Jamil v. Secretary, Dept. of Defense

• Decision Date: 03 August 1990
• Docket Number: No. 89-1511,89-1511
• Parties: 53 Fair Empl.Prac.Cas. 1354, 54 Empl. Prac. Dec. P 40,124, 5 Indiv.Empl.Rts.Cas. 1369 Basharat A. JAMIL, Plaintiff-Appellant, and Razia Jamil, his wife, Plaintiff, v. SECRETARY, DEPARTMENT OF DEFENSE, Defense Mapping Agency Hydrographic/Topographic Center, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1203

910 F.2d 1203

53 Fair Empl.Prac.Cas. 1354,

54 Empl. Prac. Dec. P 40,124,

5 Indiv.Empl.Rts.Cas. 1369

Basharat A. JAMIL, Plaintiff-Appellant, and Razia Jamil, his wife, Plaintiff, v. SECRETARY, DEPARTMENT OF DEFENSE, Defense Mapping Agency

Hydrographic/Topographic Center, Defendants-Appellees.

No. 89-1511.

United States Court of Appeals, Fourth Circuit.

Argued March 7, 1990.

Decided Aug. 3, 1990.

Anthony John DiSalvo Schmidt, Schmidt, Roth, Brennan & Carroccio, Rockville, Md., for plaintiff-appellant.

David Paul King, Office of the U.S. Atty., Baltimore, Md., argued (Breckinridge L. Willcox, U.S. Atty., Thomas F. O'Neil, III, Asst. U.S. Atty., Baltimore, Md., Thomas Fieberger, Asst. General Counsel, Defense Mapping Agency, Washington, D.C., on brief), for defendants-appellees.

Before MURNAGHAN, Circuit Judge, BUTZNER, Senior Circuit Judge, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.

FRANK A. KAUFMAN, Senior District Judge:

The Defense Mapping Agency (DMA) hired the appellant, Basharat Jamil, as a GS-11 mathematician in 1978. He obtained a "secret" security clearance shortly thereafter. In 1980 and 1983, his supervisors requested an increase in the level of his security clearance, but those requests were denied because Jamil, who is Asian-American, had relatives living abroad and was in default in connection with at least one student loan. During his employment, Jamil became an open critic of the Technical Director and argued that the DMA was wasting millions of dollars of the taxpayers' money. Jamil contends that because of his criticisms and general "whistleblowing" activities his immediate supervisor, Judy Davenport, and the Technical Director conspired to force him out of the DMA. He alleges that they assigned him menial jobs to force him to quit. When that failed, he contends that they decided to get his security clearance revoked as the safest way to get rid of him. ¹

The DMA revoked Jamil's security clearance on July 16, 1985, for "financial irresponsibility." Subsequently, he was removed on October 15, 1985, from federal service for failing to have a security clearance. He appealed to the Merit Systems Protection Review Board (MSPRB), but the Board upheld the agency's removal on November 13, 1989. 42 M.S.P.R. 327. Jamil appealed the Board's decision to the Federal Circuit. That appeal was still pending when this case was orally argued before us, but was dismissed by the Federal Circuit on March 29, 1990, for failure of Jamil to pay the docketing fee of that court.

On January 31, 1986, prior to the ruling by the MSPRB, Jamil filed the complaint in this case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq., in the United States District Court for the District of Maryland. ² He alleges that his supervisors and the Department of Defense discriminatorily revoked his security clearance and then removed him for failure to meet a condition of his employment--eligibility for a security clearance. He also alleges that the defendants failed to provide him with the procedural due process required by DMA's regulations and the United States Constitution. The district court granted summary judgment for the defendant on the basis of 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 district judge held that after Egan the only issues open to review are whether (1) Jamil's position required a security clearance; (2) in fact that clearance was denied; and (3) transfer to a nonsensitive position was feasible. The court found that the first two elements were not in dispute and that no transfer was necessary unless a prior policy requiring transfer existed, which in this case it did not. Jamil appeals that decision to this court. We affirm.

I.

Before turning to the claims presented by Jamil, we briefly review the Supreme Court's decision in Egan. Egan was denied a security clearance, and therefore a job, on the basis of his criminal history. Egan sought review of the merits of the denial from the MSPRB. The MSPRB held that the agency must specify the precise criteria used in its security clearance decisions and show that those criteria are rationally related to national security. In addition, the MSPRB determined that the agency is then required to prove the facts supporting denial in a particular case by a preponderance of the evidence. On review, the Supreme Court held that the MSPRB could not review the merits of the security clearance denial. Implicitly, that holding certainly also indicates that no court which is given authority to hear appeals from the MSPRB can reach such issues. Rather, in Egan, the Supreme Court indicated that the determination by an agency whether or not to grant an individual access to secret information lies inherently within the discretion of that agency and that therefore it is virtually impossible for the MSPRB or a court to review the exercise of such discretion by application of objective criteria. Thus, it is reasonable that " 'an agency head who must bear the responsibility for the protection of classified information committed to his custody should have the final say in deciding whether to repose his trust in an employee who has access to such information.' " 484 U.S. at 529, 108 S.Ct. at 825 (quoting Cole v. Young, 351 U.S. 536, 546, 76 S.Ct. 861, 868, 100 L.Ed. 1396 (1956)). The discretionary nature of the decision to withhold a security clearance combined with the constitutional delegation of the obligation to protect national security to the Executive Branch is such that neither the MSPRB nor a court of appeals, in review of the MSPRB, can be permitted "to intrude upon the authority of the Executive in military and national security affairs" absent specific authorization from Congress. 484 U.S. at 527-30, 108 S.Ct. at 823-25.

In Egan, writing for the majority, Justice Blackmun concluded that Congress has authorized the MSPRB to review only certain "adverse actions" which do not include the denial or revocation of a security clearance. 484 U.S. at 530, 108 S.Ct. at 825. Thus, while the MSPRB could review whether Egan was dismissed for cause, that review was limited to determining whether (1) Egan's security clearance had in fact been denied, (2) the security clearance was a requirement for his job and thus its denial was an appropriate cause for dismissal, and (3) a transfer to a nonsensitive position was feasible. Id.

In this appeal, Jamil concedes that the MSPRB and the courts cannot review the merits of the denial of his security clearance. Thus Jamil agrees that he may not, for example, argue that having relatives living abroad does not constitute enough of a risk to warrant revocation of a security clearance. Nevertheless, he insists that he should be able to challenge the revocation of his security clearance and his subsequent dismissal on the grounds that the defendants violated other substantive laws and/or failed to follow proper procedures. In that regard, Jamil presents three contentions. First, he claims that the denial of his clearance was merely a pretext for illegal discrimination based on his national origin and his "whistleblowing" activities. Second, he asserts that the defendants failed to follow the procedures required by their own regulations. Third, he takes the position that the denial and the dismissal deprived him of certain of his constitutional rights. In Egan the plaintiff presented a direct challenge to the merits of the denial of his security clearance. However, he did not assert any of the three specific challenges made by Jamil. In this appeal, we address each of those contentions in turn.

II.

Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice to discriminate against a government employee on the basis of race, color, religion, sex, or national origin. 42 U.S.C. Sec. 2000e-16. While Jamil is less than precise about the basis for his Title VII claim, it appears that he alleges discrimination on the basis of his national origin. We conclude that summary judgment in favor of the defendants on this claim was proper.

To begin with, Jamil did not proffer sufficient evidence to create a genuine issue of material fact to survive summary judgment. A Title VII claim must be analyzed in three stages. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The plaintiff must first make out a prima facie case of discrimination. Establishing a prima facie case shifts a burden of production to the defendant to present evidence of a legitimate, nondiscriminatory reason for the adverse action. If the defendant produces evidence of such a reason, then the plaintiff must show that the reason presented by the defendant is merely a pretext for discrimination. The plaintiff retains the ultimate burden of persuasion throughout the process. Assuming, without deciding, that Jamil has presented a prima facie case for discrimination on the basis of national origin, the defendants have produced a legitimate reason for his dismissal, namely that he no longer held the security clearance required for his job.

In addition, we note that nothing in the record indicates that the defendants sought to discriminate against Jamil on the basis of his national origin. In fact, the one person who Jamil claims received preferential treatment, Ms. Davenport, was also a member of the same protected minority to which Jamil belongs, namely Asian-American. The only evidence in the record of discrimination is found in an affidavit from a former co-worker of Jamil who claims to have overheard the Technical Director and Ms. Davenport conspiring to have his security clearance revoked to "discriminate against him" and to retaliate for his whistleblowing. The...