CHARLES A. SHAW, District Judge.
This removed matter is before the Court on the motion of defendant The Boeing Company ("Boeing") to dismiss plaintiff's Petition for Wrongful Discharge (Public Policy Exception) ("Petition") pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff opposes the motion and it is fully briefed. For the following reasons, the Court concludes it has subject matter jurisdiction over this matter and will therefore deny Boeing's Rule 12(b)(1) motion, but will grant its alternative Rule 12(b)(6) motion and dismiss the Petition for failure to state a claim upon relief can be granted.
Plaintiff Mark W. Dubuque ("plaintiff") was employed by Boeing as an at-will employee until his termination on February 29, 2016. Prior to December 2013, plaintiff possessed active Special Action Program ("SAP") clearances and access for purposes of his highly classified work at Boeing.
Plaintiff alleges that Wedewer's reputation, performance goals, and executive compensation were dependent on the success and longevity of the Acalis microprocessor chips, revenue generated from the sale of the chips, and Boeing's ability to integrate Acalis into other Boeing projects. Some of plaintiff's unclassified job duties included working with commercial industries to mature antitamper technology and to recommend to Boeing anti-tamper solutions. In the scope of those duties, plaintiff on numerous occasions informed Wedewer and other employees at Boeing sites outside of St. Louis that a third party (the "Third Party") had a part that was cheaper, more flexible and reliable, and had better performance than Boeing's Acalis chips. Plaintiff alleges Wedewer and Burns immediately began treating him differently after he made these statements.
On November 21, 2013, Boeing requested that plaintiff meet with a customer on November 26, 2013. On November 26, 2013, plaintiff entered a room expecting to meet with a customer and instead found two agents from the Air Force Office of Special Investigations ("AFOSI"). The agents interrogated plaintiff for approximately six hours about his relationship with the Third Party and accused him of disclosing classified information and deleting documents from his computer. On the same date, the agents went to plaintiff's home to take and copy his work and personal computers.
On December 10, 2013, AFOSI agents returned to Boeing and conducted a lengthy polygraph examination of plaintiff. During the polygraph, plaintiff was asked, among other things, about his relationship with the Third Party, whether he had mishandled classified data, whether he had deleted files from his computer, and whether he was trying to "sabotage" his program. At the conclusion of the polygraph, the agents accused plaintiff of lying to them and told him his SAP access and clearances were suspended. On December 20, 2013, AFOSI sent a Memorandum to Boeing officially notifying it of an ongoing AFOSI investigation involving plaintiff (the "AFOSI Memo"). The AFOSI Memo stated in pertinent part: "[Plaintiff's] access to all Special Access Programs (SAPs) information and areas under AFOSI security cognizance is removed. [Plaintiff] will remain in this status pending the completion and review of the AFOSI investigation. This action is temporary and not authorization to debrief [plaintiff]." Pet., Ex. A (Doc. 5).
The AFOSI investigation continued into 2014 or 2015. In the meantime, plaintiff performed non-SAP duties at Boeing and was given no information about the status of the investigation. Between December 2013 and January 2016, Boeing told plaintiff upon his inquiries that the AFOSI investigation was instigated as a result of issues raised by the United States Government, not by Boeing. In March 2015, plaintiff filed Freedom of Information Act ("FOIA") requests with AFOSI and the Department of the Air Force, seeking information and documents relating to his SAP clearance and the AFOSI investigation. In January 2016, plaintiff obtained the AFOSI investigation file and learned that it was Boeing, through Wedewer and Burns, that instigated the AFOSI investigation. Plaintiff learned Wedewer and Burns had made false statements to AFOSI that plaintiff had improper relationships with the Third Party, unlawfully disclosed classified information, and unlawfully deleted files from his computer. Plaintiff also learned that after extensive investigation, AFOSI found no evidence of wrongdoing by plaintiff. Only upon receiving the AFOSI file did plaintiff learn of the existence of the December 20, 2013 AFOSI Memo sent to Boeing.
According to the Petition, the genesis of the SAP program is Executive Order 12829 signed by President George H.W. Bush on January 6, 1993 ("1993 EO"), which expanded an earlier Executive Order No. 10865, signed by President Eisenhower on February 20, 1960 ("1960 EO").
The 1993 EO provides:
The 1993 EO and 1960 EO are implemented by specific Department of Defense ("DoD") Directives, Instructions and Operating Manuals, including, but not limited to:
a. DoD Directive 5205.07, "Special Access Program (SAP) Policy," (July 1, 2010);
b. DoD Instruction 5205.11, "Management, Administration, and Oversight of DoD Special Access Programs (SAPs)," (February 6, 2013);
c. DoD Manual 5205.07, Volumes 1-4, DoD Special Access Program (SAP) Security Manual;
d. DoD Instruction 5220.22, "National Industrial Security Program (NISP)," (March 18, 2011); and
e. DoD 5220.22-M, "National Industrial Security Program Operating Manual," (February 28, 2006) as revised, amended, supplemented and changed thereafter, including its supplement DoD 5220.22-M-Sup-1.
Under the authority of DoD Instruction 5220.22, the Department of Defense promulgated DoD Manual 5220.22-M, entitled the National Industrial Security Program Operating Manual ("NISPOM"), a manual of specific rules and instructions governing the performance and operation of contracts dealing with classified national security information. The NISPOM, though still operative law, was supplemented by another DoD publication known as the NISPOM Supplement (DoD 5220.22-M-Sup-1). Pet. ¶¶ 13-16.
The NISPOM, NISPOM Supplement, and the SAP Security Manual (DoD Manual 5205.07) define "debriefings," and describe what they consist of, how they are performed, when they are performed and where they are to take place. The NISPOM Supplement defines a debriefing as "[t]he process of informing a person his need-to-know for access is terminated." NISPOM §3-108 states when debriefing can take place:
NISPOM Supplement §3-104 states who is to do the debriefing and what it shall consist of:
SAP debriefings are similarly defined by the DoD Manual 5205.07, SAP Security Manual, Vol. 2, Encl. 3, Sec. 13 (Nov 24, 2015).
The Petition alleges that the JAFAN 6/0 Manual, Special Access Program Security Manual, §3-102 (May 29, 2008), and DoD Manual 5205.07, SAP Security Manual, Vol. 2, Encl. 3, Sec. 13 (Nov 24, 2015), provide that at a debriefing, the debriefed individual is (a) reminded of his obligations not to disclose classified information; (b) reminded of the penalties for espionage; (c) told where to report suspected Foreign Intelligence Service contacts; (d) told what he/she can and cannot discuss or place in resumes and applications for security clearances; (e) asked to verify the return of any and all SAP classified material; (f) given the ability to ask questions and receive substantive answers from the person providing the debriefing; and (g) reminded of his/her responsibilities under the SAPIA (Special Access Program Indoctrination Agreement).
NISPOM Supplement §3-104 states where debriefings should take place: "Debriefings should be conducted in SAPF [Special Access Program Facility], Sensitive Compartmented Information Facility or other secure area where possible, or as authorized by the PSO [Program Security Officer]." JAFAN 6/0, §3-102 similarly states: "Debriefings will be conducted in a SAPF or other secure area when possible, as authorized by the PSO."
NISPOM §6-201.b and §6-201.c(2) address where classified information at various levels may be discussed, and the requirements for persons in attendance when classified information is discussed:
The DoD Special Access Program (SAP) Security Manual, DoD Manual 5205.07 Vol 3, Encl. 3, addresses who may enter a SAP Facility ("SAPF"): "When a SAPF . . . [is] operational, only appropriate accessed SAP indoctrinated individual(s) will occupy them." Pet. ¶¶ 51-60.
Beginning in 2015, Boeing repeatedly directed that plaintiff be debriefed on his SAP programs and that the debriefing occur in a classified SAP room. Boeing sought to debrief plaintiff on the SAP for economic reasons. Boeing's Program Manager requested that plaintiff be debriefed because his suspension from SAP access had not been resolved, and the Program Manager needed the "program billet" for other personnel to support the Special Access Programs.
Plaintiff, verbally and through communications from his counsel, repeatedly informed Boeing that it would be unlawful for him to be debriefed at that time and to enter a SAP room — although Boeing told him he could enter with an escort — because his SAP access was suspended. Pet., Ex. B at 1-2. Plaintiff himself informed Boeing that because his SAP access was suspended, he could not be debriefed at all, and could not enter a SAP classified room. Plaintiff also told Boeing that even if he could be debriefed, his SAP suspension precluded him from asking the questions and receiving the substantive answers he was authorized to ask for and receive under the SAP debriefing protocols and regulations. Plaintiff repeatedly told Boeing verbally and in writing that he would not debrief, because he refused to violate any laws or mandates of AFOSI by agreeing to be debriefed in a SAP classified room and while his SAP access was suspended.
Boeing told plaintiff that if he refused to debrief, it would take "corrective action" and report his refusal to the U.S. Government, which would negatively affect all of plaintiff's security clearances and prevent him from obtaining work in the future that required a security clearance. Plaintiff took two separate medical leaves from Boeing in the fall of 2015 due to distress over Boeing's treatment of him and the AFOSI investigation.
On February 20, 2016, before plaintiff returned to work after his second medical leave, he filed a lawsuit in state court seeking a declaratory judgment that Boeing had no right to debrief him, and that it would be illegal for Boeing to brief him in a SAP room while his SAP access was suspended, or to take adverse employment action against him for his refusal to debrief under those circumstances. Pet., Ex. C. Plaintiff returned to work on February 22, 2016 and Boeing immediately directed that plaintiff debrief while his SAP access was suspended and in a SAP room, or face adverse employment action if he refused. Boeing scheduled plaintiff's SAP program debriefing to take place in a SAP room on February 25, 2016 at 11:00 a.m.
On February 24, 2016 and the morning of February 25, 2016, plaintiff provided various Boeing managers and Corporate Governance with a copy of the state court lawsuit, but one of his supervisors, Jennifer Splaingard, insisted that he debrief and stated that if he did not, she would take action. Splaingard and a Human Resources ("HR") representative told plaintiff that if he did not debrief as scheduled, he "may be administratively debriefed and the process would make [plaintiff] unemployable." Plaintiff asked for clarification that the U.S. Government would permit him to enter a SAP room while his SAP was suspended, but Splaingard and the HR representative refused to respond. On February 25, 2016, plaintiff sent an email to various Boeing managers memorializing his conversation with Splaingard and the HR representative, and stating that on the advice of counsel he would not participate in the debriefing scheduled for that morning. Pet., Ex. D.
In response to plaintiff's refusal to debrief, Boeing issued plaintiff an Employee Corrective Action Memo dated February 25, 2016 (the "Memo"), that stated in pertinent part, "It has been determined that you failed to comply with management direction on February 25, 2016. Specifically, you failed to comply with the security debriefing process for special program access. The company deems this unacceptable and it will not be tolerated. We will proceed with further corrective action if you do not comply with the security debriefing process by Monday, February 29, 2016." Pet., Ex. E. Both Boeing Management and plaintiff were to sign the Memo. Above plaintiff's signature on the memo, he wrote, "I will debrief as soon as it can be accomplished with legal certainty (US Govt Letter)." Boeing notified plaintiff he would be debriefed in a SAP room on February 29, 2016 at 9:00 a.m., and Splaingard sent him home on February 25, 2016 until February 29, 2016 without pay. Splaingard informed plaintiff that if he did not debrief on February 29, 2016, Boeing would start the termination process.
On February 29, 2016, plaintiff sent an email to Splaingard and other Boeing managers, reminding Boeing that plaintiff and his attorneys had repeatedly asserted he could not debrief from SAP programs while suspended. Plaintiff's email stated, among other things, that he knew "violating the suspended access is potentially criminal. As a result, I cannot debrief today." Pet., Ex. F. In response to plaintiff's refusal to debrief, he was summoned to Splaingard's office. A Human Resources employee was also present. Splaingard informed plaintiff that he was terminated as an employee of Boeing.
Boeing issued plaintiff an Employee Corrective Action Memo dated February 29, 2016 that stated in pertinent part, "It has been determined that you failed to comply with management direction on February 29, 2016. Specifically, you failed to comply with the security debriefing process for special access programs. The company deems this unacceptable and it will not be tolerated . . . As a result of repeated violations for failing to comply with management direction, you are hereby discharged from the Boeing Company effective Monday, February 29, 2016." Pet., Ex. G. Above his required signature on this Memo, plaintiff wrote, "This is a request to perform a potentially criminal act." Below his signature, plaintiff wrote, "I cannot violate the agent (govt) direction related to SAP suspension. This has been relayed in many communications from Attorney to Attorney."
On March 8, 2016, Boeing reported to the Defense Security Service that plaintiff "was terminated for cause due to his failure to comply with management directions with security debriefing process for special program access." Boeing's report was logged in the Federal Government Joint Personnel Adjudication System.
Plaintiff's termination from employment rendered moot his lawsuit seeking a declaration that Boeing could not take adverse action against him for refusing to debrief, and he dismissed that action without prejudice. Plaintiff filed the instant Petition for Wrongful Discharge (Public Policy Exception) in state court on August 21, 2017. Boeing removed the case to this Court on September 12, 2017, on the basis of federal question jurisdiction, 28 U.S.C. § 1331; diversity of citizenship jurisdiction, 28 U.S.C. § 1332;
In the Petition, plaintiff asserts he had repeatedly informed Boeing, and reasonably believed, that it would have been a serious violation of federal law, statutes, regulations, guidelines, rules, directives, issuances, and manuals, and thus a violation of well established and clearly mandated and defined public policy, for him to take any of the following actions:
Pet. ¶ 101.a-.c. The Petition also alleges it would have been a serious violation of federal law, statutes, regulations, guidelines, rules, directives, issuances, and manuals, and thus a violation of well established and clearly mandated and defined public policy, for Boeing to debrief plaintiff "while his SAP access was suspended, in a SAP room and while the AFOSI had expressly directed Boeing not to debrief" him. Pet. ¶ 102.
Plaintiff's Petition cites numerous sources to support his allegations that the foregoing three actions would be illegal: Sections of the NISPOM and NISPOM Supplement; of JAFAN 6/0; of Executive Order 13526 (Dec. 19, 2009); of DoD Instruction 5205.11; of DoD Manual 5205.07, Vols. 1, 2, and 3; 18 U.S.C. § 793(d), (f), and (g); 18 U.S.C. § 371; Adjudicated Guidelines for Determining Eligibility for Access to Classified Information, 32 C.F.R. Part 147, Subpart A, § 147.13; sections of Air Force Instruction 16-701; and the AFOSI Memo dated December 20, 2013. Pet. ¶¶ 102, 102.a.-102.k.
Plaintiff contends that he was discharged by Boeing because he engaged in the protected activity of refusing to engage in the three specified actions and thus violate the law and well established and clearly mandated public policy as set forth in the above-referenced federal law, statutes, regulations, guidelines, rules, directives, issuances, and manuals. Plaintiff asserts that as a result of the discharge, he has suffered past and future lost income and compensation and benefits of employment, emotional and mental distress, and medical bills. Plaintiff also seeks punitive damages.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the federal court's subject matter jurisdiction over the plaintiff's cause of action. Fed. R. Civ. P. 12(b)(1). Without subject matter jurisdiction, district courts have no judicial power to do anything other than dismiss a case in its entirety.
The federal courts have subject matter jurisdiction under 28 U.S.C. § 1331 to hear "only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law."
"In order to properly dismiss [an action] for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments."
Here, Boeing makes a facial challenge to plaintiff's Petition. Therefore, all factual allegations are accepted as true and all reasonable inferences are made in favor of the plaintiff.
The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'"
On a motion to dismiss, the Court accepts as true all of the factual allegations contained in the complaint, even if it appears that "actual proof of those facts is improbable,"
"While courts primarily consider the allegations in the complaint in determining whether to grant a Rule 12(b)(6) motion, courts additionally consider `matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned;' without converting the motion into one for summary judgment."
Boeing moves to dismiss plaintiff's Petition for lack of subject matter jurisdiction, asserting that it raises non-justiciable political questions which would require the Court to intrude on the Executive Branch's exclusive function of controlling access to highly sensitive national security information. Specifically, Boeing argues that before the Court could examine plaintiff's wrongful discharge claim, the Petition's allegations would require it —
Mem. Supp. Mot. Dismiss at 2 (Doc. 18).
Boeing asserts that courts have universally concluded they lack the authority to weigh decisions involving individual security clearances and classified program access because these involve a "political question."
Boeing asserts that the analysis is similar in cases involving a Government contractor, because the Executive Branch's constitutional authority to control access to classified information is delegated to its contractors and should not be subject to judicial review simply because a contractor exercises the authority, citing
Plaintiff responds that Boeing's subject matter jurisdiction argument sets up and attacks a straw man, as it wrongfully characterizes his suit as an attack on the merits of a security clearance decision. Plaintiff states he does not ask the Court to review the AFOSI's discretionary decision to suspend his SAP access, or to weigh in on the validity of Boeing's desire to debrief him. Rather, plaintiff asserts that his suit is a state law tort claim for wrongful termination of employment by a private company due to plaintiff's refusal to violate federal law by consenting to debrief in a SAP Facility, while suspended from SAP clearance, after AFOSI directed Boeing not to debrief him.
Plaintiff contends that the Supreme Court's
To determine whether subject matter jurisdiction exists in this matter, the Court must examine these cases in some detail. It is firmly established that courts do not have subject matter jurisdiction to review the merits of security clearance decisions because of the discretionary nature of such decisions, and because of the Executive Branch's exclusive authority over matters involving national security. In
Although
It is clear based on the foregoing authority that this Court would have no jurisdiction to review the decision to suspend plaintiff's SAP access on its merits. "But not all claims arising from security clearance revocations violate separation of powers or involve political questions."
Most relevant to the context of this case, courts have held that
The Ninth Circuit rejected Raytheon's argument, concluding that such a broad reading of
In the instant case, plaintiff's Petition does not challenge the merits or the circumstances of AFOSI's decision to suspend his SAP access. Plaintiff's sole claim is that Boeing wrongfully discharged him in contravention of Missouri public policy because he refused to violate SAP-related federal laws and regulations, and thus would not submit to Boeing's illegal demand that he debrief from the SAP program, in a SAP Facility, while his SAP access was suspended, and while Boeing was under AFOSI direction not to debrief him. As pleaded, plaintiff's state law claim is "merely connected to the government's security clearance decision," and as a result "the concerns of
Accordingly, the Court concludes that it has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a)(1),
In the alternative, Boeing asserts that even if the Petition raises justiciable issues, plaintiff does not allege facts that could give rise to a valid claim for wrongful discharge under Missouri's public policy exception. Boeing states that Government contractors enjoy broad discretion over which employees will be sponsored for access to classified programs, and access to SAP information is neither a right nor an entitlement. As a result, it contends, there is no public policy supporting plaintiff's alleged efforts to indefinitely delay or avoid being debriefed from a SAP program.
Boeing argues that plaintiff's claim it would have been unlawful for him to enter a SAP Facility to be debriefed is facially inconsistent with the security guidelines cited in the Petition—which clearly authorize escorted access to a SAP Facility by individuals who do not have an active SAP clearance—so nothing in Boeing's instruction to debrief plaintiff would have required him to violate any law or public policy. Boeing also asserts that none of the documents cited in the Petition support plaintiff's argument that it would be unlawful for Boeing to debrief him in a SAP Facility. Boeing states that the JAFAN Manual includes procedures allowing non-cleared personnel, such as plaintiff, to access SAP Facilities with an appropriate escort, citing JAFAN Manual §§ 6-101(f) ("Visit Request Procedures") and 6-102 ("Non-Program-Briefed Visitor Record"); DoD Manual at 11 (requiring procedures to identify and control visitors to SAP Facilities). Thus, Boeing contends it would not be "unlawful" to escort plaintiff into a cleared facility for his debriefing, as it had proposed, citing JAFAN Manual § 6-101(f) (providing for escorting of non-cleared visitors into a SAPF), and Petition Exhibit B at 1 (acknowledging that Boeing offered to provide plaintiff with an escort to enter the SAPF).
Second, Boeing argues that while there is a preference for providing answers to relevant questions during a debriefing, there is no such requirement. Boeing states that where it proves "difficult" to obtain in-person participation for a debriefing, both the JAFAN and DoD Manuals permit "administrative debriefings" in which there is no opportunity to ask questions, citing JAFAN Manual at 30; DoD Manual at 15. Boeing argues that plaintiff mischaracterizes the AFOSI Memo when he alleges that "Boeing was not authorized to debrief [plaintiff]." Pet. ¶ 50. Boeing asserts the AFOSI Memo stated only that the Memo itself was "not authorization to debrief" plaintiff, and did not prohibit Boeing from debriefing plaintiff two years later.
Finally, Boeing argues that the practices and protocols for access to highly classified SAP programs that plaintiff relies on do not give rise to any public policy mandate applicable to the population at large in Missouri. Instead, Boeing states that they apply to a unique and limited class of sensitive Government programs, and the Government and contractor personnel who possess a unique need-to-know and are deemed to be eligible for access to those programs. Boeing states that the process is, by its very definition, "wholly discretionary" and open only to "those individuals who meet stringent background and security standards along with a valid need-to-know," quoting JAFAN Manual § 2-200. Consequently, Boeing argues that these procedures and its decision to terminate the employment of an at-will employee who failed to comply with repeated security and management instructions to participate in a SAP debriefing cannot form the basis for a wrongful discharge claim under the public policy exception.
Plaintiff responds that the Petition cites twenty-one provisions of federal law to support his allegation that debriefing under the circumstances—while his SAP access was suspended, in a SAP room, after AFOSI directed Boeing in writing not to debrief plaintiff—would violate federal law. Plaintiff's opposition memorandum does not identify any specific legal provision among the twentyone provisions listed in his Petition, or cite to the particular language of any of the provisions, to support his allegations. Plaintiff rejects Boeing's argument that he wanted to remain briefed indefinitely, and states that the Petition makes clear he had no desire to remain "indefinitely" briefed, but rather only refused to be unlawfully debriefed.
Plaintiff states that JAFAN §6-101(f), cited by Boeing, is inapplicable as it provides that one must "[c]ontinuously escort and closely control movement of non-program accessed visitors requiring access to a SAPF," but does not indicate that plaintiff was authorized to enter a SAPF. Plaintiff contends this provision merely insinuates that SAP rooms can have "visitors." Plaintiff also states that JAFAN §6-101(f) is inapplicable because he was not "requiring" or needing access to the SAP room—plaintiff states he did not want access while suspended—nor would he have constituted a "visitor" under the JAFAN.
Plaintiff further responds that even if these provisions imply that a person whose SAP access was suspended could enter a SAP as a "visitor," they still do not authorize that person to debrief there, especially while AFOSI has forbidden it. Plaintiff asserts that all of the citations in his Petition make clear this is unlawful. For example, plaintiff states that the law requires he have been able to see and discuss highly classified information and ask questions and receive substantive answers about the SAP during the type of debriefing Boeing demanded, but he could not have done so while suspended.
Boeing replies that the crux of plaintiff's claim for wrongful termination is that Boeing's instruction to attend and participate in the debriefing in a SAPF would have required plaintiff to violate federal law, because plaintiff did not believe he was permitted to enter a SAPF or participate in the debriefing while his SAP access privileges were suspended. Boeing asserts that this argument suffers from circular logic: Plaintiff would be permitted to remain indefinitely briefed to a highly classified SAP program, so long as his access privileges to that program remained suspended.
Boeing contends that nowhere in the Petition does plaintiff ever establish that the challenged security instructions would have required him to violate the law. Boeing states that while plaintiff repeatedly asserts he was not permitted to physically enter the SAPF because his clearance was suspended, he cites no statute, regulation, or other guidance to establish the "federal law" he claims the instruction would have forced him to violate. Boeing argues that plaintiff's physical presence in the SAPF, with a cleared escort provided by Boeing, was expressly permitted under security manuals referenced in the Petition, citing JAFAN Manual §§ 6-101(f) ("Visit Request Procedures") and 6-102 ("Non-Program-Briefed Visitor Record"); DOD Manual at 11 (requiring procedures to identify and control visitors to SAPFs). Boeing asserts that because it was permitted to escort plaintiff into the SAPF, regardless of whether his program clearance was suspended, there would be no violation of "federal law" by conducting the debriefing in the SAPF. Boeing contends that plaintiff fails to meaningfully respond to this argument, which exposes a critical flaw in his claim, and instead raises the facially baseless argument that he did not qualify as an escorted "visitor" under the referenced guidelines because he "did not want access while suspended," and therefore he "was not `requiring' or needing access to the SAP room." Pl.s' Mem. Opp. at 14. Boeing characterizes this response as "nothing but a game of semantics and more circular logic that would allow a suspended employee to indefinitely prolong his program access by refusing to participate in the debriefing process, simply because he did not `want' to." Reply at 4. Boeing states that the controlling security guidance is clear that visitors—whether cleared to a program or not—are permitted to access a SAPF when accompanied by an escort, and the Petition alleges that Boeing's debriefing instruction was consistent with this guidance.
Boeing also replies that plaintiff's contention the debriefing instruction was improper because it required plaintiff and/or Boeing to "discuss highly classified information," such that the mere act of conducting the debriefing would violate federal law because it would have required plaintiff to discuss classified information, is based on a flawed characterization of the SAP debriefing procedures outlined in the DoD SAP Security Manual, 5205.08, Vol. 2, referenced in the Petition. Pet. ¶ 102.g. Boeing asserts that these procedures, in paragraph 13.a, require contractor program security officers (CPSOs) to "implement a formal debriefing program when access to SAP information is no longer required." While paragraph 13.b states that the debriefing procedures "will be arranged to allow each individual the opportunity to ask questions and receive substantive answers from the individual providing the debriefing," the guidance clarifies in paragraph 13.e that these include "at a minimum" only questions about information that can be used on a resume, or "questions about the [special access program indoctrination agreement]."
In other words, Boeing asserts that the debriefing process does not contemplate—let alone require—a sweeping discussion of classified program information to which plaintiff contends he was entitled. Instead, all of the "minimum" debriefing requirements outlined in paragraph 13.e relate to information that the debriefing party (here, Boeing) must furnish to the debriefed employee about the nature and scope of the employee's ongoing non-disclosure obligations, such as the penalties for violating the non-disclosure obligations, and an acknowledgment that any future questions or concerns regarding the SAP must be directed to a security officer. Boeing asserts there is no requirement in the outlined procedures, as plaintiff contends, for a debriefed employee to "ask and receive answers to protected SAP information." Mem. Opp. at 15. Boeing states that further confirmation it had no obligation to discuss classified SAP information in plaintiff's debriefing is the fact that individuals may receive "administrative debriefings" in which there is no opportunity to ask questions about the debriefing, citing DOD Manual 5205.08, Vol. 2, ¶ 14. To the extent plaintiff contends the regulations absolutely entitle him to discuss or access SAP information, Boeing replies that such an interpretation is plainly inconsistent with the long-settled precedent that no one has a right to a security clearance or classified information, citing
As to plaintiff's argument that Boeing lacked authority to conduct the debriefing at all because the AFOSI Memo forbade it from debriefing him, Boeing asserts the Memo does not support plaintiff's claim for wrongful termination under the public policy exception for three reasons. First, Boeing asserts that a contractor does not require Government approval or authority to debrief an employee from a SAP, and plaintiff has pointed to no such requirement in the guidance cited throughout the Petition. Second, Boeing asserts no reasonable inference can be drawn from the AFOSI Memo of December 2013 that it was "forbidden" to debrief plaintiff more than two years later in February 2016. According to the Petition, the Air Force completed its investigation by 2015 and found no evidence of wrongdoing on plaintiff's part,
Plaintiff was an at-will employee of Boeing. Generally, under Missouri law, "at-will employees may be terminated for any reason or for no reason."
A wrongful discharge claim fails as a matter of law unless it is based on "explicit authority" such as a "constitutional provision, a statute, a regulation based on a statute or a rule promulgated by a governmental body."
Further, "not every statute or regulation gives rise to an at-will wrongful termination action."
Missouri precedent is clear that "[w]hether a plaintiff reasonably believes an act violates public policy is irrelevant to a wrongful discharge claim."
Thus, to survive the motion to dismiss, the Petition must affirmatively show on its face that the misconduct plaintiff alleges "serious misconduct that constitutes a violation of the law and of well established and clearly mandated public policy."
As stated above, the Petition alleges it would have been a serious violation of federal law, statutes, regulations, guidelines, rules, directives, issuances, and manuals, and thus a violation of well established and clearly mandated and defined public policy, for plaintiff to take any of the following actions:
Pet. ¶ 101.a-.c. The Petition alleges it would similarly have been a serious violation of federal law, statutes, regulations, guidelines, rules, directives, issuances, and manuals, and thus a violation of well established and clearly mandated and defined public policy, for Boeing to debrief plaintiff "while his SAP access was suspended, in a SAP room and while the AFOSI had expressly directed Boeing not to debrief" him. Pet. ¶ 102.
The Court must examine the Petition to determine whether it affirmatively shows on its face that plaintiff's cited authority "clearly prohibits the conduct at issue" for these actions.
As a threshold procedural matter, the Court will not consider in its analysis the provisions of the JAFAN Manual, DoD Manual, and NISPOM cited by Boeing in the motion to dismiss, but which are not specifically referenced in the Petition. It is certainly arguable these additional provisions of manuals cited in the Petition could be considered as matters embraced by the Petition's allegations, or as matters of public record whose authenticity has not been questioned, such that their consideration would not convert the motion to dismiss to one for summary judgment.
As a threshold merits matter, the Court rejects Boeing's argument that plaintiff cannot establish a wrongful discharge claim as a matter of law because the federal regulations and guidance for access to highly classified SAP programs do not give rise to any public policy mandate applicable to the population at large in Missouri. Boeing's argument is entirely unsupported by citation to any legal authority, and the Court is unaware of any such authority.
Plaintiff's first allegation is that it would be illegal for him to debrief, or for Boeing to debrief him, while his SAP access was suspended. Pet. ¶¶ 101.a., 102. In support, the Petition asserts that the NISPOM, the NISPOM Supplement, and the SAP Security Manual (DoD Manual 5205.07) define "debriefings," and describe what they consist of, how they are performed, when they are performed and where they are to take place. Pet. ¶ 51.
The NISPOM Supplement defines a debriefing as "[t]he process of informing a person his need-to-know for access is terminated." Pet. ¶ 52. The Petition quotes NISPOM §3-108 and asserts that it states when debriefing can take place:
Pet. ¶ 53.
The language of NISPOM §3-108 provides that contractors shall debrief a cleared employee when the employee's personal clearance is "terminated, suspended or revoked." Plaintiff argues that Boeing violated NISPOM §3-108 by debriefing him even though his employment was not terminated, his personal security clearance—as distinguished from his SAP access—had not been terminated, suspended, or revoked, and Boeing's Facility Security Clearance was not terminated. Under plaintiff's interpretation, NISPOM §3-108 prohibits a contractor from debriefing an employee unless one of the three situations it specifically addresses exists. Plaintiff argues that because none of those situations existed at the time Boeing demanded he debrief, NISPOM §3-108 prohibited Boeing from debriefing plaintiff while his SAP access was suspended.
The fatal flaw in the Petition and plaintiff's argument is that the language of NISPOM §3-108 does not "clearly prohibit" Boeing from debriefing plaintiff while his SAP access was suspended. As a result, plaintiff's wrongful discharge claim based on this regulation must fail.
None of the other legal provisions cited in the Petition "clearly prohibit" a person whose SAP access has been suspended, but whose personal security clearance remains in effect, from being debriefed. Similarly, none of these provisions "clearly prohibit" debriefing a person whose SAP access has been suspended, but whose personal security clearance remains in effect.
It is important to recognize that the Petition only provides the actual language of a few of the numerous legal provisions it cites. In addition to NISPOM §3-108, the Petition quotes NISPOM Supplement §3-104, which "defines who is to do the debriefing and what it shall consist of:"
Pet. ¶ 55. The Petition alleges that SAP debriefings are "similarly defined by the DoD Manual 5205.07, SAP Security Manual, Vol., 2, Encl. 3, Sec. 13, (Nov 24, 2015)." Pet. ¶ 56. The Petition also alleges that "NISPOM Supplement §3-104 states where debriefings should take place" and quotes it:
Pet. ¶ 58. The Petition alleges that JAFAN 6/0, §3-102 similarly states, "Debriefings will be conducted in a SAPF or other secure area when possible, as authorized by the PSO."
Nothing in the language of NISPOM Supplement §3-104 or JAFAN 6/0, §3-102 "clearly prohibits" plaintiff from participating in a debriefing while his SAP access was suspended, or "clearly prohibits" Boeing from debriefing plaintiff while his SAP access was suspended. Therefore, these regulations do not support plaintiff's wrongful discharge claim.
The Petition also quotes NISPOM §§ 6-201.b and 6-201.c(2), describing these as "very specific regarding where classified information at various levels may be discussed, and what the requirements are for any persons who are in attendance when classified information is discussed:"
Pet. ¶ 59. Nothing in the language of NISPOM §§ 6-201.b and 6-201.c(2) addresses debriefing, however, and instead concerns "classified sessions," which the Petition does not define. These regulations do not "clearly prohibit" plaintiff from participating in a debriefing while his SAP access was suspended, or "clearly prohibit" Boeing from debriefing plaintiff while his SAP access was suspended, and therefore do not support plaintiff's wrongful discharge claim.
The Petition also cites other legal provisions in support of plaintiff's claim but quotes only single sentences or sentence fragments from these provisions.
In other instances, the Petition refers to legal provisions as supporting plaintiff's claim but does not quote the language of the provisions at all, and instead consists of plaintiff's paraphrasing of that language or, perhaps, plaintiff's interpretation of or legal conclusions as to what the provisions state or mean.
Some legal provisions cited in the Petition are too vague or general to be successfully pled under a wrongful discharge theory, because they would force the Court to decide on its own what public policy requires.
Finally, the Petition cites as a legal provision the "written directive (
Pet., Ex. A.
The AFOSI Memo does not support plaintiff's wrongful discharge claim, as it does not constitute "explicit authority" involving a clear mandate of public policy and does not cite to any other source of a clear mandate of public policy.
Further, assuming for purposes of argument that the AFOSI Memo was a source of public policy, contrary to plaintiff's characterization, the Memo does not facially prohibit Boeing from debriefing plaintiff. The Memo states only that it is "not authorization to debrief" plaintiff. Thus, the Memo does not "clearly prohibit" Boeing from debriefing plaintiff while his SAP access was suspended, or "clearly prohibit" plaintiff from being debriefed while his SAP access was suspended. As a result, plaintiff fails to state a claim upon which relief can be granted.
Finally, assuming further for purposes of argument that the AFOSI Memo was a source of public policy and prohibited Boeing from debriefing plaintiff, by the Memo's terms the prohibition would have ended when the AFOSI investigation was completed. The Petition alleges that AFOSI's investigation was completed in 2014 or 2015, Pet. ¶¶ 42, 44, 44.b., 48, and that Boeing's demands to debrief plaintiff began in late 2015.
Because the Petition does not identify on its face any clear mandate of established public policy that prohibited plaintiff from debriefing while his SAP access was suspended, or prohibited Boeing from debriefing plaintiff while his SAP access was suspended, plaintiff's assertion that he could not be debriefed because he would not be able to ask substantive questions and receive substantive answers about highly classified SAP information from the person providing the debriefing does not compel a different result. The assertion lacks support in the applicable regulations.
The Petition alleges that at the time of debriefing, the debriefed individual is, among other things, "given the ability to ask questions and receive substantive answers from the person providing the debriefing." Pet. ¶ 57 (citing JAFAN 6/0 Manual, §3-102 (May 29, 2008) and DoD Manual 5205.07, SAP Security Manual, Vol. 2, Encl. 3, Sec. 13, (Nov 24, 2015)). As previously discussed, however, the Petition does not quote the language of these regulations but merely offers plaintiff's interpretation of them. A regulation that is quoted in the Petition, NISPOM Supplement §3-104, establishes the minimum requirement for a debriefing:
Pet. ¶ 55 (emphases added). This regulation specifies the minimum content of a debriefing, and does not include a requirement that the debriefed person be able to ask substantive questions and receive substantive answers about highly classified SAP information.
For these reasons, plaintiff's Petition does not affirmatively show on its face that plaintiff would have violated the law and well established and clearly mandated public policy if he had debriefed while his SAP access was suspended, or that Boeing's action demanding that plaintiff debrief while his SAP access was suspended actually "constitutes a violation of the law and of well established and clearly mandated public policy."
Plaintiff's second allegation is that it was illegal for him to enter a SAP Facility ("SAPF") even with an escort while his SAP access was suspended, or for Boeing to direct him to enter a SAPF with an escort while his SAP access was suspended. Pet. ¶¶ 101.b., 102, Ex. B at 1. As discussed above, the Petition quotes several portions of the NISPOM and NISPOM Supplement in support of plaintiff's wrongful discharge claim. NISPOM §3-108, which specifies when debriefings "shall" take place,
The Petition also cites NISPOM Supplement §3-104, which "states where debriefings should take place:"
Pet. ¶ 58. The Petition alleges that JAFAN 6/0, §3-102 similarly states, "Debriefings will be conducted in a SAPF or other secure area when possible, as authorized by the PSO."
Nothing in the language of NISPOM Supplement §3-104 or JAFAN 6/0, §3-102, "clearly prohibits" plaintiff from entering a SAPF with an escort for debriefing while his SAP access was suspended, or "clearly prohibits" Boeing from directing plaintiff to enter a SAPF with an escort for debriefing while his SAP access was suspended. To the contrary, these regulations state that debriefings should be conducted in a SAPF, Secure Compartmented Information Facility, or other secure area. Notably, NISPOM §3-108 mandates that contractors debrief persons whose personal security clearances have been revoked, suspended, or terminated. Thus, the regulations plaintiff relies upon, when read together, specifically authorize persons with less clearance authorization than plaintiff to enter SAPFs or other secure areas for debriefing.
Also relevant to this aspect of plaintiff's claim, the Petition quotes NISPOM §§ 6-201.b and 6-201.c(2) and describes these regulations as "very specific regarding where classified information at various levels may be discussed, and what the requirements are for any persons who are in attendance when classified information is discussed:"
Pet. ¶ 59. Nothing in the language of NISPOM §§ 6-201.b or 6-201.c(2) addresses the topic of debriefing. Instead, these regulations discuss "classified sessions," which the Petition does not define. Thus, the regulations do not "clearly prohibit" plaintiff from entering a SAPF with an escort for debriefing while his SAP access was suspended, or "clearly prohibit" Boeing from escorting plaintiff to a SAPF for debriefing while his SAP access was suspended, and therefore do not support plaintiff's wrongful discharge claim.
Further, for the reasons discussed above, the Petition does not establish that plaintiff had any right to discuss classified information at the debriefing. Instead, the Petition quotes the NISPOM Supplement as defining a "debriefing" as "[t]he process of informing a person his need-to-know for access is terminated," Pet. ¶ 52, and quotes NISPOM Supplement §3-104, which states only that "a debriefing will include as a minimum a reminder of each individual's responsibilities according to the NDA which states that the individual has no Program or Program-related material in his/her possession, and that he/she understands his/her responsibilities regarding the disclosure of classified Program information." Pet. ¶ 55.
As discussed more fully above, the Court finds that none of the other legal provisions cited in the Petition support this aspect of plaintiff's wrongful discharge claim, because they (1) are either uncontextualized single sentences or sentence fragments that do not "clearly prohibit" plaintiff from entering a SAPF with an escort for debriefing while his SAP access was suspended, or "clearly prohibit" Boeing from escorting plaintiff to a SAPF for debriefing while his SAP access was suspended; (2) consist of plaintiff's paraphrasing of or legal conclusions as to the meaning of regulations whose language is not quoted in the Petition; or (3) are too vague or general to be successfully pled under a wrongful discharge theory.
For these reasons, plaintiff's Petition does not affirmatively show on its face that it would have been illegal for plaintiff to enter a SAPF with an escort while his SAP access suspended, or that Boeing's demand that plaintiff enter a SAPF with an escort for debriefing while his SAP access was suspended actually "constitute[d] a violation of the law and of well established and clearly mandated public policy."
Plaintiff's third allegation is that it was illegal for him to be debriefed and to enter a SAPF after his SAP access was suspended and Boeing had been notified by AFOSI that plaintiff's SAP access was suspended and it was not authorized to debrief him; and that it was illegal for Boeing to debrief him, and to direct him to enter a SAP Facility, after AFOSI notified Boeing that plaintiff's SAP access was suspended and that it was not authorized to debrief plaintiff. Pet. ¶¶ 101.c., 102.
The Court has concluded the Petition does not establish that it was illegal for plaintiff to be debriefed, or for Boeing to debrief plaintiff, while plaintiff's SAP access was suspended, supra at 40. The Court has also concluded the Petition does not establish that it was illegal for plaintiff to enter a SAPF with an escort, or for Boeing to direct plaintiff to enter a SAPF with an escort, while his SAP access was suspended, supra at 43. The Court now examines the final aspect of plaintiff's claim, that it was illegal for him to be debriefed and to enter a SAPF while his SAP access was suspended, and for Boeing to debrief plaintiff and to direct him to enter a SAPF while his SAP access was suspended, after AFOSI had notified Boeing that plaintiff's SAP access was suspended and that it was not authorized to debrief plaintiff.
The Petition alleges that the AFOSI Memo to Boeing dated December 20, 2013, stated that "Boeing was
Pet., Ex. A.
As previously discussed, the AFOSI Memo does not support plaintiff's wrongful discharge claim, as it does not constitute "explicit authority" involving a well established and clear mandate of public policy, nor does it cite to any other source of a clear mandate of public policy.
For these reasons, plaintiff's Petition does not affirmatively show on its face that plaintiff's debriefing or entering a SAPF with an escort for debriefing while his SAP access was suspended, after Boeing received the AFOSI Memo, or that Boeing's demand that plaintiff debrief or enter a SAPF with an escort for debriefing while his SAP access was suspended, after Boeing received the AFOSI Memo stating that plaintiff's SAP access was suspended and that the Memo was not authorization to debrief plaintiff, actually "constitutes a violation of the law and of well established and clearly mandated public policy."
For the reasons discussed above, the Court concludes that it has subject matter jurisdiction over plaintiff's Petition for Wrongful Discharge (Public Policy Exception). The Court further concludes that plaintiff's Petition fails to state a claim upon which relief can be granted under Missouri's wrongful discharge doctrine, because the Petition on its face does not cite authority showing plaintiff was terminated for refusing to violate the law or any well-established and clear mandate of public policy that clearly prohibited the conduct at issue in this action. Defendant Boeing's motion to dismiss for lack of subject matter jurisdiction will therefore be denied and its alternative motion to dismiss pursuant to Rule 12(b)(6) will be granted.
Accordingly,
An Order of Dismissal will accompany this Memorandum and Order.
