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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 13, 2005 Decided October 18, 2005
No. 04-5281
PATSY F. BENNETT,
APPELLANT
v.
MICHAEL CHERTOFF,
SECRETARY OF HOMELAND SECURITY AND
DONALD H. RUMSFELD,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 03cv02176)
Robert C. Seldon argued the cause and filed the briefs for
appellant. Molly E. Buie entered an appearance.
Deborah Goldstock Ringel argued the cause for amici
curiae National Organization of Black Law Enforcement
Executives, et al. in support of appellant. With her on the brief
were Kenneth L. Adams and Bradley D. Wine.
2
Peter D. Blumberg, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney. Michael J. Ryan, Assistant U.S. Attorney,
entered an appearance.
Before: RANDOLPH and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: In Ryan v. Reno, 168 F.3d 520, 524
(D.C. Cir. 1999), the court held that an adverse employment
action based on the denial or revocation of a security clearance
is not actionable under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2. This followed, the court concluded, from
Department of Navy v. Egan, 484 U.S. 518 (1988), in which the
Supreme Court held that the Merit Systems Protection Board
lacked authority to review the substance of a decision to deny or
revoke a security clearance in the course of reviewing an
adverse employment action, because that “sensitive and
inherently discretionary judgment call . . . is committed by law
to the appropriate agency of the Executive Branch.” Id. at 527.
Appellant Patsy Bennett contends that the termination of her
employment was predicated on a determination of her
unsuitability for the position rather than a revocation of her
security clearance. Hence, she maintains that the district court
erred in dismissing her complaint under Title VII, 42 U.S.C. §
2000e-16, for lack of jurisdiction. In her view, the court retains
jurisdiction to determine whether her employment was actually
terminated because of national security concerns even if the
court cannot review the underlying merits of that determination.
Bennett thus implicitly rejects the notion that the official reason
given by the agency for her termination encompassed national
security concerns. Because the implicit premise of her
3
contention is flawed and because the agency interposed the
defense of her inability to sustain a security clearance in
response to her allegations of discrimination and retaliation, the
trier of fact would be required to consider the merits of that
defense. Accordingly, in light of the substantial evidence in the
record that the agency’s action was premised on Bennett’s
inability to maintain a security clearance, we hold that Ryan is
dispositive and affirm the dismissal of the complaint.
I.
Patsy Bennett was a criminal investigator employed by the
Office of the Inspector General of the Department of Defense
(“DoD”). In August 2000, Bennett asked an investigative
assistant to search public records for the address of an individual
in a personal matter. The investigative assistant referred the
request to another researcher, who searched records limited to
official government investigations. In February 2001, DoD
proposed to terminate Bennett’s employment on the ground that
she had improperly asked the investigative assistant to search
records limited to official government investigations for a non-
official purpose. Bennett challenged the proposal by filing an
administrative complaint of discrimination within DoD. In May
2001, Bennett and DoD entered into a Mediation Agreement in
which Bennett agreed to withdraw the complaint and resign
from DoD in a “clean paper” resignation, while DoD agreed to
expunge its proposal and decision to remove Bennett and to
refrain from disclosing them, except upon inquiry about Giglio1
1
Giglio v. United States, 405 U.S. 150 (1972), requires
prosecutors to disclose evidence affecting the credibility of a witness
when that witness’s reliability is likely to determine guilt or
innocence. As interpreted by DoD in the instant case, this exception
would allow DoD to disclose evidence of Bennett’s untrustworthiness
to a new employer that might have to rely on her as a witness.
4
issues by a prospective federal law enforcement employer.
Bennett retained her security clearance after her resignation.
Bennett thereafter applied for a job as a criminal
investigator with the Transportation Security Administration
(“TSA”). During a job interview in April 2002, Bennett
disclosed the incident that led DoD to take action against her
and cited this incident as the reason she resigned from DoD.
However, in her signed and certified Declaration for Federal
Employment, she represented that she had not, during the last
five years, “quit [a job] after being told that [she] would be
fired” or “[left] any job by mutual agreement because of specific
problems.” After hiring Bennett subject to completion of a
suitability determination, TSA solicited information from DoD
about her employment there as part of a background check for
a security clearance. In response, DoD indicated that Bennett
had Top Secret security clearance and provided TSA with a
copy of its proposal and decision to remove Bennett. In August
2002, TSA terminated Bennett’s employment as a criminal
investigator for falsifying her Declaration for Federal
Employment, stating in a letter that the termination was “based
on [her] unsuitability for [her] position.” The letter stated that
she did not have appeal or grievance rights, but if she believed
her discharge resulted from discrimination or harassment, she
could file a report with the Office of Civil Rights. In its official
Notification of Personnel Action (“SF-50"), TSA cited a
“negative suitability determination” as the reason for
termination.
After exhausting her administrative remedies, Bennett filed
suit against TSA and DoD under Title VII, 42 U.S.C. § 2000e-
16. The complaint alleged that TSA’s stated reason for
terminating her was a pretext and that the real reasons were
discrimination and retaliation against her for filing an
administrative complaint against DoD. It also alleged that
5
DoD’s disclosures to TSA were retaliatory and in breach of the
Mediation Agreement. TSA filed a motion to dismiss the
complaint for lack of jurisdiction on the ground that its
termination of Bennett was based on her ineligibility for a
security clearance and thus was not subject to judicial review
under Title VII. Attached to the motion was the affidavit of
David Holmes, a TSA administrator who had interviewed
Bennett, stating that Bennett’s termination “was based solely on
the fact she could not sustain a security clearance.” The district
court, citing Ryan, 168 F.3d at 523-24, granted the motion upon
concluding that TSA’s decision to terminate Bennett was based
in part on denial of a security clearance. See Bennett v. Ridge,
321 F. Supp. 2d 49, 54-55 (D.D.C. 2004).
II.
TSA requires its criminal investigators to obtain a Top
Secret security clearance. Because the authority to issue a
security clearance is a discretionary function of the Executive
Branch and involves the complex area of foreign relations and
national security, employment actions based on denial of
security clearance are not subject to judicial review, including
under Title VII. See Ryan, 168 F.3d at 523; see also Egan, 484
U.S. at 527-31. Bennett does not dispute this legal principle, but
rather contends that the district court erred in dismissing her
complaint because the stated ground for her termination was a
negative suitability determination, not a denial of a security
clearance. Both parties agree that TSA’s proffered reason for
terminating Bennett was her falsification of her Declaration of
Federal Employment. Their principal dispute is over whether
this alleged falsification formed the basis of a negative
suitability determination or a denial of security clearance.
Bennett emphasizes that determinations of eligibility for
security clearance are distinct from determinations of suitability
for federal employment. Under Executive Order 12,968, section
6
2.1(a), 60 Fed. Reg. 40,245, 40,248 (Aug. 7, 1995),
“[d]eterminations of eligibility for access to classified
information . . . are separate from suitability determinations with
respect to the hiring or retention of persons for employment by
the government or any other personnel actions.” This distinction
is also made in the Code of Federal Regulations. See 5 C.F.R.
§ 731.101(a) (2005). As Bennett points out, the two
determinations are subject to different processes of review:
whereas suitability determinations are subject to appeals to the
Merit Systems Protection Board and subsequent judicial review,
see 5 C.F.R. § 731.501(a), security clearance denials are subject
to appeal within the agency, see Exec. Order No. 12,968, §
5.2(a), 60 Fed. Reg. at 40,252. Indeed, “[a] suitability
determination shall not be used for the purpose of denying an
applicant or employee the review proceedings of [section 5.2]
where there has been a denial or revocation of eligibility for
access to classified information.” Id. § 5.2(f)(3), 60 Fed. Reg.
at 40,253.
Nonetheless, the distinction between determinations of
eligibility for security clearances and determinations of
suitability offers no support for Bennett’s contention that the
district court erred in dismissing her complaint. First, while
Bennett maintains that her prior security clearance from DoD
must be “mutually and reciprocally accepted” by TSA, this
requirement, as TSA points out, does not apply if “an agency
has substantial information indicating that an employee may not
satisfy the standards” for a security clearance, including
“trustworthiness, honesty, [and] reliability.” Id. § 2.4(a), 60
Fed. Reg. at 40,249; id. § 3.1(b), 60 Fed. Reg. at 40,250. TSA
maintains that, based on the information provided by DoD and
Bennett’s Declaration of Federal Employment, it concluded that
Bennett could not meet its standards for a security clearance.
Thus, the fact that Bennett retained her DoD security clearance
does not refute the contention that she could not sustain a
7
security clearance from TSA because of the information that
TSA obtained about her dishonesty after she resigned from
DoD.
Second, Bennett’s contention that suitability and national
security considerations are mutually exclusive is refuted by
authority she cites. She contends that she was terminated based
on a negative suitability determination, maintaining that a
“[m]aterial, intentional false statement or deception or fraud in
examination or appointment” is a basis for determining that an
individual is unsuitable for federal employment, citing 5 C.F.R.
§ 731.202(b)(3). Such misrepresentation, however, is also a
basis for denying security clearance. Executive Order 12,968,
section 3.1(b), 60 Fed. Reg. at 40,250, states that “eligibility for
access to classified information shall be granted only to
employees . . . whose personal and professional history
affirmatively indicates loyalty to the United States, strength of
character, trustworthiness, honesty, reliability, discretion, and
sound judgment . . . .” Thus, as TSA points out, Bennett was
unsuitable for a criminal investigator position for the same
reasons she was ineligible for a TSA security clearance. In other
words, Bennett’s alleged dishonesty could render her both
unsuitable for federal employment and ineligible for a security
clearance, even if the two determinations are distinct. In any
event, lack of “suitability” in ordinary language can encompass
lack of suitability because of ineligibility for a security
clearance, which is an additional reason for rejecting the strong
inference that Bennett would draw from the termination letter
and the SF-50. Hence, the fact that the termination letter and the
SF-50 stated unsuitability as the reason for Bennett’s
termination is not inconsistent with termination on the basis that
Bennett could not sustain a security clearance.
Third, whether TSA followed the proper procedures to deny
or revoke Bennett’s security clearance is separate from the
8
question of the effect of TSA’s invocation of a security defense
to her Title VII complaint. Bennett contends that the
termination letter and the SF-50 are the only formal documents
in the record with legal force that can serve as evidence of the
basis of her termination, and that TSA did not formally deny or
revoke her security clearance pursuant to the procedures in
Executive Order 12,968. By contrast, the cases cited by TSA
involved formal revocations or denials of security clearance,
such that there was no dispute over the basis of the employment
action. See Egan, 484 U.S. at 521-22; Ryan, 168 F.3d at 522;
Becerra v. Dalton, 94 F.3d 145, 148 (4th Cir. 1996); Perez v.
FBI, 71 F.3d 513, 514 (5th Cir. 1995); Brazil v. U.S. Dep’t of the
Navy, 66 F.3d 193, 195 (9th Cir. 1995). On the other hand, the
two cases Bennett cites -- Jones v. Ashcroft, 321 F. Supp. 2d 1,
3-4 (D.D.C. 2004), and Delgado v. Ashcroft, Civ. A. No. 99-
2311, 2003 WL 24051558, at *1-3 & n.3 (D.D.C. May 29,
2003), involving the national security exemption in 42 U.S.C. §
2000e-2(g) -- are distinguishable, assuming that they are correct
applications of law, because in one there was no record
evidence of national security being considered prior to litigation,
see Jones, 321 F. Supp.2d at 8, and in the other there was
evidence specifically suggesting that national security was not
an issue, see Delgado, 2003 WL 24051558, at *6.
There was sufficient evidence in the record of the basis for
TSA’s action even though it was not announced to Bennett at the
time of the termination of her employment. First, TSA’s letter
to DoD sought information that was relevant to determining
whether Bennett could sustain a security clearance while
employed as a criminal investigator in TSA. As a result of
DoD’s response, TSA learned that Bennett had not been truthful
in her employment application. Second, as the district court
noted, David Holmes’ sworn statement to an EEO investigator
was that Bennett’s termination was “due to her inability to
‘sustain a security clearance.’” Bennett, 321 F. Supp. 2d at 57.
9
The district court recognized, however, that the affidavit is
questionable because “it was first offered during the course of
an EEO investigation and thus in anticipation of litigation.” Id.
An affidavit sworn years after taking a certain action is evidence
of why the action was initially taken. The trier of fact may
credit or reject that explanation. If other evidence supports the
affidavit, it becomes more credible.
While Bennett claims that TSA’s security clearance
explanation is pretextual, under Ryan, 168 F.3d at 522, a court
cannot adjudicate the credibility of that claim. To do so would
require the trier of fact to evaluate the validity of the agency’s
security determination. 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. The
impossibility of proving pretext under Title VII without testing
the merits of the Executive’s decision was emphasized by the
court in joining three other circuits in Ryan, 168 F.3d at 523-24,
a case largely ignored in Bennett’s briefs on appeal. The
countervailing concern, expressed by the amici curiae, that
judicial acceptance of such explanations will allow agencies to
“immunize” themselves from Title VII actions simply by
“raising the ‘national security’ flag” at the time of litigation,
Amicus Br. at 4, ignores that “suitability”can encompass
national security and that where there is substantial evidence
that the latter was a contemporaneous reason for the agency’s
action, the interests have been resolved by this court’s precedent
in favor of executive discretion.
Contrary to the suggestions of Bennett and amici curiae, the
Supreme Court’s decision in Hamdi v. Rumsfeld, 124 S. Ct.
2633 (2004), does not unsettle that precedent. The Court in
Hamdi held that the government’s invocation of national
security authority – an assertion that Hamdi was an “enemy
10
combatant” – could not preclude judicial review of the
lawfulness of his detention. Id. at 2650-51. Hamdi is inapposite
for two reasons. First, the Court emphasized that physical
liberty is a fundamental right that must be accorded great
weight. See id. at 2646-47. It is far from clear that the Court
would strike the same balance in the context of employment
termination. Second, Executive Order 12,968 provides
procedural protections to individuals determined ineligible for
security clearance. See Exec. Order No. 12,968, § 5.2(a), 60
Fed. Reg. at 40,252. While Bennett now challenges TSA’s
failure to follow those procedures, although access to
administrative review is not the relief sought in her complaint,
counsel for TSA appropriately acknowledged during oral
argument that equitable tolling may apply to the statute of
limitations for administratively challenging the denial of her
security clearance because TSA’s termination letter identified
Bennett’s only possible appeal as a report to the Office of Civil
Rights and did not state that she could appeal the decision
internally under 49 C.F.R. § 8.25. Cf. Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 96 (1990).
Accordingly, in light of Ryan, we affirm the dismissal of the
complaint.