Mowery v. National Geospatial Intelligence Agency

550 F.Supp.3d 303

Nathan MOWERY, Plaintiff,

v.NATIONAL GEOSPATIAL INTELLIGENCE AGENCY & William Burns, Director of the Central Intelligence Agency, Defendants.

Civil Action No. 1:21-cv-226

United States District Court, E.D. Virginia, Alexandria Division.

Signed July 26, 2021

Alyssa F. Morrison, Pro Hac Vice, Alyssa Fini Morrison, Christina Anne Jump, Pro Hac Vice, Constitutional Law Center for Muslims in America (CLCMA), Richardson, TX, Patricia Dorothy Ryan, Law Office of Patricia D. Ryan, Glen Echo, MD, for Plaintiff.

Johnny Hillary Walker, III, U.S. Attorney's Office for the District of Columbia, Civil Division, Washington, DC, Lauren A. Wetzler, Catherine M. Yang, US Attorney's Office, Alexandria, VA, for Defendant National Geospatial Intelligence Agency.

Johnny Hillary Walker, III, U.S. Attorney's Office for the District of Columbia, Civil Division, Washington, DC, Catherine M. Yang, US Attorney's Office, Alexandria, VA, for Defendant Gina Haspel.

MEMORANDUM OPINION

T. S. Ellis, III, United States District Judge

At issue in this employment discrimination action is Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction pursuant to Rule 12(b)(1), Fed. R. Civ. P.¹ This motion has been fully briefed and argued, including a telephonic hearing on the matter that occurred on June 10, 2021. Following the telephonic hearing on June 10, 2021, the parties complied with an Order dated June 11, 2021 directing the submission of additional briefing and/or evidence regarding the question whether subject matter jurisdiction exists here. These submitted materials² have been reviewed and considered. Accordingly, the matter is now ripe for disposition.

I.

The following facts, appropriately derived from the Complaint and the submitted evidence,³ are pertinent to the question whether subject matter jurisdiction exists here.

• Plaintiff Nathan Mowery is a U.S. Army combat veteran who works as a civilian government contractor in the U.S. intelligence field.

• Defendant National Geospatial Intelligence Agency ("NGA") is a combat support agency associated with the U.S. Department of Defense ("DOD") and the Central Intelligence Agency ("CIA").

• Defendant William Burns is the Director of the CIA.

• In May 2014, Plaintiff obtained a security clearance and was employed as a civilian government contractor by the NGA. Plaintiff's worksite for this government contractor position was a CIA worksite. As a government contractor for NGA, Plaintiff had Staff Like Access to certain secure government information.

• On November 13, 2016, Plaintiff accepted a conditional offer of employment with NGA to serve as an NGA government employee assigned to the CIA ("CIA Assignee position"). As a CIA Assignee, Plaintiff would continue to work at a CIA worksite but would transition from his current government contractor role to a staff employee role, and thus receive greater job benefits.

• To secure the CIA Assignee position, Plaintiff was required to undergo and pass an additional security clearance assessment, which involved a psychological examination by a CIA-approved psychologist or psychiatrist. This additional CIA security clearance assessment is mandatory for all CIA assignees and is separate from, and in addition to, Plaintiff's May 2014 security clearance assessment.⁴

• On December 27, 2016, Plaintiff underwent the required CIA psychological examination for the CIA Assignee position.

• The Complaint alleges that, during the required CIA psychological examination, a CIA psychologist or psychiatrist (the "Examining Officer") "raised" the subject of Plaintiff's recent conversion to Islam and asked Plaintiff what the Complaint alleges was a "disproportionate" number of questions about Plaintiff's religion. Compl. ¶ 23 Specifically:

• The Complaint alleges that the Examining Officer first asked Plaintiff whether Plaintiff consumed alcohol.⁵ Plaintiff allegedly answered that he "ha[d] not had a[n] [alcoholic] drink in the past two years." Id. ¶ 18.

• The Complaint next alleges that the Examining Officer asked Plaintiff why Plaintiff did not drink alcohol. Plaintiff allegedly answered that Plaintiff's decision not to drink alcohol "was based on his religious views." Id.

• The Complaint alleges that the Examining Officer then asked Plaintiff to specify the religion he was referring to. Plaintiff allegedly answered that "he had converted to Islam." Id. ¶ 19.

• The Complaint alleges that the Examining Officer then asked Plaintiff (1) "whether Plaintiff prayed five times a day," (2) "what mosque [Plaintiff] attended," and (3) unspecified "additional questions" about Plaintiff's religion. Id. ¶ 20. The Complaint does not disclose whether Plaintiff responded to these questions from the Examining Officer.

• The Complaint also alleges that other CIA Assignee applicants were not asked about their religious beliefs during their respective psychological examinations.

• Plaintiff's NGA Branch Chief, Douglas Cooper, has filed an Affidavit stating that he does "not think [Plaintiff] was discriminated [against] due to his religious beliefs. There have been and currently are officers [at NGA] who practice the Muslim religion and [that] have [ ] had the appropriate access." Cooper Affidavit at 8.

• On May 17, 2017, six months after the required psychological examination, Plaintiff received an email from the CIA.

• The May 17, 2017 email stated that the CIA would "no longer continue [Plaintiff's] assignee processing" and that "[t]here is no appeal regarding this decision nor will additional information be provided." May 17, 2017 Email at 1 (Dkt. 37-1). In full, the May 17, 2017 email states:

Good Morning Mr. Mowery,

Unfortunately, we have determined that we can no longer continue your assignee processing. The determination was based on information you provided us or was otherwise obtained during your Staff-Like Access processing. There is no appeal regarding this decision nor will additional information be provided.

Please note that this email does not represent a security clearance denial for a National Security position. When filing out future National Security Questionnaires—Standard Form 86 (SF-86) application forms and related documents, you should note that you were not denied a security clearance for this application.

Please inform your DoD Program Manager. We also ask that DoD inform the appropriate CIA Component, Mission Center, or Directorate of this decision.

Thank you.

March 17, 2017 Email at 1 (emphasis in original); see also Compl. ¶¶ 24–27.

• On June 9, 2017, the CIA informed NGA that Plaintiff's CIA Assignee security clearance assessment had been "halted" due to a "failed mental health evaluation." Compl. ¶ 28. At this time, the CIA also informed NGA that Plaintiff's completed security packet "was not the issue." Id. ¶ 29.

• On July 24, 2017, NGA reassigned Plaintiff from his then NGA position to a position that entailed less responsibility and that was not located at a CIA worksite ("Staff Officer position"). No party disputes that NGA reassigned Plaintiff to this Staff Officer position because Plaintiff was no longer permitted to access the pertinent CIA worksite, and thus could not perform his then-existing NGA job duties.

• Between July 24, 2017 and August 9, 2017, Plaintiff worked as an NGA Staff Officer.

• On August 9, 2017, Plaintiff resigned his NGA Staff Officer position, accepting a different government contractor position in which Plaintiff could use his pre-existing contractor-based security clearance from May 2014.

• On or about August 16, 2017, Plaintiff filed an EEO complaint against the CIA, alleging that the CIA discriminated against Plaintiff on the basis of his religion (1) by failing to process Plaintiff's CIA Assignee security clearance assessment and (2) by constructively discharging Plaintiff from his NGA position in July and/or August 2017. The EEOC dismissed Plaintiff's EEO complaint against the CIA. SeeSantiago S., a pseudonym v. Haspel , No. 17-25, 2018 WL 3584257, at *3 (EEOC July 13, 2018) ; see also Compl. ¶¶ 38, 52.

• On November 2, 2017, Plaintiff filed an EEO complaint against NGA, alleging that NGA discriminated against Plaintiff on the basis of his religion by constructively discharging Plaintiff from his position in July and/or August 2017. The EEOC dismissed Plaintiff's EEO complaint against NGA. SeeJonathan V., a pseudonym v. Esper , No. NGAE00422017, 2020 WL 5822963, at *4 (EEOC Aug. 4, 2020) ; see also Compl. ¶¶ 40, 51.

• On November 2, 2020, Plaintiff brought this action against the NGA and William Burns, Director of the CIA (collectively, "Defendants").

• The Complaint alleges against each Defendant a Title VII claim for unlawful discrimination and retaliation on the basis of Plaintiff's religion.

• These two Title VII claims, Counts 1 and 2, allege that the CIA's decision to halt processing Plantiff's CIA Assignee security clearance assessment resulted in Plaintiff's (1) "inability to begin" the CIA Assignee position and (2) "constructive discharge from his existing position." Compl. ¶¶ 70, 79.

• The Complaint seeks monetary damages and injunctive relief, including an Order (1) that enjoins Defendants "from discriminating in the future on the basis of an employees’ or contractors’ religious beliefs" and (2) that requires Defendants to remove "any negative reference or actions from Plaintiff's disciplinary file." Id. at 13.

II.

The sole question presented is whether there is federal subject matter jurisdiction to review Plaintiff's Title VII claims, challenging the Executive Branch's security clearance decision. This is not a novel question; this question was addressed and decided by the Supreme Court in Dep't of Navy v. Egan , 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), a case which held that the "grant of security clearance to a particular employee ... is committed by law to the appropriate agency of the Executive Branch" and is not judicially reviewable. Id. at 527, 108 S.Ct. 818.⁶ In Egan , a civilian employee of...