UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _____________________________ ) LINDA CRUZ-PACKER, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-1235 (RWR) ) MICHAEL CHERTOFF, ) ) Defendant. ) _____________________________ )
MEMORANDUM OPINION
Pro se plaintiff Linda Cruz-Packer filed a complaint
alleging that her federal employer, the Transportation Security
Administration (“TSA”), terminated her employment in violation of
Title VII of the Civil Rights Act of 1964 and defamed her. TSA
has moved under Federal Rule of Civil Procedure 12(b)(1) to
dismiss the complaint for lack of jurisdiction. Because Cruz-
Packer has not demonstrated that this court has jurisdiction over
her claims, the motion to dismiss will be granted.1
1 Cruz-Packer has also moved under Local Civil Rule 83.11(b)(3) for appointment of counsel to assist her with this civil claim. A plaintiff in a civil case typically does not have a right to counsel. See Willis v. FBI, 274 F.3d 531, 532 (D.C. Cir. 2001). “Appointment of counsel calls for exceptional circumstances and ‘is wholly unwarranted when [the movant] has not demonstrated any likelihood of success on the merits.’” Kidd v. Howard Univ. School of Law, Civil Action No. 06-1853 (RBW), 2007 WL 1821159, at *2 (D.D.C. June 25, 2007)(quoting Nichols v. Mosbacher, 959 F.2d 1101 (D.C. Cir. 1992). Because Cruz-Packer has not shown that the nature or complexity of her case, the potential merit of her claim, or the interests of justice warrant appointment of counsel, her motion for appointment of counsel will be denied. -2-
BACKGROUND
TSA hired Cruz-Packer in June 2002 as a Transportation
Security Specialist.2 (Am. Compl. ¶¶ 1-2, 14.) Shortly after
she was hired, Cruz-Packer was assigned to a criminal
investigator position. (Id. at ¶¶ 2, 17.) TSA alleges that her
position required her to have a Top Secret security clearance
enabling her to have access to national security information,
something Cruz-Packer says she had not been told. (See Def.’s
Mem. in Supp. of Mot. to Dismiss (“Def.’s Mem.”) at 1-2; id.,
Ex. 1 at ¶ 2; Pl.’s Mem. of Points and Authorities Denying Def.’s
Mot. to Dismiss (“Pl.’s Mem.”) at 8-9.) In March 2003, Cruz-
Packer completed at TSA’s request an “SF-86” security
questionnaire which started her background investigation. (Am.
Compl. at ¶¶ 16, 18.) The background investigation revealed that
a prior employer had terminated Cruz-Packer for misconduct, a
fact she had failed to disclose on her SF-86 form. (Def.’s Mem.,
Ex. 1 at ¶ 2.) TSA claims that her lack of candor prevented her
from receiving the required security clearance. (Id.) TSA
initially suspended Cruz-Packer and then fired her for
unsuitability on November 18, 2004. (Am. Compl. at ¶¶ 22-23.)
2 TSA is now a component of the Department of Homeland Security. At the time Cruz-Packer was terminated, TSA was a component of the Department of Transportation. (See Def.’s Mem. in Support of Mot. to Dismiss at 1.) -3-
Cruz-Packer alleges in her amended complaint that her
termination constituted discrimination on the basis of sex,
sexual harassment, and retaliation (Counts I-III), and that TSA
defamed her by posting at the front entranceway of the building
in which she worked a notice stating that she was not allowed to
enter the building (Count IV).3 (Am. Compl. at ¶¶ 28-38; Pl.’s
Mem. at 1-2.) TSA maintains in a declaration signed by a TSA
official that the reason Cruz-Packer was terminated was that she
could not obtain a security clearance. (Def.’s Mem., Ex. 1 at
¶ 2.) It has moved under Fed. R. Civ. P. 12(b)(1) to dismiss for
lack of jurisdiction, arguing that the decision to deny security
clearances is not subject to judicial review. (Def.’s Mem. at 1-
2.) Cruz-Packer opposes the motion, arguing that the defendant’s
stated grounds for her termination are a pretext because the
defendant did not indicate to her in writing that maintaining a
security clearance was a necessary condition of Cruz-Packer’s
employment, and because other criminal investigators with
negative events in their backgrounds were not dismissed or denied
security clearances. (Pl.’s Mem. at 3-8.)
3 Defamation claims are specifically exempted under the Federal Tort Claims Act, 28 U.S.C. § 2680(h), from the torts for which the government may be sued. The federal government has not waived sovereign immunity from defamation claims, and Cruz-Packer cannot proceed against the TSA on Count IV. See Council on Am. Islamic Rels. v. Ballenger, 444 F.3d 659, 666 (D.C. Cir. 2006); Banks v. Lappin, 539 F. Supp. 2d 228, 240-41 (D.D.C. 2008). -4-
DISCUSSION
“On a motion to dismiss for lack of subject-matter
jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the
burden of establishing that the court has subject-matter
jurisdiction.” Shuler v. United States, 448 F. Supp. 2d 13, 17
(D.D.C. 2006) (citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992)). While factual allegations contained in the
complaint must be accepted as true when reviewing a motion to
dismiss under Rule 12(b)(1), Leatherman v. Tarrant County
Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164
(1993), a court may consider material outside of the pleadings
when determining whether a plaintiff has established jurisdiction
to hear the case. See Venetian Casino Resort v. EEOC, 409 F.3d
359, 366 (D.C. Cir. 2005) (citing EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997)).
“Title VII prohibits the federal government from
discriminating in employment on grounds of race or sex, 42 U.S.C.
§ 2000e-16, and from retaliating against employees for engaging
in activity protected by Title VII.” Montgomery v. Chao, 546
F.3d 703, 706 (D.C. Cir. 2008). Proof in a circumstantial Title
VII case such as this one often unfolds following familiar steps.
Where a plaintiff presents prima facie evidence of discrimination
or retaliation and the defendant responds with a legitimate,
nondiscriminatory reason for its actions, the sole remaining -5-
issue is whether the adverse employment decision was made for a
discriminatory or retaliatory reason. Id. at 706 (citing Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000), and
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493-94 (D.C.
Cir. 2008)).
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _____________________________ ) LINDA CRUZ-PACKER, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-1235 (RWR) ) MICHAEL CHERTOFF, ) ) Defendant. ) _____________________________ )
MEMORANDUM OPINION
Pro se plaintiff Linda Cruz-Packer filed a complaint
alleging that her federal employer, the Transportation Security
Administration (“TSA”), terminated her employment in violation of
Title VII of the Civil Rights Act of 1964 and defamed her. TSA
has moved under Federal Rule of Civil Procedure 12(b)(1) to
dismiss the complaint for lack of jurisdiction. Because Cruz-
Packer has not demonstrated that this court has jurisdiction over
her claims, the motion to dismiss will be granted.1
1 Cruz-Packer has also moved under Local Civil Rule 83.11(b)(3) for appointment of counsel to assist her with this civil claim. A plaintiff in a civil case typically does not have a right to counsel. See Willis v. FBI, 274 F.3d 531, 532 (D.C. Cir. 2001). “Appointment of counsel calls for exceptional circumstances and ‘is wholly unwarranted when [the movant] has not demonstrated any likelihood of success on the merits.’” Kidd v. Howard Univ. School of Law, Civil Action No. 06-1853 (RBW), 2007 WL 1821159, at *2 (D.D.C. June 25, 2007)(quoting Nichols v. Mosbacher, 959 F.2d 1101 (D.C. Cir. 1992). Because Cruz-Packer has not shown that the nature or complexity of her case, the potential merit of her claim, or the interests of justice warrant appointment of counsel, her motion for appointment of counsel will be denied. -2-
BACKGROUND
TSA hired Cruz-Packer in June 2002 as a Transportation
Security Specialist.2 (Am. Compl. ¶¶ 1-2, 14.) Shortly after
she was hired, Cruz-Packer was assigned to a criminal
investigator position. (Id. at ¶¶ 2, 17.) TSA alleges that her
position required her to have a Top Secret security clearance
enabling her to have access to national security information,
something Cruz-Packer says she had not been told. (See Def.’s
Mem. in Supp. of Mot. to Dismiss (“Def.’s Mem.”) at 1-2; id.,
Ex. 1 at ¶ 2; Pl.’s Mem. of Points and Authorities Denying Def.’s
Mot. to Dismiss (“Pl.’s Mem.”) at 8-9.) In March 2003, Cruz-
Packer completed at TSA’s request an “SF-86” security
questionnaire which started her background investigation. (Am.
Compl. at ¶¶ 16, 18.) The background investigation revealed that
a prior employer had terminated Cruz-Packer for misconduct, a
fact she had failed to disclose on her SF-86 form. (Def.’s Mem.,
Ex. 1 at ¶ 2.) TSA claims that her lack of candor prevented her
from receiving the required security clearance. (Id.) TSA
initially suspended Cruz-Packer and then fired her for
unsuitability on November 18, 2004. (Am. Compl. at ¶¶ 22-23.)
2 TSA is now a component of the Department of Homeland Security. At the time Cruz-Packer was terminated, TSA was a component of the Department of Transportation. (See Def.’s Mem. in Support of Mot. to Dismiss at 1.) -3-
Cruz-Packer alleges in her amended complaint that her
termination constituted discrimination on the basis of sex,
sexual harassment, and retaliation (Counts I-III), and that TSA
defamed her by posting at the front entranceway of the building
in which she worked a notice stating that she was not allowed to
enter the building (Count IV).3 (Am. Compl. at ¶¶ 28-38; Pl.’s
Mem. at 1-2.) TSA maintains in a declaration signed by a TSA
official that the reason Cruz-Packer was terminated was that she
could not obtain a security clearance. (Def.’s Mem., Ex. 1 at
¶ 2.) It has moved under Fed. R. Civ. P. 12(b)(1) to dismiss for
lack of jurisdiction, arguing that the decision to deny security
clearances is not subject to judicial review. (Def.’s Mem. at 1-
2.) Cruz-Packer opposes the motion, arguing that the defendant’s
stated grounds for her termination are a pretext because the
defendant did not indicate to her in writing that maintaining a
security clearance was a necessary condition of Cruz-Packer’s
employment, and because other criminal investigators with
negative events in their backgrounds were not dismissed or denied
security clearances. (Pl.’s Mem. at 3-8.)
3 Defamation claims are specifically exempted under the Federal Tort Claims Act, 28 U.S.C. § 2680(h), from the torts for which the government may be sued. The federal government has not waived sovereign immunity from defamation claims, and Cruz-Packer cannot proceed against the TSA on Count IV. See Council on Am. Islamic Rels. v. Ballenger, 444 F.3d 659, 666 (D.C. Cir. 2006); Banks v. Lappin, 539 F. Supp. 2d 228, 240-41 (D.D.C. 2008). -4-
DISCUSSION
“On a motion to dismiss for lack of subject-matter
jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the
burden of establishing that the court has subject-matter
jurisdiction.” Shuler v. United States, 448 F. Supp. 2d 13, 17
(D.D.C. 2006) (citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992)). While factual allegations contained in the
complaint must be accepted as true when reviewing a motion to
dismiss under Rule 12(b)(1), Leatherman v. Tarrant County
Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164
(1993), a court may consider material outside of the pleadings
when determining whether a plaintiff has established jurisdiction
to hear the case. See Venetian Casino Resort v. EEOC, 409 F.3d
359, 366 (D.C. Cir. 2005) (citing EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997)).
“Title VII prohibits the federal government from
discriminating in employment on grounds of race or sex, 42 U.S.C.
§ 2000e-16, and from retaliating against employees for engaging
in activity protected by Title VII.” Montgomery v. Chao, 546
F.3d 703, 706 (D.C. Cir. 2008). Proof in a circumstantial Title
VII case such as this one often unfolds following familiar steps.
Where a plaintiff presents prima facie evidence of discrimination
or retaliation and the defendant responds with a legitimate,
nondiscriminatory reason for its actions, the sole remaining -5-
issue is whether the adverse employment decision was made for a
discriminatory or retaliatory reason. Id. at 706 (citing Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000), and
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493-94 (D.C.
Cir. 2008)).
TSA argues that this court lacks subject matter jurisdiction
to entertain Cruz-Packer’s Title VII claims because the
litigation would necessarily question the reason for the decision
to deny the security clearance, which is prohibited by 42 U.S.C.
§ 2000e-2(g). Section 2000e-2(g) provides, in relevant part,
that it is not unlawful to terminate an employee if
the occupancy of such position . . . 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] such individual has not fulfilled or has ceased to fulfill that requirement.
Courts have found jurisdiction lacking in cases implicating
security clearance determinations. The Supreme Court held that
the Merit Systems Protection Board, the administrative body
empowered to adjudicate challenges to federal personnel actions,
could not “review the substance of an underlying decision [by an
agency] to deny or revoke a security clearance in the course of
reviewing an adverse [employment] action.” Dept. of Navy v.
Egan, 484 U.S. 518, 520 (1988). The D.C. Circuit later found
that Egan’s reasoning also applied “in a Title VII action to -6-
preclude a ‘nonexpert body’ -- whether administrative or judicial
-- from resolving a discrimination claim based on an adverse
employment action resulting from an agency security clearance
decision.” Ryan v. Reno, 168 F.3d 520, 523 (D.C. Cir. 1999).
The court stated that proof in that Title VII case could not
follow the usual steps
without running smack up against Egan. The nondiscriminatory reason proffered below for withdrawing the employment offers was that the applicants’ long residence abroad prevented DOJ from conducting an adequate security clearance background investigation. The appellants could not challenge the proffered reason's authenticity without also challenging its validity.
Id. at 524. Therefore, “because the district court . . . could
not proceed with the appellants’ discrimination action without
reviewing the merits of DOJ’s decision not to grant a clearance,
the court was foreclosed from proceeding at all.” Id.
More recently, in a case that is factually similar to this
case, the court of appeals upheld the district court’s decision
dismissing a complaint for lack of jurisdiction based upon
§ 2000e-2(g). In Bennett v. Chertoff, 425 F.3d 999 (D.C. Cir.
2005), the plaintiff was employed as a criminal investigator with
the TSA. During its investigation into Bennett’s background, the
TSA determined that she lied on her Declaration for Federal
Employment. The TSA informed Bennett that her employment was
being terminated “based on her unsuitability for the position,”
and in its official notification, the TSA stated that it was -7-
terminating Bennett because of a “negative suitability
determination.” Id. at 1000-01. Bennett filed a complaint
alleging that TSA’s stated reason for terminating her was a
pretext and that the real reasons were discrimination and
retaliation against her for filing an administrative complaint.
As happened with Cruz-Packer, TSA provided a sworn statement from
a TSA official stating that the plaintiff’s termination was “due
to her inability to sustain a security clearance.” Id. at 1001,
1003 (internal quotation and citation omitted).
Cruz-Packer argues, as did Bennett, that the district court
has jurisdiction to hear these claims because the TSA termination
was for a “negative suitability determination,” not for a denied
security clearance. (Pl.’s Mem. at 29, 32-34.) However, Bennett
determined that “lack of ‘suitability’ in ordinary language can
encompass lack of suitability because of ineligibility for a
security clearance[.]” Id. at 1002. That meant that the letter
that Bennett received informing her that she was terminated for a
negative suitability determination was “not inconsistent with
termination on the basis that Bennett could not sustain a
security clearance.” Id. at 1002-03. Cruz-Packer also argues,
as did Bennett, that the TSA’s security clearance explanation was
pretextual, but Bennett determined that courts could not
“adjudicate the credibility of that claim” because such an
adjudication would “require the trier of fact to evaluate the -8-
validity of the agency's security determination.” Id. at 1004.
While Cruz-Packer argues the merits of the decision not to grant
her a security clearance and claims that the decision was a
pretext, she acknowledges that the judicial branch lacks the
power to review decisions by the executive branch about whether
to grant security clearances.4 (See Pl.’s Mem. at 33-34.) Cruz-
Packer has not established subject matter jurisdiction over her
claims of discrimination.
CONCLUSION
Because this court lacks jurisdiction over claims
implicating the merits of a decision to deny a security
clearance, and over defamation claims against the federal
government, TSA’s motion to dismiss will be granted. A final
Order accompanies this Memorandum Opinion.
SIGNED this 6th day of May, 2009.
/s/ RICHARD W. ROBERTS United States District Judge
4 Bennett notes that Executive Order 12,968, § 5.2(a), 60 Fed. Reg. at 40,252, provides procedural protections, including the right of appeal within the agency, to individuals who are denied security clearances. 425 F.3d at 1002, 1004.