550 F.Supp.3d 303
E.D. Va.2021Background
- Plaintiff Nathan Mowery, a former NGA contractor/employee assigned to a CIA worksite, sought conversion from contractor to an NGA employee "CIA Assignee" position that required an additional CIA psychological security assessment.
- During the December 2016 psychological exam, the examiner asked questions about Mowery’s recent conversion to Islam; plaintiff alleges these questions were disproportionate and discriminatory.
- On May 17, 2017 the CIA emailed that it would "no longer continue [plaintiff’s] assignee processing," later informing NGA the processing was "halted" due to a "failed mental health evaluation."
- NGA reassigned Mowery to a less-responsible non-CIA worksite position; Mowery resigned in August 2017 and took a contractor job using his prior clearance.
- Mowery filed EEO complaints against the CIA and NGA, both dismissed; he then sued under Title VII for religious discrimination and constructive discharge seeking damages and injunctive relief.
- The sole legal question addressed: whether federal courts have subject-matter jurisdiction to hear Title VII claims that would require review of Executive Branch security-clearance determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Title VII suit that requires review of a security-clearance decision is justiciable | Mowery: his Title VII claims and requested injunction do not require review of the CIA’s security decision; relief could be issued without probing classified or predictive judgments. | Defendants: Egan bars judicial review of security-clearance decisions; reviewing plaintiff’s claim would necessarily require examining the CIA’s non-reviewable predictive judgment. | Court: Dismissed for lack of subject-matter jurisdiction under Dep’t of Navy v. Egan because adjudication would necessarily review a security-clearance decision. |
| Whether the CIA’s decision to "halt processing" is distinguishable from a formal denial | Mowery: halting processing is not the same as a formal denial and thus not covered by Egan. | Defendants: no functional difference—both are predictive national-security judgments non-reviewable under Egan. | Court: "Halt" is effectively a denial and is non-reviewable; distinction is without legal effect. |
| Whether requested injunctive relief avoids Egan | Mowery: injunction preventing future discrimination is independent of clearance merits and thus reviewable. | Defendants: enjoining future discrimination would still require factual inquiry into the clearance decision and its basis, triggering Egan. | Court: Injunctive relief would require forbidden review; it does not save jurisdiction. |
| Whether prior administrative (EEOC) review or availability of administrative remedies affects jurisdiction | Mowery: administrative review (EEOC) or lack thereof makes judicial review appropriate. | Defendants: Egan’s constitutional and separation-of-powers grounds do not hinge on adequacy of administrative process; EEOC dismissals do not permit Article III review. | Court: EEOC review and dismissals do not overcome Egan; jurisdiction remains lacking. |
Key Cases Cited
- Dep’t of Navy v. Egan, 484 U.S. 518 (1988) (security-clearance determinations are committed to the Executive and not subject to judicial review)
- Campbell v. McCarthy, 952 F.3d 193 (4th Cir. 2020) (applying Egan to dismiss employment discrimination claims that require review of clearance decisions)
- Foote v. Moniz, 751 F.3d 656 (D.C. Cir. 2014) (psychologist’s predictive certification decision for national-security program is covered by Egan)
- Sanchez v. Dep’t of Energy, 870 F.3d 1185 (10th Cir. 2017) (predictive national-security judgments underlying clearance-like decisions are non-justiciable under Egan)
- Becerra v. Dalton, 94 F.3d 145 (4th Cir. 1996) (distinction between initiating an investigation and denying a clearance is without legal significance under Egan)