    Case: 12-20471     Document: 00512223902      Page: 1   Date Filed: 04/29/2013




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                  Fifth Circuit

                                                                    FILED
                                                                   April 29, 2013
                                  No. 12-20471
                                                                   Lyle W. Cayce
                                                                        Clerk



BOBBI-ANNE TOY,

                                            Plaintiff–Appellant.

versus

ERIC H. HOLDER, JR.,
Attorney General, United States Department of Justice,

                                            Defendant–Appellee.




                 Appeal from the United States District Court
                      for the Southern District of Texas




Before REAVLEY, JOLLY, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


      Bobbi-Anne Toy, a contract FBI employee, sued the Attorney General (“the
government”) under Title VII of the Civil Rights Act of 1964, alleging sex dis-
crimination and retaliation. She claimed that the FBI had revoked her access
to its offices as a result of discriminatory animus. The government moved to
dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)
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and for summary judgment, arguing that the national security exception to Title
VII precluded Toy’s claims. The district court dismissed, and we affirm.


                                         I.
      For a Rule 12(b)(6) dismissal, we take plausible facts alleged in the com-
plaint as true. See In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
Cir. 2007). Toy was employed by independent contractor DynCorp to work as a
data and intelligence analyst at the FBI’s regional office in Beaumont. While
there, she received numerous commendations and positive reviews. She also
applied for direct employment with the FBI and was given a conditional offer of
employment.
      Things changed, however, when the director of the Beaumont office was
replaced by Brett Davis. Toy alleged that Davis was “abrasive,” “had problems
with women,” and wished to fire her. Davis eventually wrote a memo in which
he outlined various complaints regarding Toy, primarily that she had partici-
pated in undercover operations despite lacking approval to do so and had falsely
held herself out as an FBI employee. The government’s motion for summary
judgment outlined additional complaints, including Toy’s improper use of FBI
computers to install software and purchase unapproved items, her use of other
employees’ passwords to access computers, and her alleged romantic involve-
ment with the son of the target of an investigation.
      Toy denied all of those allegations. Based on Davis’s memo, however, Toy’s
direct supervisor revoked her access to the Beaumont office and purported to
revoke her security clearance as well.
      DynCorp then terminated Toy’s employment. Her conditional offer of
employment was revoked after individuals from the Beaumont office, including
her direct supervisor and Davis, provided negative references and recommended
that her background investigation be terminated. Toy filed a complaint with an

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Equal Employment Opportunity Commission counselor and eventually sued.


                                             II.
       We review dismissal under Rule 12(b)(6) de novo, “accepting all well-
pleaded facts as true and viewing those facts in the light most favorable to the
plaintiff.” Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010) (inter-
nal quotation marks omitted). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’”1


                                            III.
       Title VII makes it unlawful for an employer to engage in certain employ-
ment practices, which includes “discharg[ing] any individual . . . because of such
individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Toy claims that her building
access revocation amounted to discharge and that it was motivated by her sex.
       Title VII, however, provides an exception where employment actions are
based on national-security considerations. Under subsection (g), it is not an
unlawful employment practice
       for an employer to discharge any individual from any position . . .
       if—

       (1) the occupancy of such position, or access to the premises in or
       upon which any part of the duties of such position is performed or
       is to be performed, is subject to any requirement imposed in the
       interest of the national security of the United States under any
       security program in effect pursuant to or administered under any
       statute of the United States or any Executive order of the President;
       and


       1
         Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). See generally 2 JAMES W. MOORE ET AL., MOORE’S FEDERAL PRACTICE
§ 8.04[1][b] (3d ed. 2012).

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       (2) such individual has not fulfilled or has ceased to fulfill that
       requirement.

Id. § 2000e-2(g).
       In addition to this explicit statutory exemption for cases of national secur-
ity, the Executive Branch has broad power to determine whether to grant or
revoke access to secure information. In Dep’t of Navy v. Egan, 484 U.S. 518, 529
(1988), the Court held that “the protection of classified information must be com-
mitted to the broad discretion of the agency responsible, and this must include
broad discretion to determine who may have access to it.” For this reason, courts
may not review decisions to grant access to sensitive information made by the
executive. Id. This maxim derives from the Constitution’s grant of presidential
authority, which includes “authority to classify and control access to information
bearing on national security and to determine whether an individual is suffi-
ciently trustworthy to occupy a position in the Executive Branch that will give
that person access to such information.” Id. at 527.
       Though Egan arose in the context of the Merit Systems Protection Board,
we have applied it in the context of Title VII. In Perez v. F.B.I., 71 F.3d 513,
514–15 (5th Cir. 1995), we held that examination of “legitimacy and the possibly
pretextual nature of the FBI’s proffered reasons for revoking [an] employee’s
security clearance” in a Title VII challenge would be “an impermissible intrusion
by the Judicial Branch into the authority of the Executive Branch over matters
of national security.” We therefore did not have jurisdiction to consider the Title
VII claims. Id. at 515.2
       The district court focused primarily on the constitutionally derived Egan
national security exemption in holding that Toy’s building-access revocation

       2
        See also Ryan v. Reno, 168 F.3d 520, 524 (D.C. Cir. 1999) (“[U]nder Egan an adverse
employment action based on denial or revocation of a security clearance is not actionable
under Title VII.”).

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could not be examined by the court. That strategy follows the majority approach
—it seems that no appellate court has addressed Title VII’s explicit national-
security exemption. Each previous case has revolved around some form of denial
or revocation of a security clearance, which falls under Egan and is jurisdic-
tional.3
       Egan’s holding that security-clearance decisions could not be reviewed was
premised on necessary “[p]redictive judgment[s]” that must be made in relation
to security clearances and the “necessary expertise” that agencies have in mak-
ing them. Egan, 484 U.S. at 529. The Navy had provided Egan with several lay-
ers of consideration and review related to his security clearance. That process,
coupled with the necessity of the judgments and the agency’s expertise, led the
Court to conclude that it could not review the security decisions.
       The district court concluded, and the government urges us to affirm, that
a security clearance is essentially identical to building access and that other
courts have expanded Egan beyond security clearances. The government cites
Brazil v. United States Department of Navy, 66 F.3d 193 (9th Cir. 1995) as an
example of that court’s expanding the meaning of the national security exemp-
tion beyond security clearances to cover a separate certification program. That
opinion, however, is unhelpful, because the court treated a certification program
as a security clearance only because the parties had agreed to treat it as such.4
       The government also cites Becerra v. Dalton, 94 F.3d 145, 148 (4th Cir.
1996), in which the court held that the instigation of an investigation of a secur-
ity clearance, rather than revocation, was covered under Egan’s national-
security exemption. The plaintiff had claimed that the investigation of his suita-


       3
         See, e.g., Bennett v. Chertoff, 425 F.3d 999 (D.C. Cir. 2005) (analyzing a Tittle VII
security exemption claim under Egan rather than subsection (g)).
       4
        Brazil, 66 F.3d at 195 n. 1 (explaining that the court would “treat PRP certification
and security clearance decisions as equivalent for purposes of this opinion”).

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                                       No. 12-20471

bility for a security clearance was impermissibly retaliatory, but the court held
that the investigation was tied to the clearance and thus was covered under
Egan. Id. Again, that case is unhelpful because of the inextricable connection
to security-clearance determinations.
       Finally, the government cites Beattie v. United States, 949 F.2d 1092, 1095
(10th Cir. 1991), in which the plaintiff had been denied access to the Air Force
One secured area and thereafter was terminated. The court did not decide
whether revocation of access to the premises was akin to a revocation of a secur-
ity clearance under Egan—it only hinted at that in dictum.5
       None of the cases cited by the government is particularly persuasive. No
court has extended Egan beyond security clearances, and we decline to do so.
Security clearances are different from building access; security-clearance deci-
sions are made by specialized groups of persons, charged with guarding access
to secured information, who must make repeated decisions.6 There is also signif-
icant process involved in granting security clearances,7 the kind of process that
allows agencies to make the deliberate, predictive judgments in which they
specialize.


       5
         The government offers one further case to support a broad reading of Egan to encom-
pass revocation of building access. The government cites Berry v. Conyers, 692 F.3d 1223,
1226 (Fed. Cir. 2012), reh’g en banc granted, opinion vacated, 2013 WL 262509 (Fed. Cir.
Jan. 24, 2013), which held that Egan applied not only to security clearances but also to deter-
minations of “eligibility of an individual to occupy a sensitive position, which may not neces-
sarily involve access to classified information.” Because of the en banc rehearing, the govern-
ment cannot derive support from Conyers.
       6
         Security determinations in particular are delegated by the President to agency heads
or their designees, not to any employee or supervisor in an agency. See, e.g., Exec. Order No.
10,450, 18 Fed. Reg. 2489 (April 27, 1953) (making agency heads and their designees responsi-
ble for ensuring that employees act in the interests of national security); Exec. Order No.
13,526, 75 Fed. Reg. 707 (Dec. 29, 2009) (requiring the agency head or his designee to make
a “determination of eligibility for access” to classified information).
       7
         See Exec. Order No. 12,968, 60 Fed. Reg. 40245 § 5.2 (August 2, 1995) (describing pro-
cess for review of denial or revocation of a security clearance).

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                                         No. 12-20471

       That is not the case, as aptly demonstrated here, where building access is
concerned. Building access may be revoked, as in this case, by a supervisor,
someone who does not specialize in making security decisions. An FBI security
clearance, on the other hand, may be granted or revoked only by the FBI’s Secur-
ity Division, a group that specializes in making security-clearance decisions and
to which authority to make those decisions is explicitly delegated by the direc-
tor.8 A lack of oversight, process, and considered decision-making separates this
case from Egan, which therefore does not bar Toy’s suit.9
       Subsection (g), however, does: Its plain language creates an exception to
Title VII where granting “access to the premises” of a secure location is related
to national security. 42 U.S.C. § 2000e-2(g). Access must be “subject to any
requirement imposed in the interest of the national security . . . under any secur-
ity program in effect pursuant to or administered under any statute of the
United States or any Executive order of the President.” Id.
       There is no doubt that “access to the premises” is at issue here. The ques-
tion is whether that access is subject to any applicable statute or executive order


       8
         This decision is in accord with Rattigan v. Holder, 689 F.3d 764, 768 (D.C. Cir. 2012),
which somewhat limited Egan’s scope. Rattigan, an FBI employee, sued under Title VII claim-
ing that he was discriminated and retaliated against. His claim was based on a complaint
made by the Office of International Operations (“OIO”) to the FBI’s Security Division. A co-
worker had voiced concerns to the OIO, which then referred the matter to the Security Divi-
sion. Id. at 766. Rattigan claimed that the colleague’s complaint and its referral to the Secur-
ity Division were not protected under Egan, and the court agreed. It held that Egan applies
only to “security clearance-related decisions made by trained Security Division personnel and
does not preclude all review of decisions by other FBI employees who merely report security
concerns.” Id. at 768. FBI “employees outside the Security Division are expected to refrain
from making sensitive, predictive judgments and it is ‘not their place’ to make the kinds of
decisions that Egan shields from review.” Id.
       9
         “[T]he lack of judicial review [of security clearance decisions] creates the potential for
abuse by the agencies and bureaus employing them.” Perez, 71 F.3d at 514 n. 6. That result
is required by Egan, because “security clearance determinations are ‘sensitive and inherently
discretionary’ exercises, entrusted by law to the Executive.” Id. (quoting Egan, 484 U.S. at
527–29). That lack of judicial review and increased possibility of abuse are not required in the
case of building-access decisions.

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(“EO”) that administers a “national security program.” As a matter of first
impression, we interpret a “national security program” broadly to mean any set
of regulations related to matters of national security. There must be a specific
statute or EO, however, requiring or implementing such regulations.
       The government points to EO 12829 establishing the National Industrial
Security Program (“NISP”), which governs national security related to contrac-
tors. That EO broadly states that contractors shall be subject to the same secur-
ity requirements as are members of the Executive Branch, and it directs that an
implementation manual be written. The resulting manual requires that a pro-
cedure “be established for removal of the individual’s authorization to enter the
[secure] area upon reassignment, transfer or termination, or when the individ-
ual’s PCL [personnel security clearance] is suspended or revoked.” Operating
Manual § 5-313(d).10 The manual also repeatedly states that “[n]othing in this
Manual affects the authority of the Head of an Agency to limit, deny, or revoke
access to classified information.” Id. § 1-105. The government points to an addi-
tional section that requires “contract employees” to “follow the security require-
ments of the host.” Id. § 6-105.
       The EO establishing the NISP creates a “national security program”—it
directs agencies to take steps to control sensitive information. That program
unquestionably applies to Toy, a contract employee. It and the operations man-
ual together require agencies to ensure that contractors abide by security regula-
tions applicable to employees and lays out concrete steps that must be taken.
       A logical step related to that security program is revocation of a contract
employee’s building access. There is an abundance of security-related confiden-
tial information at FBI offices, and access to a building would mean access to
that information. Moreover, access to the premises would allow access to com-

       10
          National Industrial Security Program Operating Manual, February 28, 2006, availa-
ble at http://www.dss.mil/documents/odaa/nispom2006-5220.pdf.

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                                   No. 12-20471

puter networks, which contain even more classified information, the release of
which might be a threat to national security—the government contended in its
motion to dismiss that Toy had accessed secure information on FBI computers
using other employees’ credentials.
      The contract between DynCorp and the Department of Justice contem-
plated building access as a part of security arrangements; it makes clear that
access to an office could be refused to a contract worker who acted contrary to
the Department’s guidelines. Even if the Beaumont office had asked for a revo-
cation of Toy’s security clearance, which would have invoked the protections of
Egan, common sense dictates that the FBI be allowed to suspend building access
to a person who allegedly committed grave security breaches during that pro-
cess. This is explicitly contemplated by the operations manual produced pursu-
ant to EO 12829.
      A related security program not advanced by the government arises under
EO 12968. which provides that agencies may “grant or deny, in their discretion,
facility access approvals” where employees might be exposed to classified infor-
mation inadvertently. 60 Fed. Reg. 40245 § 2.1(b)(1). That program again is a
“national security program” insofar as it is designed to safeguard classified infor-
mation in the interest of national security. It explicitly contemplates national
security and entrusts to agencies the ability to grant or deny building access to
government employees based on security considerations.
      Because EO 12829 applies restrictions on employees to contract employees
as well, EO 12968 applies to Toy—the agency has the ability to grant or deny
access to facilities within its discretion based on considerations of national secur-
ity. Thus, there are multiple relevant “national security programs” arising
under EOs that relate to access to secured premises. Subsection (g) applies to
Toy’s building access revocation, and review is therefore barred.



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                                  No. 12-20471

                                       IV.
      In summary, subsection (g) creates a security exemption to Title VII where
access is denied to a premise where secure information is kept. EOs 12829 and
12968 create security programs related to securing information, and the govern-
ment advances numerous reasons for the revocation of Toy’s access to the build-
ing where that information was kept, all of which are directly related to security
breaches she allegedly committed. Toy therefore cannot be granted relief under
Title VII. The judgment of dismissal is AFFIRMED.




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