Case: 21-11060 Document: 00517066021 Page: 1 Date Filed: 02/15/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
February 15, 2024
No. 21-11060
____________ Lyle W. Cayce
Clerk
United States of America, ex rel; Dana Johnson, Relator,
Plaintiff—Appellant,
versus
Raytheon Company,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CV-1098
______________________________
Before Stewart, Dennis, and Higginson, Circuit Judges.
James L. Dennis, Circuit Judge:
Plaintiff-Appellant Dana Johnson sued his former employer
Defendant-Appellee Raytheon Co. under the False Claims Act, claiming
retaliation for reporting fraudulent misrepresentations that Raytheon
allegedly made to the Navy. The district court held it lacked subject-matter
jurisdiction over all but one of Johnson’s claims and granted summary
judgment to Raytheon on the remaining claim. We conclude that the district
court correctly held Department of the Navy v. Egan, 484 U.S. 518 (1988), bars
review of Johnson’s claims implicating the merits of the decision to revoke
his security clearance and that Johnson failed to present a prima facie case of
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retaliation for the remaining claim we have jurisdiction to assess.
Accordingly, we AFFIRM.
I. BACKGROUND
A. Facts
Defendant-Appellee Raytheon Co. is a government defense
contractor. The U.S. Navy is one of Raytheon’s customers. One of
Raytheon’s Navy projects is the Advanced Sensor Technology (AST)
Program. The AST Program is a “Special Access Program,” meaning
Raytheon employees must have top-secret security clearance and be deemed
mission critical to work on the Program. The federal government has full
discretion to grant Raytheon employees security clearances and access to the
Program. Raytheon’s contract with the Navy includes security requirements,
and Raytheon has security plans that are approved by the Navy. As part of its
security plan, Raytheon monitors its employees’ activities, including their
computer and network use. Raytheon is required to report security concerns
to the Navy.
Plaintiff-Appellant Dana Johnson worked for Raytheon for thirty
years, most recently as a systems engineer on the AST Program. Johnson
claims that he saw Raytheon make fraudulent misrepresentation to the Navy
about the products and equipment that Raytheon was providing through the
AST Program, and that he spoke up internally about the problems over a
couple of years with a number of supervisors and managers, though he never
utilized official channels either with Raytheon or the Navy to express his
fraud concerns. Johnson claims he identified and spoke out about four
different problems that arose during his employment.
First, Johnson encountered a problem with a “radar mode” in the
Navy’s planes, and Johnson informed manager Brian Cook. According to
Johnson, he fixed the problem in the computer code, but Raytheon did not
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follow through with the necessary recalibration of the radar because it would
have been expensive and time-consuming. Cook told Johnson to sign off on
the project anyway. Johnson refused because that would have meant making
a false representation to the Navy. Raytheon nevertheless told the Navy that
there was no issue.
The second problem involved a faulty computer initialization or
“booting” process caused by outdated software that would make radar
programs crash. Johnson recommended using updated software to fix the
problem, but no software upgrade occurred. Later, Johnson was told that
Raytheon had informed the Navy that the problem was fixed, but Johnson
knew this was false. He reported this issue to supervisors Mike Leddy and
Steve Blazo, as well as to a test conductor named Rick Scoggins, among
others. Sometime in 2013 or 2014, a member of the Raytheon security
department, Mack Slater, twice told Johnson to stop talking to the Navy
about problems.
The third problem involved equipment called oscilloscopes.
According to Johnson, he discovered that the equipment was damaged and
that Raytheon was hiding it from the Navy. He reported the issue to a
manager and his supervisor and told them that hiding the status of the
equipment was a violation of Raytheon’s contract with the Navy.
The fourth problem involved the creation of a configuration guide for
laptops. Johnson and other software engineers wrote a guide for use by the
Navy and submitted it to Raytheon for approval. The guide was approved,
but the final version did not include items that the software engineers deemed
essential. Johnson told supervisor Rocky Carpenter about this problem.
Johnson said that omission of certain information would lead to testing
problems, but Raytheon told the Navy that the guide was approved by the
engineers anyway.
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According to Johnson, after he reported these concerns to managers
and supervisors, Raytheon began to subject him to increased monitoring and
allegedly fabricated a record of misconduct against him. According to
Raytheon, computer auditing that it conducts as part of its contract with the
Navy showed Johnson was taking unauthorized actions. Eventually, in
January 2015, Raytheon’s AST Program Security Officer, Lynne Sharp,
reported Johnson to the Navy for suspected security violations. Raytheon
claims the reporting was required by its Navy contract. Johnson claims this
was an act of retaliation.
The Navy and the Naval Criminal Investigative Service (NCIS) began
an investigation. They conducted forensic audits and eventually interviewed
Johnson. Johnson states he did not initially realize that he was the target of
an investigation, but instead believed that the Navy was investigating his
concerns about Raytheon. Partway through the investigation, the Navy
suspended Johnson’s AST Program access on an interim basis after a coworker told him he was the target. At the end of the investigation, in July
2015, the Navy found that Johnson had committed security violations and
subsequently permanently revoked his access to the AST Program.
Specifically, the Navy found that Johnson (1) downloaded and used an
unauthorized software program called Wireshark (referred to as a “sniffer”
or “analysis software”) on a protected network and ran network scans more
than 100 times, and (2) used a computer at Raytheon that was designated for
Boeing work (not Navy work) without permission, and, in doing so, accessed
information without authorization. The Navy instructed Sharp to inform the
Department of Defense Central Adjudication Facility (DOD CAF)—the
agency that manages security clearances relevant to this case—of the Navy’s
finding that Johnson committed security violations, and she states she did so.
According to the NCIS, in September 2015, the DOD CAF revoked
Johnson’s top-secret security clearance.
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After the Navy completed its investigation, Raytheon conducted its
own disciplinary investigation based on the Navy’s findings and terminated
Johnson’s employment. Sarah Humphrey, a member of Raytheon’s Human
Resources (HR) department, conducted the investigation, interviewed other
employees, and provided a report to HR and Security Vice President Gary
LaMonte. LaMonte made the final decision to terminate Johnson in October
2015. Johnson claims he was not provided with the findings of the
investigations, told of the violations, or allowed to respond to the findings
prior to being fired. While Johnson was interviewed as part of both
investigations, he states that he was merely asked hypothetical questions and
not given a chance to respond to anything specific. At the time of his
termination, Johnson says he was qualified to work on other projects at
Raytheon that did not require a security clearance but was fired after thirty
years with the company instead of being transferred to another project.
B. Procedural History
Johnson filed a complaint in the United States District Court for the
Northern District of Texas, which included both a qui tam action on behalf of
the United States and a retaliation claim on his own behalf, both pursuant to
the False Claims Act, 31 U.S.C. §§ 3729–33. The United States declined to
intervene and moved to dismiss the qui tam claims. The district court granted
the United States’ motion and granted Johnson leave to amend his complaint
to replead his retaliation claim. In his second amended complaint, Johnson
claimed that he engaged in protected activity when he identified and spoke
out about concealing issues from the Navy, and Raytheon retaliated against
him in four different ways: (1) Raytheon, through Slater, instructed him not
to report problems to the Navy; (2) Raytheon monitored him; (3) Raytheon
made false accusations about him to the Navy; and (4) Raytheon fired him.
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During the discovery process, the parties had difficulty with requests
for production that involved allegedly classified documents or documents
stored in classified computer systems that required Navy review. Discovery
issues eventually resulted in an agreed-to order that established a process for
Raytheon to file a motion to dismiss/motion for summary judgment:
• Raytheon would first file a “summary of the basis” for its motion to
enable the parties to narrow the scope of discovery to what was needed
to support and oppose the motion.
• Next, the parties would conduct discovery for approximately two
months.
• Two weeks after discovery was completed, Raytheon would file its
motion to dismiss/motion for summary judgment.
• Then, Johnson would have the choice of either responding to the
motion or filing a Federal Rule of Civil Procedure 56(d) declaration
identifying what additional discovery was needed to respond.
• Finally, after any Rule 56(d) issue was resolved, Johnson would
respond to the motion and Raytheon would reply.
Raytheon timely submitted its summary, and then, after conducting
discovery, timely filed a combined motion to dismiss under Federal Rule of
Civil Procedure 12(b)(1) and motion for summary judgment under Federal
Rule of Civil Procedure 56, arguing, in relevant part, that the district court
lacked subject-matter jurisdiction over most of Johnson’s claims pursuant to
Department of the Navy v. Egan, 484 U.S. 518 (1988), and its progeny, and, on
the merits, the only act of alleged retaliation that the district court had
subject-matter jurisdiction to consider—instructing Johnson not to report
problems to the Navy—was not a materially adverse employment action. In
response, Johnson filed a Rule 56(d) declaration requesting additional
discovery. The district court denied Johnson’s request for additional
discovery and ordered Johnson to respond to Raytheon’s motion, but allowed
Johnson to file a supplemental Rule 56(d) declaration with his summary
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judgment opposition. Johnson filed an opposition, with exhibits. With his
opposition brief, Johnson also renewed his initial Rule 56(d) declaration and
made a supplemental declaration. Raytheon filed a reply. After oral
argument, the district court granted Raytheon’s Rule 12(b)(1) motion and
dismissed Johnson’s retaliation claim in part for lack of subject-matter
jurisdiction and granted summary judgment in part on the merits in favor of
Raytheon. The district court also denied Johnson’s renewed Rule 56(d)
request for additional discovery. Johnson timely appealed.
II. LEGAL STANDARDS
The district court’s grant of Raytheon’s Rule 12(b)(1) motion to
dismiss for lack of subject-matter jurisdiction and its Rule 56 motion for
summary judgment are both reviewed de novo, applying the same standards
as the district court. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.
2001); Austin v. Kroger Tex., L.P.,
864 F.3d 326, 328 (5th Cir. 2017).
Subject-matter jurisdiction may be assessed on: “(1) the complaint
alone; (2) the complaint supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts plus the
court’s resolution of disputed facts.” Ramming, 281 F.3d at 161. “The
burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting
jurisdiction.”
Id. Under the second basis, which is applicable here, “our
review is limited to determining whether the district court’s application of
the law is correct and, if the decision was based on undisputed facts, whether
those facts are indeed undisputed.” Barrera-Montenegro v. United States,
74
F.3d 657, 659 (5th Cir. 1996) (first citing Ynclan v. Dep’t of the Air Force,
943
F.2d 1388, 1390 (5th Cir.1991); and then citing Williamson v. Tucker,
645 F.2d
404, 413 (5th Cir. 1981)).
Summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
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judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine
if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Dyer v. Houston, 964 F.3d 374, 379 (5th Cir. 2020) (citing
Westfall v. Luna,
903 F.3d 534, 546 (5th Cir. 2018)). “On a motion for
summary judgment, the court must view the facts in the light most favorable
to the non-moving party and draw all reasonable inferences in its favor.”
Deville v. Marcantel,
567 F.3d 156, 163–64 (5th Cir. 2009).
The denial of a Rule 56(d) request is reviewed for abuse of discretion.
Smith v. Reg’l Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016). The standard
for abuse of discretion is generally “whether the evidence requested would
affect the outcome of a summary judgment motion.”
Id. at 423. “This court
has found an abuse of discretion where it can identify a specific piece of
evidence that would likely create a material fact issue.”
Id. “In contrast, this
court has found no abuse of discretion where the party filing the Rule 56(d)
motion has failed to identify sufficiently specific or material evidence to affect
a summary judgment ruling.”
Id.
III. ANALYSIS
The False Claims Act (FCA), 31 U.S.C. §§ 3729-3733, is the
government’s primary litigation tool for the recovery of losses sustained as
the result of fraud against the government. United States ex rel. Steury v.
Cardinal Health, Inc.,
625 F.3d 262, 267 (5th Cir. 2010) (citing United States
ex rel. Marcy v. Rowan Cos.,
520 F.3d 384, 388 (5th Cir. 2008)); see also 5B
John Bourdeau, et al., Federal Procedure, Lawyers
Edition § 10:49, Westlaw (database updated Nov. 2023). The FCA
provides for civil penalties and multiple damages for knowingly presenting
false or fraudulent claims to the government, and authorizes civil actions to
remedy such fraud, which may be brought by the Attorney General or by
private individuals in the government’s name. 5B Bourdeau, et al.,
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supra § 10:49. To protect internal “whistleblowers,” the FCA also includes
an anti-retaliation provision:
Any employee, contractor, or agent shall be entitled to all relief
necessary to make that employee, contractor, or agent whole,
if that employee, contractor, or agent is discharged, demoted,
suspended, threatened, harassed, or in any other manner
discriminated against in the terms and conditions of
employment because of lawful acts done by the employee,
contractor, agent or associated others in furtherance of an
action under this section or other efforts to stop 1 or more
violations of this subchapter.
31 U.S.C. § 3730(h)(1). “The purpose of the False Claims Act, of course, is
to discourage fraud against the government, and the whistleblower provision
is intended to encourage those with knowledge of fraud to come forward.”
Robertson v. Bell Helicopter Textron, Inc.,
32 F.3d 948, 951 (5th Cir. 1994).
Relief available to whistleblowers who incurred retaliation includes
reinstatement, double back pay with interest, and special damages, including
costs and attorneys’ fees.
31 U.S.C. § 3730(h)(2).
FCA retaliation claims involving circumstantial evidence are analyzed
using the familiar McDonnell Douglas burden-shifting framework. 1 See, e.g.,
Musser v. Paul Quinn Coll., 944 F.3d 557, 561 (5th Cir. 2019); Diaz v. Kaplan
Higher Educ., L.L.C.,
820 F.3d 172, 175 (5th Cir. 2016); see also McDonnell
Douglas Corp. v. Green,
411 U.S. 792, 802–04 (1973) (establishing this
_____________________
1
Johnson also briefly argues that he presented direct evidence of retaliation, which
is evaluated outside of the McDonnell Douglas framework. Cf. Septimus v. Univ. of Hous.,
399 F.3d 601, 608 (5th Cir. 2005) (stating in the Title VII context that McDonnell Douglas
does not apply to cases which there is direct evidence of retaliation). “Direct evidence is
evidence which, if believed, proves the fact without inference or presumption.” Brown v.
E. Miss. Elec. Power Ass’n,
989 F.2d 858, 861 (5th Cir. 1993) (citing Burns v. Gadsden State
Cmty. Coll.,
908 F.2d 1512 (11th Cir. 1990)). That is not the case with any of the evidence
offered by Johnson. Accordingly, we apply the McDonnell Douglas framework.
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framework). “Under this framework, the employee must first establish a
prima facie case of retaliation by showing: (1) that he engaged in protected
activity; (2) that the employer knew about the protected activity; and (3)
retaliation because of the protected activity.” Musser, 944 F.3d at 561. “If the
employee establishes a prima facie case, the burden shifts to the employer to
state a legitimate, non-retaliatory reason for its decision.” Musser,
944 F.3d
at 561 (quoting Garcia v. Pro. Cont. Servs., Inc.,
938 F.3d 236, 241 (5th Cir.
2019)). “‘This burden is one of production, not persuasion,’ and it involves
no credibility assessment.”
Id. (quoting Reeves v. Sanderson Plumbing Prods.,
Inc.,
530 U.S. 133, 142 (2000)). “After the employer articulates a legitimate
reason, the burden shifts back to the employee to demonstrate that the
employer’s reason is actually a pretext for retaliation.”
Id. (quotation
omitted). To prevail on an FCA retaliation claim, the plaintiff must
ultimately prove at trial that the retaliatory motive was a but-for cause of the
adverse employment action.
Id.
Johnson brings four claims of retaliation: (1) a retaliation claim based
on Slater advising him not to report problems to the Navy; (2) a retaliation
claim based on Raytheon monitoring him; (3) a retaliation claim based on
Raytheon reporting false accusations of security violations to the Navy; and
(4) a retaliation claim based on Raytheon firing him. However, before we
examine the merits of these claims, we must first assure ourselves of our
jurisdiction. See Cleartrac, L.L.C. v. Lanrick Contractors, L.L.C., 53 F.4th
361, 364 (5th Cir. 2022).
A. Subject-Matter Jurisdiction Under Egan
Jurisdiction over three of Johnson’s four FCA retaliation claims is
complicated by the presence of sensitive national security issues. Raytheon’s
proffered legitimate, non-retaliatory reason for monitoring Johnson (claim
two), reporting his conduct to the Navy (claim three), and ultimately firing
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him (claim four)—the second step of the McDonnell Douglas framework—is
that the Navy found Johnson had committed several serious security
violations, which caused the Navy to revoke his access to the AST Program
and the DOD CAF to revoke his top-secret security clearance. Raytheon
argues that, even assuming arguendo that Johnson has made out a prima facie
case of retaliation as to these three claims, assessment of these claims is
largely barred by the Supreme Court’s decision in Department of the Navy v.
Egan, 484 U.S. 518 (1988), and its progeny because determining whether
Raytheon’s proffered legitimate, non-retaliatory reason is pretextual would
necessarily require scrutinizing the DOD CAF’s decision to revoke
Johnson’s security clearance, which credited the Navy’s finding that Johnson
committed security violations. 2 The district court agreed with Raytheon,
ruling that it lacked subject-matter jurisdiction under Egan to determine
whether Raytheon’s proffered reasons for monitoring, reporting, and
terminating Johnson were pretextual. We agree as well. 3
In Egan, the Supreme Court held that the Merit System Protection
Board (MSPB) lacked authority “to review the substance of an underlying
decision to deny or revoke a security clearance in the course of reviewing an
adverse action” taken against a federal employee. 484 U.S. at 520. The Court
_____________________
2
Raytheon does not offer a legitimate, non-retaliatory reason for Johnson’s
remaining claim of retaliation—that Raytheon retaliated against him when Slater advised
him to not raise concerns with the Navy (claim one)—and accordingly does not argue that
Egan bars review of this claim. Instead, Raytheon argues Johnson has not made out a prima
facie case of retaliation on this claim, an argument we address below. As to Egan, though,
we agree it is not implicated by this claim.
3
Raytheon also argues that, as a government contractor, it is absolutely immune
from claims regarding its monitoring and reporting under a purported doctrine of immunity
that protects government contractors from claims based on their reporting of security
issues to their government clients. The district court did not address Raytheon’s “absolute
immunity” claim, resolving the case in light of Egan instead. Because we do the same, we
also decline to reach Raytheon’s claim of absolute immunity.
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reasoned that the presumption in favor of review “runs aground when it
encounters concerns of national security, as in this case, where the grant of
security clearance to a particular employee, a sensitive and inherently
discretionary judgment call, is committed by law to the appropriate agency of
the Executive Branch.” Id. at 527. Egan did not ultimately ground its holding
in the text of the civil service law or any other statute, but instead held that it
“flows primarily from this constitutional investment of power in the
President and exists quite apart from any explicit congressional grant.”
Id.
Egan also explained that security clearance decisions were not subject to
review because of their unusually “predictive” nature in assessing a person’s
potential to compromise sensitive information and the decisions’ grounding
in specialized expertise that could not be reasonably reviewed by non-experts.
Id. at 528–29. Courts, accordingly, should be “reluctant to intrude upon the
authority of the Executive in military and national security affairs.”
Id. at 530.
Courts have not narrowly read Egan as merely applying to MSPB
agency review of a security clearance revocation decision, but instead as
embodying a broader principle that judicial review is not permitted over
decisions that implicate the Executive’s Article II powers “to classify and
control access to information bearing on national security and to determine
whether an individual is sufficiently trustworthy.” Id. at 527. We first
adopted this understanding of Egan in Perez v. F.B.I.,
71 F.3d 513, 514–15 (5th
Cir. 1995). Perez concerned a Title VII retaliation claim brought by a former
FBI employee, who claimed that the FBI revoked his security clearance and
fired him (as his job required a security clearance) because he had joined a
class action lawsuit against the FBI alleging discrimination against Hispanic
employees.
Id. at 514. Under the applicable McDonnell Douglas framework,
the FBI’s proffered nondiscriminatory reasons for revoking the employee’s
security clearance and subsequently firing him were that he had “fabricated
official reports” and “disclosed classified information to unauthorized
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representatives of the Cuban Government.” Id. We held that we lacked
subject-matter jurisdiction under Egan to question these proffered reasons:
“Because the court would have to examine the legitimacy and the possibly
pretextual nature of the FBI’s proffered reasons for revoking the employee’s
security clearance [under the McDonnell Douglas framework], any Title VII
challenge to the revocation would of necessity require some judicial scrutiny
of the merits of the revocation decision.”
Id. at 514. “As the Supreme Court
and several circuit courts have held that such scrutiny is an impermissible
intrusion by the Judicial Branch into the authority of the Executive Branch
over matters of national security, neither we nor the district court have
jurisdiction to consider those matters.”
Id. at 514–15. Raytheon argues that,
because the present FCA case also requires use of the McDonnell Douglas
framework, the same jurisdictional concerns raised in Perez are implicated
when considering whether Raytheon’s proffered legitimate, non-retaliatory
reasons are pretextual.
However, before we turn to Johnson’s pretext arguments, we must
address two preliminary arguments he raises as to the applicability of Egan
and Perez. The first argument is whether, as a factual matter, Johnson’s top-secret security clearance was revoked, which the parties have argued over in
briefing. Egan was specially concerned with reviewing the merits of a security
clearance decision. 484 U.S. at 527–29. If Johnson’s security clearance was
not revoked, the question, then, is whether we may extend Egan to the
revocation of Johnson’s AST Program access. 4 However, because the
_____________________
4
Several circuits, including our own, have refused to extend Egan beyond security
clearances to certain other government decisions. See, e.g., Toy v. Holder, 714 F.3d 881, 885–
86 (5th Cir. 2013); Hale v. Johnson,
845 F.3d 224, 229–31 (6th Cir. 2016); Kukinski v.
Mnuchin,
829 F. App’x 78, 84–86 (6th Cir. 2020) (unpublished); Rattigan v. Holder,
689
F.3d 764, 767 (D.C. Cir. 2012). However, the D.C. and Federal Circuits have extended
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undisputed facts show the DOD CAF revoked Johnson’s top-secret security
clearance based on the Navy’s findings of security violations, we need not
consider extending Egan. See Barrera-Montenegro, 74 F.3d at 659 (stating we
must determine whether the undisputed facts forming the basis of a Rule
12(b)(1) dismissal are indeed undisputed). Raytheon has provided a report by
the NCIS as well as affidavits by Raytheon personnel Sharp and LaMonte
stating that the DOD CAF revoked Johnson’s top-secret security clearance
in September 2015 after Sharp informed the DOD CAF of the Navy’s
findings. 5 In response, the only evidence Johnson points to is his affidavit
stating he has obtained a security clearance at his new job, without stating
whether it was top-secret or a lower level of clearance. The fact that Johnson
has obtained a new unspecified security clearance does not dispute the fact
that his top-secret security clearance was previously revoked. Johnson’s
evidence fails to raise a dispute that his top-secret security clearance was
revoked, and the mere statements to the contrary in his briefing, unsupported
by the record, are insufficient to create a dispute of fact.
The second preliminary argument is that Raytheon is a private
contractor, not a government actor, which raises the legal question of the
extent to which Egan may apply in the private-employment context. The
typical case running afoul of Egan’s jurisdictional concern is one against the
government agency that made the security clearance decision. 6 However, the
_____________________
Egan to certain decisions analogous to a security clearance. Foote v. Moniz, 751 F.3d 656,
658 (D.C. Cir. 2014); Kaplan v. Conyers,
733 F.3d 1148, 1155–60 (Fed. Cir. 2023).
5
Johnson forfeited any argument as to the competency of this evidence by failing
to brief it on appeal. See Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021);
Jackson v. Gautreaux,
3 F.4th 182, 188 n.* (5th Cir. 2021) (stating we cannot consider
arguments raised for the first time at oral argument).
6
Raytheon cites only one circuit case in which a suit against a private contractor
was found to be barred by Egan, Beattie v. Boeing Co., 43 F.3d 559, 566 (10th Cir. 1994). In
that case, the Air Force delegated its authority to make security clearance decisions to a
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Ninth Circuit had the opportunity to consider Egan’s applicability to private
government contractors in Zeinali v. Raytheon Co., 636 F.3d 544, 550-51 (9th
Cir. 2011). The court held that, while “private employers can rarely avail
themselves of Egan’s jurisdictional bar” because “[i]n employment
discrimination suits against private employers, courts can generally avoid
examining the merits of the government’s security clearance decision,” Egan
nonetheless bars claims against private employers that “question the
[government agency’s] motivation behind the decision to deny [the
plaintiff’s] security clearance.”
Id. (third alteration in original) (quoting
Makky v. Chertoff,
541 F.3d 205, 213 (3d Cir. 2008)). We find this reasoning
persuasive. If a plaintiff’s arguments question the merits of a government
agency’s security clearance decision, Egan and Perez’s concern over a court
second-guessing the Executive Branch’s exclusive discretion to control
information bearing on national security is just as relevant in a case against a
private employer as against the government itself. We conclude, therefore,
that the mere fact Raytheon is a private contractor does not make Egan’s
jurisdictional bar inapplicable; the key issue is whether the case requires the
court to question the merits of, or motivation behind, the government’s
security clearance decision or whether the court may avoid such an inquiry
by deciding only questions that do not necessarily require consideration of
the merits of the security clearance decision. See id.; Dubuque v. Boeing Co.,
917 F.3d 666, 667 (8th Cir. 2019) (applying Zeinali in the private-employment
context); cf. Egan,
484 U.S. at 526 (recognizing the MSPB could review
certain related issues that did not implicate its concerns, such as “review of
_____________________
private contractor, and the court found “no compelling reason to treat the security
clearance decision by [the private contractor] differently than the similar decision made by
the Air Force,” as “both decisions represent[ed] the exercise of authority delegated by the
Executive Branch.” Id. The present case does not exactly fit that mold.
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No. 21-11060
the fact of denial, of the position’s requirement of security clearance, and of
the satisfactory provision of the requisite procedural protections”).
Turning, then, to Johnson’s pretext arguments, under Perez, we are
bound to conclude that any analysis of the “possibly pretextual nature of
[Raytheon]’s proffered reasons” for monitoring, reporting, and ultimately
firing Johnson under the McDonnell Douglas framework “would of necessity
require some judicial scrutiny of the merits of the [DOD CAF’s security
clearance] revocation decision.” See 71 F.3d at 514. Raytheon’s stated reason
for firing Johnson is the Navy’s determination that Johnson committed
several serious security violations. Johnson argues this reason is pretextual
because he has evidence that he did not commit any security violations.
There is no way to assess whether Raytheon’s reason was pretextual without
treading on the DOD CAF’s security clearance decision, which credited the
Navy’s investigation and finding that Johnson did commit security violations.
The same is true for Raytheon’s decisions to monitor him and report his
suspected security violations to the Navy, even though these actions
occurred before the Navy’s investigation. “The reasons why a security
investigation is initiated may very well be the same reasons why the final
security clearance decision is made.” Becerra v. Dalton,
94 F.3d 145, 148–49
(4th Cir. 1996) (holding the instigation of an investigation of a security
clearance was covered by Egan because the investigation was closely tied to
the security clearance decision). Johnson’s claims regarding the monitoring
and reporting by Raytheon are that they were based on false accusations of
security violations. But the DOD CAF accepted the Navy’s finding that these
violations actually occurred, and there is no way to assess Raytheon’s reason
for monitoring and reporting Johnson without second-guessing that
determination. See Wilson v. Dep’t of the Navy,
843 F.3d 931, 935 (Fed. Cir.
2016) (declining to examine plaintiff’s argument that the “initiation of
revocation” of a security clearance was “based on ‘false’ complaints and
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No. 21-11060
accusations” because the security investigation—which could not be secondguessed under Egan—“specifically found them reliable”); Hill v. White, 321
F.3d 1334, 1335–36 (11th Cir. 2003) (“To review the initial stages of a
security clearance determination is to review the basis of the determination
itself regardless of how the issue is characterized”).
Johnson maintains that his pretext arguments do not require us to
consider the merits of the DOD CAF’s security clearance decision, relying
primarily on two cases, but each is distinguishable from his case. Johnson first
relies on the D.C. Circuit’s decision in Rattigan v. Holder, 689 F.3d 764 (D.C.
Cir. 2012). In Rattigan, the plaintiff was an FBI employee who alleged he was
retaliated against when other employees reported false security concerns
about him that resulted in an investigation.
Id. at 764. Eventually, the security
investigation concluded that the allegations “lacked corroboration and were
unfounded,” and the plaintiff retained his security clearance.
Id. at 766. The
plaintiff sued, arguing the decision to report false security concerns
amounted to retaliation under Title VII.
Id. at 766. The D.C. Circuit held that
Egan did not apply because (1) the focus of the pretextual review under the
McDonnell Douglas framework was on “decisions by other FBI employees
who merely report security concerns,” not “security clearance-related
decisions made by trained Security Division personnel,” and (2) the claim
was “based on knowingly false reporting.”
Id. at 768, 770.
Urging us to adopt and apply the reasoning of Rattigan, Johnson
argues Egan does not bar his claims because he is arguing that Raytheon
monitored him under false pretenses; reported false security violations to the
Navy; and after the Navy concluded its investigation, chose to fire Johnson,
knowing the Navy’s findings were based on false information. However, we
need not decide whether to adopt Rattigan’s reasoning because Johnson’s
case falls outside of it. In Rattigan, judicial review was unlikely to interfere
with national security because the security investigation concluded that the
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No. 21-11060
allegations were unfounded. In Johnson’s case, of course, the Navy’s
investigation, accepted by the DOD CAF, found that Johnson had committed
the alleged security violations. Under the circumstances in this case, Egan
precludes review of the false reporting claims because their resolution would
necessarily implicate the merits of the DOD CAF’s security clearance
revocation. See Bland v. Johnson, 637 F. App’x 2, 2–3 (D.C. Cir. 2016)
(unpublished), aff’g for the reasons stated in
66 F. Supp. 3d 69, 74–75 (D.D.C.
2014) (“In . . . contrast to Rattigan, in which the ultimate security decision
was favorable to the plaintiff, see
689 F.3d at 766, here, DHS OSCO
suspended Mr. Bland’s clearance.”).
Johnson also cites to the Ninth Circuit’s decision in Zeinali. In that
case, the plaintiff, who was of Iranian descent, claimed that he was
discriminated against when he was fired by his employer, a private
contractor, after the government denied him a security clearance, while
similarly situated non-Iranian employees were retained. 636 F.3d at 546–47.
The Ninth Circuit held Egan did not deprive the court of jurisdiction because
the plaintiff did not argue the government “improperly denied his
application for a security clearance,” but instead “contend[ed] that [his
employer’s] security clearance requirement was not a bona fide job
requirement, and that [his employer] used the government’s security
clearance decision as a pretext for terminating [him] in a discriminatory
fashion.” Id. at 551–52. To support his claim, the plaintiff introduced
evidence that other similarly situated employees who were not of Iranian
descent had been retained even though they also lacked security clearances.
Id. at 552–54.
Relying on Zeinali, Johnson argues Egan does not bar this court from
considering whether transfer to a non-sensitive position was feasible. Again,
we need not decide whether to adopt the distinction made in Zeinali because
Johnson’s case does not fit it. Unlike in Zeinali, Johnson vehemently disputes
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the merits of the Navy’s findings, which the DOD CAF credited in revoking
his security clearance. While he claims to only be challenging Raytheon’s
actions, and not directly challenging the Navy’s actions, his position is
nonetheless that the Navy, and in turn the DOD CAF, was wrong. Moreover,
Johnson has introduced no evidence that similarly situated employees were
treated differently, i.e., that another employee was found by the Navy to have
committed security violations warranting a revocation of his security
clearance but was retained by Raytheon.
In sum, Johnson argues we should have jurisdiction to examine issues
that do not call into question his security clearance decision, such as whether
transfer to a non-sensitive position was feasible and whether a private party
made false statements to the government. In a case that presented different
facts, his position could have merit. But his is not that case. There is no
dispute that Johnson’s top-secret security clearance was revoked; he
introduced no evidence concerning whether transfer to a non-sensitive
position was feasible; and, on these facts, there is no way to assess whether
Raytheon’s statements were false without necessarily assessing whether the
DOD CAF’s decision, which credited the Navy’s findings, was wrong.
Johnson simply cannot get around the reality that to show that Raytheon fired
him even though it knew the Navy’s findings were wrong would require
assessing the validity of the DOD CAF’s decision, which Egan and Perez
forbid. Accordingly, we lack subject-matter jurisdiction to consider
Johnson’s claims that Raytheon retaliated against him by monitoring him,
making false accusations about him to the Navy, and firing him.
B. Prima Facie Case of FCA Retaliation
Johnson’s remaining FCA retaliation claim—that Raytheon retaliated
against him when Slater told him to not share his concerns with the Navy—
is not barred by Egan, and we therefore proceed to the merits of this claim.
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Under the first step of the McDonnell Douglas framework, Johnson “must
first establish a prima facie case of retaliation by showing: (1) that he engaged
in protected activity; (2) that the employer knew about the protected activity;
and (3) retaliation because of the protected activity.” Musser, 944 F.3d at 561;
see also Diaz,
820 F.3d at 176 (describing elements of the prima facie case
somewhat differently). Raytheon did not dispute that Johnson engaged in
protected activity; however, it argued that Johnson’s purported act of
retaliation—Slater advising Johnson to not share his concerns with the
Navy—is not a materially adverse employment action that amounts to
retaliation. The district court agreed. 7 We agree as well.
“[A] retaliatory act must be ‘materially adverse, which . . . means it
well might have dissuaded a reasonable worker from’ engaging in protected
activity.” United States ex rel. Bias v. Tangipahoa Par. Sch. Bd., 816 F.3d 315,
326 (5th Cir. 2016) (second alteration in original) (quoting Halliburton, Inc.
v. Admin. Review Bd.,
771 F.3d 254, 259 (5th Cir.2014)). The FCA includes a
non-exhaustive list of examples of actionable retaliation, including
“discharge[ ], demot[ion], suspen[sion], threat[s, and] harass[ment].”
Id.
(alterations in original) (quoting § 3130(h)(1)).
Under certain circumstances, a request to cease protected conduct
may be a materially adverse action. See, e.g., Fallon v. Potter, 277 F. App’x
422, 428 (5th Cir. 2008) (unpublished). For example, Johnson cites Fallon,
277 F. App’x at 428, in which we held in the Title VII context that an issue
of material fact precluded summary judgment as to whether multiple direct
_____________________
7
Although the district court held Johnson’s claims for Raytheon monitoring him,
reporting his conduct to the Navy, and ultimately firing him were barred by Egan, it held in
the alternative that Johnson had not presented a prima facie case of retaliation as to these
three actions and that Johnson could not show Raytheon’s reasons for monitoring and
reporting him were pretextual. Because we hold these claims are barred by Egan, we need
not address these alternative holdings.
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No. 21-11060
statements from a supervisor to an employee to not file a discrimination
complaint could have dissuaded a reasonable employee from pursuing the
claim, and would therefore have constituted retaliation. In that case, the
employee’s direct supervisor told the employee: (1) “You just keep filing
those EEO complaints and I promise you one thing—there won’t be a person
in this post office to testify against me”; (2) “You need to call her [an EEOC
officer] and talk to her so you can drop this EEO”; (3) “You need to tell her
you don’t need redress . . . cause you’re canceling the EEO complaint;” and
“(4) You’ll never have anyone in this post office stand up for you. If you
continue to file these charges, I’ll show you what you’re up against.” Id. On
the other hand, in Hernandez v. Johnson,
514 F. App’x 492, 498–99 (5th Cir.
2013) (unpublished)—relied on by Raytheon—we distinguished Fallon,
affirming the grant of summary judgment for an employer on a Title VII
retaliation claim. There, the employee’s first-level supervisor called the
employee at home and stated “she felt threatened by [the employee] telling
her about his prior EEO activity.”
Id. at 495. We concluded this “single
statement that was not even a direct threat was not a materially adverse
employment action.”
Id. at 499. While these cases are unpublished and
nonbinding, they are persuasive. See Light-Age, Inc. v. Ashcroft-Smith,
922
F.3d 320, 322 n.1 (5th Cir. 2019) (per curiam) (noting our unpublished
opinions issued after January 1, 1996, are “persuasive authority”).
Here, Raytheon’s conduct is more similar to that in Hernandez.
Johnson points to two instances of a single Raytheon employee advising him
not to report his concerns to the Navy. These statements did not contain
threats, and Slater—the one who made these statements—was not Johnson’s
supervisor. Such conduct would not have “dissuaded a reasonable worker
from” reporting to the Navy. See Bias, 816 F.3d at 326 (quoting Halliburton,
771 F.3d at 259). Because Johnson failed to make out a prima facie case of
retaliation as a matter of law, summary judgment was appropriate.
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C. Rule 56(d) Request for Additional Discovery
Finally, Johnson argues that the district court abused its discretion in
denying his Rule 56(d) request for additional discovery. Rule 56(d) provides:
If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its
opposition, the court may: (1) defer considering the motion or
deny it; (2) allow time to obtain affidavits or declarations or to
take discovery; or (3) issue any other appropriate order.
According to Johnson’s Rule 56(d) declaration, his aim in seeking
additional discovery was largely to gather evidence that Raytheon knew that
he had not violated any security policies, both when it reported him to the
Navy and when it terminated him, as well as to gather evidence to dispute
that the Navy’s investigation was independent and to prove that its
conclusions were wrong. As explained, Johnson’s arguments that Raytheon
knew he had not violated security policies and that the Navy’s investigation
was based on false reports is barred by Egan, and the district court did not
abuse its discretion in denying related discovery because the evidence
requested would not have affected the court’s ruling on the motion as a
matter of law. See Smith, 827 F.3d at 423. As to Johnson’s sole claim that
survives Egan—that Raytheon retaliated against him in advising him not to
report his concerns to the Navy—Johnson has not cited to any specific facts
that he needed and was prevented from discovering that would create a
genuine dispute of material fact as to whether the action was materially
adverse. See
id. The district court did not abuse its discretion in denying
Johnson’s Rule 56(d) request.
IV. CONCLUSION
The judgment of the district court is AFFIRMED.
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No. 21-11060
Stephen A. Higginson, Circuit Judge, dissenting:
This case was argued in August of 2022. The parties will benefit
greatly from closure. So, I confine my dissent to disagreement with the
extension of Department of the Navy v. Egan, 484 U.S. 518 (1988) to bar
Article III judicial review from this private-sector, whistleblower
employment-termination dispute. See Zeinali v. Raytheon Co.,
636 F.3d 544,
549-52 (9th Cir. 2011) (explaining that “no case . . . has ever adopted a
bright-line rule as broad as the one suggested by Raytheon” because
“Raytheon’s approach would essentially immunize government contractors
from any liability in cases involving employees whose security clearances are
revoked or denied”). In Webster v. Doe,
486 U.S. 592, 603 (1988), the
Supreme Court clarified that Congress must speak clearly when it intends to
bar judicial review altogether. Indeed, scholarship that is critical of courts’
overexpansive interpretation of Egan points out that, “[a]s of 2019, a
staggering 2.5% of the entire civilian labor force—well over 4 million
people—have been adjudicated eligible to hold a clearance, of which over
2.94 million had access to classified information.” Max Jesse Goldberg,
Security-Clearance Decisions and Constitutional Rights, 132 Yale L.J.F. 55,
70 (2022). Because I would not extend Egan’s narrow statutory bar to
insulate from judicial review adverse actions taken by government
contractors—here, an allegedly pretextual and retaliatory action against a
whistleblower—I respectfully dissent.
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