Summary Judgement in Security Clearance Context

Judge Mehta recently issued an interesting decision addressing security clearance issues in the Egan context, and holding that summary judgment could not be granted on the plaintiff's reassignment claim, despite the agency's attempts to argue that Egan barred judicial review of all of her claims. The plaintiff, Harriet Ames, worked for the Dept. of Homeland Security in FEMA, and alleged race / gender discrimination under Title VII for her reassignment and several other adverse actions.

The decision should be read by those who are faced with potential "national security" defenses in representing plaintiffs who have security clearances.

Congratulations to Phil Kete on this latest development in this long-running case. Some excerpts follow (emphasis added):

Ames v. Nielsen, et al., No. 2013-cv-1054 (D.D.C. Dec. 27, 2017)

I. INTRODUCTION

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. Following events that began with agency management stripping her Branch of some of its adjudicatory responsibilities and ended with her reassignment to a different unit, Plaintiff filed suit against Defendants under Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Constitution, alleging both retaliation and race, color, and gender discrimination.

This court previously dismissed Plaintiff's Equal Protection claim but deferred decision on whether Department of the Navy v. Egan, 484 U.S. 518 (1988), and its progeny barred Plaintiff's Title VII claims as non-justiciable. At the motion to dismiss stage, the court reasoned, it was too early to determine whether adjudicating Plaintiff's claims would require an evaluation of the merits of her security clearance decisions.

Now before the court is Defendant's Motion for Summary Judgment. After considering the record and the parties' briefs, the court concludes that Plaintiff has put forth sufficient evidence to survive summary judgment as to one of the three agency decisions underlying her claims-her reassignment. The court enters judgment in favor of Defendant with respect to the other two decisions at issue-stripping Plaintiff's Branch of security clearance adjudication responsibilities and temporarily transferring another agency employee into the Branch. The court therefore grants in part and denies in part Defendant's Motion for Summary Judgment. . . . . . . . 1. Justiciability of Plaintiff's Title VII Claims Under Egan

The parties agree that Egan and its progeny preclude judicial review of Title VII claims that require courts to evaluate the merits of security clearance determinations, but disagree as to whether Egan applies in this case. See Ames v. Johnson, 121 F. Supp. 3d 126, 127 (D.D.C. 2015). In Egan, the Supreme Court held that the Merit Systems 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. 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 (second alteration in original) (citation omitted). The Court explained that "it 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. Thus, the ordinary presumption favoring reviewability of administrative actions "runs aground when it encounters concerns of national security." Id. at 526-27.

D.C. Circuit precedent has sharpened Egan's application in this jurisdiction. In Ryan v. Reno, the plaintiffs were denied federal jobs because they were not granted the required security clearances, a decision that the plaintiffs asserted was discriminatory. 168 F.3d 520, 522-23 (D.C. Cir. 1999). Stating that it was "necessary" to apply the McDonnell Douglas burden-shifting analysis to determine the merits of the plaintiffs' claims, the court concluded that it could not "clear the second step of McDonnell Douglas without running smack up against Egan." Id. at 523-24. Specifically, because the federal agency had proffered the plaintiffs' inability to obtain security clearances as its non-discriminatory reason for the non-hiring, the court ruled that plaintiffs "could not challenge the proffered reason's authenticity without also challenging its validity." Id. at 524. Challenging the reason's validity, in turn, would have required the plaintiffs to ask the court to review the merits of the security clearance decisions-a result forbidden by Egan. See id. Accordingly, the court in Ryan found the plaintiffs' claims to be non-justiciable under Egan. Id. at 524-25. Cases after Ryan similarly have held that Egan bars Title VII claims where "an adverse employment action [is] based on denial or revocation of a security clearance," Ryan, 168 F.3d at 524; see Foote v. Moniz, 751 F.3d 656, 658-59 (D.C. Cir. 2014) (holding Title VII plaintiff could not challenge the Department of Energy's decision to deny him certification under its Human Reliability Program, which evaluated the suitability of employment applicants who would have access to nuclear devices, materials, or facilities); Bennett v. Chertoff, 425 F.3d 999, 1003 (D.C. Cir. 2005) ("Bennett could not challenge the authenticity of TSA's proffered reason [for termination]-her inability to maintain a security clearance-without also challenging the validity of the reason, which is what Ryan prohibits.").

The D.C. Circuit also has limited Egan's reach. In Rattigan v. Holder, the court held that Egan does not "insulate[] from Title VII all decisions that might bear upon an employee's eligibility to access classified information." 689 F.3d 764, 767 (D.C. Cir. 2012). Instead, because "Egan emphasized that the decision to grant or deny security clearance requires a '[p]redictive judgment' that 'must be made by those with the necessary expertise in protecting classified information,'" Egan does not preclude review of decisions by employees lacking expertise insecurity matters who merely report security concerns. Id. at 767-68 (alteration in original) (quoting Egan, 484 U.S. at 529). In particular, the court concluded that Egan does not apply to discrimination claims premised on the assertion that that "agency employees acted with a retaliatory or discriminatory motive in reporting or referring information that they knew to be false." Id. at 771. . . . . . . . C. November Removal and Reassignment

Finally, the court turns to Defendant's decision to remove Plaintiff from her position as Chief of the Personnel Security Branch and to reassign her as head of the Training Section. For the reasons stated below, the court not only finds that Egan is inapplicable to Plaintiff's Title VII claims based on the reassignment, but also holds that there is sufficient evidence upon which a reasonable jury could conclude that the reassignment was adverse and that Defendant's proffered reasons for that decision were pretext for discrimination and retaliation.

1. Justiciability of Plaintiff's Title VII Claims Under Egan

The question whether Egan bars judicial review of Plaintiff's Title VII claims predicated on her reassignment turns on whether Defendant's proffered explanation for that action involves a predictive judgment about security risk. It does not.

As with the September detail, Defendant has proffered different reasons for its November reassignment decision. In its interrogatory responses, for example, Defendant states that Salazar made the decision to reassign Plaintiff due to concerns about the improper adjudication of security clearances. See Pl.'s Exs. at 23.7 Now in its Motion, Defendant claims that a series of other individuals participated in the decision both to remove Plaintiff as Chief of the Branch and to reassign her to a different position, citing broad reasons relating to the SCR as the basis for its decision-namely, that Plaintiff failed to accept the results of the SCR and impeded Defendant's efforts to address the shortcomings identified therein. See, e.g., Def.'s Mem. at 3, 9, 30; cf. Def.'s Stmt., ¶¶ 89-90. It ought to be plain by now that Egan does not necessarily preclude review of such reasons for an employment decision. See Rattigan, 689 F.3d at 770 (noting that "it is our

duty 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" (alteration in original) (internal quotation marks omitted)). Because a reasonable trier of fact could conclude that security-clearance concerns had little, or nothing at all, to do with the decision to reassign Plaintiff, the court cannot conclude at this stage as a matter of law that Plaintiff's discrimination claims premised on the November reassignment are non-justiciable. . . . . . . With respect to Plaintiff's retaliation claim, the court finds that Plaintiff can proceed to trial. For the reasons already discussed, there is a genuine dispute of material fact as to whether the agency's reason for the reassignment was pretext. Moreover, the record facts are sufficient to support a reasonable inference of causation. Plaintiff initiated contact with the EEO Counselor in August 2011 and filed a formal Complaint in October 2011. See FAD at 2. The November reassignment occurred roughly two months later, on November 21, 2011. That temporal proximity is close enough to put the issue of causation to a jury. See Hamilton, 666 F.3d at 1357-58. Thus, Defendant's Motion for Summary Judgment is denied with respect to Plaintiff's discrimination and retaliation claims premised on her reassignment.