THOMAS v. NAPOLITANO et al

Filing 76

MEMORANDUM OPINION Re: Plaintiff's Second Amended Motion to Compel a 30(b)(6) Deposition 72 . A separate Order follows. Signed by Magistrate Judge Alan Kay on 03/30/15. (DM)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BURT R. THOMAS,
Plaintiff,
v.
JEH JOHNSON, Secretary, United
States Department of Homeland
Security,

Civil Action No. 13-359 (GK/AK)

Defendant.
MEMORANDUM OPINION
Pending before the Court are Plaintiff’s Second Amended Motion to Compel a 30(b)(6)
Deposition (“Motion”) [72]; Defendant’s Opposition to Plaintiff’s Motion (“Opposition”) [73];
and Plaintiff’s Reply to the Opposition (“Reply”) [74]. Plaintiff Burt R. Thomas (hereinafter
“Plaintiff” or “Thomas”) moves this Court to compel a Rule 30(b)(6) deposition of Defendant
Department of Homeland Security (“DHS”) (hereinafter “Defendant”).
I. Background
The underlying case stems from a complaint filed by Plaintiff alleging violations of Title
VII of the Civil Rights Act of 1964. Plaintiff was employed by the Federal Emergency
Management Agency (“FEMA”), beginning in July 2008. (6/03/2013 Amended Complaint [7]
¶5.) From February 27, 2011 through February 24, 2012, Plaintiff was officially assigned to the
position of Chief Security Officer for FEMA. (Amended Complaint ¶15.) According to Plaintiff,
FEMA claimed that in June of 2011, two or more of its employees reported to management “that
[Plaintiff] had committed fraud, covered up a sexual harassment claim, covered up an
employee’s DUI charge, covered up other misconduct, and influenced the outcome of security

1

clearance investigations” (Id. ¶17.) 1 On July 28, 2011, Plaintiff was detailed to a position within
the office of the DHS chief security officer for 180 days. (Id. ¶23.) In August 2011, Plaintiff
initiated an informal EEO complaint and in December 2011, he filed an administrative complaint
alleging discrimination based on race and color. (Amended Complaint [7] ¶¶12-13.) On February
23, 2012, FEMA notified Plaintiff that as of the following day he was “being demoted [which
included a pay reduction] to the GS-15 position of Director, Records Management Division, but
later changed to Field Coordinator in FEMA’s Logistics Operations Division.” (Id. ¶¶40-41.)
In its Answer to the Amended Complaint, Defendant asserted that a reason for demoting
Plaintiff was that:
Plaintiff allow[ed] Gary Walker and James Bland to enter on duty as Federal employees,
with only an interim Secret national security clearance (thereby waiving preappointment
investigative requirements) in positions that required a Top Secret national security
clearance with access to Sensitive Compartmented Information (TS/SCI), which are
categorized as Special-Sensitive positions. These actions violated 5 C.F.R.
§732.202(a)(2)(i), which prohibits an agency from waiving the preappointment
investigative process for appointment to Special-Sensitive positions, and the DHS and
FEMA security policies that reiterate and implement that prohibition.
(Motion at 2) (citing 7/11/2013 Answer to Amended Complaint [8] ¶56).
Plaintiff’s Interrogatory No. 7 requested that, for the period 2011-2012, Defendant
“identify each position requiring a TAS or TS-SCI clearance which was filled by a new hire or
contractor, and state whether at the time of entering on duty the person had a clearance at the
designated level.” (Motion at 2) (citing Interrogatory No. 7). In response thereto, Defendant
provided a chart in the form of an Excel worksheet (the “Chart”), which was interpreted by
Plaintiff to show that some of the persons who entered on duty did not undergo the requisite
background investigation and/or obtain the requisite a security clearance prior to their

1

FEMA initiated a DHS Inspector General investigation of Plaintiff (Amended Complaint ¶¶26,
33, 35.)
2

employment. (Motion at 3) (referencing Chart, a portion of which is attached as Motion, Exh.
C). Plaintiff subsequently noticed a Rule 30(b)(6) deposition to “make sure that his interpretation
of the spreadsheet was correct.” (Motion at 3); see Motion, Exh. B (October 27, 2014 Rule
30(b)(6) Deposition Notice) setting a deposition for November 24, 2014.
On December 17, 2014, this Court convened a telephone conference with counsel,
whereby Defendant indicated that it was willing to provide Plaintiff with a declaration in lieu of
a Rule 30(b)(6) deposition. Plaintiff’s counsel consented to the provision of a declaration but he
did not waive his right to take a deposition if he found the declaration inadequate. 2 On January
16, 2015, Defendant provided Plaintiff’s counsel with the Declaration of Ms. Lynconyer Young.
(Motion, Exh. A (Declaration in Support of Motion to Compel Deposition [by counsel] ¶3)). 3
Plaintiff subsequently informed Defendant that he wanted to schedule Ms. Young’s deposition
for January 29, 2015. (Declaration by counsel ¶4.) Plaintiff explained that he wanted to
reconcile his understanding of Interrogatory No. 7, “show[ing] 23 people entering on duty into
TS-SCI positions prior to obtaining the necessary clearances” with Ms. Young’s affidavit
showing that “between 9 and 13 of these in fact had sufficient in-scope SSBIs.” (Id. ¶5.) 4
Defendant’s counsel would not voluntarily produce Ms. Young, and because Plaintiff’s counsel
is now uncertain whether Ms. Young “had anything to do with production of the interrogatory

2

Plaintiff subsequently provided Defendant with a draft declaration indicating the information
sought. (Motion at 3); see Motion, Exh. D (draft declaration).
3
Ms. Young is the Director of the Personnel Security Division, Office of the Chief Security
Officer (OCSO), Federal Emergency Management Agency (FEMA), U.S. Department of
Homeland Security. (Motion, Exh. E (Declaration of Lynconyer Young) ¶1.)
4
Plaintiff’s Motion provides two examples of persons who may not have received a security
clearance before entering into duty: Jerry E. Jeffries and Sabrina Jacobs. (Motion at 3; Motion,
Exh. C [Chart] at lines 137 & 159].)
3

answer, . . . [or whether] she ha[d] any responsibility regarding adjudication of security
clearances[,]” Plaintiff filed the instant Motion seeking a Rule 30(b)(6) deposition. (Motion at 4.)
II. Legal Standard
Federal Rule 30(b)(6) provides in relevant part that a party may name as the deponent a
governmental agency and “must describe with reasonable particularity the matters for
examination.” Fed. R. Civ. P. 30(b)(6). The government agency “must then designate one or
more” persons who will testify on its behalf and such persons “must testify about information
known or reasonably available” to the agency. Id.
III. Discussion
Plaintiff requests a Rule 30(b)(6) deposition responsive to the following inquiries: “(a)
the practice, during the years of 2011 and 2012, of hiring or promoting people into positions
designated as requiring TS-SCI clearances before that clearance has been granted, and (b) the
accuracy and interpretation of the chart provided in response to plaintiff’s interrogatory no. 7.”
(Reply at 3.)
Defendant opposes the Rule 30(b)(6) deposition on two grounds, namely: 1) that
Plaintiff voluntarily sought a declaration “in lieu” of a deposition and is now precluded from
taking a deposition (particularly since it is after the close of discovery); and 2) Plaintiff’s inquiry
infringes upon Defendant’s security clearance decisions and such inquiry is thus impermissible. 5
See generally Opposition. Defendant repeatedly reiterates that the Young Declaration was
provided to Plaintiff “in lieu” of a deposition. (Opposition at 2-5.) While Plaintiff did agree to
accept a declaration instead of immediately moving forward with the deposition, Plaintiff noted

5

Defendant argues that if the Court grants a Rule 30(b)(6) deposition, inquiry “should be limited
to only . . . the two alleged discrepancies specified in plaintiff’s motion to compel.” (Opposition
at 9) (emphasis in original).
4

during the December 17, 2014 conference call that he would review the declaration when he
received it to ascertain whether a deposition was still necessary. (Declaration by counsel ¶2.)
Defendant contends that Plaintiff would be “unjustly enriched” if the Court were to allow
him a Rule 30(b)(6) deposition after he obtained the Young Declaration and Defendant would
thus be prejudiced. (Opposition at 5.) Defendant’s argument is without merit because the
deadline for filing dispositive motions has been stayed by the trial court until there is a ruling on
this motion and thus, Defendant will not be prejudiced. (3/19/2015 Minute Order granting
Consent Motion to Stay Deadline to File Dispositive Motion.)
Defendant further argues that Plaintiff is attempting to improperly seek testimony
regarding the Defendant’s security clearance judgments, in contravention of the trial court’s
January 16, 2014 Memorandum Opinion [31] and Department of Navy v. Egan, 484 U.S. 518
(1988). (Opposition at 5.) 6 Defendant asserts that “plaintiff asks the Court to compel discovery
into the very thing this Court recognized as being barred from judicial review under Egan,
namely, defendant’s individualized security clearance judgments.” (Opposition at 6.) Defendant
further alleges that it is “inappropriate for plaintiff now to try to depose an employee of
defendant in order to elicit testimony regarding the Agency’s security clearance decisions in
individual cases.” (Opposition at 8.)
The Court agrees with the Plaintiff that Defendant “radically misstates the subjects of the
requested deposition.” (Reply at 3.) Plaintiff contends that “[n]either subject extends to asking a
deponent to ‘explain and/or justify’ any conclusion about the necessity for any clearance.”

6

See Memorandum Opinion [31] at 7 (“Resolving Plaintiff’s Title VII claim, as it is alleged in
the Amended Complaint, does not require the Court to review the validity of any “predictive
judgment” made “by those with the necessary expertise in protecting classified information.”)
(citation omitted).
5

(Reply at 4.) With regard the Plaintiff’s aforementioned first inquiry, Plaintiff indicates that the
answer to that question “might be that the practice was to not hire or promote people into
positions designated as requiring TS-SCI clearances before that clearance has been granted,
which would be the case if there were an absolute prohibition against hiring pending clearance
decisions [and] [t]hat, obviously, does not involve any predictive judgment whatsoever.” (Reply
at 4.) 7 Plaintiff further explains that the second inquiry is the “accuracy and interpretation of
defendant’s earlier interrogtoary answer.” (Id.)
The Court finds that the deposition at issue is necessitated by Defendant’s own actions in
providing a Declaration by Ms. Young that seemingly contradicts, at least in part, the Chart that
was provided by Defendant in response to Interrogatory No. 7. Accordingly, Plaintiff should be
permitted to conduct a Rule 30(b)(6) deposition to ask questions about the accuracy and
interpretation of the Chart provided in response to Interrogatory No. 7. The Court further finds
that Plaintiff may inquire as to “the Defendant’s practice, during the years of 2011 and 2012, of
hiring or promoting people into positions designated as requiring TS-SCI clearances before that
clearance had been granted,” with the understanding that Defendant may provide a concise
statement of its “practice” during that time frame without getting into the details of any specific
grant or denial of a security clearance. Because the scope of inquiry is narrowly defined, the
deposition should be completed in approximately one and one half hours.

DATED: 3-30-2015

______________/s/____________________
ALAN KAY
UNITED STATES MAGISTRATE JUDGE

7

Alternatively, Plaintiff suggests that the Defendant might answer that decisions were “made on
a case-by-case basis.” (Reply at 4.)
6