                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


BURT R. THOMAS,

                   Plaintiff,

        v.

JEH JOHNSON, Secretary, U.S.                     Civil Action No. 13-359 (GK)
Department of Homeland
Security,

                   Defendant.


                                  MEMORANDUM OPINION

        Plaintiff Burt Thomas           ("Thomas" or "Plaintiff") brings this

Title        VII    action    against   Jeh      Johnson,       the   Secretary   of   the

Department            of     Homeland     Security          (the       "Secretary"      or

"Defendant"),          claiming that he was removed from his position at

the Federal Emergency Management Agency ("FEMA" or "the Agency")

on the basis of his race.

        This matter is before the Court on the Secretary's Motion

for Judgment on the Pleadings [Dkt. No. 19].                          Upon consideration

of the Motion,             Opposition   [ Dkt.    No.   22] ,    and Reply    [ Dkt.   No.

29], the entire record herein, and for the reasons stated below,

the Secretary's Motion is denied.
    I.      BACKGROUND 1

            For        purposes       of        this     Motion,            the    facts           can      be     stated

    briefly.           Plaintiff,          who is African American,                       is an employee of

    FEMA,     a        component           of    the         Department            of     Homeland               Security

    ("DHS").             Starting           in     February,               2011,        Plaintiff            held       the

position of Chief Security Officer.                                          Am.    Compl.          <JI    15-16.        On

July 28,               2011,    the Agency temporarily detailed Plaintiff to                                              a

different              position,           where       he     was         given    no    work        to      do.        Am.

Compl.        <JI<JI    23-24.        Plaintiff was                  told that          the        reason        for    the

temporary              detail        was    that        he         was     the    subject          of      an    ongoing

investigation                  for   contract           fraud,            attempting          to    influence           the

outcome of the Agency's                           security clearance investigations,                                    and

covering up alleged misconduct of other employees.                                                         Am.     Compl.

<JI<JI   17, 26.

            On February 23, 2012,                  Plaintiff was formally demoted to the

position of Director, Records Management Division.                                                        Am. Compl.      <JI


40. 2       The official reason given for his demotion was "misconduct

and malfeasance."                     Am.       Compl.       <JI    46.      In particular,                 the Agency

asserted               that     Plaintiff              violated            Agency        policy            by      making

knowingly              false     statements            and         permitting           two    employees,              Gary

Walker        and       James        Bland,       to    work         in positions              requiring           a    top

1
  The facts are taken from the Amended Complaint ("Am. Compl. ")
[Dkt. No. 7] and accepted as true for purposes of this Motion.
2
  Plaintiff's position was later changed to Field Coordinator in
the Logistics Operations Division. Am. Compl. <JI 40.
                                                             -2-
secret      security             clearance          while                  their       clearance                   applications

were still being investigated.                                    '!['![    46-48,              56.     The Agency also

alleged that                 Plaintiff permitted Walker and Bland to be hired

even though he knew they had criminal backgrounds.                                                             Am. Compl. '!I

62.

        Plaintiff contends that the reasons proffered by the Agency

for his 2011 detail and the 2012 demotion were merely pretext,

and     that        the         real       reason             for           these               actions            was     racial

discrimination and reprisal.                              Am. Compl.                   '!['![    74,    103.         He claims

that     white         employees            under        investigation                           generally            were    not

detailed       to       a     different       position during                              the         pendency of           such

investigations.                  Am.       Compl.        '!['![    29-32.                Plaintiff's                 theory    is

that,    by detailing him to                        a     new position in 2011,                                     the Agency

intended to demean him sufficiently that he would be induced to

resign, which would allow it to replace him with a white person

and thereby "facilitate the process of eliminating                                                                  ] African-

Americans from the security office."                                             Am.        Compl.        '!['![    37-38.     He

notes that a white employee was ultimately chosen to replace him

in    his   position,                and    that         his           demotion                  coincided           with     the

termination           and       suspension              of        several          other               African           American

employees      at            FEMA,    most    of        whom were                  also               replaced        by    white

employees.          '!['![   38, 107-111.

        Plaintiff             also     asserts           that              his     demotion               was        unfounded

because he did not,                  in fact, violate Agency policy by permitting

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Bland and Walker to work pending finalization of their security

clearances.         According to          Plaintiff,              Agency practice permitted

Bland        and    Walker       to      perform             at         least      some        of      their

responsibilities based on either a "reciprocal" or an "interim"

security clearance.              Am.     Compl.    tj{tj{    56-60,          80.      He claims that

similarly-situated white employees,                          including those with direct

responsibilities           for       ensuring      compliance                 with       the     security

clearance       ~equirements,         were not detailed to different positions

or demoted as he was.                Finally, he maintains that in the process

of      demoting    him,       the     Agency     intentionally                    deprived         him    of

certain        procedural      protections        given            to    white       employees         under

similar circumstances.               Am. Compl.       tjJ:   54, 61, 93, 96-97, 106.

        B.      Procedural Background

        Plaintiff filed this· case on March 20,                                  2013.      On June 3,

2013,     he    filed    an Amended        Complaint.                   On    July    11,      2013,      the

Secretary filed its Answer [Dkt. No. 8] .

        On     October   30'     2013,    the     Secretary               filed      its    Motion        for

Judgment on the Pleadings                [Dkt.    No.         19] .          On December 2,          2013,

Plaintiff filed his Opposition                    [Dkt.           No.    22] .       On December 20'

2013, the Secretary filed his Reply [Dkt. No. 29].

I I .   STANDARD OF REVIEW

         A Rule 12(c) motion is "functionally equivalent" to a Rule

12(b) (6) motion and governed by the same standard.                                            Rollins v.

Wackenhut Servs.,          Inc.,      703 F.3d 122,               130     (D.C. Cir.        2012).         To

                                             -4-
survive the motion,                  a plaintiff need only plead "enough facts to

state a          claim to relief that is plausible on its face"                                     and to

"nudge[               [his or her]         claims across the line from conceivable

to plausible."                  Bell Atlantic Corp.               v.       Twombly,        550 U.S.      544,

570     (2007).        "[O]nce a claim has been stated adequately,                                  it may

be     supported           by   showing       any   set    of     facts       consistent          with    the

allegations in the complaint."                         Id. at 563.

           In deciding a            Rule 12 (c)       motion,         a    court "must assume all

the allegations in the complaint are true                                     (even if doubtful in

fact)                      [and]    must     give   the plaintiff the benefit                       of all

reasonable             inferences            derived           from        the       facts       alleged."

Aktieselskabet AF 21. November 2001 v.                                Fame Jeans Inc.,            525 F.3d

8,    17    (D.C.      Cir.     2008)      (quotation marks and citations omitted).

The Court "must not make any judgment about the probability of

the    plaintiffs'              success,"      id.,     and      should          grant     a    motion    for

judgment         on    the      pleadings      only       if    it     clear      that      "no material

fact       is    in     dispute        and                 [the           movant]     is       entitled    to

judgment as            a    matter of law."               Peters v.          Nat' 1 R.R.         Passenger

Corp.,          966    F.2d        1483,     1485     (D.C.      Cir.        1992)       (citations       and

quotation marks omitted).

III. ANALYSIS

        The Government contends that Plaintiff's Title VII claim is

not justiciable under Dep't of Navy v. Egan,                                     484 U.S. 518         (1988)

and     its      progeny.            In    Egan,    the        Supreme       Court       held     that    the

                                                    -5-
Merits Systems Protection Board lacked the authority to review

the     Navy's    decision       to    deny    a     security      clearance       to    a    naval

employee because "no one has a                     'right'     to a security clearance"

and "predictive judgments" involved in making security clearance

determinations "must be committed to the broad discretion of the

agency responsible" for making such a determination.                                    484    u.s.
at 824, 25.

        Relying      on      Egan,    our     Court     of     Appeals       has    held       that

"[b] ecause      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."                   Bennett v. Chertoff, 425 F.3d 999,

1003     (D.C .. Cir.     2005);      see also Oryszak v.              Sullivan,        576 F.3d

522,    526    (D.C.    Cir.    2009)       (Ginsberg,       J.,   concurring)          ("We have

held that actions based upon denial of security clearance .

are beyond the reach of judicial review.")                          ( citations omitted) .

This is true even if the employee claims, under Title VII,                                     that

the     security clearance            decision was           racially motivated.

e.g.,    Ryan v.       Reno,    168 F.3d 520,          524     (D.C.      Cir.   1999)       (" [A]n

adverse       employment       action    based       on denial       or    revocation         of   a

security clearance is not actionable under Title VII.").

        The Secretary argues that these cases require the dismissal

of Plaintiff's case.                 The Court disagrees.               Each of the cases

                                               -6-
cited involved an adverse employment action directly predicated

on    an    unfavorable     security clearance determination,                    such that

adjudicating        the     plaintiff's          employment      claim         necessarily

required a merits           review of the underlying security clearance

decision.

       In contrast,        Plaintiff's demotion is not                 alleged to have

been       "based on"     any decision      regarding his         eligibility for            a

security       clearance.      Instead,      Plaintiff        alleges         that    he   was

demoted based on (among other things) his purported violation of

a    general    policy     governing   the       activities      of    employees       whose

clearances have not yet been finalized.                       Our Court of Appeals

has stated that:

       We do not believe that Egan insulates f.rom Title VII
       all decisions that might bear upon an employee's
       eligibility to access classified information.  Rather,
       the Court in Egan emphasized that the decision to
       grant    or   deny  security   clearance  requires   a
       "[p] redictive judgment" that "must be made by those
       with the necessary expertise in protecting classified
       information."

       Rattigan    v.     Holder,   689    F.3d     764,   767        (D.C.    Cir.    2012)

(emphasis in original)         (citation omitted).

       Resolving Plaintiff's Title VII claim, as it is alleged in

the Amended Complaint, does not require the Court to review the

validity of any "predictive               judgment" made "by those with the

necessary expertise in protecting classified information."                                 Id.

It merely requires a consideration of whether similarly situated


                                           -7-
employees were treated the same under the relevant policies,                  a

consideration that      lies   squarely within     the   Court's    Title VII

jurisdiction. 3    Accordingly, Egan and its progeny do not preclude

judicial review of Plaintiff's claim as a matter of law. 4

IV.   CONCLUSION

      For   the   foregoing    reasons,    Defendant's   Motion    is   denied.

An Order shall accompany this Memorandum Opinion.




January 16, 2013
                                           United States District Judge


Copies to: attorneys on record via ECF




3
  The Secretary contends that Plaintiff was removed from his post
based on his "malfeasance in granting [Walker and Bland] interim
security clearances[.]"   Def.'s Mot. at 1.  Even if it were true
that Plaintiff granted such clearances in the first instance,
which Plaintiff disputes, Pl.'s Opp'n at 3, our Court of Appeals
has held that Egan applies only to security clearance decisions
made by "trained Security Division personnel," Rattigan, 689
F. 3d at 768 (emphasis added) .  It is not alleged that Plaintiff
falls into this category.
4
   The  Secretary also   suggests   that   Plaintiff's   claim of
procedural irregularities has no legal basis.     Def. 's Mot. at
16-17.  However, it is clear that Plaintiff seeks relief on the
basis of his demotion and proffers the procedural irregularities
merely as    evidence that  he was     treated differently    from
similarly-situated white employees.   See Am. Compl. at Count II
(Demotion).
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