WYER v. PANETTA

Filing 40

ORDER denying 32 Motion for Reconsideration of Court's Order Granting in Part Defendant's Motion to Dismiss Cause of Action No. 3. Signed by Judge Richard L. Young on 10/7/2013. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

LISA M. WYER,
Plaintiff,
vs.
CHUCK HAGEL,
Defendant.

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1:12-cv-01261-RLY-DML

ENTRY ON PLAINTIFF’S MOTION TO RECONSIDER THE COURT’S
ORDER GRANTING IN PART DEFENDANT’S MOTION TO DISMISS
CAUSE OF ACTION NO. 3
Plaintiff, Lisa M. Wyer, is a former employee with Defense Finance and
Accounting Services (“DFAS”), an agency of the Department of Defense (“DOD”). In
Plaintiff’s third cause of action, she alleges, inter alia, that her superiors at DFAS
retaliated against her and created a hostile work environment under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended, by initiating an
administrative investigation into her eligibility to occupy a non-critical sensitive position.
Defendant, Chuck Hagel, in his capacity as the Secretary of the DOD, moved to dismiss
Plaintiff’s third cause of action for lack of subject matter jurisdiction, and the court
granted the motion, in part, on June 13, 2013. Plaintiff now moves the court to
reconsider that ruling.
In its Entry, the court relied upon the Supreme Court’s decision in Department of
the Navy v. Egan, 484 U.S. 518 (1988), which held that a decision concerning the
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issuance or non-issuance of security clearance is a discretionary decision made
exclusively by the Executive Branch of government, and is not to be second-guessed by
the judiciary. Id. at 528-30 (“[U]nless Congress specifically has provided otherwise,
courts traditionally have been reluctant to intrude upon the authority of the Executive in
military and national security affairs.”). Plaintiff sought to distinguish her case from
Egan by noting that her challenge is limited to the conduct which led to the initiation of
an administrative investigation into her eligibility to hold a security clearance, and not the
substance of the decision itself. The court rejected this argument, relying on a Fourth
Circuit decision which held, “The distinction between the initiation of a security
investigation and the denial of a security clearance is a distinction without a difference,”
because the reasons advanced in support of a security investigation may be the same
reasons why the final security decision is made, leading the court to review the very
issues the Egan Court held are non-reviewable. Becerra v. Dalton, 94 F.3d 145, 149 (4th
Cir. 1996).
Citing Rattigan v. Holder, 689 F.3d 764 (D.C. Cir. 2012), Plaintiff argues once
again that a Title VII plaintiff may bring a discrimination or retaliation claim based on
the conduct that led to the initiation of a security clearance investigation. Rattigan
limited its holding to cases where a Title VII plaintiff could “show that agency employees
acted with retaliatory or discriminatory motive in reporting or referring information that
they knew to be false.” Id. at 771. In other words, Rattigan is limited to situations where
employees report “outright lies” about fellow employees. Id. at 770.

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Plaintiff’s reliance on Rattigan is misplaced. First, Rattigan is not new law, and
was published before the parties’ briefed the Defendant’s motion to dismiss. In fact,
Plaintiff referred to Rattigan in her opposition to that motion only to refute Defendant’s
characterization of the case. (See Plaintiff’s Response at 7 (“Defendant also cites
[Rattigan], but mischaracterizes the holding. . . . It did not, as Defendant improperly
states, reaffirm that Egan precludes review under Title VII of a decision to investigate
security clearance eligibility.”). Plaintiff did not argue then that her claim fit within
Rattigan’s holding. Because “[m]otions to reconsider are not for addressing arguments
that a party should have raised earlier,” Solis v. Current Dev. Corp., 557 F.3d 772, 780
(7th Cir. 2009), Plaintiff’s reliance on Rattigan’s holding is without merit. Second, even
if the court were to adopt Rattigan’s reasoning for purposes of Plaintiff’s motion to
reconsider, Plaintiff’s dismissed claim would not fall within the narrow scope of its
holding. Although Plaintiff now argues Defendant made knowingly false statements and
allegations which led to the initiation of the investigation into her security clearance,
Plaintiff’s Complaint contains no such allegations. For these reasons, Plaintiff’s Motion
to Reconsider the Court’s Order Granting In Part Defendant’s Motion to Dismiss Cause
of Action No. 3 (Docket # 32) is DENIED.

SO ORDERED this 7th day of October 2013.
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RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
United States District Court
Southern District of Indiana
Southern District of Indiana

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Distributed Electronically to Registered Counsel of Record.

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