Bilski et al v. United States Department of the Army et al

Filing 14

MEMORANDUM OPINION & ORDER: It is ordered that 6 MOTION to Dismiss is GRANTED in part and DENIED in part, a) Claims against Dfts Lee G. Hudson, Stephen L. Sharp, Christopher L. Willoughby, and Donald McKeehan are DISMISSED w prejudice. b) Clai ms in Count II are DISMISSED to the extent they are based on plas' removal from the AA&E program. c) Plas' demand for compensatory damages is DISMISSED. d) Plas' demand for a trial by jury is DISMISSED. Signed by Judge Danny C. Reeves on 8/14/2017.(SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
JAMES A. BILSKI and
)
CHARLES M. HERALD,
)
Plaintiffs,
V.
RYAN D. MCCARTHY, Acting
Secretary, Department of the Army, et al.1
Defendants.

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)
)
)
)
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Civil Action No. 5: 16-322-DCR

MEMORANDUM OPINION
AND ORDER

*** *** *** ***
This matter is pending for consideration of the defendant’s motion to dismiss a portion
of the claims contained in the Complaint. [Record No. 6] For the reasons described herein,
the motion will be granted, in part, and denied, in part.
I.

Background

The Blue Grass Army Depot (“BGAD,” or “the Depot”), located in Richmond,
Kentucky, supplies arms and munitions to Army installations in the southeastern United
States—approximately 20-25% of the United States Army. [Record No. 6-1 at 4] The Depot
stores and maintains both chemical and conventional munitions, including “sensitive Category
I and II munitions” such as “ready-to-fire” Stinger missiles. [Id.] The Depot is the primary
supplier of Arms, Ammunition & Explosives (“AA&E”) for Army special forces worldwide.

1

As of August 2, 2017, Ryan D. McCarthy is the Acting Secretary of the Army and is
substituted as the defendant in this action pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure.
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[Id.] In accordance with its mission, the Depot operates 24 hours a day, 365 days a year, ready
on short notice to supply Army forces heading into combat. [Id.]
a.

Electronics Mechanics Positions

Plaintiffs James Bilski and Charles Herald were formerly employed as Electronics
Mechanics at BGAD. [Record No. 1 at ¶16] Their duties included “installation, maintenance,
modification, and repair” of the classified Intrusion Detection System (“IDS”) that protects the
storage facilities (“igloos”) for the Category I and II munitions and explosives. [Record No.
6-1 at 2-4] The IDS protects not only the munitions themselves (which sometimes contain
classified components) but also “BGAD’s systems for communicating, storing and discussing
classified information, which can include materials such as the emergency operating plans for
theft and the recovery of chemical weapons and the plans for the IDS protecting AA&E and
chemical weapons.” [Id. at 4-5] Details regarding “the exact numbers, specific place, and
manner of storing and securing AA&E,” which includes the IDS, are sensitive and/or
classified. [Id. at 5]
As a condition of their employment (that is, for their specific duties), the plaintiffs were
required to possess security clearances and be qualified under the Army’s AA&E Program.
[Id. at 5] Army regulations dictate that
Commanders/directors [] be selective in assigning personnel to duties involving
control of all categories of AA&E. Only personnel who are mature and stable
and have shown a willingness and capability to perform assigned tasks in a
dependable manner will be assigned to duties[] which involve responsibility for
the control, accountability, and shipment of all categories of AA&E.
[Record No. 6-1 at 5-6 (quoting Army Regulation (“AR”) 190-11, ¶ 2-11)] Accordingly,
individuals under consideration for taking part in the AA&E program “are required to undergo
a rigorous security screening designed to provide the commander reasonable assurance that
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personnel with character traits that raise significant doubt as to their honesty and stability are
not afforded access.” [Id. at 6] The security screening for civilian employees includes, at a
minimum, “(1) [a] personal interview of the individual conducted by his or her immediate
commander or supervisor; (2) a personnel records check; (3) a law enforcement/security
records check; and (4) a records check of local civilian law enforcement agencies, if permitted
by law.” [Id.] Once approved, employees are required to undergo annual medical evaluations
and are subject to psychological screenings when deemed necessary. [Id.] The security check
for AA&E employees is repeated every three years. [Id. (citing AR 190-11, ¶ 2-11.e)]
Grounds for removal from the AA&E program include drug or alcohol abuse, mental
instability, and “any other character trait, a record of conduct, or adverse information, which,
in the commander’s/director’s/manager’s judgment, would be prejudicial to reliability or
trustworthiness.” [Id. (citing AR 190-11, ¶ 2-11.d)] Defendants suggest that the touchstone
for removal is “when doubt exists as to their reliability and trustworthiness.” [Id. (citing AR
190-11, ¶ 2-11.b(4))] Plaintiffs Bilski and Howard underwent AA&E screening as recently as
April 2013 and were approved. [Id. at 6-7]
b.

Promotion Denial

Prior to March 5, 2014, Bilski applied for a promotion to the position of Electronic
Security Assessment Officer. [Record No. 1 at ¶¶19-20, 22] He interviewed for the position
on March 5, 2014, but was not selected for the promotion when a decision was made the
following month. [Id.; Record No. 6-1 at 2] Bilski was over 40 years of age at the time he
was not selected for the promotion. [Record No. 1 at ¶25] The individual selected for the
position was under 40 years of age. [Id. at ¶24] At the time, Bilski had over 20 years’
experience in federal service, while the individual selected for the promotion had over six
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years’ experience. [Id. at ¶¶26-27] Moreover, Bilski had served more than 13 years as an
Electronics Mechanic and/or Electronics/Mechanical Mechanic, whereas the individual
selected for the promotion had served just under six years as an Electronics Mechanic. [Id.]
c.

EEO Complaint

Herald overheard a conversation in March 2014 between two supervisory individuals
stating that they wished to go with the “younger guy” for the Electronic Security Assessment
Officer position because the other individual (Bilski) was “close to retirement.” [Id. at ¶28]
Herald informed Bilski of what he had heard and Bilski proceeded to file a formal complaint
of promotion non-selection with the Department of the Army. [Id. at ¶29, 31] Herald, who
provided a witness statement in June 2014 in support of Bilski’s complaint, later filed his own
complaint alleging retaliation. [Id. at ¶32]
The plaintiffs allege that they experienced “significant and persistent retaliation in the
form of reassignments, suspensions without pay, and criminal investigation” as a result of their
complaints. [Id. at ¶34] As one example, in mid-November 2014, Bilski witnessed the official
with whom he had interviewed for the promotion “pound his fist on a truck making a loud
noise in an attempt to intimidate [him].” [Id. at 35] On April 22, 2015, Bilski was detailed to
the Directorate of Public Works, with no reason given, and was required to surrender his keys
and credentials to the restricted areas, including his password for the IDS computer system.
[Id. at 36] On April 29, 2015, Herald was likewise reassigned to the Directorate of Public
Works, until an “AR 190-11 Chapter 2” inquiry into his reliability and trustworthiness could
be performed. [Id. at ¶38]

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d.

Joint Munitions Command Assessment

Defendant Secretary of the Army (“the Secretary” or “the Army”) tells a different story,
providing a non-retaliatory reasons for the plaintiffs’ reassignments.

According to the

Secretary, the Joint Munitions Command (“JMC”), which oversees BGAD, “conducts periodic
assessments known as the Program/Process Evaluation to ensure the security of all sensitive
categorized AA&E in accordance with Army Regulation 190-11.” [Record No. 6-1 at 7] In
April 2015, a JMC inspector found that IDS inspection/testing (for which the plaintiffs were
responsible) was not being conducted properly on the Category I and II munitions igloos, as
required by AR 190-11, ¶ 3-6m. [Id.] The inspector also found that inspection documentation
was not being maintained per installation policy. [Id.] Accordingly, “the IDS Maintenance
Section failed the periodic JMC program evaluation.” [Id.] The Secretary asserts that the
failed assessment is the reason Bilski and Herald were suspended from their duties as
Electronics Mechanics. [Id.] They were temporarily detailed to non-AA&E Public Works
positions “until an AR 190-11, Chapter 2, inquiry into their reliability and trustworthiness
could be completed.” [Id.]
e.

Internal Investigation

An internal investigation (or AR 190-11, Chapter 2, inquiry) thereafter commenced.
Less than two months after Bilski and Herald’s reassignment, the investigation concluded that
the plaintiffs had
failed to conduct sufficient preventative maintenance check[s] in a timely
manner on alarmed igloos as required by AR 190-11; DES SOP #11 and
supervisor memorandums. Records show a pattern of Mr. Bilski and Mr. Herald
delaying preventative maintenance checks to the end of the six month cycles
and failing to complete all required preventative maintenance checks within the
six month cycles as required. Mr. Bilski and Mr. Herald were unable to provide
any documentation to account for time in the performance of their duties. The
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IDS preventative maintenance checks were assessed as non-compliant with AR
190-11 in a JMC Process Evaluation completed April 22, 2015. Inspector found
CAT I and II igloo IDS inspections/testing not being conducted per AR 190-11
CH 3 para 3-5m. The IDS preventative maintenance inspection/documentation
paperwork was not maintained per installation policy.
[Record No. 6-1 at 8 (quoting Exh. I “Investigative Summary dated June 10, 2015”)]
Bilski and Herald were formally removed from the AA&E program in accordance with
AR 190-11, ¶ 2-11(d)(7) on July 22, 2015. [Id.] The stated reason for their removal was that
they were “considered prejudicial to reliability and trustworthiness.” Further, they would “be
denied access in the restricted/AA&E areas based on [their] records of conduct and adverse
information substantiated from the inquiry.” [Id.]
Five days later, Bilski was notified that the Director of Emergency Services had
proposed his outright removal from federal service. [Id. at 42; see also Record No. 6-1 at 7]
The Director recommended that Bilski and Herald be removed from federal service for
(1) failing to meet a condition of employment based on their removal from the
AA&E program; (2) failing to observe written regulations and procedures where
safety of persons or property is endangered for failing to inspect and test the IDS
systems in category I and II igloos; and (3) delay in carrying out instructions
due to a pattern of delay in conducting preventative maintenance until the end
of the inspection cycle.
[Record No. 6-1 at 9] Plaintiffs responded to the recommended removal both orally in writing.
[Id.] Thereafter, the BGAD Deputy Commander sustained the charges against the plaintiffs,
but “determined that based on their prior performance and absence of prior discipline, [Bilski
and Herald] had the potential for rehabilitation in positions not involved with AA&E.” [Id.]
The Deputy Commander mitigated the plaintiffs’ proposed removal “to a 10-day suspension
with reassignment to duties not involving access to AA&E and more direct supervision.” [Id.]

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The Deputy Commander met with Bilski and Herald on September 2, 2015, before
making his final decision to mitigate the plaintiffs’ proposed removal to a ten-day suspension.
[Record No. 1 at ¶44] According to the plaintiffs, the Deputy Commander proposed a
“Negotiated Settlement Agreement” whereby, if Bilski and Herald would drop their EEO and
Merit System Protection Board complaints, their proposed termination would be reduced to a
“letter of concern.” [Id.] According to plaintiffs, if they refused, they would receive a letter
of reprimand plus 3-10 days without pay, and would not be eligible for approximately
$1,000.00 at the end of the year. [Id; Record No. 7 at 3-5] The plaintiffs did not agree to the
negotiated settlement. [Id.] The Deputy Commander later speculated that the reason for not
agreeing to the settlement agreement was that they had outstanding attorney’s fees, for which
the plaintiffs could not be compensated under the agreement. [See Record No. 7 at 3-5.]
On or about September 21, 2015, Bilski and Herald received their ten-day suspension
without pay, which took place from September 28, 2015, through October 7, 2015. [Record
No. 1 at ¶45] The Deputy Commander acknowledged during a later EEO investigation that
he discussed a negotiated settlement agreement with the plaintiffs. [Record No. 7 at 4-5]
However, he denies that he retaliated against them. [Id. at 3]
f.

Criminal Investigation and Revocation of Access to BGAD

The ten-day suspension was not the end of Bilski and Herald’s troubles. Following
their removal from the AA&E program, a contractor was hired to perform the IDS
maintenance. [Record No. 6-1 at 9] The contractor discovered “tampering with the alarms”
in three locations. [Id.] According to the Secretary, someone had “intentionally wired resistors
to stop communication between the igloos and the security desk, and a ‘defeat key’ caused the
secure/access switch to remain secure at all times.” [Id. at 9-10] The Federal Bureau of
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Investigation and the Army’s Fort Knox Criminal Investigation Division (“CID”) were
notified. [Id. at 10] An investigation was opened by Fort Knox CID on October 27, 2015,
with a report issued on November 19, 2015. [Id.] The report found that “probable cause
existed to believe Mr. Herald and Mr. Bilski committed the offense of Wrongful Damage to
Government Property (Willful/Negligent) when they failed to conduct maintenance of critical
storage facilities and bypassed the alarms by installing ‘defeat keys,’ which fooled the
Intrusion Detection System to report the facilities were secured perpetually.” [Id. (quoting
November 15, 2015 Report)]
Bilski and Herald’s access to BGAD was revoked on November 24, 2015. [Id.] They
were notified that the criminal investigation would be referred to the United States’ Attorney’s
Office for possible criminal prosecution.

[Id. (quoting removal memoranda)]

Their

notifications, received from the Commander of BGAD, concluded “[y]our actions pose a bona
fide risk to Government property and interests. Consequently, I am exercising my authority
to bar you from entering Blue Grass Army Depot property for any reason.” [Id.] The Deputy
Commander recommended on the same day their indefinite suspension from federal service.
[Id.] Plaintiffs received an opportunity to respond to the suspension, both orally and in writing.
[Id. at 11] The BGAD Commander issued a decision on January 14, 2016, finally and
indefinitely suspending the plaintiff from federal service. [Id.]
g.

Prosecution Declined

On August 22, 2016, the United States Attorney’s Office for the Eastern District of
Kentucky notified the plaintiffs that they would not be pursuing criminal charge because the
government “[did] not believe there [was] sufficient evidence to prove criminal conduct
beyond a reasonable doubt.” [Record No. 6-1 at 11 (quoting August 22, 2016, letter)] The
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letter noted, however, that the evidence indicated that “Mr. Bilski and Mr. Herald likely failed
to follow governing regulations, procedures, and/or protocols in discharging their duties, and
that their conduct likely undermined the integrity of the security system protecting the Blue
Grass Army Depot’s munitions and other inventory.” [Id.] The letter stated that the closure
of the investigation did not preclude its being reopened and charges being brought at a later
date. [Record No. 6-25 at 2] Moreover, the U.S. Attorney’s office did not express any opinion
regarding other consequences Bilski and Herald may face, including termination of
employment. [Id.]
II.

Procedural History

The plaintiffs promptly filed suit following receipt of the U.S. Attorney’s letter.
[Record No. 1] The Verified Complaint names as defendants the Secretary of the Army,
BGAD Commander Lee G. Hudson, Deputy Commander Stephen L. Sharp, and BGAD
employees Christopher L. Willoughby and Donald McKeehan. [Id.] Count I alleges age
discrimination against Plaintiff Bilski under the Age Discrimination Employment in Act of
1967. [Id. at ¶¶ 8 and 56] Count II asserts claims of unlawful retaliation against both plaintiffs
based upon their ten-day suspension without pay, alleged abuse of the criminal justice system,
and the plaintiffs’ removal from federal service.

[Id. at ¶63]

The defendants seek

compensatory damages, lost wages in the form of past and future earnings, injunctive relief in
the form of reinstatement and promotion, and attorney’s fees. [Id. at 14-15]
The United States Department of the Army timely filed a motion to dismiss, in part, on
behalf of all defendants on November 14, 2016. [Record No. 6] The Army first asserts that
the only proper defendant in this action is the Secretary of the Army in his official capacity.
[Record No. 6-1 at 12-13] The Army next argues that Count II (alleging retaliation) should be
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dismissed under Rule 12(b)(1) for lack of jurisdiction, based on the doctrine of nonjusticiability espoused in Dep’t of the Navy v. Egan, 484 U.S. 518 (1988). [Id. at 13-18]
Finally, the Army contends that compensatory damages and a jury trial are not available for
age discrimination claims. [Id. at 18] Accordingly, the Army does not contest the suit going
forward regarding Bilksi’s age discrimination claim.
The plaintiffs agree with dismissal of the four individually-named defendants. [Record
No. 7 at 2] They also agree that “their claim for embarrassment, humiliation and mental
anguish damages should be dismissed.”2 [Id.] However, the plaintiffs’ dispute the nonjusticiability argument, suggesting instead that because the record plainly shows retaliatory
motive as the basis for the Army’s actions, the matter is justiciable. Finally, the plaintiffs cite
caselaw to support their proposition that a jury trial remains available.
The plaintiffs’ were granted permission to file supplemental authority, pointing the
Court to the Sixth Circuit’s recent decision in Hale v. Johnson, 845 F.3d 224 (6th Cir. 2016),
which discussed and declined to apply the Egan doctrine to a suit under the Americans with
Disabilities Act. [Record Nos. 9 and 10] The Army thereafter filed a supplemental reply,
suggesting that Hale favors its position. [Record No. 11]
III.
a.

Discussion

Justiciability of Count II

The Supreme Court held in Dep’t of the Navy v. Egan, 484 U.S. 518 (1988), that
decisions regarding security clearances are reserved to the Executive Branch by Article II of

2

The Verified Complaint specifically seeks as relief “Compensatory damages including
lost wages, past and future.” [Record No. 1 at 14] The Court takes the plaintiffs as agreeing
to retain a damages claim only for past and future lost wages.
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the Constitution. The Egan Court “concluded that the ‘sensitive and inherently discretionary
judgment call’ required to make predictive judgments about an individual’s likelihood of
compromising sensitive information is best left to those with an expertise in rendering
judgments based on this ‘inexact science.’” Hale v. Johnson, 845 F.3d 224, 230 (6th Cir. 2016)
(quoting Egan, 484 U.S. at 524-30). Courts have since struggled to agree on the exact scope
of the Egan doctrine, particularly the extent to which it applies beyond the narrow issue of
security clearances. Compare Kaplan v. Conyers, 733 F.3d 1148 (Fed. Cir. 2013) (en banc)
(finding non-reviewable the Defense Department’s determinations concerning eligibility of
employees to occupy “sensitive” positions, regardless of whether positions required access to
classified information); Foote v. Moniz, 751 F.3d 656 (D.C. Cir. 2014) (finding non-justiciable
the Department of Energy’s decision to certify individuals for its “Human Reliability
Program,” based upon similarity to security clearance decisions) with Toy v. Holder, 714 F.3d
881 (5th Cir. 2013) (declining to apply Egan to Federal Bureau of Investigation’s decision to
revoke a contract employee’s access to its office building, given the lack of detailed process
or considered decision making involved).
The Sixth Circuit considered Egan’s scope (i.e., beyond security clearances) for the
first time in Hale v. Johnson, 845 F.3d 224 (6th Cir. 2016). The plaintiff was a former security
guard for the Tennessee Valley Authority who was terminated from his position after failing a
pulmonary function test. Id. at 226, 230. The Court declined to define Egan’s precise scope,
instead holding narrowly that Egan does not apply to judgments regarding physical fitness. Id.
at 230. The Court, however, casted a skeptical eye towards the expansive readings of Egan.
The Court opined that its limited ruling prevents it from “slipping into the untenable position

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wherein [courts] are precluded from reviewing any federal agency’s employment decision so
long as it is made in the name of national security.” Id. at 231.
Hale also noted Egan’s emphasis on the importance of “executive branch control of
national-security information” as distinct from “general national security concerns.” Id. at
230. Hale distinguished Egan, noting that the question of a plaintiff’s physical ability to guard
a nuclear plant “is based on hard science” and such questions have “traditionally been reviewed
by courts and administrative agencies.” Id. Such determinations are unlike judgments based
on an individual’s “propensity to disclose classified information,” which requires predictive
judgment less amenable to review by “an outside nonexpert body.” Id. (quoting Egan 484
U.S. at 529).
The Secretary seeks Rule 12(b)(1) dismissal of Count II of the Verified Complaint,
which alleges unlawful retaliation. Applying Hale and taking into consideration authority
from the other circuits, the Court will grant the defendant’s Rule 12(b)(1) motion, in part.
Specifically, the Court finds that the Army’s decision to remove the plaintiffs from the AA&E
program, which includes access to both classified and sensitive national-security information,
must be reserved to the Executive Branch. However, the Court denies the Rule 12(b)(1)
motion with respect to the plaintiffs’ suspensions without pay and removal from federal
service. The Secretary has not shown that the plaintiffs’ reassigned positions outside the
AA&E program were “sensitive” positions. That is, even if the more expansive reading of
Egan adopted by the Federal Circuit in Kaplan, 733 F.3d 1148, were binding on this Court,
the facts presented would not allow its application. Without a sufficient factual basis to support
the sensitive nature of the plaintiffs’ reassigned positions, or more elaboration on the predictive

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judgment necessary for the ten-day suspension, indefinite suspension and removal decisions,
the Court cannot find that the latter decisions are reserved to the Executive Branch.
The Secretary argues that “the decisions to reassign, suspend, and ultimately revoke
Plaintiffs’ access to these facilities, after an investigation concluded that their conduct cast
doubt on their reliability and trustworthiness, are exactly the type of predictive judgments
committed to the discretion of officials of the Executive Branch based on considerations of
national security.” [Record No. 6-1 at 3] The Court agrees that the decision to reassign the
plaintiffs away from the AA&E program is a predictive judgment committed to the executive
branch.3 While it was not a traditional “security clearance” decision as in Egan, it was strongly
analogous if not more critical. A security clearance is a pre-requisite to certification into the
AA&E program, but more is required. The sensitivity of the AA&E program requires
additional screening and inquiry into an individual’s reliability and trustworthiness. That
additional screening is part of a formal process with tri-yearly reauthorizations. In short, the
reliability and trustworthiness inquiry required for participation in the AA&E program is no
less arbitrary than a decision to grant a security clearance, but instead is more tailored to the
particularly sensitive work with dangerous weaponry.
Army regulations dictate that “[o]nly personnel who are mature and stable and have
shown a willingness and capability to perform assigned tasks in a dependable manner will be
assigned to duties, which involve responsibility for the control, accountability, and shipment
of all categories of AA&E.” [Record No. 6-1 at 5 (quoting AR 190-11, ¶ 2-11)] Determining
“willingness and capability to perform assigned tasks in a dependable manner” requires

3

This includes the decision to temporarily “suspend” the plaintiffs from the AA&E
program while the initial inquiry was underway.
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predictive judgment, and the predictive judgment is directly tied to national security (not to
mention the physical security of the community and region surrounding the Blue Grass Army
Depot). To that end, the AA&E program’s physical security standards are “designed to
safeguard personnel, property, and operations; to prevent unauthorized access to equipment,
facilities, materiel, and information; and to protect against espionage, terrorism, sabotage,
damage, misuse, and theft.” [Record No. 6-1 at 5(quoting AR 190-11, Glossary, Section II
(defining “physical security”))].

Physical security depends on willing and dependable

individuals.
Based upon the JMC evaluation failure, plaintiffs were originally -- but only
temporarily -- suspended from AA&E duty (in the Directorate of Emergency Services) and
reassigned to the Directorate of Public Works, to investigate their reliability and
trustworthiness

[Record No. 6-1 at 7; Record Nos. 6-8 and 6-9 (“Suspension of Duty and

Temporary Detail” letters dated April 29, 2015)]. On July 22, 2015, based upon the results of
the investigative inquiry, Herald and Bilski were formally removed from the AA&E program
by Robert Nelson, Director of Emergency Services.

[See Record Nos. 6-11 and 6-12

(“Removal from AA&E Program” letters dated July 22, 2015).] These decisions (i.e., the
temporary suspension of duty and reassignment) and the final removal from the AA&E
program are non-justiciable based upon the Egan doctrine.
It appears that Bilski and Herald maintained their temporary duty assignments
following their formal removal from the AA&E program, working as Electronics Mechanics
in the Directorate of Emergency Services. However, on July 27, 2015, Emergency Services
Director Nelson proposed that Bilski and Herald be removed both from positions as Electronic
Mechanics and from federal service at the Blue Grass Army Depot. [Record No. 6-1 at 9;
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Record Nos. 6-13 and 6-14 (“Proposed Removal” letters dated July 27, 2015)] The stated
reasons were
(1) failing to meet a condition of employment based on their removal from the
AA&E program; (2) failing to observe written regulations and procedures where
safety of persons or property is endangered for failing to inspect and test the IDS
systems in category I and II igloos; and (3) delay in carrying out instructions
due to a pattern of delay in conducting preventative maintenance until the end
of the inspection cycle.
[Id.]
Plaintiffs had an opportunity to respond (orally and in writing) to this recommendation,
and BGAD Deputy Commander Stephen Sharp was the final decision maker. [Record No. 61 at 9] Deputy Commander Sharp sustained the charges against the plaintiffs. [Id.; Record
Nos. 6-15 and 6-16 (September 17, 2015, Notices of 10-Day Suspension)] However, the
Deputy Commander declined to remove them from federal service. Instead, he found that
based on “their prior performance and absence of prior discipline” the plaintiffs “had the
potential for rehabilitation in positions not involved with AA&E.”

[Id.]

The Deputy

Commander mitigated their proposed removals to “a 10-day suspension, along with
reassignment to duties not involving access to AA&E and more direct supervision” and the
plaintiffs were suspended from their employment at BGAD for ten days without pay. [Record
No. 1 at ¶45; Record Nos. 6-15 and 6-16)] Upon return, Bilski was reassigned to a non-AA&E
position as a Telecommunications Mechanic, and Herald was reassigned to a non-AA&E
position as a Production Maintenance Mechanic. [Record Nos. 6-15 and 6-16]
There are two parts to Sharp’s decision: the ten-day suspension and reassignment.
Plaintiffs assert that, based on a proposed settlement agreement (whereby if plaintiffs would
drop their EEO complaints, the suspensions without pay would be reduced to “letters of
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concern”), their suspension was clearly retaliatory, and so Egan does not apply. Without
commenting on the import or evidentiary value of the proposed settlement agreement4, the
Court agrees that Egan does not bar litigation of the decision to suspend the plaintiffs. That
decision appears to be punitive, based on failure to meet conditions of employment. There is
no indication that this decision was based upon the sort of “predictive judgment” that must be
left to Executive Branch.
On the other hand, inasmuch as Deputy Commander Sharp’s decision affirmed the
plaintiffs removal from the AA&E program (which necessitated a reassignment), that decision
is shielded from judicial scrutiny. Whether the failures to meet the condition of employment
compromised the plaintiff’s demonstrated “willingness and capability to perform assigned
tasks in a dependable manner,” while perhaps not a difficult question, is one that must be
reserved for the Executive Branch under the Egan doctrine. Plaintiff’s actions may well have
compromised the integrity of the AA&E program. The extent to which their actions did so,
and therefore warrant the plaintiffs’ dismissal from the program, is not a determination wellsuited for judicial adjudication. The courts are not well-suited to “determine what constitutes
an acceptable margin of error in assessing the potential risk” posed by the plaintiffs’ actions.
Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988) The AA&E program contains not only
classified information but also sophisticated weaponry that, in the wrong hands, would pose
an immediate risk to the security of the nation and its citizens. Protection of these assets must
be “committed to the broad discretion of the agency responsible” which includes “broad
discretion to determine who may have access to it.” Id.

4

The defendant asserts that, as a settlement offer, Sharp’s proposal would be
inadmissible at trial.
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This distinction between access to the AA&E program and suspension for a violation
of a condition of employment is not without difficulty. The line-drawing dilemma comes into
focus when considering the final issue: the plaintiffs’ bar from BGAD and removal from
federal service. The notification letter barring the defendants from BGAD stated:
You are under investigation by the U.S. Army Criminal Investigation Division
for Wrongful Damage to Government Property which will be referred to the
U.S. Attorney for possible criminal prosecution. Your actions pose a bona fide
risk to Government property and interests. Consequently, I am exercising my
authority to bar you from entering Blue Grass Army Depot property for any
reason.
[Record No. 6-1 at 10 (quoting Record Nos. 6-19 and 6-20 (notification letters dated November
24, 2015)]
The plaintiffs were indefinitely suspended from federal service on January 14, 2016.
[See Record No. 6-1 at 10-11.] The suspensions were based on the ongoing criminal
investigation, which included the plaintiffs’ alleged installation of “defeat keys” in igloo
security systems. [See Record Nos. 6-21 and 6-22 (Notices of Proposed Indefinite Suspension
dated November 24, 2015); Record Nos. 6-23 and 6-24 (Notices of Decision – Indefinite
Suspension, dated January 14, 2016).]

Bilski admitted to having installed defeat keys

(although he denied that they compromised the security of the igloos), while Herald denied
having personally done so (although evidence suggested his presence during and knowledge
of their installation). [Record No. 6-23 at ¶2 (Bilski notice); Record No. 6-24 at ¶2 (Herald
notice)]
The decision to bar the plaintiffs from BGAD (which was a predicate to their indefinite
suspension) was (at least allegedly) based upon the security threat posed by the plaintiffs’

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actions. If the Court were to conduct the McDonnell-Douglas burden shifting analysis5 to
consider whether this reason were pretextual, it would require evaluation of the stated reason—
security concerns.6 Alas, such is unavoidable, and Egan did not portend to reserve for the
Executive Branch any and all decisions with security implications. See Hart, 845 F.3d at 230
(distinguishing between national-security information and national-security concerns). And
such a requirement does not inhibit the Court’s ability to remain deferential to an executive
branch department’s assessment of the nature and degree of security risk posed by the
plaintiffs’ actions or continued presence at the Depot. For example, the Court may consider
whether, in fact, “defeat keys” were installed, and whether the plaintiffs’ were responsible, but
may defer to the Army on the question of whether the defeat keys posed a legitimate security
concern.7
As a result of the foregoing, the Court declines, on the present motion, to apply Egan
to the suspension and final removal decisions. The Secretary conflates the decision to remove
Bilski and Herald from the AA&E program with the decisions to suspend them for ten days,
later bar them from BGAD, and eventually remove them from federal employment. But these
were separate decisions. The plaintiffs’ alleged conduct (creating default keys) may well have
warranted their suspensions and removal from federal service. However, the Court must

5

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

6

The same complication will arise in evaluating the propriety of a ten-day suspension,
inasmuch as the extent of the disciplinary action would be presumed proportional to the
abrogation of the plaintiffs’ job responsibilities, which is indelibly linked to security concerns.

7

Interestingly, the notices of indefinite suspension stated in part “[p]ease be advised this
action is not disciplinary in nature, but meant to allow for investigations and criminal
proceedings to run their course.” [Record Nos. 6-23 and 6-24 at ¶5 and ¶5(c)] 
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separate the merits questions from the determination of non-justiciability.

To warrant

application of Egan, the defendants must show that each of the relevant decisions (removal
from AA&E, ten-day suspension, indefinite suspension, and removal from federal service)
involved “predictive judgment about an individual’s likelihood of compromising sensitive
information.” The Court does not doubt that the decision to allow any individual onto the
BGAD grounds involves some measure of predictive judgment.
The Egan case involved predictive judgment about propensity to divulge sensitive or
classified information.

The motion to dismiss does not address whether the plaintiffs’

reassigned positions presented a concern about compromising sensitive information. [See
Record No. 11 at 5, 7 (“the Army’s determination that Plaintiffs were a security risk and should
not have access to AA&E reflects precisely the sort of ‘sensitive, inherently discretionary
judgment call’ about national security that Article II commits to the ‘broad discretion of the
responsible executive branch agency.’”) (quoting Egan, 484 U.S. at 527-29) (emphasis
added).] Moreover, while the plaintiffs’ security clearances were ultimately revoked, the
Secretary’s motion does not address whether the clearances were necessary for the reassigned
positions. Instead, the materials filed in support of the motion suggest that security clearances
were only required for the AA&E program. [See Record No. 6-2 at ¶7 (“As electronic
mechanics in the AA&E program at BGAD, Mr. Bilski and Mr. Herald were required to have
a security clearance and to obtain and maintain certification under the program.”).]
Egan squarely applies to decisions to revoke security clearances, and as the defendants
argue, the timeline in this case does not, in and of itself, bar application of Egan.8 [Record No.

8

It is possible that a removal from duty could occur prior to the formal revocation of a
security clearance, although the latter would necessitate the former.
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11 at 8 (quoting Bacerra v. Dalton, 94 F.3d 145, 149 (4th Cir. 1996)] However, without
indication of whether the security clearances were necessary for the plaintiffs’ continued
employment in their reassigned positions, the Court is without a basis to determine whether
Egan should apply to the plaintiffs’ removal from federal service. The Secretary repeatedly
argues that the “predictive judgment” exercised by BGAD command resulted in the plaintiffs’
“being denied access in the restricted AA&E areas.” [Record No. 11 at 10] Such a substantial
security risk, the Court little doubts, may warrant an individual’s removal from federal service
wholesale. But the Army cannot assert non-justiciability of the latter decision without
showing, at least like in Kaplan, that the plaintiffs’ new positions were sensitive.
The plaintiffs argue categorically that “Egan’s holding is inapplicable to the BGAD
Commander’s barring the plaintiffs’ access to BGAD as a result of the criminal investigation
which resulted in a refusal to prosecute by the U.S. Attorney’s Office.” [Record No. 7 at 6]
The Court declines to adopt the plaintiffs’ position, but nonetheless will deny the motion to
dismiss inasmuch as it relates to the plaintiffs’ ten-day suspension, barring the plaintiffs from
BGAD and removing them from federal service.9
b.

Compensatory Damages and Jury Trial

Finally, the Court considers the availability of compensatory damages and trial by jury.
The caselaw on these issues is clear. The Age Discrimination in Employment Act “provides
no compensation for any of the other traditional harms associated with personal injury.
Monetary remedies under the ADEA are limited to back wages, which are clearly of an

9

The defendants have not argued alternatively (other than pursuant to Egan) why claims
regarding the plaintiffs’ removal from service should be dismissed. Therefore, Count II may
go forward as mentioned, whatever its merit.

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‘economic character,’ and liquidated damages, which . . . serve no compensatory function.”
C.I.R. v. Schleier, 515 U.S. 323, 336 (1995). In 1991 “Congress specifically amended Title
VII to permit the recovery of compensatory damages, while notably making no such change
to the ADEA.” Kulling v. Grinders for Indus., Inc., 115 F. Supp. 2d 828, 846 (E.D. Mich.
2000).
On this much, the parties are in agreement. The plaintiffs may not recover for
compensatory damages such as “embarrassment, humiliation and mental anguish.” [Record
No. 7 at 2] To the extent the Verified Complaint can be read as demanding such damages,
those claims will be dismissed.
The parties remain opposed on the plaintiffs’ right to a jury trial. No jury trial right
exists for claims brought against the United States under the ADEA. The Supreme Court
decided as much in Lehman v. Nakshian, 453 U.S. 156, 168 (1981) (“Neither the provision for
federal employer cases to be brought in district courts rather than the Court of Claims, nor the
use of the word ‘legal’ in that section, evinces a congressional intent that ADEA plaintiffs who
proceed to trial against the Federal Government may do so before a jury.”). To the extent that
Lehman was abrogated by the 1991 amendments to Title VII (which permitted a jury trial
demand where compensatory and punitive damages are sought), the amendments did not apply
to ADEA. Such damages remain unavailable in an action under the ADEA. Therefore, a jury
trial is not available.
The plaintiffs cite Imwalle v. Reliance Medical Products, Inc., 515 F.3d 531 (6th Cir.
2008), as contrary authority. [Record No. 7 at 2] Imwalle is inapposite because the United
States was not a defendant. See Lehman, 453 U.S. at 168 (“Congress expressly provided for
jury trials in the section of the [ADEA] applicable to private-sector employers, and to state and
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local governmental entities.”). To be sure, where the defendant is an agency created by
Congress and given the right to “sue and be sued,” Courts have found a jury trial demand
available. See, e.g., Skymont Farms v. Fed. Crop Ins. Corp., No. 4:09-CV-65, 2010 WL
11484378 (E.D. Tenn. June 29, 2010) (permitting suit against Federal Deposit Insurance
Corporation). But the plaintiffs’ point to no express waiver regarding the United States Army.
Therefore, the demand for a trial by jury will be dismissed.
IV.

Conclusion

The Secretary of the Army has shown that decisions to certify participation in the
AA&E program are analogous to the security clearance decision in Egan, such that the Egan
doctrine bars adjudication of those decisions. However, the Army has not provided sufficient
detail to show that the decisions: (i) to temporarily suspend the plaintiffs’ from federal service
and (ii) the later decisions to indefinitely suspend and ultimately remove the plaintiffs from
federal service are non-justiciable under Egan. Finally, because Congress has not provided
compensatory damages under the ADEA or waived sovereign immunity for purposes of jury
trials under the ADEA, neither remedy is available to the plaintiffs. Accordingly, it is hereby
ORDERED that the Defendant Secretary of the Army’s motion to dismiss [Record No.
6] is GRANTED, in part, and DENIED, in part, as follows:
a)

The plaintiffs’ claims against Defendants Lee G. Hudson, Stephen L.

Sharp, Christopher L. Willoughby, and Donald McKeehan are DISMISSED, with prejudice.
b)

The plaintiffs’ claims in Count II are DISMISSED to the extent they are

based on the plaintiffs’ removal from the AA&E program.
c)

The plaintiffs’ demand for compensatory damages is DISMISSED.

d)

The plaintiffs’ demand for a trial by jury is DISMISSED.
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This 14th day of August, 2017.

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