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Islam Bias Claims Test National Security Shield in 4th Cir. Case

March 8, 2022, 10:45 AM

A federal appeals court will consider the scope of a rule that shields employment decisions from legal challenge when they involve a worker receiving a security clearance.

During oral argument Tuesday, counsel for intelligence analyst Nathan Mowery will try to convince the U.S. Court of Appeals for the Fourth Circuit to revive Mowery’s lawsuit accusing National Geospatial-Intelligence Agency of religious discrimination and retaliation.

A federal district judge threw out the case based on the U.S. Supreme Court’s 1988 ruling in Department of the Navy v. Egan, which involved the Merit Systems Protection Board and is generally interpreted to forbid judicial review of security clearance decisions.

But Mowery contends that his case doesn’t involve a clearance decision, since that process was halted and he was transferred to a lesser position after he revealed he converted to Islam.

The case highlights how courts have read the Egan decision to protect national security interests even when that denies workers any recourse to challenge allegedly biased employment decisions that violate federal law.

“All but the most die-hard advocates tend to concede that Egan itself wasn’t a horrible decision,” said Kel McClanahan, executive director of National Security Counselors, a public interest firm that represents workers. “It’s definitely not ideal, but it’s not awful. The awfulness is how it’s been interpreted after that.”

Circuit courts are split on how broadly to apply Egan to throw out employment lawsuits, said McClanahan, who is not involved in Mowery’s case.

Seven federal appeals courts— the Third, Fifth, Sixth, Eighth, Ninth, Tenth, and District of Columbia circuits—have ruled that Egan blocks judicial review in cases involving predictive judgments made by officials expert in protecting classified information.

The Fourth, Seventh, Eleventh, and Federal circuits, however, have applied a broader reading to cover national security employment cases that go beyond security clearance decisions.

Clearance Process Abandoned

Mowery had obtained a security clearance in 2014 as part of his work as a contractor for the NGA, a combat support agency connected with the U.S. Defense Department and the Central Intelligence Agency. Two years later, he accepted a conditional offer to work for the NGA in role similar to his contractor position.

To retain his existing clearance, Mowery said in court filings, he underwent an additional mental health evaluation. Under questioning by a CIA-approved examiner about his alcohol use, he explained that he doesn’t drink following his conversion to Islam. That prompted additional questions about his faith.

Mowery received an email from the CIA six months later saying his security clearance assessment was being halted, emphasizing that the decision didn’t represent a denial of a clearance. He was later transferred to a staff officer position that entailed scant responsibility.

He sued the NGA and the CIA director in his official capacity in 2020, alleging violations of Title VII of the 1964 Civil Rights Act.

U.S. District Judge T.S. Ellis III threw out Mowery’s lawsuit in November 2021, saying it’s impossible to review his discrimination claims without passing judgment on the security clearance assessment, which is barred under Egan.

‘Seeking a Protective Cloak’

The decision dismissing Mowery’s claims gave the agencies protections for predictive decisions on national security clearances even though none were actually made, said Mowery’s attorney, Christina Jump of the Constitutional Law Center for Muslims in America.

“Extending the Supreme Court’s holding to any situation where the agencies simply say the words ‘national security privilege’ without actually exercising the judgment it protects runs contrary to well-settled protections against discrimination,” Jump said. “There should be no reward for simply refusing to decide, then seeking a protective cloak that allows them to avoid answering for their actions at all.”

But the U.S. Justice Department said in a brief filed with the Richmond-based appellate court that the application of Egan doesn’t turn on the affirmative suspension, revocation, or denial of a security clearance.

The government’s brief cited two Fourth Circuit cases that relied on Egan to toss discrimination lawsuits that involved employment decisions beyond just security clearances. In 2020, the circuit denied judicial review of claims related to the Army Corps of Engineers decision to suspend a civilian employee pending review of his security clearance.

Justice Department spokeswoman Danielle Blevins declined to comment.

The case is Mowery v. Nat’l Geospatial-Intelligence Agency, 4th Cir., No. 21-02022, oral argument 3/8/22.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com