UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 11-1351 (CKK) 

MEMORANDUM OPINION 

(March 5, 2013) 

Plaintiff Ronnie Foote filed suit against Dr. Stephen Chu, in his official capacity as 

Secretary of the United States Department of Energy (“Defendant”), alleging racial 

discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 

§§ 2000e et seq. (“Title VII”). Presently before the Court is the Defendant’s [39] Motion for 

Judgment on the Pleadings. The Defendant contends that the Plaintiff’s claim is non-justiciable 

insofar as it challenges a national security decision committed to the discretion of the Executive 

Branch. Upon consideration of the pleadings,1

 the relevant legal authorities, and the allegations 

in the Plaintiff’s Complaint, the Court finds adjudication of the Plaintiff’s claims would require 

the fact finder to review the merits of a national security decision. Accordingly, the Defendant’s 

motion is GRANTED. 

I. BACKGROUND 

 According to the Complaint, in August 2007, Plaintiff received a conditional offer of 

employment as an Emergency Operations Specialist with the Transportation and Emergency 

 1

 Def.’s Mot., ECF No. [39]; Pl.’s Opp’n, ECF No. [44]; Def.’s Reply, ECF No. [45]. 

RONNIE FOOTE, 

 Plaintiff, 

 v. 

DR. STEPHEN CHU, Secretary, U.S. 

Department of Energy, 

 Defendant. 
2 

Control Center, part of the National Nuclear Security Administration (“NNSA”), located in 

Albuquerque, New Mexico. Compl., ECF No. [1], at 1. The NNSA is an agency within the 

Department of Energy responsible for, among other things “maintain[ing] and enhanc[ing] the 

safety, reliability, and performance of the United States nuclear weapons stockpile.” 50 U.S.C. 

§ 2401(b)(3). 

The offer of employment extended to the Defendant was conditioned on Plaintiff 

receiving a certification from the Human Reliability Program (“HRP”). Id. at 2. The Human 

Reliability Program (“HRP”), established pursuant to Executive Order 10450, “is a security and 

safety reliability program designed to ensure that individuals who occupy positions affording 

access to certain materials, nuclear explosive devices, facilities, and programs meet the highest 

standards of reliability and physical and mental suitability.” 10 C.F.R. § 712.1. HRP 

certification is a rigorous process, requiring, among other things, a high-level (“Q”) security 

clearance, annual security reviews, medical assessments, and random drug tests. 10 C.F.R. 

§ 712.11. HRP certification must be renewed annually. Id.

Dr. Daniel Seagrave, Alternate Lead Psychologist for the National Nuclear Security 

Administration, administered the Plaintiff’s psychological interview. Compl. at 2. Dr. Seagrave 

recommended that the responsible officials deny HRP certification for the Plaintiff. Id. The 

Plaintiff alleges Dr. Seagrave gave “intentionally false information” in his report to Dr. Anthony 

Traweek, Dr. John Sloan, and Dennis Reese, who ultimately denied Plaintiff’s request for 

certification, causing the conditional offer of employment to be rescinded. Id. Specifically, the 

Plaintiff claims Dr. Seagrave lied about certain answers Plaintiff gave during his interview, 

improperly contacted Plaintiff’s former supervisor, and concocted allegations that Plaintiff was 

reprimanded while serving in the United States Air Force. Id. at 4. Plaintiff alleges Dr. 
3 

Seagrave’s actions were motivated by Plaintiff’s race. Id. at 7-8. 

II. LEGAL STANDARD 

 Pursuant to Federal Rule of Civil Procedure 12(c), a party may move for judgment on the 

pleadings “[a]fter the pleadings are closed—but early enough not to delay trial.” The standard 

for reviewing a motion for judgment on the pleadings is “virtually identical” to that applied to a 

motion to dismiss for failure to state a claim under Rule 12(b)(6). Baumann v. District of 

Columbia, 744 F. Supp. 2d 216, 221 (D.D.C. 2010). Because a Rule 12(c) motion “would 

summarily extinguish litigation at the threshold and foreclose the opportunity for discovery and 

factual presentation,” the district court must approach such motions “with the greatest of care” 

and deny it “if there are allegations in the complaint which, if proved, would provide a basis for 

recovery.” Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987), abrogated on other 

grounds by Hartman v. Moore, 547 U.S. 250 (2006). The Court is limited to considering the 

facts alleged in the complaint, any documents attached to or incorporated in the complaint, 

matters of which the Court may take judicial notice, and matters of public record. Baumann, 744 

F. Supp. 2d at 222. 

III. DISCUSSION 

 Relying on the Supreme Court’s decision in Department of Navy v. Egan, 484 U.S. 518 

(1988), the Defendant moves for judgment on the pleadings on the grounds that Title VII claims 

arising from the denial of an HRP certification are non-justiciable. The Plaintiff contends that 

the HRP certification at issue was a suitability determination, not a security clearance, and thus 

falls outside the scope of Egan and its progeny. Although the Plaintiff is correct that the HRP 

certification is not a security clearance, that distinction is not dispositive under Egan. At its core, 

the Plaintiff’s Complaint challenges the merits of the Defendant’s predictive judgment that the 
4 

Plaintiff did not meet the standards of reliability and security necessary for employment in a 

position involving the United States nuclear weapons program. Semantics aside, the Plaintiff’s 

claim is barred by Egan. 

A. Department of Navy v. Egan and Subsequent Cases 

In Egan, the Supreme Court considered whether the Merit Systems Protection Board had 

the authority to review the substance of an underlying decision to deny or revoke a security 

clearance. The Court concluded that the Board lacked such authority, for two primary reasons. 

First, “predictive judgments” of the kind involved in denying or revoking a security clearance 

“must be made by those with the necessary expertise in protecting classified information.” 484 

U.S. at 529. “The general standard is that a clearance may be granted only when clearly 

consistent with the interests of the national security.” Id. at 528 (citation omitted). “[I]t is not 

reasonably possible for an outside nonexpert 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 confidence.” Id. at 529. Second, the Court noted that the standard of review 

employed by the Board, a preponderance of the evidence, is seemingly inconsistent with 

standard by which security clearances are granted, that is, “clearly consistent with the interests of 

national security.” Id. at 531. 

Courts subsequently extended Egan to bar claims under Title VII arising from the denial 

of a security clearance, noting district courts cannot proceed with discrimination actions under 

the burden shifting scheme of McDonnell Douglas “without reviewing the merits of [the 

agency’s] decision not to grant a clearance.” Ryan v. Reno, 168 F.3d 520, 523-24 (D.C. Cir. 

1999); see also Beattie v. Boeing Co., 453 F.3d 559 (10th Cir. 1994) (finding Egan barred a 

Bivens action against a private employer arising from the denial of a security clearance necessary 
5 

to access the area in which Air Force One was under construction). 

Extension of Egan to bar decisions other than the denial or revocation of a security 

clearance has proved more controversial. The D.C Circuit recently addressed whether the 

plaintiff could pursue a Title VII claim on the basis of allegations that an employee of the FBI 

reported unfounded security concerns to the FBI’s Security Division, prompting an investigation 

into the plaintiff’s continued eligibility for a security clearance. Rattigan v. Holder, 689 F.3d 

764, 765 (D.C. Cir. 2012). Upon rehearing by the panel, the divided court ruled that Egan does 

not bar Title VII claims arising from the reporting of knowingly false information to the FBI’s 

Security Division.2

 Id. at 767; but see Becerra v. Dalton, 94 F.3d 145, 149 (4th Cir. 1996) 

(holding that Egan barred judicial review of Title VII claims arising from the “instigation of the 

investigation into [a] security clearance”). 

The Defendant cites to the Federal Circuit’s decision in Berry v. Conyers, 692 F.3d 1223 

(Fed. Cir. 2012), in support of his position, which held that Egan prevents the Merit Systems 

Protection Board from reviewing any decision regarding the eligibility of an employee for 

“sensitive” positions, regardless of whether the position requires access to classified information. 

Id. at 1225. On January 14, 2013 (after the Defendant filed his Reply), the Federal Circuit 

granted rehearing en banc and vacated the decision on which the Defendant relies. Berry v. 

Conyers, No. 2011-3207, 2013 WL 262509, Order (Fed. Cir. filed Jan. 24, 2013). 

Although several cases have tangentially involved suitability determinations in the 

context of Egan, none of the cases are directly on point. The D.C. Circuit noted in Bennett v. 

Chertoff, 425 F.3d 999 (D.C. Cir. 2005), that national security issues and suitability 

 2

 The Defendant questioned the validity of Rattigan in his Reply, noting the defendant 

filed a petition for rehearing en banc. Def.’s Reply at 4, n.1. The D.C. Circuit denied the 

petition on November 1, 2012. 
6 

determinations are not mutually exclusive considerations. Id. at 1003. However, the Bennett

court did not reach the issue of whether certain (or all) suitability determinations are 

unreviewable under Egan. Rather, the dispositive question before the court was whether the 

defendant could assert the plaintiff was terminated because she was unable to sustain a security 

clearance, even though the original stated basis for her termination was a negative suitability 

determination. Id. at 1001. The court found TSA could properly raise the denial of the 

plaintiff’s security clearance as grounds for her termination, and affirmed dismissal of the 

complaint, explaining that a court could not determine whether or not the security clearance 

explanation was pretextual without running afoul of Ryan. Id. at 1003. 

The Ninth Circuit in Brazil v. Department of Navy, 66 F.3d 193 (9th Cir. 1995), 

addressed a claim similar to that asserted by the Plaintiff in this case. Brazil sought to challenge 

the revocation of his Nuclear Weapons Personnel Reliability Program certification. Id. at 196-

97. The Ninth Circuit described the certification as “an accreditation to work around sensitive 

nuclear material, and is a prerequisite to employment in certain capacities or on certain Navy 

ships.” Id. at 195, n.1. Noting that the certification “is not the same as a security clearance,” the 

Brazil court explained that “the Navy is anxious to treat it as such, and Brazil acquiesces. Thus 

we will treat PRP certification and security clearance decisions as equivalent for purposes of this 

opinion.” Id. at 195, n.1 (emphasis added). 

B. Egan Bars Judicial Review of the Plaintiff’s Claim 

Although not directly on point, the D.C. Circuit’s analysis in Rattigan provides useful 

guidance in determining whether the Plaintiff’s claim in this case is justiciable: 

[T]he Court in Egan emphasized that the decision to grant or deny security 

clearance requires a [p]redictive judgment that must be made by those with the 

necessary expertise in protecting classified information. Likewise, under 
7 

Executive Order 12,968, the decision to grant or deny access to classified 

information must be based on judgments by appropriately trained adjudicative 

personnel. It is this expert, predictive judgment made by appropriately trained 

personnel that Egan insulates from judicial review. 

Rattigan, 689 F.3d at 767. The Plaintiff is challenging precisely this type of “predictive 

judgment” the Rattigan court indicated should be insulated from review. 

“The HRP is a security and safety reliability program designed to ensure that individuals 

who occupy positions affording access to certain materials, nuclear explosive devices, facilities, 

and programs meet the highest standards of reliability and physical and mental suitability.” 10 

C.F.R. § 712.1. HRP itself requires a “Q” access authorization, id. at § 712.11(a)(1), the 

Department of Energy equivalent of a Top Secret security clearance, id. at § 25.15(a). The 

certification further requires, among other things, annual submission of the SF-86 Questionnaire 

for National Security Positions, completion of a counterintelligence evaluation, and an “annual 

supervisory review, medical assessment, management evaluation, and a DOE personnel security 

review.” Id. at § 712.11(a). Thus, while the HRP is not itself a “security clearance” in the 

traditional sense of the term, it is a more rigorous screening program created so that relevant 

individuals within the Department of Energy make the annual predictive judgment as to whether 

providing a particular individual access to nuclear programs is consistent with security and 

reliability concerns. 

The Rattigan court emphasized in its decision on rehearing that the decision did not 

permit claims against trained individuals charged with making security clearance-related 

decisions. 689 F.3d at 767-78. By contrast here, the Plaintiff’s allegations target one of the 

trained individuals charged with making decisions relating to HRP certification. The Plaintiff 

alleges that “Dr. Seagrave’s rationale for denying Mr. Foote HRP certification was full of errors 

and deliberately misleading.” Compl. at 2. As a result, the Plaintiff claims that the Lead 
8 

Psychologist for HRP (Dr. Anthony Traweek) and the HRP Certifying Official (Dennis Reese) 

relied on “intentionally false information” provided by Dr. Seagrave. Id. In other words, the 

Plaintiff challenges the predictive judgment of trained adjudicative personnel responsible for 

determining whether an individual satisfies the security standards necessary for employment in a 

position involving the nation’s nuclear weapons. 

The nature of the Plaintiff’s claim creates the same issue that led the Bennett court to 

affirm dismissal of the complaint: the court cannot adjudicate the merits of the Plaintiff’s Title 

VII claim without second-guessing the merits of the HRP certification decision. This issue arises 

on two levels in this case. First, the fact finder would have to evaluate the recommendation by 

Dr. Seagrave, which recommended against certifying the Plaintiff because of his previous 

“irresponsible work and performance,” and the Plaintiff’s lack of “full and accurate disclosure 

about [his] history and uncooperative behavior,” which created a “significant concern’ for HRP 

duties.” Compl. at 3-4. The fact finder would have to substitute its judgment for the predictive 

judgment of the psychologist responsible for evaluating whether or not the Plaintiff posed a 

security threat if provided access to the United States nuclear weapons program or related 

materials. Second, assuming the fact finder found Dr. Seagrave’s recommendation was based on 

an improper purpose, the fact finder would then be forced to determine whether the final decision 

to deny the Plaintiff HRP certification was based on Dr. Seagrave’s recommendation. For 

“reasons ... too obvious to call for enlarged discussion,” Egan, 484 U.S. at 529 (citation omitted), 

the protection of nuclear weapons and related materials must be committed to the discretion of 

the agencies responsible for those programs. “[I]t is not reasonably possible for an outside 

nonexpert body,” be it the Court or a jury, “to review the substance of such a judgment and to 

decide whether the agency should have been able to make the necessary affirmative prediction 
9 

with confidence.” Id. 

The Plaintiff’s Opposition emphasizes that federal regulations distinguish between 

security clearances and suitability determinations, and notes that certain suitability 

determinations are appealable to the Merit Systems Protection Board. Pl.’s Opp’n at 3-4 & n.1 

(citing 5 C.F.R. §§ 731.101(a), 731.501(a)). The Human Reliability Program at issue in this case 

is not part of the civil service regulations cited by the Plaintiff. Part 731 of Title 5 of the Code of 

Federal Regulations “establish[es] criteria and procedures for making determinations of 

suitability and for taking suitability actions regarding employment in covered position.” 10 

C.F.R. § 731.101(a). As part of those procedures, when a relevant agency “takes a suitability 

action against a person, that person may appeal the action to the Merit Systems Protection 

Board.” 10 C.F.R. § 731.501(a). The HRP regulations are set forth in Part 712 of Title 10 of the 

Code of Federal Regulations, as part of the regulations relating to the Department of Energy. 

The Plaintiff’s citation to regulations regarding other suitability determinations is unavailing, 

particularly given the unique subject of the HRP: nuclear weapons. 

The Plaintiff further contends that even under Egan, the Board (and thus the Court) can 

review claims that the necessary procedural protections were not afforded to an individual before 

his/her security clearance, and thus procedural claims regarding suitability claims are likewise 

justiciable. In support of this theory, the Plaintiff offers new allegations in his Opposition in 

support of the argument that he is challenging the process afforded in denying his HRP 

certification, rather than the merits of the decision itself. Construing the Plaintiff’s pro se 

Complaint liberally, none of the allegations even verge on asserting a due process violation. The 

Plaintiff cannot simply amend the allegations in his Complaint by including new assertions and 

legal theories of liability in his Opposition. Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. 
10 

Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003). Assuming arguendo the Court could 

entertain a procedural claim arising from the denial of Plaintiff’s HRP certification, no such 

claim is alleged in this case.

IV. CONCLUSION 

 For the foregoing reasons, the Court finds the Plaintiff cannot pursue a claim under Title 

VII challenging the merits of the Defendant’s decision to deny Plaintiff certification under the 

Department of Energy’s Human Reliability Program. The Plaintiff’s claim would require the 

Court to evaluate the merits of the predictive judgment made by trained individuals finding that 

the Plaintiff did not satisfy the security and reliability requirements necessary for access to the 

United States nuclear weapons program and related materials. Suitability determinations as a 

general matter may not be insulated from Title VII challenges, but permitting this particular 

claim would run afoul of Supreme Court and Circuit precedent which require courts to leave 

national security decisions to the discretion of the responsible agency. Accordingly, the 

Defendant’s [39] Motion for Judgment on the Pleadings is GRANTED and the Complaint is 

DISMISSED. 

An appropriate Order accompanies this Memorandum Opinion. 

 /s/ 

 COLLEEN KOLLAR-KOTELLY

 UNITED STATES DISTRICT JUDGE