Recently, I wrote an article about ageism in the security clearance process; specifically, the extent to which younger applicants are sometimes given a pass on issues (e.g. recent drug use) that older security clearance applicants find to be an insurmountable obstacle.

On the heels of that assessment, several readers contacted me with variations of the same good question: “What about Equal Employment Opportunity (EEO) laws and/or constitutional claims? Isn’t the government prohibited from discriminating against people based upon a status like age?”

In almost every other context, the answer would be a resounding “yes.” Unfortunately, the United States Supreme Court has held that security clearance determinations are exclusively within the purview of the Executive Branch and cannot be second-guessed by courts (see Department of the Navy v. Egan, 1988). Not only are courts barred from reviewing the stated reasons for an agency’s security clearance decision, they also can’t, as a general matter, “peer behind the curtain” to assess whether those stated reasons form a pretext for other, hidden reasons.

It remains an unresolved question legally whether certain constitutional claims would trump the deference courts grant to the Executive Branch on security clearance matters. For example, if a federal agency overtly denied a security clearance to someone on the basis of race or religion – neither of which, unlike age, serves as a credible context within which to assess an applicant’s misconduct. Nonetheless, the Supreme Court’s past jurisprudence on the matter sets an extremely high bar for any potential litigant to clear. Most applicants don’t have the time or money to even attempt such a feat.

It is the opinion of this author that in order to survive a motion for dismissal under current law for “failure to state a claim”, the alleged discrimination would have to be so egregious and so overt that it is effectively indisputable as the basis for the agency’s decision. The result of this legal landscape is that lower officials and organizations – agency EEO managers, the Equal Employment Opportunity Commission, etc. – typically will dismiss out-of-hand EEO claims predicated on security clearance denials or revocations. Unless one has limitless funds or a public interest law firm willing to litigate such a case pro bono, the cost of potentially setting federal legal precedent would bankrupt most applicants.

When an EEO complaint becomes a Whistleblower Case

Like many aspects of law, however, there is a work-around. If evidence exists that the security clearance denial or revocation is – in whole or in part – retaliation for an applicant’s official complaints about an agency’s failure to make disability or religious reasonable accommodations, those complaints could theoretically serve as a whistleblower disclosure that would bring the clearance holder within the protections afforded to whistleblowers under Presidential Policy Directive 19 and 50 U.S.C. § 3341(j) (“Retaliatory Revocation of Security Clearances”). The individual could then file his or her case under the auspices of the Directive and the statute as opposed to filing a traditional EEO case.

At least for now, EEO claims and security clearance cases are like oil and water: they just don’t mix. And so, absent an extraordinary, precedent-setting case that clarifies the boundaries of past Supreme Court precedent, we are left with a situation in which security clearance law is the untamed frontier of both employment and constitutional law.

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

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Attorney Sean M. Bigley represents clients worldwide in security clearance denials, revocations, and the security clearance application process. He is a former investigator for the Defense Counterintelligence and Security Agency (then-U.S. Office of Personnel Management). For more information, please visit www.bigleylaw.com. Readers will also find a low-cost, self-help option for obtaining copies of their security clearance background investigations and DISS/Scattered Castles records at www.bigleylaw.com/security-clearance-investigation-records.