Ninth Circuit Reminds Nuclear Industry Employers That Some Security-Sensitive Employment Decisions Are Subject to Judicial Review

Department of the Navy v. Egan: Deference for Security-Clearance Decisions
In Department of Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court considered whether the Merit Systems Protection Board could review the Navy’s denial of security clearance to a civilian employee due to his criminal record. The Supreme Court held that the Board lacked authority to review the Navy’s security-clearance determination, emphasizing that granting or denying a security clearance requires a predictive judgment about whether an individual might compromise classified information. That judgment, the Court explained, is reserved for the Executive Branch agency with the expertise and constitutional responsibility to protect national-security information and is nonjusticiable.

The Egan holding has since been applied in other contexts analogous to a security-clearance determination, such as Foote v. Moniz, 751 F.3d 656 (D.C. Cir. 2014), in which the plaintiff challenged the refusal by the Department of Energy (DOE) to certify him under the Human Reliability Program (HRP). The HRP is a DOE security and reliability program for individuals in especially sensitive positions, including positions involving access to nuclear devices, materials, facilities and programs.

HRP certification requires DOE “Q” access authorization, which the D.C. Circuit described as DOE’s highest level of security clearance. Because HRP certification requires DOE to make predictive judgments about reliability, safety and security risks, the D.C. Circuit concluded that DOE’s decision not to certify an applicant under the HRP was the kind of judgment covered by Egan.

Hale v. Johnson: Distinguishing Fitness-for-Duty from Access to Classified Information
Not every employment decision with a national-security nexus is due deference under Egan. In Hale v. Johnson, 845 F.3d 224 (6th Cir. 2016), a commercial nuclear power plant security officer was discharged after failing a pulmonary-function test required for medical clearance and sued under the Americans with Disabilities Act (ADA). The utility plant owner moved to dismiss the claims arguing that, under Egan, the court was precluded from reviewing its determination that the plaintiff lacked the physical capacity to perform his security duties.

However, the Sixth Circuit rejected the utility’s argument, holding that Egan was narrowly concerned with “the importance of executive control over access to national-security information, not general national-security concerns such as those applicable in determining whether an individual has the physical capacity to guard a nuclear power plant.” (Hale at 230). In Hale, the decision to discharge the plaintiff was a question of physical fitness and had no bearing on access to classified information. The Sixth Circuit sought to avoid creating a per se rule that would preclude judicial review of an employment decision so long as it was made in the name of national security.

Gonzales v. Battelle Energy Alliance, LLC
In Gonzales v Battelle, 172 F.4^th1105 (9^thCir. 2026), the Ninth Circuit applied the same rationale used in Hale to hold that an employment decision based on physical fitness was not immune from judicial review. Battelle Energy Alliance contracted with the DOE to manage the Idaho National Laboratory, a facility where the government stores spent nuclear fuel. Beginning in 2005, Roman Gonzales was employed by Battelle as an SPO to protect the nuclear storage sites; and, as a condition of employment, he was subject to several certification requirements. First, under 10 C.F.R. § 1046, Gonzales was required to demonstrate certain medical, physical readiness, training and performance standards. Second, starting in 2015, Gonzales was required to meet the requirements under the HRP because of his access to sensitive nuclear materials, facilities, devices and programs.

Throughout his employment with Battelle, Gonzales suffered from a chronic back condition, which he managed through prescribed pain medication. Battelle was aware of his condition and medication both before and during his employment, and, despite his condition, Gonzales remained certified under both the HRP and § 1046 through 2017 with no issues raised regarding his performance.

However, in 2017, a new Battelle doctor began raising concerns about Gonzales’s long-term use of prescription opiates. Battelle also required Gonzales to meet with a licensed clinical social worker for the psychological component of his HRP certification who concluded that Gonzales was not reliable. As a result, Battelle temporarily suspended Gonzales’s HRP authorization and reassigned him to a lower-paying position. But Battelle never completed the follow-up HRP process or submitted the matter to DOE for a final HRP determination. Instead, several months later, Battelle revoked Gonzales’s § 1046 fitness-for-duty certification and subsequently issued a notice of intent to terminate his employment because of the revoked certification. Gonzales was unable to find another position at Battelle, and his employment was terminated in January 2019.

Gonzales sued under the ADA, alleging discrimination and retaliation. A jury found in his favor on his retaliation and “regarded as” disability discrimination claims. Battelle moved for judgment as a matter of law, arguing that its decision was a nonjusticiable security determination and should be granted deference under Egan. The district court denied the motion, and Battelle appealed.

Drawing on both Egan and Foote, Battelle contended that, because Gonzales was an SPO at a nuclear facility, and because SPOs were subject to HRP requirements, Battelle’s decision to terminate Gonzales should have been treated like a security-clearance determination. However, the Ninth Circuit rejected that argument on the grounds that Gonzales was terminated based on the revocation of his § 1046 fitness-for-duty certification rather than a final DOE revocation of his HRP certification.

This distinction is relevant because the HRP and § 1046 serve different functions. The HRP is expressly tied to national-security clearance, DOE “Q” access authorization, security reviews and predictive reliability judgments. Section 1046, in contrast, establishes medical, physical-readiness, training and performance standards to determine whether security personnel can perform their duties, with or without reasonable accommodation.

The Ninth Circuit also distinguished the HRP program from § 1046 on the basis that a contractor has the power to revoke a § 1046 certification, whereas the ultimate authority to revoke HRP certification belongs exclusively to the DOE. Furthermore, § 1046 expressly requires compliance with the ADA, a statutory scheme that is subject to judicial review, unlike HRP regulations, which have no mention of incorporating ADA standards. Finally, although both programs share certain components, including psychological evaluations, that alone does not change the fact that each program serves a different function.

Gonzales v. Battelle: Salient Points
Although security clearance decisions remain nonjusticiable under the Egan doctrine, the Ninth Circuit’s holding in Gonzales reaffirms that Egan is not a blanket defense for every employment decision in a national-security-adjacent workplace.

For both employers and employees working in industries that implicate national security, the lesson is to be aware of the distinction between (1) a discretionary and nonjusticiable employment decision that implicates security clearances and sensitive information, and (2) a fitness-for-duty decision that may not automatically be insulated from review.

Even in highly regulated and sensitive national security environments, the ADA and other statutory protections may still apply. There may be circumstances that are more akin to Egan than Battelle or vice versa. Employers believing a particular adverse employment action is insulated from judicial review under Egan, or may be subject to such review under Battelle, should consult with legal counsel before making and implementing a final determination.