that the Court lacks jurisdiction over Borrell’s disability-

discrimination claim because he failed to exhaust administrative remedies. 3 See Mot. at 5–6.

The Rehabilitation Act requires that “[n]o otherwise qualified individual with a disability . . .

shall, solely by reason of . . . his disability, . . . be subjected to discrimination . . . under any

program or activity conducted by any Executive agency.”

(a). The Act

incorporates the employment discrimination standards of the Americans with Disabilities

document came from only one civilian.” (sic)) But the official documentation of Borrell’s termination, which he attached to his Complaint, affirmatively lists him as a civilian employee at the GS-12 pay grade. See SF-50. Although Borrell also makes passing reference to some involvement in the Navy Reserve, see, e.g., Compl. ¶ IV(h) (“In the time in question [Plaintiff] was blocked from physical registration in boot camp as a part time Seabee in the Naval Facilities Engineering Command Reserve Force. . . . Giving all consideration to his specific situation in the Navy Reserve, [Plaintiff] questions if it is fair there has yet to be an option for activation to Full Time service and pay?”), the Court is unaware of any separate employment category entitled “Full Time Naval Service,” and the Complaint does not explain the label. Because the Complaint does not provide enough information to enable the Court to infer any claim arising from Borrell’s possible service in the military, and because the official document Borrell attached to his Complaint confirms that his work at NAVFAC was in a civilian capacity, the Court analyzes Borrell’s claims under the assumption that they arise from his civilian employment. Borrell does not appear to raise any claim for relief under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301–35. 3 The Complaint styles the discrimination as a violation of the Americans with Disabilities Act (ADA),

et seq. But because the Rehabilitation Act governs federal employment, the Court construes the claim as alleging disability discrimination under the Rehabilitation Act. The legal standards are the same under either statute. See

(d) (incorporating the ADA’s standards).

5 Act.

§ 794(d). It also incorporates Title VII’s administrative-exhaustion requirement and

available remedies for federal employees. See id. § 794a(a)(1) (incorporating 42 U.S.C.

§ 2000e-16). Under the applicable regulation, federal employees alleging disability

discrimination must initiate an administrative complaint “within 45 days of the effective date of

the [personnel] action.”

(a)(1).

“For claims against federal agencies, exhaustion requires submitting a claim to the

employing agency itself.” Doak v. Johnson,

(D.C. Cir. 2015). “The

obligation to initiate one’s claim in the government agency charged with discrimination is ‘part

and parcel of the congressional design to vest in the federal agencies and officials engaged in

hiring and promoting personnel primary responsibility for maintaining nondiscrimination in

employment.’” Barkley v. U.S. Marshals Serv. ex rel. Hylton,

(D.C. Cir.

2014) (quoting Kizas v. Webster,

(D.C. Cir. 1983)). Unlike under Title VII,

the Rehabilitation Act limits judicial review to “any employee . . . aggrieved by the final

disposition of [his administrative] complaint, or by the failure to take final action on such

complaint.” 29 U.S.C. § 794a(a)(1). Courts have interpreted that language to require strict

compliance with the exhaustion requirement and as depriving courts of jurisdiction over cases in

which the complainant failed to file an administrative claim. See Spinelli v. Goss,

(D.C. Cir. 2006) (“Such jurisdictional exhaustion . . . may not be excused.” (internal

quotation omitted)).

It is undisputed that Borrell never filed an administrative complaint with the agency. See

Deanner P. White Decl., ECF No. 9-3 (stating that the Department of the Navy’s Equal

Employment Opportunity office has no record of any complaint by Borrell). For his part, Borrell

argues that it is unjust to permit wrongdoing and discrimination merely because the alleged

6 victim waited too long to complain or went to court rather than to an administrative office to file

his grievance. See Pl.’s Resp. to Def.’s Mot. to Dismiss Pl.’s Compl. (“Resp.”) at 2, ECF No. 11

(“Right is right and wrong is wrong. There is not an expiring time table. (sic) The Plaintiff

disagrees with Defendant’s argument that because the . . . case was filed over five years from

separation that it somehow makes the violation of a federal law acceptable.”). But Congress

chose to give agencies the primary responsibility to redress grievances and gave preference to

immediate resolution over litigation years after the fact. See Barkley,

. The Court

therefore cannot exercise jurisdiction over Borrell’s Rehabilitation-Act claim.

C. Defamation or Misrepresentation

Borrell next alleges that his supervisors maliciously included language in the documents

accompanying his termination with the intention of harming his future employment prospects

and have thereby “unfairly done damage to [his] reputation amongst [government] selection

managers.” Compl. ¶ II. He states that he has applied for approximately sixty government jobs

without success and attributes the results to the paperwork in his file.

The language at issue

includes a characterization of the termination as a “[r]emoval” rather than a “[s]eparation” and a

statement that his departure was due to his “[a]bsence without leave” rather than the

“[e]xpiration of [his] term of service.” Compl. ¶ VI(1); see also SF-50.

But as the government notes, the United States has not waived its sovereign immunity as

to claims for defamation and misrepresentation. See Mot. at 6. “Tort claims against the federal

government are only actionable to the extent that it has waived its sovereign immunity, which it

has done for some tort claims through the Federal Tort Claims Act.” Francis v. Perez,

(D.D.C. 2017) (emphasis added) (citing

). The United States has

expressly retained sovereign immunity as to “[a]ny claim arising out of . . . libel, slander, [or]

misrepresentation.”

(h). Borrell’s claim is therefore barred by sovereign

7 immunity, thus depriving the Court of subject-matter jurisdiction. See Smalls v. Emanuel,

(D.D.C. 2012) (dismissing defamation and misrepresentation claims against the

United States for lack of subject-matter jurisdiction).

D. Security Clearance Lapse

Finally, Borrell alleges that the improper termination caused his security clearance to

lapse, thereby preventing him from seeking similar jobs that require a clearance. Compl. ¶ IV(j).

In Borrell’s words, he “lost his security clearance based on falsely inputted (sic) informational

sources by NAVFAC Washington. This information was false and contained no supporting

documentation. Taking his security clearance . . . would be a contributing factor preventing

[Borrell] from working . . . in his own field for approximately the next four years.”

Borrell

elaborates on this allegation in his briefing on the Motion to Dismiss, in which he indicates that

he did not discover the loss until three years after termination. Resp. at 2. He states that in 2017

he obtained a position with a defense contracting firm in California, only to be let go a week later

once the company discovered that Borrell no longer had a clearance.

Because Borrell was no

longer a Department of the Navy employee, he had no administrative avenue for challenging the

loss of his clearance.

Unfortunately for Borrell, the Court lacks jurisdiction over his claim. To the extent the

loss of a clearance flowed directly from Borrell’s termination, it is subsumed into his challenge

to the termination itself. As the Court noted above, only the Merit Systems Protection Board

could have exercised jurisdiction over that claim. See supra Section III.A. But even the Board

lacks jurisdiction over the military’s decision to grant, deny, or revoke a security clearance. “It

should be obvious that no one has a ‘right’ to a security clearance.” Dep’t of the Navy v. Egan,

(1988). “The grant [or withdrawal] of a clearance requires an affirmative act

of discretion on the part of the granting official. . . . [T]he protection of classified information

8 must be committed to the broad discretion of the agency responsible, and this must include broad

discretion to determine who may have access to it.”

at 528–29. For those reasons, “it is not

reasonably possible for an outside nonexpert body to review the substance of such a judgment.”

.

Borrell’s briefing makes much of the effects he continues to feel as a result of the loss of

his clearance, perhaps seeking to overcome any time bar to his other claims. Resp. at 2. But

courts of appeals around the country have consistently held that “security clearance

determinations are not subject to judicial review,” even when plaintiffs allege that the

determinations were the result of illegal discrimination. Hesse v. Dep’t of State,

(Fed. Cir. 2000) (collecting cases); see also Guillot v. Garrett,

, 1324–25

(4th Cir. 1992) (holding that judicial review of a clearance determination is not available in a suit

under the Rehabilitation Act), superseded by statute on other grounds as recognized by Bratten

v. SSI Servs., Inc.,

, 633–34 (6th Cir. 1999). The Court must therefore dismiss the

claim for lack of subject-matter jurisdiction.

IV. Conclusion

To seek review of his termination, Borrell was required to appeal to the Merit Systems

Protection Board by February 18, 2014. To complain of disability discrimination, he had to

bring the allegations to the attention of a Department of the Navy Equal Employment

Opportunity counselor by March 5, 2014. Rather than taking either of those steps, Borrell waited

over five years and then went straight to court. Because he did not comply with the

administrative processes designed to handle his claims, the Court lacks jurisdiction over the

subject matter of this suit. Sovereign immunity and deference to the Executive Branch on

matters of national security likewise preclude his remaining claims. Accordingly, it is

9 ORDERED that Defendant’s Motion to Dismiss is GRANTED. Borrell’s Complaint is

DISMISSED. An Order will be issued contemporaneously with this Memorandum Opinion.

DATE: May 11, 2020 CARL J. NICHOLS United States District Judge

10