UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) GUSTAVO GARCIA, ) ) Plaintiff, ) ) v. ) Case No. 1:18-cv-01822 (APM) ) MICHAEL POMPEO, et al., ) ) Defendants. ) _________________________________________ )
MEMORANDUM OPINION AND ORDER
I.
Plaintiff Gustavo Garcia is a dual citizen of the United States and Mexico who resides in
Mexico. Over the course of several years, Plaintiff tried unsuccessfully to obtain employment
with the U.S. Embassy in Mexico City. He came close in 2010, when he was conditionally hired
for a position at the Embassy but was later denied a security certification, prompting his offer to
be rescinded. Since then, Plaintiff has applied for various positions but without success. Plaintiff,
on behalf of himself and others similarly situated, now sues the State Department, the Secretary of
State, and the Attorney General, bringing a host of claims under Title VII, the Administrative
Procedure Act, and the Constitution.
This case is before the court on Defendants’ Motion to Dismiss and for Summary
Judgment. For the reasons explained below, the court grants in part and denies in part Defendants’
Motion. II.
Plaintiff is an attorney who lives and works in Mexico City, Mexico. First Am. Compl.,
ECF No. 4 [hereinafter FAC], ¶ 44. In January 2010, two Legal Assistant Resident Legal Advisor
positions opened at the U.S. Embassy in Mexico City in the Department of Justice Office of
Overseas Prosecutorial Development, Training, and Assistance. Id. ¶¶ 45–46. Plaintiff applied
for the positions. Id. ¶ 47. Plaintiff interviewed for one of the positions and, in April 2010,
received a conditional offer of employment. Id. ¶¶ 48–50. Plaintiff was informed that his
employment was contingent upon being granted a security clearance or security certification.
See Defs.’ Statement of Material Facts, ECF No. 15-2 [hereinafter Statement of Facts], ¶ 1 (stating
that Plaintiff’s offer of employment was conditioned on him being granted a security certification);
Pl.’s Resp. to Statement of Facts [hereinafter Pl.’s Resp. to Facts], ECF No. 19, ¶ 1 (stating that
Plaintiff’s offer was conditioned on him being granted a security clearance). A security
certification involves a less rigorous background review than a security clearance. See Defs.’ Mot.
to Dismiss and for Summ. J., ECF No. 15 [hereinafter Defs.’ Mot.], Ex. 17, Dep. of Timothy Haley,
ECF No. 15-19 [hereinafter Haley Dep.], at 46–51. Shortly thereafter, Plaintiff was notified that
his conditional offer of employment was withdrawn because he failed to obtain a security
certification or clearance. Statement of Facts ¶ 2; Pl.’s Resp. to Facts ¶ 2. Later that year, the
Plaintiff reapplied to the same position when it was reposted but was not selected. FAC ¶¶ 57–59.
He also applied for other employment with the U.S. government in late 2010 and 2011 but again
was unsuccessful. Id. ¶¶ 60–65.
In mid-October 2012, Plaintiff received responsive information from a Freedom of
Information Act and Privacy Act request he made for records about himself. Id. ¶ 66. According
to Plaintiff, “[t]he released records revealed that the [Embassy Regional Security Office (“RSO”)]
2 had collected and maintained a significant amount of information about [Plaintiff’s] First
Amendment-protected activities,” including “his involvement in protests against U.S. immigration
policy, his participation in community groups, his publication of a book about the visa process,
and his seminars about the visa process, and that it had denied him a security certification based
on these activities.” Id. ¶ 67.
Soon after receiving the records, Plaintiff sought equal employment opportunity (“EEO”)
counseling regarding the adverse security certification decision. Statement of Facts ¶ 3; Pl.’s Resp.
to Facts ¶ 3. When counseling did not resolve the matter, Plaintiff filed a formal EEO complaint
with the State Department in January 2013, claiming discrimination based on his dual citizenship.
Defs.’ Mot., Ex. 4, ECF No. 15-6, at 2. Plaintiff requested a hearing before the Equal Employment
Opportunity Commission, at which point the State Department filed a motion to dismiss Plaintiff’s
claim as untimely. Statement of Facts ¶ 5; Pl.’s Resp. to Facts ¶ 38. The Administrative Law
Judge denied the State Department’s motion, finding “insufficient information to determine when
[Plaintiff] reasonably suspected that he had been discriminated against to trigger the 45-day time
limitation.” Defs.’ Mot., Ex. 7, Order, ECF No. 15-9. Plaintiff withdrew his request for a hearing,
and the complaint was remanded to the State Department. Statement of Facts ¶ 7. In May 2018,
the State Department issued a final agency decision concluding that Plaintiff had not suffered
discrimination based on national origin. Defs.’ Mot., Ex. 8, Final Agency Decision, ECF No. 15-
10, at 17.
In the meantime, in June 2013, the Department of Justice Office of International Affairs
(“OIA”) advertised a paralegal position that required a security clearance. FAC ¶ 75. Two months
later, in August 2013, three RSO employees allegedly met with representatives from the Mexico
City Migrant Assistant Office. During that meeting, they discussed Plaintiff and made a number
3 of negative statements about him. Id. ¶ 76. Later that same month, Plaintiff contends, an RSO
employee told another RSO employee that Plaintiff would be denied a security certification if he
applied again. Id. ¶ 77. Plaintiff also alleges that between June 2013 and March 2014, the RSO
discussed Plaintiff with the OIA and advised that “he could not pass or should not be passed
through the background check.” Id. ¶¶ 78–80. In March 2014, Plaintiff interviewed with an OIA
hiring official, during which Plaintiff claims he was asked about his prior EEO activity. Id. ¶ 81.
A month later, Plaintiff was advised that he was not selected for the paralegal position. Id. ¶ 82.
After being turned down for the OIA position, in May 2014, Plaintiff sought EEO
counseling, this time asserting a claim of retaliation. Statement of Facts ¶ 8; Pl.’s Resp. to Facts
¶ 8; Defs.’ Mot., Ex. 9, EEO Counselor’s Report, ECF No. 15-11. When counseling did not
resolve the dispute, Plaintiff filed a second formal EEO complaint, this time with the Department
of Justice. FAC ¶ 83.
During the EEO proceedings, Plaintiff learned that the Mexico City Embassy stores the
security files of those considered “Ordinarily Resident” in the Foreign Service National
Investigators’ (“FSNI”) Office and that FSNIs have access to the security files. Id. ¶ 90. An
“Ordinarily Resident” is defined as a foreign national or U.S. citizen who is locally resident and
has legal, permanent resident status within the host country. Id. ¶ 25. During the period at issue
in this case, the practice of the State Department was to conduct security certifications for all
locally hired staff who did not require a security clearance, whether or not they were United States
citizens. Haley Dep. at 46–51.
Plaintiff continued to apply for other Embassy positions but was not selected for any. Id.
¶¶ 84–89. For example, when the OIA again advertised the paralegal position in May 2014,
Plaintiff reapplied for the job. Id. ¶¶ 84–85. In July 2014, Plaintiff was advised that he was not
4 selected for the position. Id. ¶ 86. He again unsuccessfully applied for a State Department position
in 2015. Id. ¶¶ 88–89.
On August 3, 2018, Plaintiff filed suit against Defendants, challenging (1) his non-hiring
based on the denial of his security certification; (2) the State Department’s collection and retention
of information pertaining to Plaintiff’s involvement in various political, social, and professional
groups; and (2) the State Department’s failure to follow two internal operating regulations.
Compl., ECF No. 1. Plaintiff brings claims under Title VII, the Administrative Procedure Act
(“APA”), and the Constitution. See generally id.; FAC.
III.
Defendants move both to dismiss Plaintiff’s Complaint under Federal Rule of Civil
Procedure 12(b)(6) and for summary judgment under Rule 56. See generally Defs.’ Mot. Both
parties have submitted sworn affidavits and other evidence “outside the pleadings.” See Fed. R.
Civ. P. 12(d). Because the court does not exclude such evidence, it must treat Defendants’ motion
as one for summary judgment under Rule 56. Id. Accordingly, the court must determine whether
a genuine issue of material fact exists as to any claim. Fed. R. Civ. P. 56(c).
A “genuine dispute” of a “material fact” exists when the fact is “capable of affecting the
substantive outcome of the litigation” and “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Elzeneiny v. District of Columbia, 125 F. Supp. 3d 18, 28
(D.D.C. 2015). In assessing a motion for summary judgment, the court considers all relevant
evidence presented by the parties. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495
(D.C. Cir. 2008). The court looks at the facts in the light most favorable to the nonmoving party
and draws all justifiable inferences in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). If the court determines “no reasonable jury could reach a verdict in [the non-
5 movant’s] favor,” then summary judgment is appropriate. Wheeler v. Georgetown Univ. Hosp.,
812 F.3d 1109, 1113 (D.C. Cir. 2016).
Before discussing the merits, the court notes two procedural aspects of the case in its
present posture. First, only Defendants filed a statement of material facts as to which there is no
genuine dispute. See LCvR 7(h) (requiring that summary judgment motions and oppositions be
accompanied by statements of material facts); Statement of Facts. Although Plaintiff responded
to Defendants’ statement, see Pl.’s Resp. to Facts, and submitted over thirty exhibits,
see Pl.’s Opp’n to Defs.’ Mot., ECF No. 19 [hereinafter Pl.’s Opp’n], Exs. A–FF, ECF Nos. 19-1–
19-32, he did not identify any material facts that he asserts are undisputed. Thus, insofar as
undisputed facts go, the court is largely constrained to those asserted by Defendants. Second, the
parties engaged in some discovery in the administrative proceedings but have yet to take any
discovery in this matter. Defendants’ motion therefore is before the court largely on an
administratively compiled record.
IV.
In Count I of his Complaint, Plaintiff alleges national origin discrimination under Title VII.
FAC ¶¶ 94–100. He contends that the State Department “has a policy of processing all [persons
who are “ordinarily resident” in Mexico, or ORs,] for security certifications, regardless of
citizenship, despite the fact that that process may only be used for non-U.S. citizens.” Id. ¶ 95.
He adds that “[t]reating U.S. citizens as non-U.S. citizens constitutes prohibited national origin
discrimination in violation of Title VII.” Id. ¶ 96. Defendants respond that Plaintiff’s claim is
subject to dismissal because “he cannot demonstrate that [the Department of] State’s reason for
refusing him a security certification was motivated by national origin discrimination,” because
“[a]t bottom, [Plaintiff’s] claim does not protest discrimination based on national origin; it seeks
6 to compel discrimination based on citizenship,” and “Title VII contains no such mandate.” Defs.’
Mot. at 11–12. The court agrees.
Title VII discrimination claims are evaluated under the three-step McDonnell-Douglas
burden-shifting framework. Iyoha v. Architect of the Capitol, 927 F.3d 561, 566, 574 (D.C. Cir.
2019) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). “[A] Title VII plaintiff
seeking to prove disparate treatment through indirect, circumstantial evidence ‘must first establish
a prima facie case of prohibited discrimination.’” Cruz v. McAleenan, 931 F.3d 1186, 1191 (D.C.
Cir. 2019) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998)). Once a
plaintiff has established her prima facie case, the burden shifts to the employer to articulate a
legitimate nondiscriminatory reason for the challenged employment decision. Id. Finally, if the
employer articulates such a reason, the burden shifts back to the plaintiff to prove that the reasons
offered by the employer are a pretext for discrimination. Id.
Plaintiff’s case fails at the first step. Although Plaintiff labels his discrimination claim as
one based on “national origin,” in truth Plaintiff has alleged discrimination based solely on his
status as a U.S. citizen. See FAC ¶ 96 (“Treating U.S. citizens as non-U.S. citizens constitutes
prohibited national origin discrimination in violation of Title VII.”). Discrimination on the basis
of citizenship cannot, however, form the basis of a Title VII claim. As the Supreme Court held in
Espinoza v. Farah Manufacturing Co., “nothing in the [Title VII] makes it illegal to discriminate
on the basis of citizenship or alienage.” 414 U.S. 86, 95 (1973); see also Anderson v. Zubieta, 180
F.3d 329, 340 (D.C. Cir. 1999) (recognizing that the Supreme Court in Espinoza held that
“citizenship is not a facially-unlawful criterion for employment decisions”); Khaksari v.
Chairman, Broad. Bd. of Governors, 451 F. App’x 1, 3 (D.C. Cir. 2011) (“‘American citizenship’
is not a protected category under Title VII . . . .”). Although courts have recognized that “an
7 employer might use a citizenship test as a pretext to disguise what is in fact national-origin
discrimination,” Anderson, 180 F.3d at 340 (quoting Espinoza, 414 U.S. at 92), Plaintiff has made
no such contention here. He has not, for example, suggested that the State Department was
requiring security certifications only from U.S. citizens born in a particular place. Rather, his
charge is that everyone, citizens and non-citizens alike, regardless of birthplace or national origin,
were being treated the same, when he should have been advantaged as a U.S. citizen and not subject
to a security review. Accordingly, Plaintiff cannot establish a prima facie case of Title VII
discrimination because he cannot show that he was a member of a class protected under the statute.
The court therefore grants summary judgment to Defendants on Count I.
Before proceeding to the next claim, the court addresses two other issues relating to
Count I. The parties spill significant ink on the issue of whether the State Department’s security
certification decision is reviewable under Department of the Navy v. Egan, 484 U.S. 518 (1988)
(holding that the Merit Systems Protection Board did not have the authority to review the Navy’s
denial of a security clearance). The parties’ back-and-forth misses the nature of the claim. Plaintiff
does not contend that he was in fact deserving of a security certification, but rather that the State
Department violated Title VII by subjecting him (and all U.S. citizens) to the security certification
process in the first place. Regardless, the court need not decide whether Egan applies to the State
Department’s security certification decision because the Egan bar does not implicate the court’s
subject matter jurisdiction, see Oryszak v. Sullivan, 576 F.3d 522, 525 (D.C. Cir. 2009) (reviewing
a motion to dismiss under Egan under Rule 12(b)(6), and not for lack of subject matter jurisdiction
under Rule 12(b)(1)), and because the court rules in favor of Defendant on the alternative ground
that Plaintiff has failed to make out a prima facie case of national origin discrimination. Similarly,
the court need not decide whether Plaintiff failed to timely exhaust his discrimination claim, and
8 if so, whether that claim should be equitably tolled or whether Defendants waived an exhaustion
defense. See Defs.’ Mot. at 5–9; Pl.’s Opp’n, at 19–24. Plaintiff’s Title VII claim fails whether it
is timely or not. Summary judgment is granted as to Count I.
V.
Plaintiff alleges a Title VII retaliation claim in Count II, but it is difficult to discern which
adverse events Plaintiff contends resulted from his protected activity. Plaintiff alleges that “[u]pon
information and belief, State and DOJ took many if not all of the adverse actions since
2012 . . . partially in retaliation for Garcia’s protected activity.” FAC ¶ 102 (emphasis added).
Plaintiff’s pleading thus does not identify with specificity which non-hiring events, or “non-
selections,” he contends were retaliatory. His opposition brief adds little clarity. See Pl.’s Opp’n
at 19 (asserting that he “exhausted all the claims he needed to exhaust” (capitalization altered)),
30–32 (identifying no retaliatory non-selections other than the exhausted claims identified by
Defendants). The court is under no obligation to attempt to divine what Plaintiff has not made
clear. So, the court will consider only the non-selections on April 10, 2014, and July 1, 2014,
which both sides agree are exhausted, as the subject of Plaintiff’s retaliation claim. 1 See FAC
¶¶ 82, 86; Defs.’ Mot. at 12–13 (Plaintiff “administratively exhausted his retaliation claim with
respect to only two of those nonselections: his April 2014 and July 2014 nonselections”);
Pl.’s Opp’n at 19–20.
As to those non-selections, Defendants argue that summary judgment is warranted because
Plaintiff “cannot show that any of the selecting officials knew about his Title VII protected activity,
1 To the extent that Plaintiff asserts that his non-selections on January 4, 2013, FAC ¶ 71, and February 1, 2013, id. ¶ 74, are part of his retaliation claim, those claims are not exhausted. Even when he attempted to amend his administrative complaint via email on August 9, 2013, to include these early-2013 non-selections, Plaintiff did not assert that they resulted from retaliation. Rather, he described these “non-selections as effects of an ongoing pattern of discrimination stemming from the initial use of the wrong security test.” Pl.’s Opp’n, Ex. K, ECF No. 19-11, at 5. Thus, Plaintiff never attempted to amend his administrative complaint to add a retaliation claim covering the early- 2013 non-selections.
9 thus defeating his claim that they retaliated against him on account of that activity.” Defs.’ Mot.
at 15. To support this position, Defendants submit sworn declarations from the hiring official
(Attaché Robert Chiaffa) and two others who provided input on the hiring decision (Deputy
Attachés Thomas Radcliffe and Ray Gatinella), each of whom states that he was not aware of
Plaintiff’s prior EEO activity. Statement of Facts ¶ 13; Defs.’ Mot., Ex. 12, Aff. of Robert Ciaffa,
ECF No. 15-14, at 18–19 (“I am still not aware that any of the candidates had any prior EEO
activity.”); Ex. 14, Aff. of Thomas Ratcliffe, ECF No. 15-16 [hereinafter Ratcliffe Aff.], at 12
(“[A]s far as I know, I did not learn anything about any prior claims that the Complainant may
have made until fairly recently . . . certainly after he was already pursuing at some level a
complaint against the Department of Justice.”); Ex. 15, Aff. of Ray Gattinella, ECF No. 15-17, at
15 (“[P]rior to the interview of [Plaintiff] I had no knowledge of any EEO complaints or anything
that he had filed.”). In response, Plaintiff notes that he “testified that he discussed his prior EEO
activity with the hiring officials in the interview after they started asking questions about his
relationship with the Embassy.” Pl.’s Opp’n at 31. Plaintiff also points to corroboration of his
testimony by two other witnesses. Id. (citing Pl.’s Opp’n, Ex. V, Aff. of Alejandro Gonzalez, ECF
No. 19-22, at 10; Ratcliffe Aff. at 13).
Although Plaintiff’s testimony is not entirely clear, it is sufficient to create a genuine
dispute of material fact as to whether hiring officials in April 2014 were aware of his protected
activity. See Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 298 (D.C. Cir. 2015) (“We
accept that a plaintiff’s own firsthand observations of relevant facts are probative evidence, and
that we must not set them aside merely because they come from a party who necessarily has a
stake in the outcome.”). Asked whether anyone at the interview he attended in March 2014 asked
him specific questions about the EEO complaint, Plaintiff responded, “Yes. They did ask
10 questions about it.” Pl.’s Opp’n, Ex. U, Dep. of Gustavo Garcia, ECF No. 19-21, at 36. Plaintiff
said that his interviewers asked him “open-ended questions, what the case was about and . . . also
about my security certification and why I believe I had been denied a security certification.” Id.
Plaintiff thus has created a genuine dispute of material fact as to whether hiring officials knew of
his specific Title VII protected activities when they did not hire him in April 2014. As to this
aspect of Plaintiff’s retaliation claim, summary judgment is denied.
The court reaches a different conclusion as to the non-selection in July 2014. As to that
opening, Plaintiff does not dispute that an eligible family member was a candidate for the position
and that, due to a State Department policy granting preference to family members, Plaintiff’s
application was not forwarded for consideration. Statement of Facts ¶¶ 15–16; Pl.’s Resp. to Facts
¶¶ 15–16. Defendants thus have offered an unrebutted, non-retaliatory reason for Plaintiff’s non-
hiring in July 2014. Plaintiff concedes as much. See Pl.’s Opp’n at 33. He nevertheless points
out that the family member in question did not complete the security clearance process, and the
agency did not re-advertise the position. Id. Plaintiff argues that “[a]n open and material question
therefore remains as to whether the reason OIA did not readvertise the position was that it did not
want to hire Garcia.” Id. But even if that “open and material question” could support a retaliation
claim, Plaintiff offers no evidence to suggest that the reason the position remained unfilled was to
retaliate against Plaintiff. He thus has failed to show any genuine dispute of material fact as to the
decision not to hire. Accordingly, as to the July 2014 non-selection, summary judgment is granted
in favor of Defendants on Plaintiff’s retaliation claim.
VI.
In Count III, Plaintiff brings an APA challenge to the State Department’s failure to follow
a provision within the agency’s Foreign Affairs Manual (“FAM”), specifically, 3 FAM 7222.
11 3 FAM 7222 is the policy that governs the use of security certifications; at the time that Plaintiff
filed his complaint, that provision applied to “Foreign Service Nationals Only.” See FAC ¶¶ 27–
28. Plaintiff is not a Foreign Service National because he is a U.S. citizen. Id. ¶¶ 3, 24. Therefore,
according to Plaintiff, by applying 3 FAM 7222 to Plaintiff and other U.S. citizens, the State
Department violated its own regulations, thereby making “[t]he processing of a U.S. citizen for a
security certification . . . arbitrary, capricious, an abuse of discretion, or otherwise contrary to
law.” Id. ¶ 106.
Since that time, however, the State Department has updated its policy manual to reflect that
3 FAM 7222 applies to all “locally employed staff” and not just Foreign Service Nationals.
See Defs.’ Mot., Ex. 19, 3 FAM 7220 “Processing for Employment,” ECF No. 15-21 (showing an
updated policy as of December 2018). That change means the court cannot afford Plaintiff the
prospective injunctive relief that he seeks under the APA. See FAC ¶ 108. Count III therefore is
now moot. Plaintiff does not contend otherwise. Pl.’s Opp’n at 29–30 & n.16. Defendants’
Motion is granted as to Count III.
VII.
In Count IV Plaintiff alleges a violation of Due Process under the Fifth Amendment. His
claim is that the State Department’s wrongful denial of a security clearance, without first affording
him an opportunity to defend himself and clear his name, deprived him of a liberty interest in his
reputation. FAC ¶¶ 113–115. As a consequence of this deprivation, Plaintiff claims to have
“suffered adverse and harmful effects, including, but not limited to, lost or jeopardized present or
future financial opportunities.” Id. ¶ 115.
The D.C. Circuit has recognized two legal theories—which the parties conflate—to
establish a due process violation based on reputational injury. The first, known as “reputation
12 plus,” requires “the conjunction of official defamation and [an] adverse employment action.”
O’Donnell v. Barry, 148 F.3d 1126, 1140 (D.C. Cir. 1998). The second is known as the “stigma
plus” theory. It “differs from the [reputation-plus theory] in that it does not depend on official
speech, but on a continuing stigma or disability arising from official action.” Id. “In other words,
where a ‘reputation plus’ theory requires some form of defamatory or stigmatizing speech by the
government, the latter depends only on governmental imposition of ‘a continuing stigma or other
disability arising from official action’ that ‘foreclosed the plaintiff's freedom to take advantage of
other employment opportunities.’” Jefferson v. Harris, 170 F. Supp. 3d 194, 205 (D.D.C. 2016)
(emphasis omitted) (quoting O’Donnell, 148 F.3d at 1140). In this case, Plaintiff pursues only a
stigma-plus theory. 2 He maintains that, “if the defamatory information is contained within an
individual’s file and would be publicly available to future [government] employers or other
government personnel, that is [ ] sufficient to satisfy the standard.” Pl.’s Opp’n at 42.
Under the stigma-plus line of cases, “a government action that potentially constrains future
employment opportunities must involve a tangible change in status.” Kartseva v. Dep’t of State,
37 F.3d 1524, 1527 (D.C. Cir. 1994). Such “tangible change” can be shown in one of two ways.
The first is if the government’s action “formally or automatically excludes” the plaintiff from
“from other government employment opportunities,” such as by official debarment or some other
“binding determination to disqualify.” Id. at 1528. Plaintiff identifies no such “binding” decision
here by the State Department. See Pl.’s Opp’n at 43 (asserting that the “practical effect” of the
adverse security certification decision is to deny him future job prospects with the U.S. Embassy).
2 It is evident that Plaintiff eschews any reliance on a “reputation plus” claim, as he disavows the need to establish the critical element of public disclosure, see Pl.’s Opp’n at 42 (arguing that “‘public disclosure of the denial of his security certification’ is [not] necessary”) (citation omitted). See Orange v. District of Columbia, 59 F.3d 1267, 1274 (D.C. Cir. 1995) (“[I]njury to reputation cannot occur in the absence of public disclosure of the allegedly damaging statements.”).
13 He, therefore, must rely on the second method: In the absence of a “binding” disqualification, the
government action must have “a broad effect of largely precluding [the plaintiff] from pursuing
[his] chosen career.” Kartseva, 37 F.3d at 1528. This standard presents a “high” bar. Taylor v.
Resolution Tr. Corp., 56 F.3d 1497, 1506 (D.C. Cir.), opinion amended on reh’g, 66 F.3d 1226
(D.C. Cir. 1995). The employee must show that the government has “seriously affected, if not
destroyed, his ability to obtain employment in [his] field.” Id. (quoting Greene v. McElroy, 360
U.S. 474, 492 (1959)).
Plaintiff fails to produce evidence to meet this stringent standard. For one, Plaintiff’s
“chosen career” is far from clear. According to his complaint, Plaintiff is an immigration attorney
with U.S. and Mexican law degrees, FAC ¶ 44, but the positions he sought range from “Legal
Assistant Resident Legal Advisor,” id. ¶ 45, to “Investigator,” id. ¶ 60, to “Political/Legal
Specialist,” id. ¶ 63, and “Paralegal,” id. ¶ 75. Plaintiff’s “chosen career” is therefore uncertain.
Moreover, Plaintiff has not established the “broad effect” required to establish a constitutionally
cognizable injury under the stigma-plus theory. Plaintiff’s claimed reputational harm is narrow.
He says that “[t]he practical effect of the current state of affairs is that any office in the Embassy
(which is virtually the only game in town for U.S. Government work in Mexico) considering
Garcia for employment will query the RSO for information . . . ,” which will result in disclosure
of his denied security certification. Pl.’s Opp’n at 43. Thus, Plaintiff asserts a limited scope of
impaired employment prospects: those with the U.S. Embassy in Mexico or, more charitably
construed, with the U.S. government in Mexico that require some security clearance. But “[t]he
‘loss of some employment opportunities does not amount to an alteration of a legal right,’
particularly when the loss of employment flows directly from the modification of a security
clearance, which itself represents only a change in the terms of an agency’s exercise of its
14 discretion.” U.S. Info. Agency v. Krc, 905 F.2d 389, 397 (D.C. Cir. 1990) (cleaned up) (quoting
Mosrie v. Barry, 718 F.2d 1151, 1162 (D.C. Cir. 1983)). In any event, Plaintiff offers no evidence
of broad preclusion of employment. He has not shown that he is foreclosed from U.S. government
positions outside of Mexico (he is a U.S. citizen); positions in Mexico or elsewhere not requiring
a security clearance; or, more broadly, immigration law-related work in the private sector. His
Fifth Amendment claim therefore cannot survive summary judgment. See O’Donnell, 148 F.3d at
1141–42; Evangelou v. Dist. of Columbia, 639 Fed. Appx. 1, 3 (D.C. Cir. 2016).
VIII.
In Count V, Plaintiff alleges that when the State Department “denied [him] a security
certification based on his First-Amendment protected activities, it violated his rights under the
Constitution.” FAC ¶ 120. In his briefing, Plaintiff further details his belief that he was denied a
security certification due to his membership in political organizations and movements, his
distribution of pamphlets and newspapers, and his creation of an immigrants’ rights organization.
Pl.’s Opp’n at 40. As evidence, Plaintiff points to a file from the Embassy’s Regional Security
Office, which details his involvement with political, professional, and social organizations, as well
as contacts with Embassy security staff. Pl.’s Opp’n, Ex. D, ECF No. 19-4 [hereinafter RSO File].
For example, the RSO file details an incident in 2004 during which Garcia and another man were
believed to be handing out fliers and talking to visa applicants outside the Embassy. Id. at 4–5.
Defendants argue that Plaintiff’s First Amendment claim is unreviewable and fails on the merits.
Defs.’ Mot. at 21–22.
A.
At the outset, the court must decide if Plaintiff’s First Amendment claim is foreclosed by
Department of the Navy v. Egan. Defendants argue that because the State Department’s decision
15 to deny Plaintiff a security certification was “unreviewable under Egan and falls outside of the
exceptions established by the D.C. Circuit, Garcia’s First Amendment claim is nonjusticiable.”
Defs.’ Mot. at 21. The court disagrees.
The D.C. Circuit consistently has held that valid constitutional claims are not foreclosed
by Egan. In Ryan v. Reno, the D.C. Circuit held that, although Egan precludes judicial review of
an adverse employment action under Title VII based on the denial or revocation of a security
clearance, Egan “does not apply to actions alleging deprivation of constitutional rights.” 168 F.3d
520, 524 (D.C. Cir. 1999). In United States Information Agency v. Krc, the D.C. Circuit cautioned
that “judicial authority to consider the constitutional claims resulting from agency personnel
decisions” is of “critical importance” because “those constitutional claims may well be the only
check on agency actions that determine a person’s career.” 905 F.3d at 400. Accordingly,
“[c]ourts have an obligation to listen to those claims clearly and to consider them carefully.” Id.
And, in National Federal of Federal Employees v. Greenberg, the D.C. Circuit held that Egan did
not bar a constitutional challenge to a Department of Defense security clearance questionnaire,
stating that “[i]t is simply not the case that all security-clearance decisions are immune from
judicial review.” 983 F.2d 286, 289 (D.C. Cir. 1993) (collecting cases).
To be sure, merely mouthing a constitutional claim will not do. A plaintiff cannot avoid
Egan by asserting “a wholly frivolous constitutional claim or an immaterial one advanced solely
for the purpose of circumventing Egan.” Palmieri v. United States, 896 F.3d 579, 585 (D.C. Cir.
2018) (internal quotation marks omitted)). But Egan does not stand in the way of a well-pleaded
constitutional claim that, as here, would appear to have record support. Egan therefore does not
forbid consideration of Plaintiff’s First Amendment claim.
16 B.
A First Amendment retaliation claim has four elements: (1) “the public employee must
have been speaking on a matter of public concern”; (2) a court needs to “balance the interest of the
employee as a citizen, in commenting upon matters of public concern and the interest of the
employer in promoting the efficiency of the public services it performs through its employees”;
(3) “the employee must prove that her speech was a substantial or motivating factor in the denial
of the benefit that she sought”; and (4) “the government employer must be given an opportunity
to prove that it would have reached the same decision even absent the protected conduct.” Tao v.
Freeh, 27 F.3d 635, 638–39 (D.C. Cir. 1994) (internal quotation marks and citations omitted).3
The first two questions are questions of law for the court, while the second two are questions of
fact to be presented to a jury. Id. at 639. “[T]he First Amendment protects government employees
from even an act of retaliation as trivial as failing to hold a birthday party for a public employee
when intended to punish her for exercising her free speech rights.” Id. (cleaned up) (quoting Rutan
v. Republican Party of Ill., 497 U.S. 62, 76 n.8 (1990)). At the same time, “only where the
employee’s speech touches on a matter of public concern, and only where the employee’s First
Amendment interest is not outweighed by any disruption that the speech may cause to the
efficiency of the public enterprise, is that speech constitutionally protected.” Id.
Plaintiff has provided ample evidence to create a genuine dispute of material fact as to
whether he was denied a security certification due to his exercise of First Amendment rights.
Plaintiff was involved in political and social organizations that spoke on matters of public concern,
namely, the rights of immigrants and visa applicants, cf. Jacinto-Castanon de Nolasco v. U.S.
Immigration & Customs Enf’t, 319 F. Supp. 3d 491, 504 (D.D.C. 2018) (observing that “the public
3 Although Plaintiff did not secure employment and therefore never became a “public employee,” neither side proposes using a different test for Plaintiff.
17 also has an interest in ensuring that its government respects the rights of immigrants to family
integrity while their removal proceedings – or in this case, asylum proceedings – are pending”),
and he has shown that the Embassy, through the RSO, collected information pertaining to these
expressive activities and maintained a file on them. See RSO File. A reasonable jury could
conclude that such protected activities played a substantial or motivating factor in rescinding his
job offer. See Tao, 27 F.3d at 639.
Defendants nevertheless insist that Plaintiff was denied a security clearance because “he
provided false information to visa applicants and assisted in circumventing immigration law,”
Defs.’ Mot. at 22, and because “he had for several years exhibited anger and opposition towards
the United States embassy and its activities,” Reply in Supp. Of Defs.’ Mot., ECF No. 24
[hereinafter Defs.’ Reply], at 19. Defendants present, at best, weak evidence to support these
claims. Defendants offer no evidence that Plaintiff supplied false information to visa applicants
or assisted in circumventing the law. See Defs.’ Mot. at 22 (citing only the FAC). And, insofar
as Defendants’ contention that Plaintiff “exhibited anger and opposition” towards the United
States, that description is tenuously, if at all, supported by the evidence. See Pl.’s Opp’n, Ex. E,
ECF No. 19-5 [hereinafter Ex. E]; Haley Dep. At 30–31, 121. The cited evidence shows that
Plaintiff, at various times, passed out flyers near the Embassy concerning the visa process; edited
a book about the visa process; created an organization dedicated to defending immigrant rights
that filed non-descript complaints against the Embassy; and established a business near the
Embassy to help immigrants. See Ex. E. None of cited evidence permits a finding that Plaintiff’s
First Amendment activities played little or no role in revoking his job offer.
Additionally, Defendants argue that, even if Plaintiff’s protected speech was a substantial
or motivating factor in the denial of the security certification, the court should hold, as a matter of
18 law, that the State Department’s interests outweigh Plaintiff’s in this case. Defs.’ Mot. at 22;
Defs.’ Reply at 19 (“The security concerns inherent in an overseas American embassy hiring a
local resident opposed to that embassy’s activities hold greater weight than the speech rights
claimed by [Plaintiff].”); see Tao, 27 F.3d at 639 (stating that the balancing of the employee’s
interest with that of the government as employer is question of law for the court to resolve). Based
on the limited record, the court is unconvinced that the balancing in this case tips in favor of the
government. The evidence relied upon by Defendants to show that Plaintiff’s expressive activities
presented genuine security concerns is, at most, vague and is heavily reliant on hearsay. See
Ex. E; Haley Dep. at 30–31, 121. Summary judgment is denied as to Count V.
IX.
In Count VI, Plaintiff alleges that Defendants violated the Privacy Act by maintaining
“information about U.S. citizens’ First Amendment-protected activities in records about the
processing of them for security certifications.” FAC ¶¶ 123–129. “The Privacy Act of 1974
‘safeguards the public from unwarranted collection, maintenance, use and dissemination of
personal information contained in agency records . . . by allowing an individual to participate in
ensuring that his records are accurate and properly used.’” Henke v. U.S. Dep’t of Commerce,
83 F.3d 1453, 1456 (D.C. Cir. 1996) (quoting Bartel v. F.A.A., 725 F.2d 1403, 1407 (D.C. Cir.
1984)); 5 U.S.C. § 552a. To that end, the Act requires that agencies keep certain records systems
and publish annual reports. Henke, 83 F.3d at 1456; see also Doe v. Chao, 540 U.S. 614, 618
(2004) (“The Act gives agencies detailed instructions for managing their records and provides for
various sorts of civil relief to individuals aggrieved by failures on the Government’s part to comply
with the requirements.”). Subsection (e)(7) of the Act prohibits agencies from maintaining records
“describing how any individual exercises rights guaranteed by the First Amendment unless
19 expressly authorized by statute or by the individual about whom the record is maintained or unless
pertinent to and within the scope of an authorized law enforcement activity.”
5 U.S.C. § 552a(e)(7). The “law enforcement activity” exception is at issue here.
The Act itself does not define “law enforcement activity,” but the D.C. Circuit has
“interpreted the phrase broadly,” to include “authorized criminal, intelligence, or administrative
investigation(s).” Maydak v. U.S., 363 F.3d 512, 517 (D.C. Cir. 2004) (citing Nagel v. Dep’t of
Health, Educ. & Welfare, 725 F.2d 1438, 1441 n.3 (D.C. Cir. 1984)). Further, “valid law
enforcement activities require neither an active investigation nor a ‘current law enforcement
necessity.’” Id. (quoting J. Roderick MacArthur Found. & Lindblom v. FBI, 102 F.3d 600, 603
(D.C. Cir. 1996)). In Maydak, the Circuit held that declarations of prison officials were sufficient
to conclude that “[b]ecause [the Federal Bureau of Prisons] has responsibility for preserving prison
security . . . examining photographs for conduct that may threaten that security is pertinent to and
within the scope of an authorized law enforcement activity.” Id. In addition, “reviewing inmate
photographs for gang-related activity and obscene conduct also falls within that exception.” Id.
The declarations also established, however, that “some prisons may have reviewed and collected
the photographs for other purposes as well” and the court was not satisfied by the explanation that
the photographs were for “investigative or informative value.” Id. Accordingly, the Circuit
remanded the issue to the district court to determine “on the basis of a fuller record” whether the
review of the photographs fell within the exception. Id.
In this case Defendants argue that their collection of information pertaining to Plaintiff’s
First Amendment-protected activities should fall under the “law enforcement activity” exception
because “Regional Security Officers are Diplomatic Security service special agents responsible
for implementing and managing the Department’s security and law enforcement programs at
20 Foreign Service posts, and the information that its officers collected about [Plaintiff] was pursuant
to that authority.” Defs.’ Mot. at 20 (quoting 12 FAM 422.1(a) 4) (cleaned up). Further,
Defendants say that 12 FAM 422.5(a)(18) 5 authorizes the RSO to conduct background
investigations for “all applicants for third-country national and [locally employed staff] positions”
and “evaluat[e] all information developed as a basis for the issuance or denial of a security
certification for employment.” Defs.’ Reply at 18 (quoting 12 FAM 422.5(a)(18)).
For his part, Plaintiff does not dispute the general proposition that “the RSO conducted an
administrative investigation into him.” Pl.’s Opp’n at 37. Instead, he argues that the RSO’s
collection of information in this case was not “authorized,” because the FAM as written in 2010
authorized security certification investigations of only Foreign Services Nationals, which excludes
U.S. citizens See id. Plaintiff contends that the subsequent amendment of the FAM to authorize
investigations of U.S. citizens does not cure the initial Privacy Act violation. See id. at 37–38. 6
The court lacks sufficient information to grant summary judgment in Defendants’ favor.
Defendants have not provided any affidavits or declarations that would give the court insight into
the purpose for which the information about Plaintiff was collected and maintained. See Defs.’
Mot. at 19–20; Defs.’ Reply at 18. Specifically, it is unclear whether any of the contested records
are connected to a security certification investigation or were created for some other purpose. The
RSO file produced by Plaintiff consists of two records. See RSO File. The first is an undated,
three-page document that identifies Plaintiff’s affiliation with various organizations and describes
various contacts between Plaintiff and the Embassy from 2004 to 2009. See id. at 1–3. Nothing
4 Available at https://fam.state.gov/FAM/12FAM/12FAM0420 html. 5 Available at https://fam.state.gov/FAM/12FAM/12FAM0420 html. 6 Unlike his APA claim, Plaintiff’s Privacy Act claim is not rendered moot by the FAM’s revision because, under the Privacy Act, Plaintiff can be awarded statutory damages for past violations. See 5 U.S.C. § 552a(g)(4); Chao, 540 U.S. at 620.
21 on the face of the document explains its provenance. The second record is a memorandum dated
August 17, 2004—nearly six years before Plaintiff applied for a job with the Embassy, FAC ¶ 47—
that details a run-in with Plaintiff outside the Embassy while he was passing out flyers containing
visa information and an unsuccessful effort to bring criminal or civil charges against him for that
conduct. See RSO File at 4–5. Defendants supply the court with no facts about that memorandum,
although based on its date, it would appear to have a purpose other than a security certification. In
any event, on the record before it, the court cannot determine whether the records maintained by
the RSO about Plaintiff are “pertinent to and within the scope of an authorized law enforcement
activity.” 5 U.S.C. § 552a(e)(7). Summary Judgment is denied as to Count VI.
X.
Finally, in Count VII, Plaintiff brings an APA claim for the State Department’s failure to
follow 12 FAM 423.7, which forbids FSNIs from accessing the security files of U.S. citizens.
12 FAM 423.7(b) (“FSNIs are prohibited from accessing the security files of U.S. citizens . . . .”). 7
According to the Amended Complaint, during the course of EEO proceedings, the State
Department “confirmed that the Mexico City Embassy stores all the security files of ORs,
including U.S. citizens, in the FSNI office, and that FSNIs have unrestricted access to them,” FAC
¶ 90, in direct violation of 12 FAM 423.7. Plaintiff asserts that he, and all other class members,
are “entitled to relief [under the APA] in the form of a declaratory order . . . and an injunction
compelling [the State Department] . . . to follow its self-imposed mandate of 12 FAM 423.7.”
FAC ¶ 133.
Although Defendants do not raise the issue of standing, the court does so of its own accord
and finds it wanting. See Lee’s Summit, MO v. Surface Transp. Bd., 231 F.3d 39, 41 (D.C. Cir.
7 Available at https://fam.state.gov/FAM/12FAM/12FAM0420 html.
22 2000) (“When there is doubt about a party’s constitutional standing, the court must resolve the
doubt, sua sponte if need be.”). “A plaintiff must demonstrate standing separately for each form
of relief sought.” Cierco v. Mnuchin, 857 F.3d 407, 416 (D.C. Cir. 2017) (cleaned up) (quoting
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000)). To
establish constitutional standing, a plaintiff must satisfy three elements: “(1) [he] must have
suffered an injury in fact that is concrete and particularized and actual or imminent, not conjectural
or hypothetical; (2) the injury must be fairly traceable to the challenged action of the defendant;
and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.” NB ex rel. Peacock v. District of Columbia, 682 F.3d 77, 81 (2012) (internal
quotation marks omitted) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).
Where a plaintiff “seek[s] only forward-looking injunctive and declaratory relief, ‘past
injuries alone are insufficient to establish standing.’” Id. at 82 (quoting Dearth v. Holder, 641
F.3d 499, 501 (D.C. Cir. 2011)). Rather, the plaintiff “must show that he is suffering an ongoing
injury or faces an immediate threat of injury.” Dearth, 641 F.3d at 501. For example, in City of
Los Angeles v. Lyons, the Supreme Court held that Lyons lacked standing to seek an injunction—
an equitable remedy—because he failed to show that “he was likely to suffer future injury from
the use of the chokeholds by police officers.” 461 U.S. 95, 105. “That Lyons may have been
illegally choked by the police [five months earlier] . . . does nothing to establish a real and
immediate threat that he would again be stopped for a traffic violation, or for any other offense,
by an officer or officers who would illegally choke him.” Id. Accordingly, Lyons was not able to
“demonstrate a case or controversy with the City that would justify the equitable relief sought.”
Id.
In this case, Plaintiff is at the summary judgment stage, and he can no longer rely on general
23 factual allegations to establish injury. See Lujan, 504 U.S. at 561. Instead, he must “‘set forth’ by
affidavit or other evidence ‘specific facts’” supporting his claimed injury. Id. (quoting Fed. R.
Civ. P. 56(e)). Plaintiff has not come forward with any evidence of past injury resulting from an
FSNI actually accessing his “security file,” nor has he shown that FSNIs continue to have access
to his file in such a way that portends a future concrete, actual injury. At most, Plaintiff rests on
the allegations in his Amended Complaint, but that is not enough at this stage.
In fairness, because discovery has not commenced, Plaintiff arguably has not had a
sufficient opportunity to develop the factual record to support his standing to bring this claim.
Accordingly, the court will not grant summary judgment at this time in favor of Defendants on
standing grounds. In the future, Defendants may wish to revisit the issue of standing, or any other
argument as to this APA claim that the court has not addressed. The court does not reach such
arguments here, however, because it is not clear it has jurisdiction to do so. Defendants’ Motion
as to Count VII is denied.
XI.
For the foregoing reasons, the court grants Defendants’ Motion as to Counts I, III, IV in
full and Count II in part. Defendants’ Motion is denied in full as to Counts V, VI, and VII and
Count II in part.
________________________ Dated: January 13, 2020 Amit P. Mehta United States District Judge