DISCUSSION PAPER
Judicial Review of Claims of Discrimination in Security Clearance Determinations
INTRODUCTION
A working group was convened to consider whether the Department of Justice should favor some form of judicial review for claims of discrimination in security clearance determinations. In a series of cases over the last several years, the Department has taken the position that federal courts lack jurisdiction to hear federal employees' claims of race, sex, religious, disability or other types of discrimination in security clearance determinations under either Title VII or the Constitution. The working group's task was to review the position the Department has taken and to reconsider the possibility of advocating some avenue of judicial review. After extended discussion, the working group has formulated a proposal that aims to permit limited judicial review of security clearance determinations while minimizing the risks to national security. The proposal, in brief, is designed to permit the court to review equitable constitutional claims (but not statutory claims) of discrimination; prevent courts from ordering discovery of similarly situated persons; and limit relief to a remand for reconsideration by a different agency review panel. Although at least some members of the group continue to favor the Department's prior litigating position, and others continue to favor broader forms of relief, all are agreed that the proposal represents our best effort to accommodate some limited form of judicial review to the articulated national security concerns.
BACKGROUND The Department to date has asserted that there is no judicial review for claims of discrimination in security clearance determinations. The Civil Division has advanced this position principally in cases brought under Title VII; it has also taken the same position for claims brought directly under the Constitution. The Title VII argument is anchored in the Supreme Court's decision in Department of the Navy v. Egan, 484 U.S. 518 (1988). In that case, the Court held that a statute should not be interpreted to grant jurisdiction to review the merits of a security clearance determination ''unless Congress specifically has provided otherwise." 484 U.S. at 530. Thus, on the facts of that case, the Court held that the Civil Service Reform Act of 1978, 5 U.S.C. 1201 et seq., did not give the MSPB authority to review the substance of a denial of a security clearance. The basis of the ruling was the great deference the Constitution accords to the executive branch in matters of national security.
The Civil Division has argued that the Egan presumption of no review is not overcome by the language of Title VII, which requires that "[a]ll personnel actions affecting employees or applicants for employment * * * in executive agencies * * * be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. 2000e-16(a). This position has prevailed in a number of cases and has been extended to other remedial legislation. See, e.g., USIA v. Krc, 905 F.2d 389, 395-97 (D.C. Cir. 1990) (no review of clearance decisions by Foreign Service Grievance Board under the 1980 Foreign Service Act; review allowed as to constitutional claim of discrimination based on sexual orientation); Guillot v. Garrett, 970 F.2d 1320, 1324-26 (4th Cir. 1992) (no review of alleged discrimination in clearance adjudication under the Rehabilitation Act).
As for constitutional claims, the Department has argued that as a general matter, quite apart from the special context of security clearance determinations, Title VII provides the exclusive remedy for racial discrimination in federal employment. Under a separate line of precedent, represented by Brown v. GSA, 425 U.S. 820 (1976), where Congress has provided a comprehensive remedial scheme, that scheme preempts other statutory or constitutional remedies. This principle, we have argued, precludes judicial consideration of all claims of racial discrimination outside of Title VII.
The resulting position in the security clearance context, therefore, involves the following two step analysis: 1) under Brown v. GSA, plaintiffs alleging discrimination in federal employment generally are limited to Title VII; but 2) Title VII does not overcome the Egan presumption against judicial review of security clearance determinations.1 The bottom-line position is thus that security clearance claims are left without a judicial forum. The Department successfully asserted this position in two courts of appeals, and the Supreme Court denied the petitions for certiorari in those cases. See Brazil v. Dalton, 66 F.3d 193 (9th Cir. 1995), cert. denied, 116 S. Ct. 1317 (1996); Mata v. FBI, 71 F.3d 513 (5th Cir. 1995), cert. denied, 116 S.Ct. 1877 (1996). See also Hill v. Department of the Air Force, 844 F.2d 1407, 1411-12 (10th Cir.), cert. denied, 488 U.S. 825 (1988) (no judicial review even of constitutional challenges to clearance decisions). 2
Thus far, this "no review" position has been taken by the Civil Division and certain U.S. Attorneys Offices, and no occasion has arisen for the Solicitor General to pass on it.3 The Civil Rights Division and others within the Department have voiced concern about the position taken by the Department that there is no judicial review of discrimination claims. They rely on policy considerations, the language of Title VII, and the Supreme Court's decision in Webster v. Doe, 486 U.S. 592 (1988), decided four months after Egan. That case presented statutory and constitutional claims by a former CIA employee who alleged that his termination on the ground that he was a threat to security was the result of discrimination based on sexual orientation. The Court held that Section 102(c) of the National Security Act, 50 U.S.C. 402(c), precluded review under the APA; but the Court held that the Act did not preclude review of constitutional claims. The Court reasoned that Congress should not be taken to have intended to preclude constitutional claims unless it has explicitly so provided. 486 U.S. at 603. Moreover, the Court said that an attempt by Congress to "deny any judicial forum for a colorable constitutional claim" would raise serious constitutional concerns. Id.
Because discrimination on the basis of sexual orientation is not covered by Title VII, the Department was unable in Webster to argue that the statute provided the exclusive method of review. The position taken by the Department therefore gives rise to the troubling anomaly that victims of racial discrimination have no judicial redress (because Title VII provides the exclusive remedy and under Egan is construed not to reach security clearance determinations), while victims of discrimination based on sexual orientation or other unconstitutional agency action may be afforded limited judicial review (because Title VII does not apply).
The working group's issue thus lies at the intersection of two especially strong presumptions, each recognized by the Supreme Court: the presumption in Egan against construing a statute to provide for judicial review of security clearance determinations and the presumption in Webster against precluding review of equitable constitutional claims. These presumptions have important policy counterparts: there are strong policy reasons for providing a judicial forum for claims of discrimination and strong reasons for committing national security to the discretion of the executive branch. The working group's deliberations addressed these competing legal and policy concerns.
POLICY CONSIDERATIONS A. Policies Favoring Judicial Review
The working group identified three basic considerations militating in favor of judicial review. The first is fairness. Discrimination on the basis of race, or other irrational criteria, violates the most fundamental notions of fairness, which call for the availability of effective redress. Further, under Webster, discrimination based on sexual orientation receives at least limited judicial review. The position the Department has taken in litigation has the anomalous and inequitable consequence that victims of race or gender discrimination have no opportunity for judicial redress, while some judicial review is available for victims of discrimination based on sexual orientation.
Second, the Constitution may require some forum for review of claims of discrimination that are brought under the Constitution itself, as opposed to a statutory scheme such as Title VII. Webster suggests that the Constitution may require an avenue of judicial review for equitable constitutional claims, regardless of any statutory provision to the contrary. Courts that have permitted equitable relief in situations where Congress has either expressly or impliedly foreclosed statutory and Bivens actions have relied heavily on Webster. See, e.g., Czerkies v. Dept. of Labor, 73 F.3d 1435, 1440 (7th Cir. 1996). These courts have concluded that unless, and perhaps even if, Congress has acted with particular clarity to shut off review, a cause of action remains available under the Constitution. See Mitchum v. Hurt, 73 F.3d 30, 34-35 (3rd Cir. 1996). Moreover, Webster established that statutes should not be interpreted as intending to foreclose judicial review absent explicit provision; this point is in considerable tension with our submission in the courts of appeals that under Brown v. GSA, Title VII is the exclusive remedy for discrimination and precludes judicial review of even constitutional claims of discrimination in security clearance determinations.4
Third, the holding in Webster presents a strategic reason for advocating some avenue of judicial review. As the above discussion demonstrates, Webster casts an obvious and very large cloud on our current position. If we conclude that our position is on a collision course with Webster, it might make strategic sense to voluntarily revise our position on judicial review, while stressing to the court the countervailing national security concerns that militate in favor of carefully restricting that channel. Such a submission might maximize the prospects for reducing judicial intrusion into the security clearance process, consistent with Webster.
The working group identified and discussed counterpoints to each of these considerations. Some in the group argued that the fairness point, though compelling in the abstract, is blunted because there is no empirical evidence of widespread discrimination in the process (though no comprehensive study of the matter has been undertaken); moreover, a recent Executive Order requires the creation of administrative review mechanisms that hopefully will address any discrimination that might arise. Executive Order 12968 (mandating creation of new review procedures).5 As for the two Webster-related points, it must be acknowledged that the Department has had success thus far in arguing against judicial review of security clearance determinations, Webster notwithstanding. See Brazil, 66 F.3d at 198 (no review of Bivens action); Mata, 71 F.3d at 515 (same). See also Hill v. Department of the Air Force, 844 F.2d 1407, 1411 (10th Cir.), cert. denied, 488 U.S. 825 (1988) (no judicial review even of constitutional challenges to clearance decisions).6
B. Policies Against Judicial Review
The working group also focused on three basic considerations that militate against judicial review. First, judicial review potentially could jeopardize important national security interests. Of greatest concern is the prospect that judicial review could result in courts directing the United States to grant a security clearance to someone who presents a security risk. The risk to national security also arises if judicial review could lead courts to order the United States to provide discovery concerning security clearance determinations for persons other than the plaintiff. Because the gist of a discrimination claim is that the plaintiff has been treated differently from other similarly situated persons because of an impermissible characteristic such as race, courts typically order discovery of information concerning similarly situated persons, as for example under Title VII. Cf. Buttino v. FBI, 801 F. Supp. 298, 304 (N.D. Cal. 1992) (relying on treatment of similarly situated individuals to show discrimination in security clearance adjudication). There is also a concern that the prospect of judicial review could exert a chilling effect on security clearance decisionmakers, with the risk that clearances will be extended to some inappropriate candidates. The law requires any doubts to be resolved in favor of national security interests, see Egan, 484 U.S. at 528 (citing Executive Order 10450 sects. 2, 7) (decisions must be "clearly consistent with the interests of national security"), and the fear of litigation could effectively dilute this legal standard.
A second, related concern is that judicial review would infringe upon the discretion that is properly accorded to the executive branch in national security matters. The Department has an institutional responsibility to preserve national security as an area of executive judgment and to protect executive judgment from being overridden by court order. Indeed, it can be argued that national security determinations are constitutionally committed to executive discretion, and courts may not, consistent with the separation of powers, review the executive branch's determinations.
Third, courts lack both expertise and institutional competence to review security clearance determinations. Courts are not familiar with the factors that drive individual national security determinations. In addition, to the extent national security determinations are quintessentially a matter of executive judgment, there are no judicially administrable standards for reviewing them.
As with considerations in favor of judicial review, the working group identified and discussed counterpoints to each of these considerations. First, we can argue that remedies can be restricted, so that courts could not order an agency to grant a clearance. Second, it can be argued that the prospect of limited judicial review will not deter executive branch actors from fulfilling their legal duty to err on the side of national security in making clearance determinations. Moreover, any chilling effect can be minimized if damages actions against officials in their individual capacities are not available; the availability of some judicial remedy against the government for discrimination claims may help to persuade courts that a damages remedy against individual officers should not be available. Third, courts accord great deference to the executive in national security matters and thus some in the group expect that in practice discovery will be limited and intervention rare. Moreover, while deference is generally appropriate, it should not extend to discriminatory action. Finally, discovery with respect to similarly situated persons can be limited to whatever exists in the plaintiff's administrative record,7 and courts should be able to decide whether a person was discriminated against without having to second-guess the validity of a good faith national security determination.
PROPOSAL Despite disagreement on a number of specific points, the group was able to reach an overall consensus on certain basic principles. On the one hand, all agreed that there are weighty national security concerns at stake in judicial oversight of security clearance determinations, and that the courts should not be able to order that clearances be granted or set aside determinations that are based on a legitimate national security reason. On the other hand, all agreed that discrimination is abhorrent (and is itself harmful to the national security), and that judicial review would be acceptable if it somehow could be narrowly cabined to prevent compromise to national security interests .
The group for the most part further agreed on three critical implications of this consensus. First, the group unanimously agreed that whatever channel is adopted, courts should not be able to remedy a violation by ordering the executive branch to grant a security clearance. Such a remedy would intolerably jeopardize national security and would usurp the Executive's proper ultimate authority.
Second, damages must not be available against officials for actions taken in connection with the clearance process.
Third, whatever avenue is proposed should not entail court ordered discovery with respect to similarly situated parties beyond that contained in the administrative record of the plaintiff's own case. This represents an important concession on the part of proponents of review, because some claims of discrimination are provable only by inference from disparate treatment of similarly situated persons. This issue received more critical focus in the group's deliberations than any other. After lengthy consideration of a number of possibilities, the group's overall judgment was that it is impossible to permit even limited discovery beyond the administrative record of the plaintiff's case, without eventually subjecting agencies to incursions into their internal processes and resulting damage to national security interests.8
The proposal we arrived at would provide for a narrow channel of equitable constitutional claims, i.e. claims brought directly under the Constitution, as opposed to a statute, seeking equitable relief, as opposed to damages.9 Egan and related cases appear to rule out any judicial review under Title VII or other statutory schemes, because none explicitly provides for judicial review of national security determinations.10 On the other hand, Webster appears to authorize, indeed require, judicial review of equitable constitutional claims.11
Thus, the working group concluded that in order for a proposal to be acceptable, review would have to be limited to constitutionally based discrimination claims seeking equitable relief; plaintiffs would have to be restricted to ways of establishing discrimination not dependent on discovery outside the administrative record with respect to similarly situated persons; and remedies would have to exclude judicial orders that security clearances be granted. These parameters still leave room for a narrow channel of judicial relief.
First, the exclusion of extra-record discovery with respect to similarly situated persons leaves restricted but viable routes for establishing discrimination. Plaintiffs can demonstrate a violation of their rights through direct evidence of discrimination, through testimony, through known examples of intentionally disparate treatment of others, or by persuading the trier of fact to disbelieve the ultimate decisionmaker. The fact that the ultimate decisionmaker apparently ignored a plaintiff's concrete allegations of discriminatory treatment as compared to specific other applicants might bear on his credibility, or support an inference of intentional discrimination. A finding of intentional discrimination on this basis would result in a remand to the agency for readjudication by a new decisionmaker, who would presumably create a record demonstrating good faith consideration of these concrete allegations. Absent fairly express evidence of discrimination, however, a plaintiff will be unsuccessful in challenging the security clearance denial.
Second, because remedies would not include a judicial order to grant security clearances, and because the scope of review would be limited to claims for equitable relief, the basic remedy for discrimination would have to be an order sending the matter back to the relevant agency for a new security clearance determination by a different decisionmaker. A judicial grant of back pay would probably not be available as a matter of right, given the limitation of the avenue of review to equitable constitutional claims. See also United States v. Fausto, 484 U.S. 439 (1988) (creation of comprehensive remedial scheme precludes award under Back Pay Act even for claimants not covered by the scheme).12 For claimants who were ultimately successful in obtaining their security clearances, however, it would be appropriate to look into the possibility of promulgating an administrative rule providing for back pay; further, in light of the difficulties of demonstrating discrimination, it would probably make sense to examine whether it would be possible to extend the provision for back pay to include all claimants who were terminated as a result of the withdrawal of their security clearances and who obtained remands for new clearance determinations.
CONCLUSION If accepted by the courts, this process would provide a form of judicial review limited to equitable constitutional claims, with limited discovery and relief limited to remands (plus back pay under administrative authority). The process is intended to provide a narrow form of judicial review while avoiding intolerable risks to national security interests. The restriction of court-ordered remedies to remand would prevent the possibility of courts ultimately having the last word in an area in which the executive should be accorded great deference.13
At the same time, the proposal might make available a real though limited avenue of review. Claimants who could present direct evidence of discrimination or who could shed doubt on the credibility of agency decisionmakers could succeed in obtaining both a new determination by different decisionmakers and, through administrative authority, a grant of back pay. This form of judicial review would accommodate fairness and constitutional considerations favoring judicial review by allowing review to the greatest extent possible consistent with avoiding intolerable risks to national security interests. Moreover, altering the Department's litigation position to advocate such a form of review would provide the Department's best chance to ensure that, if review is ultimately recognized under Webster, it will be restricted in ways necessary to protect national security interests.
Although some members continue to have substantial reservations about the ultimate wisdom of adopting this proposal as the Department's new litigating position, the working group believes it has sufficient merit to warrant discussion with the national security agencies.
1. The position has been asserted by the Civil Division in district court litigation and in appeals as appellee. The SG's Office has never approved or rejected this precise position.
2. Although the Fourth Circuit in Guillot held, citing Egan, that Congress had not provided for judicial review of security clearance decisions under Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. sec. 791, it reserved the question whether there could be judicial review of constitutional claims. 970 F.2d at 1324 n.9. Other courts have opined directly that judicial review of constitutional claims remains available. See, e.g., Nat'l Federation of Federal Employees v. Greenberg, 983 F.2d 286, 289-90 (D.C. Cir. 1993). See generally KENNETH C. DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE 159 (3d ed. 1994) (Supreme Court "continues to be extraordinarily protective of a petitioner's ability to obtain judicial consideration of a credible claim that an agency action violates the petitioner's constitutional rights.")
3. In deference to the working group's ongoing deliberations, our submissions to the Court in Brazil and Mata crafted fact-specific arguments against certiorari, carefully avoiding asserting that courts have no jurisdiction to hear any claims arising from security clearance determinations.
4. This position would represent a partial retreat from the position that, under Brown v. GSA, no judicial remedy other than that provided in Title VII is available for discrimination in any federal employment matter. The revised position is based on the conjunction of two factors -- the fact that Title VII may not operate at all in the security clearance context, and the presumption of judicial review of constitutional claims. Thus, the argument could imply that in other areas in which Congress has enacted a comprehensive remedial scheme, plaintiffs who have no remedy under the scheme nevertheless may have recourse to equitable constitutional claims. See Mitchum v. Hurt, 73 F.3d 30, 34-35 (3rd Cir. 1965); Czerkies v: Dept. of Labor, 73 F 3d 1435, 1440 (7th Cir. 1996) (en banc). Some in the group are very concerned about the potential consequences of such an implication in a variety of statutory contexts.
5. Executive Order 12968 (Aug. 2, 1995) explicitly prohibits agencies, in making security clearance decisions, from discriminating on the basis of race, color, religion, sex, national origin, disability, or sexual orientation. Denials of clearances may be appealed to an agency review panel that ensures that the proper criteria have been applied in security clearance adjudications. Apart from this general prohibition on discrimination, to the best of our knowledge the agencies have not put into place specific procedures to apply in cases of discrimination claims.
6. Moreover, some members advance an argument that the Constitution not only does not impel, but actually may forbid, judicial review by committing national security determinations to the sole discretion of the Executive. See Dorfmont v. Brown, 913 F.2d 1399 (9th Cir. 1990) (Kozinski, J., dissenting) (arguing that because Webster dealt only with the CIA, whose authority to review security-related employment decisions is statutorily created, Webster does not preclude the conclusion that the Constitution forbids judicial review of security clearance determinations made pursuant to core executive branch authority), cert. denied, 111 S. Ct. 1104 (1991). But see Nat'l Federation of Federal Employees v. Greenberg, 983 F.2d 286, 289-90 (D.C. Cir. 1993) (rejecting this argument).
7. If discovery in discrimination claims is to be limited to the agency record, it is especially important that agencies ensure the development of a complete record by fully implementing Executive Order 12968 and putting in place appropriate procedures for addressing discrimination claims. See n. 5, supra.
8. Thus, an important concern emphasized by opponents of judicial review is that it may prove not possible in practice to prevent courts from ordering discovery of similarly situated persons. See n. 13, infra.
9. Jurisdiction would lie under 28 U.S.C. sec. 1331. The APA would provide the waiver of sovereign immunity.
10. In any event, a statutory remedy would make it more difficult to control the procedures under which review takes place: if Congress has created the cause of action, then Congress likewise controls the availability and terms of review, e.g. discovery, and there is less room to argue to the court that it can craft a narrow avenue as a matter of constitutional interpretation.
11. Constitutional damages claims would be foreclosed on the ground that the potential chilling effect on decisionmaking in this critical area is a determinative "factor counseling hesitation" in affording a Bivens remedy. See Bush v. Lucas, 462 U S 367, 388 (1983).
12. The Civil Rights Division believes that Fausto presents no impediment to recovery. In Fausto, the plaintiff argued that he had a cause of action under the Tucker Act that entitled him to a remedy under the Back Pay Act. The Court held that the plaintiff did not have a cause of action under the Tucker Act because the Civil Service Reform Act provided the exclusive cause of action. The Back Pay Act thus does not create a cause of action, but it does provide a remedy when there is a cause of action derived from some other source and the ''unjustified or unwarranted personnel action * * * has resulted in the withdrawal or reduction of all or part of the pay." 5 U.S.C. 5596(b)(1). Since we are contemplating that there is a cause of action under the Constitution, Civil Rights believes that the Back Pay Act provides a remedy when an individual is unconstitutionally denied wages.
13. It is important to recognize that in advocating a limited channel of judicial review, the Department could argue that discovery of similarly situated persons should not be permitted, but the Department could not guarantee that the courts would adopt precisely the procedural restrictions urged by the Department; in fact, some in the group are skeptical that courts would adopt such an approach. Because evidence of similarly situated persons is relevant to the central issue in a discrimination claim, there is a risk that if courts recognized a claimant's right to bring a discrimination claim, they would hold claimants entitled to discovery of such evidence. The restriction on discovery is not arbitrary, however, but is necessary to protect national security interests. The Department therefore would have a forceful argument for excluding discovery. See, e.g., Halperin v. Kissinger, 807 F.2d 180, 187 (D.C. Cir. 1986) (noting the general appropriateness and availability of "special rule[s] for national security matters"). Cf. Wisconsin v. City of New York, 116 S.Ct. 1091, 1103 (1996) (deferring to Department of Commerce in conducting census because of wide discretion bestowed by Constitution).