Mahmoud Hegab v. Letitia Long

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MAHMOUD M. HEGAB, 

Plaintiff-Appellant,

v.

LETITIA A. LONG, Director,  No. 12-1182

National Geospatial-Intelligence

Agency; NATIONAL GEOSPATIAL-

INTELLIGENCE AGENCY,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

(1:11-cv-01067-JCC-IDD)

Argued: October 26, 2012

Decided: April 25, 2013

Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the

opinion, in which Judge Davis concurred. Judge Motz wrote

a separate opinion concurring in the judgment. Judge Davis

wrote a separate concurring opinion.

2 HEGAB v. LONG

COUNSEL

ARGUED: Sheldon I. Cohen, SHELDON I. COHEN &

ASSOCIATES, Oakton, Virginia, for Appellant. Bernard G.

Kim, OFFICE OF THE UNITED STATES ATTORNEY,

Alexandria, Virginia, for Appellees. ON BRIEF: Neil H.

MacBride, United States Attorney, Alexandria, Virginia, for

Appellees.

OPINION

NIEMEYER, Circuit Judge:

When Mahmoud Hegab, an employee of the National

Geospatial-Intelligence Agency ("NGA") with a top secret

security clearance, informed the agency of his marriage to

Bushra Nusairat, the NGA conducted a reinvestigation into

his security clearance. Based on new information, the NGA

revoked Hegab’s security clearance.

Hegab commenced this action under the Administrative

Procedure Act against the NGA and its Director to reverse the

NGA’s decision, to reinstate his security clearance, and to

award him back pay, benefits, and attorneys’ fees. In his com-

plaint, he alleged that he presented "overwhelming evidence"

to refute the NGA’s conclusions and that the NGA staff "did

not take the time or effort to review" the facts or "assumed

that anything with the name ‘Islam’ associated with it is a

subversive terrorist organization." He alleged that "[i]f the lat-

ter is true . . . [his] constitutionally protected rights of freedom

of religion, freedom of expression, and freedom of associa-

tion" were violated. The district court dismissed Hegab’s

complaint under Federal Rule of Civil Procedure 12(b)(1),

concluding that it did not have subject-matter jurisdiction to

review a security clearance determination.

HEGAB v. LONG 3

We conclude that Hegab’s speculative and conclusory alle-

gations of constitutional violations were essentially recharac-

terizations of his challenge to the merits of the NGA’s

security clearance determination and that we do not have

jurisdiction to review such a determination. Accordingly, we

affirm.

I

After obtaining the necessary top secret security clearance,

Hegab began work for the NGA as a financial/budget analyst

on January 4, 2010. The NGA, a member of the U.S. Intelli-

gence Community and a Department of Defense Combat Sup-

port Agency, produces geospatial intelligence in support of

national security, and all NGA employees must possess a top

secret security clearance with "sensitive compartmented infor-

mation access."

During his orientation at the NGA, Hegab informed a

security officer that after the investigation for his security

clearance had been completed but before he had begun work,

he had married Bushra Nusairat. This information prompted

the agency to reinvestigate Hegab. By a memorandum dated

November 2, 2010, the NGA notified Hegab that a prelimi-

nary decision had been made to revoke his security clearance,

effective November 18, 2010. On January 7, 2011, Hegab was

placed on unpaid administrative leave.

The proposed revocation was based on information about

Nusairat, as well as earlier information that Hegab had pro-

vided during his initial security clearance investigation. The

Statement of Reasons that the NGA gave to Hegab listed the

facts on which it relied. It stated (1) that Hegab, his parents,

and his siblings held dual citizenship with the United States

and Egypt; (2) that Hegab still possessed an Egyptian passport

and that it would require contact with foreign national govern-

ment officials for Hegab to renounce his Egyptian citizenship

and turn in his passport, which would increase the potential

4 HEGAB v. LONG

that he would be monitored by foreign intelligence services;

(3) that Hegab stated that he was 80% certain that his wife

held dual citizenship with Jordan; (4) that Hegab reported

"continuing contact with multiple foreign nationals (including

relatives), some of whom reside outside of the Continental

United States"; (5) that Hegab had reported residing in Egypt

from May 2004 to November 2007; (6) that Hegab’s spouse

had attended and graduated "from the Islamic Saudi Acad-

emy, whose curriculum, syllabus, and materials are influ-

enced, funded, and controlled by the Saudi government"; and

(7) that "[i]nformation available through open sources identi-

fies [Hegab’s] spouse as being or having been actively

involved with one or more organizations which consist of

groups who are organized largely around their non-United

States origin and/or their advocacy of or involvement in for-

eign political issues." The Statement of Reasons concluded

that this information "presents an elevated foreign influence

risk that is problematic and unacceptable to the national

security of the United States."

After receiving the Statement of Reasons, Hegab requested

and received the file supporting the NGA’s proposal to revoke

his security clearance. The file contained the information that

Hegab had submitted during his initial security clearance, as

well as the information the agency had subsequently obtained

about his wife, including: (1) statements of various organiza-

tions concerning the Saudi Islamic Academy, which she had

attended; (2) a photograph believed to be of her taken at an

anti-war protest in Washington, D.C., depicting her carrying

a sign bearing the website identification of an organization

named "ANSWER" and stating, "War No—Act Now to Stop

War and End Racism"; (3) a statement indicating that after

graduating from the Islamic Saudi Academy in 2005, she

attended George Mason University, where she studied

"Global Affairs, International Development, Diplomacy and

Global Governance, Islamic Studies," and was the president

of a student group called Students for Justice in Palestine; and

HEGAB v. LONG 5

(4) information concerning her employment at a non-profit

organization called Islamic Relief USA.

Hegab submitted a detailed response to the NGA to explain

the evidence, but the agency nonetheless issued a final deci-

sion on March 4, 2011, revoking Hegab’s security clearance.

The decision informed Hegab that:

Your response has mitigated the concerns of citizen-

ship, foreign contact, overseas employment and resi-

dency, as well as your spouse’s education at the

Islamic Saudi Academy. However, the information

provided does not mitigate your spouse’s current

affiliation with one or more organizations which

consist of groups who are organized largely around

their non-United States origin and/or their advocacy

of or involvement in foreign political issues. This

concern elevates the potential for conflicts of interest

between your obligation to protect sensitive or clas-

sified United States information and technology and

your desire to help a foreign person, group, or coun-

try by providing that information.

Hegab appealed the decision to the NGA Personnel Secur-

ity Appeals Board, submitting a written response and 85

exhibits focused on Islamic Relief USA. And on July 26,

2011, he appeared with counsel at a hearing before the Board

and presented additional evidence about Islamic Relief USA.

The next day, the Board issued its decision affirming the

agency’s revocation of Hegab’s security clearance and advis-

ing Hegab that the Board "determined that your written appeal

and the information provided during your personal appear-

ance failed to mitigate security concerns."

Seeking review of the Board’s decision, Hegab commenced

this action against the NGA and its Director, Letitia Long, in

her official capacity, alleging that the revocation of his secur-

ity clearance "was based solely on [his] wife’s religion, Islam,

6 HEGAB v. LONG

her constitutionally protected speech, and her association

with, and employment by, an Islamic faith-based organiza-

tion" and that the NGA’s actions therefore violated his consti-

tutional rights. In six counts, he alleged violations of the Free

Speech Clause of the First Amendment, the Free Exercise

Clause of the First Amendment, the freedom of association

protected by the First Amendment, the Due Process Clause of

the Fifth Amendment, a right to privacy under the Ninth

Amendment, and a right to equal protection under the First,

Fifth, Ninth, and Fourteenth Amendments.

The NGA and its Director filed a motion to dismiss the

complaint for lack of subject-matter jurisdiction, pursuant to

Federal Rule of Civil Procedure 12(b)(1), and for failure to

state a claim, pursuant to Federal Rule of Civil Procedure

12(b)(6). Following a hearing on the motion, the district court

dismissed the complaint without prejudice under Rule

12(b)(1) for lack of subject-matter jurisdiction. The court

found that "Hegab’s claims, though framed as constitutional

violations, concern the merits of NGA’s decision to revoke

his security clearance," and "[a]bsent clear congressional

directive, which Hegab fails to identify, such review is flatly

prohibited by [Department of Navy v.] Egan [484 U.S. 518

(1988)] and Fourth Circuit precedent," referring to Reinbold

v. Evers, 187 F.3d 348, 357-58 (4th Cir. 1999), and Guillot v.

Garrett, 970 F.2d 1320, 1326 (4th Cir. 1992).

This appeal followed.

II

Both Hegab and the NGA appear to agree with the proposi-

tion 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. They also recognize that the Fourth

Circuit has concluded that security clearance determinations

are generally not subject to judicial review. As the Supreme

Court observed in Egan, "the protection of classified informa-

HEGAB v. LONG 7

tion must be committed to the broad discretion of the agency

responsible, and this must include broad discretion to deter-

mine who may have access to it." Egan, 484 U.S. at 529.

Thus, when we have been asked to review security clearance

decisions, we have concluded that courts are generally with-

out subject-matter jurisdiction, recognizing that a court should

not be put in the position of second-guessing the discretionary

judgment of an executive agency assessing national security

risks. See Reinbold, 187 F.3d at 357-58; Becerra v. Dalton, 94

F.3d 145, 148-49 (4th Cir. 1996); Guillot, 970 F.2d at 1326.

The Egan Court amplified the reasons for this, stating, "it is

not reasonably possible for an outside nonexpert body to

review the substance of such a judgment and to decide

whether the agency should have been able to make the neces-

sary affirmative prediction with confidence." Egan, 484 U.S.

at 529. Rather, the agency head charged with the protection

of classified information "‘should have the final say in decid-

ing whether to repose his trust in an employee who has access

to such information.’" Id. (emphasis added) (quoting Cole v.

Young, 351 U.S. 536, 546 (1956)). Harkening to separation of

powers concerns, the Court emphasized that "‘the courts have

traditionally shown the utmost deference to Presidential

responsibilities.’ Thus . . . courts traditionally have been

reluctant to intrude upon the authority of the Executive in mil-

itary and national security affairs." Id. at 530 (quoting United

States v. Nixon, 418 U.S. 683, 710 (1974)); see also Baker v.

Carr, 369 U.S. 186, 217 (1962) (finding questions to be polit-

ical and nonjusticiable when, among other things, there is an

absence of "judicially discoverable and manageable standards

for resolving" the question; the question cannot be decided

"without an initial policy determination of a kind clearly for

nonjudicial discretion"; or it is impossible for a court to "un-

dertak[e] independent resolution without expressing lack of

the respect due coordinate branches of government").

Therefore, as the parties recognize, it is well established in

our circuit that absent a specific mandate from Congress pro-

viding otherwise, federal courts are generally without subject-

8 HEGAB v. LONG

matter jurisdiction to review an agency’s security clearance

decision. See Reinbold, 187 F.3d at 357-58; Becerra, 94 F.3d

at 148-49; Guillot, 970 F.2d at 1325-26.

Hegab argues, however, that his complaint should not be

dismissed by application of those established principles

because, as he contends, even security clearance decisions

must be subject to judicial protection of individual rights

guaranteed by the Constitution. He maintains that because his

complaint has alleged constitutional claims, the claims should

be adjudicated in court, citing Webster v. Doe, 486 U.S. 592

(1988). In Webster, the governing statute authorized the CIA

Director to terminate employees "whenever [the Director]

shall deem such termination necessary or advisable in the

interests of the United States." Id. at 594. The Court held that

this statutory provision did not preclude judicial review of

"colorable constitutional claims arising out of the actions of

the Director." Id. at 603. It reached this conclusion "to avoid

the ‘serious constitutional question’ that would arise if a fed-

eral statute were construed to deny any judicial forum for a

colorable constitutional claim." Id.

This case thus raises the issue of where to draw the line, if

there is such a line, between the political question of review-

ing 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

his or her security clearance.

In the cases we have decided, we have left open the ques-

tion of whether we can review a security clearance decision

even where an individual presents a colorable claim that the

agency’s decision violated his or her constitutional rights. See

Reinbold, 187 F.3d at 358 (noting that "it is arguable that we

could review an agency’s security clearance decision in the

limited circumstance where the agency’s security clearance

decision violated an individual’s constitutional rights"); Jamil

v. Sec’y, Dep’t of Def., 910 F.2d 1203, 1209 (4th Cir. 1990)

HEGAB v. LONG 9

("Whether, however, review of [an] alleged denial of constitu-

tional rights is reachable by a court in the light of Egan pre-

sents a difficult question that we do not need to reach in this

appeal" because "nothing in the record, other than [the plain-

tiff’s] conclusory assertion," supported his constitutional

claims). And other courts have not come to a consensus on

this question. See, e.g., El-Ganayni v. U.S. Dep’t of Energy,

591 F.3d 176, 183-85 (3d Cir. 2010) (holding that the court

had jurisdiction to review plaintiff’s claims that an agency

violated his constitutional rights in the process of revoking his

security clearance, but concluding that any claim that requires

reviewing the merits of the security clearance decision fails to

state a claim); Oryszak v. Sullivan, 576 F.3d 522, 526 (D.C.

Cir. 2009) (noting that while courts may have jurisdiction

over the review of security clearance claims, such claims

other than constitutional claims fail to state a claim); Dorf-

mont v. Brown, 913 F.2d 1399, 1401-04 (9th Cir. 1990) (hold-

ing that courts lack jurisdiction to review the merits of

security clearance determinations, except possibly in the lim-

ited case where an individual has a colorable constitutional

claim); Hill v. Dep’t of Air Force, 844 F.2d 1407, 1411 (10th

Cir. 1988) (suggesting that Egan would be "hardly worth the

effort" if it could be "bypassed simply by invoking alleged

constitutional rights").

But in this case, we need not decide whether and where the

line should be drawn because we conclude that Hegab’s com-

plaint merely challenges the merits of the NGA’s security

clearance decision and his conclusory constitutional claims

are unsuccessful attempts to circumvent the undisputed prop-

osition that we will not review the merits of a security clear-

ance decision.

Hegab’s complaint is factually fulsome, setting forth in

detail—over a span of some 15 pages—the communications

between him and the NGA during a period from January 2010

to September 2011. He alleged that after the investigation for

his security clearance had been completed and he had been

10 HEGAB v. LONG

granted clearance, he married Nusairat and so advised the

NGA. That fact prompted the agency to conduct another

investigation and to conclude, based on this investigation and

other materials that Hegab had previously submitted, that

Hegab’s security clearance should be revoked. Before reach-

ing its final decision, the NGA gave Hegab its reasons and

identified the evidence giving it concern. Hegab responded

with additional evidence and explanations in an effort to rebut

the NGA’s evidence and reasoning. While the evidence he

presented allayed some of the NGA’s concerns, the NGA

adhered to its preliminary decision to revoke his clearance,

explaining that his wife’s affiliation with "one or more organi-

zations which consist of groups who are organized largely

around their non-United States origin and/or their advocacy of

or involvement in foreign political issues" created potential

conflicts with Hegab’s "obligation to protect sensitive or clas-

sified United States information."

Hegab appealed the decision to the NGA Personnel Secur-

ity Appeals Board and presented 85 exhibits to the Board in

support of his appeal, contending that his evidence was "over-

whelming" in refuting the NGA’s conclusions. The Board,

after conducting a hearing, nonetheless affirmed the agency’s

decision.

Based on these historical facts, Hegab alleged in his com-

plaint that the "NGA’s security staff either did not take the

time or effort to review the readily available information pre-

viously presented to it, or other open source information, or

that the security staff assumed that anything with the name

‘Islam’ associated with it is a subversive terrorist organiza-

tion." (Emphasis added). And he alleged further that the

NGA’s decision "reflects, most generously, a failure to exam-

ine and a misunderstanding of the facts and, less generously,

an anti-Islamic bias among the NGA security staff." His com-

plaint then concluded, "[i]f the latter is true," the NGA’s "ac-

tions and conclusions would be in violation of plaintiff’s and

his wife’s constitutionally protected rights of freedom of reli-

HEGAB v. LONG 11

gion, freedom of expression, and freedom of association."

(Emphasis added). Based on these allegations, the complaint

set forth in six counts various causes of actions grounded in

different provisions of the Constitution. But each count

alleged the same factual basis:

The revocation of plaintiff’s security clearance and

access to classified information by defendant 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.

The complaint alleged no facts to support the claim that any-

one at the NGA in fact held the hypothesized bias or said any-

thing that indicated such a bias. To the contrary, the agency’s

alleged bias is stated as the speculative product of an ambiva-

lent allegation in the complaint that the NGA security staff

either failed to take the time or effort to review the available

information or were biased against Islam.

These allegations amount to no more than a challenge to

the merits of the agency’s security clearance determination,

implying that the determination was irrational and unsup-

ported by the evidence. Indeed, Hegab alleged as much, stat-

ing that he provided "overwhelming" evidence to refute the

reasons given by the NGA. But these are exactly the type of

claims that we have held are beyond the subject-matter juris-

diction of a district court. As we explained in Reinbold,

decided in a similar circumstance:

Reinbold essentially concedes that, to decide his

Fourth Amendment claim on the merits, we must

determine whether the NSA wrongly suspended his

SCI security clearance. This is precisely the type of

review that Egan prohibits.

Reinbold, 187 F.3d at 358 (distinguishing claims only focused

on the merits from constitutional claims).

12 HEGAB v. LONG

Hegab’s constitutional allegations are conclusory only,

resting on his disagreement with the NGA’s decision on the

merits. Reasoning from the premise that the NGA’s decision

was wrong—in particular, that it was irrational and unsup-

ported by the evidence—he concludes that the decision must

therefore have been the product of an unconstitutional bias.

The conclusion, however, does not follow, and no indepen-

dent facts are alleged to support such a bias. When that is

understood, it becomes apparent that Hegab’s constitutional

claims depend entirely on his disagreement with NGA’s

review of the evidence and his conclusion that the agency did

not make its decision for the reasons that it gave and therefore

must have acted from an unconstitutional bias. This type of

speculative claim, however, does not state a colorable consti-

tutional claim. See Reinbold, 187 F.3d at 358-59; Jamil, 910

F.2d at 1209. Hegab’s constitutional claims are in substance

merely creative recharacterizations of his allegation that the

NGA made the wrong decision and that its decision was irra-

tional and unsupported by the evidence. Such a challenge

goes to the merits of the security clearance determination, the

review of which does not fall within our jurisdiction. See

Reinbold, 187 F.3d at 357-58.

In its security clearance determination, the NGA concluded

that Hegab had failed to mitigate its concern of "an elevated

foreign influence risk that is problematic and unacceptable to

the national security of the United States," and this conclusion

is one in which the NGA "should have the final say," Egan,

484 U.S. at 529, and in which courts should not intrude, id.

at 530.

Accordingly, the judgment of the district court is

AFFIRMED.

DIANA GRIBBON MOTZ, Circuit Judge, concurring:

I join in holding that we lack jurisdiction to review the

National Geospatial-Intelligence Agency’s ("NGA’s") revoca-

HEGAB v. LONG 13

tion of Mahmoud Hegab’s security clearance. Like Judge

Davis, however, I believe Hegab’s complaint states a color-

able constitutional claim; such is now the holding of the court.

I also agree with Judge Davis, albeit on somewhat different

grounds, that precedent prohibits us from reviewing the merits

of the NGA’s individualized security clearance determination,

even in light of Hegab’s colorable constitutional challenge.

Accordingly, I concur in the judgment.

As to Hegab’s allegation of a constitutional violation, he

asserts that the NGA revoked his security clearance because

of concern regarding his wife’s "current affiliation with [an]

. . . organization[ ] which . . . [is] organized largely around

[its] non-United States origin and/or the advocacy of or

involvement in foreign political issues," i.e., her employment

by Islamic Relief USA. Hegab alleges that this revocation

violated his constitutional rights because it "was based solely

on [his] wife’s religion, Islam, her constitutionally protected

speech, and her association with, and employment by, an

Islamic faith-based organization." These allegations certainly

suffice to state a claim of discrimination that is "plausible on

its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007).

In Department of Navy v. Egan, 484 U.S. 518 (1988), how-

ever, the Supreme Court held that federal courts generally

lack jurisdiction to review an agency’s decision to deny or

revoke an individual’s security clearance. For this reason, we

have dismissed for lack of jurisdiction claims that an agency’s

security clearance determination violated a petitioner’s statu-

tory rights. See, e.g., Becerra v. Dalton, 94 F.3d 145, 148-49

(4th Cir. 1996) (court lacked jurisdiction to review Title VII

claim arising from Navy’s security clearance decision); Guil-

lot v. Garrett, 970 F.2d 1320, 1323-26 (4th Cir. 1992) (court

lacked jurisdiction to review appellant’s claim that Navy’s

denial of his security clearance violated Rehabilitation Act of

1973).

14 HEGAB v. LONG

If Egan stood alone, clearly it would require dismissal here

too. But in Webster v. Doe, 486 U.S. 592 (1988), decided the

same term as Egan, the Supreme Court appeared to hold, over

vigorous dissents, that federal courts have jurisdiction to

review constitutional challenges to security-related employ-

ment decisions. Id. at 601-605. In Webster, the employee

challenged as violative of his constitutional rights the CIA’s

decision to discharge him because he was homosexual, in

keeping with its policy of treating homosexuality as a poten-

tial security threat. Id. at 595, 602. The Court found that,

while the CIA had discretion to discharge an employee under

the National Security Act, that statute did not preclude judi-

cial review of an employee’s constitutional claims. Id. at 603-

604.

Prior to today, we have been able to avoid attempting to

reconcile Egan and Webster. See, e.g., Jamil v. Sec’y, Dep’t

of Def., 910 F.2d 1203, 1209 (4th Cir. 1990). But we must do

so in this case because we cannot assess Hegab’s constitu-

tional claims without reviewing the merits of the NGA’s deci-

sion. It may well be that, if presented with the task of

reconciling these two cases today, the Supreme Court would

hold, in accordance with Justice Scalia’s dissent in Webster

and Judge Davis’s concurrence in the case at hand, that any

challenge to an agency’s security clearance determination

raises a non-justiciable political question. However, to date

the Supreme Court has not so held.

Given the Court’s direction that we follow its cases until

expressly overruled, Agostini v. Felton, 521 U.S. 203, 237

(1997), and the possibility of reconciling Egan and Webster

without holding Webster a dead letter, I follow a more conser-

vative approach. In light of the holding in Egan, at most Web-

ster permits judicial review of a security clearance denial only

when that denial results from the application of an allegedly

unconstitutional policy. Since Hegab alleges no unconstitu-

tional policy but only an assertedly unconstitutional individu-

alized adverse determination, his claim fails.

HEGAB v. LONG 15

I recognize that some of the language in Webster sweeps

broadly enough to suggest that judicial review extends to any

constitutional challenge, but nothing in Webster indicates that

it overruled Egan, which the Court issued only a few months

earlier. And a court could assess the constitutionality of the

CIA policy at issue in Webster without delving into the merits

of an individualized security clearance determination, which

Egan clearly prohibited.

In sum, although Webster may authorize us to review con-

stitutional challenges to security clearance policies, it does not

provide us with jurisdiction in this case, where Hegab makes

no allegation of an assertedly unconstitutional policy. I note

that this limited approach accords with that taken by those of

our sister circuits to address the question of how to reconcile

Egan and Webster. See El-Ganayni v. Dep’t of Energy, 591

F.3d 176, 183-86 (3d Cir. 2010) (finding judicial review of

constitutional claims appropriate only to the extent it would

not require court to review merits of agency’s decision to

revoke petitioner’s security clearance); Nat’l Fed’n of Fed.

Emps. v. Greenberg, 983 F.2d 286, 289-90 (D.C. Cir. 1993)

(finding Egan did not bar judicial review of constitutional

challenge to questionnaire used in making security clearance

determinations but distinguishing case from those "challeng-

ing, on constitutional grounds, discretionary judgments

regarding a particular employee’s security clearance"). This

approach may not gain an employee his reinstatement, but it

certainly could gain him money damages and attorneys’ fees.

DAVIS, Circuit Judge, concurring:

I concur in the majority opinion but with an important dif-

ference in emphasis; hence, I offer these further thoughts.

The National Geospatial-Intelligence Agency (the "NGA")

concluded, after a thorough investigation of Appellant Mah-

moud Hegab’s background and qualifications, that its award

of a top secret security clearance (an essential requirement of

16 HEGAB v. LONG

his federal employment with the agency) was warranted as

"clearly consistent with the interests of national security." See

Appellees’ Br. at 4 (quoting Executive Order 12968, § 3.1(b),

60 Fed. Reg. 40245 (Aug. 7, 1995)). Hegab had spent several

months on the job, and after a further investigation and review

of Hegab’s background and qualifications, the NGA deter-

mined, to the contrary, that a top secret security clearance was

not "clearly consistent with the interests of national security."

Consequently, having lost his top secret security clearance,

Hegab lost his job.

What changed?

Reading the material allegations of the complaint in the

light most favorable to Hegab, 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.1 I do not regard Hegab’s allega-

tions as "conclusory"; rather, I regard them as "colorable"

within the contemplation of our precedents.2 Unlike the alle-

1

Hegab alleges that subject matter jurisdiction over this case rests on the

general federal question statute, 28 U.S.C. § 1331, see J.A. 5 ("this matter

arises under the Constitution of the United States"), and that his claims are

cognizable by virtue of "the government’s waiver of immunity under the

Administrative Procedure Act," id. Indisputably, sound authority supports

Hegab’s assertion that we have subject matter jurisdiction over the consti-

tutional claims he alleges. Trudeau v. Fed. Trade Comm’n, 456 F.3d 178

(D.C. Cir. 2006) (holding that federal question jurisdiction exists over

First Amendment claim by individual against the FTC, but finding claim

legally insufficient); Hubbard v. Envtl. Prot. Agency, 949 F.2d 453 (D.C.

Cir. 1991) (affirming judgment for injunctive relief against the EPA, and

remanding for consideration of an award of back-pay, after trial of First

Amendment retaliation claim instituted by rejected applicant for employ-

ment).

2

It is at least arguable, as the majority opinion intimates, that Hegab

essentially pled himself out of his causes of action by including such an

abundant narrative of the factual bases for his disagreement with the agen-

cy’s decision. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.

2002) ("Rule 12(b)(6) dismissal is appropriate where the allegations con-

HEGAB v. LONG 17

gations in many extant cases raising claims of unconstitu-

tional security clearance revocations,3 the gravamen of

Hegab’s complaint is the alleged denial of equal protection,

in violation of the Fifth Amendment.

Thus, I would conclude on this record that, even after the

most grudging application of Ashcroft v. Iqbal, 556 U.S. 662

(2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007), Hegab has stated cognizable claims of unconstitu-

tional adverse action by a governmental agency. There is an

impenetrable barrier, however, to the possibility that Hegab’s

claims might proceed past the pleading stage. Specifically,

Hegab’s claims raise a non-justiciable political question—i.e.,

whether the agency revoked his security clearance on legiti-

mate national security grounds, or whether the decision "was

based solely on [Hegab’s] wife’s religion, Islam[;] her consti-

tutionally protected speech[;] and her [mere] association with,

and employment by, an Islamic faith-based organization."

J.A. 21.

"Pursuant to the political question doctrine, the judiciary is

deprived of jurisdiction to assess decisions exclusively com-

tradict the claim asserted.") (citing Charles Alan Wright & Arthur R. Mil-

ler, Fed. Practice & Procedure § 1357 (2d ed. 1990)); see also Bennett v.

Schmidt, 153 F.3d 516, 519 (7th Cir. 1998) ("Litigants may plead them-

selves out of court by alleging facts that establish defendants’ entitlement

to prevail."). But lawyers not infrequently plead claims "on information

and belief", e.g., Kush v. Rutledge, 460 U.S. 719, 721 & n.1 (1983), and

courts generally understand that some ultimate facts, e.g., the existence of

an invidious motivation for facially (but pretextual) non-discriminatory

adverse actions, can be pled, conformably within the strictures of Federal

Rule of Civil Procedure 11, only in such a manner. At bottom, that is

exactly what Hegab has done here, somewhat inartfully.

3

See, e.g., Reinbold v. Evers, 187 F.3d 348, 358 (4th Cir. 1999) (noting

that the plaintiff-appellant had alleged that his seizure, debriefing, and

ejection from a Navy facility had "violated his rights as guaranteed under

the Fourth Amendment," "not that the suspension of his . . . security clear-

ance amounted to a constitutional violation").

18 HEGAB v. LONG

mitted to a separate branch of government." Taylor v. Kellogg

Brown & Root Servs., Inc., 658 F.3d 402, 407 n.9 (4th Cir.

2011).4 Rudimentary separation of powers standards demon-

strate the exclusive commitment of national security clearance

decisions to the executive branch; that commitment could not

be more pervasive or more clear. See, e.g., Becerra v. Dalton,

94 F.3d 145, 148 (4th Cir. 1996) ("Security clearances are

within the Executive’s purview, and therefore, ‘unless Con-

gress specifically has provided otherwise, courts traditionally

have been reluctant to intrude upon the authority of the Exec-

utive in military and national security affairs.’") (citing Dep’t

of the Navy v. Egan, 484 U.S. 518, 530 (1988)). Manifestly,

the requirement that a security clearance be afforded a gov-

ernment employee only where it is "clearly consistent with the

interests of national security" simply does not admit of judi-

cial determination; it is a political question, not a judicially

reviewable question.

This case points out (once again) the difficulty facing law-

yers and lower federal courts trying to make jurisprudential

sense of the Supreme Court’s dictum in Webster v. Doe, 486

U.S. 592, 603 (1988), over dissents by Justice O’Connor and

Justice Scalia, that the Court desired to avoid "the serious

constitutional question that would arise if a federal statute

were construed to deny any judicial forum for a colorable

constitutional claim." As the majority opinion points out, in

this Circuit, we have strained mightily to pay heed to that dic-

tum, usually by holding, as the majority opinion here does,

that a plaintiff has failed to allege a "colorable constitutional

4

Notably, "the [Supreme] Court has not announced whether it views the

[political question doctrine] as constitutional"—and thus, jurisdiction-

al—"or prudential." Erwin Chemerinsky, Federal Jurisdiction 45 (5th ed.

2007). Although we have said political questions rob us of jurisdiction, see

Taylor, 658 F.3d at 407 n.9, other courts are not so certain. Cf. Oryszak

v. Sullivan, 576 F.3d 522, 527 (D.C. Cir. 2009) (Ginsburg, J., concurring)

(observing that "it is important to distinguish among failure to state a

claim, a claim that is not justiciable, and a claim over which the court

lacks subject matter jurisdiction").

HEGAB v. LONG 19

claim" and that therefore subject matter jurisdiction is lacking.

Reinbold v. Evers, 187 F.3d 348, 358 (4th Cir. 1999).5 None

of the six justices comprising the majority in Webster remain

on the Court; it would be fair to express uncertainty as to the

continuing viability of the twenty-five year old Webster dic-

tum.

For now it suffices to observe that cases such as this one

bring to mind the story of the three umpires sitting in a tavern

discussing how they make calls on pitches when working

home plate. The first said, "I call them as I see them." The

second said, "I call them as they are." The third said, "They

ain’t nothin’ until I call ’em." As important as constitutional

protections are for all of our fellow citizens, and as critical as

the Third Branch’s role is in the vindication of those protec-

tions, the President and his designees, and no other decision-

5

A number of courts have reconciled Egan and Webster by reasoning

that Webster allows courts to review constitutional challenges to the pro-

cess for making security clearance decisions, but Egan bars courts from

reviewing the merits of those decisions. See, e.g., El-Ganayni v. U.S.

Dep’t of Energy, 591 F.3d 176, 183 (3d Cir. 2010) ("We 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.") (citing Webster,

486 U.S. at 603–04).

I have grave doubt that many federal employees whose security clear-

ance is revoked care much about the procedures used to do so; they care

about their clearance (thus, their jobs and their reputations, and not neces-

sarily in that order). See Hill v. Dep’t of Air Force, 844 F.2d 1407, 1412

(10th Cir. 1988) ("[T]he district court made no finding that the Air Force

violated any particular procedure; and even if such a finding had been

made the remedy would have been a remand for the purpose of compli-

ance with applicable procedures, not an order requiring reinstatement of

Hill’s clearance."). Accordingly, I find this attempted reconciliation, based

on reasoning that a court could not "review the merits of the decision to

revoke [the plaintiff’s] security clearance," but could "exercise jurisdiction

over [his] constitutional claims and review them to the extent that [the

court] [could] do so without examining the merits of that decision," El-

Ganayni, 591 F.3d at 183, largely incoherent in any real-life application.

20 HEGAB v. LONG

makers, have the authority of the third umpire in security

clearance decisions.

On the above understandings, I concur in the majority opin-

ion.