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Kruise v. Fanning

United States District Court, E.D. Virginia, Alexandria Division

October 12, 2016

JAY KRUISE, Plaintiff,
ERIC K. FANNING, Defendant.



         Plaintiff Jay Kruise, a computer technician with the Army, claims that his supervisors' blatant lies regarding his mental health cost him his security clearance and his job. Although the agency[1] eventually restored his security clearance and Kruise returned to his job, he claims that the suspension of his security clearance violated (i) Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., (ii) the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., (iii) the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., (iv) the Back Pay Act, 5 U.S.C. § 5596, and due process. The agency seeks dismissal of his amended complaint on jurisdictional grounds based on settled Supreme Court and Fourth Circuit precedent that forecloses challenges to the merits of security clearance decisions. For the reasons that follow, the agency's motion to dismiss must be granted.


         Plaintiff Jay Kruise was born in Laos and immigrated to the United States when he was 10 years old. After serving in the United States Navy and receiving an honorable discharge, he attended college, received a degree in computer network technology, and began working for the government as a computer technician. In college he was diagnosed with depression and other mental illnesses related to his military duty.

         After working in Germany for several years, the agency assigned plaintiff to Tobyhanna Army Depot in Pennsylvania in 2003, where he allegedly experienced daily acts of racial discrimination. The agency reassigned him to Holland in April 2004, and then to Germany in 2005. He alleges that he also suffered racial discrimination on those assignments, which contributed to his depression and other mental health problems. In May 2006, plaintiff filed an Equal Employment Opportunity ("EEO") complaint against his supervisor, Eleanor Hendricks, alleging discrimination on the basis of race, national origin, and retaliation for earlier EEO activity. Plaintiff later emailed Hendricks to tell her that he had trouble concentrating at work due to harassment, his EEO complaint, and his medical problems. Plaintiff met with his supervisors in July 2006, and they promised to look into an accommodation for him if he provided a letter from a doctor. Plaintiffs psychologist, Dr. Glenn Koppel, submitted that letter to the agency in September 2006. In his letter, Dr. Koppel stated that plaintiff suffered from depression partly because of his work situation, and recommended that plaintiff be transferred to a place where he could work without fear of harassment.

         After receiving Dr. Koppel's letter, plaintiff alleges that agency officials familiar with his EEO complaint met with Hendricks. According to plaintiff, Hendricks and those officials agreed to use plaintiff s mental health disorder as a "loophole" to remove him without following normal procedures. In particular, plaintiff alleges that Hendricks knowingly gave false information to Darrell Bright, the Regional Chief Information Officer in Europe, to show that plaintiff posed a security threat. Plaintiff further alleges that Bright also received a copy of Dr. Koppel's evaluation. Bright, allegedly making and relying on numerous false representations, [2] then recommended to plaintiffs commanding officer, Colonel Pinkston, the immediate suspension of plaintiffs security clearance. Shortly thereafter, on September 14, 2006, Colonel Pinkston suspended plaintiffs security clearance. Four days later, the agency sent plaintiff a letter informing him that he would be suspended from his job without pay until the U.S. Army Central Personnel Security Clearance Facility could make a final determination about his security clearance. Plaintiff responded that he was fit for duty, but he was nonetheless indefinitely suspended from his job in November 2006.

         Believing that he had been wrongly suspended, plaintiff filed an appeal with the Merit Systems Protection Board ("MSPB"). He also filed an EEO complaint in January 2007, alleging that the agency unlawfully discriminated against him when it suspended his security clearance. That EEO complaint was dismissed because it asserted the same issues as were raised in his MSPB appeal.

         The MSPB affirmed plaintiffs suspension in February 2007, but it did not address plaintiffs discrimination claims for lack of jurisdiction. As a result, plaintiff was allowed to file another EEO complaint to pursue his discrimination claims. The agency eventually conducted an investigation for that EEO complaint and issued findings which plaintiff embraces in the instant action because they allegedly support his discrimination claims. For example, in his complaint plaintiff cites the finding that the agency suspended his security clearance based on the perception that he was disabled.[3]

         In July 2007, an agency psychologist examined plaintiff and concluded that he did not pose a security risk. Based on that examination, the Central Personnel Security Clearance Facility restored plaintiffs security clearance. Plaintiff returned to his job and was transferred back to Pennsylvania, but at a lower grade and pay scale.

         For reasons that are not clear from plaintiff's amended complaint, his EEO complaint was never finally adjudicated. He filed this lawsuit in July 2015 in the United States District Court for the District of Columbia, and the case was transferred to this district pursuant to 28 U.S.C. § 1406(a).[4] In his amended complaint, plaintiff alleges that the agency unlawfully discriminated against him based on his disability, or perceived disability, and retaliated against him in violation of Title VII, the Rehabilitation Act, and the ADA. He further alleges that the agency violated his right to due process when it suspended his security clearance and that it violated the Back Pay Act. Plaintiff has also moved to file a second amended complaint.

         The agency filed a motion to dismiss plaintiffs amended complaint for lack of subject matter jurisdiction under Rule 12(b)(1), Fed.R.Civ.P. The agency contends that plaintiffs Title VII, Rehabilitation Act, ADA, and due process claims implicate the merits of the agency's security clearance decision, and therefore must be dismissed for lack of subject matter jurisdiction based on Supreme Court and Fourth Circuit precedent. The agency further contends that plaintiffs Back Pay Act claim must be dismissed for lack of jurisdiction because it is barred by the Civil Service Reform Act of 1978. The agency also contends that plaintiffs request to file a second amended complaint should be denied as futile because the proposed complaint would not cure the jurisdictional defects with his claims.


         Plaintiff bears the burden of showing that subject matter jurisdiction exists over his claims, and they must be dismissed if he cannot satisfy that burden. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). His Title VII and Rehabilitation Act claims are addressed first, followed by his ADA, due process, and, finally, his Back Pay Act claims.


         Analysis of plaintiff s Title VII and Rehabilitation Act claims properly begins with the Supreme Court's decision in Department of the Navy v. Egan, in which a Navy employee sought MSPB review of the denial of his security clearance. 484 U.S. 518, 522 (1988). The Supreme Court held that the MSPB lacked the authority to review "the substance of [the] underlying decision to deny or revoke a security clearance in the course of reviewing" an adverse employment action. Id. at 520, 530. The Supreme Court grounded that holding in the separation-of-powers principle that the Constitution vests "the executive power" in the President and makes the President the "Commander in Chief of the Army and Navy of the United States." U.S. Const. Art. II §§ 1-2; Egan, 484 U.S. at 527. That "constitutional investment of power, " which "exists quite apart from any explicit congressional grant, " gives the President the authority to control access to classified information. Egan, 484 U.S. at 527.

         Because the "grant or denial of security clearances" is an "inexact science at best" that involves "[p]redictive judgment[s]" as to an employee's future behavior, the Supreme Court explained that such "sensitive and inherently discretionary judgment call[s]" must be made by the Executive branch agencies "with the necessary expertise in protecting classified information." Id. at 529 (quotation marks omitted). As a result, the Supreme Court held that security clearance decisions are "committed to the broad discretion of the agency responsible, [which] include[s] broad discretion to determine who may have access to it." Id. In other words, because "it 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 ...

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