Plaintiff Can’t Litigate Claim That “Security Clearance Process” Was Used “as a Pretextual Weapon to Execute an Ideological Purge”

From Judge Kyle Dudek (M.D. Fla.) today in Reilly v. U.S. Att’y Gen.:

This case presents a conflict between individual rights and executive sovereignty. On one side are liberties guaranteed by the First and Fifth Amendments—specifically, the right of a public employee to be free from political viewpoint discrimination and the foundational promise of due process. On the other side sits an equally formidable principle of structural governance: the Executive Branch’s exclusive Article II authority to control access to national security secrets. The friction between these two forces becomes acute when, as here, a plaintiff alleges that the Executive Branch used its security clearance process not to protect classified information, but as a pretextual weapon to execute an ideological purge.

The Supreme Court has left little room to maneuver when determining which of these constitutional interests wins out. See Dep’t of Navy v. Egan (1988). Egan treats national security as a virtually impenetrable executive enclave. The Court held that no judicial body has authority to audit the substance of an underlying security clearance determination when reviewing an adverse employment action. And at least in the Eleventh Circuit, this limitation applies not only to the revocation of a security clearance, but also to decisions made at the suspension or investigatory stage. Hill v. White (11th Cir. 2003). “To review the initial stages of a security clearance determination is to review the basis of the determination itself regardless of how the issue is characterized.”

The combined weight of Egan and Hill dictates the outcome here. Plaintiff Kelli-Ann Reilly sues the FBI and several officials “for politically motivated” retaliation and unlawful termination of her employment. She brings a few different claims, but they all center on the same “core issue”: “the FBI revoked her security clearance to punish disfavored political viewpoints and enforce ideological conformity.” Under Hill and its progeny, if the alleged malfeasance is tied to the security clearance pipeline, as here, the inquiry is at an end.

Make no mistake, the factual allegations in this complaint are troubling. Reilly’s charge that the FBI transformed its background check process into an instrument for political screening is profoundly troubling. But institutional discomfort cannot hand a federal court jurisdiction it does not possess. Because evaluating Reilly’s claims requires inquiry into the security clearance process itself, her case “is not within the jurisdiction of the courts.” …

Here are the relevant facts from Reilly’s complaint, which must be accepted as true at this stage. Reilly worked at the FBI as a financial analyst for twenty-six years. She held a Top-Secret security clearance and successfully passed several periodic security-clearance reviews. She steered clear of any disciplinary actions or internal misconduct. Her record, in short, was spotless.

Then the 2020 presidential election happened. Reilly told her supervisor that she felt the election “involved irregularities and might be overturned through lawful judicial processes.” The institutional reaction was quick. Within a month, her security clearance was suspended. As the FBI tells it, she had relayed “baseless conspiracy theories associated with” possibly violent or criminal organizations. Concluding that these viewpoints rendered her “potentially vulnerab[le] to manipulation and coercion,” the FBI stripped her security clearance and placed her on unpaid administrative leave pending a full investigation.

The FBI Security Division conducted that investigation and probed Reilly on a wide range of politically charged topics. They included not just the 2020 election’s legitimacy, but also questions about Covid-19’s origin, the efficacy of mask wearing, and Jeffrey Epstein. Unhappy with her responses, the FBI formally revoked Reilly’s security clearance in June 2021. The investigation found that she was “delusional” and made “unfounded conspiratorial statements.” According to the FBI, her personal conduct and psychological condition presented unacceptable risks. Left with her paycheck frozen, her security credentials stripped, and her professional reputation in tatters, Reilly ultimately elected to take early retirement—a choice she contends was no real choice at all, but rather a forced constructive discharge.

Perhaps understandably, Reilly feels persecuted. She now sues the FBI, its director, the United States Attorney General, and the United States Department of Justice (collectively, “the Government”). Her complaint raises a trio of constitutional claims and attaches alternative requests for declaratory or mandamus relief to the back of them.

Reilly first alleges that the FBI “constructively discharged [her] and revoked her” security clearance in direct retaliation for her perceived political alignment, which amounts to viewpoint-discrimination under the First Amendment. She then switches to the Fifth Amendment, lodging a procedural due-process challenge against the “unlawful, politically driven litmus test” she claims the FBI deployed to investigate her security clearance. She rounds out the core constitutional charges with a “stigma-plus” due process claim premised on the “false and defamatory smears” regarding her mental stability that the FBI published as part of the investigation. Relying on these underlying constitutional violations, Reilly bootstraps two final claims. First, she seeks a declaratory judgment “to establish that her constructive discharge was a legal nullity.” Finally, she requests “a writ of mandamus commanding defendants to return her to her former FBI employment.” …

Egan held that the decision to deny or revoke a security clearance belongs solely to the Executive Branch. The Court observed that such decisions fall squarely within the President’s core powers under Article II, § 2 of the Constitution. It interpreted that section to award the Executive Branch unfettered authority over who may or may not be made privy to government secrets. And it stressed how impossible it would be “for an outside nonexpert body” to referee such “sensitive and inherently discretionary judgment call[s].” Egan’s instruction is thus clear: only the Executive Branch gets to decide who gets a security clearance, and the judiciary cannot interfere with those decisions. While some courts have read Egan as leaving room for claims attacking the security clearance process apart from the ultimate decision, the Eleventh Circuit has not. Hill.

Against this backdrop, our hands are tied. This Court cannot entertain claims targeting the preliminary, investigatory, or final stages of a security clearance revocation, no matter how artfully framed. To hold otherwise would run headlong into Hill‘s core structural command that prohibits judicial oversight of the security clearance process.

Yet that is precisely what Reilly seeks. Although she carefully dresses her grievances in the language of independent constitutional violations, each calls on this Court to audit an unreviewable executive pipeline.

Her First Amendment claim takes direct aim at not only the final revocation but also the decision to launch the background check in the first place. Yet that maneuver runs headlong into Hill‘s explicit command that the opening stages of an investigation are structurally inseparable from its final conclusion.

Her due process counts fare no better, targeting the mechanics of the investigatory phase and the specific findings underlying the FBI’s security assessment. To evaluate whether those investigative steps were a politically motivated sham, or whether those psychological findings were false and defamatory, the factfinder would have to dissect the FBI’s process and decision-making—the very diagnostic task Egan takes off the table..

Boiled down, Reilly’s lawsuit is a direct assault on the FBI’s motives. Her complaint is saturated with allegations attacking the basis of her clearance investigation, suspension, and ultimate revocation. In her own words, the FBI’s investigation was a “politically motivated,” “pretextual” “ideological inquisition” designed “to probe [her] political beliefs” in “retaliation” for her being “politically affiliated with President Trump.” The FBI denies that politics or retaliation played any role in its decisions. So for this case to proceed, a factfinder would have to weigh these competing assertions and determine who is telling the truth. And the FBI would have to defend and explain its security clearance determinations, along with the motivations driving its investigation. That is simply a dead end under Hill and its progeny….

To be sure, a handful of courts have considered this issue and declined to stretch Egan far enough to swallow constitutional claims. The anxiety driving those decisions is easy enough to understand. Nobody is eager to hand the Executive Branch what looks like a blank check to bypass constitutional guarantees in this arena.

But whatever the wisdom of those cases, they do not write the law for this circuit. Egan carved out a national security enclave, and the Eleventh Circuit has endorsed its most expansive boundaries. If Congress (or a higher court) wants to recalibrate this structural balance and allow review of security clearance decisions, it is entirely free to do so. Until those bodies choose to act, however, “we must apply Egan according to its terms.” …

Kevin Huguelet represents the government.