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Spencer v. Carter

United States District Court, D. Maryland

August 11, 2016

ASHTON B. CARTER, Secretary of Defense, U.S. Department of Defense, Defendant.

          PAULA XINIS United States District Judge

         Pending in this employment discrimination case is Defendant’s motion to dismiss for lack of subject matter jurisdiction. ECF No. 10.[1] The issues are fully briefed and the Court now rules pursuant to Local Rule 105.6 because no hearing is necessary. For the following reasons, the motion will be GRANTED.

         I. BACKGROUND

         Unless otherwise noted, the facts outlined here are construed in the light most favorable to Plaintiff, the nonmoving party.

         At all relevant times, Plaintiff William W. Spencer, Jr. (“Plaintiff”) was employed by the U.S. Department of Defense (“DoD” or “Agency”) as a telecommunications specialist in the Defense Information Systems Agency (“DISA”). In this position, Plaintiff was required to maintain a secret security clearance as a condition of employment. ECF No. 10-1.

         Plaintiff has been a federal employee since 1969, starting as a supply clerk with DISA’s predecessor, the Defense Communications Agency. ECF No. 13-1 at 4. Throughout his employment, Plaintiff has “repeatedly opposed the Agency’s discriminatory practices, ” filing several EEOC complaints against the government in an attempt to combat the United States’ “racial bias.” Id. at 1, 4.

         In December 2006, the Office of Personnel Management (“OPM”) conducted a periodic reevaluation of Plaintiff that raised questions regarding his fitness to maintain his security clearance. Plaintiff alleges that his supervisors were aware that he had previously filed EEOC complaints against the government, and claims that as a result, his supervisors falsely told OPM during its investigation that Plaintiff had “violent tendencies, a history of domestic abuse, and/or a need for psychiatric evaluation” so that Plaintiff’s security clearance could be revoked. ECF No. 13-1 at 5-6.

         OPM sent the results of its investigation to the Washington Headquarters Service Central Adjudication Facility (“WHS/CAF”) for final adjudication. WHS/CAF sent Plaintiff a Request for Medical/Psychiatric Evaluation in October 2007, and in January 2008, DISA notified WHS/CAF that Plaintiff was scheduled twice for an evaluation and that he did not attend either appointment. ECF No. 10-1 at 2.

         In February 2008, WHS/CAF notified Plaintiff that his security clearance was being tentatively revoked. Plaintiff received a proposed indefinite suspension pending a final decision from WHS/CAF regarding his security clearance in March 2008. He appealed the tentative revocation decision and, in March 2009, the WHS/CAF Clearance Appeal Board affirmed the decision to revoke Plaintiff’s security clearance. In April 2009, WHS/CAF revoked Plaintiff’s security clearance.

         In June 2009, DISA issued to Plaintiff a Notice of Proposed Removal for failure to maintain a security clearance, which is a necessary qualification for employment with the Agency. In July 2009, the Agency issued to Plaintiff a Decision on Proposed Removal, advising him that the effective date of his removal would be August 7, 2009. Plaintiff’s employment was terminated on August 7, 2009.

         On September 26, 2009, Plaintiff filed a formal EEO complaint that alleged discrimination and retaliation arising from his removal. ECF No. 13-1 at 2. The Agency dismissed the formal complaint on grounds that Plaintiff failed to participate in the informal EEO counseling process. Id. Plaintiff subsequently appealed the dismissal. The EEOC’s Office of Federal Operations (“OFO”) reversed the dismissal and remanded the complaint to the Agency for further processing. Id. On November 2, 2011, Plaintiff filed another formal EEO complaint arising from his removal. Id. at 3.

         The EEOC Administrative Judge issued an order granting DISA’s motion to dismiss the complaint in July 2013. A month later, DISA issued a Final Agency Decision implementing the Administrative Judge’s decision. Plaintiff appealed the Administrative Judge’s decision to the OFO. On February 19, 2015, the OFO affirmed DISA’s Final Order. Plaintiff requested reconsideration and, on October 15, 2015, the OFO denied the request.

         The EEOC issued Plaintiff a Right to Sue letter on October 15, 2015. On January 14, 2016, Plaintiff filed a Complaint in this Court, alleging Defendant violated Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities Act of 1990. ECF No. 1. The crux of Plaintiff’s Complaint is that during OPM’s reevaluation of Plaintiff, Plaintiff’s supervisors “provided inaccurate and/or false information to the Agency security officials” in retaliation for Plaintiff’s participation in EEO opposition activity against the Agency. Id. at 2. His supervisor’s false information caused Plaintiff to lose his security clearance. All claims are asserted against Defendant, Ashton B. Carter, in his official capacity as Secretary of Defense.


         Defendant’s motion to dismiss for lack of subject matter jurisdiction is governed by Rule 12(b)(1). Generally, “questions of subject matter jurisdiction must be decided ‘first, because they concern the court’s very power to hear the case.’” Owens-Illinois, Inc. v. Meade, 186 F.3d 435, 442 n.4 (4th Cir.1999) (quoting 2 James Wm. Moore, et al., Moore’s Federal Practice § 12.30[1] (3d ed.1998)). The Plaintiff always bears the burden of proving that subject matter jurisdiction properly exists in federal court. See Evans v. B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir. 1999). In considering a Rule 12(b)(1) motion, the court “may consider evidence outside the pleadings” to help determine whether it has jurisdiction over the case before it. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); ...

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