from the United States District Court for the District of New
Mexico (D.C. No. 1:13-CV-00656-KG-LF)
Deborah R. Stambaugh (Mark C. Dow, with her on the briefs),
Bauman, Dow & Stambaugh, PC, Albuquerque, New Mexico, for
F. Busa, Attorney (Charles W. Scarborough, Attorney, Benjamin
C. Mizer, Principal Deputy Assistant Attorney General, and
Damon P. Martinez, United States Attorney, with him on the
brief), Office of the United States Department of Justice,
Washington, D.C., for Defendants-Appellees.
MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
PHILLIPS, Circuit Judge.
he was reading a daily report aloud to his colleagues,
Sigiefredo Sanchez mixed up the order of words and numbers,
skipped over sections, and gave briefing points out of order.
These were signs of a reading disorder that Sanchez was
unaware he had. Because his job required him to provide
transportation information to nuclear convoys, his reading
disorder presented a potential threat to national safety.
Once his condition was diagnosed, Sanchez lost his
safety-and-security clearance. Then, after unsuccessfully
requesting accommodations, Sanchez was fired.
sued his former employer for due-process and Rehabilitation
Act violations. The district court granted judgment on the
pleadings and dismissed Sanchez's claims. It relied in
part on the Supreme Court's decision in Department of
the Navy v. Egan, 484 U.S. 518 (1988). Egan and
later cases relying on it prohibit courts and agencies from
reviewing the merits or motives of the Executive Branch's
security-clearance decisions. This bar on judicial and
administrative review stems from the principle that
security-clearance decisions involve sensitive and classified
information of the sort best left to the Executive
Egan barred only judicial or administrative
"review." 484 U.S. at 529. So Egan would
not reach a case with an unchallenged security-clearance
decision, requiring no judicial or administrative review. We
find ourselves in that situation today and must decide
whether Egan bars our review of Sanchez's
claims. We AFFIRM in part and REVERSE in part.
August 20, 2006, Sanchez became an Emergency Operations
Specialist for the National Nuclear Security Administration
(the "Administration"). The Administration is an
agency within the Department of Energy that ensures the
security of nuclear weapons and materials and
"safeguard[s] the safety and health of the public."
50 U.S.C. § 2401(c). Sanchez worked within the
Administration's Office of Secure Transportation, which
oversees the transportation of nuclear weapons and materials
(we refer to this office, the Department of Energy, and the
Administration as the "Department"). Before taking
this position, Sanchez already had over thirteen years of
federal employment and was less than three years away from
being eligible to receive federal-retirement benefits.
job as an Emergency Operations Specialist required him to
answer 911 calls and relay GPS locations, mile markers, and
other directions to and from nuclear-convoy commanders.
Because these duties could affect public safety,
Sanchez's position also required a Human Reliability
Program ("HRP") certification.
derives from federal regulations governing safety and
security within the Department. 10 C.F.R. § 712.1. It
ensures that people working with nuclear materials "meet
the highest standards of reliability and physical and mental
suitability" and uses "a system of continuous
evaluation" to "identif[y] individuals whose
judgment and reliability may be impaired by physical or
mental/personality disorders, " among other impairments.
Id. Department officials-including specially trained
managers, HRP-certifying officials, and HRP-designated
psychologists and physicians-oversee the HRP-certification
and decertification process. See generally id.
§ 712.3 (defining roles). When concerns arise, these
Department officials apply HRP guidelines in notifying the
employee and recommending a course of action. See
id. § 712.19.
became HRP certified and worked for a little over five months
HRP Revocation and Job Suspension
changed when Sanchez made multiple mistakes while reading a
daily report aloud to his colleagues. During the briefing,
Sanchez confused the origin and destination cities of mission
convoys and mixed up letters and numbers within
mission-identification codes. For example, he read trip
number Q12-345 as "345-Q12." Appellant App. vol. II
at 363. Yet, unaware that he had made mistakes, Sanchez
thought the briefing "went well." Id. at
this briefing, two of Sanchez's supervisors followed up
with him to assess his reading abilities. They had him read a
shift brief to them; and again, Sanchez skipped over items
and read numbers incorrectly. Sanchez's direct
supervisor, John Vukosovich, grew concerned about
Sanchez's ability to transpose mile markers, GPS
locations, and other critical information needed in
emergencies, so he and Sanchez's other supervisor sent
him for a medical evaluation with the Department's HRP
Department's psychologists evaluated Sanchez and
interviewed his supervisors, including Vukosovich, who
described Sanchez as "slow in learning his job tasks,
" and explained how "reading problems could
significantly interfere with Mr. Sanchez's duties."
Appellant App. vol. I at 19. After evaluating Sanchez, the
Department's psychologists concluded that Sanchez had
Mixed Receptive-Expressive Language Disorder. Based on this
conclusion, the Department's lead psychologist, Dr.
Anthony Traweek, recommended to the Department:
(1) Do not recertify [Mr. Sanchez] under HRP . . .
(2) Facilitate Mr. Sanchez's pursuit of appropriate
Federal employment in which there is the possibility for
reasonable accommodation of his apparent Mixed
Receptive-Expressive Language Disorder[; and]
(3) Provide Mr. Sanchez with the opportunity to personally
discuss the findings and recommendations of the special
evaluations process . . . .
Id. at 40 (emphasis omitted).
the psychological evaluations were ongoing, the Department
removed Sanchez from his HRP duties and restricted him to
doing research assignments and filing weather-condition
reports. It also prohibited Sanchez from answering 911 calls,
logging into classified computers, handling trip folders, and
relaying information to convoy commanders. And, when his
coworkers sat for their morning-shift briefings, the
Department had Sanchez work in a different room.
August 25, 2008, after receiving Dr. Traweek's
recommendation, the Department notified Sanchez that it had
revoked his HRP certification. In doing so, it relied on 10
C.F.R. § 712.13(c)(1), which speaks to the impact of an
employee's "[p]sychological or physical disorders
that impair performance of assigned duties." 10 C.F.R.
Sanchez had never been diagnosed with Mixed
Receptive-Expressive Language Disorder, he doubted the
Department's evaluations. He hired his own psychologist,
Dr. John King, who concluded that Sanchez had a reading
disorder and agreed that Sanchez should not perform
"duties associated with an emergency operations
specialist." Appellant App. vol. II at 361. Dr. King
also noted that when given extra time on reading tests,
Sanchez's reading performance and comprehension improved
to a low-average range.
September 12, 2008, the Department notified Sanchez that it
was proposing to suspend him indefinitely and that Vukosovich
was the deciding official. After considering a number of
factors (called the "Douglas Factors"), which
included Sanchez's inability to perform his duties
without HRP certification and with "[n]o other
alternatives available, " Vukosovich indefinitely
suspended Sanchez. Appellant App. vol. I at 169.
and others on his behalf made at least a dozen accommodation
requests. Specifically, they requested that the Department
reassign Sanchez to a position that didn't require an HRP
certification (we refer to these jobs as "non-HRP
Sanchez's Equal-Employment-Opportunity Counselor asked
the Department's Human Resources Manager, Melissa
Maestas, if the Department would reassign Sanchez to a
non-HRP job, Maestas responded that she was under no
obligation to reassign Sanchez, but encouraged Sanchez to
look for vacancies. She also said that she would try to find
Sanchez a temporary reassignment. When Sanchez later asked
Maestas a second time for a reassignment, Maestas responded
that "no reassignment action [was] in place or
planned." Appellant App. vol. III at 458.
the Department instructed Sanchez to direct his reassignment
requests to Vukosovich. But Sanchez felt that Vukosovich was
biased because he had given him a negative performance review
and had once publicly reprimanded and threatened to terminate
him. So instead, Sanchez asked the Department to appoint an
impartial decision-maker. Vukosovich handled this request
too, and responded that his potential bias "was a
separate issue and ha[d] no bearing on the matter."
Appellant App. vol. I. at 23. And, addressing Sanchez's
reassignment request, Vukosovich informed Sanchez that the
"Operations Division does not have work available to
which you may be assigned pending the final resolution of
your HRP certification." Id. at 24. Though
other divisions within the Department had vacancies for
non-HRP jobs, including a Business and Acquisition Specialist
position as well as 28 other positions, Vukosovich never told
Sanchez about them.
at a certification-review hearing, Sanchez again requested an
accommodation through reassignment. During the hearing,
Sanchez didn't challenge the Department's temporary
HRP-decertification or its recommendation that he not perform
HRP jobs. In fact, he presented his expert, Dr. King, who
agreed that Sanchez could not perform HRP duties. On
September 17, 2009, the Department issued its final decision
decertifying Sanchez from the HRP. Soon after this, on
December 6, 2009, in a notice written by Vukosovich, the
Department fired Sanchez. Despite offering to take ...