AMES v. NAPOLITANO

Filing 39

MEMORANDUM OPINION AND ORDER re: 31 Defendants' Motion to Dismiss. Signed by Judge Amit P. Mehta on 08/14/2015. (lcapm3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
Harriett A. Ames,
)
)
Plaintiff,
)
)
v.
)
)
Jeh Charles Johnson, et al.,
)
)
Defendants.
)
_________________________________________ )

Civil No. 1:13-cv-01054 (APM)

MEMORANDUM OPINION AND ORDER
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. 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 (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’s discrimination claim necessarily will require the court
to evaluate the merits of her security clearance decisions. Thus, the court cannot say for certain
that Egan precludes review of her discrimination claim. The court, therefore, denies Defendants’
motion to dismiss with respect to Plaintiff’s Title VII claim.

The court, however, grants

Defendants’ motion with respect to Plaintiff’s claim under the Equal Protection Clause, because
Title VII is the exclusive remedy for her discrimination claim.
II.

BACKGROUND
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”).1 Am. Compl., ECF No. 29, ¶¶ 4, 5, 15.
The Personnel Security Branch is a component of the Program Protection Division, which itself is
a component of the Office of the Chief Security Officer of FEMA. Id. ¶ 16. As the head of the
Personnel Security Branch, Ames was responsible for “adjudicating [security] clearances of
employees and prospective employees” within the Office of the Chief Security Officer. See id. ¶
19.
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).2 Plaintiff denies
this charge. Am. Compl. ¶ 24. The Final Agency Decision further states that Plaintiff was
suspended from her adjudicatory responsibilities because a review “had found several questionable

1
When Plaintiff filed her lawsuit on July 10, 2013, the Secretary of the Department of Homeland Security was Janet
Napolitano. Napolitano has since been replaced by Jeh Charles Johnson.
2
At a hearing held on August 7, 2015, the court ordered Plaintiff to produce the Final Agency Decision, which she
quoted in her complaint. Mot. Hr’g Tr. 14:16-14:19, Aug. 7, 2015 (draft). Plaintiff filed the document later that day.
See ECF No. 38-1. The court may consider that document on a motion to dismiss because it was incorporated in the
complaint. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

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cases that had been improperly adjudicated by [Plaintiff and her team],” had uncovered
“deficiencies in [her] branch,” and had revealed issues with Plaintiff’s “management style and
manner of processing.” Final Agency Decision at 7 (quoted in Am. Compl. ¶ 22).
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 for removing her from adjudicating security clearances “are unworthy of credence
and are mere pretexts for discrimination and retaliation.” Id. ¶ 33.
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

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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. ¶¶ 4748.
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.
III.

LEGAL STANDARD
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 (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 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (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,

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550 U.S. at 556). 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). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S.
at 555). If the facts as alleged fail to establish that a plaintiff has stated a claim upon which relief
can be granted, the court must grant defendant’s Rule 12(b)(6) motion. See Am. Chemistry
Council, Inc. v. U.S. Dep’t of Health & Human Servs., 922 F. Supp. 2d 56, 61 (D.D.C. 2013).
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 (2002).3 As long as the “allegations give [the defendant] fair notice of what
petitioner’s claims are and the grounds upon which they rest,” the notice pleading requirement of
Rule 8(a) is met. Id. at 514. Once a Title VII claim has been adequately stated, “it may be
supported by showing any set of facts consistent with the allegations in the complaint.” Twombly,
550 U.S. at 563 (other citations omitted) (citing Swierkiewicz, 534 U.S. at 514).
IV.

DISCUSSION
A.

Plaintiff’s Title VII Claim

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. The

 In cases where there is no direct evidence of discrimination, courts have used the McDonnell Douglas framework to
evaluate whether a plaintiff’s claim can survive a motion for summary judgment or judgment as a matter of law.
Under that framework, the plaintiff bears the burden of establishing a prima facie case by showing that: “(1) he is a
member of a protected class, (2) he suffered an adverse employment action, and (3) the unfavorable action gives rise
to an inference of discrimination (that is, an inference that his employer took the action because of his membership in
the protected class.)” Brown v. Sessoms, 774 F.3d 1016, 1022 (D.C. Cir. 2014). If the plaintiff establishes a prima
facie case, the burden shifts to the employer, who must “articulate some legitimate, nondiscriminatory reason for the
employment action,” which the plaintiff can rebut by showing that the employer’s stated reason is “merely pretext for
discrimination.” Id. at 1022-23 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) (internal
quotation marks omitted).  
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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 (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.
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 the plaintiffs’ claims, the court concluded that “a court cannot clear the
second step of McDonnell Douglas without running smack up against Egan.” Id. Because the
federal agency had proffered as its non-discriminatory reason for the non-hiring the fact that the
plaintiffs could not obtain security clearances, the court ruled that plaintiffs “could not challenge
the proffered reason’s authenticity without also challenging its validity.” Id. (citation omitted).
But the plaintiffs could not challenge the reason’s validity without asking the court to review the
merits of the security clearance decision—an action forbidden under Egan. Thus, the Court of
Appeals held that “under Egan an adverse employment action based on denial or revocation of a

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security clearance is not actionable under Title VII.” Id. (footnote omitted). See also Bennett v.
Chertoff, 425 F.3d 999, 1001 (D.C. Cir. 2005) (citations omitted) (holding that, under Egan,
“employment actions based on denial of security clearance are not subject to judicial review”).
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:
[W]e do not believe that Egan insulates from Title VII all decisions that might bear
upon an employee’s eligibility to access classified information. Rather, the Court
in 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.”
Id. at 767 (quoting Egan, 484 U.S. at 529). 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.

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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.” Defs.’ Mem. in Supp. of Mot.
to Dismiss, ECF No. 31-1, at 7.
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

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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.

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Johnson—which, according to Plaintiff’s counsel, is a “related” case4—the court held that the
latter situation did not necessarily require it to review the merits of an underlying security clearance
decision. See Thomas, 4 F. Supp. 3d at 160.
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 crystalize and enable the court
to re-evaluate the whether Egan precludes judicial review of Plaintiff’s claim.5

4

Plaintiff’s counsel raised the Thomas case for the first time at oral argument. See Mot. Hr’g Tr. 12:16-13:4, Aug. 7,
2015 (draft). Thomas involves an allegation that the plaintiff in that case improperly granted interim security
clearances to the same two employees at issue here—Gary Walker and James Bland. Compare Am. Compl. ¶ 25
(alleging that a reason for her removal was “erroneously granted security clearances” to Walker and Bland), with
Thomas, 4 F. Supp. 3d at 158 (stating that the plaintiff allegedly had violated agency policy by “permitting two
employees, Gary Walker and James Bland, to work in positions requiring a top secret security clearance while their
clearance applications were still being investigated”).
5
If discovery were to reveal direct evidence of discrimination, Plaintiff might avoid the Egan hurdle altogether,
because she would not need to prove pretext under McDonnell Douglas. See Trans World Airlines, Inc. v. Thurston,
469 U.S. 111, 121-22 (1985) (“[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct
evidence of discrimination.”). Furthermore, though it remains an open question in our Circuit, the Third Circuit has
held that Egan does not necessarily preclude review of a discrimination case based on a mixed-motive theory. See
Makky v. Chertoff, 541 F.3d 205, 213 (3d Cir. 2008) (“[W]e conclude that we have jurisdiction to review Makky’s
claim of discrimination because a discrimination claim under a mixed-motive theory does not necessarily require
consideration of the merits of a security clearance decision. . . . We reiterate that in analyzing Makky’s mixed-motive
Title VII claim, we cannot question the motivation behind the decision to deny Makky’s security clearance.”); see
also Zeinali v. Raytheon Co., 636 F.3d 544, 550 (9th Cir. 2011) (expressing agreement with the reasoning of Makky).

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B. Plaintiff’s Constitutional 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 (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 against federal officials for alleged constitutional violations as well as actions
under other federal legislation”).
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.

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V.

CONCLUSION AND ORDER
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.

Dated: August 14, 2015

Amit P. Mehta
United States District Judge

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