UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JASON B. LEE,

Plaintiff,

v. No. 19-cv-2284 (DLF)

WILLIAM P. BARR,

Defendant.

MEMORANDUM OPINION

Plaintiff Jason B. Lee brings this case against the U.S. Attorney General, William P. Barr,

alleging that the U.S. Department of Justice violated Title VII by discriminating against him

based on his race and national origin. See Compl., Dkt. 1. Before the Court is the Attorney

General’s Motion to Dismiss, Dkt. 6, and Lee’s Motion to Amend his complaint pursuant to

Federal Rule of Civil Procedure 15(a)(2), Dkt. 12. For the reasons that follow, the Court will

grant the Attorney General’s motion and deny Lee’s motion.

I. BACKGROUND

A. The Complaint

Lee, a U.S. citizen of Chinese ancestry, began working for the FBI in 2003 and most

recently worked as a Senior Intelligence Officer at its Technical Intelligence Directors Office in

Washington, D.C. Compl. ¶¶ 5, 15, 18. In that role, he held a top secret security clearance. Id.

¶ 17. As part of the security clearance investigative process, Lee took his first polygraph exam

in 2003. Id. ¶¶ 27–28. He underwent a second polygraph in 2008 during his “periodic renewal

investigation.” Id. ¶ 29. In July 2013, the FBI’s Security Division contacted him to schedule his

“ten-year routine periodic polygraph exam.” Id. ¶ 34. Kevin McCaskey conducted Lee’s polygraph exam in September 2013. Id. ¶¶ 34–35. McCaskey allegedly told Lee that “there

were problems repeatedly arising in his response to three questions relating to the unauthorized

release of information, terrorism and failure to disclose a security violation;” McCaskey also

“accused [Lee] of lying to him and trying to conceal relevant information from him.” Id. ¶¶ 36–

37. Lee further alleges that McCaskey’s “demeanor and attitude” appeared to “be one of bias

and antagonism” because of Lee’s Chinese ancestry. Id. ¶ 39. According to Lee, McCaskey

demanded that Lee provide a written statement explaining his “failure and refused to let [Lee]

leave until he provided one.” Id. ¶ 40. Lee “eventually provided a written statement that denied

any wrongdoing on his part” and “denied withholding any information or employing any testing

counter measures.” Id. ¶ 41.

In August 2014, the FBI notified Lee that he “needed to take a second polygraph

examination” and scheduled it for September 24, 2014. Id. ¶ 43. The examiner of this

polygraph, Special Agent Shannon, 1 informed Lee “that he had reviewed his file and been

briefed on the failed/untruthful results of the 2013 examination.” Id. ¶ 45. During “pre-test

questioning,” Shannon “began a series of questioning regarding [Lee’s] exposure to

environments where others spoke primarily dialects of Chinese,” even though Lee told Shannon

that he did not speak Chinese. Id. ¶¶ 46–47. Shannon suggested that Lee and his father, who

also had worked for the U.S. government, were “part of a father and son spy team.” Id. ¶ 55.

Lee found Shannon’s “attitude and demeanor hostile to [him] due to his Chinese

ancestry.” Id. ¶ 48. He alleges that Shannon “chastised” him for reading a report on polygraphs.

Id. ¶ 49. At some point, Lee had a panic attack during the polygraph test. Id. ¶ 56. Eventually,

Shannon told Lee that “based on his interpretation of the technical results, he would be failing

1 The plaintiff does not include Shannon’s first name in his complaint.

2 him” and that he had determined that Lee used “countermeasures” during the polygraph test. Id.

¶ 50. According to Lee, Shannon told him that “having greater number of breaths after

answering a given question can only be explained by one cause, an attempt to cheat the

examination.” Id. ¶ 51. Shannon also said that Lee’s attempts to counter the test would cause

him to lose his badge, and Shannon misleadingly suggested that he had the “sole authority” to

confiscate Lee’s credentials. Id. ¶¶ 57–58. Shannon “demanded” that Lee write a statement

explaining that he failed the test and admitting wrongdoing. Id. ¶ 59. After Lee wrote this

statement, Shannon allegedly crumpled it up and told Lee that unless he rewrote it, the “‘people

in the back room’ will have no choice but to open a counterintelligence investigation” against

him. Id. ¶¶ 59–60. Lee also alleges that the FBI later submitted his test results to the National

Center for Credibility Assessment, which found “no evidence” of “countermeasures.” Id. ¶¶ 52–

53.

On December 31, 2014, Lee received a letter informing him that the FBI was indefinitely

suspending his security clearance and placing him on unpaid leave. Id. ¶ 62. He claims he “was

not afforded an opportunity to appeal this decision” before the suspension was made effective, a

violation of the FBI’s policy to give an employee a hearing before its Senior Review Panel

before taking adverse action against an employee accused of failing a routine polygraph. Id.

¶ 63. On February 25, 2015, Lee was informed that the FBI was revoking his security clearance.

Id. ¶ 66. The Assistant Director of the Security Division denied Lee’s appeal of this decision.

Id. ¶ 67.

Lee filed suit against the Attorney General on July 31, 2019, alleging that the examiners

who conducted his 2013 and 2014 polygraph examinations discriminated against him based on

his national origin and race, in violation of Title VII. See id. ¶¶ 70–91.

3 B. The Amended Complaint

On January 6, 2020, after the FBI moved to dismiss Lee’s initial complaint, see Dkt. 6,

Lee filed a motion to amend his complaint, see Dkt. 12. In his amended complaint, Lee drops all

claims relating to his 2013 polygraph examination, see Pl.’s Mot. to Am. Compl. at 2, but he

adds nine new claims: three Title VII claims relating to his 2018 polygraph examination; two

Fifth Amendment claims; and four Bivens claims. See Am. Compl. ¶¶ 137–208, Dkt. 12-2.

The amended complaint also includes additional details about Agent Shannon’s allegedly

discriminatory behavior during Lee’s 2014 polygraph examination, see Am. Compl. ¶¶ 62–67,

and allegations relating to a 2018 polygraph examination. According to the amended complaint,

in 2015, Lee submitted a request for reconsideration of his security clearance revocation, and in

August 2016, the FBI affirmed the decision. See id. ¶¶ 76–77. That month, Lee appealed the

decision to the DOJ’s Access Review Committee, and the ARC considered his case in 2018. Id.

¶¶ 79–81. The Access Review Committee directed the Drug Enforcement Administration to

hold another polygraph examination using the same questions posed to him during the 2014

polygraph. Id. ¶ 81.

Agent Stacy Smiedala, 2 who conducted Lee’s April 26, 2018 polygraph examination, told

Lee that he was aware of his previous “allegations of ethnic bias, bullying practice and

procedural rights violations.” Id. ¶ 86. Smiedala also raised with Lee two articles that concerned

“an anonymous complainant regarding experiences with perceived inappropriate polygraph

testing practices” and “the FBI singling out” Chinese-Americans by manipulating polygraph

tests. Id. ¶¶ 87, 90. Lee appears to admit that he participated as an anonymous source in the

2 The amended complaint refers to the agent administering the 2018 polygraph as “Stacy Sabilla,” see Am. Compl. ¶¶ 9, 84–85, but the defendant represents that this agent’s name is Stacy Smiedala, see Def.’s Opp’n to Pl.’s Mot. to Amend at 4, Dkt. 18.

4 article. See id. ¶ 88. And he alleges that Smiedala “vocally berated” him for “sullying the

reputation” of the agent who conducted the 2014 polygraph. Id. ¶ 93. On May 30, the

Committee sent Lee a letter upholding the results of the 2014 polygraph. See Pl.’s Mot. to

Amend Ex. 1, Dkt. 12-4.

II. LEGAL STANDARDS

A. Rule 12(b)(6)

Rule 12(b)(6) allows a defendant to move to dismiss the complaint for failure to state a

claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6)

motion, the complaint must contain factual matter sufficient to “state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly,

(2007). A facially

plausible claim is one that “allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Ashcroft v. Iqbal,

(2009). This standard

does not amount to a specific probability requirement, but it does require “more than a sheer

possibility that a defendant has acted unlawfully.”

A complaint need not contain “detailed

factual allegations,” but alleging facts that are “merely consistent with a defendant’s liability . . .

stops short of the line between possibility and plausibility.”

(internal quotation omitted).

Well-pleaded factual allegations are “entitled to [an] assumption of truth,”

, and

the court construes the complaint “in favor of the plaintiff, who must be granted the benefit of all

inferences that can be derived from the facts alleged,” Hettinga v. United States,

(D.C. Cir. 2012) (internal quotation omitted). But the assumption of truth does not apply to

a “legal conclusion couched as a factual allegation.” Iqbal,

(internal quotation

omitted). An “unadorned, the defendant-unlawfully-harmed-me accusation” is not credited;

likewise, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

5 conclusory statements, do not suffice.”

Ultimately, “[d]etermining whether a complaint

states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.”

.

B. Rule 15(a)(2)

Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “a court should freely give

leave [to amend a complaint] when justice so requires.” Fed. R. Civ. P. 15(a)(2). However,

“[w]hen evaluating whether to grant leave to amend, the Court must consider (1) undue delay;

(2) prejudice to the opposing party; (3) futility of the amendment; (4) bad faith; and (5) whether

the plaintiff has previously amended the complaint.” Howell v. Gray,

(D.D.C. 2012) (citing Atchinson v. District of Columbia,

(D.C. Cir. 1996)); see also

Foman v. Davis,

(1962). An amendment “is futile and should be denied”

when it “would not survive a motion to dismiss—such as where a claim sought to be added is

barred by the statute of limitations.” Palacios v. MedStar Health, Inc.,

(D.D.C. 2018); see, e.g., James Madison Ltd. by Hecht v. Ludwig,

(D.C. Cir.

1996) (“Courts may deny a motion to amend a complaint as futile . . . if the proposed claim

would not survive a motion to dismiss.”). This review for futility is functionally “identical to

review of a Rule 12(b)(6) dismissal based on the allegations in the amended complaint.” In re

Interbank Funding Corp. Secs. Litig.,

(D.C. Cir. 2010) (internal quotation

marks and citations omitted). Thus, when assessing a motion for leave to amend, “the Court is

required to assume the truth of the allegations in the amended complaint and construe them in the

light most favorable to the movant.” Flaherty v. Pritzker,

(D.D.C. 2017)

(citing Caribbean Broad. Sys. v. Cable & Wireless PLC,

(D.C. Cir. 1998)).

6 The party opposing amendment “bears the burden of showing why an amendment should not be

allowed.” Abdullah v. Washington,

(D.D.C. 2008).

III. ANALYSIS

A. Motion to Dismiss

“Title VII complainants must timely exhaust their administrative remedies before

bringing their claims to court.” Payne v. Salazar,

(D.C. Cir. 2010) (internal

quotation marks and alterations omitted); see also 42 U.S.C. § 2000e-16(c). The exhaustion

requirement “serves the important purposes of giving the charged party notice of the claim and

narrowing the issues for prompt adjudication and decision,” Park v. Howard Univ.,

(D.C. Cir. 1995) (internal quotation marks and alteration omitted), and it “ensure[s] that the

federal courts are burdened only when reasonably necessary,” Brown v. Marsh,

(D.C. Cir. 1985). In the Title VII context, failure to exhaust is an affirmative defense, and thus

“the defendant bears the burden of pleading and proving it.” Bowden v. United States,

(D.C. Cir. 1997); see also Smith-Haynie v. District of Columbia,

(D.C. Cir. 1998) (“[A]n affirmative defense may be raised by pre-answer motion under Rule

12(b) when the facts that give rise to the defense are clear from the face of the complaint.”).

Pursuant to Title VII, the EEOC has promulgated detailed procedures for the

administrative resolution of employment discrimination claims against federal agencies. See 42

U.S.C. § 2000e-16(b);

. Employees who believe they have been

discriminated against must initiate contact with an EEO counselor “within 45 days of the date of

the matter alleged to be discriminatory.”

(a)(1).

For purposes of assessing whether a Title VII complainant exhausted these administrative

procedures in a timely fashion, the Supreme Court has identified two categories of

7 discrimination—those involving “discrete retaliatory or discriminatory acts” and those involving

a hostile work environment. See Achagzai v. Broad. Bd. of Governors,

(D.D.C. 2016). Where, as here, an employee alleges that he or she was the victim of a “discrete

retaliatory or discriminatory act,” the timeliness inquiry focuses on that particular act. Nat’l R.R.

Passenger Corp. v. Morgan,

(2002); Achagzai,

.

“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to

acts alleged in timely filed charges.” Morgan,

.

In his initial complaint, Lee appears to allege that, due to the polygraph examiners’

conduct during the 2013 and 2014 polygraphs, he failed the exams and subsequently had his

security clearance revoked, see

¶¶ 71–72. He thus alleges two discrete discriminatory acts:

Agent McCaskey’s “demeanor and attitude” toward him during the September 2013 polygraph,

see id. ¶ 39, and Agent Shannon’s “attitude and demeanor” toward him during the September

2014 polygraph, see id. ¶ 48.

Lee failed to contact an EEO counselor within 45 days of either of these allegedly

discriminatory acts. In fact, he did not contact an EEO counselor until June 14, 2018, almost

four years after the 2014 polygraph examination. See Def.’s Mot. Ex. 1, Dkt. 8-1. He has thus

failed to exhaust his administrative remedies with respect to the alleged 2013 and 2014

discrimination, and the court will dismiss these claims.

B. Motion to Amend

The Court will also deny Lee’s motion for leave to file an amended complaint because

Lee has offered no justification for his delay in seeking to amend the complaint and any such

amendment would be futile. See Palacios,

. An amendment is futile if,

among other reasons, the amended pleading could not withstand a motion to dismiss.

Lee’s

8 additional claims and allegations could not withstand a motion to dismiss, so his motion to

amend his complaint will be denied.

1. Title VII Claims

Lee alleges three new Title VII claims relating to his 2018 polygraph examination:

(1) that Smiedala acted in a discriminatory manner during the 2018 polygraph as retaliation

against Lee for complaining about the alleged discrimination during his 2014 polygraph, see Am.

Compl. ¶¶ 137–48; (2) that Smiedala discriminated against Lee based on his national origin

during the 2018 polygraph, see

¶¶ 149–57; and (3) that Smiedala discriminated against Lee

based on race during the 2018 polygraph, see

¶¶ 158–66.

If the Court granted Lee leave to amend his complaint, his Title VII claims relating to his

2018 polygraph examination would also fail because Lee did not contact an EEO counselor

within 45 days of the polygraph. See

(a)(1). Lee took his polygraph test on

April 26, 2018. Am. Compl. ¶ 84. But he did not contact an EEO counselor until June 14, 2018,

49 days after the polygraph. See Def.’s Mot. Ex. 1. Indeed, the EEOC originally dismissed

Lee’s EEOC complaint relating to his 2018 polygraph for this very reason. See Def.’s Mot. Ex.

2 at 1–3, Dkt. 8-2. Because Lee failed to timely exhaust his administrative remedies, his newly

alleged Title VII claims would be dismissed, and it would be futile for Lee to pursue these

claims. 3

3 The FBI also argues that because Lee is, in essence, challenging the FBI’s decision to revoke his security clearance, his claim is barred by Dep’t of Navy v. Egan,

(1988), which held that a court cannot review security clearance decisions made by the Executive. See

. However, Egan does not bar all constitutional challenges to security clearance decisions, see Webster v. Doe,

(1988), nor does it necessarily bar challenges to the methods used in security clearance decisions, see Nat’l Fed’n of Fed. Empls. v. Greenberg,

(D.C. Cir. 1993).

9 2. Constitutional Claims

Lee also brings two Fifth Amendment claims: one alleging that the FBI deprived him of a

liberty interest in his reputation, in violation of the Due Process Clause, see Am. Compl. ¶¶ 167–

80; and one alleging that the FBI violated the Equal Protection Clause, see

¶¶ 181–83.

Title VII is the “exclusive, pre-emptive administrative and judicial scheme for the redress

of federal employment discrimination.” See Brown v. Gen. Servs. Admin.,

(1976). Because federal employees may not “circumvent the careful and thorough remedial

scheme” Congress ordered for them, they are precluded from bringing employment

discrimination claims against federal officials for constitutional violations. Kizas v. Webster,

, 542–43 (D.C. Cir. 1983) (citing Brown,

). This includes

constitutional claims arising from “the same conduct that forms the basis for a plaintiff’s Title

VII claim.” King v. Holder,

(D.D.C. 2013).

Lee’s constitutional claims rest on the same conduct as his Title VII claims. As to the

Equal Protection Clause claim, Lee asserts in a conclusory fashion that he “was not provided

Equal Protection under the law.” See Am. Compl. ¶ 182. For his Due Process Clause claim, he

alleges that he has been deprived of his liberty interest in his reputation because he has to explain

the loss of his security clearance to future employers, id. ¶ 168, and that the defendants

“proximately caused” this “on the basis of pretextual and untrue statements regarding [Lee’s]

alleged deception” during the 2014 and 2018 polygraphs, id. ¶ 169. At bottom, Lee complains

that the same conduct underlying his Title VII claims—the agents’ alleged discriminatory

behavior during the polygraph examinations—caused the damage to his reputation. These

allegations of employment discrimination are only actionable under Title VII. Lee’s

constitutional claims are thus precluded and would not survive a motion to dismiss.

10 3. Bivens Claims

Lee alleges four claims under Bivens v. Six Unknown Fed. Narcotics Agents,

(1971), which recognized an implied cause of action for damages against federal officers

alleged to have violated certain constitutional rights.

He claims that: (1) Smiedala violated

his First Amendment rights by retaliating against him for his quotations in the articles, see Am.

Compl. ¶¶ 184–97; (2) Smiedala violated his Fifth Amendment Equal Protection Clause rights

during the 2018 polygraph, see

¶¶ 198–200; (3) Smiedala violated his Fifth Amendment Due

Process Clause rights during the 2018 polygraph, see

¶¶ 201–04; and (4) Marie Barr

Santangelo, the employee who signed the Access Review Committee’s 2018 letter affirming the

revocation of his security clearance, violated his Fifth Amendment Due Process Clause rights,

see

¶¶ 205–08.

The Supreme Court recently outlined the proper two-step approach to determining

whether a cause of action exists under the Constitution itself for damages for constitutional

violations. Ziglar v. Abbasi,

(2017). First, a court should ask whether the claim

arises in a new context. A case “presents a new Bivens context” if it “is different in a meaningful

way from previous Bivens cases decided by this Court.”

. Second, it should ask

whether there are “special factors counselling hesitation in the absence of affirmative action by

Congress.”

. “[T]he decision to recognize a damages remedy requires an assessment

of its impact on governmental operations systemwide,” including “the burdens on Government

employees who are sued personally, as well as the projected costs and consequences to the

Government itself when the tort and monetary liability mechanisms of the legal system are used

to bring about the proper formulation and implementation of public policies.”

.

Further, “if there is an alternative remedial structure present in a certain case, that alone may

11 limit the power of the Judiciary to infer a new Bivens cause of action.”

Although Bivens

remains settled “in the search-and-seizure context in which it arose,” the Court “has made clear

that expanding the Bivens remedy is now a disfavored judicial activity.”

at 1856–57 (internal

quotation marks omitted).

Lee’s First Amendment Bivens claim fails in light of established precedent. The Supreme

Court has never held that a Bivens remedy is available for First Amendment claims. In fact, both

the Supreme Court and the D.C. Circuit have held that federal employees cannot bring a Bivens

action against their employers for First Amendment violations. See Bush v. Lucas,

(1983); Davis v. Billington,

(D.C. Cir. 2012). Lee relies on Pinson v. U.S.

Dep’t of Justice,

(D.D.C. 2017), which permitted Bivens claims for

First Amendment retaliation, but Pinson predated Ziglar, and since Ziglar, this Circuit has

declined to extend Bivens to the First Amendment context, see Loumiet v. United States,

, 382 (D.C. Cir. 2020). Lee’s First Amendment Bivens claims would therefore not

survive a motion to dismiss.

Lee’s Fifth Amendment Bivens claims involve new contexts and implicate “special

concerns counselling hesitation.” Even though the Fifth Amendment is one of the three

instances in which the Supreme Court has permitted a Bivens remedy, see Davis v. Passman,

(1979), the Ziglar Court warned that “[e]ven though the right and the mechanism of

injury [are] the same . . . the contexts [may still be] different,” see Ziglar,

.

And the facts of Davis differ from those here. Davis involved a sex-discrimination claim against

a Congressman who was protected by the Speech or Debate Clause. Davis, 442 U.S. at 248–49.

Here, Lee challenges a different set of facts—the conduct of FBI agents in administering a

polygraph and revoking a security clearance. See Barker v. Conroy,

, 367

12 (D.D.C. 2017), aff’d,

(D.C. Cir. 2019) (distinguishing a Fifth Amendment Bivens

claim from Davis based on different facts). Further, Title VII provides an “alternative remedial

structure” for Lee’s employment discrimination claims, and this alone can suffice to preclude a

Bivens claim. See Ziglar,

. Lastly, the national security concerns at play

caution against extending Bivens to Lee’s claims. Security clearances “require[] an affirmative

act of discretion” from an executive branch official. See Dep’t of Navy v. Egan,

(1988). Given that “separation-of-powers principles are or should be central to the [Bivens]

analysis,” Ziglar,

, the Court declines to imply a judicially-created remedy that

could interfere with this important executive branch function. Lee’s Fifth Amendment Bivens

claims would also fail to survive a motion to dismiss. Accordingly, amending the complaint to

include the Bivens claims would also be futile.

CONCLUSION

For the foregoing reasons, the Court grants the Attorney General’s Motion to Dismiss and

denies Lee’s Motion to Amend his Complaint. A separate order consistent with this decision

accompanies this Memorandum Opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge June 23, 2020

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