UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 11-1351 (CKK)

MEMORANDUM OPINION (March 5, 2013) Plaintiff Ronnie Foote filed suit against Dr. Stephen Chu, in his official capacity as Secretary of the United States Department of Energy (“Defendant”), alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”). Presently before the Court is the Defendant’s [39] Motion for Judgment on the Pleadings. The Defendant contends that the Plaintiff’s claim is non-justiciable insofar as it challenges a national security deci sion committed to the discretion of the Executive Branch. Upon consideration of the pleadings, 1 the relevant legal authorities, and the allegations in the Plaintiff’s Complaint, the Court finds adj udication of the Plaintiff’s claims would require the fact finder to review the merits of a nationa l security decision. Accordingly, the Defendant’s motion is GRANTED. I. BACKGROUND According to the Complaint, in August 2007, Plaintiff received a conditional offer of employment as an Emergency Operations Spec ialist with the Transportation and Emergency

1 Def.’s Mot., ECF No. [39]; Pl.’s Opp’n, EC F No. [44]; Def.’s Reply, ECF No. [45]. RONNIE FOOTE, Plaintiff,

v. DR. STEPHEN CHU, Secretary, U.S. Department of Energy, Defendant.2 Control Center, part of the National Nuclear Security Administration (“NNSA”), located in Albuquerque, New Mexico. Compl ., ECF No. [1], at 1. The NNS A is an agency within the Department of Energy responsible for, among ot her things “maintain[ing] and enhanc[ing] the safety, reliability, and performance of the United States nuclear weapons stockpile.” 50 U.S.C. § 2401(b)(3). The offer of employment extended to th e Defendant was conditioned on Plaintiff receiving a certification from the Hu man Reliability Program (“HRP”). Id . at 2. The Human Reliability Program (“HRP”), established pursuan t to Executive Order 10450, “is a security and safety reliability program designed to ensure that individuals who occupy positions affording access to certain materials, nuclear explosive devi ces, facilities, and programs meet the highest standards of reliability and physical and mental suitability.” 10 C.F.R. § 712.1. HRP certification is a rigorous process, requiring, among other things , a high-level (“Q”) security clearance, annual security revi ews, medical assessments, and random drug tests. 10 C.F.R. § 712.11. HRP certification must be renewed annually. Id. Dr. Daniel Seagrave, Alternate Lead Psyc hologist for the National Nuclear Security Administration, administered the Plaintiff’ s psychological interview. Compl. at 2. Dr. Seagrave recommended that the responsible officials deny HRP certification for the Plaintiff. Id. The Plaintiff alleges Dr. Seagrave ga ve “intentionally false informati on” in his report to Dr. Anthony Traweek, Dr. John Sloan, and Dennis Reese, who ultimately denied Plaintiff’s request for certification, causing the c onditional offer of employmen t to be rescinded. Id . Specifically, the Plaintiff claims Dr. Seagrave li ed about certain answ ers Plaintiff gave dur ing his interview, improperly contacted Plaintiff’s former supervisor , and concocted allegati ons that Plaintiff was reprimanded while serving in the United States Air Force. Id . at 4. Plaintiff alleges Dr.3 Seagrave’s actions were motiv ated by Plaintiff’s race. Id . at 7-8. II. LEGAL STANDARD Pursuant to Federal Rule of Civil Procedur e 12(c), a party may move for judgment on the pleadings “[a]fter the pleadings are closed—but ear ly enough not to delay trial.” The standard for reviewing a motion for judgment on the pleadings is “virtually id entical” to that applied to a motion to dismiss for failure to st ate a claim under Rule 12(b)(6). Baumann v. District of Columbia , 744 F. Supp. 2d 216, 221 (D.D.C. 2010). Because a Rule 12(c) motion “would summarily extinguish litigation at the threshold and foreclose th e opportunity for discovery and factual presentation,” the district court must approach such moti ons “with the greatest of care” and deny it “if there are allegations in the comp laint which, if proved, would provide a basis for recovery.” Haynesworth v. Miller , 820 F.2d 1245, 1254 (D.C. Cir. 1987), abrogated on other grounds by Hartman v. Moore , 547 U.S. 250 (2006). The Court is limited to considering the facts alleged in the complaint, any documents at tached to or incorporated in the complaint, matters of which the Court may take judici al notice, and matters of public record. Baumann , 744 F. Supp. 2d at 222. III. DISCUSSION Relying on the Supreme Court’s decision in Department of Navy v. Egan , 484 U.S. 518 (1988), the Defendant moves for j udgment on the pleadings on the gr ounds that Title VII claims arising from the denial of an HRP certification ar e non-justiciable. The Plaintiff contends that the HRP certification at issue wa s a suitability determination, not a security clearance, and thus falls outside the scope of Egan and its progeny. Although the Plai ntiff is correct that the HRP certification is not a security clearance, th at distinction is not dispositive under Egan . At its core, the Plaintiff’s Complaint challenges the merits of the Defendant’s predicti ve judgment that the4 Plaintiff did not meet the standa rds of reliability and security necessary for employment in a position involving the United States nuclear weapons program. Semantics aside, the Plaintiff’s claim is barred by Egan

. A. Department of Navy v. Egan and Subsequent Cases
In Egan , the Supreme Court considered whether the Merit Systems Protection Board had the authority to review the substance of an underlying decision to deny or revoke a security clearance. The Court concluded that the Board lacked such authority, for two primary reasons. First, “predictive judgments” of the kind involve d in denying or revoking a security clearance “must be made by those with the necessary expert ise in protecting classified information.” 484 U.S. at 529. “The general standard is that a clearance may be granted only when clearly consistent with the interests of the national security.” Id. at 528 (citation omitted). “[I]t is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence.” Id. at 529. Second, the Court noted that the standard of review employed by the Board, a preponderance of the evidence, is seemingly inconsistent with standard by which security clearance s are granted, that is, “clearly c onsistent with the interests of national security.” Id. at 531. Courts subsequently extended Egan to bar claims under Title VII arising from the denial of a security clearance, noting district courts cannot proceed with di scrimination actions under the burden shifting scheme of McDonnell Douglas “without reviewing th e merits of [the agency’s] decision not to grant a clearance.” Ryan v. Reno , 168 F.3d 520, 523-24 (D.C. Cir. 1999); see also Beattie v. Boeing Co ., 453 F.3d 559 (10th Cir. 1994) (finding Egan barred a
Bivens action against a private employer arising from the denial of a security clearance necessary5 to access the area in which Air Forc e One was under construction). Extension of Egan to bar decisions other than the de nial or revocatio n of a security clearance has proved more controversial. The D.C Circuit recently addressed whether the plaintiff could pursue a Title VII claim on the basi s of allegations that an employee of the FBI reported unfounded security concerns to the FBI’s Security Division, promp ting an investigation into the plaintiff’s continued eligib ility for a security clearance. Rattigan v. Holder , 689 F.3d 764, 765 (D.C. Cir. 2012). Upon rehearing by th e panel, the divide d court ruled that Egan does not bar Title VII claims arisi ng from the reporting of knowingly false information to the FBI’s Security Division. 2 Id. at 767; but see Becerra v. Dalton , 94 F.3d 145, 149 (4th Cir. 1996) (holding that Egan barred judicial review of Title VII claims arising fr om the “instigation of the investigation into [a] security clearance”). The Defendant cites to the Fe deral Circuit’s decision in Berry v. Conyers , 692 F.3d 1223 (Fed. Cir. 2012), in support of his position, which held that Egan prevents the Merit Systems Protection Board from reviewing any decision regarding the eligibility of an employee for “sensitive” positions, regardless of whether the pos ition requires access to classified information. Id. at 1225. On January 14, 2013 (after the Defe ndant filed his Reply) , the Federal Circuit granted rehearing en banc and vacated the decision on which the Defendant relies. Berry v. Conyers , No. 2011-3207, 2013 WL 262509, Order (Fe d. Cir. filed Jan. 24, 2013). Although several cases have tangentially invol ved suitability determinations in the context of Egan , none of the cases are directly on point. The D.C. Circuit noted in Bennett v. Chertoff , 425 F.3d 999 (D.C. Cir. 2005), that natio nal security issues and suitability

2 The Defendant questioned the validity of Rattigan in his Reply, noting the defendant filed a petition for rehearing en banc. Def.’s Reply at 4, n.1. The D.C. Circuit denied the petition on November 1, 2012.6 determinations are not mutually exclusive considerations. Id. at 1003. However, the Bennett court did not reach the issue of whether certain (or all) suitability determinations are unreviewable under Egan . Rather, the dispositive question before the court was whether the defendant could assert the plain tiff was terminated because she wa s unable to sustain a security clearance, even though the original stated basis for her termination was a negative suitability determination. Id. at 1001. The court found TSA could properly raise the denial of the plaintiff’s security clearance as grounds for he r termination, and affirmed dismissal of the complaint, explaining that a court could not de termine whether or not the security clearance explanation was pretextual without runni ng afoul of Ryan

. Id. at 1003. The Ninth Circuit in Brazil v. Department of Navy , 66 F.3d 193 (9th Cir. 1995), addressed a claim similar to that asserted by the Pl aintiff in this case. Brazil sought to challenge the revocation of his Nuclear Weapons Pers onnel Reliability Pr ogram certification. Id. at 196- 97. The Ninth Circuit described the certification as “an accreditation to work around sensitive nuclear material, and is a prerequisite to empl oyment in certain capacities or on certain Navy ships.” Id. at 195, n.1. Noting that the certification “is not the same as a security clearance,” the Brazil court explained that “t he Navy is anxious to treat it as such, and Brazil acquiesces. Thus we will treat PRP certification and security clearance decisions as equivalent for purposes of this opinion

. ” Id. at 195, n.1 (emphasis added). B. Egan Bars Judicial Review of the Plaintiff’s Claim Although not directly on point, th e D.C. Circuit’s analysis in Rattigan provides useful guidance in determining whether the Plainti ff’s claim in this case is justiciable: [T]he Court in Egan emphasized that th e decision to grant or deny security clearance requires a [p]redictive judgment that must be made by those with the necessary expertise in protecting cla ssified information. Likewise, under7 Executive Order 12,968, the decision to grant or deny access to classified information must be based on judgment s by appropriately tr ained adjudicative personnel. It is this ex pert, predictive judgment made by appropriately trained personnel that Egan insulate s from judicial review. Rattigan , 689 F.3d at 767. The Plainti ff is challenging precisely this type of “predictive judgment” the Rattigan court indicated should be insulated from review. “The HRP is a security and safety reliability program designed to ensure that individuals who occupy positions affording access to certain mate rials, nuclear explosive devices, facilities, and programs meet the highest standards of reliab ility and physical and mental suitability.” 10 C.F.R. § 712.1. HRP itself requires a “Q” access authorization, id. at § 712.11(a)(1), the Department of Energy equivalent of a Top Secret security clearance, id. at § 25.15(a). The certification further requires, among other things, annual submi ssion of the SF-86 Questionnaire for National Security Positions, completion of a counterintelligence ev aluation, and an “annual supervisory review, medical assessment, manage ment evaluation, and a DOE personnel security review.” Id. at § 712.11(a). Thus, while the HRP is not itself a “security clearance” in the traditional sense of the term, it is a more rigorous screening program created so that relevant individuals within the Department of Energy make the annual predictive judgment as to whether providing a particular individual access to nuclear programs is consistent with security and reliability concerns. The Rattigan court emphasized in its decision on rehearing that the decision did not permit claims against trained individuals char ged with making security clearance-related decisions. 689 F.3d at 767-78. By contrast here, the Plaintiff’s allegations target one of the trained individuals charged with making decisions relating to HRP certif ication. The Plaintiff alleges that “Dr. Seagrave’s rationale for denyi ng Mr. Foote HRP certification was full of errors and deliberately misleading.” Compl. at 2. As a result, the Plaintiff claims that the Lead8 Psychologist for HRP (Dr. Anthony Traweek) and th e HRP Certifying Official (Dennis Reese) relied on “intentionally false inform ation” provided by Dr. Seagrave. Id . In other words, the Plaintiff challenges the predictiv e judgment of trained adjudi cative personnel responsible for determining whether an individual satisfies the security standards necessary for employment in a position involving the nation’s nuclear weapons. The nature of the Plaintiff’s claim creates the same issue that led the Bennett court to affirm dismissal of the complaint: the court cannot adjudicate the merits of the Plaintiff’s Title VII claim without second-guessing the merits of the HRP certificati on decision. This issue arises on two levels in this case. First, the fact fi nder would have to evaluate the recommendation by Dr. Seagrave, which recommended against certif ying the Plaintiff becau se of his previous “irresponsible work and performance,” and the Plai ntiff’s lack of “full and accurate disclosure about [his] history and uncooperati ve behavior,” which created a “significant concern’ for HRP duties.” Compl. at 3-4. The fact finder would ha ve to substitute its judgment for the predictive judgment of the psychologist responsible for ev aluating whether or not the Plaintiff posed a security threat if provided acc ess to the United States nucl ear weapons program or related materials. Second, assuming the fact finder f ound Dr. Seagrave’s recommendation was based on an improper purpose, the fact finder would then be forced to determine whether the final decision to deny the Plaintiff HRP certification was ba sed on Dr. Seagrave’s recommendation. For “reasons ... too obvious to call for enlarged discussion,” Egan , 484 U.S. at 529 (citation omitted), the protection of nuclear weapons and related ma terials must be committed to the discretion of the agencies responsible for those programs. “[I]t is not reasonably possible for an outside nonexpert body,” be it the Court or a jury, “to review the substanc e of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction9 with confidence.” Id. The Plaintiff’s Opposition emphasizes that federal regulations distinguish between security clearances and suitability determin ations, and notes that certain suitability determinations are appealable to the Merit Sy stems Protection Board. Pl.’s Opp’n at 3-4 & n.1 (citing 5 C.F.R. §§ 731.101(a), 731.501(a )). The Human Reliability Progr am at issue in this case is not part of the civil service re gulations cited by the Plaintiff. Pa rt 731 of Title 5 of the Code of Federal Regulations “establish[es] criteria a nd procedures for making determinations of suitability and for taking suitabi lity actions regarding employment in covered position.” 10 C.F.R. § 731.101(a). As part of those procedures , when a relevant agency “takes a suitability action against a person, that person may app eal the action to the Me rit Systems Protection Board.” 10 C.F.R. § 731.501(a). The HRP regulations are set forth in Part 712 of Title 10 of the Code of Federal Regulations, as part of the re gulations relating to the Department of Energy. The Plaintiff’s citation to regulations regarding other suitability determinations is unavailing, particularly given the unique subject of the HRP: nuclear weapons. The Plaintiff further co ntends that even under Egan , the Board (and thus the Court) can review claims that the necessary procedural protect ions were not afforded to an individual before his/her security clearance, and thus procedural claims regarding suitability claims are likewise justiciable. In support of this theory, the Plai ntiff offers new allegati ons in his Opposition in support of the argument that he is challengi ng the process afforded in denying his HRP certification, rather than the merits of the decision itself. Construing the Plaintiff’s pro se Complaint liberally, none of the a llegations even verge on asserting a due pr ocess violation. The Plaintiff cannot simply amend the allegations in his Complaint by including new assertions and legal theories of liability in his Opposition. Ar bitraje Casa de Cambio, S.A. de C.V. v. U.S.10 Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003). Assuming arguendo the Court could entertain a procedural claim arising from the denial of Plaintiff’s HRP certification, no such claim is alleged in this case. IV. CONCLUSION For the foregoing reasons, the Court finds the Plaintiff cannot pursue a claim under Title VII challenging the merits of the Defendant’s decision to deny Plainti ff certification under the Department of Energy’s Human Reliability Progra m. The Plaintiff’s claim would require the Court to evaluate the merits of the predictive judgment made by trained individuals finding that the Plaintiff did not satisfy the security and reliability requirements necessary for access to the United States nuclear weapons program and relate d materials. Suitability determinations as a general matter may not be insulated from Title VII challenges, but permitting this particular claim would run afoul of Supreme Court and Circ uit precedent which requi re courts to leave national security decisions to the discretion of the responsi ble agency. Accordingly, the Defendant’s [39] Motion for Judgment on the Pl eadings is GRANTED and the Complaint is
DISMISSED. An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE