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Sanchez v. United States Department of Energy

United States Court of Appeals, Tenth Circuit

September 11, 2017

SIGIEFREDO SANCHEZ, Plaintiff - Appellant,
UNITED STATES DEPARTMENT OF ENERGY; DR. ERNEST MONIZ, United States Secretary of Energy, in his official capacity, Defendants - Appellees.

         Appeal 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 Plaintiff-Appellant.

          Joseph 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.

          Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.

          PHILLIPS, Circuit Judge.

          While 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.

         Sanchez 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 Branch's purview.

         But 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.


         I. HRP Certification

         On 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.

         Sanchez's 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.

         The HRP 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.

         Sanchez became HRP certified and worked for a little over five months without issue.

         II. HRP Revocation and Job Suspension

         This 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 364.

         After 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 psychologists.

         The 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).

         While 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.

         On 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. § 712.13(c)(1).

         Because 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.

         On 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.

         III. Accommodation Requests

         Sanchez 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 jobs").

         When 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.

         Eventually 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.

         Later, 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 ...

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