Amit P. Mehta, United States District Judge.
Plaintiff Harriett Ames is the former Chief of the Personnel Security Branch within the Federal Emergency Management Agency. As head of the Personnel Security Branch, Plaintiff's responsibilities included adjudicating security clearances for employees. Claiming that she was terminated from her position because of her race, Ames filed suit under Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Constitution. The parties agree that, under Dep't of Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), and its progeny, race discrimination claims that require courts to evaluate the merits of security clearance determinations are non-justiciable. They disagree, however, as to whether Egan requires dismissal of this case.
The court concludes that, at this early stage, on Defendant's Motion to Dismiss, it cannot determine whether adjudicating
Plaintiff Harriett Ames is an African-American woman and the former Chief of the Personnel Security Branch at the Federal Emergency Management Agency ("FEMA"), an agency within the Department of Homeland Security ("DHS").
On July 22, 2011, agency management "barred" Plaintiff and her branch from adjudicating security clearances. Id. Ames was not given a reason for the decision at the time, id. ¶ 20, but according to an internal agency report prepared after an investigation into Ames' claims of racial discrimination [hereinafter "Final Agency Decision"], she was suspended from processing security clearances because the "Agency learned that [Plaintiff] had served as both the adjudicator and character reference for one of the individuals that [she] was adjudicating and had supposedly cleared." Final Agency Decision, ECF No. 38-1, at 6 (cited in Am. Compl. ¶ 23).
Another reason offered for Plaintiff's removal, according to the complaint, though not expressly stated in the Final Agency Decision, was "that she had erroneously granted security clearances" to two people, Gary Walker and Skip Bland. Id. ¶ 25. Ames contends that those clearances were "provided on the same bases as clearances have consistently been provided white people throughout DHS" and "by white adjudicators throughout DHS." Id. ¶¶ 28-29. She further alleges that no white official in DHS "has been removed from his or her duties for providing clearances on the bases relied on by Ms. Ames." Id. ¶ 30. She contends that management's explanations
In September 2011, agency management detailed an employee from DHS headquarters to take over Plaintiff's duties adjudicating security clearances, though Ames nominally remained the head of her branch. Id. ¶ 34. Plaintiff's complaint quotes from what appears to be another internal agency document, explaining that agency management "decided that this was the best path for mitigating hard issues found [within] the Personnel Security Branch." Id. ¶ 35.
Then, in November 2011, Ames was formally removed as head of the Personnel Security Branch and transferred to a position in the training branch, while a white employee took over her position as chief. Id. ¶¶ 39, 42. Jorge Cantu, the Director of the Program Protection Division, advised Plaintiff that the reason for her transfer was his "desire to improve efficiencies and effectiveness within the Program Protection Division and to allow you an opportunity to use your security skills within another unit of [the Office of Chief Security Officer]." Id. ¶¶ 43-44. Her new position did not, however, require her to use her security skills. Id. ¶ 50. Cantu allegedly later denied that he was involved in the decision to reassign Ames to the training branch. Id. ¶¶ 47-48.
After exhausting her administrative remedies, including filing a complaint with the Equal Employment Opportunity Commission, Ames brought this action alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause.
Defendants properly bring their motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. See Oryszak v. Sullivan, 576 F.3d 522, 525 (D.C.Cir.2009) (reviewing a motion to dismiss under Egan under Rule 12(b)(6), and not for lack of subject matter jurisdiction under Rule 12(b)(1)). When evaluating a motion to dismiss under Rule 12(b)(6), the court must accept a plaintiff's factual allegations as true and "construe the complaint `in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.'" Hettinga v. United States, 677 F.3d 471, 476 (D.C.Cir.2012) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979). The court, however, need not accept as true "a legal conclusion couched as a factual allegation," Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986), or "inferences ... unsupported by the facts set out in the complaint," Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994).
To survive a motion to dismiss, a complaint must contain "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The factual allegations in the complaint need not be "detailed"; however, the Federal Rules demand more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly,
When bringing a Title VII claim, the plaintiff need not allege a prima facie case under the McDonnell Douglas framework to survive a motion to dismiss. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-12, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).
In Egan, the Court held that the Merit Protection Board lacked the authority to review a federal employee's complaint about the denial of a security clearance. 484 U.S. at 527-29, 108 S.Ct. 818. The Court stated that, "[f]or `reasons ... too obvious to call for enlarged discussion,' the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it." Id. at 529, 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. The ordinary presumption favoring reviewability of administrative actions, the Court explained, "runs aground when it encounters concerns of national security." Id. at 527, 108 S.Ct. 818.
Our Court of Appeals has applied Egan to preclude courts from hearing "a discrimination claim based on an adverse employment action resulting from an agency security clearance decision." Ryan v. Reno, 168 F.3d 520, 523 (D.C.Cir.1999) (citing cases). In Ryan, the plaintiffs had been denied federal jobs because they were not granted the required security clearances, a decision that the plaintiffs asserted was discriminatory. Id. at 522-23. The Court of Appeals held that the plaintiffs' denial of employment could not be judicially reviewed under Egan. Id. at 524. Stating that it was "necessary" to apply the McDonnell Douglas burden shifting analysis to determine the merits of
Since deciding Ryan, the Court of Appeals has applied Egan more narrowly to Title VII claims. In Rattigan v. Holder, 689 F.3d 764 (D.C.Cir.2012), the Court of Appeals wrote:
Id. at 767 (quoting Egan, 484 U.S. at 529, 108 S.Ct. 818). The court concluded that Egan did not preclude judicial review of discrimination claims premised on knowingly false security reports or referrals. Id. at 770.
But where a Title VII plaintiff's claims have placed an agency's security clearance decision squarely at issue, the Court of Appeals has not hesitated to apply Egan and Ryan to bar judicial review. Thus, in Bennett, 425 F.3d at 999, the court held that, under Ryan, the plaintiff there could not proceed with a suit that would have required evaluation of the agency's claim that it had terminated the plaintiff because of her inability to maintain a security clearance. "Bennett could not challenge the authenticity of TSA's proffered reason — her inability to maintain a security clearance — without also challenging the validity of the reason, which is what Ryan prohibits." Id. at 1003. Likewise, in Foote v. Moniz, 751 F.3d 656 (D.C.Cir. 2014), the Court of Appeals held that a Title VII plaintiff could not challenge the Department of Energy's decision to deny him certification under the agency's Human Reliability Program, which evaluated the suitability of employment applicants who would have access to nuclear devices, materials, or facilities. Id. at 658-59.
Defendants contend that Egan and the above-cited cases compel the court to dismiss Plaintiff's suit. Defendants point to the Final Agency Decision's conclusion that Ames' removal from security clearance adjudication was due to "several questionable cases that had been improperly adjudicated," Final Agency Decision at 7, as well as Plaintiff's own assertion that the agency's action was because "she had erroneously granted security clearances to ... Gary Walker and Skip Bland." Am. Compl. ¶ 25. Defendants argue that, in light of these non-discriminatory reasons for the adverse employment decision, adjudication of Plaintiff's claims will require the court to "review the merits of the security decisions in question."
The court disagrees. In Rattigan, the Court of Appeals emphasized that its duty was not only to follow Egan, "but also to `preserv[e] to the maximum extent possible Title VII's important protections against workplace discrimination and retaliation.'" Rattigan, 689 F.3d at 770 (citations omitted). Heeding that guidance here, the court cannot say with certainty — at the motion to dismiss stage — that resolving Plaintiff's claims necessarily will require the court to run afoul of Egan by second-guessing the agency's "predicative judgment" about security clearances. See id. at 767; see also Thomas v. Johnson, 4 F.Supp.3d 157, 160 (D.D.C.2014) (rejecting judgment on the pleadings based on Egan because plaintiff's employment discrimination claim did not require a merits review of the underlying security clearance decision).
It is true that if Plaintiff's claims ultimately depend on proof that she correctly adjudicated the merits of security clearances, then this case will be non-justiciable under Egan. In other words, Plaintiff cannot rely on the McDonnell Douglas burden-shifting framework to show discrimination if her evidence of pretext is that she, in fact, did correctly adjudicate security clearances. See Ryan, 168 F.3d at 524 (finding that, because appellants could not challenge the authenticity of the proffered non-discriminatory reason for the security clearance decision without also challenging its validity, the court could not conduct the McDonnell Douglas analysis "without running smack up against Egan"); Bennett, 425 F.3d at 1003 ("Bennett could not challenge the authenticity of TSA's proffered reason-her inability to maintain a security clearance-without also challenging the validity of the reason, which is what Ryan prohibits."). But, at this stage, it is far from clear that the "predictive judgment" of trained security clearance personnel — whether that be Ames herself or those who removed her — will be at issue here. The Final Agency Decision is unclear as to the specific, non-discriminatory reasons offered for Ames' removal as branch chief. The explanation provided for her initial suspension was that she had adjudicated a security clearance under a "conflict of interest" by acting both as an adjudicator and as a character reference for one individual. Final Agency Decision at 6. A challenge to that non-discriminatory reason arguably would not require the court to second-guess Ames' or anyone else's "predictive judgment." She either operated under a conflict of interest or she did not. The merits of the adjudication itself thus may not become an issue.
Similarly, the Final Agency Decision also states that Plaintiff was relieved of adjudication responsibilities because a review had found "several questionable cases that had been improperly adjudicated" by Plaintiff and her team. Id. at 7. The Final Agency Decision does not make clear, however, what made those adjudications "questionable" or "improper." The adjudications might have been "improper" because Plaintiff's decisions about security clearances were wrong on the merits, in which case the agency's "predictive judgment" would become an issue and Egan would preclude judicial review. Alternatively, the adjudications might have been "improper" because Plaintiff did not follow certain agency policies about granting interim clearances. In Thomas v. Johnson — which, according to Plaintiff's counsel, is a "related" case
In short, this is not a case in which the specific, non-discriminatory reasons for suspending and then removing Plaintiff from her position as chief of the Personnel Security Branch are apparent or uncontested at this stage of the proceedings. Cf. Ryan, 168 F.3d at 524 (observing that to prove discrimination the plaintiffs had to "challenge the proffered [non-discriminatory] reason's authenticity"); Bennett, 425 F.3d at 1001 (stating that "[b]oth parties agree that TSA's proffered reason for terminating Bennett was her falsification" of her employment application); Foote, 751 F.3d at 657 (observing that the proffered reason for employment termination was failure to obtain agency reliability certification). Therefore, the court cannot conclude, on Defendants' motion to dismiss, that Plaintiff's Title VII claim is non-justiciable under Egan. With the benefit of discovery, and on a motion for summary judgment, the facts may crystallize and enable the court to re-evaluate the whether Egan precludes judicial review of Plaintiff's claim.
Plaintiff also asserts a discrimination claim under the "U.S. Constitution," which the court assumes arises under the Equal Protection Clause. Am. Compl. ¶ 1 ("This is a complaint seeking remedies for violations of Title VII ... and violations of the constitutional right to not be discriminated against on the basis of race."). Defendants move to dismiss Plaintiff's constitutional claim under Brown v. GSA, 425 U.S. 820, 829, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), in which the Court held that Title VII provides "an exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination." The court agrees with Defendants. Because Plaintiff's constitutional claim is identical to her discrimination claim under Title VII, her constitutional claim must be dismissed under Brown. See Kizas v. Webster, 707 F.2d 524, 542 (D.C.Cir.1983) (stating that "the Title VII remedy declared exclusive for federal employees in Brown v. GSA precludes actions
Plaintiff argues that, notwithstanding Brown, a constitutional claim remains available if Egan were to preclude relief under Title VII. Pl.'s Opp'n, ECF No. 33, at 26. But that argument, if accepted, would allow a plaintiff asserting employment discrimination to avoid Egan simply by invoking both Title VII and the Constitution, thus effectively nullifying Egan. Plaintiff, as a federal employee, is covered under Title VII. That statute provides her exclusive remedy. Accordingly, Plaintiff's constitutional claim is dismissed.
For the foregoing reasons, Defendants' Motion to Dismiss is denied in part and granted in part. Plaintiff may proceed with her Title VII claim, but her constitutional claim of discrimination is dismissed. The court shall issue a separate Order for an Initial Scheduling Conference.
