No Judicial Review of Security Clearance Revocation in Discrimination Challenge

From Lee v. Garland, decided Tuesday by the D.C. Circuit (in an opinion by Judge Gregory Katsas, joined by Judges Karen LeCraft Henderson and Douglas Ginsburg)

The Federal Bureau of Investigation revoked Jason Lee's security clearance after he failed three polygraph examinations. It then fired Lee because his job required a clearance. Lee contends that the revocation was based on race, national origin, and protected speech. He brings various claims under the First Amendment, the Fifth Amendment, and Title VII. We hold that Department of Navy v. Egan (1988), bars judicial review of these statutory and constitutional claims….

In 2003, the FBI hired Jason Lee, an American citizen of Chinese ancestry, and granted him a Top Secret security clearance. To ensure that cleared individuals remain trustworthy, the FBI periodically subjects them to polygraph examinations. Lee failed his 2013 exam. The examiner noted problems with Lee's answers to questions about terrorism, unauthorized release of information, and failure to disclose security violations. Lee then failed a follow-up exam in 2014. This time, the examiner noted that Lee's breathing patterns indicated deception. The FBI revoked Lee's clearance.

Lee appealed the revocation to the Access Review Committee (ARC) of the Department of Justice, which reviews clearance revocations by DOJ component agencies. In 2018, the ARC ordered Lee to sit for a third polygraph exam, which was administered by FBI Agent Stacy Smiedala. Before that exam, Lee admitted to serving as a source for media articles exposing what he regarded as inappropriate FBI polygraph testing practices. The exam ended when Lee refused to answer further questions about what information he had divulged to the media.

The ARC affirmed the revocation of Lee's clearance in a memorandum signed by its chairperson, Marie Barr Santangelo. Among other considerations, she cited Lee's deception in the 2018 exam; his possible deception or use of countermeasures in earlier exams; his refusal to answer questions about the articles; and the FBI's obligation under Executive Order No. 12,968 to resolve all doubts in its clearance adjudications in favor of national security. After the ARC's decision, the FBI fired Lee because his job as an intelligence officer required a clearance….

Like this case, [Egan] involved an individual terminated from federal employment after the government denied him a security clearance that was necessary for the job in question. The Civil Service Reform Act (CSRA) authorized the Merit Systems Protection Board (MSPB) to review the termination decision. The question presented was whether this allowed the MSPB "to review the substance of an underlying decision to deny or revoke a security clearance." The Supreme Court held that it did not.

The Court rested its decision on Article II of the Constitution. It explained that Article II, in making the President the head of the Executive Branch and the Commander in Chief, vests him with broad power over military and foreign affairs. And that power includes "authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information." The Court explained that since World War I, the Executive Branch has sought "to protect national security information by means of a classification system graded according to sensitivity." The Court held it was "not reasonably possible for an outside nonexpert body to review" the difficult predictive judgments underlying a decision to afford access to classified information, which "must be made by those with the necessary expertise."

The Court invoked a long line of cases establishing that "courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs." And it stressed that the presumption of reviewability "runs aground when it encounters concerns of national security." For all these reasons, the Court concluded that the decision whether to grant an employee a security clearance, "a sensitive and inherently discretionary judgment call, is committed by law to the appropriate agency of the Executive Branch."

The court also noted that Ryan v. Reno (D.C. Cir. 1999) applied Egan to Title VII discrimination, and it then turned to Lee's constitutional  claims:

On several occasions, this Court has reserved the question whether Egan bars courts from considering constitutional challenges to adverse clearance decisions. The question is difficult. On the one hand, Egan broadly held that the decision to grant security clearances "is committed by law to the appropriate agency of the Executive Branch." And it did so for reasons that seem to "encompass constitutional challenges as well as statutory ones." On the other hand, Egan involved only a statutory claim under the CSRA. And soon after Egan, the Supreme Court stressed that it would present a "serious constitutional question" to deny a plaintiff any judicial forum in which to raise colorable constitutional challenges to agency action. Webster v. Doe (1988).

On the surface, there is tension between these holdings. But Webster concerned only the statutory authority of the Director of Central Intelligence to fire agency employees—which was held not to foreclose judicial review of constitutional claims. Webster did not consider claims that might impinge on the President's core Article II powers as the head of the Executive Branch and as Commander in Chief. And Egan held that the authority to "protect national security information" by denying or revoking security clearances is such a core Article II power. At a minimum, Egan makes clear that generally applicable statutes should not be applied to impinge on that power absent some clear statement by Congress. And where Congress has not restricted the President's exercise of that power, we think Egan also bars judicial review of constitutional claims like Lee's. In that circumstance, the reasoning of Egan triggers application of the political question doctrine, which forecloses review of constitutional claims.

Read the whole opinion for more. Joshua M. Koppel represents the government.