             Case: 18-10586    Date Filed: 04/18/2019   Page: 1 of 10


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-10586
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 5:14-cv-02489-RDP


AMY MURPHY,

                                                               Plaintiff-Appellant,
                                      versus
SECRETARY, U.S. DEPARTMENT OF THE ARMY,

                                                              Defendant-Appellee.

                         __________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                         _________________________

                                 (April 18, 2019)

Before MARTIN, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:

      Amy Murphy appeals the district court’s order dismissing her discrimination

claims under the Rehabilitation Act of 1973, 29 U.S.C. § 291 et seq., and affirming
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the Merit System Protection Board’s (“MSPB”) decision in her mixed case

complaint alleging three claims of disability discrimination and one

non-discrimination claim challenging the MSPB’s decision upholding the

Department of the Army’s (“DOA”) act of removing Murphy from federal service.

First, Murphy argues that the district court erred in determining that it lacked

jurisdiction over her discrimination claims under Department of Navy v. Egan, 484

U.S. 518 (1988), because her claims implicated the DOA’s decision to suspend and

revoke her security clearance. Next, she argues that the district court abused its

discretion by denying her two motions to amend her complaint. Lastly, she argues

that the district court erred by affirming the MSPB’s decision affirming the DOA’s

determination to remove her from federal service because the DOA committed

harmful procedural errors and rendered an unreasonable decision.

                                          I.

      The Rehabilitation Act bars the federal government from discriminating

against persons with disabilities under the Americans with Disabilities Act of

1990. 29 U.S.C. § 791(f). The Americans with Disabilities Act prohibits

discrimination against a qualified individual on the basis of disability with regard

to certain employment decisions. 42 U.S.C. § 12112(a). A qualified employee is

one who is able to satisfy all of the job’s requirements, with or without

accommodation. Southeastern Community College v. Davis, 442 U.S. 397, 406


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(1979). Prohibited discrimination includes the employer’s failure to make

reasonable accommodations for an employee’s physical or mental limitations

unless the employer can demonstrate that the accommodation would impose an

undue hardship. 42 U.S.C. § 12112(b)(5)(A). Reasonable accommodation may

include reassignment to a vacant position with the same employer if the individual

can perform the “essential functions” of the new job to which he seeks

reassignment. Id. §§ 12111(8), (9).

      We review de novo a district court’s grant of a motion to dismiss for lack of

subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Barbour v. Haley, 471

F.3d 1222, 1225 (11th Cir. 2006). It is a plaintiff’s burden to allege, with

particularity, facts necessary to establish jurisdiction. Morrison v. Allstate Indem.

Co., 228 F.3d 1255, 1273 (11th Cir. 2000). Factual findings concerning

subject-matter jurisdiction made by the district court are overturned only if clearly

erroneous. Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1238 (11th Cir. 2002).

Under clear error review, the district court’s determination must be affirmed so

long as it is plausible in light of the record viewed in its entirety. Commodity

Futures Trading Com’n v. Gibraltar Monetary Corp., Inc., 575 F.3d 1180, 1186

(11th Cir. 2009).

      There are two forms of attack on subject-matter jurisdiction under Rule

12(b)(1): facial attacks and factual attacks. Morrison v. Amway Corp., 323 F.3d


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920, 924 n.5 (11th Cir. 2003). A facial attack on the complaint requires the court

merely to look and see if the plaintiff has sufficiently alleged a basis of

subject-matter jurisdiction. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511

(5th Cir. 1980).1 A factual attack, however, challenges the existence of

subject-matter jurisdiction in fact, irrespective of the pleadings, and matters outside

the pleadings, such as testimony and affidavits, are considered. Id. On a factual

attack, no presumptive truthfulness attaches to the plaintiff’s allegations, and the

existence of disputed material facts will not preclude the trial court from evaluating

for itself the merits of jurisdictional claims. Lawrence v. Dunbar, 919 F.2d 1525,

1529 (11th Cir. 1990). The court, consistent with its “substantial authority” to

weigh evidence related to jurisdiction, may adjudicate a factual challenge under

Rule 12(b)(1) without converting the motion to one brought under Rule 56 where

“the facts necessary to sustain jurisdiction do not implicate the merits of plaintiff’s

cause of action.” Morrison, 323 F.3d at 925. Where, as here, the underlying

elements of Murphy’s claims are not implicated by the challenge, the court is free

to weigh the evidence and satisfy itself as to the existence of its power to hear the

case. Scarfo v. Ginsberg, 175 F.3d 957, 960-61 (11th Cir. 1999).



1       In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), this Court
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.


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      Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life

Ins. Co. of Am., 511 U.S. 375, 377 (1994). There is a presumption that every

federal court is without jurisdiction unless the contrary affirmatively appears from

the record. United States v. Rojas, 429 F.3d 1317, 1320 (11th Cir. 2005). A court

must dismiss an action if it determines at any time that it lacks subject-matter

jurisdiction. Fed. R. Civ. P. 12(h)(3). A motion under Federal Rule of Civil

Procedure 12(b)(1) allows a party to assert a defense of lack of subject-matter

jurisdiction. See Fed. R. Civ. P. 12. The burden of proof on a motion to dismiss

for lack of subject-matter jurisdiction is on the party asserting jurisdiction.

Morrison, 228 F.3d at 1273.

      In Egan, the Supreme Court held that no reviewing court has authority to

review the substance of an underlying security clearance determination when

reviewing an adverse employment action. See Egan, 484 U.S. at 526-31. This is

because the grant of security clearance to a particular employee—a sensitive and

inherently discretionary judgment call—is committed by law to the appropriate

agency of the executive branch. Id. at 527. The authority to protect national

security information falls on the President. Id. Further, the Supreme Court

observed that it should be obvious that no one has a right to a security clearance,

because the grant of a clearance requires an affirmative act of discretion on the part

of the granting official. Id. at 528. The act of discretion does not equate with


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passing judgment upon an individual’s character—instead, it is only an attempt to

predict her possible future behavior and to assess whether, under compulsion of

circumstances or for other reasons, she might compromise sensitive information.

Id. Thus, the grant or denial of security clearances is an inexact science at best,

and predictive judgments of this kind must be made by those with the necessary

expertise in protecting classified information. Id. at 529. Accordingly, it is not

possible for a court to review the substance of such a judgment and decide whether

the agency should have been able to make the necessary affirmative prediction

with confidence or determine what constitutes an acceptable margin of error in

assessing the potential risk. Id.

      We have noted that Egan “made clear that a decision concerning the

issuance or non-issuance of security clearance is a matter within the purview of the

executive and not to be second-guessed by the judiciary unless Congress has

specifically provided otherwise.” Hill v. White, 321 F.3d 1334, 1336 (11th Cir.

2003). Moreover, we have extended Egan to apply not only to final denials or

revocations of security clearances, but also to decisions made at the suspension or

investigatory stage, determining that to review the initial stages of a security

clearance determination is to review the basis of the determination itself regardless

of how the issue is characterized. Id.




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      There is no independent cause of action for bad faith interactive process.

Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997). This is because an

employee’s claim that her employer took adverse action against her by failing to

engage her in an interactive process merely reclothes her discrimination claim.

Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1261 (11th Cir. 2001).

      Here, the district court did not err in determining that Egan precluded it from

exercising jurisdiction over Counts One, Two, or Three, because each of these

claims would require the court to second-guess the DOA’s suspension and

revocation of Murphy’s security clearance, regardless of how Murphy

characterized the issue. See Egan, 484 U.S. at 526-31; Hill, 321 F.3d at 1336.

                                         II.

A district court’s denial of a motion to amend a complaint is reviewed for abuse of

discretion, although the underlying legal conclusion of whether a particular

amendment to the complaint would be futile is reviewed de novo. Corsello v.

Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005). Once 21 days have passed

since filing a complaint, a party may amend her pleading only with the opposing

party’s written consent or the court’s leave. Fed. R. Civ. P. 15(a)(2). The court

should freely give leave when justice so requires, in the absence of any apparent or

declared reason such as undue delay or futility of amendment. Foman v. Davis,

371 U.S. 178, 182 (1962). We have held that a district court may properly deny


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leave to amend the complaint when such amendment would be futile. Hall v.

United Ins. Co. of Am., 367 F.3d 1255, 1262-63 (11th Cir. 2004). The denial of

leave to amend is justified by futility when the complaint as amended is still

subject to dismissal. Id. at 1263.

      Here, the district court did not abuse its discretion in denying Murphy’s

motions to amend her complaint because the amendments she sought to impose

were futile in light of our determination that the district court lacked jurisdiction

over her claims under Egan, and her second motion to amend was untimely under

the court’s scheduling order. Foman, 371 U.S. at 182; Hall, 367 F.3d at 1262-63.

                                          III.

Where a federal employee brings a “mixed case,” appealing an adverse personnel

action from the MSPB and asserting claims of discrimination, the

non-discrimination claims are reviewed on the administrative record using an

arbitrary and capricious standard of review. Kelliher v. Veneman, 313 F.3d 1270,

1274-75 (11th Cir. 2002). The MSPB’s findings or conclusions will only be set

aside if they are (1) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; (2) obtained without procedures required by law, rule, or

regulation having been followed; or (3) unsupported by substantial evidence. 5

U.S.C. § 7703(c). The MSPB accords considerable deference to the agency’s

penalty determination and is permitted to modify a penalty only where the


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agency’s judgment clearly exceeded the bounds of reasonableness or the agency

failed to conscientiously consider relevant mitigating factors. Douglas v. Veterans

Admin., 5 M.S.P.B. 313, 332-33 (1981).

      Harmful procedural error constitutes an affirmative defense to the agency

action if the employee shows harmful error in the application of the agency’s

procedures in arriving at such decision. 5 U.S.C. § 7701(c)(2)(A). Harmful error

is error by the agency in the application of its procedures that is likely to have

caused the agency to reach a conclusion different from the one it would have

reached in the absence of the error. 5 C.F.R. § 1201.4(r). The employee carries

the burden of showing that the error caused substantial harm or prejudice to the

employee’s rights. Id.

      Here, Murphy has failed to meet her burden to show that the DOA

committed a harmful procedural error that caused her substantial harm or

prejudiced her rights. See 5 C.F.R. § 1201.4(r). We reject as wholly without merit

Murphy’s attempt to show procedural errors, or that any such errors caused the

agency to reach an incorrect conclusion. Additionally, Murphy has not shown that

the MSPB’s decision affirming the DOA’s determination to remove her from

federal service was unsupported by substantial evidence, was a decision made after

failing to follow proper procedures, or was arbitrary or capricious. See 5 U.S.C.

§ 7703(c).


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Accordingly, the decision of the district court is AFFIRMED.




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