IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-50173
BERNARD M. PEREZ,
on behalf of himself and all
others similarly situated,
Plaintiff,
and
FERNANDO E. MATA,
Movant-Appellant,
versus
FEDERAL BUREAU OF INVESTIGATION,
EDWIN MEESE, Attorney General,
WILLIAM S. SESSIONS, Director,
Federal Bureau of Investigation,
Defendants-Appellees,
and
WILLIAM H. WEBSTER, Director,
Federal Bureau of Investigation,
Defendant.
Appeal from the United States District Court
for the Western District of Texas
December 13, 1995
Before JOLLY, WIENER and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
Movant-Appellant Fernando E. Mata, a former employee of the
Federal Bureau of Investigation (FBI), appeals the district court's
order dismissing, for lack of jurisdiction, Mata's motion seeking
relief under Title VII1 on grounds of retaliation for his
participation, on behalf of present and former Hispanic employees,
in the instant class action lawsuit against the FBI.2 In that
suit, the district court found no retaliation against any class
member other than the named plaintiff, Bernardo Perez.3
Mata alleged that, in violation of § 704 of Title VII,4 the
FBI took acts of retaliation against him by revoking his top-secret
security clearance and firing him. Employment like Mata's with the
FBI requires top-secret security clearance, so the FBI's revocation
of Mata's clearance was tantamount to firing him because his
eligibility to serve terminated automatically as a result of the
loss of that clearance. In response to Mata's allegations that the
revocation of his clearance and resulting firing were retaliatory,
the FBI proffered, as non-discriminatory reasons for such adverse
employment actions, that Mata (1) fabricated official reports, and
(2) disclosed classified information to unauthorized
representatives of the Cuban Government. In the ordinary Title VII
situation, that would put the ball in Mata's court to show pretext.
Observing that the essence of the retaliation asserted by Mata
is the FBI's decision to revoke his security clearance, the
district court concluded that it lacked subject matter jurisdiction
1
42 USC § 2000e, et seq.
2
See Perez v. FBI 707 F. Supp. 891 (W.D. Tex. 1988) (liability
phase); see also Perez v. FBI 714 F. Supp. 1414 (W.D. Tex. 1989)
1989) (recovery phase).
3
Perez, 707 F. Supp. at 926.
4
42 USC § 2000e-3(a).
2
to review his claim and entered an order of dismissal. It is that
order of the district court which is appealed herein by Mata.
Although we understand and sympathize with Mata's frustration
at not being able to obtain judicial review of his retaliation
claims, we come inevitably to the same conclusion reached by the
district court: Because the court would have to examine the
legitimacy and the possibly pretextual nature of the FBI's
proffered reasons for revoking the employee's security clearance,5
any Title VII challenge to the revocation would of necessity
require some judicial scrutiny of the merits of the revocation
decision.6 As the Supreme Court and several circuit courts have
5
See Brazil v. U.S. Dept. of the Navy, 66 F.3d 193 (9th Cir.
1995) (discussing McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)).
6
We also understand the concern of federal agents, whose
employment is conditioned on security clearances, that the lack of
judicial review creates the potential for abuse by the agencies and
bureaus employing them. This result, however, is required by the
fact that security clearance determinations are "sensitive and
inherently discretionary" exercises, entrusted by law to the
Executive. Department of Navy v. Egan, 484 U.S. at 527-29.
"Predictive judgments of this kind" properly are left to "those
with the necessary expertise in protecting [the sensitive
material,]" rather than in the hands of "an outside nonexpert body"
or the equally nonexpert federal courts. Id. at 529; see also
Webster v. Doe, 486 U.S. 592, 601 (1988) ("[T]he [Central
Intelligence] Agency's efficacy, and therefore the Nation's
security, depend in large measure on the reliability and
trustworthiness of the Agency's employees. . . .[E]mployment with
the Agency entails a high degree of trust that is perhaps unmatched
in Government service."). Accordingly, review of these decisions
is left to the respective departments of the Executive Branch,
which have internal administrative procedures in place for
adjudicating employee complaints of discrimination and appeals
therefrom. We must stress, therefore, that the Executive
Department--in this instance, the Attorney General, the Department
of Justice, the Director of the FBI, and the Inspector General--
bears a heavy responsibility and special duty of fairness to ensure
that its agencies and bureaus do not trample the rights of their
3
held that such scrutiny is an impermissible intrusion by the
Judicial Branch into the authority of the Executive Branch over
matters of national security, neither we nor the district court
have jurisdiction to consider those matters.7
In addition to concluding that it lacked subject matter
jurisdiction to address Mata's Title VII claim, the district court
also determined that it lacked such jurisdiction to address
Mata's Bivens claims under the First and Fifth Amendments. In so
doing, the court correctly relied on Supreme Court and Fifth
Circuit precedent to the effect that Title VII provides both the
exclusive cause of action and the exclusive remedy for federal
employees who wish to assert claims of employment discrimination.8
In sum, our review of the evidence and the applicable law
convinces us that the determinations of the district court are free
of reversible error. We are led, therefore, to the unavoidable
conclusion that neither the district court nor this court on appeal
has subject matter jurisdiction to consider Mata's Title VII or
Bivens claims. The rulings of the district court regarding Mata's
motion are, therefore,
AFFIRMED.
employees in employment matters.
7
See e.g., Department of the Navy v. Egan, 484 U.S. 518
(1988); see also Webster v. Doe, 486 U.S. 592 (1988).
8
See Brown v. General Services Administration, 425 U.S. 820
(1976) (Title VII provides exclusive judicial remedy for claims of
discrimination in federal employment); Porter v. Adams, 639 F.2d
273 (5th Cir. 1981).
4