Campbell v. McCarthy

• Decision Date: 05 March 2020
• Docket Number: No. 18-1890,18-1890
• Citation: 952 F.3d 193
• Parties: Walton CAMPBELL, Plaintiff – Appellant, v. Ryan D. MCCARTHY, Secretary of the Army, Defendant – Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

952 F.3d 193

Walton CAMPBELL, Plaintiff – Appellant,

v.Ryan D. MCCARTHY, Secretary of the Army, Defendant – Appellee.

No. 18-1890

United States Court of Appeals, Fourth Circuit.

Argued: December 10, 2019

Decided: March 5, 2020

ARGUED: Nina Yuanyuan Ren, KALIJARVI, CHUZI, NEWMAN & FITCH, P.C., Washington, D.C., for Appellant. Sean Douglas Jansen, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: Richard R. Renner, KALIJARVI, CHUZI, NEWMAN & FITCH, P.C., Washington, D.C., for Appellant. G. Zachary Terwilliger, United States Attorney, Lauren A. Wetzler, Chief, Civil Division, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before KING, AGEE, and RICHARDSON, Circuit Judges.

Vacated and remanded by published opinion. Judge King wrote the opinion, in which Judge Agee and Judge Richardson joined. Judge Richardson wrote a separate concurring opinion.

KING, Circuit Judge:

Plaintiff Walton Campbell, a civilian employee of the Army Corps of Engineers, initiated this civil action against the Secretary of the Army (the "Army") challenging the Army’s decision to suspend him from his employment pending review of his security clearance.¹ In his operative complaint, Campbell alleges three claims: a claim under Title VII of the Civil Rights Act of 1964 (the "Title VII claim"), a claim under the Age Discrimination in Employment Act of 1967 (the "Age claim"), and a claim under the Whistleblower Protection Act of 1989 (the "Whistleblower claim"). After dismissing without prejudice the Whistleblower claim for failure to exhaust administrative remedies, the district court awarded summary judgment to the Army on the Title VII and Age claims. Shortly thereafter, the court denied Campbell’s motion to alter or amend judgment. Campbell has appealed and, as explained below, we are satisfied that the Supreme Court’s decision in Department of the Navy v. Egan , 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), deprived the district court of jurisdiction to review any of Campbell’s claims. We therefore vacate and remand for dismissal.

I.

On July 27, 2004, Walton Campbell began working as a physical scientist at the Topographic Engineering Center, a laboratory of the Corps of Engineers’ Engineer Research and Development Center.² Located adjacent to Fort Belvoir in Alexandria, the Topographic Engineering Center develops "products that could improve the U.S. Army’s warfighting capabilities," and physical scientists employed there must maintain a top secret security clearance with sensitive compartmented information access. See J.A. 127.³ Because of the classified nature of its work, the Topographic Engineering Center is a "restricted area" subject to prohibitions against recording and photographic devices in certain sections thereof. And many Topographic Engineering Center employees work in the Center’s Sensitive Compartmented Information Facility, in which recording and photographic devices are prohibited entirely.

A.

Within months of starting his job, Campbell became embroiled in a workplace dispute with three of his coworkers. Because the escalation of that dispute resulted in the suspension of Campbell’s employment pending review of his security clearance by the Army’s Central Clearance Facility, we first relate the circumstances of that dispute.

1.

When Campbell began working at the Topographic Engineering Center, he did not possess a security clearance. As a result, he was assigned duties unrelated to his physical scientist position while his security clearance application was processed. During that time, Campbell was assigned to work on the Source Acquisition Team. Campbell’s first-level supervisor was then Mary Pat Santoro, the Chief of the Information Services Branch.

While he was assigned to the Source Acquisition Team, Campbell would regularly have lunch with three of his younger coworkers, Tish Kennan, Alana Hubbard, and Marty Downing. Kennan, Hubbard, and Downing wished, however, that Campbell would not socialize with them because his behavior made them uncomfortable. That was because, among other things, Campbell described himself as a person who often sought revenge and remarked that he knew how to construct bombs. Kennan, in particular, related that Campbell frequently paid her unwanted attention. Campbell would stare at her and refer to her as "Trouble." See J.A. 214. He also told Kennan that he had located information about her estranged husband on the internet and that he had driven through the neighborhood where she resided. On several occasions, Campbell had given Kennan unwanted gifts. For example, Campbell gave Kennan a battery cleaner after she commented that she needed to jump-start her car. And Campbell often followed Kennan around, "wait[ing] for [her] outside the bathroom" or "[standing] aside while [she] was having conversations with others so that he could follow [her] afterwards." Id. at 218.

On February 9, 2005, the Army granted Campbell a top secret security clearance with sensitive compartmented information access. Campbell’s security clearance thus authorized him to access information that, if released, would result in "exceptionally grave damage to national security." See J.A. 196. That security clearance also allowed Campbell to access the Sensitive Compartmented Information Facility, and his workspace was relocated therein. In accepting his security clearance, Campbell agreed to abide by certain conditions. Relevant here, Campbell agreed to report any change in his legal residence within seven days.

2.

Thirteen days later, on February 22, 2005, Campbell was transferred from the Source Acquisition Team to the Current Operations Team. As a result of this transfer, Charles Lopez, the Chief of the Terrain Analysis Branch, became Campbell’s first-level supervisor. And although Campbell no longer worked with Kennan, Hubbard, or Downing, he continued to visit them in the Source Acquisition Team’s workspace and to involve himself in their lunch plans. By the end of that week, on February 25, 2005, Campbell had worn out his welcome. That day, without invitation, Campbell went to the Source Acquisition Team’s workspace and watched Kennan and Hubbard as they worked. At one point, R. Paul Harwig — a Division Chief of the Topographic Engineering Center and Campbell’s second-level supervisor — entered the workspace and observed Campbell "sitting too close" to Kennan and Hubbard. See J.A. 197. When Kennan and Hubbard left to go to lunch, Campbell followed them. Hubbard recalled that "because of his disturbing behavior," they were too "scared" to tell Campbell that he was not welcome to join them for lunch. Id. at 216.

Following an unpleasant lunch outing to a Chili’s restaurant, Kennan and Hubbard reported their concerns about Campbell’s behavior to Division Chief Harwig. More specifically, they informed Harwig that they were planning to tell Campbell that "he could no longer go to lunch and that he could no longer follow [them] around [the Topographic Engineering Center], and that [they] did not want any more gifts from him." See J.A. 216-17. In response, Harwig asked the Current Operations Team Leader, Jeffrey Popp, to inform Campbell that he was no longer permitted in the Source Acquisition Team workspace, that he was not to distract Kennan and Hubbard from their work, and that he was to minimize his contacts with Kennan and Hubbard. Team Leader Popp relayed those instructions to Campbell on February 28, 2005.

3.

Shortly after meeting with Team Leader Popp, on March 7, 2005, Campbell sent an e-mail message entitled "Whistleblowing on aberrant staff behavior" to Topographic Engineering Center leadership, including Division Chief Harwig and Branch Chief Lopez. See J.A. 199-205. In that message and an accompanying attachment, Campbell denied any wrongdoing and made allegations concerning the "professionalism and mental stability of [Kennan and Hubbard], who hold current [sensitive compartmented information] clearances and have access to classified materials." Id. at 199. Regarding Kennan, Campbell claimed that her complaints about him were the result of a laundry list of "personal stresses." Id. at 199, 203-04. And Campbell painted Hubbard as a "disgruntled employee," who, during the lunch outing of February 25, 2005, complained "angr[ily] and openly" about having to train new employees (a complaint that Campbell surmised was "unusual for a proud mother of two") and used "vitriolic language" to describe her supervisor’s and a coworker’s professional competence. Id. Following an investigation into Campbell’s allegations, Harwig concluded that Campbell’s e-mail "was in retaliation as a result of having his feelings hurt and that his allegations [had] no merit." Id. at 208.

On the evening of March 9, 2005, after learning of Campbell’s allegations against her, Kennan reported to Branch Chief Santoro that Campbell’s behavior made her feel unsafe at work. And Kennan explained to Santoro that she no longer felt safe outside of work because Campbell had tried to follow her home from the Topographic Engineering Center that afternoon. Kennan related that, as she was driving home, she saw Campbell pull into traffic behind her. Believing that Campbell was following her, Kennan "purposefully made a series of turns to evade him" and returned to the Topographic Engineering Center to make her report to Santoro. See J.A. 209.

Division Chief Harwig and Branch Chief Lopez met with Campbell on March 10, 2005, and informed him that he was under investigation for misconduct related to his interactions with Kennan and Hubbard. On that occasion, Campbell was instructed to avoid all contact with Kennan and Hubbard and to relocate his workspace from the Sensitive Compartmented Information Facility to a less-restricted section of the Topographic Engineering Center. On the next day, March 11, 2005, Harwig, Lopez, Team Leader Popp, and the Topographic Engineering Center Chief of Security, Thomas Cain, met...