Ninth Circuit Says DOE Contractor's Fitness-for-Duty Revocation Is Reviewable Under ADA

Writing for a unanimous panel, Circuit Judge Morgan B. Christen ruled that the district court properly submitted Roman Gonzales's claims under the Americans with Disabilities Act to the jury. The panel included Circuit Judges Carlos T. Bea and Roopali H. Desai.

Gonzales began working for Battelle in 2005 and took prescribed opiates to treat a chronic back injury. Battelle revoked his § 1046 fitness-for-duty certification in November 2018 and terminated him in January 2019. A jury in the District of Idaho found in his favor on retaliation and "regarded as" disability discrimination claims, while rejecting claims for race discrimination, unlawful disclosure of medical information, and denial of reasonable accommodation.

Battelle, which contracts with the Department of Energy to manage the laboratory where the government stores spent nuclear fuel, argued that its decision implicated national security and was thus unreviewable under Egan. The panel disagreed.

"The § 1046 certification is qualitatively distinct from HRP security clearances," Judge Christen wrote, referring to the DOE's separate Human Reliability Program. Egan, she wrote, "insulated from judicial review decisions concerned with the risk that individuals granted access to sensitive information may disseminate that information, not review of certificates concerned with whether employees are physically or psychologically capable of performing their jobs."

The court aligned with the Sixth Circuit's decision in Hale v. Johnson, which held that 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."

Judge Christen rejected Battelle's contention that § 1046 and the HRP were so intertwined that Egan should bar review of both. "The fact that the two certifications share similar components does not mean they serve the same functions," she wrote. She noted that § 1046 "expressly requires compliance with the ADA," while "[t]he HRP regulation makes no mention of accommodating ADA standards."

The opinion also distinguished the Tenth Circuit's decision in Beattie v. Boeing Co., which applied Egan to a contractor's security clearance denial, on the ground that the Air Force in Beattie had "expressly delegated this authority to the government contractor," whereas DOE reserves final HRP revocation decisions to itself. Quoting Zeinali v. Raytheon Co., the panel reiterated that "private employers can rarely avail themselves of Egan's jurisdictional bar."

The panel noted that Battelle had only temporarily suspended Gonzales's HRP certification and never submitted it to DOE for a final determination, as required by 10 C.F.R. § 712.19.

Gonzales was represented by DeAnne Casperson, who argued, along with Amanda E. Ulrich and Ryan S. Dustin of Casperson Ulrich Dustin PLLC in Idaho Falls. Battelle was represented by Kelsey VanOverloop, who argued, along with Thomas M. Metzger, Amelia A. McDermott, and Gregory G. Iskander of Littler Mendelson PC. The district judge was B. Lynn Winmill.

The case is Gonzales v. Battelle Energy Alliance, LLC, No. 25-1037, in the U.S. Court of Appeals for the Ninth Circuit. The panel affirmed Battelle's remaining grounds for appeal in a simultaneously filed memorandum disposition.