Administrative – Court Won’t Review Security Clearance Case

Hegab v. Long (Lawyers Weekly No. 13-01-0415, 20 pp.) (Niemeyer, J.) No. 12-1182, April 25, 2013; USDC at Alexandria, Va.; 4^th Cir.

Holding: An employee of a federal intelligence agency who alleges he lost his top-secret security clearance and his job after he married a Muslim woman cannot sue the agency for violation of his constitutional rights, reinstatement and back pay; the 4^th Circuit says plaintiff was merely restating “speculative and conclusory” allegations of constitutional violations which the court does not have jurisdiction to review.

The statement of reasons provided by the National Geospatial-Intelligence Agency for the proposed security-clearance revocation listed: 1) plaintiff, his parents and his siblings held dual citizenship with the U.S. and Egypt; 2) plaintiff still had an Egyptian passport and would have to contact foreign national government officials to renounce his Egyptian citizenship and turn in his passport, increasing the potential that he would be monitored by foreign intelligence services; 3) plaintiff stated he was 80 percent certain his wife held dual citizenship with Jordan; 4) plaintiff reported continuing contact with multiple foreign nationals (including relatives), some of whom reside outside the U.S.; 5) plaintiff reported residing in Egypt from 2004 to 2007; 6) plaintiff’s spouse had attended and graduated “from the Islamic Saudi Academy, whose curriculum, syllabus and materials are influenced, funded and controlled by the Saudi government”; and 7) information available through open sources identified plaintiff’s wife as being or having been actively involved with one or more groups organized around their  advocacy of or involvement in foreign political issues.

In challenging the revocation in this lawsuit, plaintiff alleges it was based solely on his wife’s religion, Islam, her constitutionally protected speech and association with and employment by an Islamic faith-based organization.

Both plaintiff and the agency, appear to agree that no one has a right to a security clearance and that the grant of a security clearance is a highly discretionary act of the executive branch.

It is well established in our circuit that absent a specific mandate from Congress providing otherwise, federal courts are generally without subject-matter jurisdiction to review an agency’s security clearance decision.

In this case, we need not decide whether and where to draw the line, if any, between the political question of reviewing the merits of a security clearance decision and the judicial question of whether an executive branch agency violated an individual’s constitutional rights when denying or revoking a security clearance. We conclude plaintiff’s complaint merely challenges the merits of the agency’s security clearance decision and his conclusory constitutional claims are unsuccessful attempts to circumvent the undisputed proposition that we will not review the merits of a security clearance decision.

In its determination, the agency concluded plaintiff had failed to mitigate its concern of an “elevated foreign influence risk that is problematic and unacceptable to the national security” of the U.S., and this conclusion is one in which the agency should have the final say, and in which courts should not intrude.

Judgment for the agency affirmed.

Concurrence

Motz, J.: I join in holding that we lack jurisdiction to review the agency’s revocation of plaintiff’s security clearance. Like Judge Davis, however, I believe the complaint states a colorable constitutional claim. I also agree with Judge Davis that precedent prohibits us from reviewing the merits of the agency’s individualized security clearance determination, even in light of plaintiff’s colorable constitutional claim. I concur in the judgment.

Davis, J.: I concur in the majority opinion but with an important difference in emphasis. Reading the material allegations of the complaint in the light most favorable to plaintiff, the only thing that changed is he got married to a dual citizen Muslim activist who, before their marriage, robustly exercised her First Amendment rights of speech and association. I do not regard plaintiff’s allegations as “conclusory”; rather, I regard them as “colorable” within the contemplation of our precedents.

The requirement that a security clearance be afforded a government employee only where it is clearly consistent with the interests of national security simply does not admit of judicial determination; it is a political question, not a judicially reviewable question.