Gill v. United States Department of Justice

TATEL, Circuit Judge,, concurring:

1 Although I agree with the court’s disposition of Gill’s claims, I write separately to explain why, were his equal protection claims viable, they would, contrary to the government’s argument, be barred neither by the Supreme1 Court’s decision in Department of the Navy v. Egan, 484 U.S. 518 , 108 S.Ct. 818 , 98 L.Ed.2d 918 (1988), nor by Title VII of the Civil Rights Act, 42 U.S.C. § 2000 .e et seq.

Gill makes two equal protection claims. First, he alleges that he was treated differently on the basis “of.his race, religion and ethnic origin.” Compl. ¶ 45. Specifically, he claims that “[n]on-Muslim agents who wrongfully accessed the FBI computer system were not terminated, nor [were] their security clearance[s] revoked. Instead, non-Muslim agents were given suspensions and letters of reprimand.” Id. ¶ 47 . Second, repurposing one of his due process claims, Gill argues that the ARC denied him equal protection by treating his naturalized family members “differently than native born [U.S.] citizens.” Id. ¶ 93 .

According to the government, both claims are barred by the Supreme Court’s decision in Egan. There, the Court considered whether the1 Merit Systems Protection Board could review the Navy’s denial of a security clearance. 484 U.S. at 520 , 108 S.Ct. 818 . Observing that Article II empowers the President, as Commander in Chief, “to classify and control access to information bearing on national security,” id. at 527 , 108 S.Ct. 818 , the Court held that “[p]redictive judgments]” about who can be trusted with classified information “must be made-by those with the necessary expertise in protecting classified information,” id. at 529 , 108 S.Ct. 818 . It is thus “not reasonably possible for an outside non-expert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence. Nor can such a body determine what constitutes an acceptable margin of error in assessing the potential risk.” Id.

Although Egan rests in part on the “express language” and “structure .of the statutory scheme” at .issue in that case, id. at 580 , 108 S.Ct. 818 (internal quotation marks omitted), much of the Court’s reasoning sounds in broader principles of separation of powers, id, at 526-30, 108 S.Ct. 818 . Reading Egan just that way, our court has extended the decision to other kinds of claims. For example, in Ryan v. Reno, 168 F.3d 520 (D.C. Cir. 1999), we held that “under Egan an adverse employment action based on denial or revocation of a security clearance is not actionable under Title VII,” id..at 524, See also Oryszak v. Sullivan, 576 F.3d 522, 525-26 (D.C. Cir. 2009): (holding based on Egan that “actions based upon denial of security clearance are committed to-agency discretion by law” and thus “the APA provides no cause of action [for such claims]”).

The government insists that this court has “never suggested in any of its decisions dismissing Title VII- claims on Egan grounds' that plaintiffs could bring the same claim of discrimination under the Constitution.” Appellee’s Br. 32.- That is incorrect. When dismissing statutory challenges as barred by Egan, our court has repeatedly distinguished between statutory and constitutional claims. In Ryan, for instance, we “emphasize[d] that our holding [was] limited to Title VII discrimination actions and [did] not apply to actions alleging deprivation of constitutional rights.” 168 F.3d at 524 . Likewise, in Oryszak v. Sullivan, 576 F.3d 522 , we qualified our statement “we have consistently held that ... actions based upon denial of security clearance are committed to agency discretion by law,” with the caveat, “at least where a constitutional claim is not properly presented,” id. at 526 .

This distinction between statutory and constitutional claims finds support in the Supreme Court’s decision in Webster v, Doe, 486 U.S. 592 , 108 S.Ct. 2047 , 100 L.Ed.2d 632 (1988). In that case, decided just months after Egan, the Court held that although the CIA Director’s decision to fire an employee on national security grounds was unreviewable under the APA, the employee’s colorable constitutional challenge could proceed. Id. at 601-04 , 108 S.Ct. 2047 . The Court distinguished between adjudicating the substance of the Director’s decision, which it explained was committed to his discretion by law, and reviewing “colorable constitutional claims arising out of the actions of the Director pursuant to” that law. Id, at 603, 108 S.Ct. 2047 .

Relying on Webster, our court explained in National Federation of Federal Employees v. Greenberg, 983 F.2d 286 (D.C. Cir. 1993), that “[i]t is simply not the case that all security-clearance decisions are immune from judicial review,” id. at 289 . There, we held that Egan presented no bar to a constitutional challenge to the Department oi' Defense’s security clearance questionnaire. Id. at 290 . Though recognizing that “[t]he government may have considerable leeway to determine what information it needs from employees holding security clearances and how to go about getting it,” we explained that “a large measure of discretion gives rise to judicial deference, not immunity from judicial review of constitutional claims.” Id. “No one,” we observed, “would suggest [that] the government ... could, despite the Fourth Amendment, conduct random searches without warrants in the hope of uncovering information about employees seeking security clearances. Still less would anyone consider such unconstitutional searches and seizures to be immune from judicial review.” Id.

Other circuits have also recognized limitations on Egan's, reach. The Third Circuit, noting that “not all claims arising from security clearance revocations violate separation of powers,” has held that constitutional claims may proceed. Stehney v. Perry, 101 F.3d 925, 932 (3d Cir. 1996). And the.Ninth Circuit has recognized that, although security clearance decisions are unreviewable under the APA, Webster “is dispositive on [the] question” of whether those decisions are renewable for constitutional error. Dubbs v. CIA, 866 F.2d 1114, 1120 (9th Cir. 1989); see also Dorfmont v. Brown, 913 F.2d 1399, 1404 (9th Cir. 1990) (recognizing that “federal courts may entertain colorable constitutional challenges to security clearance decisions”). The Fourth Circuit thought it “arguable” that an equal protection claim might withstand “Egan’s admonition restraining court review,” but has had no occasion to resolve the issue. Jamil v. Secretary, Department of Defense, 910 F.2d 1203, 1209 (4th Cir. 1990); see id. (“Whether ... review of such alleged denial of constitutional rights is reachable by a court in the light of Egan presents a difficult question that we do not need to reach in this appeal ... because ... nothing in the record ... indicates that the defendants acted from an improper motivation based on national origin.”).

The government counters that even if some constitutional challenges may proceed, Gill’s cannot for two reasons. First, equal protection challenges are, according to the government, especially likely to implicate Egan because “a court cannot determine in an equal. protection claim whether the agency was motivated by valid security reasons or discriminatory animus.” Appellee’s Br. 23. An inquiry into “whether an agency’s security-based reasons for revoking a security clearance are valid or pretextual,” the government insists, would “‘run[] smack up against Egan.’ ” Id. (quoting Ryan, 168 F.3d at 524 ).

But not every equal protection challenge will involve reviewing “discretionary judgments regarding a particular employee’s security clearance.” Greenberg, 983 F.2d at 290 . Some, as in Greenberg, will “relate to the constitutionality of the methods used” to make that decision. Id. Indeed, the Third Circuit has “read Egan and Webster together as holding that Article III courts have jurisdiction to hear constitutional claims arising from the clearance revocation process, even though the merits of that revocation cannot be reviewed.” El-Ganayni v. U.S. Department of Energy, 591 F.3d 176, 183 (3d Cir. 2010) (emphasis added) (internal quotation marks omitted); .see also Hegab v. Long, 716 F.3d 790, 798 (4th Cir. 2013) (Motz, J., concurring) (“In light of the holding in Egan, at most Webster permits judicial review of a security clearance denial only when that denial re-suits from the application of an allegedly unconstitutional policy”).

Gill alleges that he was treated differently based on his religion and his family’s national origin. See supra at 679-80. In my view, if Gill could show that the government has a policy or practice of treating Muslims or naturalized citizens differently, his equal protection claims, like the claims at issue in Greenberg, would not be barred by Egan.

The government next argues that, even if courts may review some security clearance—related equal protection claims, Gill’s are precluded by Title VII because he alleges discrimination in employment and under Brown v. General Services Administration, 425 U.S. 820 , 96 S.Ct. 1961 , 48 L.Ed.2d 402 (1976), Title VII provides the exclusive remedy for such claims, id. at 885 , 96 S.Ct. 1961 . Again, this is incorrect. In Brown, the Supreme Court “focused on whether federal employees should be able to bring parallel actions under both Title VII and other provisions of federal law to redress the same basic injury,” Ethnic Employees of the Library of Congress v. Boorstin, 751 F.2d 1405, 1415 (D.C. Cir. 1985) (discussing Brown), and in Ryan, we held that “under Egan an adverse employment action based on denial or revocation of a security clearance is not actionable under Title VII,” 168 F.3d at 524 . Contrary to the government’s argument, then, Title VII cannot provide Gill’s exclusive remedy since, under Egan, it provides no remedy at all. See Boorstin, 751 F.2d at 1415 (explaining that “[njothing in [the legislative history of Title VII] even remotely suggests that Congress intended to prevent federal employees from suing their employers for constitutional .violations against which Title VII provides no protection”).

To be sure, two circuits have held otherwise. See Brazil v. U.S. Department of the Navy, 66 F.3d 193 , 197-98 (9th Cir. 1995) (holding that a constitutional challenge to a security clearance decision was precluded by Title VII); Perez v. FBI, 71 F.3d 513, 515 (5th Cir. 1995) (per curiam) (same). In those same opinions, moreover, both circuits held that security clearance decisions were not actionable under Title VII, effectively barring challenges to such decisions entirely. See Brazil, 66 F.3d at 197; Perez, 71 F.3d at 514-15 . In so doing, however, neither circuit acknowledged the portion of Webster holding that constitutional claims are reviewable, nor did either explain how an inapplicable statutory scheme could possibly bar a constitutional claim.