Toy v. Holder

• Decision Date: 29 April 2013
• Docket Number: No. 12–20471.,12–20471.
• Parties: Bobbi–Anne TOY, Plaintiff–Appellant. v. Eric H. HOLDER, Jr., Attorney General, United States Department of Justice, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

714 F.3d 881

Bobbi–Anne TOY, Plaintiff–Appellant.

v.Eric H. HOLDER, Jr., Attorney General, United States Department of Justice, Defendant–Appellee.

No. 12–20471.

United States Court of Appeals,Fifth Circuit.

April 29, 2013.

David Charles Holmes, Houston, TX, for Plaintiff–Appellant.

Kenneth Lee Shaitelman, Julie Nayar Searle, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Defendant–Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before REAVLEY, JOLLY, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Bobbi–Anne Toy, a contract FBI employee, sued the Attorney General (“the government”) under Title VII of the Civil Rights Act of 1964, alleging sex discrimination and retaliation. She claimed that the FBI had revoked her access to its offices as a result of discriminatory animus. The government moved to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and for summary judgment, arguing that the national security exception to Title VII precluded Toy's claims. The district court dismissed, and we affirm.

I.

For a Rule 12(b)(6) dismissal, we take plausible facts alleged in the complaint as true. See In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007). Toy was employed by independent contractorDynCorp to work as a data and intelligence analyst at the FBI's regional office in Beaumont. While there, she received numerous commendations and positive reviews. She also applied for direct employment with the FBI and was given a conditional offer of employment.

Things changed, however, when the director of the Beaumont office was replaced by Brett Davis. Toy alleged that Davis was “abrasive,” “had problems with women,” and wished to fire her. Davis eventually wrote a memo in which he outlined various complaints regarding Toy, primarily that she had participated in undercover operations despite lacking approval to do so and had falsely held herself out as an FBI employee. The government's motion for summary judgment outlined additional complaints, including Toy's improper use of FBI computers to install software and purchase unapproved items, her use of other employees' passwords to access computers, and her alleged romantic involvement with the son of the target of an investigation.

Toy denied all of those allegations. Based on Davis's memo, however, Toy's direct supervisor revoked her access to the Beaumont office and purported to revoke her security clearance as well.

DynCorp then terminated Toy's employment. Her conditional offer of employment was revoked after individuals from the Beaumont office, including her direct supervisor and Davis, provided negative references and recommended that her background investigation be terminated. Toy filed a complaint with an Equal Employment Opportunity Commission counselor and eventually sued.

II.

We review dismissal under Rule 12(b)(6)de novo, “accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff.” Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir.2010) (internal quotation marks omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” ¹

III.

Title VII makes it unlawful for an employer to engage in certain employment practices, which includes “discharg[ing] any individual ... because of such individual's ... sex.” 42 U.S.C. § 2000e–2(a)(1). Toy claims that her building access revocation amounted to discharge and that it was motivated by her sex.

Title VII, however, provides an exception where employment actions are based on national-security considerations. Under subsection (g), it is not an unlawful employment practice

for an employer to discharge any individual from any position ... if—

(1) the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President; and (2) such individual has not fulfilled or has ceased to fulfill that requirement.

Id. § 2000e–2(g).

In addition to this explicit statutory exemption for cases of national security, the Executive Branch has broad power to determine whether to grant or revoke access to secure information. In Dep't of Navy v. Egan, 484 U.S. 518, 529, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), the Court held that “the protection of classified information 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.” For this reason, courts may not review decisions to grant access to sensitive information made by the executive. Id. This maxim derives from the Constitution's grant of presidential authority, which includes “authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information.” Id. at 527, 108 S.Ct. 818.

Though Egan arose in the context of the Merit Systems Protection Board, we have applied it in the context of Title VII. In Perez v. F.B.I., 71 F.3d 513, 514–15 (5th Cir.1995), we held that examination of “legitimacy and the possibly pretextual nature of the FBI's proffered reasons for revoking [an] employee's security clearance” in a Title VII challenge would be “an impermissible intrusion by the Judicial Branch into the authority of the Executive Branch over matters of national security.” We therefore did not have jurisdiction to consider the Title VII claims. Id. at 515.²

The district court focused primarily on the constitutionally derived Egan national security exemption in holding that Toy's building-access revocation could not be examined by the court. That strategy follows the majority approach—it seems that no appellate court has addressed Title VII's explicit national-security exemption. Each previous case has revolved around some form of denial or revocation of a security clearance, which falls under Egan and is jurisdictional.³

Egan 's holding that security-clearance decisions could not be reviewed was premised on necessary “[p]redictive judgment[s]” that must be made in relation to security clearances and the “necessary expertise” that agencies have in making them. Egan, 484 U.S. at 529, 108 S.Ct. 818. The Navy had provided Egan with several layers of consideration and review related to his security clearance. That process, coupled with the necessity of the judgments and the agency's expertise, led the Court to conclude that it could not review the security decisions.

The district court concluded, and the government urges us to affirm, that a security clearance is essentially identical to building access and that other courts have expanded Egan beyond security clearances. The government cites Brazil v. United States Department of Navy, 66 F.3d 193 (9th Cir.1995) as an example of that court's expanding the meaning of the national security exemption beyond security clearances to cover a separate certification program. That opinion, however, is unhelpful, because the court treated a certification program as a security clearance only because the parties had agreed to treat it as such.⁴

The government also cites Becerra v. Dalton, 94 F.3d 145, 148 (4th Cir.1996), in which the court held that the instigation of an investigation of a security clearance, rather than revocation, was covered under Egan 's national-security exemption. The plaintiff had claimed that the investigation of his suitability for a security clearance was impermissibly retaliatory, but the court held that the investigation was tied to the clearance and thus was covered under Egan. Id. Again, that case is unhelpful because of the inextricable connection to security-clearance determinations.

Finally, the government cites Beattie v. United States, 949 F.2d 1092, 1095 (10th Cir.1991), in which the plaintiff had been denied access to the Air Force One secured area and thereafter was terminated. The court did not decide whether revocation of access to the premises was akin to a revocation of a security clearance under Egan—it only hinted at that in dictum.⁵

None of the cases cited by the government is particularly persuasive. No court has extended Egan beyond security clearances, and we decline to do so. Security clearances are different from building access; security-clearance decisions are made by specialized groups of persons, charged with guarding access to secured information, who must make repeated decisions. ⁶ There is also significant process involved in granting security clearances,⁷ the kind of process that allows agencies to make the deliberate, predictive judgments in which they specialize.

That is not the case, as aptly demonstrated here, where building access is concerned. Building access may be revoked, as in this case, by a supervisor, someone who does not specialize in making security decisions. An FBI security clearance, on the other hand, may be granted or revoked only by the FBI's Security Division, a group that specializes in making security-clearance decisions and to which authority to make those decisions is explicitly delegated by the director.⁸ A lack of oversight,process, and considered decision-making separates this case from Egan, which therefore does not bar Toy's suit.⁹

Subsection (g), however, does: Its plain language creates an exception to Title VII where granting “access to the premises” of a secure location is related to national security. 42 U.S.C. § 2000e–2(g). Access must be “subject to any requirement...