Matthew Palmieri v. United States

896 F.3d 579

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 24, 2018
• Docket: 16-5347
• Status: Published

Opinion

Katsas, Circuit Judge, concurring:

The Court's opinion ably dispatches the jumble of thirty claims in the 163-page, pro se complaint under review. As the Court explains, each of Palmieri's claims is either forfeited, frivolous, or otherwise without merit. The Court thus manages to avoid the overarching issue in this or any other case arising from the revocation of a security clearance-whether Department of Navy v. Egan , 484 U.S. 518 , 108 S.Ct. 818 , 98 L.Ed.2d 918 (1988), bars judicial review.

In particular, the Court avoids deciding whether Egan bars non-frivolous constitutional challenges to the denial or revocation of a security clearance. Egan itself barred challenges under the Administrative Procedure Act, but the Court's reasoning-that control over classified information is constitutionally committed to the President as Commander in Chief, see id. at 527 , 108 S.Ct. 818 -seems to encompass constitutional challenges as well as statutory ones. On the other hand, Webster v. Doe , 486 U.S. 592 , 108 S.Ct. 2047 , 100 L.Ed.2d 632 (1988), held that precluding judicial review of constitutional challenges to executive action can itself raise constitutional concerns, even in the area of national security. See id. at 601-05 , 108 S.Ct. 2047 . However, that case involved only the statutory authority of the Director of Central Intelligence, not the Article II authority of the President. See id. at 597 , 108 S.Ct. 2047 . Likewise, National Federation of Federal Employees v. Greenberg , 983 F.2d 286 (D.C. Cir. 1993), held that Egan does not bar constitutional challenges to the methods used by the Executive Branch to gather information for making clearance decisions; but Greenberg did not involve a plaintiff seeking to undo the actual denial or revocation of a clearance, or even a challenge to adjudicatory as opposed to investigatory processes. See id. at 287-90 .

The question whether a plaintiff can seek to undo the denial or revocation of a security clearance, based on non-frivolous constitutional challenges to investigatory or even adjudicatory processes, is weighty and difficult because, in such cases, judicial review bumps up against the President's enumerated and exclusive power as Commander in Chief. We recently reserved that question, see Gill v. U.S. Dep't of Justice , 875 F.3d 677 , 682 (D.C. Cir. 2017), as has the Ninth Circuit, see Dorfmont v. Brown , 913 F.2d 1399 , 1403-04 (9th Cir. 1990). At some point, we will likely need to decide it, for the government warns us that individuals denied clearances are increasingly invoking cases like Webster v. Doe and Greenberg to chip away at Egan .

This case squarely presents the question, for Palmieri does ask the Court to undo the revocation of his security clearance, and some of his claims challenge the constitutionality of adjudicatory as opposed to investigatory processes. The government understandably wants some answers, in light of the ongoing tension in the relevant precedents. Nonetheless, prudence seems to counsel restraint in this case, given the pro se representation and the sprawling, unfocused nature of the complaint. Because Palmieri's claims can be rejected on non- Egan grounds, and because the Court's opinion leaves open the possibility that Egan might bar some or all of them, I join the opinion in its entirety.