Bland v. Napolitano

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES M. BLAND III )
)
Plaintiff, )
)
v. ) Case No. 13-cv-491 (RJL)
)
JEH JOHNSON, §
Defendant. ) SEP [] 2 2[]11¢
t``.l~.-.:i<, ``u.S. Distrtr,i & Bankrupicy
t``nizrts for the U§~ fruit of Columbia
MEMORAN M OPINION
(s@ptemb@r 1 ,2014) [Di484 U.S. 518 (1988),
which precludes courts and other non-expert bodies from reviewing the validity of
security clearance decisions made by trained Executive Branch security personnel.
Def.``s l\/Iot. to Dismiss [Dkt. #22]. Upon consideration ofthe parties’ pleadings, relevant
law, and the entire record therein, the motion is GRANTED.
l Secretary johnson was confirmed to his position in December 2013, and is appropriately substituted as
the named defendant in this action. See Fed. R. Civ. P. 25(d).
l
BACKGROUND
Mr. Bland, an African-American male, worked for the Federa1 Emergency
l\/Ianagement Administration ("FEMA") as a Senior Special Agent for the Office of Chief
Security' Officer ("FEMA OCSO") from l\/lay 8, 2011, to March 30, 20l2. Am. Compl.
11'1 6, 14. FEMA is a component of the Department of Home1and Security ("DHS"). Mr.
Bland"s position as a fraud investigator required that he obtain a Top Secret-
Compartmented Secret information ("TS-CSI") security clearance. Ia’. 11 19. When he
first began in the position, the FEMA Personnel Security Branch granted Mr. Bland an
interim secret clearance, z'a’. 111 15-16, and Mr. Bland submitted the information necessary
to process the permanent security clearance request, z``d. 11 20.
In the beginning of June, 2011, one or more FEMA officials complained that, in
2010, Mr. Bland had bribed FEl\/IA’S Chief Security Officer to contract with Bland’s
company for certain technology systems. Id. 1111 22-23. Mr. Bland alleges that the official
or officials who made the report were aware the allegations were fa1se. Id. 11 24. The
DHS OfHce of the Inspector General ("OIG") began investigating the allegations in late
June 201 1. Ia’. 11‘11 30-35. Mr. Bland alleges that the OIG investigation did not "result[] in
any evidence to support the originals [sic] allegations." Id. 1 32.
On July 1, 201 1, FEMA management placed Mr. Bland on administrative leave,
which involved, among other things, collecting his government identification card,
badges, and credentials, and denying him access DHS/FEMA facilitates and
communications systems. Id. 1111 36-38. Mr. Bland alleges his colleagues were told he
was guilty of criminal misconduct. Ia’. 11 97. The investigation was completed on July 6,
2
201 1. Ia’. 11 53. lt is unclear from the Complaint whether Mr. Bland returned to work
from administrative leave upon completion of the investigation. Mr. Bland initiated an
informal employment discrimination process at some point in July 2011. Ia’. 11 47.
On or around July 15, 201 1, the FEMA Personnel Security Branch chief granted
Mr. Bland TS-CSI clearance. Ia’. 11 54. Around two months later, on September 20,
2011, allegedly at the behest of FEl\/IA management, the DHS Office of Chief Security
Officer ("DHS OSCO") suspended Mr. Bland’s security clearance.z Id. 111 66, 77.
FEl\/[A’s "main expressed concem" involved a crime Mr. Bland committed over twelve
years ago while in the Air Force, the nature of which the FEMA managers felt could not
be mitigated Id. 11 67. DHS OSCO proposed revoking Mr. Bland’s clearance, but first
offered him thirty days to respond. Ia’. 11 77. That same month, September 201 1, Mr.
Bland filed a formal administrative complaint charging the agency with discriminating
against him on the basis of race and color. Ia’. 11 11.
On October 14, 2011, FEMA suspended Mr. Bland without pay, stating that he
could not perform his job duties without a TS-CSI clearance. Ia’. 1111 83-84. Mr. Bland
alleges that TS-CSI clearance generally was not required for his duties as a fraud
investigator, but rather would be a convenience if a need were to arise at a later point. Ia’.
1186.
2 On July 21, 201 l. FEMA management reassigned the authority to adjudicate security clearances for
FEl\/IA OCSO employees from the FEl\/IA Personnel Security Branch to the DHS Office of Chief Security
Ofticer ("DHS OSCO"). Am. Compl. 1157. l\/lr. Bland alleges that FEMA management first requested
that the FEl\/IA Personnel Security Branch revoke his clearance, but the Personnel Security Branch no
longer had authority over the matter. ]cz'. 1111 59-64.
ln November 201 1, FEMA administratively subpoenaed bank records from Mr.
Bland, his wife, and his previous consulting group; OIG also interviewed Mr. Bland
again in January 2012, well after l\/Ir. Bland alleges OIG was satisfied there was no basis
for allegations of bribery. la’. 1111 90~94. Mr. Bland resigned from FEMA on March 23,
2012. Ia’.11105.
On January 17, 2013, FEl\/IA issued its decision in response to Mr. Bland’s
administrative complaint, declining to find discrimination. Ia’. 1 12. Mr. Bland now
brings this action under Title Vll ofthe Civil Rights Act of 1964, codified at 42 U.S.C.
§ 2000e_ alleging FEl\/IA discriminated against him on the basis ofhis race. Id. 1111 1, 3.
He claims that FEl\/IA’S and DHS’s actions regarding the corruption investigation and
security clearance suspension were designed to create a pretext to force Mr. Bland, the
only senior Af``rican-American Special Agent in his unit, out of his job. Id. 1111 42-43, 75,
88.
Mr. Bland’s Amended Complaint alleges he suffered five adverse employment
actions, each styled as a different count: (1) Placement on Administrative Leave Based
on Bogus Criminal Allegations; (II) Management Attempts to Have Clearance Revoked;
(lll) Suspension of Security Clearance; (IV) Suspension from Employment; and (V)
Constructive Discharge. Am. Compl. He requests declaratory and injunctive relief,
including reinstatement of his position and TS-CSI security clearance, as well as
compensatory damages Am. Compl. at 13-14 (Prayer for Relief). Defendant moves to
dismiss the Amended Complaint as non-justiciable under Departmenr ofNavy v. Egcm,
484 U.S. 518 (1988). Def.’s l\/lot. to Dismiss.
4
STANDARD OF REVIEW
"A motion to dismiss claims as nonjusticiable is a motion to dismiss for lack of
jurisdiction pursuant to Federal Rule ofCivil Procedure 12(b)(1)." Burr)s-Ramz``rez v.
Napolz‘lano, 962 F. Supp. 2d 253, 255 (D.D.C. 2013). As such, the Court construes
plaintiffs Amended Complaint liberally and grants plaintiff "the benefit of all inferences
that can be derived from the facts alleged." Barr v. Clz``ntorz, 370 F.3d 1196, 1199 (D.C.
Cir. 2004) (internal quotation marks omitted). However, the plaintiff bears the burden of
demonstrating thatjurisdiction exists. Klzaa'r v. Urzitecl States, 529 F.3d 1112, 1115 (D.C.
Cir. 2008)
ANALYSIS
The President, pursuant to his Article ll power as Coinmander-in-Chief, has the
"authority to classify and control access to information bearing on national security,” and
has delegated that authority to executive agencies through a series of Executive Orders.
Egan, 484 U.S. at 527-28. Thus, "the grant of security clearance to a particular
employee, a sensitive and inherently discretionary judgment call, is committed by law to
the appropriate agency of the Executive Branch." Id. at 527. The agency at issue must
have "broad discretion to determine who may have access to" classified information, and
its "predictive judgments" cannot be subject to review by a non-expert body. Icl. at 529;
see also z``a’. at 527 (explaining that the "strong presumption" in favor of judicial review of
administrative decisions "runs aground when it encounters concerns of national
security.").
Thus, federal courts do not have the authority to adjudicate cases that would
require the fact-finder to second-guess the propriety of an agency’s security clearance
decisions. This includes Title Vll actions when the agency asserts that an adverse
employment action resulted from a security clearance decision. See Ryan v. Reno, 168
F.3d 520, 523 (D.C. Cir. l999). ln order for a court to find that discrimination or
retaliation, rather than an agency’s stated security clearance concerns, was the reason for
an adverse employment action, the court would have to inquire into and pass judgment on
the validity of the agency’s security determinations, which Egan does not permit the
court to do. Ia’. at 523-24. This is true "‘[e]ven when the court faces independent
evidence of a discriminatory motive, [because] it is still necessary to weigh the validity of
the defendant’s proffered reasons when deciding if they are pretextual." Ia’. at 524
(quoting Brazz'l v. U.S. Dep’t ofNavy, 66 F.3d 193, 197 (9th Cir. 1995)).
A. Count I
To begin, the Court dismisses Count 1 of the Amended Complaint for failure to
state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6); Def. Mot. at
8 n.2. A plaintiff must plead that he suffered an adverse employment action in order to
state a Title Vll discrimination claim. See Taylor v. Small, 350 F.3d 1286, 1292 (D.C.
Cir. 2003). ln Count l, l\/Ir. Bland alleges that he was placed on administrative leave
because of the investigation into the bribery accusations. Am. Compl. 1111 23-45.
Unfortunately for Mr. Bland, being placed on paid administrative leave is not an adverse
employment action sufficient to allege a Title Vll discrimination claim, and Count 1 must
be dismissed accordingly.3 See Brown v. Georgetown Univ. Hosp. Meclstar Heallh, 828
F. Supp. 2d l, 9 (D.D.C. 201 1) (collecting cases).
B. Counts II, III, IV, and V
l\/lr. Bland’s remaining claims implicate FEMA and DHS’s decisions regarding
l\/lr. Bland’s security clearance. Count ll challenges FEMA management’s requests that
security personnel reconsider Mr. Bland’s clearance, Count 111 challenges the suspension
of l\/lr. Bland’s TS-CSI clearance, Count lV challenges l\/lr. Bland’s suspension from
work based on his lack of clearance, and Count V challenges whether Mr. Bland was
constructively discharged as a result of, among other things, his security clearance
suspension. Am. Compl. 111 46-105. This court does not havejurisdiction to review
these claims under Egan, Ryan, and their progeny. Despite Mr. Bland’s efforts to divide
his challenge up into separate counts, all four would require the court to question the
validity of the same security clearance suspension, which it may not do.
Beginning with the clearest application of Egan, review ofCount lll_the security
clearance suspension itself-certainly would involve an inquiry into the security concerns
that led DHS OSCO to suspend Mr. Bland’s clearance. This implicates the predictive
judgments of trained security personnel, as forbidden by Egan. 1ndeed, Mr. Bland
requests that the court reinstate his Top Secret security clearance. Am. Compl. at 13-14
(Prayer for Relief).
3 ln his initial Complaint, l\/lr. Bland made clear that he was placed on administrative leave with pay.
Compl. 124 [Dkt. #11. Further, it should be noted that although Counts Il-V may implicate either
discrimination, retaliation, or both, Count 1 is a discrimination claim only. Am. Compl. 11 14-45; see also
ia’. at 1 47 (alleging retaliation only after being placed on administrative leave).
7
1n Count IV, Mr. Bland admits that his employment suspension was predicated on
the suspension of his security clearance. Am. Compl. 11 84. "[U]nder Egan an adverse
employment action based on denial or revocation of a security clearance is not actionable
under Title Vll." Ryon, 168 F.3d at 524. Review of Count 1V as alleged by plaintiff also
would require the court to second-guess the agency’s judgment as to what security
clearance was required for the job. See Am. Compl. 1 87 ("At the time the agency
suspended l\/lr. Bland without pay, it did not believe Mr. Bland required a Top Secret
security clearance in order to perform the duties of his job.").
Similarly, Count V involves the "circumstances under which" Mr. Bland’s
security clearance was suspended and cannot be reviewed. See Hall v. U.S. Dep ’z of
Lal)or, 476 F.3d 847, 853 (10th Cir. 2007). ln Count V, Mr. Bland claims he was
constructively discharged. Am. Compl. at 1 1. "An actionable constructive discharge
claim requires a showing that (1) intentional discrimination existed, (2) the employer
deliberately made working conditions intolerable, and (3) aggravating factors justified the
plaintiffs conclusion that []he had no option but to end [his] employment." Lewz's v.
Dl'strl``cl ofCo/urnl)z``a, 653 F. Supp. 2d 64, 81 (D.D.C. 2009).
l\/lr. Bland alleges a number of bases to support his claim that FEMA’s actions
were aimed so that "he would be induced to resign." Am. Compl. 1 90-105. Some ofthe
actions. such as "suspending [Mr. B1and] from the payroll," z``cl. 1 97, clearly are related to
the agency’s security clearance decision, as described above. And all of the facts alleged
for the first time in Count V occurred after Mr. Bland’s security clearance was
suspended. Iol. 11 90-105. DHS OSCO had proposed to revoke Mr. Bland’s security
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clearance when it made the initial suspension decision, but the security clearance was not
revoked prior to Mr. Bland’s resignation (and still has not been revoked). Id. 11 77, 81.
Therefore, any new events alleged in Count V took place while DHS OCSO was
considering whether to revoke permanently Mr. Bland’s clearance. To determine
whether the facts alleged in Count V related to a security clearance investigation or
decision, this Court would have to review the basis for DHS OCSO’s security clearance
decisions which it cannot do. Review of Count V, therefore, also is barred by Egan and
its progeny.
Count ll is slightly more complicated, because it arises out of the actions of
FEMA management, not trained security personnel making predictive judgments Our
Circuit has held that a court may, under certain circumstances review Title Vll
discrimination claims involving employees who report security concerns but are not
themselves the trained personnel who make the security clearance determinations
Rarrz'gan v. Holder, 689 F.3d 764, 768 (D.C. Cir. 2012) ("Egan’s absolute bar onjudicial
review convers security clearance-related decisions made by trained Security Division
personnel and does not preclude all review of decisions by other FBI employees who
merely report security concerns."). However, because the specter of discrimination
liability could chill reports of information that those charged with making security
judgments may find relevant, this review is limited to discrimination claims based on
knowingly false reporting, so as "to protect the integrity of the [agency’s] security
clearance-related responsibilities" Id. at 770-71.
ln Count 11. l\/lr. Bland does not allege that FEMA management employees raised
concerns they knew to be false, as would be required to be eligible for review under
Rattzgan. 689 F.3d at 770. lndeed, l\/lr. Bland does not dispute that the crime FEMA
management was concerned about actually took place. Am. Compl. 11 67-69. In further
contrast to Ralrz``gan, in which the ultimate security decision was favorable to the plaintiff,
see 689 F.3d at 766, here, DHS OSCO suspended Mr. Bland’s clearance.‘l Therefore, this
case does not present circumstances under which this Court may review the claim alleged
in Count 11.
CONCLUSION
Thus, for all the foregoing reasons, defendant’s l\/Iotion to Dismiss [Dkt. #22] is
hereby GRANTED and plaintiffs claims are DISMISSED. An appropriate order shall
accompany this l\/lemorandum Opinion. 7
l
RICHARDQ. L oN
United States District Judge
4 Defendant argues that Egan does not prohibit review of constitutional claims Opp’n to l\/lot. to Dismiss
at 13-14 [Dl