Kaiser Gill v. DOJ ( 2017 )

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)).
4
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).
5
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.