Kaiser Gill v. DOJ

Citation: Not availableDocket: 16-5250

Court: Court of Appeals for the D.C. Circuit; November 13, 2017; Federal Appellate Court

Original Court Document: View Document

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Kaiser Gill, a former FBI special agent, had his security clearance revoked after he conducted unauthorized database searches. Following this, he sought review from the Department of Justice’s Access Review Committee (ARC), where he admitted to his misconduct but argued for reinstatement, claiming the likelihood of reoffending was minimal. Despite acknowledging his remorse, the ARC upheld the revocation, citing national security concerns.

Gill subsequently filed a six-count lawsuit against the FBI and the Department of Justice, alleging violations of the Foreign Intelligence Surveillance Act (FISA) for the introduction of evidence from undisclosed surveillance, infringement of his due process rights due to the prolonged decision-making process, and unequal treatment based on his Muslim background and familial ties. The government moved to dismiss the case, asserting that federal courts lack authority to review security clearance revocations per the Supreme Court precedent in Department of the Navy v. Egan. The district court found Gill’s claims either baseless or barred and dismissed the case, a decision he appealed. The Court of Appeals reviewed the dismissal de novo, affirming the lower court's ruling.

Gill contends that the FBI violated the Foreign Intelligence Surveillance Act (FISA) by using information obtained through unauthorized surveillance in his Administrative Review Committee (ARC) proceeding without proper disclosure. Under FISA, the Attorney General may authorize electronic surveillance without a court order, but any information obtained must be disclosed before use in legal proceedings. The district court dismissed Gill’s claim, stating that he failed to demonstrate a valid waiver of the United States’ sovereign immunity necessary to sue a federal agency. Gill attempted to counter this dismissal by referencing *Clark v. Library of Congress*, which allows suits against government officials for unconstitutional actions, and Section 702 of the Administrative Procedure Act (APA) as a waiver of sovereign immunity for injunctive relief. However, since these arguments were raised for the first time on appeal, they were not considered.

Gill also claims that the revocation of his security clearance infringed upon his due process rights. Although he acknowledged a lack of a constitutionally protected property interest in his clearance, he argued that it violated a liberty interest. The court noted that even if a protected liberty interest existed, Gill received adequate due process through a full ARC hearing with the right to counsel. Gill further asserted that the ARC process was compromised due to the alleged FISA violation; however, the court clarified that his misconduct was revealed through a security unit interview, not FISA surveillance. The ARC revoked Gill's clearance based on his admitted misconduct, which raised legitimate concerns about his ability to handle classified information. Gill also argued that the ARC improperly considered the influence of his foreign-born relatives in its decision, but the court found that the ARC's analysis focused solely on his misconduct, without referencing his relatives in its reasoning.

Gill alleges that a five-year delay in the ARC proceeding violated his due process rights. However, as established in Zevallos v. Obama, a delay does not constitute a due process violation unless it can be shown to cause harm, which Gill failed to demonstrate. He claims that the delay prevented him from seeking court redress, but the cited case of Barker v. Wingo clarifies that such delays do not inherently violate due process rights.

Gill’s equal protection claims assert that he received a harsher penalty for his misconduct compared to non-Muslim agents and that the ARC treated his naturalized family members differently than native-born citizens. The government contends these claims are barred by Department of the Navy v. Egan, which limits the authority of external bodies to review Executive Branch security-clearance decisions. Gill argues that Egan does not apply when constitutional rights are at stake. However, the court determined that even if the claims were not barred, they would still fail. 

Gill's assertion regarding the treatment of his family was based on a misinterpretation of the ARC's decision, which was grounded in his misconduct rather than his family's status. Furthermore, Gill's claim that the FBI revoked his security clearance due to his Muslim identity was not raised before the ARC, leading to its forfeiture. The court emphasized the importance of addressing objections at the administrative level before seeking judicial review.

Ultimately, the court affirmed the district court’s dismissal of Gill's claims. Judge Tatel concurred, noting that if Gill's equal protection claims were viable, they would not be barred by Egan or Title VII of the Civil Rights Act, highlighting that he claims to have been treated differently based on race, religion, and ethnicity compared to non-Muslim agents.

The government argues that both claims are barred by the Supreme Court’s decision in Egan, which addressed the Merit Systems Protection Board's ability to review the Navy's denial of a security clearance. The Court emphasized that the President, as Commander in Chief, holds the authority to classify information related to national security, and that evaluations of trustworthiness for access to classified information should be made by experts in this field. Consequently, it is deemed unreasonable for a non-expert body to review such decisions or to determine acceptable margins of error in risk assessments. While Egan is rooted in the specific statutory scheme at issue, its reasoning reflects broader separation of powers principles.

The court has extended Egan's principles to other claims, as seen in Ryan v. Reno, where it was established that adverse employment actions based on security clearance denials are not actionable under Title VII. The government contends that the court has not indicated that plaintiffs could assert similar discrimination claims under the Constitution; however, the court has consistently distinguished between statutory and constitutional claims. In Ryan, it clarified that its ruling was limited to Title VII and did not extend to constitutional rights. 

This distinction aligns with the Supreme Court's decision in Webster v. Doe, which allowed a constitutional challenge to proceed despite the unreviewable nature of the CIA Director's decision to terminate an employee for national security reasons. The distinction is further supported in National Federation of Federal Employees v. Greenberg, where it was ruled that Egan does not prevent constitutional challenges to security clearance processes. The court acknowledged the government’s discretion in determining necessary information from employees but affirmed that such discretion does not equate to immunity from judicial review of constitutional claims, noting that unconstitutional actions, such as unauthorized searches, remain subject to scrutiny.

Limitations on the reach of Egan have been acknowledged by other circuits, with the Third Circuit asserting that not all claims from security clearance revocations violate the separation of powers, allowing constitutional claims to proceed. The Ninth Circuit has indicated that while security clearance decisions are unreviewable under the APA, Webster clarifies that such decisions can be reviewed for constitutional errors. The Fourth Circuit finds it “arguable” that an equal protection claim may survive Egan’s restrictions but has not resolved this issue. The appeal does not require addressing whether courts can review alleged constitutional rights violations due to the absence of evidence indicating improper motivation based on national origin.

The government argues that Gill's equal protection challenge cannot proceed because it would require exploring whether the agency's security reasons were valid or discriminatory, which would conflict with Egan. However, not all equal protection challenges necessitate reviewing discretionary judgments on security clearances; some may address the constitutionality of decision-making methods. The Third Circuit interprets Egan and Webster as allowing judicial review of constitutional claims related to security clearance denials when linked to an unconstitutional policy. Gill claims discrimination based on religion and national origin, and if he can demonstrate a government policy that differentiates against Muslims or naturalized citizens, his claims may not be barred by Egan.

Furthermore, the government contends that Gill's claims are precluded by Title VII, which it argues serves as the exclusive remedy for employment discrimination claims, as established in Brown v. General Services Administration. However, this interpretation is flawed. Brown considered whether federal employees could bring parallel claims under Title VII and other federal laws for the same injury, while Ryan established that adverse employment actions due to security clearance issues are not actionable under Title VII. Therefore, Title VII does not provide Gill with an exclusive remedy. Additionally, two circuits have ruled similarly yet failed to recognize Webster’s provision for the review of constitutional claims or explain how a statutory framework could impede a constitutional claim.