Kruise v. Fanning
Kruise v. Fanning
Opinion of the Court
MEMORANDUM OPINION
Plaintiff Jay Kruise, a computer technician with the Army, claims that his supervisors’ blatant lies regarding his mental health cost him his security clearance and his job. Although the agency
I.
Plaintiff Jay Kruise was born in Laos and immigrated to the United States when he was 10 years old. After serving in the United States Navy and receiving an honorable discharge, he attended college, received a degree in computer network technology, and began working for the government as a computer technician. In college he was diagnosed with depression and other mental illnesses related to his military duty.
After working in Germany for several years, the agency assigned plaintiff to To-byhanna Army Depot in Pennsylvania in 2003, where he allegedly experienced daily acts of racial discrimination. The agency reassigned him to Holland in April 2004, and then to Germany in 2005. He alleges that he also suffered racial discrimination on those assignments, which contributed to his depression and other mental health problems. In May 2006, plaintiff filed an Equal Employment Opportunity (“EEO”) complaint against his supervisor, Eleanor Hendricks, alleging discrimination on the basis of race, national origin, and retaliation for earlier EEO activity. Plaintiff later emailed Hendricks to tell her that he had trouble concentrating at work due to harassment, his EEO complaint, and his medical problems. Plaintiff met with his supervisors in July 2006, and they promised to look into an accommodation for him if he provided a letter from a doctor. Plaintiffs psychologist, Dr. Glenn Koppel, submitted that letter to the agency in September 2006. In his letter, Dr. Koppel stated that plaintiff suffered from depression partly because of his work situation, and recommended that plaintiff be transferred to a place where he could work without fear of harassment.
Believing that he had been wrongly suspended, plaintiff filed an appeal with the Merit Systems Protection Board (“MSPB”). He also filed an EEO complaint in January 2007, alleging that the agency unlawfully discriminated against him when it suspended his security clearance. That EEO complaint was dismissed because it asserted the same issues as were raised in his MSPB appeal.
The MSPB affirmed plaintiffs suspension in February 2007, but it did not address plaintiffs discrimination claims for lack of jurisdiction. As a result, plaintiff was allowed to file another EEO complaint to pursue his discrimination claims. The agency eventually conducted an investigation for that EEO complaint and issued findings which plaintiff embraces in the instant action because they allegedly support his discrimination claims. For example, in his complaint plaintiff cites the finding that the agency suspended his security clearance based on the perception that he was disabled.
In July 2007, an agency psychologist examined plaintiff and concluded that he did not pose a security risk. Based on that examination, the Central Personnel Security Clearance Facility restored plaintiffs security clearance. Plaintiff returned to his job and was transferred back to Pennsylvania, but at a lower grade and pay scale.
For reasons that are not clear from plaintiffs amended complaint, his EEO complaint was never finally adjudicated. He filed this lawsuit in July 2015 in the United States District Court for the District of Columbia, and the case was transferred to this district pursuant to 28 U.S.C. § 1406(a).
The agency filed a motion to dismiss plaintiffs amended complaint for lack of subject matter jurisdiction under Rule 12(b)(1), Fed. R. Civ. P. The agency contends that plaintiffs Title VII, Rehabilitation Act, ADA, and due process claims implicate the merits of the agency’s security clearance decision, and therefore must be dismissed for lack of subject matter jurisdiction based on Supreme Court and Fourth Circuit precedent. The agency further contends that plaintiffs Back Pay Act claim must be dismissed for lack of jurisdiction because it is barred by the Civil Service Reform Act of 1978. The agency also contends that plaintiffs request to file a second amended complaint should be denied as futile because the proposed complaint would not cure the jurisdictional defects with his claims.
II.
Plaintiff bears the burden of showing that subject matter jurisdiction exists over his claims, and they must be dismissed if he cannot satisfy that burden. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). His Title VII and Rehabilitation Act claims are addressed first, followed by his ADA, due process, and, finally, his Back Pay Act claims.
A.
Analysis of plaintiffs Title VII and Rehabilitation Act claims properly begins with the Supreme Court’s decision in Department of the Navy v. Egan, in which a Navy employee sought MSPB review of the denial of his security clearance. 484 U.S. 518, 522, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988). The Supreme Court held that the MSPB lacked the authority to review “the substance of [the] underlying decision to deny or revoke a security clearance in the course of reviewing” an adverse employment action. Id. at 520, 530, 108 S.Ct. 818. The Supreme Court grounded that holding in the separation-of-powers principle that the Constitution vests “the executive power” in the President and makes the President the “Commander in Chief of the Army and Navy of the United States.” U.S. Const. Art. II §§ 1-2; Egan, 484 U.S. at 527, 108 S.Ct. 818. That “constitutional investment of power,” which “exists quite apart from any explicit congressional grant,” gives the President the authority to control access to classified information. Egan, 484 U.S. at 527, 108 S.Ct. 818.
Because the “grant or denial of security clearances” is an “inexact science at best” that involves “[p]redictive judgment[s]” as to an employee’s future behavior, the Supreme Court explained that such “sensitive and inherently discretionary judgment califs]” must be made by the Executive branch agencies “with the necessary expertise in protecting classified information.” Id. at 529, 108 S.Ct. 818 (quotation marks omitted). As a result, the Supreme Court held that security clearance decisions are “committed to the broad discretion of the agency responsible, [which] include[s] broad discretion to determine who may have access to it.” Id. In other words, because “it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence,” security clearance decisions are not subject to judicial review absent clear instruction from Congress. Id.
Following Egan’s, command, the Fourth Circuit has repeatedly concluded that “courts are generally without subject-matter jurisdiction” to review security
Despite this clear, controlling precedent, plaintiff argues that Egan does not foreclose his claims because he seeks review only of the decision to refer him to Colonel Pinkston, who made the security clearance suspension decision, as opposed to review of the decision itself. According to plaintiff, that distinction makes a world of difference in light of Rattigan v. Holder, 689 F.3d 764 (D.C. Cir. 2012). In that case, the plaintiff alleged that FBI officials reported unfounded concerns about him to the FBI’s Security Division, prompting a review of his security clearance. Id. at 765. The Security Division investigated the concerns, determined that they were unfounded, and never revoked the plaintiffs security clearance. Id. at 766. The plaintiff then filed a lawsuit against the FBI, claiming that the decision to refer him to the Security Division was unlawful retaliation against prior protected activity in violation of Title VII. Id.
The D.C. Circuit held in Rattigan that the plaintiff could pursue his Title VII claim.
Clearly, the Becerra decision forecloses plaintiffs attempt to wiggle out from under Egan by relying on Rattigan’s holding that courts can review for a Title VII violation a knowingly false referral made by an employee not responsible for security clearance decisions. See Spencer v. Carter, No. PX 16-161, 2016 WL 4240376, at *3 (D.M.D. Aug. 11, 2016) (stating that “Rattigan stands alone in providing narrow judicial review of Executive Branch security clearance decisions,” and holding that Becerra foreclosed plaintiffs claim that he was the “victim of knowingly false information shared by colleagues”). Despite the Rattigan majority’s proclamation that security clearance decision-makers could never “be assisted by employees who knowingly report false information — that is, outright lies — about fellow employees,”
Plaintiffs reliance on Rattigan is unavailing for another reason: the Rattigan decision itself is unpersuasive. As Judge Kavanaugh observed in his dissent, the Rattigan majority’s “slicing and dicing of the security clearance process into reviewable and unreviewable portions is nowhere to be found in Egan.” Rattigan, 689 F.3d at 774 (Kavanaugh, J., dissenting). The Rattigan majority premised its new rule on a single line from Egan: security clearance decisions must be made “by those with the necessary expertise in protecting classified information.” Egan, 484 U.S. at 529, 108 S.Ct. 818 (emphasis added). But in that line the Egan Court “was simply contrasting the expertise of agencies with that of outside reviewing bodies, not implying that courts should draw a reviewability line based on which employees of an agency possessed certain amounts of expertise.” See id. (Kavanaugh, J., dissenting). Indeed, the Egan Court repeatedly referred to the “agency” as a whole in explaining why courts cannot review agency security clearance decisions. See id. (Kavanaugh, J., dissenting) (citing seven instances where the Egan Court referred to how the “agency,” • not certain individuals, makes security clearance decisions). In short, the Rattigan rule is based on an unconvincing cherry-picking of the Egan decision that is at odds with Egan itself as well as the Becerra decision.
B.
Plaintiffs ADA claim fares no better than his Title VII and Rehabilitation Act claims. To begin with, the ADA does not even apply to federal agencies. See 42 U.S.C. § 12111(5)(B)(i) (“The term ‘employer’ does not include ... the United States .... ”); see also Hockaday v. Brownlee, 370 F.Supp.2d 416, 422 (E.D. Va. 2004) (quotation marks omitted) (stating that the Rehabilitation Act is “the exclusive means by which a plaintiff may raise claims against federal agencies relating to handicap discrimination”), aff'd Hockaday v. Brownlee, 119 Fed.Appx. 567 (4th Cir. 2005) (unpublished). And even if the ADA applied to federal agencies, plaintiffs claim would still fail; it would be barred under Egan for precisely the same reason his Title VII and Rehabilitation Act claims fail, namely that a review of the agency’s suspension of his security clearance based on his disability (real or perceived) would necessarily implicate the merits of that decision. See Perez v. F.B.I., 71 F.3d 513, 514 (5th Cir. 1995) (“Because the court would have to examine the legitimacy and the possibly pretextual nature of the FBI’s proffered reasons for revoking the employee’s security clearance, any Title VII challenge to the revocation would of necessity require some judicial scrutiny of the merits of the revocation decision.”) (footnote omitted); see also Guillot, 970 F.2d at 1326. For those reasons, plaintiffs ADA claim must also be dismissed for lack of subject matter jurisdiction.
C.
Plaintiffs fourth claim is that the agency failed to adhere to a number of regulations when it suspended his security clearance, and in doing so violated his right to due process. He contends that his due process claim can be reviewed under the Supreme Court’s decision in Webster v. Doe, which held that a statute giving absolute discretion to the Central Intelligence Agency director to fire employees did not preclude judicial review of an employee’s “colorable constitutional claim” against the director. 486 U.S. 592, 603, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988).
Insofar as plaintiff alleges a constitutional violation, he cannot state a “colorable” due process claim because he had no prop
To begin with, a close look at plaintiffs allegations indicates that he is trying to do an end-run around Egan. In his amended complaint, he cites a laundry list of rules, regulations, and an executive order that the agency allegedly violated. For example, he alleges that the agency violated an executive order prohibiting it from discriminating against him based on his race, color, national origin, and disability, which simply restates his unreviewable Title VII, Rehabilitation Act, and ADA claims. The Egan rule is not so easily circumvented. See Spencer, 2016 WL 4240376 at *3 (noting that Egan serves as a “broad restriction on the subject matter jurisdiction of courts in security clearance disputes.”).
Plaintiffs claims are further undermined by the very allegations in his amended complaint. For example, he claims that the agency did not consider the opinion of a competent medical authority when it suspended his security clearance. But he also alleges that Colonel Pinkston had a copy of Dr. Koppel’s supplemental letter stating that plaintiff could perform his job when Colonel Pinkston upheld the initial suspension decision. Plaintiff also alleges that the agency violated federal regulations entitling him to: (i) receive notice of the adverse action taken against him, (ii) an opportunity to respond in writing, (iii) a hearing, (iv) a written response, and (v) an opportunity to appeal the government’s decision. Yet, his amended complaint alleges facts reflecting that he actually received all of those protections.
D.
Plaintiffs final claim is that the agency violated the Back Pay Act by failing to pay him the money he would have received had his security clearance not been revoked. The Back Pay Act provides that an agency employee who is “found by appropriate authority under applicable law, rule, [or] regulation ... to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee” is entitled to receive back pay.
The CSRA “established a comprehensive system for reviewing personnel action taken against federal employees,” and it “prescribes in great detail the protections and remedies applicable to such action, including the availability of administrative and judicial review.” United States v. Fausto, 484 U.S. 439, 443, 454, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). As relevant here, the CSRA entitled plaintiff to appeal the agency’s suspension decision to the MSPB, and then to the Federal Circuit. See 5 U.S.C. §§ 7512(2), 7513; Elgin v. Dep’t of Treasury, 567 U.S. 1, 132 S.Ct. 2126, 2130-32, 183 L.Ed.2d 1 (2012).
This conclusion finds firm support in the Federal Circuit’s decision in Read v. United States, 254 F.3d 1064 (Fed. Cir. 2001), which reached the same conclusion based on a similar set of facts. In that case, the plaintiff was removed from his position with the Federal Aviation Administration (“FAA”) after his security clearance was revoked. Id. at 1065. Although his security clearance was eventually restored, the FAA refused to give him back pay. Id. Read filed a lawsuit under the Back Pay Act in the Court of Federal Claims, which dismissed the case for lack of subject matter jurisdiction on the basis that only the FAA, the MSPB, and the Federal Circuit could award back pay under the Act. Id. at 1066. The Federal Circuit affirmed the dismissal of Read’s claim for lack of subject matter jurisdiction, and for the same reasons, plaintiffs claim must also be dismissed for lack of subject matter jurisdiction. See id. at 1068.
Plaintiffs two arguments to the contrary are meritless. He first argues that implied repeals are disfavored, and that the CSRA did not repeal the Back Pay Act. That argument is nonsensical because it is the Back Pay Act itself that empowers only an “appropriate authority” to award back pay. See 5 U.S.C. § 5596(b)(1). The CSRA stal-
E.
The final issue is whether plaintiffs motion to file a second amended complaint should be granted. His proposed second amended complaint does not add any new claims against the agency. Instead, his proposed complaint (i) elaborates on his claim that the officials who recommended the suspension of his security clearance misused his mental health disorder as a “loophole” to obtain the suspension without following normal procedures, (ii) changes the name of the defendant to reflect the current Secretary of the Army, and (iii) corrects the name of the agency psychiatrist who evaluated plaintiff in July 2007.
Given this, plaintiffs motion to amend must be denied because his amended complaint already alleges that he was suspended based on a pretextual loophole. For the reasons stated above, the suspension decision is non-reviewable, which means that his motion must be denied as futile. See United States ex rel. Ahumada v. NISH, 756 F.3d 268, 274, 279 (4th Cir. 2014) (holding that the district court properly dismissed a proposed amended complaint as futile where the proposed amendments would not have cured a jurisdictional defect).
III.
For the foregoing reasons, plaintiffs complaint must be dismissed for lack of subject matter jurisdiction. Because plaintiffs proposed second amended complaint would not cure the jurisdictional defects with his claims, his motion to amend must also be denied.
An appropriate order will issue.
. Defendant in this action is Secretary of the Army Eric K. Fanning. For convenience, the defendant will be referred to throughout as "the agency.”
. The complaint alleges that Bright received false information from Hendricks.
. Contrary to plaintiff’s allegation that the agency violated due process by failing to consult a psychiatrist before suspending plaintiff, the EEO investigation also found that the agency was aware of Dr. Koppel’s psychiatric evaluations when it suspended plaintiff.
.Section 1406(a) provides that the "district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.”
. The D.C. Circuit first held that plaintiffs claims were reviewable in Rattigan v. Holder, 643 F.3d 975 (D.C. Cir. 2011), and then vacated that opinion after rehearing and replaced it with the Rattigan opinion discussed here.
. Rattigan, 689 F.3d at 770.
. See Jamil, 910 F.2d at 1208.
. It is worth noting that the MSPB decision upholding plaintiff’s suspension stated that it was "undisputed” that the agency gave plaintiff the required procedural protections— written notice of the charge against him, a reasonable time to respond in writing (and to furnish evidence), an opportunity to be heard, a written decision with the reasons for the suspension, and an appeal to 'the MSPB. Kruise v. Army, No. DC-0752-07-0229-1-1, 2007 WL 933842 (M.S.P.B. Feb. 26, 2007). Indeed, plaintiff did not even contend before the MSPB that he was denied due process. Id. As a result, the MSPB concluded that "the agency has proven by preponderant evidence that it provided [plaintiff] with the statutorily-mandated due process to which he was entitled.” Id. Although that decision has no precedential value, it further supports the conclusion that plaintiff's own allegations undermine his claim that the agency failed to follow the required procedures in suspending him.
.He did so; he appealed the agency’s decision to the MSPB. Of course, the MSPB could not review the merits of the revocation of plaintiff's security clearance. See 5 U.S.C. § 7512(A); Egan, 484 U.S. at 530-31, 108 S.Ct. 818. The MSPB could review only whether plaintiff’s position required a security clearance, whether the agency had the power to revoke security clearances, whether his clearance was in fact revoked, and whether the agency followed proper procedures. See Read v. United States, 254 F.3d 1064, 1065 (Fed. Cir. 2001).
. 5 U.S.C. § 5596(b)(1).
. Whether plaintiff can now seek back pay before the agency, the MSPB, or the Federal Circuit is neither addressed nor decided here.
Reference
- Full Case Name
- Jay KRUISE v. Eric K. FANNING
- Cited By
- 9 cases
- Status
- Published