Jason B. Lee v. Merrick B. Garland, Attorney General of the United States

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 8, 2021 Decided October 29, 2024
No. 20-5221
JASON B. LEE,
APPELLANT
v.
MERRICK B. GARLAND, ATTORNEY GENERAL OF THE UNITED
STATES,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-02284)
Morris E. Fischer argued the cause and filed the briefs for
appellant.
Joshua M. Koppel, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Brian M. Boynton, Acting Assistant Attorney General, and
Charles W. Scarborough, Attorney.
Bruce D. Brown and Katie Townsend were on the brief for
amicus curiae Reporters Committee for Freedom of the Press
in support of neither party.

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Before: HENDERSON and KATSAS, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KATSAS.
KATSAS, Circuit Judge: The Federal Bureau of
Investigation revoked Jason Lee’s security clearance after he
failed three polygraph examinations. It then fired Lee because
his job required a clearance. Lee contends that the revocation
was based on race, national origin, and protected speech. He
brings various claims under the First Amendment, the Fifth
Amendment, and Title VII. We hold that Department of Navy
v. Egan, 484 U.S. 518 (1988), bars judicial review of these
statutory and constitutional claims.
I
A
This case arises from presidential orders restricting access
to information that, if publicly disclosed, would threaten the
national security of the United States.
Executive Order No. 13,526 sets forth a “uniform system
for classifying, safeguarding, and declassifying national
security information.” 75 Fed. Reg. 707, 707 (Dec. 29, 2009).
It explains: “[T]hroughout our history, the national defense has
required that certain information be maintained in confidence
in order to protect our citizens, our democratic institutions, our
homeland security, and our interactions with foreign nations.”
Id. The order requires designated officials to classify
information under their control, id. at 708, if “unauthorized
disclosure could reasonably be expected to cause identifiable
or describable damage to the national security,” id. at 709.
Information may be classified at one of three levels—Top
Secret, Secret, or Confidential—depending on its sensitivity.

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See id. at 707–08. For example, a classification of “Top
Secret” indicates that unauthorized disclosure “reasonably
could be expected to cause exceptionally grave damage to the
national security.” Id. at 707.
To prevent unauthorized disclosure of classified
information, the President restricts access to it. Executive
Order 12,968 prohibits any federal employee from accessing
classified information unless he has been “determined to be
eligible” for access, has signed an approved nondisclosure
agreement, and has “demonstrated” a “need-to-know” the
information at issue. 60 Fed. Reg. 40245, 40246 (Aug. 2,
1995). Eligibility is determined through the adjudication of a
security clearance. The order delegates to agency heads
responsibility for clearance decisions, see id., but it instructs
that, in general, clearances may be granted only to:
United States citizens for whom an appropriate
investigation has been completed and whose personal
and professional history affirmatively indicates
loyalty to the United States, strength of character,
trustworthiness, honesty, reliability, discretion, and
sound judgment, as well as freedom from conflicting
allegiances and potential for coercion, and willingness
and ability to abide by regulations governing the use,
handling, and protection of classified information.
Id. at 40250. The order requires that “any doubt” on these
matters “shall be resolved in favor of the national security.” Id.
This scheme has a long pedigree. Presidential orders
requiring a security clearance for access to classified
information have been in place since at least the early 1950s.1
1 See, e.g., Exec. Order No. 12,958, 60 Fed. Reg. 19825 (April
17, 1995); Exec. Order No. 12,356, 47 Fed. Reg. 14874 (April 8,

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More generally, “the Executive Branch has engaged in efforts
to protect national security information by means of a
classification system graded according to sensitivity” since at
least World War I. Egan, 484 U.S. at 527. And presidents
since George Washington have kept secret information if they
thought its disclosure might harm the Nation’s defense or
foreign-policy interests. See S. Exec. Journal, 1st Cong., 2d
Sess. 55 (Aug. 4. 1790) (secret treaty provision).
B
This case comes to us on a motion to dismiss, so we take
the following factual allegations as true. Barker v. Conroy, 921
F.3d 1118, 1121 (D.C. Cir. 2019).
In 2003, the FBI hired Jason Lee, an American citizen of
Chinese ancestry, and granted him a Top Secret security
clearance. To ensure that cleared individuals remain
trustworthy, the FBI periodically subjects them to polygraph
examinations. Lee failed his 2013 exam. The examiner noted
problems with Lee’s answers to questions about terrorism,
unauthorized release of information, and failure to disclose
security violations. Lee then failed a follow-up exam in 2014.
This time, the examiner noted that Lee’s breathing patterns
indicated deception. The FBI revoked Lee’s clearance.
Lee appealed the revocation to the Access Review
Committee (ARC) of the Department of Justice, which reviews
clearance revocations by DOJ component agencies. See 28
C.F.R. § 17.15(a). In 2018, the ARC ordered Lee to sit for a
third polygraph exam, which was administered by FBI Agent
Stacy Smiedala. Before that exam, Lee admitted to serving as
1982); Exec. Order No. 12,065, 43 Fed. Reg. 28949 (June 28, 1978);
Exec. Order No. 11,652, 37 Fed. Reg. 5209 (March 8, 1972); Exec.
Order No. 10,501, 18 Fed. Reg. 7049 (Nov. 5, 1953).

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a source for media articles exposing what he regarded as
inappropriate FBI polygraph testing practices. The exam
ended when Lee refused to answer further questions about what
information he had divulged to the media.
The ARC affirmed the revocation of Lee’s clearance in a
memorandum signed by its chairperson, Marie Barr
Santangelo. Among other considerations, she cited Lee’s
deception in the 2018 exam; his possible deception or use of
countermeasures in earlier exams; his refusal to answer
questions about the articles; and the FBI’s obligation under
Executive Order No. 12,968 to resolve all doubts in its
clearance adjudications in favor of national security. After the
ARC’s decision, the FBI fired Lee because his job as an
intelligence officer required a clearance.
After unsuccessfully pursuing administrative remedies
under Title VII, Lee filed this lawsuit. His original complaint
raised Title VII claims alleging discrimination in the 2013 and
2014 polygraph examinations. The government moved to
dismiss the case. Before the district court could rule, Lee
moved for leave to file an amended complaint raising Title VII
claims alleging discrimination and retaliation in the 2018
examination. Lee also sought to raise various First and Fifth
Amendment claims.
All of Lee’s claims stem from the revocation decision. His
Title VII claims allege that DOJ revoked his security clearance
based on polygraph exams tainted by unlawful discrimination
and retaliation. Lee also argues that the revocation decision
violated the Fifth Amendment because it rested on a pretextual
justification and harmed his reputation and employment
prospects. He contends that Smiedala violated the First and
Fifth Amendments by discriminating and retaliating against
him during the 2018 polygraph examination, which caused the

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revocation of his clearance. And he claims that Santangelo
violated the Fifth Amendment by failing to investigate the
cause of his failed polygraph exams, which also caused the
revocation. Lee sought reinstatement, backpay, and damages
from DOJ, as well as damages from Smiedala and Santangelo
individually.
The district court granted the motion to dismiss and denied
the motion for leave to amend. It held that Lee’s Title VII
claims were not timely exhausted, that Title VII preempted his
Fifth Amendment claims against DOJ, and that Lee lacked a
cause of action to press constitutional claims for damages
against the individual DOJ officials. See Lee v. Barr, No. 19-
cv-2284, 2020 WL 3429465 (D.D.C. June 23, 2020). Our
review is de novo. See Ctr. for Biological Diversity v. U.S. Int’l
Dev. Fin. Corp., 77 F.4th 679, 685 (D.C. Cir. 2023)
(dismissal); Osborn v. Visa Inc., 797 F.3d 1057, 1062 (D.C.
Cir. 2015) (motion for leave to amend denied as futile).
II
Lee contends that DOJ violated Title VII, the First
Amendment, and the Fifth Amendment in revoking his security
clearance. Before addressing the merits of these claims, we
must consider whether they are justiciable—in other words,
whether they are within “the courts’ competence” to answer.
Rucho v. Common Cause, 588 U.S. 684, 696 (2019). Two key
precedents, involving challenges to adverse security clearance
decisions, frame the analysis of that question.
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. See 484 U.S. at 522. The Civil Service Reform
Act (CSRA) authorized the Merit Systems Protection Board
(MSPB) to review the termination decision. See id. & n.3. The

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question presented was whether this allowed the MSPB “to
review the substance of an underlying decision to deny or
revoke a security clearance.” Id. at 520. The Supreme Court
held that it did not.
The Court rested its decision on Article II of the
Constitution. It explained that Article II, in making the
President the head of the Executive Branch and the
Commander in Chief, vests him with broad power over military
and foreign affairs. 484 U.S. at 527. And that power includes
“authority to classify and control access to information bearing
on national security and to determine whether an individual is
sufficiently trustworthy to occupy a position in the Executive
Branch that will give that person access to such information.”
Id. The Court explained that since World War I, the Executive
Branch has sought “to protect national security information by
means of a classification system graded according to
sensitivity.” Id. The Court held it was “not reasonably possible
for an outside nonexpert body to review” the difficult
predictive judgments underlying a decision to afford access to
classified information, which “must be made by those with the
necessary expertise.” Id. at 529. The Court invoked a long line
of cases establishing that “courts traditionally have been
reluctant to intrude upon the authority of the Executive in
military and national security affairs.” Id. at 530. And it
stressed that the presumption of reviewability “runs aground
when it encounters concerns of national security.” Id. at 527.
For all these reasons, the Court concluded that the decision
whether to grant an employee a security clearance, “a sensitive
and inherently discretionary judgment call, is committed by
law to the appropriate agency of the Executive Branch.” Id.
The second key precedent is Ryan v. Reno, 168 F.3d 520
(D.C. Cir. 1999), which involved Title VII challenges to
employment actions resting on adverse clearance decisions.

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This Court held that Egan precludes “a ‘nonexpert body’—
whether administrative or judicial—from resolving a
discrimination claim based on an adverse employment action
resulting from an agency security clearance decision.” Id. at
523 (quoting Egan, 484 U.S. at 529). We explained that
adjudicating such a claim would involve “reviewing the
merits” of the agency’s “decision not to grant a clearance,”
which would run “smack up against Egan.” Id. at 524.
III
Egan plainly forecloses review of the Title VII claims
here, which challenge the substantive basis for DOJ’s
revocation of Lee’s security clearance. In his original
complaint, Lee alleged that the revocation was caused by
discrimination based on race and national origin in the
administration of the 2013 and 2014 polygraphs. J.A. 11–13.
In his amended complaint, Lee sought further to allege that the
revocation was also caused by the same kind of discrimination,
and by retaliation for past complaints of discrimination, in the
administration of the 2018 polygraph. Id. at 55–58. Because
all of these claims challenge the basis for DOJ’s decision to
revoke Lee’s security clearance, Egan bars them all. See Ryan,
168 F.3d at 524.
Lee attempts to circumvent Egan by framing his Title VII
claims as challenging only the polygraph examinations, not the
revocation decision itself. Reply Br. 2. But it is unclear
whether a failing grade on any of these exams, disconnected
from any change in the terms and conditions of Lee’s federal
employment, would constitute an adverse “personnel action”
covered by Title VII. See 42 U.S.C. § 2000e-16(a). Moreover,
as the district court explained, Lee cannot raise freestanding
challenges to any of the polygraph exams because he failed to
contact an EEO counselor within 45 days of the relevant exam,

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as required to exhaust administrative remedies for federal-
sector Title VII claims. 29 C.F.R. § 1614.105(a)(1); see Lee,
2020 WL 3429465, at *3–4. To avoid that otherwise fatal
problem, Lee affirmatively argues that the ARC decision was
the only adverse action he could have challenged. Appellant
Br. 9 (“Lee could not have prevailed on a Title VII claim based
solely on the conduct of the examiners because, without the
final decision from the Access Review Committee, there was
no adverse employment action.”). So by his own admission,
Lee must be challenging the revocation decision itself, as
allegedly tainted by the past polygraph exams. And Egan bars
such Title VII challenges. See Ryan, 168 F.3d at 524.
IV
Lee’s constitutional claims present different justiciability
questions. The district court reasoned that these claims were
barred by Brown v. GSA, 425 U.S. 820 (1976), which held that
Title VII “provides the exclusive judicial remedy for claims of
discrimination in federal employment,” id. at 835, and Kizas v.
Webster, 707 F.2d 524 (D.C. Cir. 1983), which held that Brown
requires even constitutional claims of federal employment
discrimination to be raised under Title VII, id. at 541–43. Lee,
2020 WL 3429465, at *5. With Brown and Kizas channeling
constitutional claims of employment discrimination through
Title VII, and with Egan barring Title VII claims challenging
the denial or revocation of security clearances, the upshot is
that federal courts may not consider constitutional claims
challenging such denials or revocations. We think the
conclusion is correct, but that it follows more from Egan itself
than from the preclusive effect of Title VII.
On several occasions, this Court has reserved the question
whether Egan bars courts from considering constitutional
challenges to adverse clearance decisions. See, e.g., Ryan, 168

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F.3d at 524; Palmieri v. United States, 896 F.3d 579, 590 (D.C.
Cir. 2018) (Katsas, J., concurring). The question is difficult.
On the one hand, Egan broadly held that the decision to grant
security clearances “is committed by law to the appropriate
agency of the Executive Branch.” 484 U.S. at 527. And it did
so for reasons that seem to “encompass constitutional
challenges as well as statutory ones.” Palmieri, 896 F.3d at
590 (Katsas, J., concurring); see Hill v. Dep’t of Air Force, 844
F.2d 1407, 1411 (10th Cir. 1988) (“[I]f the statutory constraints
imposed in Egan can be bypassed simply by invoking alleged
constitutional rights, it makes the authority of Egan hardly
worth the effort.”). On the other hand, Egan involved only a
statutory claim under the CSRA. And soon after Egan, the
Supreme Court stressed that it would present a “serious
constitutional question” to deny a plaintiff any judicial forum
in which to raise colorable constitutional challenges to agency
action. Webster v. Doe, 486 U.S. 592, 603 (1988) (cleaned up).
On the surface, there is tension between these holdings.
But Webster concerned only the statutory authority of the
Director of Central Intelligence to fire agency employees—
which was held not to foreclose judicial review of
constitutional claims. See 486 U.S. at 603. Webster did not
consider claims that might impinge on the President’s core
Article II powers as the head of the Executive Branch and as
Commander in Chief. And Egan held that the authority to
“protect national security information” by denying or revoking
security clearances is such a core Article II power. 484 U.S. at
527. At a minimum, Egan makes clear that generally
applicable statutes should not be applied to impinge on that
power absent some clear statement by Congress. See, e.g.,
Egan, 484 U.S. at 526–30 (CSRA); Oryszak v. Sullivan, 576
F.3d 522, 525–26 (D.C. Cir. 2009) (Administrative Procedure
Act); Ryan, 168 F.3d at 523–24 (Title VII). And where
Congress has not restricted the President’s exercise of that

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power, we think Egan also bars judicial review of
constitutional claims like Lee’s. In that circumstance, the
reasoning of Egan triggers application of the political question
doctrine, which forecloses review of constitutional claims.
A
The political question doctrine recognizes that some issues
cannot be resolved by federal courts. The doctrine is “a
function of the separation of powers.” Baker v. Carr, 369 U.S.
186, 210 (1962). It rests on the fact that the Constitution leaves
“the performance of many duties in our governmental scheme
to depend on the fidelity of the executive and legislative
action.” Colegrove v. Green, 328 U.S. 549, 556 (1946). Thus,
even as Chief Justice Marshall declared that it is “emphatically
the province and duty of the judicial department to say what the
law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177
(1803), he announced what is now the political question
doctrine: “Questions, in their nature political, or which are, by
the constitution and laws, submitted to the executive, can never
be made in this court.” Id. at 170; see also id. at 170–71
(“Where the head of a department acts in a case, in which
executive discretion is to be exercised; in which he is the mere
organ of executive will; it is again repeated, that any
application to a court to control, in any respect, his conduct,
would be rejected without hesitation.”).
In Baker, the Supreme Court distilled the doctrine into its
modern form. It explained that an issue presents a
nonjusticiable political question if there is:
[1] a textually demonstrable constitutional
commitment of the issue to a coordinate political
department; or [2] a lack of judicially discoverable
and manageable standards for resolving it; or [3] the
impossibility of deciding without an initial policy

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determination of a kind clearly for nonjudicial
discretion; or [4] the impossibility of a court’s
undertaking independent resolution without
expressing lack of the respect due coordinate branches
of government; or [5] an unusual need for
unquestioning adherence to a political decision
already made; or [6] the potentiality of embarrassment
from multifarious pronouncements by various
departments on one question.
369 U.S. at 217. To find a political question, “we need only
conclude that one of these factors is present.” El-Shifa Pharm.
Indus. Co. v. United States, 607 F.3d 836, 841 (D.C. Cir. 2010)
(en banc) (cleaned up). But the factors are sometimes related.
For example, a “lack of judicially manageable standards may
strengthen the conclusion that there is a textually demonstrable
commitment to a coordinate branch.” Nixon v. United States,
506 U.S. 224, 228–29 (1993).
Recent decisions have emphasized the first two factors as
the “most important” ones. Schieber v. United States, 77 F.4th
806, 810 (D.C. Cir. 2023) (quoting Harbury v. Hayden, 522
F.3d 413, 418 (D.C. Cir. 2008)). For example, in Nixon, the
Supreme Court held that the question of what counts as a
constitutionally required trial under the Impeachment Trials
Clause, which gives the Senate the “sole power to try all
Impeachments,” U.S. Const. Art. 1, § 3, cl. 6, is textually
committed to the Senate. See 506 U.S. at 228–36. And in
Rucho, the Court held that First and Fifth Amendment
challenges to political gerrymanders are nonjusticiable due to
a lack of judicially manageable standards. See 588 U.S. at 718.
B
The political question doctrine applies perhaps most
vigorously to issues bearing on national security. See Haig v.

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Agee, 453 U.S. 280, 292 (1981) (“Matters intimately related to
foreign policy and national security are rarely proper subjects
for judicial intervention.”). This follows from the
comprehensive constitutional commitment of “decision-
making in the fields of foreign policy and national security …
to the political branches.” Schneider v. Kissinger, 412 F.3d
190, 194 (D.C. Cir. 2005). Article I of the Constitution
allocates extensive national-security powers to Congress,
which has responsibility to “provide for the common Defence,”
U.S. Const. Art. I, § 8, cl. 1; to “regulate Commerce with
foreign Nations,” id. cl. 3; to define and punish “Offences
against the Law of Nations,” id. cl. 10; to “declare War” and
“make Rules concerning Captures,” id. cl. 11; to “raise and
support Armies,” id. cl. 12; to “provide and maintain a Navy,”
id. cl. 13; to “make Rules” for those armed forces, id. cl. 14; to
call forth “the Militia” to “suppress Insurrections and repel
Invasions,” id. cl. 15; and to provide for organizing, arming,
disciplining, and governing the militia, id. cl. 16. Likewise,
Article II allocates extensive national-security powers to the
President. Most notably, it vests the President with “the
executive Power,” U.S. Const. Art. II, § 1 cl. 1, which makes
him the “organ of the federal government in the field of
international relations.” United States v. Curtiss-Wright Exp.
Corp., 299 U.S. 304, 319–20 (1936). And it makes him the
“Commander in Chief of the Army and Navy of the United
States, and of the Militia of the several States, when called into
the actual Service of the United States.” U.S. Const. Art.
II, § 2, cl. 1. Article II vests these sweeping powers in a single
person in part because “[d]ecision, activity, secrecy, and
dispatch” are “essential” to the protection of national security.
See The Federalist No. 70 (A. Hamilton). Yet the Constitution
vests no comparable powers in the judiciary.
Given this allocation of authority, the Supreme Court has
always been reluctant to second-guess the Executive Branch on

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matters of national security—especially where Congress has
not acted to restrict it. For example, in Martin v. Mott, 25 U.S.
(12 Wheat) 19 (1827) (Story, J.), the plaintiff argued that the
President had unconstitutionally called forth the militia despite
the absence of any invasion. Id. at 28–29. The Court declined
to review that claim. It reasoned that “the authority to decide
whether the exigency has arisen belongs exclusively to the
President” as the Commander in Chief, so “his decision is
conclusive upon all other persons.” Id. at 30 (cleaned up).
Moreover, judicial review would be untenable because
evidence supporting the President’s decision “might be of a
nature not constituting strict technical proof, or the disclosure
of the evidence might reveal important secrets of state, which
the public interest, and even safety, might imperiously demand
to be kept in concealment.” Id. at 31.
Orloff v. Willoughby, 345 U.S. 83 (1953), rested on similar
logic. There the Court refused to review the President’s
decision not to commission an army conscript as an officer so
that he could serve as a doctor. See id. at 85. The President
based his decision on doubts about the doctor’s loyalty to the
United States, after the doctor had refused to discuss his
personal beliefs or to answer whether he had ever been a
Communist. See id. at 89–90. The Court refused to consider
the doctor’s statutory and Fifth Amendment challenges to the
decision. It reasoned that “the commissioning of officers in the
Army is a matter of discretion within the province of the
President as Commander in Chief.” Id. at 90. And it explained
courts “have never assumed by any process to control” that
kind of decision because “[o]rderly government requires that
the judiciary be … scrupulous not to interfere with legitimate
[military] matters.” Id. at 90, 94. The dissenting justices
argued that the doctor was entitled to be discharged, but they
disclaimed any authority “to compel the grant of a
commission.” Id. at 99 (Frankfurter, J., dissenting).

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Then, in Gilligan v. Morgan, 413 U.S. 1 (1973), the Court
held nonjusticiable a due process claim seeking to restrain
future behavior of the National Guard. See id. at 3–5. The
Court reasoned that Congress and the President have exclusive
authority “over the training, weaponry and orders of the
Guard.” Id. at 7. Likewise, “professional decisions as to the
composition, training, equipping, and control of a military
force are essentially professional military judgments” that must
be made by political branches “periodically subject to electoral
accountability.” Id. at 10. Indeed, the Court found it “difficult
to think of a clearer example of the type of governmental action
intended by the Constitution to be left to the political
branches.” Id.
We have followed the Supreme Court’s lead, consistently
holding “that courts are not a forum for reconsidering the
wisdom of discretionary decisions made by the political
branches in the realm of foreign policy or national security.”
El-Shifa, 607 F.3d at 842. For example, in People’s Mojahedin
Org. of Iran v. Dep’t of State, 182 F.3d 17 (D.C. Cir. 1999)
(PMOI), we held nonjusticiable a claim that the Secretary of
State, in designating two groups as Foreign Terrorist
Organizations, had erroneously concluded that their activity
“threatens … the national security of the United States.” 8
U.S.C. § 1189(a)(1)(C); see PMOI, 182 F.3d at 23–24. In
Schneider, we held nonjusticiable tort claims predicated on
covert foreign action that allegedly had caused the death of a
Chilean general. See 412 F.3d at 191–93. And in El-Shifa, we
held nonjusticiable tort and international-law claims predicated
on the decision to bomb a foreign target suspected of
manufacturing chemical weapons for terrorists. See 607 F.3d
at 844. In all these cases, we reasoned that the Constitution
commits national-security judgments to the political branches.
See id. at 845; Schneider, 412 F.3d at 195–96; PMOI, 182 F.3d
at 23. And we explained that the judiciary cannot review them

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because it is the job of the Executive—not the courts—“to
acquire and exercise the expertise of protecting national
security.” Schneider, 412 F.3d at 196 (quoting Ctr. for Nat’l
Sec. Studs. v. DOJ, 331 F.3d 918, 932 (D.C. Cir. 2003)).
Finally, quoting Gilligan, we found it “difficult to conceive of
an area of governmental activity in which the courts have less
competence.” Id. at 197 (quoting 413 U.S. at 10); see El-Shifa,
607 F.3d at 844 (same); PMOI, 182 F.3d at 23 (similar).
These precedents confirm that the issue of national
security is a “quintessential source[] of political questions.”
Bancoult v. McNamara, 445 F.3d 427, 433 (D.C. Cir. 2006).
Of course, not every case touching on national security lies
beyond judicial cognizance. Each question must be considered
“in terms of the history of its management by the political
branches, of its susceptibility to judicial handling in the light of
its nature and posture in the specific case, and of the possible
consequences of judicial action.” Baker, 369 U.S. at 211–12.
But these precedents establish that federal courts generally may
not second-guess the political branches’ discretionary
judgments about matters of national security.
C
As Egan makes clear, an Executive Branch decision to
deny or revoke a security clearance is just such a judgment. For
one thing, the Constitution commits that decision to the
Executive. And at least absent congressional action to restrict
executive discretion in this area, there are no manageable
standards to support judicial review of clearance decisions.
1
The Constitution commits the question whether to deny or
revoke a security clearance to the Executive Branch. Egan said
as much. Article II vests “[t]he executive Power” in the

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President and makes him the “Commander in Chief” of the
armed forces. U.S. Const. Art. II, § 1, cl. 1 & § 2, cl. 1. And
Egan held that these powers carry with them the “authority to
classify and control access to information bearing on national
security and to determine whether an individual is sufficiently
trustworthy to occupy a position in the Executive Branch that
will give that person access to such information.” 484 U.S. at
527. Likewise, Article II makes the President the “organ of the
federal government in the field of international relations,”
Curtiss-Wright, 299 U.S. at 320, which requires him to control
access to sensitive information. No less an authority than
George Washington explained that the conduct of foreign
affairs “must often depend on secrecy.” Message to the House
of Representatives, Declining to Submit Diplomatic
Instructions and Correspondence (Mar. 30, 1796). On his
telling, disclosure might have a “pernicious influence on future
negotiations; or produce immediate inconveniences, perhaps
danger and mischief, in relation to other powers.” Id.
Other considerations reinforce the textual commitment.
Historical practice is important in determining the scope of
executive power. See, e.g., NLRB v. Noel Canning, 573 U.S.
513 (2014). And Egan referenced the relevant history: “Since
World War I, the Executive Branch has engaged in efforts to
protect national-security information by means of a
classification system graded according to sensitivity.” 484
U.S. at 527; see also H. Relya, The Presidency and the
People’s Right to Know, in The Presidency and Information
Policy 1, 9–29 (H. Relya ed. 1981) (describing protection of
national-security information since the Civil War). Moreover,
the textual commitment serves urgent functional objectives, for
disclosure could help a hostile nation neutralize this Nation’s
defenses, mitigate our technological advantages, frustrate our
intelligence operations, or pose many other problems. See
Note, Developments in the Law: The National Security Interest

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and Civil Liberties, 85 Harv. L. Rev. 1130, 1190–91 (1972),
cited in Egan, 484 U.S. at 527.
In other cases as well, the Supreme Court has confirmed
the President’s broad authority to protect national-security
information. In Martin, the Court found unreviewable the
President’s assessment of national-security exigencies, in part
because the public safety “might imperiously demand” that the
relevant information be kept secret. 25 U.S. at 31. In Totten v.
United States, 92 U.S. (2 Otto) 105 (1875), the Court held
nonjusticiable claims arising from alleged espionage
relationships with the United States, because litigation “would
inevitably lead to the disclosure of matters which the law itself
regards as confidential.” Id. at 107 (barring contract claims);
see Tenet v. Doe, 544 U.S. 1, 5 (2005) (barring due-process
claims). In United States v. Reynolds, 345 U.S. 1 (1953), the
Court recognized a state secrets privilege to prevent disclosure
of national-security information. Id. at 10; see also United
States v. Burr, 25 F. Cas. 30, 37 (CC Va. 1807) (No. 14,692d)
(Marshall, C.J.) (recognizing the President’s privilege to
withhold information “which would endanger the public
safety”). In Snepp v. United States, 444 U.S. 507 (1980), the
Court explained that the President must be able to control
classified information because disclosure could compromise
intelligence operations and “even endanger the personal safety
of foreign agents.” Id. at 509 n.3 & 512. And in United States
v. Nixon, 418 U.S. 683 (1974), even as it rejected an expansive
assertion of executive privilege, the Court confirmed the
President’s Article II power to “protect military, diplomatic, or
sensitive national security secrets.” Id. at 706.
These precedents establish that protecting national-
security information is an essential component of the Executive
Power that Article II vests in the President. The President thus
has “broad discretion to determine who may have access to it,”

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Egan, 484 U.S. at 529, which makes clearance decisions
“discretionary” executive decisions with significant national-
security implications, id. at 527. And our precedent makes
clear that the judiciary is “not a forum for reconsidering …
discretionary decisions made by the political branches in the
realm of … national security.” El-Shifa, 607 F.3d at 842.
We do not suggest that a dispute is nonjusticiable simply
because it tangentially relates to a security clearance. In
National Federation of Federal Employees v. Greenberg, 983
F.2d 286 (D.C. Cir. 1993), this Court held justiciable
constitutional challenges to the “methods used to gather
information” for clearance decisions. See id. at 290.
Specifically, we allowed judicial review of (but rejected on the
merits) claims that the Fifth Amendment prohibited asking
clearance applicants about their use of illegal drugs or their
mental health. See id. The plaintiffs in Greenberg, who were
agency employees likely to be asked those questions in future
clearance adjudications, sought prospective relief barring use
of the questions. See id. at 287–88. Their alleged injuries—
the compelled disclosure of incriminating or private facts—
thus existed regardless of how the government might have
resolved any particular application. See id. at 291–95. In
allowing judicial review of these claims, we stressed that the
Greenberg plaintiffs did not seek review of “discretionary
judgments” regarding the merits of any “particular employee’s
security clearance.” Id. at 290. And we assumed, at least
arguendo, that “the President has unlimited and judicially
unreviewable constitutional power to determine which
Executive Branch employees will be given access to the
nation’s secrets.” Id.
In sum, the Constitution commits “the grant of security
clearance to a particular employee”—which is a “sensitive and
inherently discretionary judgment call”—to the “appropriate

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agency of the Executive Branch” subject to the President’s
direction pursuant to Article II. Egan, 484 U.S. at 527. The
Supreme Court established these points in Egan, and we did
not stray from them in Greenberg.
2
The second Baker factor is a “lack of judicially
discoverable and manageable standards” for resolving the
question presented. 369 U.S. at 217. This consideration may
suffice to make a question nonjusticiable. See Rucho, 588 U.S.
at 696. Or it may “strengthen the conclusion that there is a
textually demonstrable commitment to a coordinate branch.”
Nixon, 506 U.S. at 228–29.
The standards at issue, even if articulable in the abstract,
must be manageable as applied to the specific national-security
dispute at issue. In other words, if the relevant standards “defy
judicial application” in the case, that cuts in favor of
nonjusticiability. See Baker, 369 U.S. at 211. For example,
the plaintiff in Schneider argued that tort-law “standards for
evaluating wrongful death are well established.” 412 F.3d at
196 (cleaned up). We found that statement of “no help.” Id.
Instead, we concluded that tort standards defied judicial
application because they required us to determine “whether
actions or omissions by an Executive Branch officer in the area
of foreign relations and national security were ‘wrongful’”—a
judgment we held that no court could make. Id. at 196–97.
Adjudicating constitutional challenges to clearance
decisions often would present such unmanageable questions.
Clearance decisions involve an assessment of intangible
qualities such as “loyalty to the United States, strength of
character, trustworthiness, honesty, reliability, discretion, and
sound judgment.” Exec. Order No. 12,968, 60 Fed. Reg. at
40250. And they involve “predictive judgment” about whether

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individuals are likely to divulge sensitive information “under
compulsion of circumstances or for other reasons,” which is
“an inexact science at best.” Egan, 484 U.S. at 528–29
(cleaned up). According to the Supreme Court, “this must be a
judgment call” that is “committed to the broad discretion of the
agency responsible,” and “it is not reasonably possible for an
outside nonexpert body to review the substance of such a
judgment.” Id. at 529. Yet constitutional challenges often
require courts to make nuanced judgments about the challenged
government action: What was its motivation? That is precisely
the question that Ryan held off-limits. See 168 F.3d at 524.
Did the government have a compelling, substantial, or
legitimate interest for its decision? Was its reasoning
adequately tailored to that interest? In the context of clearance
decisions, a court could not answer such questions without
doing what Egan said is not reasonably possible.
D
Under these general principles, Lee’s constitutional claims
are not justiciable.
1
We start with Lee’s Fifth Amendment claims against DOJ.
For due process, Lee asserts that the agency’s revocation
decision rested on “pretextual and untrue statements” about
deception in past polygraph exams and that the revocation
harmed his reputation and future job prospects. J.A. 58–59.
For equal protection, Lee further asserts that the revocation
rested on polygraph exams tainted by race and national-origin
discrimination. Id. at 42–45. Unlike the claims in Greenberg,
Lee’s claims rest squarely on harms from the revocation
decision itself, and they squarely challenge the substantive
basis for that decision. Moreover, unlike the plaintiffs in
Greenberg, Lee does not seek relief against an agency decision

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discrete from the revocation decision. To the contrary, Lee
seeks reinstatement, backpay, and compensatory damages
from his termination—a decision that all agree flowed
inexorably from the revocation decision. Id. at 63. Because
Lee’s Fifth Amendment claims squarely target the revocation
decision itself, they are textually committed to the Executive
Branch. See Egan, 484 U.S. at 528.
Moreover, there are no judicially manageable standards
for resolving either claim. For due process, Lee complains that
the government’s justification for the revocation was pretextual
because the “blips” noted by Smiedala on the 2018 polygraph
“were not large enough” to indicate deception. J.A. 52.
Likewise, he complains that Santangelo did not investigate
further upon concluding that the results of the polygraph were
“at best inconclusive and at worst provide[d] some grounds for
believing” Lee had been deceptive or used countermeasures.
Id. at 62. These objections bear on whether Executive Branch
officials had good enough reasons to revoke Lee’s clearance.
But it is not for us to “determine what constitutes an acceptable
margin of error in assessing the potential risk” of granting or
renewing a clearance. Egan, 484 U.S. at 529.
The equal protection claim is also unmanageable. It turns
on allegations of impermissible motive—that the agents
administering Lee’s polygraph examinations discriminated
against him based on his Chinese ancestry. But as we
explained in Ryan, claims that DOJ denied a clearance based
on an impermissible motive necessarily involve “reviewing the
merits of DOJ’s decision,” which Egan prohibits. See 168 F.3d
at 524. The plaintiffs in Ryan alleged national-origin
discrimination when the government denied their clearance
applications because they had lived outside the United States
for an extended period. See id. at 522. We disclaimed the
power and the competence to assess whether that should have

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made any difference in the clearance decisions. See id. at 524.
Likewise, Lee alleges discrimination from a series of questions
focused on his fluency with, and exposure to, various “dialects
of Chinese.” J.A. 42. We cannot, and should not, second-guess
the Executive Branch on whether such considerations are
relevant to the determination whether Lee should have access
to classified information. See Egan, 484 U.S. at 527–30.
2
We next consider the constitutional claims for damages
against Smiedala and Santangelo. Lee cannot circumvent the
political question doctrine “by bringing claims against the
individuals who committed the acts in question within the
scope of their employment.” Harbury, 522 F.3d at 420. His
Fifth Amendment claims against these individuals rest on the
same conduct as his Fifth Amendment claims against the
government itself. As explained above, Egan makes them
nonjusticiable.
That leaves the First Amendment claim against Smiedala.
Lee alleges that Smiedala failed Lee on his 2018 polygraph
exam in retaliation for Lee’s assertedly protected speech to
media outlets, which led to the subsequent clearance
revocation. J.A. 60–61. Like the Fifth Amendment claims, this
one also rests on injuries arising from the revocation and
challenges its substantive basis. So, it too is barred by Egan.
And in any event, First Amendment retaliation claims cannot
support damages actions against federal officials. See Egbert
v. Boule, 596 U.S. 482 (2022); Loumiet v. United States, 948
F.3d 376 (D.C. Cir. 2020).
V
The Constitution commits the protection of national-
security information to the political branches, and Congress has

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attempted neither to restrict, nor to make judicially reviewable,
Executive Branch clearance decisions. Accordingly, Lee’s
claims here are nonjusticiable under Egan.
Affirmed.

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