Ryan v. Reno, 98-5036

• Decision Date: 26 February 1999
• Docket Number: No. 98-5036,98-5036
• Citation: 168 F.3d 520
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 287, 75 Empl. Prac. Dec. P 45,776, 335 U.S.App.D.C. 12 John Clement RYAN, Eugene Glynn, Francis Reale and Joseph Halvey, Appellants, v. Janet RENO, United States Attorney General, United States Department of Justice and United States Immigration & Naturalization Service, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 520

168 F.3d 520

79 Fair Empl.Prac.Cas. (BNA) 287,

75 Empl. Prac. Dec. P 45,776, 335 U.S.App.D.C. 12

John Clement RYAN, Eugene Glynn, Francis Reale and Joseph Halvey, Appellants, v. Janet RENO, United States Attorney General, United States Department of Justice and United States Immigration & Naturalization Service, Appellees.

No. 98-5036.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 7, 1998.

Decided Feb. 26, 1999.

Appeal from the United States District Court for the District of Columbia (No. 96cv01015).

William F. Causey argued the cause for the appellants. Harry J. Kelly, III was on brief for the appellants.

Diane M. Sullivan, Assistant United States Attorney, argued the cause for the appellees. Wilma A. Lewis, United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, were on brief for the appellees.

Before: GINSBURG, HENDERSON and ROGERS, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Appellants John C. Ryan, Eugene Glynn, Francis Reale and Joseph Halvey challenge the district court's dismissal of their employment discrimination suit. In their complaint the appellants, who are of Irish birth and of dual Irish and American citizenship, alleged that the United States Department of Justice (DOJ) and the United States Immigration and Naturalization Service (INS) denied them security clearances and withdrew offers of employment contingent on the clearances on account of national origin and citizenship in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. ¹ The district court dismissed the action, concluding it lacked jurisdiction to review the reason given for withdrawing the offers-that because of the length of time the appellants had lived abroad, DOJ could not conduct adequate background investigations to grant them the required clearances. We review the district court's dismissal for lack of jurisdiction de novo, taking as true the facts alleged in the complaint. Moore v. Valder, 65 F.3d 189, 196 (D.C.Cir.1995), cert. denied, 519 U.S. 820, 117 S.Ct. 75, 136 L.Ed.2d 35 (1996). Applying this standard, we conclude that the district court's dismissal should be affirmed.

I.

The material facts are undisputed. In April 1998 INS announced openings for Immigration Inspectors at Shannon International Airport in Shannon, Ireland and published an advertisement in Irish newspapers soliciting applicants. The Immigration Inspector position is a "sensitive" one requiring background investigations and security clearance of applicants. The appellants, then residents of Ireland, applied for the openings. In letters dated July 7, 1988 Robert A. Cleary, Chief of the Operations Services Branch of the INS Personnel and Training Division, informed each of the applicants that each had been "tentatively selected" for the positions "pending satisfactory completion of security requirements" and requested that each notify INS of his "acceptance or declination" and complete and return enclosed security forms. Joint Appendix (JA) 97-100. Each appellant accepted the offer and returned the forms as requested. To expedite the applicants' hiring, INS sent "waiver packages" to DOJ's Office of Security and Emergency Planning Staff (SEPS). A memorandum in each package requested "a waiver of the preappointment full-field investigation" of each applicant and asserted: "The individual will not have access to classified information until after the requisite full-field background investigation has been completed and an appropriate security clearance granted pursuant to applicable Departmental regulations. Access to sensitive Department of Justice information will be kept to a minimum." See, e.g., JA 185, 186. The waiver requests were "disapproved" on June 27, 1989. In a memorandum to INS of the same date, SEPS Director Jerry Rubino explained the disapproval:

Since these applicants have lived in Ireland for a period of years and cannot be adequately investigated for the purpose of determining their trustworthiness, and therefore their eligibility to occupy sensitive positions, I have decided to disapprove your waiver request.

... I recommend that full-field [background investigations] should not be conducted on these individuals. Due to the sensitivity of these positions, I believe that INS should find candidates that have lived in the United States for the last several years so that an adequate full-field [background investigation] can be conducted.

JA 301. Accordingly, INS personnel chief Cleary informed each applicant in a letter dated August 15, 1989: "The Department of Justice Security Office has determined that, since you have lived in Ireland for an extended period of time, an adequate background investigation cannot be conducted to determine your eligibility to occupy a sensitive position. Therefore, we must withdraw our previous appointment offer." See, e.g., JA 361-63. Later that year DOJ promulgated a policy requiring that an Immigration Inspector applicant "have for three of the five years immediately prior to applying for this position: 1) resided in the United States; 2) worked for the United States overseas in a Federal or military capacity; or 3) be [sic] a dependent of a Federal or military employee serving overseas." JA 358.

In May and June 1990 the four unsuccessful applicants filed discrimination complaints with DOJ. In a decision dated September 29, 1993 an administrative law judge (ALJ) found that "the Agency discriminated against Complainants on the basis of their national origin, Irish American, when their offers of tentative employment for the position of Immigration Inspector at Shannon Airport in Ireland were withdrawn on August 15, 1989." JA 563. In a final agency decision dated December 2, 1993 the DOJ Complaint Adjudication Office rejected the ALJ's finding of discrimination both for lack of evidentiary support and because the decision not to issue a security clearance was unreviewable under Department of Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988).

On September 9, 1994 the four complainants appealed the DOJ decision to the United States Equal Employment Opportunity Commission (EEOC), which affirmed DOJ on the sole ground that the complainants had failed to prove discrimination. The EEOC rejected DOJ's conclusion that review of the security clearance denial was barred, stating: "The Commission has repeatedly held that it has no authority to review the substance of security clearance determinations or the validity of the employer's requirement of a security clearance, but that it does have the authority to determine whether the grant, denial, or revocation of a security clearance was conducted in a nondiscriminatory manner." JA 606 (citations omitted). On February 1, 1996 the EEOC denied the complainants' request for reconsideration.

Ryan filed this action in the district court on May 2, 1996 and the three other plaintiffs were joined in December 1996. On September 30, 1997 the government filed a motion to dismiss or for summary judgment on the grounds that (1) only one plaintiff (Ryan) had timely filed suit and (2) the court lacked jurisdiction to review the security clearance decision. In a memorandum opinion and order dated January 28, 1998 the district court dismissed the action for lack of jurisdiction concluding it could not assess the sufficiency of the plaintiffs' claims without reviewing Rubino's decision not to grant security clearances-a review that was foreclosed under Egan. The four plaintiffs appealed the dismissal.

II.

The outcome here is controlled, as DOJ and the district court concluded, by the Supreme Court's decision in Department of Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988). The respondent in Egan had been hired to work at the Navy's Trident Naval Refit Facility in Bremerton, Washington contingent on "satisfactory completion of security and medical reports." 484 U.S. at 520, 108 S.Ct. 818. When the Director of the Naval Civilian Personnel Command denied him a security clearance, Egan was discharged as ineligible to work at the facility. Egan appealed his discharge to the Merit Systems Protection Board (Board) which concluded it was without authority to review the clearance. Egan then appealed to the Federal Circuit Court of Appeals, which reversed the Board and remanded for review of the clearance decision. The Supreme Court granted certiorari and reversed the Federal Circuit, holding that the Board lacked authority "to review the substance of an underlying decision to deny or revoke a security clearance in the course of reviewing an adverse action." Egan, 484 U.S. at 520, 108 S.Ct. 818. The Court explained:

For "reasons ... too obvious to call for enlarged discussion," CIA v. Sims, 471 U.S. 159, 170, 105 S.Ct. 1881, 1888, 85 L.Ed.2d 173 (1985), the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it. Certainly, it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence. Nor can such a body determine what constitutes an acceptable margin of error in assessing the potential risk.

484 U.S. at 529, 108 S.Ct. 818. Three other circuits have held that Egan applies in a Title VII action to preclude a "nonexpert...