A recent case involving a former FBI intelligence officer with a top-secret security clearance who failed three polygraph tests and was subsequently fired has been dismissed by the Court of Appeals for the D.C. Circuit on justiciability grounds.

A narrow band of Federal positions, contractor and cadre, require polygraphs. The FBI periodically administers polygraph examinations to ensure cleared individuals are trustworthy.  It is a tool primarily used for counterintelligence, but the test is also used to identify those with a poor security “fit.”

Jason Lee, an American with Chinese ancestry, was first hired in 2003 by the Federal FBI and granted a top-secret security clearance. He failed a 2013 polygraph, in addition to a follow-up polygraph in 2014, after which his security clearance was revoked.

Lee appealed his security clearance revocation to the Access Review Committee at the Department of Justice, which reviews clearance revocations by DOJ component agencies, and ordered a third polygraph exam for in 2018.

Before the 2018 exam, Lee apparently admitted to being a media source exposing what he said were inappropriate FBI polygraph testing practices, according to court documents. The exam ended when Lee refused to answer additional questions about the information he shared with the media, and he subsequently failed the polygraph. Media contacts, as well as Congressional contacts, are very tightly controlled by FBI leadership. There is a process that must be followed.

Because his position as an intelligence officer required a security clearance that he no longer possessed, Lee was fired.

In this case decided Oct. 29, 2024, Lee v. Garland, Lee contended that the revocation was based on race, national origin, and protected speech, bringing various claims under the First Amendment, the Fifth Amendment, and Title VII. The court held that Department of Navy v. Egan bars judicial review of these statutory and constitutional claims.

Egan cases are few and far between in Federal national security practice.  Raising Constitutional and Title VII issues in security proceedings is chancy; the Supreme Court has recognized that clearances are issued under Article II of the federal Constitution (1789).  The President has great discretion to whom he allows access to arcana imperii.

Prior to addressing the merits of the claims, the court stated that it must consider whether they are “justiciable,” that is, whether they are within “the courts’ competence” to answer. Two key precedents, involving challenges to adverse security clearance decisions, frame the analysis of that question, according to the court’s findings.

“The first is Egan. Like this case, it involved an individual terminated from federal employment after the government denied him a security clearance that was necessary for the job in question,” the court’s findings state. “The second key precedent is Ryan v. Reno which involved Title VII challenges to employment actions resting on adverse clearance decisions.”

The needle to thread in an Egan exclusion case is exceedingly tight. In National Federation of Federal Employees v. Greenberg, the D.C. Circuit held justiciable constitutional challenges to the “methods used to gather information” for clearance decisions. This would be a Fifth Amendment claim of failure of due process leading to harmful error.

In the administrative courts, Egan also governs review of security clearance cases. Under Egan, the statutory construction of Title 5 does not grant authorization to the U.S. Merit Systems Protection Board to review the underlying merits of a security clearance denial or revocation. Under the Court’s analysis, a security clearance action or determination is not considered a “personnel action” under Title 5, which lists specific enumerated actions, including a suspension of more than 14 days and a removal, but does not include a security clearance action.

Since the Egan decision in 1988, there have been numerous attempts to bolster the protections under Title 5 to include a security clearance action under the expressly enumerated list of personnel actions. Most notably, in 1994, Rep. Frank McCloskey introduced H.R. 2970, which proposed to amend Title 5 to include a denial, revocation, or other decision relating to a security clearance among the list of already established personnel actions.

H.R. 2970 was included as part of the House Committee on Post Office and Civil Service’s report (H. Rep. No. 769, 103d Cong., 2d Sess. At 37 (1994)). However, the Senate did not agree and chose not to include the House’s security clearance language. Ultimately, Congress never expressly included a security clearance action as a listed personnel action under Title 5.

Notwithstanding, the Court in Egan indicated that Title 5 does grant authorization for the Board to ensure that at least minimal procedural due process protections were provided, including notice of the reasons for the proposed denial, an opportunity to inspect all relevant evidence, a right to respond, a written decision, and an opportunity to appeal through the security clearance appeal process.

However, Egan did not determine the due process that must be provided when an agency takes an adverse action — such as an indefinite suspension or removal — against an employee because of a temporary or permanent loss of a clearance that is required as a condition of employment in a position or at a facility, as noted by the Court of Appeals for the Federal Circuit in Gargiulo v. Department of Homeland Security.

Following the decision in Egan, a couple of cases coming out of the Federal Circuit and the Board sought to clarify when minimal due process is required for an adverse action. In Weissberger v. USIA, the Board found that Egan does not bar Board review of whether the agency provided an employee with minimal due process, including notice of the agency’s security clearance determination, a statement of the reasons in support of the determination, and an opportunity to respond.

Similarly, in Jones v. Department of the Navy, the Board held: “[e]xcept for determining that the appellant’s were afforded minimal due process, the Board is precluded from reviewing constitutional claims in connection with the merits of the agency’s suspension of their security access…”

In Cheney v. Department of Justice, the Federal Circuit expanded on Egan, holding that an employee suffering an adverse action is entitled to enough information to enable him or her to make a meaningful response to the loss of his or her clearance. After this analysis is conducted, the Board may then determine whether cause existed for the denial or revocation, whether the clearance was actually denied or revoked, and whether transfer to a nonsensitive position was feasible. However, Egan made clear that a transfer to a nonsensitive position is not required unless a statute or regulation provides the employee a substantive right to such reassignment.

The minimal due process exception, sometimes called the Egan exception, allows for review of the procedural protections surrounding a security clearance action, when security clearance review is otherwise excluded under Title 5. This may be enough for a reviewing court to find security clearance appeals “justiciable.”

Ultimately, the court in Lee cited executive orders restricting access to information that, if publicly disclosed, would threaten the national security of the United States. As Lee appears to have not raised the Egan exception, the D.C. Circuit ultimately dismissed the appeal based on judicial review principles.

Tully Rinckey attorneys understand that issues involving security clearances can be challenging, and they will handle your matter with the attention and tact it deserves. If you have additional questions about security clearances, our team of attorneys is available to assist you today. Please call 8885294543 to schedule a consultation or schedule a consultation online.

Dan Meyer, Esq. is a Partner at Tully Rinckey PLLC’s Washington, D.C. office and has dedicated more than 25 years of service to the field of Federal Employment and National Security law as both a practicing attorney and federal investigator and senior executive. He is a lead in advocating for service members, Federal civilian employees, and contractors as they fight to retain their credentialing, suitability and security clearances.

Lachlan McKinion, Esq. is an Associate in Tully Rinckey’s Washington, D.C., office, where he focuses on national security and security clearance law. Lachlan’s practice includes appellate litigation before the Merit Systems Protection Board, guiding Intelligence Community and Defense clients through the security adjudication process, and representing whistleblowers before the Office of Special Counsel and various Intelligence and Defense Inspectors General.