United States District Court, D. Maryland
WILLIAM W. SPENCER, JR., Plaintiff,
ASHTON B. CARTER, Secretary of Defense, U.S. Department of Defense, Defendant.
XINIS United States District Judge
in this employment discrimination case is Defendant’s
motion to dismiss for lack of subject matter jurisdiction.
ECF No. 10. 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
otherwise noted, the facts outlined here are construed in the
light most favorable to Plaintiff, the nonmoving party.
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.
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.
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.
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.
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
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.
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.
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.
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.
STANDARD OF REVIEW
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 (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);