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Dubuque v. The Boeing Co.

United States District Court, E.D. Missouri, Eastern Division

March 30, 2018

MARK W. DUBUQUE, Plaintiff,



         This removed matter is before the Court on the motion of defendant The Boeing Company (“Boeing”) to dismiss plaintiff's Petition for Wrongful Discharge (Public Policy Exception) (“Petition”) pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff opposes the motion and it is fully briefed. For the following reasons, the Court concludes it has subject matter jurisdiction over this matter and will therefore deny Boeing's Rule 12(b)(1) motion, but will grant its alternative Rule 12(b)(6) motion and dismiss the Petition for failure to state a claim upon relief can be granted.

         I. Background

         A. Plaintiff's Employment and the AFOSI Investigation

         Plaintiff Mark W. Dubuque (“plaintiff”) was employed by Boeing as an at-will employee until his termination on February 29, 2016. Prior to December 2013, plaintiff possessed active Special Action Program (“SAP”) clearances and access for purposes of his highly classified work at Boeing.[1] Plaintiff alleges that in February 2013, Boeing acquired the Acalis microprocessor business on the recommendation of Chris Wedewer, a Boeing executive in Special Programs within the Global Strike division of Boeing Military Aircraft. Wedewer was the supervisor of plaintiff's supervisor, Chris Burns. Acalis became a division of Boeing and a press release described its microprocessors as containing “unique hardware and software that can guard mission-critical onboard systems in Boeing platforms.”

         Plaintiff alleges that Wedewer's reputation, performance goals, and executive compensation were dependent on the success and longevity of the Acalis microprocessor chips, revenue generated from the sale of the chips, and Boeing's ability to integrate Acalis into other Boeing projects. Some of plaintiff's unclassified job duties included working with commercial industries to mature anti-tamper technology and to recommend to Boeing anti-tamper solutions. In the scope of those duties, plaintiff on numerous occasions informed Wedewer and other employees at Boeing sites outside of St. Louis that a third party (the “Third Party”) had a part that was cheaper, more flexible and reliable, and had better performance than Boeing's Acalis chips. Plaintiff alleges Wedewer and Burns immediately began treating him differently after he made these statements.

         On November 21, 2013, Boeing requested that plaintiff meet with a customer on November 26, 2013. On November 26, 2013, plaintiff entered a room expecting to meet with a customer and instead found two agents from the Air Force Office of Special Investigations (“AFOSI”). The agents interrogated plaintiff for approximately six hours about his relationship with the Third Party and accused him of disclosing classified information and deleting documents from his computer. On the same date, the agents went to plaintiff's home to take and copy his work and personal computers.

         On December 10, 2013, AFOSI agents returned to Boeing and conducted a lengthy polygraph examination of plaintiff. During the polygraph, plaintiff was asked, among other things, about his relationship with the Third Party, whether he had mishandled classified data, whether he had deleted files from his computer, and whether he was trying to “sabotage” his program. At the conclusion of the polygraph, the agents accused plaintiff of lying to them and told him his SAP access and clearances were suspended. On December 20, 2013, AFOSI sent a Memorandum to Boeing officially notifying it of an ongoing AFOSI investigation involving plaintiff (the “AFOSI Memo”). The AFOSI Memo stated in pertinent part: “[Plaintiff's] access to all Special Access Programs (SAPs) information and areas under AFOSI security cognizance is removed. [Plaintiff] will remain in this status pending the completion and review of the AFOSI investigation. This action is temporary and not authorization to debrief [plaintiff].” Pet., Ex. A (Doc. 5).

         The AFOSI investigation continued into 2014 or 2015. In the meantime, plaintiff performed non-SAP duties at Boeing and was given no information about the status of the investigation. Between December 2013 and January 2016, Boeing told plaintiff upon his inquiries that the AFOSI investigation was instigated as a result of issues raised by the United States Government, not by Boeing. In March 2015, plaintiff filed Freedom of Information Act (“FOIA”) requests with AFOSI and the Department of the Air Force, seeking information and documents relating to his SAP clearance and the AFOSI investigation. In January 2016, plaintiff obtained the AFOSI investigation file and learned that it was Boeing, through Wedewer and Burns, that instigated the AFOSI investigation. Plaintiff learned Wedewer and Burns had made false statements to AFOSI that plaintiff had improper relationships with the Third Party, unlawfully disclosed classified information, and unlawfully deleted files from his computer. Plaintiff also learned that after extensive investigation, AFOSI found no evidence of wrongdoing by plaintiff. Only upon receiving the AFOSI file did plaintiff learn of the existence of the December 20, 2013 AFOSI Memo sent to Boeing.

         B. SAP Programs Generally and the Debriefing Process

         According to the Petition, the genesis of the SAP program is Executive Order 12829 signed by President George H.W. Bush on January 6, 1993 (“1993 EO”), which expanded an earlier Executive Order No. 10865, signed by President Eisenhower on February 20, 1960 (“1960 EO”).

         The 1993 EO provides:

This order establishes a National Industrial Security Program to safeguard Federal Government classified information that is released to contractors, licensees, and grantees of the United States Government. To promote our national interests, the United States Government issues contracts, licenses, and grants to nongovernment organizations. When these arrangements require access to classified information, the national security requires that this information be safeguarded in a manner equivalent to its protection within the executive branch of Government.

         The 1993 EO and 1960 EO are implemented by specific Department of Defense (“DoD”) Directives, Instructions and Operating Manuals, including, but not limited to:

a. DoD Directive 5205.07, “Special Access Program (SAP) Policy, ” (July 1, 2010);
b. DoD Instruction 5205.11, “Management, Administration, and Oversight of DoD Special Access Programs (SAPs), ” (February 6, 2013);
c. DoD Manual 5205.07, Volumes 1-4, DoD Special Access Program (SAP) Security Manual;
d. DoD Instruction 5220.22, “National Industrial Security Program (NISP), ” (March 18, 2011); and
e. DoD 5220.22-M, “National Industrial Security Program Operating Manual, ” (February 28, 2006) as revised, amended, supplemented and changed thereafter, including its supplement DoD 5220.22-M-Sup-1.

         Under the authority of DoD Instruction 5220.22, the Department of Defense promulgated DoD Manual 5220.22-M, entitled the National Industrial Security Program Operating Manual (“NISPOM”), a manual of specific rules and instructions governing the performance and operation of contracts dealing with classified national security information. The NISPOM, though still operative law, was supplemented by another DoD publication known as the NISPOM Supplement (DoD 5220.22-M-Sup-1). Pet. ¶¶ 13-16.

         The NISPOM, NISPOM Supplement, and the SAP Security Manual (DoD Manual 5205.07) define “debriefings, ” and describe what they consist of, how they are performed, when they are performed and where they are to take place. The NISPOM Supplement defines a debriefing as “[t]he process of informing a person his need-to-know for access is terminated.” NISPOM §3-108 states when debriefing can take place:

Contractors shall debrief cleared employees at the time of termination of employment (discharge, resignation or retirement); when an employee's PCL [personal security clearance] is terminated, suspended or revoked; and upon termination of the FCL [Facility Security Clearance].

         NISPOM Supplement §3-104 states who is to do the debriefing and what it shall consist of:

Debriefing and/or Access termination. Persons briefed to SAP's will be debriefed by the CPSO [Contractor/Command Program Security Officer] or his designee. The debriefing will include as a minimum a reminder of each individual's responsibilities according to the NDA which states that the individual has no Program or Program-related material in his/her possession, and that he/she understands his/her responsibilities regarding the disclosure of classified Program information.

         SAP debriefings are similarly defined by the DoD Manual 5205.07, SAP Security Manual, Vol. 2, Encl. 3, Sec. 13 (Nov 24, 2015).

         The Petition alleges that the JAFAN 6/0 Manual, Special Access Program Security Manual, §3-102 (May 29, 2008), and DoD Manual 5205.07, SAP Security Manual, Vol. 2, Encl. 3, Sec. 13 (Nov 24, 2015), provide that at a debriefing, the debriefed individual is (a) reminded of his obligations not to disclose classified information; (b) reminded of the penalties for espionage; © told where to report suspected Foreign Intelligence Service contacts; (d) told what he/she can and cannot discuss or place in resumes and applications for security clearances; (e) asked to verify the return of any and all SAP classified material; (f) given the ability to ask questions and receive substantive answers from the person providing the debriefing; and (g) reminded of his/her responsibilities under the SAPIA (Special Access Program Indoctrination Agreement).[2]

         NISPOM Supplement §3-104 states where debriefings should take place: “Debriefings should be conducted in SAPF [Special Access Program Facility], Sensitive Compartmented Information Facility or other secure area where possible, or as authorized by the PSO [Program Security Officer].” JAFAN 6/0, §3-102 similarly states: “Debriefings will be conducted in a SAPF or other secure area when possible, as authorized by the PSO.”

         NISPOM §6-201.b and §6-201.c(2) address where classified information at various levels may be discussed, and the requirements for persons in attendance when classified information is discussed:

Location of meetings. Classified sessions shall be held only at a Federal Government Installation or a cleared contractor facility where adequate physical and procedural controls have been approved. The authorizing government agency is responsible for evaluating and approving the location of the proposed meeting.
Clearance and Need-to-know. All persons in attendance at classified sessions shall possess the requisite clearance and need to know for the information to be disclosed. Need-to-know shall be determined by the authorizing agency or its designee based on the justification provided. Attendance shall be authorized only to those persons whose security clearance and justification for attendance have been verified by the security officer of the organization represented. The names of all authorized attendees or participants must appear on an access list with entry permitted to the classified session only after verification of the attendees' identity based on presentation of official photographic identification such as a passport, contractor or U.S. Government identification card.

         The DoD Special Access Program (SAP) Security Manual, DoD Manual 5205.07 Vol 3, Encl. 3, addresses who may enter a SAP Facility (“SAPF”): “When a SAPF... [is] operational, only appropriate accessed SAP indoctrinated individual(s) will occupy them.” Pet. ¶¶ 51-60.

         C. Boeing's Directive that Plaintiff Debrief, His Refusal, and Termination

         Beginning in 2015, Boeing repeatedly directed that plaintiff be debriefed on his SAP programs and that the debriefing occur in a classified SAP room. Boeing sought to debrief plaintiff on the SAP for economic reasons. Boeing's Program Manager requested that plaintiff be debriefed because his suspension from SAP access had not been resolved, and the Program Manager needed the “program billet” for other personnel to support the Special Access Programs.[3] Until plaintiff was debriefed, the Program Manager could not submit anyone else to replace him on the SAP because the billet structure required a one-for-one swap of personnel in the program billet, and there were no exceptions to the customer policy. Even if a person was in suspended status, the suspended person's position was counted against the billet structure. Due to the uniqueness and minimal billets the Program Manager had on the Special Access Programs, he could not afford to have a currently non-contributing individual holding a billet.

         Plaintiff, verbally and through communications from his counsel, repeatedly informed Boeing that it would be unlawful for him to be debriefed at that time and to enter a SAP room - although Boeing told him he could enter with an escort - because his SAP access was suspended. Pet., Ex. B at 1-2. Plaintiff himself informed Boeing that because his SAP access was suspended, he could not be debriefed at all, and could not enter a SAP classified room. Plaintiff also told Boeing that even if he could be debriefed, his SAP suspension precluded him from asking the questions and receiving the substantive answers he was authorized to ask for and receive under the SAP debriefing protocols and regulations. Plaintiff repeatedly told Boeing verbally and in writing that he would not debrief, because he refused to violate any laws or mandates of AFOSI by agreeing to be debriefed in a SAP classified room and while his SAP access was suspended.

         Boeing told plaintiff that if he refused to debrief, it would take “corrective action” and report his refusal to the U.S. Government, which would negatively affect all of plaintiff's security clearances and prevent him from obtaining work in the future that required a security clearance. Plaintiff took two separate medical leaves from Boeing in the fall of 2015 due to distress over Boeing's treatment of him and the AFOSI investigation.

         On February 20, 2016, before plaintiff returned to work after his second medical leave, he filed a lawsuit in state court seeking a declaratory judgment that Boeing had no right to debrief him, and that it would be illegal for Boeing to brief him in a SAP room while his SAP access was suspended, or to take adverse employment action against him for his refusal to debrief under those circumstances. Pet., Ex. C. Plaintiff returned to work on February 22, 2016 and Boeing immediately directed that plaintiff debrief while his SAP access was suspended and in a SAP room, or face adverse employment action if he refused. Boeing scheduled plaintiff's SAP program debriefing to take place in a SAP room on February 25, 2016 at 11:00 a.m.

         On February 24, 2016 and the morning of February 25, 2016, plaintiff provided various Boeing managers and Corporate Governance with a copy of the state court lawsuit, but one of his supervisors, Jennifer Splaingard, insisted that he debrief and stated that if he did not, she would take action. Splaingard and a Human Resources (“HR”) representative told plaintiff that if he did not debrief as scheduled, he “may be administratively debriefed and the process would make [plaintiff] unemployable.” Plaintiff asked for clarification that the U.S. Government would permit him to enter a SAP room while his SAP was suspended, but Splaingard and the HR representative refused to respond. On February 25, 2016, plaintiff sent an email to various Boeing managers memorializing his conversation with Splaingard and the HR representative, and stating that on the advice of counsel he would not participate in the debriefing scheduled for that morning. Pet., Ex. D.

         In response to plaintiff's refusal to debrief, Boeing issued plaintiff an Employee Corrective Action Memo dated February 25, 2016 (the “Memo”), that stated in pertinent part, “It has been determined that you failed to comply with management direction on February 25, 2016. Specifically, you failed to comply with the security debriefing process for special program access. The company deems this unacceptable and it will not be tolerated. We will proceed with further corrective action if you do not comply with the security debriefing process by Monday, February 29, 2016.” Pet., Ex. E. Both Boeing Management and plaintiff were to sign the Memo. Above plaintiff's signature on the memo, he wrote, “I will debrief as soon as it can be accomplished with legal certainty (US Govt Letter).” Boeing notified plaintiff he would be debriefed in a SAP room on February 29, 2016 at 9:00 a.m., and Splaingard sent him home on February 25, 2016 until February 29, 2016 without pay. Splaingard informed plaintiff that if he did not debrief on February 29, 2016, Boeing would start the termination process.

         On February 29, 2016, plaintiff sent an email to Splaingard and other Boeing managers, reminding Boeing that plaintiff and his attorneys had repeatedly asserted he could not debrief from SAP programs while suspended. Plaintiff's email stated, among other things, that he knew “violating the suspended access is potentially criminal. As a result, I cannot debrief today.” Pet., Ex. F. In response to plaintiff's refusal to debrief, he was summoned to Splaingard's office. A Human Resources employee was also present. Splaingard informed plaintiff that he was terminated as an employee of Boeing.

         Boeing issued plaintiff an Employee Corrective Action Memo dated February 29, 2016 that stated in pertinent part, “It has been determined that you failed to comply with management direction on February 29, 2016. Specifically, you failed to comply with the security debriefing process for special access programs. The company deems this unacceptable and it will not be tolerated . . . As a result of repeated violations for failing to comply with management direction, you are hereby discharged from the Boeing Company effective Monday, February 29, 2016.” Pet., Ex. G. Above his required signature on this Memo, plaintiff wrote, “This is a request to perform a potentially criminal act.” Below his signature, plaintiff wrote, “I cannot violate the agent (govt) direction related to SAP suspension. This has been relayed in many communications from Attorney to Attorney.”

         On March 8, 2016, Boeing reported to the Defense Security Service that plaintiff “was terminated for cause due to his failure to comply with management directions with security debriefing process for special program access.” Boeing's report was logged in the Federal Government Joint Personnel Adjudication System.

         D. Plaintiff's Initiation of this Action

         Plaintiff's termination from employment rendered moot his lawsuit seeking a declaration that Boeing could not take adverse action against him for refusing to debrief, and he dismissed that action without prejudice. Plaintiff filed the instant Petition for Wrongful Discharge (Public Policy Exception) in state court on August 21, 2017. Boeing removed the case to this Court on September 12, 2017, on the basis of federal question jurisdiction, 28 U.S.C. § 1331; diversity of citizenship jurisdiction, 28 U.S.C. § 1332;[4] and the federal officer removal statute, 28 U.S.C. § 1442(a)(1).

         In the Petition, plaintiff asserts he had repeatedly informed Boeing, and reasonably believed, that it would have been a serious violation of federal law, statutes, regulations, guidelines, rules, directives, issuances, and manuals, and thus a violation of well established and clearly mandated and defined public policy, for him to take any of the following actions:

a. Debrief from his SAP program while his SAP access was suspended;
b. Enter a SAP room while his SAP access was suspended; and
c. Debrief from his SAP Program and enter a SAP room, after AFOSI expressly notified Boeing that it was not authorized to debrief [plaintiff] and that [plaintiff's] SAP access was suspended.

Pet. ¶ 101.a-.c. The Petition also alleges it would have been a serious violation of federal law, statutes, regulations, guidelines, rules, directives, issuances, and manuals, and thus a violation of well established and clearly mandated and defined public policy, for Boeing to debrief plaintiff “while his SAP access was suspended, in a SAP room and while the AFOSI had expressly directed Boeing not to debrief” him. Pet. ¶ 102.

         Plaintiff's Petition cites numerous sources to support his allegations that the foregoing three actions would be illegal: Sections of the NISPOM and NISPOM Supplement; of JAFAN 6/0; of Executive Order 13526 (Dec. 19, 2009); of DoD Instruction 5205.11; of DoD Manual 5205.07, Vols. 1, 2, and 3; 18 U.S.C. § 793(d), (f), and (g); 18 U.S.C. § 371; Adjudicated Guidelines for Determining Eligibility for Access to Classified Information, 32 C.F.R. Part 147, Subpart A, § 147.13; sections of Air Force Instruction 16-701; and the AFOSI Memo dated December 20, 2013. Pet. ¶¶ 102, 102.a.-102.k.

         Plaintiff contends that he was discharged by Boeing because he engaged in the protected activity of refusing to engage in the three specified actions and thus violate the law and well established and clearly mandated public policy as set forth in the above-referenced federal law, statutes, regulations, guidelines, rules, directives, issuances, and manuals. Plaintiff asserts that as a result of the discharge, he has suffered past and future lost income and compensation and benefits of employment, emotional and mental distress, and medical bills. Plaintiff also seeks punitive damages.

         II. Legal Standards

         A. Motion to Dismiss for Lack of Subject Matter Jurisdiction - Rule 12(b)(1)

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the federal court's subject matter jurisdiction over the plaintiff's cause of action. Fed.R.Civ.P. 12(b)(1). Without subject matter jurisdiction, district courts have no judicial power to do anything other than dismiss a case in its entirety. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). “Jurisdiction is power to declare the law, and without jurisdiction the court cannot proceed at all in any cause.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999) (quotation marks, brackets, and quoted case omitted). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).

         The federal courts have subject matter jurisdiction under 28 U.S.C. § 1331 to hear “only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.” Franchise Tax Bd. v. Const. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983). A complaint presents a question of federal law when the right to recovery under the complaint “will be supported if the Constitution or laws of the ...

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