Makky v. Chertoff

• Citation: 489 F.Supp.2d 421
• Decision Date: 31 May 2007
• Docket Number: Civil Action No. 06-4329 (JEI).
• Parties: Dr. Wagih H. MAKKY, Plaintiff, v. Michael CHERTOFF, Secretary of the Department of Homeland Security, in his official capacity; Kip Hawley, Director, Transportation Security Administration, in his official capacity; Department of Homeland Security; Transportation Security Administration; Office of Personnel Management; and Federal Bureau of Investigation, Defendants.
• Court: U.S. District Court — District of New Jersey

489 F.Supp.2d 421

Dr. Wagih H. MAKKY, Plaintiff, v. Michael CHERTOFF, Secretary of the Department of Homeland Security, in his official capacity; Kip Hawley, Director, Transportation Security Administration, in his official capacity; Department of Homeland Security; Transportation Security Administration; Office of Personnel Management; and Federal Bureau of Investigation, Defendants.

Civil Action No. 06-4329 (JEI).

United States District Court, D. New Jersey.

May 31, 2007.

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Seton Hall University School of Law, Center for Social Justice, Newark, NJ, by Baher Azmy, Esq., Joseph Farano, Clinic Student, Jesse Ehnert, Clinic Student, Alexandra Pitney, Clinic Student, for Plaintiff.

U.S. Department of Justice, by Steven Yale Bressler, Esq., Washington, DC, Christopher Christie, United States Attorney, by Yanet Perez Noble, Esq., Newark, NJ, for Defendants.

OPINION

IRE NAS, Senior District Judge.

This is an employment discrimination suit filed by Dr. Wagih H. Makky ("Dr Makky"), a former employee of the Transportation Security Administration ("TSA"). Dr. Makky, an American citizen of Egyptian descent who is an Arab and a Muslim, asserts that he was subjected to persistent prejudice and derogatory comments on account of his national origin and religion, in violation of Title VII, 42 U.S.C. § 2000e-16(a), and the Civil Service Reform Act of 1978 ("CSRA"), 5 U.S.C. 2303(b). Specifically, Dr. Makky claims employment discrimination under Title VII (Count One); employment discrimination under the CSRA (Count Two); violation of the procedural due process protections of the Fifth Amendment (Count Three); violation of agency procedures under the CSRA (Court Four); retaliation under the CSRA (Count Five); violation of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(a)(3)(A) (Count Six); and violation of the Privacy Act, 5 U.S.C. § 552a(d)(1) (Count Seven).

Defendants move to dismiss Counts One, Two and the claim of discriminatory bias in Count Three of the Complaint for lack of subject matter jurisdiction. Defendants move for summary judgment on all other counts.

I.

In 1978, Dr. Makky moved to the United States from Egypt. He married a U.S. citizen in 1981, and received a Ph.D. in 1983. In 1987 he became a U.S. citizen. Prior to working for the TSA, Dr. Makky was an Associate Professor at the University of Illinois, and a scientist at government research facilities and at the Naval Oceans Systems Center. On September 28, 1990, Dr. Makky was hired by the Federal Aviation Administration ("FAA"), as an Electronics Engineer in the Aviation Security Research and Development Lab in Atlantic City. (Def.Exh.4, 1).¹ He was given a "secret" level security clearance.²

In March, 2002, approximately six months after September 11th, Dr. Makky submitted a routine security clearance renewal.³ The following October, 2002, Mr. Robin Burke became the Deputy Administrator in charge of the Security Lab, and thus, Dr. Makky's supervisor. (Compl.42). On his initial visit to the Security Lab, Mr. Burke met with only one non-supervisory employee individually — Dr. Makky. In that meeting, Mr. Burke allegedly asked Dr. Makky about his national origin, and thereafter inquired into Dr. Makky's security clearance renewal application, including obtaining Dr. Makky's FBI file in early 2003.

On March 19, 2003, Dr. Makky was placed on administrative leave. (Def.Ex.8, p. 2). On March 28, 2003, Mr. Burke, on behalf of the TSA, sent Dr. Makky a letter indicating that he was placed on paid administrative leave due to questions concerning his security clearance. (Def.Ex.4, 3). That August, Mr. Burke asked Dr Makky to submit another security clearance renewal. Dr. Makky complied.

While it is unclear from the record what occurred during the interim, on January 19, 2005,⁴ the Office of Transportation, Vetting & Credentials ("OTVC") issued an Initial Determination to Dr. Makky notifying him that a non-final determination was made that his access to National Security Information was denied. (Def.Ex.4, 4). The letter was sent from Joy S. Fairtile, Associate Deputy Director of the OTVC, and listed the specific findings made by the OTVC that supported its decision.⁵ (Def.Ex.5).

Upon Dr. Makky's request, the Office of Personnel Management ("OPM") granted him access to 136 pages of his 148-page background investigation file upon which the initial determination was based. (Baker Supp. Decl., 8). The OPM referred ten additional pages to the FBI for review, as these documents originated with the FBI. (Id. at 10). The FBI ultimately granted Dr. Makky access to seven pages with redactions, and withheld three pages. (Def.Ex.10, p. 3). Another document, labeled a "processing document" and solely containing personal information about Dr. Makky, including his date of birth, social security number, height, weight, etc., was not disclosed until March 27, 2007. (Baker Supp. Decl., 11 and attachment). The final document, a generic cover sheet for documents containing national security information deemed "secret" was not disclosed because it was not part of Dr. Makky's background investigative file and thus not responsive to his document request. (Id. at 12).

On April 18, 2005, Dr. Makky responded to the Initial Determination in writing. (Def.Ex.4, 5). The OTVC, in turn, sent Dr. Makky a Notice of Proposed Suspension for an Indefinite Period on August 8, 2005, for failure to maintain eligibility for access to national security information. (Def. Ex. 4, 6; Def. Ex. 8). This notice informed him of the proposal that he be suspended indefinitely without pay pending a final determination because it was a condition of his employment that he have a top secret security clearance. On August 24, 2005, Makky responded in writing, through counsel, to the August 8 Notice. (Def.Ex.4, 7). He also responded orally, through a presentation to TSA officials including Mr. Burke. (Id.). On September 7, 2005, the OTVC imposed the suspension for an indefinite period, effective as of September 8, 2005. (Def. Ex. 4, 8; Def. Ex. 9). The decision was signed by Mr. Burke. (Def.Ex.9).

In further response to the Initial Determination, Dr. Makky made an oral presentation on December 16, 2005, (Def.Ex.4, 5), and submitted an additional written response to the Initial Determination on December 27, 2005.(Id.). On March 7, 2006, the TSA issued a Final Denial of Security Clearance, upholding its initial decision to deny security clearance.⁶ (Def.Ex.6). It was signed by Douglas I. Callen, Chief Security Officer. (Id.). On August 18, 2006, DHS sent Dr. Makky a letter indicating that the DHS Security Appeals Panel unanimously concluded that he did not meet the standard for access to classified information. (Def.Ex.7).

Dr. Makky appealed his suspension to the Merit Systems Protection Board ("MSPB" or "the Board") on October 5, 2005. (Def.Ex.1). Administrative Judge Michael H. Garrety ("AJ Garrety") held a hearing on January 13, 2006, and on April 4, 2006, issued an Initial Decision that affirmed the Department of Homeland Security's actions. (Id.). On May 9, 2006, Dr. Makky petitioned the full Board for a review of the AJ's decision. (Compl.101). The Board denied Dr. Makky's petition on August 15, 2006, and adopted the AJ's decision as the final decision of the Board. (Compl.102). On September 14, 2006, Dr. Makky commenced this action.

II.

This Court has jurisdiction to review the determinations of the MSPB because this is a "mixed case," one that contains allegations of employment discrimination as well as claims of procedural violations. 5 U.S.C. § 7703(b)(2).⁷

Dr. Makky advocates for de novo review of both his discrimination and nondiscrimination claims, but cites no case law in support of his position. While the Third Circuit has not determined the standard of review in mixed cases, other circuits have uniformly held that a bifurcated standard of review applies, where discrimination claims are reviewed de novo, and other claims are reviewed on the administrative record. See Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir.2002)("We have found no case law in this or any other Circuit that would require a de nova review of claims other than discrimination claims presented in a `mixed case.' Courts that have addressed the issue uniformly apply the de novo standard of review only to the discrimination claims while other claims adjudicated before the MSPB are reviewed on the record."); Carr v. Reno, 23 F.3d 525, 528 (D.C.Cir.1994); Mason v. Frank, 32 F.3d 315, 317 (8th Cir.1994); Williams v. Rice, 983 F.2d 177, 179-80 (10th Cir.1993); Morales v. Merit Sys. Protection Bd., 932 F.2d 800, 802 (9th Cir. 1991); Johnson v. Burnley, 887 F.2d 471, 474 n. 1 (4th Cir.1989); Williams v. Dept. of the Army, 715 F.2d 1485, 1488 (Fed.Cir. 1983).⁸

Moreover, 5 U.S.C. § 7703(c) expressly requires that the Court of Appeals for the Federal Circuit review non-discrimination claims on the administrative record. We see no logical basis for adopting different standard for the same claims simply because the claims were filed together with discrimination claims in district court. Thus, in reviewing the non-discrimination claims, we are limited to review of the administrative record and must affirm the MSPB decision unless it is: "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed or (3) unsupported by substantial evidence ..." 5 U.S.C. § 7703(c). We review discrimination claims de novo. Id.

When considering Defendants' motions to dismiss, the Court must accept as true all well-pleaded allegations in the Complaint and view them in the light most favorable to Plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250,...