214 F. Supp. 3d 520
E.D. Va.2016Background
- Jay Kruise, a federal computer technician, alleged supervisors falsely reported concerns about his mental health to justify suspending his security clearance and removing him from duty in 2006.
- Kruise filed an MSPB appeal and EEO complaints; MSPB upheld the suspension on non-merits grounds, and a 2007 agency psychiatric exam later restored his clearance and he returned to work at a lower grade/pay.
- Kruise sued in 2015 asserting Title VII, the Rehabilitation Act, the ADA, a due-process claim for procedural violations, and a Back Pay Act claim; he sought to amend his complaint as well.
- The Army moved to dismiss for lack of subject-matter jurisdiction, arguing that judicial review of security-clearance decisions (and challenges grounded in those decisions) is barred by Supreme Court and Fourth Circuit precedent, and that the CSRA bars a standalone Back Pay Act suit.
- The district court held the clearance-related statutory and constitutional claims nonreviewable under binding precedent and dismissed the complaint; it also denied leave to amend as futile and dismissed the Back Pay Act claim for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reviewability of Title VII and Rehabilitation Act claims arising from the security-clearance suspension | Kruise contends the suspension was discriminatory/retaliatory and hence reviewable under Title VII and the Rehabilitation Act | Agency argues Egan and Fourth Circuit precedent bar judicial review of security-clearance decisions and related claims | Dismissed for lack of subject-matter jurisdiction under Egan and Fourth Circuit precedent (e.g., Becerra) |
| Whether knowingly false referrals by non-security personnel (Rattigan theory) are reviewable | Kruise invokes Rattigan: knowingly false referrals by non-security employees should be judicially reviewable | Agency and Fourth Circuit precedent (Becerra) say initiation/referral is inseparable from the nonreviewable clearance decision | Rattigan not controlling; Becerra forecloses review of referral/initiation here; claim dismissed |
| Applicability of the ADA to federal employers and reviewability of an ADA-based challenge to the clearance suspension | Kruise claims discrimination under the ADA (and that he was perceived as disabled) | Agency notes ADA does not apply to federal agencies and, in any event, review of clearance decisions under ADA would be barred by Egan | ADA claim dismissed: ADA inapplicable to federal agency and alternatively nonreviewable under Egan |
| Due process/procedural-regulation claim for alleged failures in suspension process | Kruise alleges agency violated regulations and procedures in suspending his clearance | Agency argues (1) no property interest in clearance so no colorable constitutional claim; (2) alleged procedural failures are contradicted by facts showing he received required process | Constitutional due-process claim dismissed for lack of property interest; procedural claim fails on the merits and is effectively an attempt to circumvent Egan |
| Back Pay Act claim and CSRA preclusion | Kruise seeks back pay for suspension period under the Back Pay Act | Agency contends CSRA provides exclusive remedial scheme; only agency/MSPB/Federal Circuit can award back pay | Back Pay Act claim dismissed for lack of jurisdiction because the CSRA/MSPB/Federal Circuit are the appropriate forums/authorities |
Key Cases Cited
- Department of the Navy v. Egan, 484 U.S. 518 (security-clearance decisions entrusted to executive branch and generally not subject to judicial review)
- Becerra v. Dalton, 94 F.3d 145 (4th Cir. 1996) (claims attacking initiation of security investigations are nonreviewable under Egan)
- Rattigan v. Holder, 689 F.3d 764 (D.C. Cir. 2012) (narrow rule permitting review of knowingly false referrals by non-security personnel)
- Webster v. Doe, 486 U.S. 592 (statutory grant of absolute discretion does not preclude judicial review of colorable constitutional claims)
- Read v. United States, 254 F.3d 1064 (Fed. Cir. 2001) (Back Pay Act claim dismissed where CSRA/MSPB/Federal Circuit are exclusive remedies for pay restoration after clearance revocation)
- Fausto v. United States, 484 U.S. 439 (CSRA establishes comprehensive, exclusive remedial scheme for federal personnel actions)
- Elgin v. Department of the Treasury, 567 U.S. 1 (CSRA provides exclusive remedial procedures for many federal employment claims)