Ronnie Foote v. Ernest Moniz , 751 F.3d 656 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 11, 2014 Decided May 13, 2014
No. 13-5093
RONNIE FOOTE,
APPELLANT
v.
ERNEST MONIZ, SECRETARY OF ENERGY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-01351)
Ronnie Foote, appearing pro se, argued the cause and
filed the briefs for appellant.
Charles W. Scarborough, Attorney, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
were Stuart F. Delery, Acting Assistant Attorney General,
Ronald C. Machen Jr., U.S. Attorney, and Marleigh D.
Dover, Attorney, U.S. Department of Justice.
Before: KAVANAUGH and PILLARD, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
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Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: In order to protect national
security, the Department of Energy’s Human Reliability
Program carefully evaluates employment applicants for
certain positions, such as those where the employees would
have access to nuclear devices, materials, or facilities. A
limited number of positions fall into that category and require
certification under this Program. See 10 C.F.R. § 712.10. To
obtain certification, applicants must meet a range of
requirements, including passing a psychological evaluation,
passing random drug tests, annually submitting an SF-86
Questionnaire for National Security Positions, and
successfully completing a counterintelligence evaluation that
includes a polygraph examination. See id. § 712.11.
In this case, the Department refused to certify Ronnie
Foote under the Human Reliability Program. Foote claims
that, in denying him certification, the Department relied on
the psychological evaluation of a Department psychologist,
Dr. Daniel Seagrave, who allegedly recommended against
certification because of Foote’s race. Because Foote could
not obtain the certification, he could not obtain the job he
wanted at the Department.
Foote sued under Title VII. The Government says that
Foote’s Title VII claim is barred by Department of the Navy v.
Egan, 484 U.S. 518 (1988). The District Court agreed.
To resolve the Egan issue here, we must address two
questions. First, under Egan, is the Department of Energy’s
denial of Human Reliability Program certification the kind of
agency judgment that is insulated from judicial review, absent
a statute that specifically makes the judgment reviewable?
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Second, was Dr. Seagrave in the category of Department of
Energy personnel trained and authorized to make a judgment
about Foote’s suitability for certification?
First, we conclude that the Department of Energy’s
decision not to certify an applicant under the Human
Reliability Program is the kind of judgment covered by Egan.
Egan stated that the presumption in favor of judicial
review of administrative action “runs aground when it
encounters concerns of national security.” 484 U.S. at 527.
The Court identified the President’s Article II Commander in
Chief authority – a “constitutional investment of power in the
President” that “exists quite apart from any explicit
congressional grant” – as a source of the Executive Branch’s
authority to control access to classified information. Id. And
the Court recognized that “unless Congress specifically has
provided otherwise, courts traditionally have been reluctant to
intrude upon the authority of the Executive in military and
national security affairs.” Id. at 530. In Egan, the Court
therefore held that the agency’s decision to deny or revoke a
security clearance was not subject to review because Congress
had not specifically provided otherwise.
On several occasions, we have read Egan to bar review,
absent a statute specifically providing otherwise, of an agency
employment action that is based on a similar kind of
predictive national security judgment as that which underlies
the denial or revocation of a security clearance.
For example, in United States Information Agency v. Krc,
the United States Information Agency had refused to clear a
Foreign Service officer for overseas postings. 905 F.2d 389
(D.C. Cir. 1990). Citing Egan, we concluded that the
agency’s decision was not reviewable. See id. at 394-96. We
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reasoned that the “nature” of the agency’s decision was
“analogous to the Navy’s decision in Egan” because it
involved an assessment of whether the officer might
compromise sensitive information. Id. at 395.
In Ryan v. Reno, the Department of Justice had decided
that several job applicants were ineligible for security
clearances. 168 F.3d 520 (D.C. Cir. 1999). The applicants
sued under Title VII. We ruled that the Department’s
decision was not reviewable because it was “based on the
same sort of ‘predictive judgment’ that Egan tells us ‘must be
made by those with the necessary expertise in protecting
classified information,’ without interference from the courts.”
Id. at 524 (quoting Egan, 484 U.S. at 529).
In Bennett v. Chertoff, the Transportation Security
Administration had decided that a job applicant was not
“suitable” for employment because she could not obtain a
TSA security clearance. 425 F.3d 999 (D.C. Cir. 2005). The
applicant sued under Title VII. We again stated that the
agency’s decision was not reviewable under Egan. See id. at
1001-04.
In our view, the Egan principle, as applied by the
Supreme Court and in our cases, likewise applies to the
Department of Energy’s decision whether to certify someone
under its Human Reliability Program. To begin with, the
Government has a substantial national security interest in
denying unreliable or unstable individuals access to nuclear
devices, materials, and facilities, a point that requires no
extended discussion. Indeed, the Human Reliability Program
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
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may be impaired” by any “condition or circumstance that may
represent a reliability, safety, or security concern.” Human
Reliability Program, 69 Fed. Reg. 3213, 3213-14, 3223 (Jan.
23, 2004). Further aligning this program with Egan, an
applicant seeking certification under the Human Reliability
Program must already possess or obtain a “Q” access
authorization, the Department of Energy’s highest level of
security clearance. See 10 C.F.R. § 712.11(a)(1).
In short, the decision whether to certify an applicant
under the Human Reliability Program, like the decision
whether to grant a regular security clearance, is “an attempt to
predict” an applicant’s “future behavior and to assess
whether, under compulsion of circumstances or for other
reasons, he might compromise sensitive information.” Egan,
484 U.S. at 528. Therefore, the decision whether to certify an
applicant under the Human Reliability Program is the kind of
agency judgment that Egan insulates from review, absent a
statute that specifically says otherwise.
Second, we conclude that Dr. Seagrave, the individual
who performed the psychological evaluation of Foote, was in
the category of officials within the Department of Energy
authorized and trained to make a judgment about Foote’s
suitability for certification.
In Rattigan v. Holder, we held that Egan shields from
review the “security-clearance-related judgments of agency
personnel specifically trained and authorized to make them.”
643 F.3d 975, 982 (D.C. Cir. 2011), on rehearing, 689 F.3d
764, 768 (D.C. Cir. 2012) (adhering to prior panel decision on
this point). The psychological evaluation component of the
Human Reliability Program determines whether an applicant
“(1) Represents a security concern; or (2) Has a condition that
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may prevent the individual from performing . . . duties in a
reliable and safe manner.” 10 C.F.R. § 712.14(a); see also 69
Fed. Reg. at 3215 (psychological evaluation aims to assess
“at-risk behavior or conditions that raise a security concern”).
The psychological evaluation is administered by what the
regulations describe as Designated Psychologists who must
meet specified education and experience requirements. See
10 C.F.R. § 712.33. Foote was examined by one such
psychologist, Dr. Seagrave. Dr. Seagrave served as the
Alternate Lead Psychologist at the National Nuclear Safety
Administration within the Department of Energy. As a
psychologist specifically trained and assigned to conduct
psychological evaluations for this important program, Dr.
Seagrave was well within the category of individuals
authorized under Rattigan to make a judgment about Foote’s
suitability for certification. Therefore, under Egan, the
Department’s decision not to certify Foote under the Human
Reliability Program is unreviewable, and Foote’s suit may not
proceed.
We affirm the judgment of the District Court.
So ordered.