Gill v. United States Department of Justice

Citation: 875 F.3d 677Docket: No. 16-5250

Court: District Court, District of Columbia; November 13, 2017; Federal District Court

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Kaiser Gill, a former FBI special agent, had his security clearance revoked after he conducted unauthorized database searches. He filed a lawsuit claiming this revocation violated the equal protection and due process clauses of the Constitution, as well as the Foreign Intelligence Surveillance Act (FISA). The district court dismissed his case, finding his claims meritless or barred. Gill, a decorated veteran and Pakistani immigrant, admitted his misconduct during a review by the Department of Justice’s Access Review Committee (ARC), which noted his remorse but upheld the revocation due to concerns about his ability to handle classified information. 

Gill's six-count complaint included allegations of FISA violations for using undisclosed surveillance evidence in the ARC hearings, due process infringements due to the five-year delay in the ARC's decision, and equal protection claims regarding the treatment of his family as foreign influences and discriminatory treatment of Muslims. The government moved to dismiss based on lack of judicial authority to review security clearance revocations, as established in Department of the Navy v. Egan. The district court agreed and dismissed the case. Gill appealed, reiterating his arguments. The review of his claims is conducted de novo, particularly focusing on the alleged FISA violation regarding the use of surveillance evidence without required disclosures.

The district court dismissed Gill’s claim under the Foreign Intelligence Surveillance Act (FISA), stating that a valid waiver of the United States' sovereign immunity is necessary for such claims, and Gill failed to identify any waiver. On appeal, Gill references 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 immunity for injunctive relief. However, these arguments were not presented in the district court and are therefore forfeited. 

Regarding Gill's due process claim about the revocation of his security clearance, he concedes that he lacks a constitutionally protected property interest but argues that it infringed on a liberty interest. The court notes that even assuming a protected liberty interest exists, Gill received adequate due process through a full hearing before the Administrative Review Committee (ARC), where he had the right to counsel and the opportunity to present his case. Gill's assertion that the ARC proceedings were tainted by a FISA violation is rejected because his misconduct was identified through a security interview, not FISA-authorized surveillance.

Gill also contends that the ARC's decision was influenced by perceived foreign ties, but the court clarifies that the ARC's analysis focused solely on Gill's misconduct regarding classified information, not his relatives. Lastly, Gill argues that the five-year delay in the ARC's decision violated due process; however, the court states that mere delay does not constitute a due process violation without evidence of harm resulting from it.

Gill argues that his inability to seek legal redress for five years was inherently harmful, referencing Barker v. Wingo, which clarifies that such a delay does not automatically constitute a due process violation. He also claims violations of his equal protection rights, asserting he received a harsher penalty than non-Muslim agents for similar misconduct and that his family members were treated differently due to their naturalized status. The government counters that these claims are barred by Department of the Navy v. Egan, which restricts judicial review of security clearance determinations by the Executive Branch. Gill contends Egan does not apply when constitutional rights are at stake. However, the court finds that even if Egan did not bar the claims, Gill's equal protection arguments fail on their merits. His assertion regarding the ARC's consideration of his family's foreign status misinterprets the Committee's decision, which focused on his admitted misconduct. Additionally, Gill's claim that his security clearance was revoked due to his Muslim faith is forfeited because he did not present it to the ARC during the administrative process. The court emphasizes that fairness dictates courts should not overturn administrative decisions without prior objections from the parties involved. Consequently, the district court's dismissal of Gill's claims is affirmed.