INTRODUCTION 520 I. EGAN AND THE JURISDICTIONAL BAR ON SECURITY-CLEARANCE DETERMINATIONS 523 A. The Initial Case 524 B. Where is the Congressional Authority? 526 C. Judicial Expansion of the Doctrine 527 II. "EXCEPTIONS" TO THE DOCTRINE 529 A. Applying Egan to Private Employers 530 1. Challenging a Security-Clearance Determination Through a Private-Sector Employer 531 2. The Private Employer "Exception" Avoids the Security-Clearance Determination 532 B. Procedural Challenges to Security-Clearance Determinations Are Allowed 534 C. The Rattigan "Exception" 535 1. The Facts and Holding of Rattigan 536 2. How Broad is Rattigan's Holding? 538 3. The Reception of Rattigan 541 D. Cat's-Paw Liability as the Next "Exception"? 542 E. Unifying the "Exceptions" 544 III. A REFORMULATION OF EGAN 545 A. The Intervention: Egan Only Bars Jurisdiction of Direct Review of Security Clearances 545 B. Intentionally Eliminating Exceptions 546 C. This Reformulation of Egan Protects Employees 547 D. The Reformulation in Action 548 CONCLUSION 549
INTRODUCTION
Imagine you are a U.S. Army veteran reintegrating into civilian life. You obtain a contractor position for a government agency, perhaps the National Geospatial-Intelligence Agency. The position requires Top Secret clearance, which you obtain. After a few years, you receive a conditional offer for what is essentially a promotion: becoming an assignee with the CIA. This would be similar to your current position, but as you are no longer a contractor, it would come with improved job security and employment benefits. You accept and soon are going through the new clearance process, including a psychological evaluation. You are asked if you drink alcohol. You say that you do not drink anymore and explain how you stopped when you converted to Islam. At this point, the focus of the interview shifts and becomes primarily about your religious views. Several months later, you are informed that you failed your mental-health evaluation and will not be eligible for the position. The outcome, along with the faith-based focus of your interview, does not sit well with you. It turns out that other applicants were not asked about their religious views. You file formal complaints with the relevant agencies, and the complaints are dismissed. You then file a lawsuit in federal district court, relying on Title VII's religious-discrimination protection, but that is also dismissed. (1)
The claims were not dismissed due to lack of merit or any non-religious justification that may have existed for failing the mental-health evaluation. Instead, both the administrative and judicial claims were dismissed for lack of jurisdiction, preventing a plaintiff from advancing to see if their claims were meritorious. This jurisdictional bar extends from a 1988 Supreme Court case, Department of Navy v. Egan, (2) which courts have used to limit their jurisdiction over claims that turn on a denial or revocation of a security clearance. (3) Thus Egan has left many employment-discrimination statutes ineffectual for an entire class of individuals: those for whom employment is dependent on a security clearance. (4)
This is not a small class, as over four million individuals hold a security clearance today, (5) a sizable contingent of the American labor force. (6) Security clearances offer not only a chance to obtain jobs that would otherwise be unavailable, but also the chance at a salary far above the national average and increased job security. (7) Spies and soldiers are not the only employees requiring security clearances; even seemingly "ordinary" jobs, such as a front-desk receptionist, can require a background investigation by the government. (8) Nor is the clearance requirement limited to those who wish to work directly for the government; at least one-third of the "government workforce" are private-sector contractors, many of whom must also obtain clearance. (9)
This judicially constructed gap in employment-discrimination law not only runs counter to the spirit of the statutes, but also leaves millions of Americans without recourse when they experience workplace discrimination. This Comment suggests a new interpretation of Egan, one that provides plaintiffs with greater access to courts while remaining true to its holding and the logic underpinning the decision.
Today, when employment-discrimination cases involving security clearances reach the federal court system, they are almost always dismissed for lacking subject-matter jurisdiction under Egan. (10) Courts have recognized a handful of "exceptions" to the rule, all of which have something in common: they do not violate the Court's holding or reasoning of Egan. These "exceptions" exist at the circuit level, creating an uneven patchwork of jurisprudence throughout the country that forces plaintiffs to match the facts of their case to a pre-existing "exception" recognized in their circuit or argue for the creation of new law. (11) This Comment's proposal is to abandon the "exception" framework of Egan and instead proceed under a new framework that is both simpler and more in line with the original Egan opinion. When evaluating a lawsuit, judges should ask themselves one simple question: does this claim require a review of a security-clearance determination? If so, Egan applies, and the court has no jurisdiction. But if not, there is no conflict with Egan, and the claim may proceed on the merits.
Part I looks at Egan and the opinion's reception in federal courts of appeals in order to distill the concern that guides its reasoning: preventing second-guessing of the Executive over matters of national security. Part II provides an overview of the many "exceptions" to the doctrine and reconciles them by noting that none of them raise the concerns laid out in the original opinion. Part III is the intervention, which rejects current interpretations of the doctrine that place an expansive jurisdictional bar on cases involving security-clearance determinations, with some noted exceptions. Instead, courts should interpret Egan as a more limited doctrine that only bars challenges to the actual clearance decision itself, while still allowing courts to have jurisdiction over related claims. This new "default" would allow meritorious claims to pass the motion-to-dismiss and summary-judgment stages, while still following the Court's decision in Egan.
I. EGAN AND THE JURISDICTIONAL BAR ON SECURITY-CLEARANCE
DETERMINATIONS
The 1988 Supreme Court decision in Department of Navy v. Egan (12) articulated what has since become known as the "Egan doctrine." (13) This Part looks at the original opinion and analyzes the underlying principles that guide its logic-namely, limiting third parties' ability to second-guess national-security decisions of the Executive. This Part concludes with a survey of the decision's adoption and interpretation by the lower courts.
A. The Initial Case
Thomas M. Egan began working at the Trident Naval Refit Facility (the Facility) in Bremerton, Washington, in 1981 as a civilian employee of the Navy. (14) The Facility works on Trident submarines, (15) and as such, all employee positions of the facility are classified as "sensitive." (16) Soon after he began his employment, in 1982, Egan received a "noncritical-sensitive" promotion, pending the outcome of his security investigation. (17) On February 16, 1983, Egan's security-clearance request was denied, based upon his prior criminal record and personal admissions of past troubles with alcohol. (18) Without a security clearance, Egan was no longer eligible for his current role. And since every position at the Facility was sensitive and he could not be transferred to another position, Egan was eventually dismissed. (19) Egan then sought review by the Merit Systems Protection Board (MSPB). (20) The case worked its way through the administrative and federal court systems, (21) finally arriving at the Supreme Court with the following question: "whether the [MSPB] has authority by statute to review the substance of an underlying decision to deny or revoke a security clearance in the course of reviewing an adverse action." (22)
The Supreme Court, in a 5-3 opinion, found that the MSPB did not have the authority to review national security-clearance determinations. (23) The Court explained that the Constitution vests powers related to national security in the Executive, and the necessary expertise has since been situated in that branch of government. (24) That rationale, coupled with the lack of explicit statutory authority granting the MSPB the power of review over security-clearance determinations, (25) led the Court to find no jurisdiction. (26)
The Court justified its decision textually by pointing to the constitutional vesting of the military power in the Executive and rationally by positing that third parties should not be able to second-guess predictive national-security decisions. (27) The explanation began by pointing to the Constitution, (28) specifically the President's role as Commander in Chief. (29) Part of that power, the Court recognized, is the government's "compelling interest" in keeping sensitive national-security information confidential. (30) Recognizing the role of the Executive in foreign policy and national security, the Court described the role of the judiciary as "show[ing] the utmost deference," (31) and noted that, barring an express authorization from Congress, "courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs." (32)
The Court then pointed out that security-clearance determinations specifically are not the types of decisions to be second-guessed. (33) Security clearances are not final rulings on the character of an individual but rather "judgment call[s]" attempting to predict future behavior and the likelihood of an individual compromising sensitive information. (34) This type of...
