Tuesday, August 27, 2013
Case Based on Suspension of Security Clearance Can Move Forward, in Part
The United States District Court for the District of Columbia ruled today in Burns-Ramirez v. Napolitano that a Secret Service Agent's Title VII claim based on her co-workers' alleged false statements about her, which led to the revocation of her top security clearance, can go forward. But the court was clear that it can't rule on the underlying agency decision to investigate, suspend, or revoke the plaintiff's security clearance; it can only rule on the plaintiff's claim that agency employees acted with discriminatory or retaliatory motive by making false reports to agency decisionmakers, knowing that those reports were false.
The ruling grows out of a Secret Service Agent's Title VII claims against DHS for suspending her top secret security clearance based on alleged statements by her co-workers that were false, discriminatory, and in retaliation for her earlier complaints about harassment and retaliation. The Service ultimately revoked her top secret security clearance, which led to her termination as an Agent. (You need a top secret security clearance to be an Agent.)
She sued, and the Service moved to dismiss. The court granted the motion to dismiss, ruling the claim nonjusticiable under Navy v. Egan (1988), insofar as the plaintiff's suit required the court to review the substantive agency decisions to investigate, suspend, or revoke her security clearance. But the court, applying a D.C. Circuit exception to Egan, denied the motion insofar as the suit alleged that agency employees acted with discriminatory or retaliatory motive by making false reports to agency decisionmakers, knowing that those reports were false.
The ruling means that the portion of the case relating to agency employees making false or discriminatory reports can go forward, even as the portion of the case relating to the substantive decision to revoke the plaintiff's security clearance is dismissed.