Hegab v. Long et al
Filing
25
MEMORANDUM OPINION re: Defts' Motion to Dismiss. Signed by District Judge James C. Cacheris on 01/19/12. (pmil)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
MAHMOUD HEGAB,
Plaintiff,
v.
LETITIA LONG, et al.,
Defendants.
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1:11cv01067 (JCC/IDD)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on a Motion to
Dismiss [Dkt. 10] (the “Motion”) filed by Defendants the
National Geospatial-Intelligence Agency (“NGA”) and its
Director, Letitia Long (collectively “Defendants”).
For the
following reasons, the Court will grant Defendants’ Motion.
I. Background
This case arises out of the revocation of Plaintiff
Mahmoud Hegab’s security clearance by his employer, NGA.
A.
Factual Background
Hegab was employed by NGA as a Financial/Budget
Analyst beginning on January 4, 2010.
8.)
(Compl. [Dkt. 1] ¶¶ 5,
During Hegab’s employment, he possessed a “Top Secret”
security clearance and access to Sensitive Compartmented
Information (“SCI”) (collectively “security clearance”).
(Compl. ¶ 9.)
1
NGA commenced a reinvestigation of Hegab’s security
clearance due to his marriage to Bushra Nusairat.
10-11.)
(Compl. ¶¶
By memorandum dated November 2, 2010, NGA notified
Hegab of its intent to revoke his security clearance based on
his marriage to Nusairat as well as information previously
disclosed during NGA’s initial investigation.
(Compl. ¶ 12.)
Hegab’s security clearance was suspended effective November 18,
2010.
(Compl. ¶ 13.)
Because of the suspension, Hegab was
placed on unpaid administrative leave on January 7, 2011.
(Compl. ¶ 15.)
Hegab remains on unpaid administrative leave,
and has not received notification that his employment has been
terminated.
(Id.)
The issues raised by NGA in its proposed revocation of
Hegab’s security clearance included the following:
(1)
Nusairat’s attendance and graduation from the Islamic Saudi
Academy, whose curriculum, syllabus, and materials are
influenced, funded, and controlled by the Saudi government; and
(2) information available through open sources which identified
Nusairat’s involvement with organizations consisting of groups
organized largely around their non-United States origin and
advocacy in foreign political issues.
(Compl. ¶ 16.)
Hegab subsequently obtained a file, which NGA informed
him contained the information supporting its decision to revoke
his security clearance.
(Compl. ¶ 17.)
2
The information
relating to Hegab was the same as what he had submitted prior to
being hired by NGA and receiving his security clearance.
(Compl. ¶ 18.)
With respect to Nusairat, the file contained:
(1) statements made by various organizations concerning the
Saudi Islamic Academy; (2) a photograph believed to be of
Nusairat taken at an anti-war protest in Washington, D.C., in
which she carried a sign bearing the website identification of
an organization named “ANSWER” and stating “War No -- Act Now to
Stop War and End Racism”; (3) information indicating that
Nusairat attended George Mason University, that her area of
study was “Global Affairs, International Development, Diplomacy
and Global Governance, Islamic Studies,” and that she was
president of an organization known as Students for Justice in
Palestine; and (4) information concerning Nusairat’s employment
at a non-profit organization known as “Islamic Relief.”
(Compl.
¶¶ 19-21.)
Hegab submitted a detailed response to NGA’s proposed
revocation of his security clearance, which included fifty
exhibits.
(See Compl. ¶¶ 22-31.)
On March 4, 2011, NGA issued
its decision revoking Hegab’s security clearance.
33.)
(Compl. ¶
NGA stated that Hegab had mitigated its concerns as to his
citizenship, foreign contact, overseas employment, and residency
-- the same issues that had been cleared prior to his initial
hiring.
(Id.)
NGA also stated that Hegab had satisfied its
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concerns about his wife’s education at the Islamic Saudi
Academy.
(Compl. ¶ 34.)
The information provided by Hegab did
not, however, mitigate NGA’s concerns about his wife’s “current
affiliation with one or more organizations which consist of
groups who are organized largely around their non-United States
origin and/or the advocacy of or involvement in foreign
political issues.”
(Compl. ¶ 35.)
NGA informed Hegab that
“[t]his concern elevates the potential for conflicts of interest
between your obligation to protect sensitive or classified
United States information and technology and your desire to help
a foreign person, group, or country by providing that
information.”
(Id.)
Hegab deduced that the organization to which NGA
referred was Islamic Relief USA.1
(See Compl. ¶¶ 35-37.)
He
timely appealed the revocation of his security clearance to the
NGA Personnel Security Appeals Board, submitting eighty-five
exhibits.
(Compl. ¶ 38.)
The exhibits generally related to
Islamic Relief USA’s charitable mission, its recognition by
political leaders, government agencies, and non-governmental
organizations, and its partnership with other charitable
organizations.
(Compl. ¶¶ 39-50.)
Hegab argued that the
revocation of his security clearance was based on anti-Islamic
bias and violated his constitutional rights to freedom of
1
At oral argument, Hegab advised the Court that Nusairat resigned from her
position at Islamic Relief USA effective January 13, 2012. Because Hegab’s
security clearance is presently revoked, this remains a live controversy.
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religion, freedom of speech, and freedom of association.
(Compl. ¶ 51.)
On July 26, 2011, Hegab appeared with counsel before
the NGA Personnel Security Appeals Board and orally presented
his appeal.
(Compl. ¶ 52.)
At that time, he submitted
additional evidence pertaining to Islamic Relief USA and
reiterated the arguments made in his previous response.
¶¶ 52-53.)
(Compl.
The NGA Personnel Security Appeal Board affirmed its
decision revoking Hegab’s security clearance by letter dated
July 27, 2011.
B.
(Compl. ¶ 54.)
Procedural Background
Hegab filed suit on October 4, 2011.
[Dkt. 1.]
In
the Complaint, Hegab asserts six causes of action, all of which
arise under the Constitution.
Hegab alleges that NGA violated
(1) his First Amendment rights to freedom of religion, speech,
and association (Counts I and II); (2) his rights under the Due
Process Clause of the Fifth Amendment to employment and
reputation (Counts III, IV, and V); and (3) his Fifth Amendment
right to non-discrimination in employment (Count VI).
Defendants filed a Motion to Dismiss on December 5,
2011, arguing that the Complaint should be dismissed for lack of
subject matter jurisdiction or, alternatively, for failure to
state a claim.
[Dkt. 10.]
Hegab filed an opposition on
December 14, 2011 [Dkt. 15], to which Defendants replied on
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January 4, 2012 [Dkt. 23].
Defendants’ Motion is before the
Court.
II.
Standard of Review
Pursuant to Rule 12(b)(1), a claim may be dismissed
for lack of subject matter jurisdiction.
12(b)(1).
Fed. R. Civ. P.
Defendants may attack subject matter jurisdiction in
one of two ways.
First, defendants may contend that the
complaint fails to allege facts upon which subject matter
jurisdiction may be based.
See Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982); King v. Riverside Reg’l Med. Ctr., 211 F.
Supp. 2d 779, 780 (E.D. Va. 2002).
In such instances, all facts
alleged in the complaint are presumed to be true.
Adams, 697
F.2d at 1219; Virginia v. United States, 926 F. Supp. 537, 540
(E.D. Va. 1995).
Alternatively, defendants may argue that the
jurisdictional facts alleged in the complaint are untrue.
Adams, 697 F.2d at 1219; King, 211 F. Supp. 2d at 780.
In that
situation, “the Court may ‘look beyond the jurisdictional
allegations of the complaint and view whatever evidence has been
submitted on the issue to determine whether in fact subject
matter jurisdiction exists.’”
Virginia v. United States, 926 F.
Supp. at 540 (quoting Capitol Leasing Co. v. FDIC, 999 F.2d 188,
191 (7th Cir. 1993)); see also Velasco v. Gov’t of Indonesia,
370 F.3d 393, 398 (4th Cir. 2004) (holding that “the district
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court may regard the pleadings as mere evidence on the issue and
may consider evidence outside the pleadings without converting
the proceeding to one for summary judgment”) (citations
omitted).
In either circumstance, the burden of proving subject
matter jurisdiction falls on the plaintiff.
McNutt v. Gen.
Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams, 697
F.2d at 1219; Johnson v. Portfolio Recovery Assocs., 682 F.
Supp. 2d 560, 566 (E.D. Va. 2009) (holding that “having filed
this suit and thereby seeking to invoke the jurisdiction of the
Court, Plaintiff bears the burden of proving that this Court has
subject matter jurisdiction”).
III. Analysis
Defendants argue that the Complaint must be dismissed
for lack of subject matter jurisdiction because Hegab asks the
Court to review the merits of NGA’s security clearance
determination -- something foreclosed by the Supreme Court’s
decision in Department of Navy v. Egan, 484 U.S. 518 (1988).2
In Egan, the Supreme Court held that the Merit Systems
Protection Board3 lacked the authority to review the merits of
the Navy’s decision to revoke the plaintiff’s security
2
Defendants also argue that even assuming the Court has jurisdiction, Hegab
fails to state a claim for which relief can be granted. Because the Court
holds that it is without subject matter jurisdiction, it need not reach this
issue.
3
The Merits Systems Protection Board is an independent, quasi-judicial agency
in the Executive Branch. See El-Ganayni v. U.S. Dep’t of Energy, 591 F.3d
176, 181 n.3 (3d Cir. 2010).
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clearance.
Id. at 526-27.
Notwithstanding the general rule
that agency action is presumptively reviewable, the Supreme
Court noted that the presumption has its limits, and that it
“runs aground when it encounters concerns of national security.”
Id. at 527.
It reasoned that the grant of security clearance to
a particular employee is “a sensitive and inherently
discretionary judgment call,” which is “committed by law to the
appropriate agency of the Executive Branch.”
Id.
The Supreme
Court explained that:
The President, after all, is the ‘Commander
in Chief of the Army and Navy of the United
States.’ U.S. Const., Art. II, § 2. His
authority to classify and control access to
information bearing on national security and
to determine whether an individual is
sufficiently trustworthy to occupy a
position in the Executive Branch that will
give that person access to such information
flows primarily from this constitutional
investment of power in the President and
exists quite apart from any explicit
congressional grant.
Id.
The Fourth Circuit has interpreted Egan as a broad
restriction on the subject matter jurisdiction of courts in
security clearance disputes.
See Reinbold v. Evers, 187 F.3d
348, 357-58 (4th Cir. 2005) (“[U]nder our circuit precedent, in
the absence of a specific mandate from Congress providing
otherwise, Egan deprives the federal courts of subject-matter
jurisdiction to review an agency’s security clearance
decision”); see also Guillot v. Garrett, 970 F.2d 1320, 1326
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(4th Cir. 1992) (holding that the court did not have
jurisdiction to decide whether the denial of a security
clearance violated the Rehabilitation Act).
Hegab cites Webster v. Doe, 486 U.S. 592 (1988),
arguing that his claims, which allege constitutional violations,
are not barred by Egan.
Webster addressed whether the CIA’s
employment decisions under Section 102(c) of the National
Security Act were judicially reviewable.
Id. at 594.
The
Supreme Court held that Section 102(c) did not preclude judicial
review of “colorable constitutional claims arising out of the
actions of the Director pursuant to that section.”4
Id. at 603.
The Fourth Circuit, however, has declined to extend Webster’s
holding to the Egan rule barring judicial review of security
clearance decisions on the merits.
See Reinbold, 187 F.3d at
358 (noting the arguable exception to Egan in the limited
circumstance where the security clearance decision resulted in
constitutional violations, but finding it unnecessary to reach
4
Hegab contends that Hamdi v. Rumsfeld, 542 U.S. 507 (2004), and Rasul v.
Bush, 542 U.S. 466 (2004), reaffirmed the Supreme Court’s position in
Webster. While Hamdi and Rasul are consistent with the principle that there
are limits to the authority of the Executive Branch in the realm of national
security, the cases involved far different circumstances from those at issue
here. Hamdi involved the detention of a United States citizen who had been
designated an “enemy combatant.” Hamdi, 542 U.S. at 516. Other courts have
rejected the argument that Hamdi unsettled the Supreme Court’s holding in
Egan. See Bennett v. Chertoff, 425 F.3d 999, 1004 (D.C. Cir. 2005) (finding
Hamdi inapposite in security clearance dispute because “physical liberty is a
fundamental right that must be accorded great weight” and it is far from
clear that the Supreme Court “would strike the same balance in the context of
employment termination”). Rasul addressed the “narrow” question whether
federal courts have jurisdiction to consider habeas challenges of foreign
nationals detained at the Guantanamo Bay Naval Base in Cuba, 542 U.S. at 470,
and is likewise inapposite.
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the issue); Jamil v. Sec’y, Dep’t of Def., 910 F.2d 1203, 1209
(4th Cir. 1990) (same).5
Judge Brinkema recently dismissed claims similar to
those advanced by Hegab in Ciralsky v. CIA, No. 1:10cv911, 2010
WL 4724279 (E.D. Va. Nov. 15, 2010), aff’d sub nom. Ciralsky v.
Tenet, --- F. App’x ----, 2011 WL 6367072 (4th Cir. Dec. 20,
2011) (unpublished).
In that case, the plaintiff also alleged
constitutional violations relating to the revocation of his
security clearance.6
Id. at *2.
The plaintiff claimed that his
security clearance was revoked because he was Jewish and was
viewed as a supporter of Israel, id. at *1, and that the
revocation violated his right to due process, his right to free
5
The Third Circuit and D.C. Circuit, relying on Webster, have held that
courts have jurisdiction to review constitutional claims arising the
revocation of a security clearance. See, e.g., Stehney v. Perry, 101 F.3d
925, 932 (3d Cir. 1996); Nat’l Fed’n of Fed. Emps. v. Greenberg, 983 F.2d
286, 289-90 (D.C. Cir. 1993). Both cases, however, involved challenges to
policies, and, in any event, ultimately ruled against the plaintiffs on the
merits. See Stehney, 101 F.3d at 935-38 (constitutional challenge to
security clearance revocation based on plaintiff’s refusal to take
polygraph); Greenberg, 983 F.2d at 291-95 (constitutional challenge to
standard questionnaire used in security clearance process). Indeed, at oral
argument, Hegab conceded that he cannot cite a single case where a court
reviewed the merits of a security clearance decision and found for the
plaintiff. Moreover, the Third Circuit recently clarified its position in
El-Ganayni, stating that “courts have jurisdiction to hear constitutional
claims arising from the clearance revocation process, even though the merits
of that revocation cannot be reviewed.” 591 F.3d at 183 (emphases added)
(internal quotation marks and citation omitted). Here, Hegab clearly seeks a
review of the merits of his security clearance revocation.
6
Hegab attempts to distinguish Ciralsky, noting that in that case the
plaintiff asserted constitutional torts against individuals under Bivens v.
Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971),
while here Hegab asserts constitutional claims directly against an agency.
The Court is not persuaded that this distinction is material. Both the
Bivens claims in Ciralsky and Hegab’s claims here allege constitutional
violations and invoke overlapping constitutional rights –- namely, the rights
to free exercise, due process, and equal protection. See Ciralsky, 2010 WL
4724279, at *2. Hegab offers no cogent reason why Ciralsky’s Bivens claims
were barred under Egan, but his constitutional claims are not.
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exercise of religion, his right to equal protection, and his
right to be free from unreasonable search and seizure, id. at
*2.
Citing Egan and its Fourth Circuit progeny, the court held
that it lacked subject matter jurisdiction to hear the
plaintiff’s claims.
Id. at *2-4.
Judge Brinkema stated that
the “revocation of a security clearance is a sui generis act
over which the federal courts have no jurisdiction absent
congressional directive” and held that the plaintiff had failed
to overcome “the clear constitutional rule set forth in Egan.”
Id. at *3.
Here, Hegab’s claims, though framed as constitutional
violations, concern the merits of NGA’s decision to revoke his
security clearance.
(See Compl. ¶¶ 60, 63, 66, 70, 76, 79
(alleging that the security clearance revocation was “based
solely on plaintiff’s wife’s religion, Islam, her
constitutionally protected speech, and her association with, and
employment by, an Islamic faith-based organization”).)
A
determination of whether Hegab’s security clearance was revoked
due to legitimate national security concerns or, as Hegab
alleges, constitutionally impermissible bases would necessarily
require a review of the merits of NGA’s decision.
Absent clear
congressional directive, which Hegab fails to identify, such a
review is flatly prohibited by Egan and Fourth Circuit
precedent.
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IV.
Conclusion
For these reasons, the Court will grant Defendants’
Motion to Dismiss.
An appropriate Order will issue.
January 19, 2012
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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