Lee v. Barr ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JASON B. LEE,
Plaintiff,
v. No. 19-cv-2284 (DLF)
WILLIAM P. BARR,
Defendant.
MEMORANDUM OPINION
Plaintiff Jason B. Lee brings this case against the U.S. Attorney General, William P. Barr,
alleging that the U.S. Department of Justice violated Title VII by discriminating against him
based on his race and national origin. See Compl., Dkt. 1. Before the Court is the Attorney
General’s Motion to Dismiss, Dkt. 6, and Lee’s Motion to Amend his complaint pursuant to
Federal Rule of Civil Procedure 15(a)(2), Dkt. 12. For the reasons that follow, the Court will
grant the Attorney General’s motion and deny Lee’s motion.
I. BACKGROUND
A. The Complaint
Lee, a U.S. citizen of Chinese ancestry, began working for the FBI in 2003 and most
recently worked as a Senior Intelligence Officer at its Technical Intelligence Directors Office in
Washington, D.C. Compl. ¶¶ 5, 15, 18. In that role, he held a top secret security clearance. Id.
¶ 17. As part of the security clearance investigative process, Lee took his first polygraph exam
in 2003. Id. ¶¶ 27–28. He underwent a second polygraph in 2008 during his “periodic renewal
investigation.” Id. ¶ 29. In July 2013, the FBI’s Security Division contacted him to schedule his
“ten-year routine periodic polygraph exam.” Id. ¶ 34. Kevin McCaskey conducted Lee’s
polygraph exam in September 2013. Id. ¶¶ 34–35. McCaskey allegedly told Lee that “there
were problems repeatedly arising in his response to three questions relating to the unauthorized
release of information, terrorism and failure to disclose a security violation;” McCaskey also
“accused [Lee] of lying to him and trying to conceal relevant information from him.” Id. ¶¶ 36–
37. Lee further alleges that McCaskey’s “demeanor and attitude” appeared to “be one of bias
and antagonism” because of Lee’s Chinese ancestry. Id. ¶ 39. According to Lee, McCaskey
demanded that Lee provide a written statement explaining his “failure and refused to let [Lee]
leave until he provided one.” Id. ¶ 40. Lee “eventually provided a written statement that denied
any wrongdoing on his part” and “denied withholding any information or employing any testing
counter measures.” Id. ¶ 41.
In August 2014, the FBI notified Lee that he “needed to take a second polygraph
examination” and scheduled it for September 24, 2014. Id. ¶ 43. The examiner of this
polygraph, Special Agent Shannon, 1 informed Lee “that he had reviewed his file and been
briefed on the failed/untruthful results of the 2013 examination.” Id. ¶ 45. During “pre-test
questioning,” Shannon “began a series of questioning regarding [Lee’s] exposure to
environments where others spoke primarily dialects of Chinese,” even though Lee told Shannon
that he did not speak Chinese. Id. ¶¶ 46–47. Shannon suggested that Lee and his father, who
also had worked for the U.S. government, were “part of a father and son spy team.” Id. ¶ 55.
Lee found Shannon’s “attitude and demeanor hostile to [him] due to his Chinese
ancestry.” Id. ¶ 48. He alleges that Shannon “chastised” him for reading a report on polygraphs.
Id. ¶ 49. At some point, Lee had a panic attack during the polygraph test. Id. ¶ 56. Eventually,
Shannon told Lee that “based on his interpretation of the technical results, he would be failing
1
The plaintiff does not include Shannon’s first name in his complaint.
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him” and that he had determined that Lee used “countermeasures” during the polygraph test. Id.
¶ 50. According to Lee, Shannon told him that “having greater number of breaths after
answering a given question can only be explained by one cause, an attempt to cheat the
examination.” Id. ¶ 51. Shannon also said that Lee’s attempts to counter the test would cause
him to lose his badge, and Shannon misleadingly suggested that he had the “sole authority” to
confiscate Lee’s credentials. Id. ¶¶ 57–58. Shannon “demanded” that Lee write a statement
explaining that he failed the test and admitting wrongdoing. Id. ¶ 59. After Lee wrote this
statement, Shannon allegedly crumpled it up and told Lee that unless he rewrote it, the “‘people
in the back room’ will have no choice but to open a counterintelligence investigation” against
him. Id. ¶¶ 59–60. Lee also alleges that the FBI later submitted his test results to the National
Center for Credibility Assessment, which found “no evidence” of “countermeasures.” Id. ¶¶ 52–
53.
On December 31, 2014, Lee received a letter informing him that the FBI was indefinitely
suspending his security clearance and placing him on unpaid leave. Id. ¶ 62. He claims he “was
not afforded an opportunity to appeal this decision” before the suspension was made effective, a
violation of the FBI’s policy to give an employee a hearing before its Senior Review Panel
before taking adverse action against an employee accused of failing a routine polygraph. Id.
¶ 63. On February 25, 2015, Lee was informed that the FBI was revoking his security clearance.
Id. ¶ 66. The Assistant Director of the Security Division denied Lee’s appeal of this decision.
Id. ¶ 67.
Lee filed suit against the Attorney General on July 31, 2019, alleging that the examiners
who conducted his 2013 and 2014 polygraph examinations discriminated against him based on
his national origin and race, in violation of Title VII. See id. ¶¶ 70–91.
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B. The Amended Complaint
On January 6, 2020, after the FBI moved to dismiss Lee’s initial complaint, see Dkt. 6,
Lee filed a motion to amend his complaint, see Dkt. 12. In his amended complaint, Lee drops all
claims relating to his 2013 polygraph examination, see Pl.’s Mot. to Am. Compl. at 2, but he
adds nine new claims: three Title VII claims relating to his 2018 polygraph examination; two
Fifth Amendment claims; and four Bivens claims. See Am. Compl. ¶¶ 137–208, Dkt. 12-2.
The amended complaint also includes additional details about Agent Shannon’s allegedly
discriminatory behavior during Lee’s 2014 polygraph examination, see Am. Compl. ¶¶ 62–67,
and allegations relating to a 2018 polygraph examination. According to the amended complaint,
in 2015, Lee submitted a request for reconsideration of his security clearance revocation, and in
August 2016, the FBI affirmed the decision. See id. ¶¶ 76–77. That month, Lee appealed the
decision to the DOJ’s Access Review Committee, and the ARC considered his case in 2018. Id.
¶¶ 79–81. The Access Review Committee directed the Drug Enforcement Administration to
hold another polygraph examination using the same questions posed to him during the 2014
polygraph. Id. ¶ 81.
Agent Stacy Smiedala, 2 who conducted Lee’s April 26, 2018 polygraph examination, told
Lee that he was aware of his previous “allegations of ethnic bias, bullying practice and
procedural rights violations.” Id. ¶ 86. Smiedala also raised with Lee two articles that concerned
“an anonymous complainant regarding experiences with perceived inappropriate polygraph
testing practices” and “the FBI singling out” Chinese-Americans by manipulating polygraph
tests. Id. ¶¶ 87, 90. Lee appears to admit that he participated as an anonymous source in the
2
The amended complaint refers to the agent administering the 2018 polygraph as “Stacy
Sabilla,” see Am. Compl. ¶¶ 9, 84–85, but the defendant represents that this agent’s name is
Stacy Smiedala, see Def.’s Opp’n to Pl.’s Mot. to Amend at 4, Dkt. 18.
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article. See id. ¶ 88. And he alleges that Smiedala “vocally berated” him for “sullying the
reputation” of the agent who conducted the 2014 polygraph. Id. ¶ 93. On May 30, the
Committee sent Lee a letter upholding the results of the 2014 polygraph. See Pl.’s Mot. to
Amend Ex. 1, Dkt. 12-4.
II. LEGAL STANDARDS
A. Rule 12(b)(6)
Rule 12(b)(6) allows a defendant to move to dismiss the complaint for failure to state a
claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6)
motion, the complaint must contain factual matter sufficient to “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facially
plausible claim is one that “allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard
does not amount to a specific probability requirement, but it does require “more than a sheer
possibility that a defendant has acted unlawfully.” Id. A complaint need not contain “detailed
factual allegations,” but alleging facts that are “merely consistent with a defendant’s liability . . .
stops short of the line between possibility and plausibility.” Id. (internal quotation omitted).
Well-pleaded factual allegations are “entitled to [an] assumption of truth,” id. at 679, and
the court construes the complaint “in favor of the plaintiff, who must be granted the benefit of all
inferences that can be derived from the facts alleged,” Hettinga v. United States, 677 F.3d 471,
476 (D.C. Cir. 2012) (internal quotation omitted). But the assumption of truth does not apply to
a “legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (internal quotation
omitted). An “unadorned, the defendant-unlawfully-harmed-me accusation” is not credited;
likewise, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Id. Ultimately, “[d]etermining whether a complaint
states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Id. at 679.
B. Rule 15(a)(2)
Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “a court should freely give
leave [to amend a complaint] when justice so requires.” Fed. R. Civ. P. 15(a)(2). However,
“[w]hen evaluating whether to grant leave to amend, the Court must consider (1) undue delay;
(2) prejudice to the opposing party; (3) futility of the amendment; (4) bad faith; and (5) whether
the plaintiff has previously amended the complaint.” Howell v. Gray, 843 F. Supp. 2d 49, 54
(D.D.C. 2012) (citing Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir. 1996)); see also
Foman v. Davis, 371 U.S. 178, 182 (1962). An amendment “is futile and should be denied”
when it “would not survive a motion to dismiss—such as where a claim sought to be added is
barred by the statute of limitations.” Palacios v. MedStar Health, Inc., 298 F. Supp. 3d 87, 90
(D.D.C. 2018); see, e.g., James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir.
1996) (“Courts may deny a motion to amend a complaint as futile . . . if the proposed claim
would not survive a motion to dismiss.”). This review for futility is functionally “identical to
review of a Rule 12(b)(6) dismissal based on the allegations in the amended complaint.” In re
Interbank Funding Corp. Secs. Litig., 629 F.3d 213, 216 (D.C. Cir. 2010) (internal quotation
marks and citations omitted). Thus, when assessing a motion for leave to amend, “the Court is
required to assume the truth of the allegations in the amended complaint and construe them in the
light most favorable to the movant.” Flaherty v. Pritzker, 322 F.R.D. 44, 46 (D.D.C. 2017)
(citing Caribbean Broad. Sys. v. Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C. Cir. 1998)).
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The party opposing amendment “bears the burden of showing why an amendment should not be
allowed.” Abdullah v. Washington, 530 F. Supp. 2d 112, 115 (D.D.C. 2008).
III. ANALYSIS
A. Motion to Dismiss
“Title VII complainants must timely exhaust their administrative remedies before
bringing their claims to court.” Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (internal
quotation marks and alterations omitted); see also 42 U.S.C. § 2000e-16(c). The exhaustion
requirement “serves the important purposes of giving the charged party notice of the claim and
narrowing the issues for prompt adjudication and decision,” Park v. Howard Univ., 71 F.3d 904,
907 (D.C. Cir. 1995) (internal quotation marks and alteration omitted), and it “ensure[s] that the
federal courts are burdened only when reasonably necessary,” Brown v. Marsh, 777 F.2d 8, 14
(D.C. Cir. 1985). In the Title VII context, failure to exhaust is an affirmative defense, and thus
“the defendant bears the burden of pleading and proving it.” Bowden v. United States, 106 F.3d
433, 437 (D.C. Cir. 1997); see also Smith-Haynie v. District of Columbia, 155 F.3d 575, 578
(D.C. Cir. 1998) (“[A]n affirmative defense may be raised by pre-answer motion under Rule
12(b) when the facts that give rise to the defense are clear from the face of the complaint.”).
Pursuant to Title VII, the EEOC has promulgated detailed procedures for the
administrative resolution of employment discrimination claims against federal agencies. See 42
U.S.C. § 2000e-16(b); 29 C.F.R. § 1614.105. Employees who believe they have been
discriminated against must initiate contact with an EEO counselor “within 45 days of the date of
the matter alleged to be discriminatory.” 29 C.F.R. § 1614.105(a)(1).
For purposes of assessing whether a Title VII complainant exhausted these administrative
procedures in a timely fashion, the Supreme Court has identified two categories of
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discrimination—those involving “discrete retaliatory or discriminatory acts” and those involving
a hostile work environment. See Achagzai v. Broad. Bd. of Governors, 170 F. Supp. 3d 164, 175
(D.D.C. 2016). Where, as here, an employee alleges that he or she was the victim of a “discrete
retaliatory or discriminatory act,” the timeliness inquiry focuses on that particular act. Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002); Achagzai, 170 F. Supp. 3d at 175.
“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to
acts alleged in timely filed charges.” Morgan, 536 U.S. at 113.
In his initial complaint, Lee appears to allege that, due to the polygraph examiners’
conduct during the 2013 and 2014 polygraphs, he failed the exams and subsequently had his
security clearance revoked, see id. ¶¶ 71–72. He thus alleges two discrete discriminatory acts:
Agent McCaskey’s “demeanor and attitude” toward him during the September 2013 polygraph,
see id. ¶ 39, and Agent Shannon’s “attitude and demeanor” toward him during the September
2014 polygraph, see id. ¶ 48.
Lee failed to contact an EEO counselor within 45 days of either of these allegedly
discriminatory acts. In fact, he did not contact an EEO counselor until June 14, 2018, almost
four years after the 2014 polygraph examination. See Def.’s Mot. Ex. 1, Dkt. 8-1. He has thus
failed to exhaust his administrative remedies with respect to the alleged 2013 and 2014
discrimination, and the court will dismiss these claims.
B. Motion to Amend
The Court will also deny Lee’s motion for leave to file an amended complaint because
Lee has offered no justification for his delay in seeking to amend the complaint and any such
amendment would be futile. See Palacios, 298 F. Supp. 3d at 90. An amendment is futile if,
among other reasons, the amended pleading could not withstand a motion to dismiss. Id. Lee’s
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additional claims and allegations could not withstand a motion to dismiss, so his motion to
amend his complaint will be denied.
1. Title VII Claims
Lee alleges three new Title VII claims relating to his 2018 polygraph examination:
(1) that Smiedala acted in a discriminatory manner during the 2018 polygraph as retaliation
against Lee for complaining about the alleged discrimination during his 2014 polygraph, see Am.
Compl. ¶¶ 137–48; (2) that Smiedala discriminated against Lee based on his national origin
during the 2018 polygraph, see id. ¶¶ 149–57; and (3) that Smiedala discriminated against Lee
based on race during the 2018 polygraph, see id. ¶¶ 158–66.
If the Court granted Lee leave to amend his complaint, his Title VII claims relating to his
2018 polygraph examination would also fail because Lee did not contact an EEO counselor
within 45 days of the polygraph. See 29 C.F.R. § 1614.105(a)(1). Lee took his polygraph test on
April 26, 2018. Am. Compl. ¶ 84. But he did not contact an EEO counselor until June 14, 2018,
49 days after the polygraph. See Def.’s Mot. Ex. 1. Indeed, the EEOC originally dismissed
Lee’s EEOC complaint relating to his 2018 polygraph for this very reason. See Def.’s Mot. Ex.
2 at 1–3, Dkt. 8-2. Because Lee failed to timely exhaust his administrative remedies, his newly
alleged Title VII claims would be dismissed, and it would be futile for Lee to pursue these
claims. 3
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The FBI also argues that because Lee is, in essence, challenging the FBI’s decision to revoke
his security clearance, his claim is barred by Dep’t of Navy v. Egan, 484 U.S. 518 (1988), which
held that a court cannot review security clearance decisions made by the Executive. See id. at
529. However, Egan does not bar all constitutional challenges to security clearance decisions,
see Webster v. Doe, 486 U.S. 592 (1988), nor does it necessarily bar challenges to the methods
used in security clearance decisions, see Nat’l Fed’n of Fed. Empls. v. Greenberg, 983 F.2d 286,
290 (D.C. Cir. 1993).
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2. Constitutional Claims
Lee also brings two Fifth Amendment claims: one alleging that the FBI deprived him of a
liberty interest in his reputation, in violation of the Due Process Clause, see Am. Compl. ¶¶ 167–
80; and one alleging that the FBI violated the Equal Protection guarantee of the Due Process
Clause, see id. ¶¶ 181–83.
Title VII is the “exclusive, pre-emptive administrative and judicial scheme for the redress
of federal employment discrimination.” See Brown v. Gen. Servs. Admin., 425 U.S. 820, 829
(1976). Because federal employees may not “circumvent the careful and thorough remedial
scheme” Congress ordered for them, they are precluded from bringing employment
discrimination claims against federal officials for constitutional violations. Kizas v. Webster,
707 F.2d 524, 542–43 (D.C. Cir. 1983) (citing Brown, 707 F.2d at 833). This includes
constitutional claims arising from “the same conduct that forms the basis for a plaintiff’s Title
VII claim.” King v. Holder, 941 F. Supp. 2d 83, 92 (D.D.C. 2013).
Lee’s constitutional claims rest on the same conduct as his Title VII claims. As to the
equal protection claim, Lee asserts in a conclusory fashion that he “was not provided Equal
Protection under the law.” See Am. Compl. ¶ 182. For his Due Process Clause claim, he alleges
that he has been deprived of his liberty interest in his reputation because he has to explain the
loss of his security clearance to future employers, id. ¶ 168, and that the defendants “proximately
caused” this “on the basis of pretextual and untrue statements regarding [Lee’s] alleged
deception” during the 2014 and 2018 polygraphs, id. ¶ 169. At bottom, Lee complains that the
same conduct underlying his Title VII claims—the agents’ alleged discriminatory behavior
during the polygraph examinations—caused the damage to his reputation. These allegations of
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employment discrimination are only actionable under Title VII. Lee’s constitutional claims are
thus precluded and would not survive a motion to dismiss.
3. Bivens Claims
Lee alleges four claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
388 (1971), which recognized an implied cause of action for damages against federal officers
alleged to have violated certain constitutional rights. Id. He claims that: (1) Smiedala violated
his First Amendment rights by retaliating against him for his quotations in the articles, see Am.
Compl. ¶¶ 184–97; (2) Smiedala violated his Fifth Amendment equal protection guarantee
during the 2018 polygraph, see id. ¶¶ 198–200; (3) Smiedala violated his Fifth Amendment Due
Process Clause rights during the 2018 polygraph, see id. ¶¶ 201–04; and (4) Marie Barr
Santangelo, the employee who signed the Access Review Committee’s 2018 letter affirming the
revocation of his security clearance, violated his Fifth Amendment Due Process Clause rights,
see id. ¶¶ 205–08.
The Supreme Court recently outlined the proper two-step approach to determining
whether a cause of action exists under the Constitution itself for damages for constitutional
violations. Ziglar v. Abbasi, 137 S.Ct. 1843 (2017). First, a court should ask whether the claim
arises in a new context. A case “presents a new Bivens context” if it “is different in a meaningful
way from previous Bivens cases decided by this Court.” Id. at 1859. Second, it should ask
whether there are “special factors counselling hesitation in the absence of affirmative action by
Congress.” Id. at 1857. “[T]he decision to recognize a damages remedy requires an assessment
of its impact on governmental operations systemwide,” including “the burdens on Government
employees who are sued personally, as well as the projected costs and consequences to the
Government itself when the tort and monetary liability mechanisms of the legal system are used
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to bring about the proper formulation and implementation of public policies.” Id. at 1858.
Further, “if there is an alternative remedial structure present in a certain case, that alone may
limit the power of the Judiciary to infer a new Bivens cause of action.” Id. Although Bivens
remains settled “in the search-and-seizure context in which it arose,” the Court “has made clear
that expanding the Bivens remedy is now a disfavored judicial activity.” Id. at 1856–57 (internal
quotation marks omitted).
Lee’s First Amendment Bivens claim fails in light of established precedent. The Supreme
Court has never held that a Bivens remedy is available for First Amendment claims. In fact, both
the Supreme Court and the D.C. Circuit have held that federal employees cannot bring a Bivens
action against their employers for First Amendment violations. See Bush v. Lucas, 462 U.S. 367,
368 (1983); Davis v. Billington, 681 F.3d 377, 388 (D.C. Cir. 2012). Lee relies on Pinson v. U.S.
Dep’t of Justice, 246 F. Supp. 3d 211, 218 (D.D.C. 2017), which permitted Bivens claims for
First Amendment retaliation, but Pinson predated Ziglar, and since Ziglar, this Circuit has
declined to extend Bivens to the First Amendment context, see Loumiet v. United States, 948
F.3d 376, 382 (D.C. Cir. 2020). Lee’s First Amendment Bivens claims would therefore not
survive a motion to dismiss.
Lee’s Fifth Amendment Bivens claims involve new contexts and implicate “special
concerns counselling hesitation.” Even though the Fifth Amendment is one of the three
instances in which the Supreme Court has permitted a Bivens remedy, see Davis v. Passman, 442
U.S. 228 (1979), the Ziglar Court warned that “[e]ven though the right and the mechanism of
injury [are] the same . . . the contexts [may still be] different,” see Ziglar, 137 S.Ct. at 1859.
And the facts of Davis differ from those here. Davis involved a sex-discrimination claim against
a Congressman who was protected by the Speech or Debate Clause. Davis, 442 U.S. at 248–49.
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Here, Lee challenges a different set of facts—the conduct of FBI agents in administering a
polygraph and revoking a security clearance. See Barker v. Conroy, 282 F. Supp. 3d 346, 367
(D.D.C. 2017), aff’d, 921 F.3d 1118 (D.C. Cir. 2019) (distinguishing a Fifth Amendment Bivens
claim from Davis based on different facts). Further, Title VII provides an “alternative remedial
structure” for Lee’s employment discrimination claims, and this alone can suffice to preclude a
Bivens claim. See Ziglar, 137 S.Ct. at 1858. Lastly, the national security concerns at play
caution against extending Bivens to Lee’s claims. Security clearances “require[] an affirmative
act of discretion” from an executive branch official. See Dep’t of Navy v. Egan, 484 U.S. 518,
528 (1988). Given that “separation-of-powers principles are or should be central to the [Bivens]
analysis,” Ziglar, 137 S.Ct. at 1857, the Court declines to imply a judicially-created remedy that
could interfere with this important executive branch function. Lee’s Fifth Amendment Bivens
claims would also fail to survive a motion to dismiss. Accordingly, amending the complaint to
include the Bivens claims would also be futile.
CONCLUSION
For the foregoing reasons, the Court grants the Attorney General’s Motion to Dismiss and
denies Lee’s Motion to Amend his Complaint. A separate order consistent with this decision
accompanies this Memorandum Opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
June 23, 2020
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