Writing for a unanimous panel, Circuit Judge Morgan B. Christen held that certifications issued under 10 C.F.R. § 1046, which sets "the medical, physical readiness, training and performance standards" for security personnel at Department of Energy facilities, are "qualitatively distinct from HRP security clearances." The panel aligned with the Sixth Circuit's decision in Hale v. Johnson.
Roman Gonzales worked as a Security Police Officer for Battelle beginning in 2005 and took prescribed opiates for a chronic back injury. Battelle revoked his § 1046 fitness-for-duty certification in November 2018 and terminated him in January 2019. A jury found in his favor on his retaliation and "regarded as" discrimination claims under the Americans with Disabilities Act.
Battelle argued on appeal that "[b]ecause the protection of nuclear facilities . . . directly implicate[s] national security," "it follows that fitness-for-duty determinations under § 1046 are matters of national security as well." The panel disagreed, holding that "the fitness-for-duty standards [set forth in § 1046] are not tied to predictive security determinations and therefore do not raise Egan [justiciability] concerns."
Christen wrote that Egan involved a "sensitive and inherently discretionary judgment call" about access to classified information, distinguishable from the physical and medical standards in § 1046. Quoting Hale, the panel said Egan "analyze[d] 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 plant."
The panel also distinguished § 1046 from the DOE's Human Reliability Program, which requires a "Q" access authorization, annual security reviews, and possible polygraph testing. The HRP reserves final revocation authority to the DOE, while § 1046 does not. The panel noted that § 1046 "expressly requires compliance with the ADA," whereas "[t]he HRP regulation makes no mention of accommodating ADA standards."
Evidence at trial showed management told some of Gonzales's coworkers he was losing his job for being an "opioid abuser." Two random drug tests in late 2017 and early 2018 returned positive for opiates, but Battelle's program doctor marked them negative because Gonzales "present[ed] a legitimate medical explanation." In June 2018, the program doctor told Battelle's HRP team that Gonzales's "long-term use of narcotics while in HRP or under 1046 was not allowed."
Battelle temporarily suspended Gonzales's HRP certification and reported the suspension to the DOE but never submitted the matter for a final determination. The panel observed that Battelle "did not follow the procedure set forth in the HRP to allow the DOE to make that decision in Gonzales's case."
Rejecting Battelle's reliance on the Tenth Circuit's Beattie v. Boeing Co., the panel noted that case involved an Air Force contractor that had been expressly delegated clearance authority. Citing Zeinali v. Raytheon Co., Christen wrote that "private employers can rarely avail themselves of Egan's jurisdictional bar."
Circuit Judges Carlos T. Bea and Roopali H. Desai joined the opinion. The panel affirmed Battelle's other grounds for appeal in a simultaneously filed memorandum disposition.
Gonzales was represented by DeAnne Casperson, Amanda E. Ulrich, and Ryan S. Dustin of Casperson Ulrich Dustin PLLC. Battelle was represented by Kelsey VanOverloop, Thomas M. Metzger, Amelia A. McDermott, and Gregory G. Iskander of Littler Mendelson PC.
The case is Gonzales v. Battelle Energy Alliance, LLC, No. 25-1037, in the U.S. Court of Appeals for the Ninth Circuit.