Kaiser Gill v. DOJ

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 22, 2017 Decided November 14, 2017

No. 16-5250

KAISER GILL,

APPELLANT

v.

UNITED STATES DEPARTMENT OF JUSTICE AND FEDERAL

BUREAU OF INVESTIGATION,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-00824)

Faisal Gill argued the cause and filed the briefs for

appellant.

Charles W. Scarborough, Attorney, U.S. Department of

Justice, argued the cause for appellees. With him on the brief

were H. Thomas Byron III and Jaynie Lilley, Attorneys. R.

Craig Lawrence, Assistant U.S. Attorney, entered an

appearance.

Before: ROGERS and TATEL, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

2

Concurring opinion filed by Circuit Judge TATEL.

PER CURIAM: The Federal Bureau of Investigation revoked

appellant Kaiser Gill’s security clearance after he, while

employed as a special agent, conducted unauthorized searches

of a Bureau database. Gill filed suit, alleging that the revocation

of his security clearance violated the equal protection and due

process clauses of the Constitution, as well as the Foreign

Intelligence Surveillance Act. The district court concluded that

Gill’s claims failed or were otherwise barred and dismissed the

case. Although following a slightly different path, we reach the

same destination and affirm.

I.

A decorated veteran and Pakistani immigrant, Kaiser Gill

worked for the Federal Bureau of Investigation (FBI) as a

special agent until 2006, when the Bureau revoked his security

clearance after he conducted unauthorized searches of its

Automated Case Support system. Gill sought review of this

decision with the Department of Justice’s Access Review

Committee (ARC), where he admitted his misconduct and,

claiming that the “risk of him engaging in similar misconduct

. . . was miniscule,” asked that he be given “another

opportunity to perform his duties as an FBI agent.”

Memorandum from Mari Barr Santangelo, ARC Chair, to Alex

J. Turner, Assistant Director, FBI Security Division, at 4 (Apr.

2, 2014) (“ARC Opinion”). Although the ARC recognized

Gill’s remorse, it emphasized that his “admitted misconduct in

accessing sensitive information for personal reasons . . .

raise[d] straightforward concerns regarding his ability to

safeguard classified information.” Id. Citing applicable

guidelines requiring that any doubt be resolved in favor of

national security, the ARC affirmed the FBI’s revocation of

Gill’s security clearance.

3

Gill filed a six-count complaint against the FBI and

Department of Justice in the U.S. District Court for the District

of Columbia. Gill contended that the FBI violated the Foreign

Intelligence Surveillance Act (FISA) by introducing evidence

in the ARC hearings that it obtained through undisclosed FISA-

authorized surveillance (Count Three). See 50 U.S.C. § 1806(c)

(requiring disclosure of “any information obtained . . . pursuant

to the authority of this subchapter” when used as evidence in

certain proceedings). Gill also alleged that his due process

rights were infringed by the FISA violation (Count Two), by

the fact that it took the ARC five years to issue its decision

(Count Six), and by the ARC’s treatment in that decision of his

naturalized family members as “foreign influence[s]” (Count

Four). Compl. ¶ 78. Finally, Gill contended that the

government denied him equal protection both by treating his

family members as foreign influences (Count Five) and by

treating him, a Muslim, differently from non-Muslims guilty of

similar misconduct (Count One).

The government moved to dismiss under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6), asserting several

defenses, including that under the Supreme Court’s decision in

Department of the Navy v. Egan, 484 U.S. 518 (1988), federal

courts lack authority to review challenges to agency

revocations of security clearances. Finding Gill’s various

claims either meritless or barred, the district court granted the

government’s motion and dismissed the complaint. Gill

appeals, reiterating the arguments he advanced in the district

court. Our review is de novo. American National Insurance Co.

v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (applying de

novo standard to district court dismissal under Rule 12(b)(1));

King v. Jackson, 487 F.3d 970, 972 (D.C. Cir. 2007) (applying

de novo standard to district court dismissal under Rule

12(b)(6)).

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II.

We begin with Gill’s claim that the FBI violated FISA.

Under that statute, the Attorney General may, in certain

circumstances, authorize electronic surveillance without court

order. 50 U.S.C. § 1802. But before information obtained

through such surveillance may be used in any “trial, hearing, or

other proceeding,” FISA requires that the surveilled person and

the court (or other authority) be notified. Id. § 1806(c). In this

case, Gill alleges that the FBI used information gained through

FISA-authorized surveillance in the ARC proceeding without

the required disclosure.

The district court dismissed Gill’s FISA claim, explaining

that “[t]here must be a valid waiver of the United States’

sovereign immunity for . . . Gill to bring claims against an

agency of the United States,” and that he had identified “no

[such] waiver.” Gill v. Department of Justice, No. 15-824, 2016

WL 3982450, at *7–8 (D.D.C. July 22, 2016). Challenging that

decision, Gill relies on Clark v. Library of Congress, 750 F.2d

89 (D.C. Cir. 1984), in which our court recognized that

“sovereign immunity does not bar suits against government

officials where the challenged actions of the officials are

unconstitutional or beyond the official[s’] statutory authority,”

id. at 103. Gill also invokes Section 702 of the Administrative

Procedure Act (APA), which operates as a waiver of sovereign

immunity where, as here, the plaintiff seeks only injunctive

relief. See 5 U.S.C. § 702. In the district court, however, Gill

cited neither Clark nor the APA. Because Gill raises these two

theories of sovereign immunity waiver for the first time on

appeal, we decline to consider them. See Odhiambo v. Republic

of Kenya, 764 F.3d 31, 35 (D.C. Cir. 2014) (holding that a new

theory of sovereign immunity waiver, advanced for the first

time on appeal, was forfeited).

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We can just as quickly resolve Gill’s claim that the FBI’s

revocation of his security clearance violated his rights under

the due process clause. Conceding that he had no

constitutionally protected property interest in his security

clearance, Gill argues that the revocation infringed a liberty

interest. Doe v. Cheney, 885 F.2d 898, 909–10 (D.C. Cir. 1989)

(explaining that “no one has a right to a security clearance” but

describing the conditions under which one may show that a

liberty interest was violated by the revocation of a security

clearance (internal quotation marks omitted)). Gill and the

government debate at length about whether Gill has stated a

liberty interest. But we need not venture into that thicket

because even if Gill has a protected liberty interest, he received

all the process that was due: a full hearing before the ARC

where he had the right to counsel and the opportunity to make

his case. Id. at 910 (“[D]ue process entitle[s] [one] to a hearing

in order to refute the charges against him and to clear his

name.”).

Repurposing his FISA argument, Gill claims that the ARC

proceeding could not have satisfied the requirements of due

process because it was tainted by the alleged FISA violation.

As the district court explained, however, “Gill’s misconduct

was uncovered through a security unit interview, not electronic

surveillance authorized by FISA.” Gill, 2016 WL 3982450, at

*8 n.6. That is, “[t]he facts alleged in the Complaint and the

[ARC]’s decision state [that] . . . Gill’s security clearance was

revoked because ‘. . . Gill’s admitted misconduct in accessing

sensitive information for personal reasons involving his family

raises straightforward concerns regarding his ability to

safeguard classified information and not disclose it for personal

reasons.’” Id. (quoting ARC Opinion at 4).

6

Gill also argues that the ARC proceeding failed to comply

with principles of due process because the Committee based its

decision on “the perceived foreign influence by [Gill’s] foreign

born relatives who are naturalized U.S. citizens” in violation of

applicable guidelines. Appellant’s Br. 24. Gill misreads the

ARC decision. Although the ARC does mention Gill’s “ties to

his foreign-born relatives,” that reference appears in its

synopsis of the FBI’s arguments. ARC Opinion at 4. In its own

analysis, the ARC made no mention of Gill’s relatives. Id.

Instead, it relied on the “straightforward concerns” Gill’s

“admitted misconduct” raised regarding his trustworthiness. Id.

Gill claims that the ARC proceeding violated due process

for still another reason—the Committee took five years to issue

its decision. As our court has explained, however, an agency’s

delay in issuing an otherwise valid decision does not offend

principles of due process without some showing of harm

caused by the delay. Zevallos v. Obama, 793 F.3d 106, 117

(D.C. Cir. 2015) (rejecting a due process challenge because

plaintiff failed to show how “a faster pace would have changed

[the] outcome”). According to Gill, his inability to “seek

redress” in court for five years was “per se harm[ful].”

Appellant’s Br. at 26. But that is not so, as the only case Gill

cites makes clear. See Barker v. Wingo, 407 U.S. 514, 533–36

(1972) (holding that a five-year delay between arrest and trial

did not deprive the defendant of due process and explicitly

eschewing a per se approach).

We come now to Gill’s equal protection claims.

Specifically, he argues that his equal protection rights were

violated in two ways: because he received a harsher penalty for

his admitted misconduct than non-Muslim agents who

committed similar misconduct; and because the ARC treated

his naturalized family members “differently than native born

7

[U.S.] citizens.” Compl. ¶ 93. The government argues that

these claims are barred by Department of the Navy v. Egan, 484

U.S. 518 (1988), where the Court held that the Merit Systems

Protection Board had no authority to “review security-

clearance determinations,” id. at 529–31. According to the

government, this means that “outside, non-expert bodies,”

including federal courts, “cannot review Executive Branch

judgments about whether specific individuals pose a risk to the

national security.” Appellee’s Br. 14. Gill disagrees, insisting

that “Egan does not apply to review of security clearance

decisions on the basis that they have deprived an individual of

their constitutional rights.” Appellant’s Br. 12.

As interesting as this issue is, we need not reach it because,

even if Gill’s equal protection claims are not barred by Egan,

they fail for other reasons. His claim that the ARC

inappropriately took account of his family members’ foreign-

born status rests, as we have explained, supra at 6, on a

misreading of the Committee’s decision. The ARC relied not

on any concerns about Gill’s family, but rather on his “admitted

misconduct” and the “straightforward concerns” it raised

regarding his trustworthiness. ARC Opinion at 4.

Gill’s second claim—that the FBI revoked his security

clearance because he is Muslim—suffers from a different,

equally fatal defect: Gill failed to raise it before the ARC. In its

decision, the Committee thoroughly summarized his arguments

against affirmance—i.e., his remorse and request for mercy—

and that summary mentions no equal protection challenge.

Moreover, nowhere in his complaint or briefing before this

court has Gill alleged that the ARC ignored his constitutional

challenges. Accordingly, Gill has forfeited this equal

protection claim. “Simple fairness to those who are engaged in

the tasks of administration, and to litigants, requires as a

8

general rule that courts should not topple over administrative

decisions unless the administrative body not only has erred but

has erred against objection made at the time appropriate under

its practice.” United States v. L.A. Tucker Truck Lines, Inc., 344

U.S. 33, 37 (1952).

III.

For the foregoing reasons, we affirm the district court’s

grant of the government’s motion to dismiss.

So ordered.

TATEL, Circuit Judge, concurring: Although I agree with

the court’s disposition of Gill’s claims, I write separately to

explain why, were his equal protection claims viable, they

would, contrary to the government’s argument, be barred

neither by the Supreme Court’s decision in Department of the

Navy v. Egan, 484 U.S. 518 (1988), nor by Title VII of the Civil

Rights Act, 42 U.S.C. § 2000e et seq.

Gill makes two equal protection claims. First, he alleges

that he was treated differently on the basis “of his race, religion

and ethnic origin.” Compl. ¶ 45. Specifically, he claims that

“[n]on-Muslim agents who wrongfully accessed the FBI

computer system were not terminated, nor [were] their security

clearance[s] revoked. Instead, non-Muslim agents were given

suspensions and letters of reprimand.” Id. ¶ 47. Second,

repurposing one of his due process claims, Gill argues that the

ARC denied him equal protection by treating his naturalized

family members “differently than native born [U.S.] citizens.”

Id. ¶ 93.

According to the government, both claims are barred by

the Supreme Court’s decision in Egan. There, the Court

considered whether the Merit Systems Protection Board could

review the Navy’s denial of a security clearance. 484 U.S. at

520. Observing that Article II empowers the President, as

Commander in Chief, “to classify and control access to

information bearing on national security,” id. at 527, the Court

held that “[p]redictive judgment[s]” about who can be trusted

with classified information “must be made by those with the

necessary expertise in protecting classified information,” id. at

529. It is thus “not reasonably possible for an outside non-

expert body to review the substance of such a judgment and to

decide whether the agency should have been able to make the

necessary affirmative prediction with confidence. Nor can such

a body determine what constitutes an acceptable margin of

error in assessing the potential risk.” Id.

2

Although Egan rests in part on the “express language” and

“structure of the statutory scheme” at issue in that case, id. at

530 (internal quotation marks omitted), much of the Court’s

reasoning sounds in broader principles of separation of powers,

id. at 526–30. Reading Egan just that way, our court has

extended the decision to other kinds of claims. For example, in

Ryan v. Reno, 168 F.3d 520 (D.C. Cir. 1999), we held that

“under Egan an adverse employment action based on denial or

revocation of a security clearance is not actionable under Title

VII,” id. at 524. See also Oryszak v. Sullivan, 576 F.3d 522,

525–26 (D.C. Cir. 2009) (holding based on Egan that “actions

based upon denial of security clearance are committed to

agency discretion by law” and thus “the APA provides no cause

of action [for such claims]”).

The government insists that this court has “never

suggested in any of its decisions dismissing Title VII claims on

Egan grounds that plaintiffs could bring the same claim of

discrimination under the Constitution.” Appellee’s Br. 32. That

is incorrect. When dismissing statutory challenges as barred by

Egan, our court has repeatedly distinguished between statutory

and constitutional claims. In Ryan, for instance, we

“emphasize[d] that our holding [was] limited to Title VII

discrimination actions and [did] not apply to actions alleging

deprivation of constitutional rights.” 168 F.3d at 524. Likewise,

in Oryszak v. Sullivan, 576 F.3d 522, we qualified our

statement “we have consistently held that . . . actions based

upon denial of security clearance are committed to agency

discretion by law,” with the caveat, “at least where a

constitutional claim is not properly presented,” id. at 526.

This distinction between statutory and constitutional

claims finds support in the Supreme Court’s decision in

Webster v. Doe, 486 U.S. 592 (1988). In that case, decided just

3

months after Egan, the Court held that although the CIA

Director’s decision to fire an employee on national security

grounds was unreviewable under the APA, the employee’s

colorable constitutional challenge could proceed. Id. at 601–

04. The Court distinguished between adjudicating the

substance of the Director’s decision, which it explained was

committed to his discretion by law, and reviewing “colorable

constitutional claims arising out of the actions of the Director

pursuant to” that law. Id. at 603.

Relying on Webster, our court explained in National

Federation of Federal Employees v. Greenberg, 983 F.2d 286

(D.C. Cir. 1993), that “[i]t is simply not the case that all

security-clearance decisions are immune from judicial review,”

id. at 289. There, we held that Egan presented no bar to a

constitutional challenge to the Department of Defense’s

security clearance questionnaire. Id. at 290. Though

recognizing that “[t]he government may have considerable

leeway to determine what information it needs from employees

holding security clearances and how to go about getting it,” we

explained that “a large measure of discretion gives rise to

judicial deference, not immunity from judicial review of

constitutional claims.” Id. “No one,” we observed, “would

suggest [that] the government . . . could, despite the Fourth

Amendment, conduct random searches without warrants in the

hope of uncovering information about employees seeking

security clearances. Still less would anyone consider such

unconstitutional searches and seizures to be immune from

judicial review.” Id.

Other circuits have also recognized limitations on Egan’s

reach. The Third Circuit, noting that “not all claims arising

from security clearance revocations violate separation of

powers,” has held that constitutional claims may proceed.

4

Stehney v. Perry, 101 F.3d 925, 932 (3d Cir. 1996). And the

Ninth Circuit has recognized that, although security clearance

decisions are unreviewable under the APA, Webster “is

dispositive on [the] question” of whether those decisions are

reviewable for constitutional error. Dubbs v. CIA, 866 F.2d

1114, 1120 (9th Cir. 1989); see also Dorfmont v. Brown, 913

F.2d 1399, 1404 (9th Cir. 1990) (recognizing that “federal

courts may entertain colorable constitutional challenges to

security clearance decisions”). The Fourth Circuit thought it

“arguable” that an equal protection claim might withstand

“Egan’s admonition restraining court review,” but has had no

occasion to resolve the issue. Jamil v. Secretary, Department

of Defense, 910 F.2d 1203, 1209 (4th Cir. 1990); see id.

(“Whether . . . review of such alleged denial of constitutional

rights is reachable by a court in the light of Egan presents a

difficult question that we do not need to reach in this appeal . . .

because . . . nothing in the record . . . indicates that the

defendants acted from an improper motivation based on

national origin.”).

The government counters that even if some constitutional

challenges may proceed, Gill’s cannot for two reasons. First,

equal protection challenges are, according to the government,

especially likely to implicate Egan because “a court cannot

determine in an equal protection claim whether the agency was

motivated by valid security reasons or discriminatory animus.”

Appellee’s Br. 23. An inquiry into “whether an agency’s

security-based reasons for revoking a security clearance are

valid or pretextual,” the government insists, would “‘run[]

smack up against Egan.’” Id. (quoting Ryan, 168 F.3d at 524).

But not every equal protection challenge will involve

reviewing “discretionary judgments regarding a particular

employee’s security clearance.” Greenberg, 983 F.2d at 290.

5

Some, as in Greenberg, will “relate to the constitutionality of

the methods used” to make that decision. Id. Indeed, the Third

Circuit has “read Egan and Webster together as holding that

Article III courts have jurisdiction to hear constitutional claims

arising from the clearance revocation process, even though the

merits of that revocation cannot be reviewed.” El-Ganayni v.

U.S. Department of Energy, 591 F.3d 176, 183 (3d Cir. 2010)

(emphasis added) (internal quotation marks omitted); see also

Hegab v. Long, 716 F.3d 790, 798 (4th Cir. 2013) (Motz, J.,

concurring) (“In light of the holding in Egan, at most Webster

permits judicial review of a security clearance denial only

when that denial results from the application of an allegedly

unconstitutional policy.”).

Gill alleges that he was treated differently based on his

religion and his family’s national origin. See supra at 1. In my

view, if Gill could show that the government has a policy or

practice of treating Muslims or naturalized citizens differently,

his equal protection claims, like the claims at issue in

Greenberg, would not be barred by Egan.

The government next argues that, even if courts may

review some security clearance–related equal protection

claims, Gill’s are precluded by Title VII because he alleges

discrimination in employment and under Brown v. General

Services Administration, 425 U.S. 820 (1976), Title VII

provides the exclusive remedy for such claims, id. at 835.

Again, this is incorrect. In Brown, the Supreme Court “focused

on whether federal employees should be able to bring parallel

actions under both Title VII and other provisions of federal law

to redress the same basic injury,” Ethnic Employees of the

Library of Congress v. Boorstin, 751 F.2d 1405, 1415 (D.C.

Cir. 1985) (discussing Brown), and in Ryan, we held that

“under Egan an adverse employment action based on denial or

6

revocation of a security clearance is not actionable under Title

VII,” 168 F.3d at 524. Contrary to the government’s argument,

then, Title VII cannot provide Gill’s exclusive remedy since,

under Egan, it provides no remedy at all. See Boorstin, 751

F.2d at 1415 (explaining that “[n]othing in [the legislative

history of Title VII] even remotely suggests that Congress

intended to prevent federal employees from suing their

employers for constitutional violations against which Title VII

provides no protection”).

To be sure, two circuits have held otherwise. See Brazil v.

U.S. Department of the Navy, 66 F.3d 193, 197–98 (9th Cir.

1995) (holding that a constitutional challenge to a security

clearance decision was precluded by Title VII); Perez v. FBI,

71 F.3d 513, 515 (5th Cir. 1995) (per curiam) (same). In those

same opinions, moreover, both circuits held that security

clearance decisions were not actionable under Title VII,

effectively barring challenges to such decisions entirely. See

Brazil, 66 F.3d at 197; Perez, 71 F.3d at 514–15. In so doing,

however, neither circuit acknowledged the portion of Webster

holding that constitutional claims are reviewable, nor did either

explain how an inapplicable statutory scheme could possibly

bar a constitutional claim.