Hambrick v. McHugh

Filing 37

MEMORANDUM OPINION AND ORDER - For the reasons explained above, the Court grants Secretary Espers partial motion to dismiss. The Court dismisses for lack of subject matter jurisdiction count two of Mr. Hambricks third amended complaint and the portio n of count three of Mr. Hambricks third amended complaint that concerns his security clearance. Within 10 days of entry of this order, the parties shall please confer and file an amended Rule 26(f) report. Thus, the Court denies as moot Mr. Hambricks motion for an order setting deadlines for the submission of a Rule 26 report. (Doc. 35). Signed by Judge Madeline Hughes Haikala on 2/14/2018. (KEK)

FILED
2018 Feb-14 PM 12:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ROBERT J. HAMBRICK,
Plaintiff,

v.
MARK T. ESPER,
in his official capacity as
Secretary of the Army,
Defendant.

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Case No. 5:15-cv-01038-MHH

MEMORANDUM OPINION AND ORDER
Plaintiff Robert Hambrick brings this employment discrimination action
against Mark T. Esper in his official capacity as Secretary of the Army. 1 Mr.
Hambrick asserts claims for race and gender retaliation in violation of Title VII of
the Civil Right Act of 1964. Pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, Secretary Esper asks the Court to dismiss count two and part of
count three of Mr. Hambrick’s third amended complaint because the Court may not

1

Mark T. Esper became the Secretary of the Army on November 15, 2017. See
https://www.army.mil/leaders/sa/bio/ (last visited February 7, 2018). Therefore, the Court asks
the Clerk to please substitute Mr. Esper for Mr. Speer as the defendant in this action. See Fed. R.
Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an official
capacity dies, resigns, or otherwise ceases to hold office while the action is pending. Later
opinions should be in the substituted party’s name, but any misnomer not affecting the parties’
substantial rights must be disregarded.”).

review as part of this action the Army’s decisions concerning security clearance
matters. (Doc. 28). For the reasons explained below, the Court grants the motion.
I.

STANDARDS OF REVIEW
Rule 12(b)(6) enables a defendant to move to dismiss a complaint for

“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). When evaluating a Rule 12(b)(6) motion to dismiss, a district court
accepts as true the allegations in the complaint and construes the allegations in the
light most favorable to the plaintiff. See Brophy v. Jiangbo Pharms. Inc., 781 F.3d
1296, 1301 (11th Cir. 2015).

The Court presents Mr. Hambrick’s factual

allegations accordingly.
II.

FACTUAL ALLEGATIONS
Since June 20, 2002, Mr. Hambrick, an African-American man, has worked

for the United States Army at the Redstone Army Garrison in Huntsville, Alabama.
(Doc. 27, ¶¶ 1, 4). From October 2012 until February 2014, Mr. Hambrick worked
in a GS-11 position as an EEO Specialist. (Doc. 27, ¶¶ 1, 2, 38).
As an EEO Specialist, Mr. Hambrick was responsible for receiving,
processing, and investigating claims of employment discrimination at Redstone
Arsenal and counseling employees who made allegations of workplace
discrimination. (Doc. 27, ¶ 2). Mr. Hambrick reported to Jacqueline Williams and
Martha Miller. (Doc. 27, ¶ 1). Mr. Hambrick received “top performance ratings
2

and was considered a very dependable employee.” (Doc. 27, ¶ 5). Supervisors
praised Mr. Hambrick for “frequently exceed[ing] standards,” and Mr. Hambrick’s
last performance evaluation before his EEO activity states that Mr. Hambrick’s
“co-workers have a high regard for his knowledge and will seek him out when they
need a second opinion.” (Doc. 27, ¶ 5).
In November 2011 and November 2013, Mr. Hambrick filed EEO
complaints against his supervisors. (Doc. 27, ¶ 8). Mr. Hambrick has not provided
details about the nature of these complaints.
At some point during Mr. Hambrick’s employment, the agency placed a GS12 program analyst in the EEO office. (Doc. 27, ¶ 10). Mr. Hambrick did not
qualify for the GS-12 program analyst position because the position was available
only through management’s intern program. (Doc. 27, ¶ 10). Therefore, Mr.
Hambrick believed that he could not advance beyond a GS-11 position. (Doc. 27,
¶ 10). According to Mr. Hambrick, “[h]is GS-11 status was his career ceiling in
the EEO office.” (Doc. 27, ¶ 10).
In December 2013, after management placed the GS-12 program analyst in
the EEO office, Mr. Hambrick sent emails to his supervisors and “complained that
he was performing the same duties as a high level Caucasian female intern, Ms.
Corlew, who as a GS-12, was receiving substantially more pay than Mr.
Hambrick.” (Doc. 27, ¶ 11). Mr. Hambrick contends that from 2010 through
3

December 2013, supervisors assigned him more work and less favorable work
assignments than Ms. Corlew. (Doc. 27, ¶ 14). In a December 18, 2013 email to
Ms. Williams, Ms. Miller, and Deputy Commander Curtis Clark, Mr. Hambrick
stated:
I show more initiative th[a]n your analyst and yet my pay grade is less
. . . not fair or right. Without an explanation of these disparities, I
consider this subtle discrimination. Like I’ve said time and time
before, I would like to be treated the same as all of the other folks.
(Doc. 27, ¶ 12). In his email, Mr. Hambrick also stated that the job duties that he
and Ms. Corlew performed required the same knowledge, skill, and responsibility,
but Ms. Corlew had no previous EEO experience that justified a $14,500 salary
difference. (Doc. 27, ¶ 13).
In January 2014, Mr. Hambrick filed an EEO complaint. (Doc. 27, ¶ 22).
Mr. Hambrick has not provided details about the nature of the January 2014 EEO
complaint.
Mr. Hambrick alleges that after he complained about the agency placing Ms.
Corlew in the GS-12 position, his working relationship with Ms. Miller and Ms.
Williams became “very strained.” (Doc. 27, ¶ 15). Ms. Miller and Ms. Williams
“constantly . . . harassed” Mr. Hambrick for “extremely minor issues.” (Doc. 27, ¶
16). According to Mr. Hambrick, the “constant degrading” and “verbal abuse”
continued on a daily basis, and Mr. Hambrick believed that Ms. Miller and Ms.
Williams were belittling him to try to force him to resign. (Doc. 27, ¶ 17). In
4

addition, Ms. Miller asked Redstone police to provide “close patrol” near the EEO
office and to walk through the building occasionally. (Doc. 27, ¶ 29).
On February 4, 2014, Ms. Williams called Mr. Hambrick into the conference
room in the EEO office and gave him a letter of counseling. (Doc. 27, ¶ 7).
According to Mr. Hambrick, the letter:
criticized [him] for a series of email inquiries he had made in
December 2013 regarding the handling of a new GS-12 position in the
EEO office, which would have constituted a promotion for him, and
his feeling that he was being treated in a discriminatory fashion due to
his race and sex as it relates to job duties and pay.
(Doc. 27, ¶ 9). The counseling letter revoked Mr. Hambrick’s access to the
internet and a job-related database, both of which Mr. Hambrick needed to do his
job. (Doc. 27, ¶19). Before he received the counseling letter on February 4, 2014,
Mr. Hambrick had not been disciplined. (Doc. 27, ¶ 6). Mr. Hambrick believes
that Ms. Williams issued the February 4, 2014 counseling letter in retaliation for
his complaints of race, sex, and pay discrimination because Ms. Williams and Ms.
Miller knew about Mr. Hambrick’s prior EEO activity. (Doc. 27, ¶ 20).
Mr. Hambrick acknowledged the counseling, signed the letter, and went to
his office. (Doc. 27, ¶ 20). Ms. Williams asked Mr. Hambrick to return to her
office. Mr. Hambrick refused, and Ms. Miller ordered Mr. Hambrick to leave the
office and take the rest of the day off. (Doc. 27, ¶ 23). Mr. Hambrick had parked

5

his car in a lot off base that morning, so Mr. Hambrick called security to request an
escort to his car. (Doc. 27, ¶ 24).
When Ms. Miller and Ms. Williams learned that Mr. Hambrick called
security, Ms. Miller called Redstone Arsenal’s Emergency Services Director and
Chief of Police and reported that Mr. Hambrick had “created a disturbance in the
office.” (Doc. 27, ¶ 26). Mr. Hambrick contends that Ms. Miller knew that her
report to police about him was “false, exaggerated, and misleading.” (Doc. 27, ¶
27). Mr. Hambrick also maintains that Ms. Miller told EEO staff that he had been
disorderly when Ms. Miller knew that this information was not true. (Doc. 27, ¶
27).
When police arrived at the EEO office, Mr. Hambrick was waiting quietly
outside for a ride to his car. (Doc. 27, ¶ 31). At Ms. Miller’s direction, police
questioned, searched, handcuffed, and arrested Mr. Hambrick. (Doc. 27, ¶ 32).
Police later released Mr. Hambrick and instructed him not to return to the EEO
office. (Doc. 27, ¶ 32). One of Mr. Hambrick’s co-workers in the EEO office
witnessed Mr. Hambrick’s arrest and stated that “considering the tense race
relations in this office[,] I can’t rule out that intolerance wasn’t a factor preceding
the arrest.” (Doc. 27, ¶ 34).
On February 19, 2014, Ms. Miller advised Mr. Hambrick that he could
return to full duty on February 24, 2014, but Mr. Hambrick could not work in the
6

EEO office. (Doc. 27, ¶ 38). Ms. Miller told Mr. Hambrick to report to a nonsupervisory safety specialist who was located in a different building. (Doc. 27, ¶
38).

Mr. Hambrick alleges that in violation of the rules governing civilian

personnel, Ms. Miller transferred him to a position outside of his job classification,
under the supervision of a non-supervisory employee, to an office having no
connection with his EEO duties. (Doc. 27, ¶ 39). Since his return to work at the
end of February 2014, Mr. Hambrick has not been allowed to return to the EEO
office or the building where the office is located, and Mr. Hambrick has not
received meaningful work. (Doc. 27, ¶ 40). According to Mr. Hambrick, he
“merely report[s] to work and occup[ies] a desk.” (Doc. 27, ¶ 40).
On March 19, 2014, the agency delivered a memo to Mr. Hambrick. (Doc.
27, ¶ 42). The memo was dated March 10, 2014. (Doc. 27, ¶ 42). In the memo,
Ruby Childers, Redstone Arsenal’s Security Manager, advised that Redstone had
suspended Mr. Hambrick’s access to classified information and IT systems because
of Mr. Hambrick’s “disorderly conduct” and his “argumentative, aggressive, and
non-compliant behavior.” (Doc. 27, ¶ 42). Ms. Childers’s memo informed Mr.
Hambrick that “pending further adjudication of your case, you will be reassigned
to non-sensitive duties.” (Doc. 27, ¶ 43).
On March 28, 2014, Ms. Miller gave Mr. Hambrick notice of a proposed 10day suspension for “creating a disturbance in the workplace and discourtesy”
7

related to the events on February 4, 2014. (Doc. 27, ¶ 55). On June 17, 2014,
Deputy Commander Clark converted the proposed suspension to a final decision
and suspended Mr. Hambrick for 10 days without pay. (Doc. 27, ¶ 57). The
suspension was effective June 23, 2014. (Doc. 27, ¶ 57). Mr. Hambrick had
named Deputy Commander Clark as a “discriminating official” in at least two of
his (Mr. Hambrick’s) EEO complaints. (Doc. 27, ¶ 58).2
After Deputy Commander Clark officially suspended Mr. Hambrick without
pay, Mr. Hambrick learned that Deputy Commander Clark previously had denied
without explanation a “time off” award for which Mr. Hambrick had been
recommended based on Mr. Hambrick’s service between December 14, 2012 and
October 5, 2013. (Doc. 27, ¶¶ 59-60). Based on Deputy Commander Clark’s
decision to deny the “time off” award, Mr. Hambrick has one less merit award than
other similarly-situated GS-11 personnel which, according to Mr. Hambrick,
makes him less competitive for promotional opportunities. (Doc. 27, ¶ 62). Mr.
Hambrick alleges that all other non-supervisory female employees in Redstone’s
EEO office, including Ms. Corlew, received their “time off” awards, and none of
these female employees filed EEO complaints. (Doc. 27, ¶¶ 63, 64).
On July 24, 2014, Ms. Childers submitted an incident report to the
Department of Defense’s Central Adjudication Facility or CAF and formally
2

The third amended complaint does not specify which complaints named Deputy Commander
Clark or when Mr. Hambrick filed the complaints.
8

sought suspension of Mr. Hambrick’s security clearance. (Doc. 27, ¶¶ 47-49).
CAF is the entity that determines whether to suspend or revoke an Army
employee’s security clearance.

(Doc. 27, ¶ 48).

In the incident report, Ms.

Childers stated that Mr. Hambrick posed a security threat and had “psychological
conditions” which made Mr. Hambrick “unfit for duty.” (Doc. 27, ¶ 53). Mr.
Hambrick alleges that the incident report contained false and misleading
information. (Doc. 27, ¶ 49). According to Mr. Hambrick, the agency submitted
the incident report and sought to revoke his security clearance in retaliation for his
EEO complaints. (Doc. 27, ¶ 50). Mr. Hambrick contends that since Ms. Childers
submitted the incident report, CAF has not acted upon Ms. Childers’s report or
suspended his security clearance. (Doc. 27, ¶¶ 52, 78). Mr. Hambrick continues to
perform “meaningless tasks” at a desk away from his EEO work station. (Doc. 27,
¶ 52; see also Doc. 27, ¶ 75).
Because Mr. Hambrick has not performed work in the EEO office since
February 2014, Mr. Hambrick contends that he has missed three annual
performance evaluation cycles, and his job application and resume will have a gap
in service.

(Doc. 27, ¶ 77).

On at least three occasions during 2014, Mr.

Hambrick’s supervisors denied requests for leave without pay, sick leave, and
annual leave. (Doc. 27, ¶ 78).

9

In February 2015, Deputy Commander Clark called Mr. Hambrick to his
office to discuss Mr. Hambrick’s pending EEO claims and to attempt to force Mr.
Hambrick to settle the claims. (Doc. 27, ¶ 65). The proposed settlement involved
reinstatement of Mr. Hambrick’s security clearance and his transfer to another
Army facility out of state. (Doc. 27, ¶¶ 66, 67(e)). Specifically, Redstone Arsenal
offered to “reverse the local suspension of [Mr. Hambrick’s] access to classified
information and Information Technology (IT) Systems.” (Doc. 27, ¶ 67(e); see
also Doc. 30-3, p. 2, ¶ 3(e)) (emphasis added). Mr. Hambrick asserts that the
Army’s attempt to transfer him “to Fort Leonard Wood is a clear indication of the
lack of validity of the security clearance issues raised by the Defendant against Mr.
Hambrick.” (Doc. 27, ¶ 73).
Mr. Hambrick contends that on the Army’s side, “[a]ll management figures
were involved with the settlement discussions, including agency counsel,” but his
attorney was not included in the settlement discussions until agency counsel
contacted his attorney to ask for “permission to communicate with Mr. Hambrick
to obtain his signature on the settlement documents.” (Doc. 27, ¶¶ 65, 69, 71). Mr.
Hambrick asserts that “Mr. Curtis’ attempt to force a resolution of Mr. Hambrick’s
EEO complaints without the knowledge of his counsel was another act of
retaliation and a retaliatory hostile work environment.” (Doc. 27, ¶ 72).

10

According to Mr. Hambrick, Ms. Miller, Ms. Williams, and Deputy
Commander Clark have resigned from their positions with the Army. (Doc. 27, ¶
79).
Based on these allegations, Mr. Hambrick asserts four counts of Title VII
race and gender retaliation claims against Secretary Esper. In his third amended
complaint, Mr. Hambrick alleges that Secretary Esper, through his managerial
employees, retaliated against Mr. Hambrick by:
• Submitting a false police report about Mr. Hambrick’s conduct on
February 4, 2014, (Count I, Doc. 27, ¶ 82);
• Submitting false information to CAF as a basis to revoke Mr.
Hambrick’s security clearance, (Count II, Doc. 27, ¶ 83);
• Transferring Mr. Hambrick from the EEO specialist position to a desk
with no duties for over three months before officially seeking to
revoke his security clearance; issuing a 10-day suspension without
pay; and denying the “time off” award that Mr. Hambrick earned,
(Count III, Doc. 27, ¶ 84);
• Attempting to force Mr. Hambrick to settle his EEO claims by
requiring him to move out of state without notifying Mr. Hambrick’s
attorney, (Count IV, ¶ 85).

11

III.

ANALYSIS
The Secretary argues that the Court must dismiss count two and part of

count three of Mr. Hambrick’s third amended complaint to the extent that these
retaliation claims concern security clearance investigations and determinations
because, according to the Secretary, “[i]t is well-established that government
agency security investigations and determinations are not reviewable as alleged
retaliation or other discrimination under Title VII and other discrimination
statutes.” (Doc. 23, p. 4) (citing Dep’t of Navy v. Egan, 484 U.S. 518 (1988), and
Hill v. White, 321 F.3d 1334 (11th Cir. 2003)).
In Egan, the Supreme Court held that the Merit Systems Protection Board
did not have authority “to review the substance” of the Navy’s “underlying
decision to deny or revoke a security clearance in the course of reviewing” the
plaintiff’s wrongful termination claim. Egan, 484 U.S. at 520. The Supreme
Court explained that “the grant of security clearance to a particular employee, a
sensitive and discretionary judgment call, is committed by law to the appropriate
agency of the Executive Branch.” Egan, 484 U.S. at 527. The Supreme Court
continued:

The grant of a clearance requires an affirmative act of discretion on
the part of the granting official. The general standard is that a
clearance may be granted only when “clearly consistent with the
interests of the national security.” See, e.g., Exec. Order No. 10450,
§§ 2 and 7, 3 CFR 936, 938 (1949–1953 Comp.); 10 CFR § 710.10(a)
12

(1987) (Department of Energy); 32 CFR § 156.3(a) (1987)
(Department of Defense). A clearance does not equate with passing
judgment upon an individual’s character. Instead, it is only an attempt
to predict his possible future behavior and to assess whether, under
compulsion of circumstances or for other reasons, he might
compromise sensitive information. It may be based, to be sure, upon
past or present conduct, but it also may be based upon concerns
completely unrelated to conduct, such as having close relatives
residing in a country hostile to the United States. “[T]o be denied
[clearance] on unspecified grounds in no way implies disloyalty or
any other repugnant characteristic.” Molerio v. FBI, 242 U.S. App.
D.C. 137, 146, 749 F.2d 815, 824 (1984). The attempt to define not
only the individual’s future actions, but those of outside and unknown
influences renders the “grant or denial of security clearances ... an
inexact science at best.” Adams v. Laird, 136 U.S. App. D.C. 388,
397, 420 F.2d 230, 239 (1969), cert. denied, 397 U.S. 1039, 90 S. Ct.
1360, 25 L.Ed.2d 650 (1970).
Egan, 484 U.S. at 528-29.
Because “[p]redictive judgment of this kind must be made by those with the
necessary expertise in protecting classified information,” the Supreme Court
concluded that:
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. Certainly, 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. Nor can such a body determine what constitutes an
acceptable margin of error in assessing the potential risk.
Egan, 484 U.S. at 529.
Applying Egan, in Hill, the Eleventh Circuit held that the district court
properly dismissed, pursuant to Rule 12(b)(6) of the Federal Rules of Civil
13

Procedure, a civilian Army employee’s age discrimination claim based on a
suspension of the employee’s security clearance. Hill, 321 F.3d at 1335-36. In
Hill, the plaintiff alleged “that his supervisor initiated disciplinary proceedings
against him for charges that he sa[id] were false and frivolous and motivated by a
desire to discriminate against him because of his age.” Hill, 321 F.3d at 1335.
Consistent with a final administrative decision, the plaintiff was suspended for
three days, and he had to undergo a mental evaluation. Hill, 321 F.3d at 1335.
Afterwards, the Army suspended the plaintiff’s security clearance. Hill, 321 F.3d
at 1335.
The plaintiff in Hill did “not challenge the decision to suspend his security
clearance.” Hill, 321 F.3d at 1335. Instead, the plaintiff challenged “the initiation
of the security clearance investigation, claiming it was improperly motivated by
discrimination.” Hill, 321 F.3d at 1335. In finding that the district court properly
held that the plaintiff’s claim was not within the jurisdiction of the court, the
Eleventh Circuit held:
The United States Supreme Court has made clear that a decision
concerning the issuance or non-issuance of security clearance is a
matter within the purview of the executive and not to be secondguessed by the judiciary unless Congress has specifically provided
otherwise. Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct.
818, 98 L.Ed.2d 918 (1988). To review the initial stages of a security
clearance determination is to review the basis of the determination
itself regardless of how the issue is characterized.
Hill, 321 F.3d at 1336.
14

Mr. Hambrick acknowledges that in Egan, the Supreme Court “held that
lower courts could not review the substance of Executive Branch security
clearance decisions, in the context of assessing other viable legal claims, including
those under Title VII, in deference to national security,” and that in Hill, the
Eleventh Circuit “cited Egan in dismissing discrimination claims that challenge
employment actions involving the security clearance process.” (Doc. 30, pp. 1-2).
Citing Rattigan v. Holder, 689 F.3d 764 (D.C. Cir. 2012), a decision from the
United States Court of Appeals for the District of Columbia, Mr. Hambrick argues
that his claim should survive because, like the plaintiff in Rattigan, the “security”
concerns at issue that prompted the initial security clearance action against him
belong only to “lower level employees,” and the “predictive judgments that fall
within the scope of Egan and the national security exemption are the province of
the Department of Defense’s Consolidated Adjudications Facility (DoD CAF) and
employees specifically trained in such matters.” (Doc. 30, p. 2; see generally Doc.
27 (alleging that security clearance action was local and that CAF has not acted on
the incident report that Redstone Arsenal submitted to CAF)).3
In Rattigan, an FBI employee alleged that the agency retaliated against him
in violation of Title VII “by reporting unfounded security concerns” to the security
division which led to an investigation into the plaintiff’s “continued eligibility for a
3

Rattigan is an appeal from a jury verdict in favor of the plaintiff on a retaliation claim. 689
F.3d at 766.
15

security clearance.” Rattigan, 689 F.3d at 765. On petition for rehearing, the
District of Columbia Circuit maintained its holding that “Egan’s absolute bar on
judicial review covers only security-related decisions made by trained Security
Division personnel and does not preclude all review of decisions by other FBI
employees who merely report security concerns” because “the decision by a nonexpert employee to refer a colleague for a potential security investigation is
categorically unlike the predictive judgment made by appropriately trained
adjudicative personnel who make security clearance decisions pursuant to
delegated Executive authority and subject to established adjudicative guidelines.”
Rattigan, 689 F.3d at 767-78 (internal quotation marks and alteration omitted).
To prevent the chilling of reports of security concerns by non-expert
employees, the Rattigan court held that a plaintiff’s Title VII retaliation claim
relating to the initiation of a security clearance investigation could proceed only if
the plaintiff could “show that agency employees acted with a retaliatory or
discriminatory motive in reporting or referring information that they knew to be
false.” Rattigan, 689 F.3d at 771. The District of Columbia Circuit found that an
employee’s Title VII claims of knowingly false security reports or referrals is
consistent with Egan because “[h]owever critical it is for employees to report
doubtful or unreliable information, the Security Division cannot possibly be
assisted by employees who knowingly report false information—that is, outright
16

lies—about fellow employees.” Rattigan, 689 F.3d at 770. The Rattigan court
reasoned that a federal agency has no “greater competence than juries when it
comes to determining what a particular person knew at a particular time and
whether that person intentionally reported false information about a co-worker.”
Rattigan, 689 F.3d at 771.

The District of Columbia Circuit concluded that

“[w]ere we to declare all reporting-based claims nonjusticiable, federal employees
could no longer seek redress for the harm caused when a coworker fabricates
security concerns in retaliation for statutorily protected activity, and Congress’s
purpose in enacting Title VII would be frustrated.” Rattigan, 689 F.3d at 771.
Mr. Hambrick’s factual allegations are on all-fours with the Rattigan
decision, but Rattigan is not binding on this Court, and Hill, binding Eleventh
Circuit precedent, provides that this Court may not exercise jurisdiction over Mr.
Hambrick’s claims based on Ms. Childers’s initiation of a security clearance
revocation. Like the plaintiff in Hill, Mr. Hambrick claims that the charges against
him are “false and frivolous and motivated by a desire to discriminate against
him.” (Compare Doc. 1, ¶ 49 with Hill, 321 F.3d at 1335). As in Hill, to the
extent that Mr. Hambrick’s retaliation theories rest upon allegations concerning

17

“the initial stages of a security clearance determination,” the Court is without
jurisdiction to adjudicate Mr. Hambrick’s claims. 4
IV.

CONCLUSION
For the reasons explained above, the Court grants Secretary Esper’s partial

motion to dismiss. The Court dismisses for lack of subject matter jurisdiction
count two of Mr. Hambrick’s third amended complaint and the portion of count
three of Mr. Hambrick’s third amended complaint that concerns his security
clearance.
Within 10 days of entry of this order, the parties shall please confer and
file an amended Rule 26(f) report. Thus, the Court denies as moot Mr. Hambrick’s
motion for an order setting deadlines for the submission of a Rule 26 report. (Doc.
35).
DONE and ORDERED this February 14, 2018.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

4

See also Paschal v. McHugh, 2015 WL 3836965, *21-23 (N.D. Ala. June 22, 2015), aff’d,
Paschal v. Sec’y of the Army, 648 Fed. Appx. 898 (11th Cir. 2016).
The Secretary filed his motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure. (Doc. 28, p. 1). Because the Eleventh Circuit decided Hill on the
basis of Rule 12(b)(6), the dismissal in this case rests on Rule 12(b)(6) rather than Rule 12(b)(1).
18