The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-10586
Non-Argument Calendar
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D.C. Docket No. 5:14-cv-02489-RDP
AMY MURPHY,
Plaintiff-Appellant,
versus
SECRETARY, U.S. DEPARTMENT OF THE ARMY,
Defendant-Appellee.
__________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(April 18, 2019)
Before MARTIN, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Amy Murphy appeals the district court’s order dismissing her discrimination
claims under the Rehabilitation Act of 1973, 29 U.S.C. § 291 et seq., and affirming
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the Merit System Protection Board’s (“MSPB”) decision in her mixed case
complaint alleging three claims of disability discrimination and one
non-discrimination claim challenging the MSPB’s decision upholding the
Department of the Army’s (“DOA”) act of removing Murphy from federal service.
First, Murphy argues that the district court erred in determining that it lacked
jurisdiction over her discrimination claims under Department of Navy v. Egan, 484
U.S. 518 (1988), because her claims implicated the DOA’s decision to suspend and
revoke her security clearance. Next, she argues that the district court abused its
discretion by denying her two motions to amend her complaint. Lastly, she argues
that the district court erred by affirming the MSPB’s decision affirming the DOA’s
determination to remove her from federal service because the DOA committed
harmful procedural errors and rendered an unreasonable decision.
I.
The Rehabilitation Act bars the federal government from discriminating
against persons with disabilities under the Americans with Disabilities Act of
1990. 29 U.S.C. § 791(f). The Americans with Disabilities Act prohibits
discrimination against a qualified individual on the basis of disability with regard
to certain employment decisions. 42 U.S.C. § 12112(a). A qualified employee is
one who is able to satisfy all of the job’s requirements, with or without
accommodation. Southeastern Community College v. Davis, 442 U.S. 397, 406
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(1979). Prohibited discrimination includes the employer’s failure to make
reasonable accommodations for an employee’s physical or mental limitations
unless the employer can demonstrate that the accommodation would impose an
undue hardship. 42 U.S.C. § 12112(b)(5)(A). Reasonable accommodation may
include reassignment to a vacant position with the same employer if the individual
can perform the “essential functions” of the new job to which he seeks
reassignment. Id. §§ 12111(8), (9).
We review de novo a district court’s grant of a motion to dismiss for lack of
subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Barbour v. Haley, 471
F.3d 1222, 1225 (11th Cir. 2006). It is a plaintiff’s burden to allege, with
particularity, facts necessary to establish jurisdiction. Morrison v. Allstate Indem.
Co., 228 F.3d 1255, 1273 (11th Cir. 2000). Factual findings concerning
subject-matter jurisdiction made by the district court are overturned only if clearly
erroneous. Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1238 (11th Cir. 2002).
Under clear error review, the district court’s determination must be affirmed so
long as it is plausible in light of the record viewed in its entirety. Commodity
Futures Trading Com’n v. Gibraltar Monetary Corp., Inc., 575 F.3d 1180, 1186
(11th Cir. 2009).
There are two forms of attack on subject-matter jurisdiction under Rule
12(b)(1): facial attacks and factual attacks. Morrison v. Amway Corp., 323 F.3d
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920, 924 n.5 (11th Cir. 2003). A facial attack on the complaint requires the court
merely to look and see if the plaintiff has sufficiently alleged a basis of
subject-matter jurisdiction. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511
(5th Cir. 1980).1 A factual attack, however, challenges the existence of
subject-matter jurisdiction in fact, irrespective of the pleadings, and matters outside
the pleadings, such as testimony and affidavits, are considered. Id. On a factual
attack, no presumptive truthfulness attaches to the plaintiff’s allegations, and the
existence of disputed material facts will not preclude the trial court from evaluating
for itself the merits of jurisdictional claims. Lawrence v. Dunbar, 919 F.2d 1525,
1529 (11th Cir. 1990). The court, consistent with its “substantial authority” to
weigh evidence related to jurisdiction, may adjudicate a factual challenge under
Rule 12(b)(1) without converting the motion to one brought under Rule 56 where
“the facts necessary to sustain jurisdiction do not implicate the merits of plaintiff’s
cause of action.” Morrison, 323 F.3d at 925. Where, as here, the underlying
elements of Murphy’s claims are not implicated by the challenge, the court is free
to weigh the evidence and satisfy itself as to the existence of its power to hear the
case. Scarfo v. Ginsberg, 175 F.3d 957, 960-61 (11th Cir. 1999).
1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), this Court
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
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Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994). There is a presumption that every
federal court is without jurisdiction unless the contrary affirmatively appears from
the record. United States v. Rojas, 429 F.3d 1317, 1320 (11th Cir. 2005). A court
must dismiss an action if it determines at any time that it lacks subject-matter
jurisdiction. Fed. R. Civ. P. 12(h)(3). A motion under Federal Rule of Civil
Procedure 12(b)(1) allows a party to assert a defense of lack of subject-matter
jurisdiction. See Fed. R. Civ. P. 12. The burden of proof on a motion to dismiss
for lack of subject-matter jurisdiction is on the party asserting jurisdiction.
Morrison, 228 F.3d at 1273.
In Egan, the Supreme Court held that no reviewing court has authority to
review the substance of an underlying security clearance determination when
reviewing an adverse employment action. See Egan, 484 U.S. at 526-31. This is
because 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. The authority to protect national
security information falls on the President. Id. Further, the Supreme Court
observed that it should be obvious that no one has a right to a security clearance,
because the grant of a clearance requires an affirmative act of discretion on the part
of the granting official. Id. at 528. The act of discretion does not equate with
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passing judgment upon an individual’s character—instead, it is only an attempt to
predict her possible future behavior and to assess whether, under compulsion of
circumstances or for other reasons, she might compromise sensitive information.
Id. Thus, the grant or denial of security clearances is an inexact science at best,
and predictive judgments of this kind must be made by those with the necessary
expertise in protecting classified information. Id. at 529. Accordingly, it is not
possible for a court to review the substance of such a judgment and decide whether
the agency should have been able to make the necessary affirmative prediction
with confidence or determine what constitutes an acceptable margin of error in
assessing the potential risk. Id.
We have noted that Egan “made clear that a decision concerning the
issuance or non-issuance of security clearance is a matter within the purview of the
executive and not to be second-guessed by the judiciary unless Congress has
specifically provided otherwise.” Hill v. White, 321 F.3d 1334, 1336 (11th Cir.
2003). Moreover, we have extended Egan to apply not only to final denials or
revocations of security clearances, but also to decisions made at the suspension or
investigatory stage, determining that 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. Id.
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There is no independent cause of action for bad faith interactive process.
Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997). This is because an
employee’s claim that her employer took adverse action against her by failing to
engage her in an interactive process merely reclothes her discrimination claim.
Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1261 (11th Cir. 2001).
Here, the district court did not err in determining that Egan precluded it from
exercising jurisdiction over Counts One, Two, or Three, because each of these
claims would require the court to second-guess the DOA’s suspension and
revocation of Murphy’s security clearance, regardless of how Murphy
characterized the issue. See Egan, 484 U.S. at 526-31; Hill, 321 F.3d at 1336.
II.
A district court’s denial of a motion to amend a complaint is reviewed for abuse of
discretion, although the underlying legal conclusion of whether a particular
amendment to the complaint would be futile is reviewed de novo. Corsello v.
Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005). Once 21 days have passed
since filing a complaint, a party may amend her pleading only with the opposing
party’s written consent or the court’s leave. Fed. R. Civ. P. 15(a)(2). The court
should freely give leave when justice so requires, in the absence of any apparent or
declared reason such as undue delay or futility of amendment. Foman v. Davis,
371 U.S. 178, 182 (1962). We have held that a district court may properly deny
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leave to amend the complaint when such amendment would be futile. Hall v.
United Ins. Co. of Am., 367 F.3d 1255, 1262-63 (11th Cir. 2004). The denial of
leave to amend is justified by futility when the complaint as amended is still
subject to dismissal. Id. at 1263.
Here, the district court did not abuse its discretion in denying Murphy’s
motions to amend her complaint because the amendments she sought to impose
were futile in light of our determination that the district court lacked jurisdiction
over her claims under Egan, and her second motion to amend was untimely under
the court’s scheduling order. Foman, 371 U.S. at 182; Hall, 367 F.3d at 1262-63.
III.
Where a federal employee brings a “mixed case,” appealing an adverse personnel
action from the MSPB and asserting claims of discrimination, the
non-discrimination claims are reviewed on the administrative record using an
arbitrary and capricious standard of review. Kelliher v. Veneman, 313 F.3d 1270,
1274-75 (11th Cir. 2002). The MSPB’s findings or conclusions will only be set
aside if they are (1) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by substantial evidence. 5
U.S.C. § 7703(c). The MSPB accords considerable deference to the agency’s
penalty determination and is permitted to modify a penalty only where the
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agency’s judgment clearly exceeded the bounds of reasonableness or the agency
failed to conscientiously consider relevant mitigating factors. Douglas v. Veterans
Admin., 5 M.S.P.B. 313, 332-33 (1981).
Harmful procedural error constitutes an affirmative defense to the agency
action if the employee shows harmful error in the application of the agency’s
procedures in arriving at such decision. 5 U.S.C. § 7701(c)(2)(A). Harmful error
is error by the agency in the application of its procedures that is likely to have
caused the agency to reach a conclusion different from the one it would have
reached in the absence of the error. 5 C.F.R. § 1201.4(r). The employee carries
the burden of showing that the error caused substantial harm or prejudice to the
employee’s rights. Id.
Here, Murphy has failed to meet her burden to show that the DOA
committed a harmful procedural error that caused her substantial harm or
prejudiced her rights. See 5 C.F.R. § 1201.4(r). We reject as wholly without merit
Murphy’s attempt to show procedural errors, or that any such errors caused the
agency to reach an incorrect conclusion. Additionally, Murphy has not shown that
the MSPB’s decision affirming the DOA’s determination to remove her from
federal service was unsupported by substantial evidence, was a decision made after
failing to follow proper procedures, or was arbitrary or capricious. See 5 U.S.C.
§ 7703(c).
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Accordingly, the decision of the district court is AFFIRMED.
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