Hegab v. Long, No. 12-1182

Decided: April 25, 2013

Affirming the United States District Court for the Eastern District of Virginia, the Fourth Circuit held that it did not have subject-matter jurisdiction to review the National Geospatial-Intelligence Agency’s (“NGA”) security clearance decision.

In January of 2010, after obtaining the necessary top-secret security clearance, Hegab began working for the NGA—a member of the U.S. Intelligence Community and a Department of Defense Combat Support Agency—as a financial/budget analyst. Soon thereafter, Hegab notified the NGA that, following his security clearance investigation, he married Nusairat. Thus prompting the NGA to reinvestigate their initial decision. On November 2, 2010, Hegab was notified that a preliminary decision had been made to revoke his security clearance effective November 18, 2010. On January 7, 2011, he was placed on unpaid administrative leave. The proposed revocation was based on information about Nusairat, as well as earlier information provided during Hegab’s initial investigation. Specifically, the NGA provided Hegab with a Statement of Reasons listing seven facts on which their decision was based. In a detailed response to the NGA’s file supporting their decision, Hegab attempted to explain the evidence. Nonetheless, on March 4, 2011 a final decision was issued revoking his security clearance. The decision informed Hegab that, while his response had mitigated some of the NGA’s concerns, it failed to mitigate his wife’s current affiliation with one or more groups organized largely around their non-United States origin and/or their advocacy of or involvement in foreign political issues; thus raising the potential for conflicts of interest. Subsequently, Hegab unsuccessfully appealed the decision to the NGA Personnel Security Appeals Board. Seeking review of the Board’s decision, this action was commenced against the NGA and its Director, Letitia Long, in her official capacity. In six counts, Hegab alleged that his constitutional rights were violated. However, the District Court found that, though framed as constitutional violations, Hegab’s claims went to the merits of the NGA’s decision to revoke his security clearance. Therefore, the District court dismissed for lack of subject-matter jurisdiction.

On appeal, the Fourth Circuit was faced with the issue of where to draw the line between the political question of reviewing the merits of a security clearance decision and the judicial question of whether an Executive Branch agency violated an individual’s constitutional rights when revoking or denying said individuals security clearance. Harkening to separation of powers concerns, the court noted that federal courts are generally without subject-matter jurisdiction to review an agency’s security clearance decision. However, the court went on to say that, where an individual presents a colorable claim that his constitutional rights have been violated by an agency’s security clearance decision, judicial review might be available although the courts have not yet resolved this question. Nonetheless, in affirming the District Court, the Fourth Circuit concluded that it was unnecessary to decide where to draw the line in this case because Hegab’s conclusory constitutional claims were merely unsuccessful attempts to challenge the merits of the NGA’s decision. In so holding, the court emphasized the fact that Hegab did not allege any facts to support a claim that anyone at the NGA held the hypothesized bias; rather, the alleged bias was the speculative product of an ambivalent 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.

Full Opinion

– W. Ryan Nichols

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