Thomas v. Napolitano

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BURT R. THOMAS,
Plaintiff,
v.
JEH JOHNSON, Secretary, U.S. Civil Action No. 13-359 (GK)
Department of Homeland
Security,
Defendant.
MEMORANDUM OPINION
Plaintiff Burt Thomas ("Thomas" or "Plaintiff") brings this
Title VII action against Jeh Johnson, the Secretary of the
Department of Homeland Security (the "Secretary" or
"Defendant"), claiming that he was removed from his position at
the Federal Emergency Management Agency ("FEMA" or "the Agency")
on the basis of his race.
This matter is before the Court on the Secretary's Motion
for Judgment on the Pleadings [Dkt. No. 19]. Upon consideration
of the Motion, Opposition [ Dkt. No. 22] , and Reply [ Dkt. No.
29], the entire record herein, and for the reasons stated below,
the Secretary's Motion is denied.
I. BACKGROUND 1
For purposes of this Motion, the facts can be stated
briefly. Plaintiff, who is African American, is an employee of
FEMA, a component of the Department of Homeland Security
("DHS"). Starting in February, 2011, Plaintiff held the
position of Chief Security Officer. Am. Compl. 703 F.3d 122, 130 (D.C. Cir. 2012). To
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survive the motion, a plaintiff need only plead "enough facts to
state a claim to relief that is plausible on its face" and to
"nudge[ [his or her] claims across the line from conceivable
to plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007). "[O]nce a claim has been stated adequately, it may
be supported by showing any set of facts consistent with the
allegations in the complaint." Id. at 563.
In deciding a Rule 12 (c) motion, a court "must assume all
the allegations in the complaint are true (even if doubtful in
fact) [and] must give the plaintiff the benefit of all
reasonable inferences derived from the facts alleged."
Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d
8, 17 (D.C. Cir. 2008) (quotation marks and citations omitted).
The Court "must not make any judgment about the probability of
the plaintiffs' success," id., and should grant a motion for
judgment on the pleadings only if it clear that "no material
fact is in dispute and [the movant] is entitled to
judgment as a matter of law." Peters v. Nat' 1 R.R. Passenger
Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992) (citations and
quotation marks omitted).
III. ANALYSIS
The Government contends that Plaintiff's Title VII claim is
not justiciable under Dep't of Navy v. Egan, 484 U.S. 518 (1988)
and its progeny. In Egan, the Supreme Court held that the
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Merits Systems Protection Board lacked the authority to review
the Navy's decision to deny a security clearance to a naval
employee because "no one has a 'right' to a security clearance"
and "predictive judgments" involved in making security clearance
determinations "must be committed to the broad discretion of the
agency responsible" for making such a determination. 484 u.s.
at 824, 25.
Relying on Egan, our Court of Appeals has held that
"[b] ecause the authority to issue a security clearance is a
discretionary function of the Executive Branch and involves the
complex area of foreign relations and national security,
employment actions based on denial of security clearance are not
subject to judicial review." Bennett v. Chertoff, 425 F.3d 999,
1003 (D.C .. Cir. 2005); see also Oryszak v. Sullivan, 576 F.3d
522, 526 (D.C. Cir. 2009) (Ginsberg, J., concurring) ("We have
held that actions based upon denial of security clearance .
are beyond the reach of judicial review.") ( citations omitted) .
This is true even if the employee claims, under Title VII, that
the security clearance decision was racially motivated.
e.g., Ryan v. Reno, 168 F.3d 520, 524 (D.C. Cir. 1999) (" [A]n
adverse employment action based on denial or revocation of a
security clearance is not actionable under Title VII.").
The Secretary argues that these cases require the dismissal
of Plaintiff's case. The Court disagrees. Each of the cases
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cited involved an adverse employment action directly predicated
on an unfavorable security clearance determination, such that
adjudicating the plaintiff's employment claim necessarily
required a merits review of the underlying security clearance
decision.
In contrast, Plaintiff's demotion is not alleged to have
been "based on" any decision regarding his eligibility for a
security clearance. Instead, Plaintiff alleges that he was
demoted based on (among other things) his purported violation of
a general policy governing the activities of employees whose
clearances have not yet been finalized. Our Court of Appeals
has stated that:
We do not believe that Egan insulates f.rom Title VII
all decisions that might bear upon an employee's
eligibility to access classified information. Rather,
the Court in Egan emphasized that the decision to
grant or deny security clearance requires a
"[p] redictive judgment" that "must be made by those
with the necessary expertise in protecting classified
information."
Rattigan v. Holder, 689 F.3d 764, 767 (D.C. Cir. 2012)
(emphasis in original) (citation omitted).
Resolving Plaintiff's Title VII claim, as it is alleged in
the Amended Complaint, does not require the Court to review the
validity of any "predictive judgment" made "by those with the
necessary expertise in protecting classified information." Id.It merely requires a consideration of whether similarly situated
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employees were treated the same under the relevant policies, a
consideration that lies squarely within the Court's Title VII
jurisdiction. 3 Accordingly, Egan and its progeny do not preclude
judicial review of Plaintiff's claim as a matter of law. 4
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion is denied.
An Order shall accompany this Memorandum Opinion.
January 16, 2013
United States District Judge
Copies to: attorneys on record via ECF
3
The Secretary contends that Plaintiff was removed from his post
based on his "malfeasance in granting [Walker and Bland] interim
security clearances[.]" Def.'s Mot. at 1. Even if it were true
that Plaintiff granted such clearances in the first instance,
which Plaintiff disputes, Pl.'s Opp'n at 3, our Court of Appeals
has held that Egan applies only to security clearance decisions
made by "trained Security Division personnel," Rattigan, 689
F. 3d at 768 (emphasis added) . It is not alleged that Plaintiff
falls into this category.
4
The Secretary also suggests that Plaintiff's claim of
procedural irregularities has no legal basis. Def. 's Mot. at
16-17. However, it is clear that Plaintiff seeks relief on the
basis of his demotion and proffers the procedural irregularities
merely as evidence that he was treated differently from
similarly-situated white employees. See Am. Compl. at Count II
(Demotion).
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