Sanchez v. United States Department of Energy

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 11, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
SIGIEFREDO SANCHEZ,
Plaintiff - Appellant,
v. No. 16-2056
UNITED STATES DEPARTMENT OF
ENERGY; DR. ERNEST MONIZ, United
States Secretary of Energy, in his official
capacity,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:13-CV-00656-KG-LF)
_________________________________
Deborah R. Stambaugh (Mark C. Dow, with her on the briefs), Bauman, Dow &
Stambaugh, PC, Albuquerque, New Mexico, for Plaintiff-Appellant.
Joseph F. Busa, Attorney (Charles W. Scarborough, Attorney, Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, and Damon P. Martinez, United States
Attorney, with him on the brief), Office of the United States Department of Justice,
Washington, D.C., for Defendants-Appellees.
_________________________________
Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
While he was reading a daily report aloud to his colleagues, Sigiefredo
Sanchez mixed up the order of words and numbers, skipped over sections, and gave
briefing points out of order. These were signs of a reading disorder that Sanchez was
unaware he had. Because his job required him to provide transportation information
to nuclear convoys, his reading disorder presented a potential threat to national
safety. Once his condition was diagnosed, Sanchez lost his safety-and-security
clearance. Then, after unsuccessfully requesting accommodations, Sanchez was fired.
Sanchez sued his former employer for due-process and Rehabilitation Act
violations. The district court granted judgment on the pleadings and dismissed
Sanchez’s claims. It relied in part on the Supreme Court’s decision in Department of
the Navy v. Egan, 484 U.S. 518 (1988). Egan and later cases relying on it prohibit
courts and agencies from reviewing the merits or motives of the Executive Branch’s
security-clearance decisions. This bar on judicial and administrative review stems
from the principle that security-clearance decisions involve sensitive and classified
information of the sort best left to the Executive Branch’s purview.
But Egan barred only judicial or administrative “review.” 484 U.S. at 529. So
Egan would not reach a case with an unchallenged security-clearance decision,
requiring no judicial or administrative review. We find ourselves in that situation
today and must decide whether Egan bars our review of Sanchez’s claims. We
AFFIRM in part and REVERSE in part.
2
BACKGROUND
I. HRP Certification
On August 20, 2006, Sanchez became an Emergency Operations Specialist for
the National Nuclear Security Administration (the “Administration”). The
Administration is an agency within the Department of Energy that ensures the
security of nuclear weapons and materials and “safeguard[s] the safety and health of
the public.” 50 U.S.C. § 2401(c). Sanchez worked within the Administration’s Office
of Secure Transportation, which oversees the transportation of nuclear weapons and
materials (we refer to this office, the Department of Energy, and the Administration
as the “Department”). Before taking this position, Sanchez already had over thirteen
years of federal employment and was less than three years away from being eligible
to receive federal-retirement benefits.
Sanchez’s job as an Emergency Operations Specialist required him to answer
911 calls and relay GPS locations, mile markers, and other directions to and from
nuclear-convoy commanders. Because these duties could affect public safety,
Sanchez’s position also required a Human Reliability Program (“HRP”) certification.
The HRP derives from federal regulations governing safety and security within
the Department. 10 C.F.R. § 712.1. It ensures that people working with nuclear
materials “meet the highest standards of reliability and physical and mental
suitability” and uses “a system of continuous evaluation” to “identif[y] individuals
whose judgment and reliability may be impaired by physical or mental/personality
disorders,” among other impairments. Id. Department officials—including specially
3
trained managers, HRP-certifying officials, and HRP-designated psychologists and
physicians—oversee the HRP-certification and decertification process. See generally
id. § 712.3 (defining roles). When concerns arise, these Department officials apply
HRP guidelines in notifying the employee and recommending a course of action. See
id. § 712.19.
Sanchez became HRP certified and worked for a little over five months
without issue.
II. HRP Revocation and Job Suspension
This changed when Sanchez made multiple mistakes while reading a daily
report aloud to his colleagues. During the briefing, Sanchez confused the origin and
destination cities of mission convoys and mixed up letters and numbers within
mission-identification codes. For example, he read trip number Q12-345 as “345-
Q12.” Appellant App. vol. II at 363. Yet, unaware that he had made mistakes,
Sanchez thought the briefing “went well.” Id. at 364.
After this briefing, two of Sanchez’s supervisors followed up with him to
assess his reading abilities. They had him read a shift brief to them; and again,
Sanchez skipped over items and read numbers incorrectly. Sanchez’s direct
supervisor, John Vukosovich, grew concerned about Sanchez’s ability to transpose
mile markers, GPS locations, and other critical information needed in emergencies,
so he and Sanchez’s other supervisor sent him for a medical evaluation with the
Department’s HRP psychologists.
The Department’s psychologists evaluated Sanchez and interviewed his
4
supervisors, including Vukosovich, who described Sanchez as “slow in learning his
job tasks,” and explained how “reading problems could significantly interfere with
Mr. Sanchez’s duties.” Appellant App. vol. I at 19. After evaluating Sanchez, the
Department’s psychologists concluded that Sanchez had Mixed Receptive-Expressive
Language Disorder. Based on this conclusion, the Department’s lead psychologist,
Dr. Anthony Traweek, recommended to the Department:
(1) Do not recertify [Mr. Sanchez] under HRP . . . [;]
(2) Facilitate Mr. Sanchez’s pursuit of appropriate Federal employment
in which there is the possibility for reasonable accommodation of his
apparent Mixed Receptive-Expressive Language Disorder[; and]
(3) Provide Mr. Sanchez with the opportunity to personally discuss the
findings and recommendations of the special evaluations process . . . .
Id. at 40 (emphasis omitted).
While the psychological evaluations were ongoing, the Department removed
Sanchez from his HRP duties and restricted him to doing research assignments and
filing weather-condition reports. It also prohibited Sanchez from answering 911 calls,
logging into classified computers, handling trip folders, and relaying information to
convoy commanders. And, when his coworkers sat for their morning-shift briefings,
the Department had Sanchez work in a different room.
On August 25, 2008, after receiving Dr. Traweek’s recommendation, the
Department notified Sanchez that it had revoked his HRP certification. In doing so, it
relied on 10 C.F.R. § 712.13(c)(1), which speaks to the impact of an employee’s
“[p]sychological or physical disorders that impair performance of assigned duties.”
5
10 C.F.R. § 712.13(c)(1).
Because Sanchez had never been diagnosed with Mixed Receptive-Expressive
Language Disorder, he doubted the Department’s evaluations. He hired his own
psychologist, Dr. John King, who concluded that Sanchez had a reading disorder and
agreed that Sanchez should not perform “duties associated with an emergency
operations specialist.” Appellant App. vol. II at 361. Dr. King also noted that when
given extra time on reading tests, Sanchez’s reading performance and comprehension
improved to a low-average range.
On September 12, 2008, the Department notified Sanchez that it was proposing
to suspend him indefinitely and that Vukosovich was the deciding official. After
considering a number of factors (called the “Douglas Factors”), which included
Sanchez’s inability to perform his duties without HRP certification and with “[n]o
other alternatives available,” Vukosovich indefinitely suspended Sanchez. Appellant
App. vol. I at 169.
III. Accommodation Requests
Sanchez and others on his behalf made at least a dozen accommodation
requests. Specifically, they requested that the Department reassign Sanchez to a
position that didn’t require an HRP certification (we refer to these jobs as “non-HRP
jobs”).
When Sanchez’s Equal-Employment-Opportunity Counselor asked the
Department’s Human Resources Manager, Melissa Maestas, if the Department would
reassign Sanchez to a non-HRP job, Maestas responded that she was under no
6
obligation to reassign Sanchez, but encouraged Sanchez to look for vacancies. She
also said that she would try to find Sanchez a temporary reassignment. When
Sanchez later asked Maestas a second time for a reassignment, Maestas responded
that “no reassignment action [was] in place or planned.” Appellant App. vol. III at
458.
Eventually the Department instructed Sanchez to direct his reassignment
requests to Vukosovich. But Sanchez felt that Vukosovich was biased because he had
given him a negative performance review and had once publicly reprimanded and
threatened to terminate him. So instead, Sanchez asked the Department to appoint an
impartial decision-maker. Vukosovich handled this request too, and responded that
his potential bias “was a separate issue and ha[d] no bearing on the matter.”
Appellant App. vol. I. at 23. And, addressing Sanchez’s reassignment request,
Vukosovich informed Sanchez that the “Operations Division does not have work
available to which you may be assigned pending the final resolution of your HRP
certification.” Id. at 24. Though other divisions within the Department had vacancies
for non-HRP jobs, including a Business and Acquisition Specialist position as well as
28 other positions, Vukosovich never told Sanchez about them.
Later, at a certification-review hearing, Sanchez again requested an
accommodation through reassignment. During the hearing, Sanchez didn’t challenge
the Department’s temporary HRP-decertification or its recommendation that he not
perform HRP jobs. In fact, he presented his expert, Dr. King, who agreed that
Sanchez could not perform HRP duties. On September 17, 2009, the Department
7
issued its final decision decertifying Sanchez from the HRP. Soon after this, on
December 6, 2009, in a notice written by Vukosovich, the Department fired Sanchez.
Despite offering to take “any position, even janitorial,” the Department never
reassigned Sanchez. Id. at 25. Instead, it fired him two years before he could retire.
IV. Sanchez Sues the Department
After exhausting his administrative remedies, Sanchez sued both the Secretary
of Energy, in his official capacity, and the Department (we continue using the
“Department” to refer to both defendants). Under the Rehabilitation Act, Sanchez
alleged claims for: (1) failure to accommodate (“Claim 1”); (2) disparate-treatment
discrimination (“Claim 2”); and (3) retaliation (“Claim 3”). He also alleged a fourth
claim for violation of procedural due process (“Claim 4”), claiming that Vukosovich
was not an impartial decision-maker.
The Department moved for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c) (the “Rule 12(c) Motion”). It argued that the Supreme Court’s
decision in Egan precluded the district court from reviewing its HRP-revocation
decision, and thus moved to dismiss the claims for lack of jurisdiction. Sanchez
responded to the Department’s motion, disputing Egan’s application to his claims.
Meanwhile, with the Rule 12(c) Motion pending, the district court allowed the
parties to engage in discovery. During discovery, Dr. Traweek testified about how the
HRP distinguishes between safety and security concerns and agreed that the
Department had revoked Sanchez’s HRP certification for safety rather than security
reasons.
8
Wanting to use this testimony to argue against Egan’s bar and help show that
the HRP regulations entitled him to reassignment, Sanchez filed a Motion to
Supplement Plaintiff’s Response to [Department’s] Motion for Judgment on the
Pleadings (the “Motion to Supplement”). Both parties also moved for partial or full
summary judgment.
But the district court didn’t consider the parties’ cross summary-judgment
motions and denied Sanchez’s Motion to Supplement. A year and a half after the
Department filed its Rule 12(c) Motion, the district court granted the Rule 12(c)
Motion, dismissing all of Sanchez’s claims. The district court found that it lacked
jurisdiction to review the merits of the Department’s decision to revoke or deny a
security clearance under Egan, and dismissed Claims 1-3 on this basis. It dismissed
Claim 4 on the merits, finding that Sanchez failed to state a claim. Sanchez appeals.
DISCUSSION
On appeal, Sanchez argues that the district court: (1) abused its discretion by
denying Sanchez’s Motion to Supplement; (2) failed to accept Sanchez’s well-
pleaded allegations and made findings of fact contrary to the complaint’s allegations;
(3) erred in holding that Egan prohibited the court from reviewing Claim 1, the
failure-to-accommodate claim; (4) erred in holding that the Department isn’t required
to reassign disabled employees; and (5) improperly dismissed Claim 4, Sanchez’s
procedural-due-process claim.1 We address Sanchez’s five arguments on appeal in a
1
Because Sanchez addresses only Claims 1 and 4, his failure-to-accommodate
9
different order and manner.
Because Egan presents a jurisdictional issue, we start there and review whether
the district court had subject-matter jurisdiction over Claim 1 (the failure-to-
accommodate claim) or Claim 4 (the procedural-due-process claim). See Hill v. Dep’t
of Air Force, 844 F.2d 1407, 1411 (10th Cir. 1998) (questioning the district court’s
jurisdictional basis to examine a security-clearance decision). We conclude that Egan
prohibits review of Claim 4, but not Claim 1. Thus, we affirm the district court’s
dismissal of Claim 4. This disposes of Sanchez’s third and fifth arguments on appeal.
Sanchez’s first argument on appeal—that the district court abused its discretion by
denying his Motion to Supplement—implicates our Egan analysis because Sanchez
wanted to use his Motion to Supplement to show, in part, that Egan applied only to
security-related decisions rather than safety-related decisions. So we also address
Sanchez’s first argument within our Egan analysis.
After our Egan analysis, we address whether Sanchez has stated a failure-to-
accommodate claim under the Rehabilitation Act. We conclude that he did, and thus
we reverse the district court’s dismissal of Claim 1. This disposes of Sanchez’s
second and fourth arguments.
and due-process claims, he has waived our review of Claims 2 and 3, the disparate-
treatment and retaliation claims. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,
679 (10th Cir. 1998) (noting that issues inadequately raised in an appellant’s opening
brief are waived).
10
I. Does Egan Bar Review of Sanchez’s Claims?
Egan prohibits “any external review (including judicial review) of security
clearance decisions.” Duane v. U.S. Dep’t of Defense, 275 F.3d 988, 993 (10th Cir.
2002). This means district courts lack jurisdiction to review the merits or motives of
a decision to revoke or deny a security clearance. See Hill, 844 F.2d at 1411. Because
Egan presents a subject-matter jurisdiction hurdle, our review is de novo. See Barnes
v. Harris, 783 F.3d 1185, 1189 (10th Cir. 2015).
Egan applies when an agency has made (1) a security-clearance decision that
(2) a plaintiff attempts to challenge. So a two-part framework guides us. To analyze
whether Egan bars our review of Sanchez’s claims, we break our discussion into two
inquiries: first, was the HRP-revocation decision even a security-clearance decision?;
and second, if so, do Sanchez’s claims challenge the merits or motives of that
decision?
On the first inquiry, we conclude that the Department’s HRP-revocation
decision was a security-clearance decision under Egan. On the second inquiry, we
conclude that Sanchez’s procedural-due-process claim challenges the merits or
motives of that decision but that his failure-to-accommodate claim does not. Thus,
Egan bars our review of Claim 4 but not Claim 1.
A. Was the HRP-Revocation Decision a Security-Clearance Decision?
Though the Department asserts that “the precise legal question presented in
this case” is whether the HRP-revocation decision was a security-clearance decision,
Appellee Response Br. at 19, Sanchez seemed to concede that point, see Appellant
11
Opening Br. at 37 (“Here, Mr. Sanchez stipulated to removal of his HRP certification
. . . .”). Within his Motion to Supplement, however, Sanchez tries to show that his
HRP certification “was revoked not for a national security reason, but for a safety
reason.” Appellant Opening Br. at 12.
So to the extent Sanchez’s appeal could be construed as arguing that the
Department’s HRP-revocation decision was not a security-clearance decision (and
was instead a safety decision), we consider and dispose of it by comparing the
security-clearance decision in Egan with the Department’s HRP-revocation decision
here. We conclude that the Department’s HRP-revocation decision was a security-
clearance decision.
1. Egan
In Egan, an employee attempted to challenge the Navy’s security-clearance
denial by appealing to the Merit Systems Protection Board (the “Board”). 484 U.S. at
520. The Board held that it lacked authority to review the denial, and the Supreme
Court agreed. Id. at 523. The Court based its holding on separation-of-powers
concerns, deference to national-security decisions, and the nature of security-
clearance decisions as imprecise and difficult to review. See id. at 528-29, 531.
Because an agency derives its authority to grant or deny security clearances
from the President’s Article II Commander-in-Chief authority, “courts traditionally
have been reluctant to intrude upon the authority of the Executive in military and
national security affairs.” Id. at 530. Also, security clearances implicate national-
security interests, so outside bodies should not second-guess the decision to revoke or
12
deny a security clearance. See id. at 531. Finally, because security-clearance
decisions involve predictions about someone’s future conduct, the decision-makers
must engage in “an inexact science at best.” Id. at 529 (quoting Adams v. Laird, 420
F.2d 230, 239 (D.C. Cir. 1969)). So expecting an “outside nonexpert body to review
the substance of such” decisions is unreasonable because they require “[p]redictive
judgment[s] [that] . . . must be made by those with the necessary expertise in
protecting classified information.” Id.
We must decide whether these security-clearance characteristics from Egan
extend to the HRP.
2. The HRP & Egan
In Foote v. Moniz, 751 F.3d 656 (D.C. Cir. 2014), the court decided that the
Department’s HRP decisions qualify as security-clearance decisions under Egan. We
find its reasoning persuasive.
In Foote, the Department refused to certify a job applicant under the HRP, and
the applicant sued under Title VII, claiming race-based discrimination. Id. at 657.
The court held that Egan insulated the Department’s HRP decision. Id. at 657-59. It
reasoned that Egan’s separation-of-powers concerns extended to the HRP. Id. at 658.
As in Egan, where the Navy derived its power to make security decisions from the
President’s Article II Commander-in-Chief authority, the HRP “was established in
part under the same Executive Order”; and applicants seeking HRP certification had
to “possess or obtain a ‘Q’ access authorization, the [Department’s] highest level of
security clearance.” Id. at 658-59.
13
In addition, similar to the security clearance in Egan, Sanchez’s HRP
certification indisputably involves national security because it authorized his
involvement with nuclear materials, devices, and facilities. As Foote said, the HRP’s
national-security implications are so obvious that they “require[] no extended
discussion.” Id. at 658. And, like the decision-makers in Egan, HRP decision-makers
must “attempt to predict” who could compromise sensitive information. Id. at 659
(quoting Egan, 484 U.S. at 528).
Based on the similarities between HRP certifications and the security-
clearance in Egan, we will not invoke jurisdiction by crediting Sanchez’s argument
that his HRP certification “was revoked not for a national security reason, but for a
safety reason.” Appellant Opening Br. at 12. Egan insulates the Department’s HRP
decisions because the HRP stems from the Executive Branch’s authority; it regulates
who may be involved with nuclear materials, devices, and facilities; and the decision-
makers involved must make predictive judgments.
Though Sanchez’s reading disorder would not compromise classified
information in the same way that a person’s disloyalty to our country would, it still
has the potential to expose the nation to risk. See Kaplan v. Conyers, 733 F.3d 1148,
1160 (Fed. Cir. 2013) (emphasizing that national security is what matters in an Egan
analysis, and not that a position requires access to classified information). The
Department must shoulder the delicate task of weighing these risks and safety
margins while safeguarding the country’s nuclear materials, devices, and facilities.
See Egan, 484 U.S. at 529 (rejecting the idea that an outside body can “determine
14
what constitutes an acceptable margin of error in assessing the potential risk”). And
that balancing act should remain immune from our review. See Merida Delgado v.
Gonzales, 428 F.3d 916, 920 (10th Cir. 2005) (instructing that “[i]t is rarely
appropriate for courts to intervene in matters closely related to national security”).
3. Motion to Supplement
Sanchez argues that the district court erred in denying his Motion to
Supplement. For our purposes here, we construe the Motion to Supplement as a
motion to amend, so we review the district court’s denial for an abuse of discretion.
Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Sch., 565 F.3d 1232, 1249
(10th Cir. 2009).
Sanchez filed his Motion to Supplement to show (at least in part) that Egan
extends to only security- and not safety-related HRP decisions.2 We conclude that
Egan extends to both safety- and security-related HRP decisions. Therefore, the
safety-versus-security dichotomy given in Sanchez’s Motion to Supplement is
insufficient to establish jurisdiction. In this regard, the Motion to Supplement was
futile and the district court acted within its discretion in denying it. See Castleglen,
Inc. v. Resolution Tr. Corp., 984 F.2d 1571, 1584-85 (10th Cir. 1993) (explaining
that a district court acts within its discretion when it denies a futile motion to amend).
2
Sanchez also argues that his Motion to Supplement proved that the HRP
regulations entitled him to reassignment. Because we conclude in Part II.B. that
Sanchez was entitled to reassignment under the Rehabilitation Act, we need not
address whether the HRP regulations provided him with a separate right to
reassignment.
15
B. Do Sanchez’s Claims Challenge the Department’s Merits or
Motives?
Although the Department’s HRP-revocation decision was a security-clearance
decision, our analysis must continue. If Sanchez’s claims leave the HRP-revocation
decision unchallenged, then the district court has jurisdiction to review them. See
Duane, 275 F.3d at 993 (holding jurisdiction existed to review claims unrelated to the
merits of the security-clearance decision); Zeinali v. Raytheon Co., 636 F.3d 544, 550
(9th Cir. 2011) (“[F]ederal courts have jurisdiction to decide claims that ‘do [] not
necessarily require consideration of the merits of a security clearance decision,’ as
long as they remain vigilant not to ‘question the motivation behind the decision to
deny [the plaintiff’s] security clearance.’” (second and third alterations in original)
(quoting Makky v. Chertoff, 541 F.3d 205, 213 (3d Cir. 2008))); Stehney v. Perry, 101
F.3d 925, 932 (3d Cir. 1996) (emphasizing that “not all claims arising from security
clearance revocations violate” Egan).
Thus, we move to the second inquiry and examine Sanchez’s claims in more
detail. We start with Claim 1, Sanchez’s failure-to-accommodate claim.
1. Failure to Accommodate & Egan
Sanchez alleged a Rehabilitation Act violation based on the Department’s
failure to engage in an interactive process and its failure to reassign him to a non-
HRP job. The district court dismissed this claim because it concluded that it lacked
jurisdiction under Egan. We disagree.
“The limited appeal of agency security clearance-based actions does not
16
remove federal employees from all other employment rights and benefits.” Adams v.
Dep’t of Defense, 688 F.3d 1330, 1334 (Fed. Cir. 2012). One such right stems from
the Rehabilitation Act, which requires federal employers to do more than treat
disabled and nondisabled employees alike. Woodman v. Runyon, 132 F.3d 1330, 1337
(10th Cir. 1997). Under the Rehabilitation Act, employers have to “meet the needs of
disabled workers and . . . broaden their employment opportunities.” Id. at 1337-38. In
line with this goal, the Rehabilitation Act imposes a duty on federal employers to
“provide reasonable accommodations to disabled employees.” Sanchez v. Vilsack,
695 F.3d 1174, 1177 (10th Cir. 2012). A reasonable accommodation might include
“things like adding ramps or allowing more flexible working hours” or reassigning a
disabled employee to a vacant position. Hwang v. Kan. State Univ., 753 F.3d 1159,
1162 (10th Cir. 2014); Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1110 (10th Cir.
1999). If an employer fails to satisfy its duty to accommodate, a disabled employee
or job applicant may bring a failure-to-accommodate claim under the Rehabilitation
Act.3
To state a failure-to-accommodate claim, Sanchez must allege that he: (1) is
disabled; (2) is “otherwise qualified”; and (3) requested a plausibly reasonable
accommodation. Sanchez, 695 F.3d at 1177 (quoting 29 U.S.C. § 794(a)). Once he
3
Though Sanchez brings his claim under the Rehabilitation Act, we rely on
case law interpreting failure-to-accommodate claims brought under that act as well as
under the Americans with Disabilities Act (the “ADA”). Case law interpreting either
act applies to failure-to-accommodate claims. Wilkerson v. Shinseki, 606 F.3d 1256,
1262 (10th Cir. 2010).
17
alleges these elements, “an employer generally may avoid liability only if it can
prove the accommodation in question imposes an undue hardship on its business.”
Hwang, 753 F.3d at 1161.
Sanchez alleges these elements. Specifically, he contends that he is disabled
and that the Department failed to accommodate him by not engaging in an interactive
process and by not reassigning him to another position after he “repeatedly offered to
take any job,” including a janitorial position. Appellant App. vol. I at 273.
We can review Sanchez’s claim precisely because he wanted a non-HRP job.
These jobs didn’t require an HRP clearance or potentially threaten national
security—they were non-sensitive positions. So while the Department’s
“investigation, suspension, and recommended revocation of” Sanchez’s HRP
clearance are all shielded by Egan, Hall v. U.S. Dep’t of Labor, Admin. Review Bd.,
476 F.3d 847, 852 (10th Cir. 2007), the later decisions not to engage with him when
he requested a non-HRP job or to reassign him to a non-sensitive, non-HRP job are
not. In determining whether the Department failed to reassign Sanchez or interact
with him, we would not need “to examine the legitimacy of the [Department’s]
proffered reasons and the merits of the revocation decision” or “the circumstances
under which the [Department] recommended revocation.”4 Id. at 852-53; see also
4
We acknowledge that not all failure-to-accommodate claims will follow
Sanchez’s limited scope, thus we narrow our conclusion to his allegations. Egan
might still apply, for instance, to failure-to-accommodate claims when the employee
has requested: (1) reassignment to a position that requires a security clearance; or (2)
accommodations to remain in a position that requires a security clearance.
18
Zadzielski v. Dep’t of Navy, 464 F. App’x 902, 904 (Fed. Cir. 2012) (unpublished)
(“[Plaintiff], however, raises a claim that is within the Board’s authority to consider:
that the Navy should have assigned him to duties not requiring a security
clearance.”).
Still, the Department argues that Egan prohibits us from reviewing Sanchez’s
failure-to-accommodate claim for two reasons.
First, the Department argues that Sanchez’s claim challenges the Department’s
HRP-revocation decision and its later decision to remove Sanchez from his HRP job.
In the Department’s words, “[t]here is no basis for the distinction Sanchez seeks to
draw, for Egan purposes, between claims challenging the denial or revocation of
HRP certification and claims challenging an employee’s subsequent removal from a
position requiring HRP certification.” Appellee Response Br. at 21. The Department
further states that “Egan bars review of a termination decision insofar as the
termination flowed from the denial or revocation of a security clearance or other
determination committed to the discretion of the Executive Branch.” Id.
As Sanchez points out, the problem with the Department’s first argument is
that it relies on a straw man. This is because (1) Sanchez’s failure-to-accommodate
claim does not challenge the HRP revocation or his removal from his HRP position,
and (2) Sanchez “stipulated to removal of his HRP-certification” (a point that
Sanchez made many times and even underlined in his Opening Brief). Appellant
Opening Br. at 27. Claim 1 concerns what happened after the revocation and removal
and does not call for review of the Department’s HRP decisions.
19
So when the Department says that Sanchez’s failure-to-accommodate claim
challenges its HRP decision and later removal from his HRP job, it ignores Sanchez’s
concessions. In a failure-to-accommodate claim where an employee has requested
reassignment to a non-HRP position, the initial decision to revoke his HRP
certification and the later decision to deny him reassignment to a non-HRP job are
severable. Cf. Makky, 541 F.3d at 212-13 (noting that a security-clearance denial and
a suspension without pay are “two discrete events” and holding that the court had
jurisdiction to review the later event). Sanchez concedes that the Department should
not have reassigned him to his former HRP job or recertified him under the HRP. At
the Department’s certification-review hearing, Sanchez had his own expert, Dr. King,
say that Sanchez should not perform any HRP duties. Because of this and because
Sanchez specifically tailored his claim to non-HRP jobs, his failure-to-accommodate
claim leaves the Department’s HRP decisions unchallenged.
Second, the Department relies on a phrase from our decision in Fitzgerald v.
Corrections Corp. of America, 403 F.3d 1134 (10th Cir. 2005), and argues that to
trigger a right to reassignment, Sanchez would have to prove that the Department’s
“actions discriminate[d] ‘solely by reason of disability.’” Appellee Response Br. at
24 (quoting Fitzgerald, 403 F.3d at 1144). So the argument goes: had the Department
decertified Sanchez based on both his disability and some other, perhaps security-
related reason, Sanchez would have no right to reassignment. And thus, a reviewing
court cannot determine whether Sanchez had a right to reassignment without
weighing the validity of all the Department’s reasons for decertifying Sanchez
20
without violating Egan.
The Department misunderstands Sanchez’s allegations and takes the Fitzgerald
quote out of context. To prove a failure-to-accommodate claim, Fitzgerald dictates in
full that Sanchez must “show that he was ‘otherwise qualified’ for the benefits he
sought and that he was denied those ‘solely by reason of disability.’” 403 F.3d at
1144 (emphasis added) (quoting Johnson ex rel. Johnson v. Thompson, 971 F.2d
1487, 1492 (10th Cir. 1992)). Based on Sanchez’s allegations, the benefit that
Sanchez sought was reassignment to a non-HRP job, not an accommodation to
remain in his HRP job or keep his HRP certification.
Had the Department quoted the complete language from Fitzgerald, it would
know that the “solely by reason of disability” language relates to the second element
of a failure-to-accommodate claim, the otherwise-qualified element. Id. This is
important because Sanchez can show that he was otherwise qualified as long as he
“can perform with or without reasonable accommodation an available reassignment
job within the company, though unable to perform his . . . existing job.” Smith v.
Midland Brake, Inc., 180 F.3d 1154, 1161 (10th Cir. 1999) (en banc). And because
Sanchez concedes that he was unqualified for his existing HRP job, his qualifications
for that position are irrelevant to our otherwise-qualified analysis. See id. (clarifying
that the otherwise-qualified inquiry “is not limited to the employee’s existing job”).
Based on Sanchez’s allegations, then, he doesn’t need to prove that he was
unqualified for his HRP job “solely by reason of disability,” as the Department
asserts. Appellee Response Br. at 24 (quoting Fitzgerald, 403 F.3d at 1144). Instead,
21
he can show that he was otherwise qualified for a non-HRP position and that the
Department failed to reassign him to one of these positions “solely by reason of
disability.” Fitzgerald, 403 F.3d at 1144 (requiring an employee to show he was
otherwise qualified “for the benefits he sought” (emphasis added) (quoting Johnson
ex rel. Johnson, 971 F.2d at 1492)).
If we accepted the Department’s argument that, to have a right to
reassignment, Sanchez must first prove that he was unqualified for his HRP job
solely because of his disability, we would put Sanchez in a worse position than
outside job applicants seeking non-HRP jobs who had never been HRP-certified in
the first place. Unlike outside job applicants, Sanchez would need to prove that he
was qualified for both: (1) the non-HRP jobs he sought; and (2) the HRP job he
formerly had but lost solely because of his disability. Nowhere does the
Rehabilitation Act impose this double burden. And we see no reason for creating a
disparity between outside job applicants and reassignment seekers when the
Rehabilitation Act prohibits discrimination against disabled individuals regardless of
“[w]hether the disabled person is an existing employee seeking reassignment or an
outside job applicant.” Smith, 180 F.3d at 1164.
Because Sanchez requested reassignment to non-HRP jobs and offered to take
“any position, even janitorial,” his failure-to-accommodate claim doesn’t challenge
the Department’s HRP-revocation decision. Appellant App. vol. I at 25. Thus, Egan
doesn’t bar our review of his claim and the district court erred in concluding that it
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lacked jurisdiction to review Claim 1.5
2. Procedural Due-Process & Egan
For Claim 4, Sanchez alleges that the Department violated his procedural-due-
process rights by appointing Vukosovich, who Sanchez contends was a biased
decision-maker, to make the final decision regarding his termination. “To assess
whether an individual was denied procedural due process, ‘[we] must engage in a
two-step inquiry: (1) did the individual possess a protected interest such that the due
process protections were applicable; and, if so, then (2) was the individual afforded
an appropriate level of process.’” Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569,
577 (10th Cir. 1996) (quoting Hatfield v. Bd. of Cty. Comm’rs, 52 F.3d 858, 862
(10th Cir. 1995)).
5
Sanchez also argues that Egan allowed the district court to review his failure-
to-accommodate claim because courts can review “whether an agency violated its
own statutory or regulatory procedures.” Appellant Opening Br. at 28. He then
explains how the Department violated the HRP by failing to reassign him to a non-
HRP job. He points to various HRP regulations, including 10 C.F.R. §§ 712.19,
712.36(g), and 712.36(h). He argues that these regulations show that the Department
revoked his HRP certification for safety, rather than security, reasons and that the
HRP-designated psychologists recommended that the Department accommodate his
disability. He also filed his Motion to Supplement to show that the Department
violated these same HRP regulations.
In light of our determination that the district court had jurisdiction to consider
Sanchez’s failure-to-accommodate claim, we need not address these other arguments
for reversal on this issue. Cf. Predator Int’l., Inc. v. Gamo Outdoor USA, Inc., 793
F.3d 1177, 1194 (10th Cir. 2015) (deciding not to consider other arguments for
reversal in light of the court’s decision to reverse on other grounds). For that reason,
we also decline to address the facts that Sanchez cites to support those arguments.
23
In the Egan context, it’s well-established that people do not possess a
protected liberty or property interest in security clearances. E.g., Hill, 844 F.2d at
1411; Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990). Thus, under Egan, a
procedural-due-process claim typically fails at step one. An employee cannot show a
liberty or constitutional interest to a security clearance because it “is merely
temporary permission by the Executive for access to national secrets,” and so
“[w]hatever expectation an individual might have in a clearance is unilateral at best,
and thus cannot be the basis for a constitutional right.” Hill, 844 F.2d at 1411. “The
same is true of a suspension” that follows a security-clearance revocation. Id. at
1412. Thus, under Egan, “security clearance decisions are not reviewable for
‘minimum due process protection.’” Robinson v. Dep’t of Homeland Sec., 498 F.3d
1361, 1364 (Fed. Cir. 2007); see Duane, 275 F.3d at 994 (“It is likewise plain that
there is no ‘right’ to a security clearance, so that full-scale due process standards do
not apply . . . .”).
Still, Sanchez asserts that he “has a right to substantive due process in the
termination of his federal employment.” Appellant Opening Br. at 50. Assuming such
due-process rights exist, “they did not include the right to contest the merits of the
decision to suspend his [HRP] clearance.” Gargiulo v. Dep’t of Homeland Sec., 727
F.3d 1181, 1185 (Fed. Cir. 2013). And allegations of bias inherently attack a
decision-maker’s merits and motives. See Dorfmont, 913 F.2d at 1401(stating that
although the plaintiff fashioned her claims as due-process challenges based on an
examiner’s bias, they were still “attacks on the merits of the decision to lift her
24
security clearance”). Therefore, because Sanchez alleges bias to attack the merits of
the underlying HRP-revocation decision and “his job los[s] as a result,” Egan applies
and the district court lacked authority to review Claim 4. Hill, 844 F.2d at 1411.
II. Has Sanchez Stated a Failure-to-Accommodate Claim?
Though we hold that Egan doesn’t bar us from reviewing Sanchez’s failure-to-
accommodate claim, the Department asserts in the alternative that we should affirm
the district court’s dismissal of the failure-to-accommodate claim on the claim’s
merits, arguing that Sanchez has failed to state a claim for relief. We disagree.
A. Rule 12(c) and 12(b)(6) Standards
We review whether Sanchez stated a claim under Rule 12(c) de novo, applying
the same standards that apply to Rule 12(b)(6) dismissals. BV Jordanelle, LLC v. Old
Republic Nat’l Title Ins. Co., 830 F.3d 1195, 1200 (10th Cir. 2016).
Thus, to survive judgment on the pleadings, Sanchez must allege “a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To determine
whether the claim to relief is “plausible on its face,” we examine the elements of the
particular claim and review whether the plaintiff has pleaded “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “We accept as true all well-pleaded factual allegations in the
complaint and view them in the light most favorable to [Sanchez].” Burnett v. Mortg.
Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013). Though we
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construe factual allegations as true, we refuse to accept mere labels and legal
conclusions as true. Id.
B. Rehabilitation Act
As we said above, to state a failure-to-accommodate claim under the
Rehabilitation Act, Sanchez must allege that: (1) he is disabled; (2) he is “otherwise
qualified”; and (3) he requested a plausibly reasonable accommodation. Sanchez, 695
F.3d at 1177 (quoting 29 U.S.C. § 794(a)).
The Department doesn’t contest whether Sanchez sufficiently pleaded the first
and third elements, and for good reason. For element one, as long as Sanchez has a
“physical or mental impairment that substantially limits one or more major life
activities” he is disabled under the Rehabilitation Act. 42 U.S.C. § 12102(1)(A); see
29 U.S.C. § 705(9)(B) (referring to the ADA definition for certain Rehabilitation Act
purposes). And the ability to read is one of the statutorily defined major life
activities. 42 U.S.C. § 12102(2)(A). As for the third element, Sanchez requested
reassignment many times, even using the HRP-certification hearing as an opportunity
to make his case for reassignment.
The Department challenges the claim based on element two. So we must
decide whether Sanchez’s complaint sufficiently alleged that he was otherwise
qualified. See Poindexter v. Atchison, Topeka and Sante Fe Ry. Co., 168 F.3d 1228,
1230 (10th Cir. 1999) (reversing the district court’s judgment based on one element
of a disability claim without addressing the remaining two elements).
26
The “otherwise qualified” element involves a two-part analysis. Woodman,
132 F.3d at 1340. First, we ask whether a reasonable accommodation would have
enabled Sanchez to perform his original job. Id. Because Sanchez concedes that he
was unable to perform his original job as an Emergency Operations Specialist, we
move to the second step. At step two, we ask whether the Department could have
“transferred [Sanchez] to other work which could be done with or without
accommodation.” Id. (quoting Gonzagowski v. Widnall, 115 F.3d 744, 747 (10th Cir.
1997)). At this stage, “employers are only required to reassign employees to existing
vacant positions.” Koessel v. Sublette Cty. Sheriff’s Dep’t, 717 F.3d 736, 745 (10th
Cir. 2013). Vacant positions are those to which “a similarly situated, non-disabled
employee” could apply. Id.
To survive judgment on the pleadings, then, Sanchez must identify “a specific
vacant position to which he could have reasonably been reassigned.” Id. In his
complaint, Sanchez identified 29 vacant positions, none of which required HRP
certification, and alleged that he could perform “the essential functions of one or
more” of these positions. Appellant App. vol. 1 at 25-26, 30. Sanchez also detailed
the job tasks that he had performed from 1983 to 2002 as a Property Book Officer,
which included the administrative duties of “managing books, supply accountability,
and acquisition of classified Patriot system repair parts.” Id. at 18.
Taking these factual allegations as true and considering that the vacant
positions identified by Sanchez had administrative titles that would include job duties
similar to his work as a Property Book Officer, such as “Administrative Assistant” or
27
“Administrative Support Assistant,” id. at 25-26, Sanchez sufficiently pleaded that he
was otherwise qualified for such vacancies. Accordingly, the district court erred in
dismissing Sanchez’s failure-to-accommodate claim.
CONCLUSION
For the reasons above, we REVERSE in part and AFFIRM in part the district
court’s Rule 12(c) dismissal. We vacate the district court’s judgment on the pleadings
as to Claim 1—Sanchez’s failure-to-accommodate claim—and remand the matter for
further proceedings consistent with this opinion. But we affirm the district court’s
dismissal of Claims 2-4—the retaliation, disparate treatment, and procedural-due-
process claims—as well as the district court’s order denying Sanchez’s Motion to
Supplement.
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