Foote v. Chu

• Citation: 928 F.Supp.2d 96
• Decision Date: 05 March 2013
• Docket Number: Civil Action No. 11–1351 (CKK).
• Parties: Ronnie FOOTE, Plaintiff, v. Dr. Stephen CHU, Secretary, U.S. Department of Energy, Defendant.
• Court: United States District Courts. United States District Court (Columbia)

928 F.Supp.2d 96

Ronnie FOOTE, Plaintiff,

v.Dr. Stephen CHU, Secretary, U.S. Department of Energy, Defendant.

Civil Action No. 11–1351 (CKK).

United States District Court,

District of Columbia.

March 5, 2013.

Ronnie Foote, Fort Washington, MD, pro se.

Daniel Wemhoff, Law Office of Daniel Wemhoff, Arlington, VA, for Plaintiff.

Claire M. Whitaker, United States Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, District Judge.

Plaintiff Ronnie Foote filed suit against Dr. Stephen Chu, in his official capacity as Secretary of the United States Department of Energy (“Defendant”), alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”). Presently before the Court is the Defendant's [39] Motion for Judgment on the Pleadings. The Defendant contends that the Plaintiff's claim is non justiciable insofar as it challenges a national security decision committed to the discretion of the Executive Branch. Upon consideration of the pleadings,¹ the relevant legal authorities, and the allegations in the Plaintiff's Complaint, the Court finds adjudication of the Plaintiff's claims would require the fact finder to review the merits of a national security decision. Accordingly, the Defendant's motion is GRANTED.

I. BACKGROUND

According to the Complaint, in August 2007, Plaintiff received a conditional offer of employment as an Emergency Operations Specialist with the Transportation and Emergency Control Center, part of the National Nuclear Security Administration (“NNSA”), located in Albuquerque, New Mexico. Compl., ECF No. [1], at 1. The NNSA is an agency within the Department of Energy responsible for, among other things “maintain[ing] and enhanc[ing] the safety, reliability, and performance of the United States nuclear weapons stockpile.” 50 U.S.C. § 2401(b)(3).

The offer of employment extended to the Defendant was conditioned on Plaintiff receiving a certification from the Human Reliability Program (“HRP”). Id. at 2. The Human Reliability Program (“HRP”), established pursuant to Executive Order 10450, “is a security and safety reliability program designed to ensure that individuals who occupy positions affording access to certain materials, nuclear explosive devices, facilities, and programs meet the highest standards of reliability and physical and mental suitability.” 10 C.F.R. § 712.1. HRP certification is a rigorous process, requiring, among other things, a high-level (“Q”) security clearance, annual security reviews, medical assessments, and random drug tests. 10 C.F.R. § 712.11. HRP certification must be renewed annually. Id.

Dr. Daniel Seagrave, Alternate Lead Psychologist for the National Nuclear Security Administration, administered the Plaintiff's psychological interview. Compl. at 2. Dr. Seagrave recommended that the responsible officials deny HRP certification for the Plaintiff. Id. The Plaintiff alleges Dr. Seagrave gave “intentionally false information” in his report to Dr. Anthony Traweek, Dr. John Sloan, and Dennis Reese, who ultimately denied Plaintiff's request for certification, causing the conditional offer of employment to be rescinded. Id. Specifically, the Plaintiff claims Dr. Seagrave lied about certain answers Plaintiff gave during his interview, improperly contacted Plaintiff's former supervisor, and concocted allegations that Plaintiff was reprimanded while serving in the United States Air Force. Id. at 4. Plaintiff alleges Dr. Seagrave's actions were motivated by Plaintiff's race. Id. at 7–8.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings “[a]fter the pleadings are closed—but early enough not to delay trial.” The standard for reviewing a motion for judgment on the pleadings is “virtually identical” to that applied to a motion to dismiss for failure to state a claim under Rule 12(b)(6). Baumann v. District of Columbia, 744 F.Supp.2d 216, 221 (D.D.C.2010). Because a Rule 12(c) motion “would summarily extinguish litigation at the threshold and foreclose the opportunity for discovery and factual presentation,” the district court must approach such motions “with the greatest of care” and deny it “if there are allegations in the complaint which, if proved, would provide a basis for recovery.” Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C.Cir.1987), abrogated on other grounds by Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). The Court is limited to considering the facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the Court may take judicial notice, and matters of public record. Baumann, 744 F.Supp.2d at 222.

III. DISCUSSION

Relying on the Supreme Court's decision in Department of Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), the Defendant moves for judgment on the pleadings on the grounds that Title VII claims arising from the denial of an HRP certification are non justiciable. The Plaintiff contends that the HRP certification at issue was a suitability determination, not a security clearance, and thus falls outside the scope of Egan and its progeny. Although the Plaintiff is correct that the HRP certification is not a security clearance, that distinction is not dispositive under Egan. At its core, the Plaintiff's Complaint challenges the merits of the Defendant's predictive judgment that the Plaintiff did not meet the standards of reliability and security necessary for employment in a position involving the United States nuclear weapons program. Semantics aside, the Plaintiff's claim is barred by Egan.

A. Department of Navy v. Egan and Subsequent Cases

In Egan, the Supreme Court considered whether the Merit Systems Protection Board had the authority to review the substance of an underlying decision to deny or revoke a security clearance. The Court concluded that the Board lacked such authority, for two primary reasons. First, “predictive judgments” of the kind involved in denying or revoking a security clearance “must be made by those with the necessary expertise in protecting classified information.” 484 U.S. at 529, 108 S.Ct. 818. “The general standard is that a clearance may be granted only when clearly consistent with the interests of the national security.” Id. at 528, 108 S.Ct. 818 (citation omitted). “[I]t 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.” Id. at 529, 108 S.Ct. 818. Second, the Court noted that the standard of review employed by the Board, a preponderance of the evidence, is seemingly inconsistent with standard by which security clearances are granted, that is, “clearly consistent with the interests of national security.” Id. at 531, 108 S.Ct. 818.

Courts subsequently extended Egan to bar claims under Title VII arising from the denial of a security clearance, noting district courts cannot proceed with discrimination actions under the burden shifting scheme of McDonnell Douglas “without reviewing the merits of [the agency's] decision not to grant a clearance.” Ryan v. Reno, 168 F.3d 520, 523–24 (D.C.Cir.1999); see also Beattie v. Boeing Co., 43 F.3d 559 (10th Cir.1994) (finding Egan barred a Bivens action against a private employer arising from the denial of a security clearance necessary to access the area in which Air Force One was under construction).

Extension of Egan to bar decisions other than the denial or revocation of a security clearance has proved more controversial.The D.C. Circuit recently addressed whether the plaintiff could pursue a Title VII claim on the basis of allegations that an employee of the FBI reported unfounded security concerns to the FBI's Security Division, prompting an investigation into the plaintiff's continued eligibility for a security clearance. Rattigan v. Holder, 689 F.3d 764, 765 (D.C.Cir.2012). Upon rehearing by the panel, the divided court ruled that Egan does not bar Title VII claims arising from the reporting of knowingly false information to the FBI's Security Division. ²Id. at 767;but see Becerra v. Dalton, 94 F.3d 145, 149 (4th Cir.1996) (holding that Egan barred judicial review of Title VII claims arising from the “instigation of the investigation into [a] security clearance”).

The Defendant cites to the Federal Circuit's decision in Berry v. Conyers, 692 F.3d 1223 (Fed.Cir.2012), in support of his position, which held that Egan prevents the Merit Systems Protection Board from reviewing any decision regarding the eligibility of an employee for “sensitive” positions, regardless of whether the position requires access to classified information. Id. at 1225. On January 14, 2013 (after the Defendant filed his Reply), the Federal Circuit granted rehearing en banc and vacated the decision on which the Defendant relies. Berry v. Conyers, 497 Fed.Appx. 64 (Fed.Cir.2013).

Although several cases have tangentially involved suitability determinations in the context of Egan, none of the cases are directly on point. The D.C. Circuit noted in Bennett v. Chertoff, 425 F.3d 999 (D.C.Cir.2005), that national security issues and suitability determinations are not mutually exclusive considerations. Id. at 1003. However, the Bennett court did not reach the issue of whether certain (or all) suitability determinations are unreviewable under Egan. Rather, the dispositive question before the court was whether the defendant could assert the plaintiff was terminated because she was unable to sustain a security clearance, even though the original stated basis for her termination was a negative suitability determination. Id. at 1001. The court found TSA could properly raise the denial of the plaintiff's security clearance as grounds for her termination, and affirmed dismissal of the...