Alaska Employment Law

Federal courts lack jurisdiction to review FBI security clearances, even if the clearance issue arises in a Title VII claim, according to the 9th Circuit.

Federal courts do not have the power to review an agency’s decision to grant or revoke a security clearance. See [Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir. 1990)].  This lack of jurisdiction extends to Title VII claims involving security clearance determinations. Brazil v. U.S. Dep’t of Navy, 66 F.3d 193, 196 (9th Cir. 1995). This lack of jurisdiction arises because when evaluating a Title VII claim the court must determine whether the defendant’s proffered reasons for its actions were a pretext to mask discrimination; and, in order to make that determination, the federal courts would be required to review the merits of the security clearance decision. Id. at 196-97.

Because [the employee’s] Title VII claims would require the district court to review the merits of the FBI’s decision to temporarily revoke her security clearance, the district court did not err when it denied her request for an evidentiary hearing and dismissed the claims for lack of subject matter jurisdiction.

Chiang v. Federal Bureau of Investigation, 2008 WL 2037720 (9th Cir. May 13, 2008)(unpub.)