Reply Brief — Mata v. Federal Bureau of Investigation

No. 95-1482

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

FERNANDO E. MATA,

Petitioner.

FEDERAL BUREAU OF INVESTIGATION, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

REPLY BRIEF IN SUPPORT OF THE PETITION

STEPHEN D. RABER’

DANIEL F. KATZ

WILLIAMS & CONNOLLY

725 12th St., N.W.

Washington, D.C. 20005

(202) 434-5000

Attorneys for Petitioner

*Counsel of Record

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TABLE OF AUTHORITIES

Cases:

Brazil v. Department of Navy, 66 F.3d. 193

(9th Cir. 1995), cert denied, 116 S. Ct.

SRee CE Se ee khew es

Bush v. Lucas, 462 U.S. 367 (1983) .........

Chappell v. Wallace, 462 U.S. 296 (1983) .....

Chevron, U.S.A. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)

Davis v. Passman, 442 U.S. 228 (1979) ......

Department of Navy v. Egan, 484 U.S. 518

SU ee ee ys eae sk Gk wk eK A

Furnco Constr. Corp. v. Waters, 438 U.S. 567

I gee th ees ae oP a

Guillot v. Garrett, 970 F.2d 1320 (4th Cir.

i) ear eg a ee ee eee

Hallstrom v. Tillamook County, 493 U.S. 20

Res rR a a 2 aging ao,

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976)

McDonnell Douglas Corp. v. Green, 411 U.S.

SE eo ee

Schweiker v. Chilicky, 487 U.S. 423 (1988) ....

South Dakota v. Bourland, 113 S. Ct. 2309

ing ghee Ste Serre on

United States Postal Serv. Bd. of Governors

v. Aikens, 460 U.S. 711 (1983) ..........

Webster v. Doe, 486 U.S. 592 (1988) ........

Statutes:

42 U.S.C. § 2000e-2(g) ..............0-..

42 U.S.C. § 2000e-16(a) .................

Miscellaneous:

EEOC: Policy Statement on National Security

Defense to Bias Charges, 8 Lab. Rel. Rep

(BNA) 405:6625 (May 1, 1989) ..........

Page

a)

i]

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

No. 95-1482

FERNANDO E. MATA,

Petitioner.

FEDERAL BUREAU OF INVESTIGATION, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

REPLY BRIEF IN SUPPORT OF THE PETITION

I.

The government concedes that the Fifth Circuit’s

construction of Title VII eliminates the third stage of the

McDonnell Douglas framework for proving Title VII claims.

Br. Opp. 8-9. See McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802-04 (1973). The government argues that this

result is compelled by a non-Title VII case, Department of

Navy v. Egan, 484 U.S. 518 (1988), and the "unanimous"

conclusion of two courts of appeals, including the Fifth

Circuit here. Br. Opp. 9-10.

The two decisions create an irreconcilable -- and

unnecessary -- conflict between Egan and McDonnell

Douglas. First, under McDonnell Douglas, a Title VII

“plaintiff must be given the opportunity to introduce evidence

4

ee

that the proffered justification [for the employment action] is

merely a pretext." Furnco Constr. Corp. v. Waters, 438 U.S.

567, 578 (1978) (emphasis added); see also United States

Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716

n.5 (1983). The government does nothing to reconcile this

fundamental conflict.

Second, the conflict is unnecessary given the plain,

unambiguous language of Title VII. Title VII states: "All

personnel actions affecting employees . . . in executive

agencies . . . shall be made free from any discrimination

based on race, color, religion, sex, or national origin." 42

U.S.C. § 2000e-16(a). From this all-inclusive coverage of

Title VII, Congress carved out an affirmative defense based

on "national security." 42 U.S.C. § 2000e-2(g). Using Egan,

the government attempts to add yet another exception based

on national security -- an implicit ouster of all jurisdiction.

However, this Court does not permit the judiciary to create

exceptions to the plain language of statutes where Congress

has not done so. Hallstrom v. Tillamook County, 493 U.S.

20, 26 (1993).

Notwithstanding Title VII’s unambiguous language and

statutory structure, the government argues that Congress has

not expressly provided for review of security clearance

decisions. Br. Opp. 10. However, the government offers no

explanation as to how Congress could have made its intent

any clearer. See South Dakota v. Bourland, 113 S. Ct. 2309,

2315-16 (1993) ("When Congress used the term ‘all claims,

rights, and demands’ of the Tribe . . . it meant a// claims,

' Another case cited by the government, Guillot v. Garrett,

970 F.2d 1320 (4th Cir. 1992), is not even a Title VII case. The

plaintiff there alleged that the Navy violated section 501 of the

Rehabilitation Act of 1973 "by terminating him because of his

alleged handicap of alcoholism and cocaine addiction." Jd. at

1323.

3

rights, and demands") (emphasis in original) (citation

omitted). Interpreting Title VII in accordance with its plain

language avoids any conflict between Egan and McDonnell

Douglas.’

II.

The Fifth Circuit’s interpretation of Title VII also

presents the "serious constitutional question" whether a

federal statute may be "construed to deny any judicial forum

for a colorable constitutional claim." Webster v. Doe, 486

U.S. 592, 603 (1988). Petitioner cannot bring a Bivens

action, argues the government, because Title VII is a kind of

statutory mirage: it exists to provide Petitioner his "exclusive

judicial remedy"; but it vanishes when Petitioner actually tries

to employ it, depriving all courts of all jurisdiction to remedy

violations of the Constitution. Br. Opp. 13-14.

The sweep of the Fifth Circuit’s holding is without

precedent in this Court. We are unaware of any case from

this Court, and the government cites none, holding that

> The government also does not dispute that Chevron

requires deference to the EEOC’s construction of Title VII. See

Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984). Even after Egan, courts are "not precluded

from determining whether the grant, denial or revocation of

security clearances is conducted in a nondiscriminatory manner."

EEOC: Policy Statement on National Security Defense to Bias

Charges, 8 Lab. Rel. Rep. (BNA) 405:6625, 405:6626 (May |,

1989). "Employers cannot, merely by invoking national security,

exempt themselves from coverage of the nondiscrimination

provisions of [Title VII].". /d. The EEOC cases cited by the

government, Br. Opp. 12 n.3, are consistent with this policy

Statement.

a a a a LLL LLL IOLA

—

4

Congress can deny any judicial forum for a violation of

fundamental constitutional rights.’

This Court always has required that some meaningful

relief be afforded those whose fundamental constitutional

rights have been violated. Thus, Title VII does not pre-empt

a Bivens action when the plaintiff is "unprotected by the

statute." Davis v. Passman, 442 U.S. 228, 247 (1979). This

Court accorded a non-Title VII judicial remedy for a claim of

federal employment discrimination to an alien who was not

protected by Title VII, Hampton v. Mow Sun Wong, 426 U.S.

88, 96 (1976), and provided a judicial remedy for a

homosexual who was not covered by Title VII,

notwithstanding the CIA’s argument that judicial review

would "entail extensive ‘rummaging around’ in the Agency’s

affairs to the detriment of national security." Webster, 486

U.S. at 604.

The government fails to distinguish Petitioner’s case

from Davis or Webster. First, the government claims that,

"unlike Petitioner,” the plaintiff in Davis was “excluded

entirely from the protection of Title VII and had no statutory

remedy at all." Br. Opp. 14. The government nowhere

explains how Petitioner is "protected" by Title VII when that

* Congress surely has the power to narrow the remedies

afforded a plaintiff for violations of constitutional rights. See,

e.g., Chappell v. Wallace, 462 U.S. 296, 302-03, 305 n.2 (1983)

(refusing to allow Bivens actions by military personnel against

military superiors but noting the availability of statutory

provisions for redress); Bush v. Lucas, 462 U.S. 367, 368, 387

(1983) (refusing Bivens action where statute provides

"meaningful remedies against the United States," including a

"trial-type hearing"); Schweiker v. Chilicky, 487 U.S. 423 (1988).

But Congress cannot eliminate them altogether.

Ww

statute provides him no remedy; and the government does not

identify any other statutory remedy available to Petitioner.’

Second, the government distinguishes Webster on the

sole basis that the equitable relief sought in that case,

"reinstatement," is different from the damages and equitable

relief sought in this one. Br. Opp. 14-15. That trivial

distinction actually undermines the government’s argument,

because the remedies sought by Petitioner are far less

intrusive on the government than the reinstatement remedy

sought by the Webster plaintiff. More importantly, the

relevant question is whether the Constitution allows Congress

to eliminate a// judicial remedies for the government’s

violation of a person’s rights under the First and Fifth

Amendments. Webster and Davis hold that it does not, even

when the interests at stake (sexual orientation and gender) fall

on the periphery of constitutional rights. The violations here

-- retaliation and racial discrimination -- go to the core of our

constitutional rights, and require some meaningful judicial!

remedy.”

* Petitioner had no opportunity to examine documents, call

witnesses, cross-examine witnesses, or participate in an

evidentiary hearing. His fate was left in the hands of those who

were found to have discriminated against him. Accordingly, the

government cannot legitimately claim that Petitioner "had the

benefit of" any meaningful remedy. Br. Opp. 15.

> The government also seeks to avoid this issue by arguing

that, although a Bivens action was expressly alleged in the

Second Amended Complaint, R. 57, Petitioner failed properly to

plead one. Br. Opp. 12. The government made the same

argument in both the District Court and the Court of Appeals,

and both courts rejected the argument and addressed the Bivens

issue. Pet. App. 4a, 8a-9a. This Court should do the same.

ee

6

ill.

Finally, the government tries to redefine Petitioner’s

claim as "a review of a security clearance" so that the FBI

can hide behind the protection of Egan. However,

Petitioner’s claim is about retaliation, not the revocation of

a security clearance.°

For fifteen years Petitioner had a spotless record at the

FBI. Nothing happened to him until he joined the Perez class

action. After that he was berated in front of his fellow

agents, threatened in connection with his testimony, made the

subject of an investigation, and fired. Pet. at 4-7.

The FBI’s investigation found that Petitioner had not

violated any laws, or any internal rules, regulations, policies

or procedures of the FBI or DOJ. See Pet. 5-6. Thus, in its

own internal memorandum, the FBI concluded that “all

logical investigation has been completed in an attempt to

verify these allegations [against Petitioner], without result."

R. 273 (emphasis added); see Pet. S.

Nevertheless, instead of dropping the matter, the FBI

continued its retaliation. Contrary to the government’s

assertions, the court need not scrutinize the merits of the

revocation decision to conclude that the FBI’s decision to go

forward was merely a pretext. The court could find that the

FBI continued its investigation of Petitioner -- after all /ogical

investigation had been completed, and after the FBI had

admitted that Petitioner had done nothing wrong -- only

because Petitioner dared to join the Hispanic agents in their

successful Title VII suit against the FBI.

* The government distorts the record in an attempt to portray

Petitioner as someone who, after a distinguished career, suddenly

and inexplicably went on a binge of unauthorized disclosures.

Contrary to the government’s assertions, see Br. Op. 3-4,

Petitioner did not "admit" the FBI’s allegations of wrongdoing;

in fact, he has consistently denied them. See R. 174-77, 203.

7

Citing Brazil v. Department of Navy, 66 F.3d 193 (9th

Cir. 1995), cert. denied, 116 S. Ct. 1317 (1996), the

government argues that there is no reason for the Court to

review this case. Br. Opp. 7. Far from it. The undisputed

retaliation against Petitioner distinguishes this case from

Brazil. In Brazil, no actionable events had occurred before

the revocation to show that it was a pretext. The court would

have had to evaluate the merits of the revocation decision

because that decision was the only action challenged by the

plaintiff. /d. at 197. In other words, had the Navy chosen

not to revoke the plaintiff's security clearance, he would have

had no claim.

Here, by contrast, Petitioner obtained a judgment against

the FBI for racial discrimination. The FBI retaliated against

him for having done so, and the revocation came merely as

a finishing touch to a course of retaliatory conduct. Had the

FBI decided not to revoke Petitioner’s security clearance, the

court would have had jurisdiction over Petitioner’s claims

based on the earlier retaliation. The subsequent revocation of

Petitioner's security clearance does not -- like a magic wand -

- make the court’s jurisdiction disappear. The government

offers no reason why Petitioner should have no remedy for

the actionable retaliation that occurred before, and

independent of, the revocation decision.

Moreover, based on the FBI’s own documents, the court

can determine that the FBI never could have gotten to the

point of even considering Petitioner’s security clearance,

unless it had a retaliatory motive. Thus, irrespective of the

proffered reasons for the revocation decision, Petitioner can

show pretext based on the FBI’s tr» »ment of him before he

joined Perez, the FBI’s reaction to his participation in Perez,

the timing of the FBI’s actions, the FBI’s conduct against

other persons who, after investigation, have been found to

have done nothing wrong, and the FBI’s general policy and

8

practice with respect to minorities. See McDonnell Douglas,

411 U.S. at 804-05 (1973).

CONCLUSION

For the reasons stated, certiorari should be granted.

Respectfully submitted,

STEPHEN D. RABER*

DANIEL F. KATZ

WILLIAMS & CONNOLLY

725 12th STREET, N.W.

WASHINGTON, D.C. 20005

(202) 434-5000

Attorneys for Petitioner

May 22, 1996

* Counsel of Record