Mahmoud M. Hegab v. LETITIA A. LONG, Director, No. 12-1182  National Geospatial-Intelligence Agency

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.

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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.
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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
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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
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(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,
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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-
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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-
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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)
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("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
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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-
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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).
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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-
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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).
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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.
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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
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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-
1Hegab 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).
2It 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-
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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.
3See, 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").
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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
4Notably, "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").
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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-
5A 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.
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makers, have the authority of the third umpire in security
clearance decisions.
On the above understandings, I concur in the majority opin-
ion.
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