UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


RYAN, JOHN CLEMENT

v.

RENO, JANET


98-5036a

D.C. Cir. 1999


*	*	*


Karen LeCraft Henderson, Circuit Judge: Appellants  John C. Ryan,
Eugene Glynn, Francis Reale and Joseph  Halvey challenge the district
court's dismissal of their em- ployment discrimination suit. In their
complaint the appel- lants, 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 Natu-
ralization 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. s 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
back- ground 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, 117 S. Ct.
75 (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 




__________

n 1 Subsection (a)(1) of section 2000e-2 makes it "an unlawful 
employment practice for an employer ... to fail or refuse to hire or 
to discharge any individual, or otherwise to discriminate against any 
individual with respect to his compensation, terms, conditions, or 
privileges of employment, because of such individual's race, color, 
religion, sex, or national origin." 42 U.S.C. s 2000e-2(a)(1). The 
complaint also alleged violation of the Civil Rights Act of 1866, as 
amended, 42 U.S.C. s 1981, but the appellants have not pursued the 
claim on appeal.


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 appli- cants. 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 Person- nel 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 regu-
lations. Access to sensitive Department of Justice informa- tion 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


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 there- fore their eligibility to occupy
sensitive positions, I have  decided to disapprove your waiver


... I recommend that full-field [background investiga- tions] 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 of- fer." 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
apply- ing 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


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 Immigra- tion 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 Egan v.  Department of Navy, 484 U.S.


On September 9, 1994 the four complainants appealed the  DOJ decision
to the United States Equal Employment Oppor- tunity Commission (EEOC),
which affirmed DOJ on the sole  ground that the complainants had
failed to prove discrimina- tion. The EEOC rejected DOJ's conclusion
that review of  the security clearance denial was barred, stating:
"The Com- mission 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 con- ducted in a
nondiscriminatory manner." JA 606 (citations 


omitted). On February 1, 1996 the EEOC denied the com- plainants'
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 Janu- ary
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 Egan v.  Department of
Navy, 484 U.S. 518 (1988). The respondent in  Egan had been hired to
work at the Navy's Trident Naval  Refit Facility in Bremerton,
Washington contingent on "satis- factory completion of security and
medical reports." 484 U.S.  at 520. When the Director of the Naval
Civilian Personnel  Command denied him a security clearance, Egan was
dis- charged 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 clear- ance. 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 cer- tiorari and reversed the Federal Circuit,
holding that the  Board lacked authority "to review the substance of
an under- lying decision to deny or revoke a security clearance in the
 course of reviewing an adverse action." Egan, 484 U.S. at  520. The


For "reasons ... too obvious to call for enlarged discus- sion," 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. Cer- tainly, it is not reasonably possible for an
outside nonex- pert 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 confi- dence. Nor can such a
body determine what constitutes  an acceptable margin of error in
assessing the potential  risk.


484 U.S. at 529. Three other circuits have held that Egan  applies in a
Title VII action to preclude a "nonexpert body"-- whether
administrative or judicial--from resolving a discrimi- nation claim
based on an adverse employment action resulting  from an agency
security clearance decision. See Becerra v.  Dalton, 94 F.3d 145, 149
(4th Cir. 1996), cert. denied, 117  S. Ct. 1087 (1997); Perez v. FBI,
71 F.3d 513 (5th Cir. 1995),  cert. denied, 517 U.S. 1234 (1996);
Brazil v. United States  Dep't of Navy, 66 F.3d 193, 195 (9th Cir.
1995), cert. denied,  517 U.S. 1103 (1996). We now join those


To determine the merits of the appellants' Title VII claims,  it is
necessary to apply the burden allocation scheme first  announced in
McDonnell-Douglas Corp. v. Green, 411 U.S.  792 (1973):


Under the first step of McDonnell-Douglas the complain- ant must
establish a prima facie case of discrimination.  ... If the
complainant succeeds in establishing a prima  facie case, the second
step of the McDonnell-Douglas  framework shifts the burden to the
defendant employer  to articulate a legitimate, nondiscriminatory
reason for  its adverse employment action. If the defendant does so, 
then under the third step of McDonnell-Douglas the  complainant must
produce evidence showing that the  defendant's proffered reason is but
a pretext for discrim- ination.


Paquin v. Federal Nat'l Mortgage Ass'n, 119 F.3d 23, 26  (D.C. Cir.
1997). In a case such as this, however, a court 


cannot clear the second step of McDonnell-Douglas without  running
smack up against Egan. The nondiscriminatory  reason proffered below
for withdrawing the employment of- fers was that the applicants' long
residence abroad prevented  DOJ from conducting an adequate security
clearance back- ground investigation. The appellants could not
challenge the  proffered reason's authenticity without also
challenging its  validity-as their arguments before the district court
made  manifest. See District Court Opinion at 19 (JA 26) n.12 
("Plaintiffs repeatedly claim that the fact that the State  Department
may have been able to conduct the investigation  abroad acts to
undermine Mr. Rubino's decision that no  investigation adequately
could assess the Plaintiffs' trustwor- thiness."). As the Ninth


The more valid a reason appears upon evaluation, the  less likely a
court will be to find that reason pretextual;  the converse is also
true. Even when the court faces  independent evidence of a
discriminatory motive, it is  still necessary to weigh the validity of
the defendant's  proffered reasons when deciding if they are
pretextual.  In short, the merit of such decisions simply cannot be 
wholly divorced from a determination of whether they  are legitimate


Brazil v. United States Dep't of Navy, 66 F.3d at 197.  Because the
district court below could not proceed with the  appellants'
discrimination action without reviewing the merits  of DOJ's decision
not to grant a clearance, the court was  foreclosed from proceeding at


The appellants attempt to circumvent Egan by characteriz- ing the
challenged employment actions as procedural, di- vorced from any
substantive security determination. Accord- ing to the appellants:
"The focus of the district court would  be on the procedure used by
DOJ to consider the waiver  requests and the reason why DOJ denied the
waivers, and not  on whether the appellants should or should not
receive actual  security clearances." Br. of Appellants at 36. But DOJ
 denied the waivers because it concluded no clearances should  be
granted without more extensive investigations than were 


possible here. Thus, the waiver denials were tantamount to  clearance
denials and were based on the same sort of "pre- dictive judgment"
that Egan tells us "must be made by those  with the necessary
expertise in protecting classified informa- tion," without
interference from the courts. Egan, 484 U.S.  at 529.2


For the preceding reasons we hold that under Egan an  adverse
employment action based on denial or revocation of a  security
clearance is not actionable under Title VII.3 We  emphasize that our
holding is limited to Title VII discrimina- tion actions and does not
apply to actions alleging deprivation  of constitutional rights. See
Webster v. Doe, 486 U.S. 592, 603  (1988) ("[W]here Congress intends
to preclude judicial review  of constitutional claims its intent to do
so must be clear....  We require this heightened showing in part to
avoid the  'serious constitutional question' that would arise if a
federal  statute were construed to deny any judicial forum for a 
colorable constitutional claim.") (citations omitted); National 
Federation of Fed. Employees v. Greenberg, 983 F.2d 286, 289  (D.C.
Cir. 1993); United States Information Agency v. Krc,  905 F.2d 389,
400 (D.C. Cir. 1990). The district court's  dismissal is


Affirmed.




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n 2 In fact, to support their "procedural" argument the appellants 
expressly assert the feasibility of adequate investigations. See Br. 
of Appellants at 41-43.


3 In Egan the Supreme Court noted its holding was "fortified" by  the
fact that the Civil Service Reform Act of 1978 "by its terms  does not
confer broad authority on the Board to review a security- clearance
determination." 484 U.S. at 530. Our decision is fortified  by Title
VII's express language exempting employment actions  based on security
clearance possession vel non. See 42 U.S.C.  s 2000e-2(g); see also
Becerra v. Dalton, 94 F.3d 145, 149 (4th Cir.  1996) ("We agree that
there is no unmistakable expression of  purpose by Congress in Title
VII to subject the decision of the  Navy to revoke Becerra's security
clearance to judicial scrutiny.").