In Lee v Garland (USCADC No. 20-5221, 10/29/2024) the case presents a common story with a twist in how the former employee tried to challenge his removal.
When a federal employee whose job requires an active security clearance loses that clearance, regardless of why, the agency either moves the employee to a job that does not require a clearance or must remove the employee from the service. If removal is processed, any appeal to the Merit System Protection Board is pretty much going to be unsuccessful. A subsequent attempt to talk the U.S. Federal Circuit Court of Appeals into overturning the MSPB is also going to be pretty much unsuccessful. In this case, Mr. Lee tried to turn around his firing by invoking Title VII.
Mr. Lee was hired by the FBI in 2003 into a position that required a top secret clearance. An American with Chinese ancestry, Lee successfully obtained the clearance and all was well until he was required to take a periodic polygraph exam in 2013. The FBI as a matter of routine requires cleared employees to pass an exam to maintain the clearance. The examiner for the 2013 test noted problems when Lee answered questions about “terrorism, unauthorized release of information, and failure to disclose security violations.” (Opinion p. 4)
When Lee was given a follow-up exam his “breathing patterns indicated deception,” according to the examiner. (P. 4)
This time, the FBI revoked Lee’s clearance. Internal to the agency is a review process, the Access Review Committee (ARC) of the Department (DOJ), which Lee invoked. However, when the ARC ordered up a third polygraph, it still presented problems for Lee. Before he even began the exam Lee admitted he had been a news source on FBI polygraph procedures. As he got into the exam, he walked out when asked what he had told media people. (Pp. 4-5)
The ARC upheld the revocation of Lee’s clearance, citing the agency’s obligation under Presidential Executive Orders on national security to “resolve all doubts in its clearance adjudications in favor of national security.” (P. 5)
Since Lee lost his clearance the FBI removed him from his position as an intelligence officer. Lee pursued his appeal through Title VII, claiming he was discriminated against in the various polygraph tests. When unsuccessful, he took his discrimination claims to the U.S. district court where he also added claims of First and Fifth Amendment violations as well as discrimination and retaliation in the final polygraph exam. For good measure he sued two DOJ officials in their personal capacity. The district court dismissed all of Lee’s claims. Lee took his case to the U.S. appeals court, again contending that in revoking his clearance the DOJ violated not only Title VII but the First and Fourteenth Amendments.
The appeals court first considered whether Lee’s claims “are justiciable—in other words, whether they are within ‘the courts’ competence’ to answer.” (P. 6,)
Citing the Supreme Court’s decision in Department of Navy v. Egan (484 U.S. 518), the appeals court holds that Egan “bars judicial review of these statutory and constitutional claims.” (p. 2) Citing several Supreme Court decisions and its own precedents, the appeals court sums its holding in this case this way: “…the Constitution commits national-security judgments to the political branches….And we explained that the judiciary cannot review them because it is the job of the Executive—not the court—‘to acquire and exercise the expertise of protecting national security.’…[T]hese precedents establish that federal courts generally may not second-guess the political branches’ discretionary judgments about matters of national security.” (Pp. 15-16)
And in case the court’s holding in any was not clear, it goes on to state that a security clearance decision is just such a judgment not to be second guessed by the courts: “And at least absent congressional action to restrict executive discretion in this area, there are no manageable standards to support judicial review of clearance decision.” (p. 16)
In short, the appeals court holds that the claims in this case are “nonjusticiable.” (p. 24) Mr. Lee’s only recourse would be to try to persuade the Supreme Court to take up his appeal. That seems unlikely.
