42 F.4th 428
4th Cir.2022Background:
- Nathan Mowery, a contractor with an existing Top Secret/Sensitive Compartmented Access contractor clearance, received a conditional offer to serve as a CIA assignee in 2016 subject to additional CIA personnel-security processing (including a psychological exam).
- During the CIA psychological evaluation Mowery stated he abstained from alcohol for religious reasons and was asked about his Islamic faith; other applicants reported not being asked religion questions.
- The CIA sent an email stating it "can no longer continue" Mowery’s assignee processing based on information obtained during processing; a CIA liaison later explained processing was halted for a failed mental-health evaluation.
- Because processing was halted, Mowery lost access to a CIA worksite, was reassigned to a low-responsibility desk, and later accepted a different contractor role with similar duties but through his prior contractor clearance.
- Mowery filed EEOC complaints (dismissed), then sued the National Geospatial-Intelligence Agency and the CIA under Title VII for religious discrimination and retaliation; the district court dismissed for lack of subject-matter jurisdiction under Department of the Navy v. Egan.
- The Fourth Circuit affirmed, holding Egan bars judicial review where the agency’s action involved predictive national-security judgments (here, a psychologist’s assessment and the halt of processing).
Issues:
| Issue | Plaintiff's Argument (Mowery) | Defendant's Argument (Agencies) | Held |
|---|---|---|---|
| Whether courts may review the CIA’s decision to halt assignee processing | Mowery: the CIA merely refused to complete processing, not a security-clearance denial, so Egan does not bar review | Agencies: the halt involves the same predictive national-security judgment Egan insulated from review | Held: Egan bars review; the halt was a decision involving predictive judgment and is nonjusticiable |
| Whether Egan is limited to technical security-clearance determinations | Mowery: Egan applies only to formal clearance denials/suspensions/revocations | Agencies: Egan’s rationale extends to similar national-security authorizations that involve predictive judgments | Held: Egan extends beyond labels to decisions involving security-related predictive judgments (psych eval/human reliability decisions) |
| Whether the CIA’s action was a non-decision or lacked predictive-judgment qualities | Mowery: no identified psychologist recommendation/credentials and CIA said it did not "deny" a clearance | Agencies: the email and affidavits show a determination based on a psychologist’s assessment of trustworthiness/reliability | Held: the email and record reflect a determinate predictive judgment by agency medical personnel protected by Egan |
| Whether alternative procedures or equitable remedies (injunction, in camera review, or remand to amend) allow judicial relief despite Egan | Mowery: seeks injunction against discrimination, alleges lack of internal appeal and asks for in camera review or leave to amend for constitutional claims | Agencies: judicial review or in camera probing would improperly second-guess the agency’s predictive national-security judgment | Held: injunction would require merits review of the security judgment and is barred; in camera review is improper; appellate request to remand for unspecified amendments denied |
Key Cases Cited
- Department of the Navy v. Egan, 484 U.S. 518 (1988) (agency security-clearance decisions involve predictive judgments committed to executive discretion and are generally nonjusticiable)
- Becerra v. Dalton, 94 F.3d 145 (4th Cir. 1996) (distinguishing reviewable inquiry stages from nonreviewable security-clearance decisions; initiation and completion of clearance proceedings are inseparable)
- Foote v. Moniz, 751 F.3d 656 (D.C. Cir. 2014) (Egan extended to Human Reliability Program certification decisions based on psychologist evaluations)
- Sanchez v. United States Dep't of Energy, 870 F.3d 1185 (10th Cir. 2017) (refusal to recertify Human Reliability Program certificate is a security-clearance-like decision insulated by Egan)
- Rattigan v. Holder, 689 F.3d 764 (D.C. Cir. 2012) (limited holding that some non-security-division referrals may be reviewable; distinguished in this circuit)
- Jamil v. Secretary, Dep't of Defense, 910 F.2d 1203 (4th Cir. 1990) (courts may require agencies to follow their own procedures, but may not review the merits of security-clearance determinations)