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 2019-02

Mark Dubuque v. The Boeing Company , 917 F.3d 666 ( 2019 )


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  •                  United States Court of Appeals
For the Eighth Circuit
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No. 18-1945
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Mark W. Dubuque
lllllllllllllllllllllPlaintiff - Appellant
v.
The Boeing Company
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 17, 2019
Filed: February 27, 2019
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Before BENTON, MELLOY, and KELLY, Circuit Judges.
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BENTON, Circuit Judge.
Mark W. Dubuque was an at-will employee at The Boeing Company with
Special Action Program (SAP) clearances and access for his classified work. After
the Air Force’s Office of Special Investigations temporarily suspended his SAP
access, Boeing tried to inform Dubuque that his SAP access was terminated in a SAP
facility. This process is called “debriefing.” Dubuque refused requests to debrief.
Boeing terminated him. Dubuque sued Boeing, claiming wrongful discharge in
violation of public policy. The district court1 denied Boeing’s motion to dismiss for
lack of subject matter jurisdiction, but granted dismissal under Rule 12(b)(6).
Dubuque v. Boeing Co.,
    325 F.R.D. 296
     (E.D. Mo. 2018). Dubuque appeals.
Boeing contends that the district court lacked subject matter jurisdiction over
Dubuque’s claim because it is a nonjusticiable political question. Courts lack
jurisdiction to review the merits of an executive’s decision to grant or deny a security
clearance because it is a “sensitive and inherently discretionary judgment call . . .
committed by law to the appropriate agency of the Executive Branch.” Dep’t of Navy
v. Egan,
    484 U.S. 518
    , 527-28 (1988). However, “not all claims arising from security
clearance revocations violate separation of powers or involve political questions.”
Stehney v. Perry,
    101 F.3d 925
    , 932 (3d Cir. 1996). See, e.g., Zeinali v. Raytheon
Co.,
    636 F.3d 544
    , 547, 552 (9th Cir. 2011) (jurisdiction over discriminatory
termination claim where employee was terminated after the Department of Defense
denied his security clearance); Makky v. Chertoff,
    541 F.3d 205
    , 213 (3d Cir. 2008)
(jurisdiction over discrimination claim under mixed-motive theory because the case
did “not necessarily require consideration of the merits of a security clearance
decision”). Noting that Dubuque’s claim does not challenge the merits of the
security-clearance decision, the district court correctly concluded it had subject matter
jurisdiction over Dubuque’s wrongful termination claim. See 8th Cir. R. 47B.
The district court also properly dismissed Dubuque’s wrongful discharge claim.
Generally, an “at-will employee has no cause of action for wrongful discharge.”
Fleshner v. Pepose Vision Inst., P.C.,
    304 S.W.3d 81
    , 91 (Mo. banc 2010).
1
The Honorable Charles A. Shaw, United States District Judge for the
Eastern District of Missouri.
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However, “[a]n at-will employee may not be terminated . . . for refusing to violate the
law or any well-established and clear mandate of public policy . . . .”
    Id. at 92
    . The
public policy exception is “narrow.”
    Id. at 93
    . After de novo review, this court
agrees with the district court that Dubuque failed to state a claim upon which relief
can be granted because the manuals he cites do not clearly prohibit him from being
debriefed in a SAP facility. See Margiotta v. Christian Hosp. NE. NW.,
    315 S.W.3d 342
    , 347 (Mo. banc. 2010) (“The pertinent inquiry here is whether the authority
clearly prohibits the conduct at issue in the action.”). See generally 8th Cir. R. 47B.
*******
The judgment is affirmed.
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