484 U. S. 518
February 23, 1988
Thomas Egan was hired by the federal government to work on repairs for nuclear submarines. This position requires security clearance. Egan was denied clearance because of some old criminal history and drug abuse problems. Due to this denial of clearance, the government moved to terminate his employment. Egan appealed to a Board set up to arbitrate disputes, and there was a question as to whether this Board could independently evaluate the decision to deny Egan security clearance.
In a 5-3 ruling (Kennedy did not participate), the Court held that a security clearance decision could not be questioned, at least under the code provision Egan had sued under. Blackmun said that security clearance was inherently a discretionary decision, and was closely linked to the President’s largely unreviewable power as Commander-in-Chief. What’s more, clearance decisions were traditionally made with high standards required to obtain it. This made clearance decisions hardly amenable to second guessing by a review board operating on a preponderance standard. Another code provision that Egan’s challenge did not proceed under might have allowed for more inquiry into the clearance decision, but this alone did not mean that that the route of review which did occur needed to have such a similarly searching inquiry.
White, joined by Brennan and Marshall, dissented. He found the alternate review route in the code to be convincing. Because second-guessing of a security clearance decision was thus allowed in some cases, White felt that Egan deserved a hearing in the administrative review route which did occur. Personally, I think the statutory text is fairly ambiguous, and in the face of such ambiguity, I would decline to give Egan any extra legal protections that aren’t clearly in the text.