Gonzales v. Battelle Energy Alliance, LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROMAN T. GONZALES, No. 25-1037

D.C. No.

Plaintiff - Appellee,

4:20-cv-00102-

BLW

v.

BATTELLE ENERGY ALLIANCE,

LLC, OPINION

Defendant - Appellant.

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, District Judge, Presiding

Argued and Submitted February 4, 2026

Portland, Oregon

Filed April 16, 2026

Before: Carlos T. Bea, Morgan B. Christen, and Roopali H.

Desai, Circuit Judges.

Opinion by Judge Christen

2 GONZALES V. BATTELLE ENERGY ALLIANCE, LLC

SUMMARY *

Employment Discrimination

The panel affirmed the district court’s judgment after a

jury trial in favor of Roman Gonzales in his action under the

Americans with Disabilities Act against Batelle Energy

Alliance, LLC.

Batelle contracts with the United States Department of

Energy to manage the Idaho National Laboratory, where the

government stores spent nuclear fuel. Batelle revoked

Gonzales’s fitness-for-duty certification and terminated his

employment as a Security Police Officer because of his use

of prescription pain medication. The jury found in favor of

Gonzales on his retaliation and “regarded as” discrimination

claims, and the district court denied Batelle’s motion for

judgment as a matter of law.

Aligning with the Sixth Circuit, the panel rejected

Batelle’s argument that its revocation of Gonzales’s fitness-

for-duty certification, a requirement for security personnel

under 10 C.F.R. § 1046, was not justiciable because it was a

nonreviewable security clearance decision vested with the

Department of Energy. Under Dep’t of Navy v. Egan, 484

U.S. 518 (1988), when agencies make security clearance

determinations and other similarly predictive national

security judgments that Congress vested in those agencies,

the resulting decisions are nonjusticiable. The revocation of

Gonzales’s fitness-for-duty certification, however, was

justiciable because the medical and physical standards set

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GONZALES V. BATTELLE ENERGY ALLIANCE, LLC 3

forth in § 1046 are not tied to predictive security

determinations.

The panel affirmed Batelle’s other grounds for appeal in

a simultaneously filed memorandum disposition.

COUNSEL

DeAnne Casperson (argued), Amanda E. Ulrich, and Ryan

S. Dustin, Casperson Ulrich Dustin PLLC, Idaho Falls,

Idaho, for Plaintiff-Appellee.

Kelsey VanOverloop (argued), Littler Mendelson PC,

Denver, Colorado; Thomas M. Metzger, Littler Mendelson

PC, Columbus, Ohio; Amelia A. McDermott, Littler

Mendelson PC, San Diego, California; Gregory G. Iskander,

Littler Mendelson PC, Walnut Creek, California; for

Defendant-Appellant.

4 GONZALES V. BATTELLE ENERGY ALLIANCE, LLC

OPINION

CHRISTEN, Circuit Judge:

This appeal arises from Battelle Energy Alliance, LLC’s

decision to terminate Roman Gonzales’s employment as a

Security Police Officer because of his use of prescription

pain medication. For three years, Gonzales worked for

Battelle, a contractor for the United States Department of

Energy, and took prescribed opiates to treat a chronic back

injury without issue. Despite no change in Gonzales’s

medication or job performance, Battelle revoked Gonzales’s

fitness-for-duty certification and terminated him on that

basis. Gonzales sued Battelle for disability discrimination

pursuant to the Americans with Disabilities Act. A jury

found in favor of Gonzales on his retaliation and “regarded

as” discrimination claims but rejected his other causes of

action. On appeal, Battelle argues that its revocation of

Gonzales’s certification was not justiciable because it was a

nonreviewable security clearance decision. We affirm the

district court’s judgment. 1

I.

A.

At all times relevant to this appeal, Battelle Energy

Alliance, LLC contracted with the Department of Energy

(DOE) to manage the Idaho National Laboratory, where,

among other things, the government stores spent nuclear

fuel. As part of its contractual obligations with the DOE,

Battelle employed Security Police Officers (SPOs) to protect

1

We affirm Battelle’s other grounds for appeal in a simultaneously filed

memorandum disposition.

GONZALES V. BATTELLE ENERGY ALLIANCE, LLC 5

the nuclear storage sites. Battelle and its SPO employees

were required to comply with several DOE regulations, two

of which are relevant here.

First, from the time he was hired, Gonzales was required

to meet “the medical, physical readiness, training and

performance standards” for security personnel established

by 10 C.F.R. § 1046. To ensure SPOs are able to perform

their jobs, this regulation establishes “the minimum medical

standards to be used in determining whether [SPOs] . . . can

effectively perform, with or without reasonable

accommodation, all essential functions of normal and

emergency duties . . . .” Id. § 1046.13(b)(4). The broad

spectrum of medical standards in this regulation ranges from

measurements of hearing, speech, and vision to assessments

of the musculoskeletal and endocrine systems. Id.

§ 1046.13(e). Section 1046 also requires field testing to

establish physical readiness qualifications for SPOs, such as

a one-half mile run. Id. § 1046.16. Section 1046

requires that reasonable accommodations be provided

pursuant to the requirements of the Americans with

Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. 10

C.F.R. § 1046.13(c); see also id. § 1046.2(c), .3, .5(a)(2)(i),

.13(b)(4), .13(e)(10), .13(g)(3), .13(4), & .13(5)(i).

Starting in 2015, the DOE also required Battelle to

ensure that all SPOs comply with the DOE Human

Reliability Program (HRP), a security scheme set out in 10

C.F.R. § 712. The HRP establishes a “security and safety

reliability program designed to ensure that individuals who

occupy positions affording access to certain materials,

nuclear explosive devices, facilities, and programs meet the

highest standards of reliability and physical and mental

suitability.” 10 C.F.R. § 712.1. The HRP regulation

requires that SPOs acquire “DOE ‘Q’ access authorization,”

6 GONZALES V. BATTELLE ENERGY ALLIANCE, LLC

which is the DOE’s highest level of security clearance. Id.

§ 712.11(a)(1); see Foote v. Moniz, 751 F.3d 656, 658–59

(D.C. Cir. 2014). The HRP also mandates annual security

reviews to “determin[e] the eligibility of individuals . . . for

access to classified matter or special nuclear material, . . . or

for access to national security information.” Id. § 710.1(a);

see id. § 712.16 (requiring a personnel security specialist to

review annually the personnel security file of every HRP

candidate and every HRP-certified individual up for

certification or recertification in accordance with 10 C.F.R.

§ 710). The HRP includes a “counterintelligence

evaluation,” which may involve a polygraph test, id.

§ 712.15(f), an annual job performance review, and annual

mental and medical evaluations to ensure individuals subject

to the HRP regulation remain reliable and do not represent

security concerns. See id. § 712.14; id. § 712.11. The HRP

regulation does not mention reasonable accommodation or

compliance with the ADA. The HRP allows government

contractors to suspend temporarily employees’ HRP

certifications, but contractors are to report such decisions to

the DOE. The regulation reserves to the DOE, not the

private contractor, the decision whether to terminate

individual HRP certifications. Id. § 712.19.

At the time of Gonzales’s termination, SPOs were

required to carry both the § 1046 fitness-for-duty

and the HRP certifications. 2 To comply with these DOE

regulations, Battelle employed a team of specially trained

2

In its brief, Battelle uses the terms “§ 1046 medical certification” and

“§ 1046 certification” interchangeably. The district court referred to the

certification required by § 1046 as the “medical certification” or the

“fitness-for-duty determination.” We refer to it as the § 1046 fitness-for-

duty certification.

GONZALES V. BATTELLE ENERGY ALLIANCE, LLC 7

physicians to complete the necessary medical and

psychological evaluations.

B.

Gonzales began working for Battelle as an SPO in 2005.

Before he was hired, Gonzales had developed a back injury

that was treated with prescription pain medicine. Battelle

was aware of Gonzales’s condition and the medication he

took to manage it. In 2014, Gonzales’s physician increased

the dose of his prescription medication to alleviate an

exacerbation of his back injury. Gonzales was required to

“report to [his] supervisor and the Designated Physician for

a determination of fitness for duty” when his prescription

medication dosage changed. 10 C.F.R. § 1046.19(b). He

complied with this reporting requirement and Battelle

permitted him to continue to work as an SPO, as long as he

refrained from taking the medication within eight hours of

work.

After SPOs were enrolled in the HRP in 2015, the

Director of Battelle’s Occupational Medical Program, Dr.

Stewart Curtis, approved Gonzales’s HRP certification.

Gonzales remained HRP-certified through 2017, and no

concerns were raised about his performance. Dr. Curtis

knew Gonzales was prescribed opiates.

In late 2017, Battelle hired a new doctor for the

Occupational Medical Program, and the U.S. Department of

Health and Human Services (HHS) revised the random,

mandatory drug testing for SPOs to include testing for

opiates. Two of Gonzales’s random drug tests came back

positive for opiates, one in December 2017 and one in

February 2018. Despite these positive results, the new

program doctor marked the results as “negative” in

accordance with HHS guidance because Gonzales

8 GONZALES V. BATTELLE ENERGY ALLIANCE, LLC

“present[ed] a legitimate medical explanation” for the

results. Battelle renewed Gonzales’s § 1046 fitness-for-duty

certification in May 2018.

Battelle’s new program doctor began raising concerns

regarding Gonzales’s use of prescription opiates even

though Gonzales’s medication plan had not changed since

2014 and the doctor had marked Gonzales’s 2018 blood test

results as “negative.” In June 2018, the program doctor

shared with Battelle’s HRP team his concern that Gonzales’s

“long-term use of narcotics while in HRP or under 1046 was

not allowed.” That same month, Battelle required Gonzales

to interview with a licensed clinical social worker for the

psychological component of his HRP certification. The

social worker concluded that he was not reliable.

As a result of the social worker’s and the program

doctor’s recommendations, the HRP team temporarily

suspended Gonzales’s HRP authorization and he was

reassigned to the badging office at a reduced rate of pay.

Battelle reported its temporary suspension of Gonzales’s

HRP certification to the DOE as required by 10 C.F.R.

§ 712.19 and represented to DOE that Gonzales would “be

evaluated for substance abuse under oversight of the

designated psychologist.” But Battelle never referred

Gonzales for the follow-on evaluation or submitted the

temporary suspension of Gonzales’s HRP to DOE for a final

determination.

In November 2018, Battelle revoked Gonzales’s § 1046

fitness-for-duty certification. The evidence at trial showed

that, around the same time, Gonzales learned from another

employee that management told at least some of Gonzales’s

coworkers he was losing his job for being an “opioid

abuser.” Gonzales sent an email complaint to HR and

GONZALES V. BATTELLE ENERGY ALLIANCE, LLC 9

management about this perceived mistreatment. Shortly

thereafter, Battelle gave Gonzales a notice of intent to

terminate. The notice cited his revoked § 1046 fitness-for-

duty certification and warned Gonzales that if he did not find

another position at Battelle within thirty days, he would be

formally terminated as a Battelle employee. Gonzales was

unable to find another position and was terminated in

January 2019.

C.

Gonzales sued Battelle in the United States District

Court for the District of Idaho in February 2020. He alleged

race and disability discrimination, retaliation, and unlawful

disclosure of confidential medical information under the

ADA. A five-day jury trial commenced on August 12, 2024.

At the close of evidence, Battelle moved for judgment as

a matter of law pursuant to Federal Rule of Civil Procedure

50(a) on the basis that Gonzales’s ADA claims were

predicated on two unreviewable security determinations:

Battelle’s suspension of Gonzales’s HRP certification and

the revocation of his § 1046 fitness-for-duty certification.

The district court denied the motion, observing that Battelle

had temporarily suspended Gonzales’s HRP certification

and that DOE had not revoked it. As for Battelle’s

revocation of Gonzales’s § 1046 fitness-for-duty

certification, the court reasoned it was subject to judicial

review because it did not represent the type of security

clearance the Supreme Court described in Department of

Navy v. Egan, 484 U.S. 518 (1988).

The case was submitted to the jury, and it returned a

mixed verdict. The jury found in favor of Gonzales on his

retaliation and “regarded as” discrimination claims but

rejected his claims of race discrimination, unlawful

10 GONZALES V. BATTELLE ENERGY ALLIANCE, LLC

disclosure of medical information, and denial of reasonable

accommodation. Battelle moved for judgment as a matter of

law pursuant to Federal Rule of Civil Procedure 50(b) or, in

the alternative, a new trial, again arguing that Gonzales’s

ADA claims arose from non-justiciable security

determinations vested with the DOE. The district court

denied Battelle’s motion and entered final judgment.

Battelle timely appealed.

II.

We have appellate jurisdiction pursuant to 28 U.S.C.

§ 1291. We review de novo questions of law, such as the

existence of subject matter jurisdiction. See Tesla Motors,

Inc. v. Balan, 134 F.4th 558, 560 (9th Cir. 2025).

III.

Battelle argues that the district court erred by submitting

Gonzales’s ADA claims to the jury because Battelle’s

decision to suspend Gonzales’s § 1046 fitness-for-duty

certification was not justiciable pursuant to the Supreme

Court’s holding in Egan. Egan provides support for the

conclusion that an agency’s decision to revoke an HRP

certification would not be subject to judicial review, but that

is not the question presented by this appeal. Gonzales was

terminated as a result of Battelle’s revocation of his § 1046

fitness-for-duty certification. And as we explain, that

regulation sets out a meaningfully different scheme that

serves a different function from the HRP. We conclude that

the more limited decisions concerning SPOs’ physical and

mental fitness-for-duty under § 1046 are subject to judicial

review.

GONZALES V. BATTELLE ENERGY ALLIANCE, LLC 11

A.

In Egan, the Supreme Court considered a claim arising

from the Navy’s denial of a civilian employee’s request for

a security clearance based on his criminal record. 484 U.S.

at 521. The employee sought review by the Merit Systems

Protection Board, but the Court held that the Board lacked

jurisdiction to resolve the dispute because the Navy’s “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.” 484

U.S. at 522, 527, 530. Egan explained that the Executive’s

decision to grant or deny a security clearance requires the

type of “[p]redictive judgment” that “must be made by those

with the necessary expertise in protecting classified

information,” not “an outside nonexpert body” like the Merit

Systems Protection Board. Id. at 529; see Dorfmont v.

Brown, 913 F.2d 1399, 1401 (9th Cir. 1990) (extending

Egan’s logic to “preclude[] judicial review” of the

Department of Defense’s decision to revoke an individual’s

security clearance). Egan stands for the proposition that

when agencies make security clearance determinations and

other similarly predictive national security judgments that

Congress vested in those agencies, the resulting decisions

are nonjusticiable.

B.

The D.C. Circuit had occasion to consider Egan’s

application to the DOE’s HRP regulation in Foote, 751 F.3d

at 657–58. There, the D.C. Circuit confronted an agency-

level decision to deny an HRP certification to a job

applicant. Id. Foote concluded “that the [DOE’s] decision

not to certify an applicant under the [HRP] is the kind of

judgment covered by Egan.” Id.; see also Sanchez v. United

12 GONZALES V. BATTELLE ENERGY ALLIANCE, LLC

States Dep’t of Energy, 870 F.3d 1185, 1193–94 (10th Cir.

2017) (explaining that an agency’s revocation of an HRP

certification is a security clearance decision subject to

Egan’s reviewability bar). Though this appeal does not

require that we consider an agency-level HRP revocation,

we agree with Foote’s understanding of the rationale that

animated the outcome in Egan. Application of that rationale

to the starkly different interests protected by DOE’s HRP

regulatory scheme and § 1046 persuades us to affirm the

district court’s rulings.

First, Foote observed that the DOE’s HRP regulation

“was established in part under the same Executive Order

cited in Egan—Executive Order 10,450—in order to ‘protect

the national security’ by identifying ‘individuals whose

judgment may be impaired’ by any ‘condition or

circumstance that may represent a reliability, safety, or

security concern.’” 751 F.3d at 658 (quoting Human

Reliability Program, 69 Fed.Reg. 3213, 3213–14, 3223 (Jan.

23, 2004)). The same is not true of the regulation at § 1046.

Second, the HRP requires “[a] DOE ‘Q’ access

authorization,” 10 C.F.R. § 712.11(a)(1), which Foote

explains is DOE’s highest-level security clearance, Foote,

751 F.3d at 658–59. The HRP specifies that “[a]ny doubt as

to an HRP candidate’s or HRP certified individual’s

eligibility for certification shall be resolved against the

candidate or individual in favor of national security.” 10

C.F.R. § 712.11(f). By making the HRP applicable to SPOs

in 2015, DOE mandated that SPOs obtain the same top-level

security clearance described in Foote, initiated annual

security reviews for all SPOs, id. § 712.16, and provided for

“counterintelligence evaluation[s],” which can involve

polygraph tests, id. § 712.15(f). The district court

recognized that although SPOs are now subject to DOE’s

GONZALES V. BATTELLE ENERGY ALLIANCE, LLC 13

highest-level security clearance standards, it is the HRP that

mandates this, not § 1046.

The HRP regulation expressly retains to the DOE the

authority to make final HRP termination decisions, unlike

§ 1046. The HRP regulatory scheme allows government

contractors to revoke temporarily employees’ HRP

certifications, id. § 712.19(a), but this is “an interim,

precautionary action and does not constitute a determination

that the individual is not fit to perform his or her required

duties.” Id. § 712.19(b). The district court explained that

the temporary suspension of an HRP certificate cannot result

in “loss of pay, benefits, or other changes in employment

status.” Id. Rather, if a government contractor further

evaluates the circumstances and determines that its

employee does not meet the HRP’s requirements, another

provision of the regulatory framework mandates that the

contractor prepare a report for the DOE Manager. Id.

§ 712.19(f). It is the DOE Manager, not the government

contractor, who determines whether the employee’s HRP

certification will be revoked. Id. § 712.19(g).

C.

Battelle relied on its revocation of Gonzales’s § 1046

fitness-for-duty certification to terminate Gonzales’s

employment, and the district court deemed this revocation

reviewable because “the fitness-for-duty standards [set forth

in § 1046] are not tied to predictive security determinations

and therefore do not raise Egan [justiciability] concerns.”

Battelle argues this was error “[b]ecause the protection of

nuclear facilities . . . directly implicate[s] national security,”

and “it follows that fitness-for-duty determinations under

§ 1046 are matters of national security as well.” We agree

with the district court.

14 GONZALES V. BATTELLE ENERGY ALLIANCE, LLC

The stated purpose of § 1046 is to “establish[] the

medical, physical readiness, training and performance

standards” for security personnel at DOE facilities. Id.

§ 1046.1. The regulation’s detailed standards address

physical and neurological conditions affecting the head,

face, neck, and scalp; sense of smell; speech; hearing; vision;

cardiorespiratory system; neurological, mental, and

emotional health; musculoskeletal system; skin; and

endocrine, nutritional, and metabolic functions. Id.

§ 1046.13(e).

Section 1046 goes on to prescribe field testing to verify

physical readiness qualifications, id. § 1046.16, including a

run of one-half mile with a maximum qualifying time of 4

minutes 40 seconds, a 40-yard dash from the prone position

in 8.5 seconds or less, “and any other site-specific measure

of physical readiness necessary to perform essential

functions as prescribed by site management and approved by

the respective program office.” Id. § 1046.16(d)(2). The

advanced readiness standard includes a one-mile run with a

qualifying time of 8 minutes 30 seconds, and, from a prone

position, a 40-yard dash in 8.0 seconds or less. Id.

§ 1046.16(d)(3). To satisfy § 1046, SPOs must demonstrate

“sufficient agility and range of motion” to use firearms

effectively in “static environments,” including “prone,

standing, kneeling, and barricade positions.”

Id. § 1046.16(d)(1)(i). This regulation does not require

annual security assessments or the possibility of polygraph

examinations akin to those required by the HRP. See 10

C.F.R. § 712.15, .16.

The § 1046 certification is qualitatively distinct from

HRP security clearances; and security clearances, not

physical and psychological fitness-for-duty tests, were at

issue in Egan. The certification in Egan involved

GONZALES V. BATTELLE ENERGY ALLIANCE, LLC 15

completion of security reports and a “security investigation”

to “assess whether, under compulsion of circumstances or

for other reasons, [the agency employee] might compromise

sensitive information.” Egan, 484 U.S. at 520–21, 528. The

Navy denied Egan’s security clearance based on his criminal

record, id. at 521–22, not because he failed a medical,

physical agility, or fitness-for-duty test of the sort described

in § 1046. After examining the nature of the testing and

performance standards set out in § 1046, we agree with the

district court that Egan insulated from judicial review

decisions concerned with the risk that individuals granted

access to sensitive information may disseminate that

information, id. at 528–29, not review of certificates

concerned with whether employees are physically or

psychologically capable of performing their jobs.

Our recognition that these clearances serve different

purposes aligns with our sister circuit’s decision in Hale v.

Johnson, 845 F.3d 224 (6th Cir. 2016). There, the plaintiff

was a security officer tasked with guarding a nuclear plant

who lost his job after failing a test to renew his medical

clearance. Id. at 226. The Sixth Circuit rejected the

defendant’s argument that Egan rendered its decision to

revoke the plaintiff’s medical clearance unreviewable. Id. at

229–31. Hale explained that Egan “analyze[d] the

importance of executive control over access to national-

security information, not general national-security concerns

such as those applicable in determining whether an

individual has the physical capacity to guard a nuclear

plant.” Id. at 230 (emphasis in original) (citing Egan, 484

U.S. at 526–30); see also Rattigan v. Holder, 689 F.3d 764,

768, 770 (D.C. Cir. 2012) (explaining that Egan’s

jurisdictional bar “covers only security clearance-related

decisions made by trained Security Division personnel” and

16 GONZALES V. BATTELLE ENERGY ALLIANCE, LLC

claims that require review of “whether the plaintiff’s

continued access to classified information was clearly

consistent with national security”).

Our conclusion that Egan did not bar review of

Gonzales’s claim is also supported by the fact that § 1046

expressly requires compliance with the ADA, and the ADA

is a statutory scheme that is subject to judicial review. 10

C.F.R. § 1046.13(c), .2(c), .3, .5(a)(2)(i), .13(b)(4),

.13(e)(10), .13(g)(3), .13(4), & .13(5)(i); see 42 U.S.C.

§ 12117(a) (incorporating Title VII enforcement procedures

for ADA employment discrimination claims, including a

private cause of action). The HRP regulation makes no

mention of accommodating ADA standards.

Finally, Battelle contends that § 1046 is so intertwined

with the HRP that if we were to apply Egan to bar review of

HRP decisions, we necessarily must bar review of § 1046

certification decisions as well. Not so. First, we disagree

with the premise of Battelle’s argument that Egan bars

review of its decision to revoke temporarily Gonzales’s HRP

certification. As explained, in Egan and Foote, the

government agencies denied the security clearances. Egan,

484 U.S. at 521; Foote, 751 F.3d at 657. Here, the DOE

reserved the decision to revoke an HRP certification for

itself, 10 C.F.R. § 712.19, and Battelle did not follow the

procedure set forth in the HRP to allow the DOE to make

that decision in Gonzales’s case. Battelle cites Beattie v.

Boeing Co., 43 F.3d 559 (10th Cir. 1994) to argue that Egan

should still bar review of contractor-level HRP decisions.

Beattie concluded that Egan rendered an Air Force

contractor’s denial of a security clearance unreviewable. Id.

at 566. But unlike the DOE, the Air Force expressly

delegated this authority to the government contractor at issue

in that case. Id. Beattie is readily distinguishable on this

GONZALES V. BATTELLE ENERGY ALLIANCE, LLC 17

basis. See Zeinali v. Raytheon Co., 636 F.3d 544, 551 (9th

Cir. 2011) (explaining that “private employers can rarely

avail themselves of Egan’s jurisdictional bar”).

Second, to the extent Battelle attempts to buttress its final

argument by pointing out that there is overlap between the

HRP and § 1046, we are unpersuaded that this changes the

analysis. Psychological evaluations completed under the

more stringent HRP regulation may be used in § 1046

assessments. But the fact that the two certifications share

similar components does not mean they serve the same

functions. Compare 10 C.F.R. § 712 (ensuring individuals

employed in positions with “the potential to significantly

impact national security,” § 712.10, “meet the highest

standards of reliability,” § 712.1), with § 1046 (seeking to

ensure security personnel comply with certain “medical,

physical readiness, training and performance standards,”

§ 1046.1, that are “necessary to perform essential functions,”

§ 1046.16(d)(2), (d)(3)). Indeed, when the DOE required all

SPOs to obtain both certifications in 2015, it did not

subsume or eliminate the § 1046 fitness-for-duty

certification. Instead, HRP certification and compliance

with § 1046 remain distinct prerequisites.

For these reasons, Battelle’s decision to revoke

Gonzales’s § 1046 fitness-for-duty certification is

reviewable. We therefore AFFIRM the district court’s

denial of Battelle’s motion for judgment as a matter of law.