UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 13-359 (GK/AK)

MEMORANDUM OPINION

Pending before the Court are Plaintiff’s Second Amended Motion to Compel a 30(b)(6) 

Deposition (“Motion”) [72]; Defendant’s Opposition to Plaintiff’s Motion (“Opposition”) [73]; 

and Plaintiff’s Reply to the Opposition (“Reply”) [74]. Plaintiff Burt R. Thomas (hereinafter 

“Plaintiff” or “Thomas”) moves this Court to compel a Rule 30(b)(6) deposition of Defendant 

Department of Homeland Security (“DHS”) (hereinafter “Defendant”). 

I. Background

The underlying case stems from a complaint filed by Plaintiff alleging violations of Title 

VII of the Civil Rights Act of 1964. Plaintiff was employed by the Federal Emergency 

Management Agency (“FEMA”), beginning in July 2008. (6/03/2013 Amended Complaint [7] 

¶5.) From February 27, 2011 through February 24, 2012, Plaintiff was officially assigned to the 

position of Chief Security Officer for FEMA. (Amended Complaint ¶15.) According to Plaintiff, 

FEMA claimed that in June of 2011, two or more of its employees reported to management “that 

[Plaintiff] had committed fraud, covered up a sexual harassment claim, covered up an 

employee’s DUI charge, covered up other misconduct, and influenced the outcome of security 

BURT R. THOMAS,

Plaintiff,

v.

JEH JOHNSON, Secretary, United

States Department of Homeland 

Security,

 

Defendant.

1
clearance investigations” (Id. ¶17.)1 On July 28, 2011, Plaintiff was detailed to a position within 

the office of the DHS chief security officer for 180 days. (Id. ¶23.) In August 2011, Plaintiff 

initiated an informal EEO complaint and in December 2011, he filed an administrative complaint 

alleging discrimination based on race and color. (Amended Complaint [7] ¶¶12-13.) On February 

23, 2012, FEMA notified Plaintiff that as of the following day he was “being demoted [which 

included a pay reduction] to the GS-15 position of Director, Records Management Division, but 

later changed to Field Coordinator in FEMA’s Logistics Operations Division.” (Id. ¶¶40-41.) 

In its Answer to the Amended Complaint, Defendant asserted that a reason for demoting 

Plaintiff was that:

Plaintiff allow[ed] Gary Walker and James Bland to enter on duty as Federal employees, 

with only an interim Secret national security clearance (thereby waiving preappointment 

investigative requirements) in positions that required a Top Secret national security 

clearance with access to Sensitive Compartmented Information (TS/SCI), which are 

categorized as Special-Sensitive positions. These actions violated 5 C.F.R. 

§732.202(a)(2)(i), which prohibits an agency from waiving the preappointment 

investigative process for appointment to Special-Sensitive positions, and the DHS and 

FEMA security policies that reiterate and implement that prohibition. 

(Motion at 2) (citing 7/11/2013 Answer to Amended Complaint [8] ¶56).

Plaintiff’s Interrogatory No. 7 requested that, for the period 2011-2012, Defendant 

“identify each position requiring a TAS or TS-SCI clearance which was filled by a new hire or 

contractor, and state whether at the time of entering on duty the person had a clearance at the 

designated level.” (Motion at 2) (citing Interrogatory No. 7). In response thereto, Defendant 

provided a chart in the form of an Excel worksheet (the “Chart”), which was interpreted by 

Plaintiff to show that some of the persons who entered on duty did not undergo the requisite 

background investigation and/or obtain the requisite a security clearance prior to their 

1 FEMA initiated a DHS Inspector General investigation of Plaintiff (Amended Complaint ¶¶26, 

33, 35.)

2

 
employment. (Motion at 3) (referencing Chart, a portion of which is attached as Motion, Exh. 

C). Plaintiff subsequently noticed a Rule 30(b)(6) deposition to “make sure that his interpretation 

of the spreadsheet was correct.” (Motion at 3); see Motion, Exh. B (October 27, 2014 Rule 

30(b)(6) Deposition Notice) setting a deposition for November 24, 2014. 

On December 17, 2014, this Court convened a telephone conference with counsel, 

whereby Defendant indicated that it was willing to provide Plaintiff with a declaration in lieu of 

a Rule 30(b)(6) deposition. Plaintiff’s counsel consented to the provision of a declaration but he 

did not waive his right to take a deposition if he found the declaration inadequate.2 On January 

16, 2015, Defendant provided Plaintiff’s counsel with the Declaration of Ms. Lynconyer Young. 

(Motion, Exh. A (Declaration in Support of Motion to Compel Deposition [by counsel] ¶3)).3

Plaintiff subsequently informed Defendant that he wanted to schedule Ms. Young’s deposition 

for January 29, 2015. (Declaration by counsel ¶4.) Plaintiff explained that he wanted to 

reconcile his understanding of Interrogatory No. 7, “show[ing] 23 people entering on duty into 

TS-SCI positions prior to obtaining the necessary clearances” with Ms. Young’s affidavit 

showing that “between 9 and 13 of these in fact had sufficient in-scope SSBIs.” (Id. ¶5.)4 

Defendant’s counsel would not voluntarily produce Ms. Young, and because Plaintiff’s counsel 

is now uncertain whether Ms. Young “had anything to do with production of the interrogatory 

2 Plaintiff subsequently provided Defendant with a draft declaration indicating the information 

sought. (Motion at 3); see Motion, Exh. D (draft declaration). 3 Ms. Young is the Director of the Personnel Security Division, Office of the Chief Security 

Officer (OCSO), Federal Emergency Management Agency (FEMA), U.S. Department of 

Homeland Security. (Motion, Exh. E (Declaration of Lynconyer Young) ¶1.) 

4 Plaintiff’s Motion provides two examples of persons who may not have received a security 

clearance before entering into duty: Jerry E. Jeffries and Sabrina Jacobs. (Motion at 3; Motion, 

Exh. C [Chart] at lines 137 & 159].) 

3

 
answer, . . . [or whether] she ha[d] any responsibility regarding adjudication of security 

clearances[,]” Plaintiff filed the instant Motion seeking a Rule 30(b)(6) deposition. (Motion at 4.) 

II. Legal Standard

Federal Rule 30(b)(6) provides in relevant part that a party may name as the deponent a 

governmental agency and “must describe with reasonable particularity the matters for 

examination.” Fed. R. Civ. P. 30(b)(6). The government agency “must then designate one or 

more” persons who will testify on its behalf and such persons “must testify about information 

known or reasonably available” to the agency. Id. 

III. Discussion

Plaintiff requests a Rule 30(b)(6) deposition responsive to the following inquiries: “(a) 

the practice, during the years of 2011 and 2012, of hiring or promoting people into positions 

designated as requiring TS-SCI clearances before that clearance has been granted, and (b) the 

accuracy and interpretation of the chart provided in response to plaintiff’s interrogatory no. 7.” 

(Reply at 3.) 

 Defendant opposes the Rule 30(b)(6) deposition on two grounds, namely: 1) that 

Plaintiff voluntarily sought a declaration “in lieu” of a deposition and is now precluded from 

taking a deposition (particularly since it is after the close of discovery); and 2) Plaintiff’s inquiry 

infringes upon Defendant’s security clearance decisions and such inquiry is thus impermissible.5

See generally Opposition. Defendant repeatedly reiterates that the Young Declaration was

provided to Plaintiff “in lieu” of a deposition. (Opposition at 2-5.) While Plaintiff did agree to 

accept a declaration instead of immediately moving forward with the deposition, Plaintiff noted 

5 Defendant argues that if the Court grants a Rule 30(b)(6) deposition, inquiry “should be limited 

to only . . . the two alleged discrepancies specified in plaintiff’s motion to compel.” (Opposition 

at 9) (emphasis in original).

4

 
during the December 17, 2014 conference call that he would review the declaration when he 

received it to ascertain whether a deposition was still necessary. (Declaration by counsel ¶2.) 

Defendant contends that Plaintiff would be “unjustly enriched” if the Court were to allow 

him a Rule 30(b)(6) deposition after he obtained the Young Declaration and Defendant would 

thus be prejudiced. (Opposition at 5.) Defendant’s argument is without merit because the 

deadline for filing dispositive motions has been stayed by the trial court until there is a ruling on 

this motion and thus, Defendant will not be prejudiced. (3/19/2015 Minute Order granting 

Consent Motion to Stay Deadline to File Dispositive Motion.) 

Defendant further argues that Plaintiff is attempting to improperly seek testimony 

regarding the Defendant’s security clearance judgments, in contravention of the trial court’s 

January 16, 2014 Memorandum Opinion [31] and Department of Navy v. Egan, 484 U.S. 518 

(1988). (Opposition at 5.)6 Defendant asserts that “plaintiff asks the Court to compel discovery 

into the very thing this Court recognized as being barred from judicial review under Egan, 

namely, defendant’s individualized security clearance judgments.” (Opposition at 6.) Defendant

further alleges that it is “inappropriate for plaintiff now to try to depose an employee of 

defendant in order to elicit testimony regarding the Agency’s security clearance decisions in 

individual cases.” (Opposition at 8.) 

The Court agrees with the Plaintiff that Defendant “radically misstates the subjects of the 

requested deposition.” (Reply at 3.) Plaintiff contends that “[n]either subject extends to asking a 

deponent to ‘explain and/or justify’ any conclusion about the necessity for any clearance.” 

6 See Memorandum Opinion [31] at 7 (“Resolving Plaintiff’s Title VII claim, as it is alleged in 

the Amended Complaint, does not require the Court to review the validity of any “predictive 

judgment” made “by those with the necessary expertise in protecting classified information.”)

(citation omitted).

5

 
(Reply at 4.) With regard the Plaintiff’s aforementioned first inquiry, Plaintiff indicates that the 

answer to that question “might be that the practice was to not hire or promote people into 

positions designated as requiring TS-SCI clearances before that clearance has been granted, 

which would be the case if there were an absolute prohibition against hiring pending clearance 

decisions [and] [t]hat, obviously, does not involve any predictive judgment whatsoever.” (Reply 

at 4.)7 Plaintiff further explains that the second inquiry is the “accuracy and interpretation of 

defendant’s earlier interrogtoary answer.” (Id.) 

The Court finds that the deposition at issue is necessitated by Defendant’s own actions in 

providing a Declaration by Ms. Young that seemingly contradicts, at least in part, the Chart that 

was provided by Defendant in response to Interrogatory No. 7. Accordingly, Plaintiff should be 

permitted to conduct a Rule 30(b)(6) deposition to ask questions about the accuracy and 

interpretation of the Chart provided in response to Interrogatory No. 7. The Court further finds 

that Plaintiff may inquire as to “the Defendant’s practice, during the years of 2011 and 2012, of 

hiring or promoting people into positions designated as requiring TS-SCI clearances before that 

clearance had been granted,” with the understanding that Defendant may provide a concise 

statement of its “practice” during that time frame without getting into the details of any specific 

grant or denial of a security clearance. Because the scope of inquiry is narrowly defined, the 

deposition should be completed in approximately one and one half hours. 

______________/s/____________________ 

DATED: 3-30-2015 ALAN KAY

UNITED STATES MAGISTRATE JUDGE

7 Alternatively, Plaintiff suggests that the Defendant might answer that decisions were “made on 

a case-by-case basis.” (Reply at 4.) 

6