Plaintiff Can't Litigate Claim That "Security Clearance Process" Was Used "as a Pretextual Weapon to Execute an Ideological Purge"

From Judge Kyle Dudek (M.D. Fla.) today in Reilly v. U.S. Att'y Gen. :

This case presents a conflict between individual rights and executive sovereignty. On one side are liberties guaranteed by the First and Fifth Amendments—specifically, the right of a public employee to be free from political viewpoint discrimination and the foundational promise of due process. On the other side sits an equally formidable principle of structural governance: the Executive Branch's exclusive Article II authority to control access to national security secrets. The friction between these two forces becomes acute when, as here, a plaintiff alleges that the Executive Branch used its security clearance process not to protect classified information, but as a pretextual weapon to execute an ideological purge.

The Supreme Court has left little room to maneuver when determining which of these constitutional interests wins out. See Dep't of Navy v. Egan (1988). Egan treats national security as a virtually impenetrable executive enclave. The Court held that no judicial body has authority to audit the substance of an underlying security clearance determination when reviewing an adverse employment action. And at least in the Eleventh Circuit, this limitation applies not only to the revocation of a security clearance, but also to decisions made at the suspension or investigatory stage. Hill v. White (11th Cir. 2003). "To review the initial stages of a security clearance determination is to review the basis of the determination itself regardless of how the issue is characterized."

The combined weight of Egan and Hill dictates the outcome here. Plaintiff Kelli-Ann Reilly sues the FBI and several officials "for politically motivated" retaliation and unlawful termination of her employment. She brings a few different claims, but they all center on the same "core issue": "the FBI revoked her security clearance to punish disfavored political viewpoints and enforce ideological conformity." Under Hill and its progeny, if the alleged malfeasance is tied to the security clearance pipeline, as here, the inquiry is at an end.

Make no mistake, the factual allegations in this complaint are troubling. Reilly's charge that the FBI transformed its background check process into an instrument for political screening is profoundly troubling. But institutional discomfort cannot hand a federal court jurisdiction it does not possess. Because evaluating Reilly's claims requires inquiry into the security clearance process itself, her case "is not within the jurisdiction of the courts." …

Here are the relevant facts from Reilly's complaint, which must be accepted as true at this stage. Reilly worked at the FBI as a financial analyst for twenty-six years. She held a Top-Secret security clearance and successfully passed several periodic security-clearance reviews. She steered clear of any disciplinary actions or internal misconduct. Her record, in short, was spotless.

Then the 2020 presidential election happened. Reilly told her supervisor that she felt the election "involved irregularities and might be overturned through lawful judicial processes." The institutional reaction was quick. Within a month, her security clearance was suspended. As the FBI tells it, she had relayed "baseless conspiracy theories associated with" possibly violent or criminal organizations. Concluding that these viewpoints rendered her "potentially vulnerab[le] to manipulation and coercion," the FBI stripped her security clearance and placed her on unpaid administrative leave pending a full investigation.

The FBI Security Division conducted that investigation and probed Reilly on a wide range of politically charged topics. They included not just the 2020 election's legitimacy, but also questions about Covid-19's origin, the efficacy of mask wearing, and Jeffrey Epstein. Unhappy with her responses, the FBI formally revoked Reilly's security clearance in June 2021. The investigation found that she was "delusional" and made "unfounded conspiratorial statements." According to the FBI, her personal conduct and psychological condition presented unacceptable risks. Left with her paycheck frozen, her security credentials stripped, and her professional reputation in tatters, Reilly ultimately elected to take early retirement—a choice she contends was no real choice at all, but rather a forced constructive discharge.

Perhaps understandably, Reilly feels persecuted. She now sues the FBI, its director, the United States Attorney General, and the United States Department of Justice (collectively, "the Government"). Her complaint raises a trio of constitutional claims and attaches alternative requests for declaratory or mandamus relief to the back of them.

Reilly first alleges that the FBI "constructively discharged [her] and revoked her" security clearance in direct retaliation for her perceived political alignment, which amounts to viewpoint-discrimination under the First Amendment. She then sw…