United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge.
to the Administrative Procedures Act ("APA"). 5
U.S.C. § 701. et seq., Sasha Andreas-Myers
files this Petition for Judicial Review and Injunctive Relief
against the National Aeronautics and Space Administrative
("NASA") and R. Andrew Falcon, in his official
capacity as Chief Counsel for the Goddard Space Flight Center
(collectively. "Respondents" or "NASA").
regarding NASA's final decision denying
Andreas-Myers" request to depose NASA employee Armando
J. Radich. Now pending before the Court is Respondents"
Motion for Summary Judgment. ECF No. 6. No hearing is
necessary. Loc. R. 105.6 (D. Md. 2016). For the following
reasons. Respondents" Motion for Summary Judgment is
around 2006, Andreas-Myers ("Petitioner") filed a
complaint with California's Department of Fair Employment
and Housing against her employer Northrup Grumman
("Northrup"), alleging sex discrimination and
sexual harassment in the workplace. ECF No. 1 ¶ 6.
Petitioner and Northrup subsequently entered into a
confidential settlement agreement and Petitioner agreed to
resign from her position with Northrup. Id.
2013. NASA's Goddard Space Flight Center
("Goddard") sought to increase staffing at two
California facilities where components for the James Webb
Space Telescope ("JWST")were being built. ECF No. 5-1
at 11,  Armando J. Radich. in his role as the
Chief Safety and Mission Assurance Officer for the JWST
project, submitted the request for additional mission
assurance personnel. Id. at 10-11. When Goddard
wants to increase staffing at a remote location, it has the
option to obtain support services from contractors.
Id. at 11. The process to obtain support services is
outlined in the Audits. Assessments and Assurances Services
("A3") contract. Id.
the protocols dictated by the A3 contract. Radich submitted a
request to add a new staff member at each of two facilities
located in California, one in Redondo Beach, run by Northrup
through a contract it had with the Jet Propulsion Lab
("JPL"). and another in Moorpark. California,
Id. Radich identified the necessary skills and
experience required for the position and SQA Services
("SQA"), a sub-contractor on the A3 contract in
charge of staffing, sent him two resumes to review,
reviewed the two resumes and placed one individual at the
Moorpark location, based on his or her qualifications.
Id. He considered placing Petitioner at the Northrup
facility in Redondo Beach but his decision was "put on
hold when JPL informed [him] that it planned on approaching
the staffing need differently at that location."
Id. at 12. According to Radich, JPL declined
oversight by Goddard, or any another third party, and decided
to use "its own employees and colleagues at
[Northrup]." Id. JPL and Goddard are working
jointly to build the JWST but neither field center has
authority over the other; thus. Radich agreed with JPL's
staffing decision. Id. at 11-12. Because there was
"no longer any need to staff the Redondo Beach location
with a contractor mission assurance representative, no other
candidate was given [the] position." Id. at 12.
around August 8. 2013. SQA stated to Petitioner that someone
at Northrup had told NASA that Plaintiff had left Northrup in
a "negative manner." Id. at 26.
Subsequently, on August 16. 2013. SQA notified Petitioner
that the position had "dissolved" because Northrup
would not allow her onto its facility. Id.
thereafter. Petitioner IIled a lawsuit against both Northrup
and SQA in Los Angeles Superior Court, alleging that Northrup
made defamatory statements to Radich regarding the
circumstances of her former employment with Northrup and that
she was not allowed on Northrup's premises, which,
together, led to her rejection from the mission assurance
position at the JPL/Northrup facility. ECF No. 1 ¶ 11.
The claims against each defendant took separate tracks, with
Petitioner's claims against Northrup proceeding through
arbitration while her claims against SQA continued through
motions practice in court. Id. ¶ 12.
March 2015. NASA received and granted a request from an
attorney representing Northrup to have Radich submit a sworn
declaration concerning his role in the decision not to hire
Petitioner. ECF No. 6-1 at 5. After receiving Radich's
declaration. Petitioner decided to settle her claims against
SQA. but she continued to prosecute her claims against
Northrup. ECF No. 1 ¶ 14.
March 15. 2016. at the request of Petitioner's attorney,
the Baltimore County Circuit Court issued a subpoena ordering
Radich to appear at a deposition. ECF No. 5-1 at 14. On March
21, 2016. an attorney from NASA's Office of the Chief
Counsel objected to the subpoena. saying, in relevant part,
that Petitioner's request failed to specify "the
information sought and its relevance to the proceeding in
connection with which it is requested." Id. at
April 5. 2016, Petitioner responded with a more detailed
explanation of her need to depose Radich. Id. at 25.
Specifically, she explained that they had recently deposed Ed
Snider, an SQA employee, who had contacted Petitioner about
the mission assurance position with NASA. Id. at 26.
His testimony, and associated documentary evidence,
demonstrated that someone at Northrup had told NASA that
Petitioner had left Northrup in a "negative
manner." Id. Snider further testified that he
learned from Nancy Hendrick, a Honeywell employee also
involved in staffing, that Petitioner was not allowed on
Northrup's facilities. Id. Snider also testified
that Hendrick learned that information from someone at NASA,
who he believed was Radich. Id. Petitioner explained
that Hendrick was already scheduled to be deposed, and. based
on Snider's testimony, they expected her to state that
Radich was the NASA employee who had heard the defamatory
statements from Northrup. Id.
slated that Radich's testimony would be "the last
part of the circuit connecting Plaintiffs denial of
employment and Northrup's defamatory statement" and
would "'reveal the identity of the person at
Northrup Grumman that spoke about Plaintiff in such a
negative manner." Id. at 27. Petitioner also
addressed NASA's alternative proposal, suggested over a
phone call, that Radich could potentially respond to
additional questions in a declaration "in light of the
travel required of him. and his important daily role in the
construction of the [.ISWT]." Id. Petitioner
stated that she would be open to such an arrangement if
Hendrick did not identify Radich as her source at NASA, but
otherwise, "his live testimony would be essential and
April 7. 2016. NASA issued a final decision regarding
Petitioner's request to depose Radich. Id. at
5-6. Relying on their internal regulations regarding requests
for information, the Chief Counsel decided that Radich could
not be deposed because "[c]ompliance with the request
would demand too many hours away from Mr. Radich's job as
the Chief Safety and Mission Assurance Officer for the
[JWSTJ. the largest and most important project at
[Goddard]." and would "further involve the Agency
in litigation wholly unrelated to NASA's mission."
Id. at 5.
Chief Counsel also considered the fact that "Mr. Radich
has already provided answers to the information sought by the
deposition." Id. Specifically, NASA noted that
in his declaration Radich stated that. "I was not told
any negative information about [Petitioner] from anyone at
[Northrup]. I was never told about the circumstances
regarding the prior employment oi" [Petitioner]
with [Northrup], or the reasons why her employment ended. I
also was never told anything about whether [Petitioner] was
eligible for future employment with [Northrup] or whether she
could work on [Northrup's] premises." Id.
indicated that if. after Hendrick's deposition.
Petitioner had additional questions for Radich. it would be
"willing to consider a request for additional answers by
way of a declaration." Id. at 6.
17. 2016. Petitioner sent NASA another letter, reiterating
its request to depose Radich. Id. at 31-34. In her
letter. Petitioner argued that it was "disingenuous,
arbitrary and capricious" for NASA to state that it did
not want to be involved in this litigation, in light of their
prior cooperation with a previous request for a declaration
from Radich. Id. at 32. She also argued that, having
deposed Hendrick. the veracity of Radich's prior
declaration was now in dispute. Id. Specifically,
she stated that Hendrick testified about a telephone
conversation where Radich told Hendrick "words to the
effect that (a) Mr. Radich had learned from his counterpart
at Northrup....that [Petitioner's] prior employment ended
in a negative manner or in a manner that was involuntary on
the part of [Petitioner], (b) that [Petitioner] would not be
allowed onto [Northrup's] facility and (c) most
importantly, that because of these two pieces of information
told to Mr. Radich by ]Northrup]. [Petitioner] was no longer
a suitable candidate for the contemplated work."
Id. at 33.
argued that these opposing narratives presented a
"quandary" that would be "awkward to explain
away" and implied that Radich had been "less than
truthful when it suit[ed] the short-term needs and interests