2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-11-2010

Abdel Moniem Ali El-Ganayni v. US Department

of Energy

Precedential or Non-Precedential: Precedential

Docket No. 08-4745

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-4745

_____________

ABDEL MONIEM ALI EL-GANAYNI, 

 Appellant

v.

UNITED STATES DEPARTMENT OF ENERGY; 

JEFFREY F. KUPFER, Acting Deputy Secretary of

Department of Energy

 

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No. 2-08-cv-00881

District Judge: The Honorable Terrence F. McVerry

 

Argued October 28, 2009

Before: SMITH, FISHER, and STAPLETON,

Circuit Judges
2

(Filed: January 11, 2010)

George E. McGrann

Paul H. Titus

Keith E. Whitson (argued)

Schnader Harrison Segal & Lewis

120 Fifth Avenue

2700 Fifth Avenue Place

Pittsburgh, PA 15222

Witold J. Walczak

American Civil Liberties Union

313 Atwood Street

Pittsburgh, PA 15213

Counsel for Appellant

Thomas M. Bondy

Beth S. Brinkmann (argued)

United States Department of Justice

Civil Division

Room 7535

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Marcia Sowles

United States Department of Justice

Civil Division

P.O. Box 883

Ben Franklin Station
3

Washington, DC 20044

Counsel for Appellee

 

OPINION

 

SMITH, Circuit Judge.

Dr. Abdel Moniem Ali El-Ganayni was fired from his job

at Bettis Laboratory after the Department of Energy (“DOE”)

revoked his security clearance. El-Ganayni sued the DOE and

its Acting Deputy Secretary Jeffrey Kupfer, claiming that the

revocation of his clearance violated the United States

Constitution and the Administrative Procedure Act (“APA”).

The District Court dismissed all of his claims. El-Ganayni

appeals. Because we conclude that El-Ganayni’s complaint

failed to state a claim upon which relief may be granted, we will

affirm the judgment of the District Court. 

I. 

The following statements of fact are drawn from ElGanayni’s complaint. Because the District Court decided this

case on a motion to dismiss, the allegations in the complaint

“must be accepted as true for purposes of this appeal.”

Nationwide Life Ins. Co. v. Commonwealth Land Title Ins. Co.,
4

579 F.3d 304, 306 n.1 (3d Cir. 2009). 

El-Ganayni is a native-born Egyptian. He came to the

United States in 1980 and settled in Pittsburgh, Pennsylvania. 

He holds a Master’s degree in atomic physics and a Ph.D. in

nuclear physics. In 1988, he became a United States citizen. In

1990, he was hired as a physicist at Bettis Laboratory, a facility

operated under contract with the DOE. Bettis was and remains

dedicated solely to the Naval Nuclear Propulsion Program, a

joint Navy-DOE program responsible for the design,

construction, operation, and maintenance of nuclear-powered

warships. El-Ganayni’s job required a security clearance, and

he received one in May of 1990. That clearance was subject to

at least five re-evaluations between 1990 and 2007, and on each

occasion El-Ganayni retained his clearance. He never received

a negative performance evaluation and was never accused of

misconduct. 

El-Ganayni is Muslim, and outside of work he was active

in various causes related to his faith. He helped to establish one

of Pittsburgh’s first mosques, the Islamic Center of Pittsburgh

(the “Islamic Center”), and served in its leadership. He

regularly spoke at services there and at other Pittsburgh-area

mosques. 

According to El-Ganayni, government scrutiny of

Pittsburgh-area Muslims increased after the attacks of

September 11, 2001. On June 30, 2006, the FBI raided the
 Eid al-Fitr is a feast celebrating the end of Ramadan. 

1

5

Light of Age Mosque, a mosque located on Pittsburgh’s North

Side, during a solemn prayer service known as Juma’h. Two

weeks later, El-Ganayni gave a speech at the Islamic Center

criticizing the FBI and condemning the raid. During the same

speech, he strongly criticized United States foreign policy. He

was especially critical of American involvement in Iraq. 

Then, in June or July of 2007, El-Ganayni gave a speech

at a mosque to promote prison outreach. While there, he found

FBI brochures recruiting Muslim informants. He told the

congregation that the FBI’s recruitment efforts were improper

because the mosque was a house of worship. He argued that the

FBI had become a political organization, not a law enforcement

agency. He told congregants that they should report crimes if

they knew of any, but that they should not serve as informants

for the FBI until it stopped acting like a political organization.

Around the same time, El-Ganayni began serving as an

Imam for the Pennsylvania Department of Corrections at the

State Correctional Institution at Forest (“SCI-Forest”). He

requested to speak with the superintendent there about the

treatment of Muslim prisoners, but the superintendent declined

to meet with him. In July of 2007, he sought to raise money for

Eid al-Fitr ceremonies at SCI-Forest for Muslim prisoners who

were unable to pay their share of the costs themselves. The 1

superintendent refused to accept any money raised by El-
6

Ganayni. Shortly thereafter, El-Ganayni learned that prison

officials were upset with him for distributing to prisoners a book

about Islam titled The Miracle in the Ant. The book contained

a passage about a defense mechanism found in certain ants,

which allows them to burst open their body wall and spray

deadly secretions upon attackers. 

Approximately a week after learning of the displeasure

at SCI-Forest over The Miracle in the Ant, El-Ganayni drove a

Muslim inmate’s family four hours to a different state prison so

that the inmate and her family could visit. The family had an

appointment, but El-Ganayni and the family were denied entry.

El-Ganayni complained and asked to speak with the deputy

warden and the superintendent. Both requests were denied. ElGanayni submitted a written complaint over the incident.

Several days later, he received a phone call stating that his

contract with SCI-Forest was being terminated. 

On October 24, 2007, El-Ganayni was called into a

meeting with the Bettis Laboratory Security Manager. Another

person, unidentified, was present. At the meeting, El-Ganayni

was questioned extensively. He was asked whether he

supported killing Americans, whether he supported suicide

bombings, and whether The Miracle in the Ant could be

construed as encouraging suicide bombings. He was also

questioned about his contacts with other Muslims, his

interactions with the Pennsylvania Department of Corrections,

his speeches at mosques, and his practice of sending money to
7

a family in Yemen. At the end of the meeting, El-Ganayni was

told that his security clearance was suspended pending

“resolution of issues.” He was escorted from the building. 

Several weeks later, El-Ganayni agreed to an interview

with the FBI. FBI agents informed El-Ganayni that the DOE

had asked the FBI to determine whether he should continue to

hold his security clearance. The agents asked him questions

similar to those posed by the Bettis Laboratory Security

Manager. He was also asked about his views on the Koran;

whether he ever watched television or Internet news broadcasts

depicting the deaths of Americans in Iraq; whether he was a

member of Hamas or al-Qaeda, or whether he knew anyone in

those organizations; and whether he believed an Iraqi would be

a martyr if he killed an American in a suicide bombing. At the

end of the meeting, the FBI advised El-Ganayni that more

meetings might be necessary, but no more interviews were

scheduled. 

In December of 2007, El-Ganayni received a letter from

a DOE official informing him that he was suspended with pay.

The letter stated that “reported information” cast “substantial

doubt” on his continued eligibility for a security clearance. The

letter further stated that the DOE possessed information

indicating that El-Ganayni’s continued possession of a security

clearance could endanger national security. On December 12,

2007, El-Ganayni was placed on reduced pay for the length of

his suspension. 
8

In January of 2008, El-Ganayni received a letter

explaining the reasons for the suspension of his security

clearance. The letter stated:

Reliable information in the possession of the

Department of Energy indicates that you have

knowingly established or continued sympathetic

association with a saboteur, spy, terrorist, traitor,

seditionist, anarchist, or revolutionist, espionage

agent, or representative of a foreign nation whose

interests are inimical to the United States, its

territories or possessions, or with any person

advocating the use of force or violence to

overthrow the Government of the United States or

any state or subdivision thereof by

unconstitutional means. 

It further stated that:

Reliable information in the possession of the

Department of Energy indicates that you have

engaged in unusual conduct or are subject to

circumstances which tend to show that you are not

honest, reliable, or trustworthy; or which

furnishes reason to believe that you may be

subject to pressure, coercion, exploitation, or

duress which may cause you to act contrary to the

best interests of national security. Specifically,
9

the circumstances or conduct involve conflicting

allegiances. 

These allegations simply tracked the language of DOE

regulations, see 10 C.F.R. § 710.8(b), (l), and did not include

any details about the “reliable information” possessed by the

DOE. 

The letter also explained certain procedures through

which El-Ganayni could challenge the allegations against him.

Those procedures included a hearing before a DOE Hearing

Officer; the right to submit written answers to the allegations

against him; the right to present evidence on his behalf; and the

right to be present and to be represented by counsel at his own

expense. 

El-Ganayni accepted the DOE’s offer to challenge the

allegations in the January letter, and to that end he requested a

hearing. After an initial status conference, however, the DOE

terminated the proceedings. On May 19, 2008, Acting Deputy

Secretary of Energy Kupfer notified El-Ganayni that his security

clearance was revoked (the “Kupfer Certification”). Kupfer

certified under Executive Order 12968 that the usual procedures

available in security clearance revocation proceedings could not

“be made available [to El-Ganayni] . . . without damaging the

interests of national security by revealing classified

information.” Kupfer stated that this determination was

“conclusive.” He did not describe the specific national security
The Bodman Certification was issued after this lawsuit 2

began, to obviate a legal dispute that arose in the District Court

as to whether Kupfer had authority to revoke El-Ganayni’s

security clearance. 

10

concerns that motivated the decision to revoke El-Ganayni’s

clearance without a hearing. Later, the Kupfer Certification was

superseded by a similar certification by Secretary of Energy

Samuel W. Bodman (the “Bodman Certification”). 

2

Lacking a security clearance, El-Ganayni lost his job at

Bettis Laboratory on May 22, 2008. 

II. 

On June 26, 2008, El-Ganayni filed this lawsuit in the

United States District Court for the Western District of

Pennsylvania. His three-count complaint named Kupfer and the

DOE as defendants. In Count I, El-Ganayni alleged that the

defendants violated his First Amendment rights to free speech

and free exercise of religion. He contended that the DOE

revoked his clearance in retaliation for the speeches he gave

criticizing the FBI, United States foreign policy, and the war in

Iraq. In Count II, he alleged that the DOE and Kupfer violated

his Fifth Amendment right to equal protection by discriminating

against him on the basis of his religion and national origin.

According to El-Ganayni, the DOE invoked national security

solely to mask its real reasons for revoking his clearance, and
11

that the real reasons were retaliatory, discriminatory, and

unconstitutional. In Count III, El-Ganayni alleged that the

defendants violated the APA and his Fifth Amendment right to

due process by failing to follow DOE regulations in revoking his

clearance. He sought a declaration that defendants’ actions were

unconstitutional and an order requiring the DOE to provide him

with a hearing and other procedures provided by DOE

regulations. Significantly, he claimed that he did not seek to

overturn the security revocation decision. He only sought a

hearing and the opportunity to contest the revocation before a

neutral arbiter. 

The government moved to dismiss Counts I and II for

lack of jurisdiction under Department of the Navy v. Egan, 484

U.S. 518 (1988), and Count III for failure to state a claim. It

argued that the Executive Branch’s revocation of a security

clearance is not subject to judicial review and that, in any event,

El-Ganayni’s clearance was revoked in compliance with DOE

regulations. The District Court concluded that Counts I and II

required examination of the merits of the DOE’s decision to

revoke his clearance, and therefore dismissed those claims for

lack of jurisdiction. The District Court also concluded that the

DOE followed its own regulations and dismissed Count III for

failure to state a claim. El-Ganayni appealed. 

The District Court exercised jurisdiction under 28 U.S.C.

§ 1331. Jurisdiction in this court arises under 28 U.S.C. § 1291.

We exercise plenary review of the District Court’s order
 “The Merit Systems Protection Board is an 3

independent, quasi-judicial agency in the Executive branch that

serves as the guardian of Federal merit systems.” About MPSB,

M S P B . g ov,

12

granting the government’s motion to dismiss. Phillips v. County

of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). 

III. 

A. 

The government, citing Egan, contends that Article III

courts lack jurisdiction over this case because they lack

jurisdiction to review the merits of a security clearance

revocation. Citing Webster v. Doe, 486 U.S. 592 (1988), and

Stehney v. Perry, 101 F.3d 925 (3d Cir. 1996), El-Ganayni

argues that we do have jurisdiction. To decide the jurisdictional

question, we must examine all three of these cases in some

detail. 

The plaintiff in Egan, Thomas M. Egan, worked at a

naval facility where all employees were required to have

security clearances. Egan, 484 U.S. at 520. After Egan had

worked at the facility for a short time, the Navy denied him a

security clearance and removed him from his position. Egan

sought review by the federal Merit Systems Protection Board

(“the Board”). Id. at 522. During the ensuing Board 3
http://www.mspb.gov/sites/mspb/pages/About%20MSPB.aspx

(last visited Nov. 30, 2009). 

13

proceedings, the Navy contended that the Board “did not have

the authority to judge the merits of the underlying securityclearance determination” that led to Egan’s removal. Id. at 523.

It argued that the Board could only inquire as to whether a

clearance was a requirement for Egan’s position, and whether

the required procedures had been followed in removing him. Id.

 The Board agreed that it had no authority to review the merits

of a security clearance determination and sustained Egan’s

removal. Id. at 525. On appeal, the Federal Circuit reversed the

Board, reasoning that the “absence of any statutory provision

precluding appellate review of security clearance denials” in

removal proceedings such as the one before it created a strong

presumption in favor of review. Id. at 526. 

The Supreme Court reversed, holding that the Board

lacked authority to review the merits of the Navy’s decision to

revoke Egan’s security clearance. Egan, 484 U.S. at 526-27.

The Court acknowledged the general rule that agency action is

presumptively reviewable, but noted that this presumption has

its limits, and that it “runs aground when it encounters concerns

of national security.” Id. at 527. It noted that the decision to

grant a security clearance is “a sensitive and inherently

discretionary judgment call . . . committed by law to the

appropriate agency of the Executive Branch.” Id. The “law” to

which the Supreme Court referred was the United States
14

Constitution. The Supreme Court explained that: 

“The President, after all, is the ‘Commander in

Chief of the Army and Navy of the United States.’

U.S. Const., Art. II, § 2. His authority to classify

and control access to information bearing on

national security and to determine whether an

individual is sufficiently trustworthy to occupy a

position in the Executive Branch that will give

that person access to such information flows

primarily from this constitutional investment of

power in the President and exists quite apart from

any explicit congressional grant. This Court has

recognized the Government’s ‘compelling

interest’ in withholding national security

information from unauthorized persons in the

course of executive business. The authority to

protect such information falls on the President as

head of the Executive Branch and as Commander

in Chief.” 

Id. (citations omitted). 

The Egan Court also stated that it was “obvious” that “no

one has a ‘right’ to a security clearance.” Id. at 528. The Court

noted that the decision to grant a clearance is discretionary, and

must be premised on the judgment that an individual’s receipt of

a clearance is “clearly consistent with the interests of national
15

security.” Egan, 484 U.S. at 528. Because such judgments

about whom to trust with classified information are made by

experts in the Executive branch, and because they implicate the

President’s traditional authority over “military and national

security affairs,” see id. at 530, the Court reasoned that they are

entitled to deference from “nonexpert outside bod[ies]” such as

the Board. Id. at 529. 

Although Egan held only that a non-expert agency (the

Board) lacked authority to review the merits of a security

clearance decision, its holding has since been extended. Many

courts, including this one, hold that Egan also forbids judicial

review of the merits of clearance decisions. See, e.g., Makky v.

Chertoff, 541 F.3d 205, 212 (3d Cir. 2008) (citing Egan and

stating that “there is no judicial review of the merits of a

security clearance decision”); Stehney, 101 F.3d at 932 (noting

the consensus in the Courts of Appeals about the scope of

Egan); Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir.

1990); Jamil v. Sec’y. of the Dep’t of Def., 910 F.2d 1203, 1206

(4th Cir. 1990); Hill v. Dep’t of the Air Force, 844 F.2d 1407,

1409 (10th Cir. 1988). 

Egan’s deferential approach may be contrasted with the

Supreme Court’s holding in Webster. There, the Court decided

the extent to which the employment decisions of the Director of

the Central Intelligence Agency (“CIA”) were judicially

reviewable. Section 102(c) of the National Security Act of

1947 permitted the Director of the CIA, “in his discretion, [to]
16

terminate the employment of any officer or employee of the

Agency” whenever he deemed such termination “necessary or

advisable in the interests of the United States.” Webster, 486

U.S. at 594. John Doe worked for the CIA for nine years before

voluntarily informing a CIA security officer that he was a

homosexual. Id. at 595. Ultimately, the Director determined

that Doe’s homosexuality was a threat to national security and

fired him under Section 102(c). Id. Doe sued, claiming that the

CIA’s actions were arbitrary and capricious under the APA. He

also asserted a panoply of constitutional claims, including

violations of his rights to due process and equal protection under

the Fifth Amendment, and violations of his rights to property,

liberty, and privacy under the First, Fourth, Fifth, and Ninth

Amendments. Id. at 595-96. The Supreme Court held that Doe

could not bring an APA claim, because Section 102(c) granted

the CIA Director unreviewable discretion in employment

decisions. Id. at 599-600. The Court also held, however, that

Section 102(c) did not preclude judicial review of “colorable

constitutional claims arising out of the actions of the Director

pursuant to that section.” Id. at 603. The Court reached this

conclusion 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.” Webster,

486 U.S. at 603. 

In Stehney, this Court sought to reconcile the decisions in

Webster and Egan. The plaintiff in Stehney worked at a private

“think tank” involved in research for the National Security
17

Agency (the “NSA”). Stehney, 101 F.3d at 928. Her job

required a security clearance, which she received but later lost

when she refused to take a polygraph test. Id. at 929. Stehney

filed a complaint alleging that the NSA violated her

constitutional rights to due process, privacy, and equal

protection. She also alleged that the NSA failed to follow its

own regulations in revoking her clearance. The District Court

dismissed Stehney’s constitutional claims for lack of

jurisdiction. Id. It concluded that the revocation of Stehney’s

clearance was a non-reviewable political question. Id. at 932.

According to the District Court, “Egan supported the conclusion

that there was a ‘textually demonstrable constitutional

commitment’ of the issue of access to classified information to

the Executive Branch” under Article II and that any “judicial

review [of such] decisions violated the separation of powers.”

Id. 

We held that the District Court erred in dismissing

Stehney’s claims for lack of jurisdiction. We adhered to Egan’s

holding that the merits of the revocation decision were nonreviewable. Stehney, 101 F.3d at 932. We emphasized,

however, that “not all claims arising from security clearance

revocations violate separation of powers or involve political

questions.” Id. 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. See id.
 We also reiterated that Stehney had no “constitutionally 4

protected liberty or property interest in a security clearance or a

job requiring a security clearance.” Stehney, 101 F.3d at 936

(citing Egan, 484 U.S. at 528). 

18

(citing Webster, 486 U.S. at 603-04). In concluding that Article 4

III jurisdiction existed, we stressed that Stehney was not asking

for review of the merits of the NSA’s revocation, but instead

sought review of the constitutional claims arising from the

NSA’s decision to revoke her clearance. Stehney, 101 F.3d at

932. 

This Court drew a similar distinction in Makky. In that

case, we exercised jurisdiction over a mixed-motive Title VII

claim challenging a security clearance revocation. Citing

Stehney, we emphasized the “distinction between challenging

the merits of a clearance revocation and challenging the

revocation process,” noting our authority over the latter but not

the former. Makky, 541 F.3d at 212-13. We reviewed the

plaintiff’s claim on the merits, but were careful to note in doing

so that we could not “question the motivation behind the

decision to deny Makky’s security clearance.” Id. at 213. 

In light of Egan, Webster, Stehney, and Makky, we

conclude that the District Court had jurisdiction over ElGanayni’s allegations that constitutional violations occurred in

the process of revoking his security clearance. In Count I, ElGanayni claims that the decision to suspend and then revoke his
19

security clearance was made in retaliation for the exercise of his

First Amendment rights to freedom of speech and religion. In

Count II, he asserts that the decisions to suspend and revoke his

security clearance were based on his religion and national origin.

Read in the light most favorable to El-Ganayni, Counts I and II

both assert “constitutional claims arising from the clearance

revocation process.” Stehney, 101 F.3d at 932. Like Stehney,

El-Ganayni does not ask us to restore his security clearance. He

only seeks review of his claim that an agency violated his

constitutional rights in the process of revoking his clearance,

and at most, a new hearing concerning that clearance. While we

cannot review the merits of the decision to revoke El-Ganayni’s

security clearance, Stehney requires us to exercise jurisdiction

over El-Ganayni’s constitutional claims and review them to the

extent that we can do so without examining the merits of that

decision. See Stehney, 101 F.3d at 932 (noting that “to the

extent that Stehney seeks review of whether NSA . . . violated

her constitutional rights,” she presented a justiciable claim, but

emphasizing that there could be no review of the merits of the

clearance revocation). See also Makky, 541 F.3d at 213

(reviewing plaintiff’s Title VII claim but stating that the court

was powerless to “question the motivation behind the decision”

to deny plaintiff a clearance). Thus, the District Court erred in

dismissing Counts I and II for lack of jurisdiction. Nevertheless,

we will affirm the dismissal of Counts I and II because they fail

to state a claim upon which relief can be granted. 
20

B. 

As noted, Count I is a First Amendment retaliation claim.

To state a prima facie case of retaliation, El-Ganayni must show

(1) “that his conduct was constitutionally protected” and (2) that

“his protected activity was a substantial or motivating factor in

the alleged retaliatory action.” Ambrose v. Twp. of Robinson,

303 F.3d 488, 493 (3d Cir. 2002). The DOE may defeat his

prima facie case by “showing that it would have taken the same

action even in the absence of the protected conduct.” Id.

(quoting Bd. of County Comm’rs v. Umbehr, 518 U.S. 668, 675

(1996)). 

El-Ganayni could easily establish that the political and

religious speech that allegedly led to the revocation of his

clearance was constitutionally protected. It is the second

element of his prima facie case that is problematic. Proving that

El-Ganayni’s political speech was “a substantial or motivating

factor” in the decision to revoke his clearance would inevitably

require review of the merits of the DOE’s decision. There is

simply no way to prove or disprove what was—or perhaps more

importantly for this case, what was not—a “substantial or

motivating factor” in the decision to revoke El-Ganayni’s

clearance without demanding some explanation of that decision

from the DOE. It would require discovery of DOE officials and

documents concerning the various “factors” that led to the

decision to revoke the clearance, and scrutiny of those factors to

determine which were “substantial” or “motivating.” Id. We
21

can discern no difference between that inquiry and the review of

the merits that is forbidden by Egan. Indeed, El-Ganayni never

explains how he could succeed on Count I without reviewing the

merits. Just the opposite; he admits that reviewing the merits is

exactly what he seeks to do. He claims that the DOE’s

invocation of national security was pretextual, and that the real

reasons would prove to be violative of his constitutional rights.

He argues that: 

[A]lthough a review of the DOE’s action may

entail an examination of the basis for [its]

decisions, it does not follow that the Court must

second-guess the DOE’s exercise of predictive

judgment. The purpose of this lawsuit is to

ensure that [the] DOE’s actions are indeed based

on such predictive judgment and not based on

discriminatory animus. If it is determined that

[the] DOE’s actions . . . were constitutionally

permissible (not based on constitutionallyprohibited rationale) then no further review . . . is

necessary.

Appellant’s Br. at 29-30. In other words, El-Ganayni argues

that the DOE need not tell him why it revoked his clearance, but

it must tell him that it really did so based on national security

and not as a pretext for discrimination. This argument fails. ElGanayni gives away the game when he concedes that his

constitutional claims “may entail an examination of the basis for
22

DOE’s decisions.” This admission is fatal. An “examination of

the basis” of the DOE’s decision to revoke El-Ganayni’s

clearance is precisely what Egan forbids. See Egan, 484 U.S.

at 529-30 (explaining that “an agency head who must bear the

responsibility for the protection of classified information . . .

should have the final say in deciding whether to repose his trust”

in a particular person); Stehney, 101 F.3d at 932; Dorfmont, 913

F.3d at 1401. 

The Ninth Circuit rightly rejected an argument similar to

El-Ganayni’s in Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193

(9th Cir. 1995). In Brazil, the plaintiff sued the Navy under

Title VII after his security clearance was revoked. He argued

that his Title VII claim did “not require the court to determine

whether the Navy’s reasons for revoking his clearance were

valid; it merely require[d] a determination of whether the

proffered reasons were the actual reasons.” Brazil, 66 F.3d at

197. The Ninth Circuit rejected this attempt to escape Egan by

claiming pretext, for reasons that are equally applicable here: 

The more valid a reason appears upon evaluation,

the less likely a court will be to find that reason

pretextual; the converse is also true. Even when

the court faces independent evidence of a

discriminatory motive, it is still necessary to

weigh the validity of the defendant’s proffered

reasons when deciding if they are pretextual. In

short, the merit of such decisions simply cannot
 We need not and do not decide what would happen if 5

the Secretary of Energy instead averred that he did, in fact,

revoke El-Ganayni’s clearance based on some criterion that

appeared constitutionally suspect, such as El-Ganayni’s religion.

 

23

be wholly divorced from a determination of

whether they are legitimate or pretextual. 

Id. at 197. 

Additionally, we note that even if El-Ganayni could

somehow make out the prima facie case for his First

Amendment claim, the DOE’s right to defend itself against that

claim also raises problems under Egan. If El-Ganayni made out

his prima facie case, DOE could theoretically still prevail by

proving that it would have taken the same action even in the

absence of El-Ganayni’s religious and political speech.

Ambrose, 303 F.3d at 493. That would inevitably require the

DOE to explain in detail its decision to revoke El-Ganayni’s

clearance, or at least submit an affidavit stating that it did not

revoke El-Ganayni’s clearance because of his protected speech.5

But because of Egan, no court could ever force the DOE to do

so. Furthermore, even if the DOE chose to offer a nondiscriminatory explanation for its decision to revoke ElGanayni’s clearance, a factfinder would then have to assess the

plausibility of that explanation to decide whether the

government met its “burden” under step three. Weighing the
24

strength of the government’s arguments against El-Ganayni’s

claims of pretext would amount to a judgment on the merits of

the decision to revoke El-Ganayni’s clearance. This too would

violate Egan. See Brazil, 66 F.3d at 197. For reasons of

“institutional competence, separation of powers, and deference

to the Executive on national security matters,” Stehney, 101 F.3d

at 932, the decision to deny a security clearance is left to the sole

discretion of the Executive branch. The Secretary of Energy,

who serves as a trustee of the presidential power over

information critical to national security, simply cannot be

ordered to justify his decisions in this area, nor can his

justifications be subjected to weighing and second-guessing by

a “nonexpert outside body” such as a factfinder in a federal

court. Egan, 484 U.S. at 529. 

We conclude that Count I was properly dismissed

because El-Ganayni cannot prevail on his First Amendment

claim. The legal framework applicable to that claim would

demand from the DOE an explanation of its decision to revoke

El-Ganayni’s clearance, and allow a factfinder to weigh the

DOE's arguments in support of that decision. Egan forbids both.

Put another way, El-Ganayni’s claim could never be

meaningfully litigated; the outcome is pre-ordained. Whatever

else happened, the DOE would always prevail because of Egan.

In short, we believe that Egan presents an “insuperable bar to

relief” on Count I. See Benton v. Merrill Lynch & Co., 524 F.3d

866, 870 (8th Cir. 2008) (explaining that dismissal for failure to

state a claim is appropriate where an “insuperable bar to relief”
25

is evident from the face of the complaint); 5B Wright & Miller,

Federal Practice & Procedure § 1357 (3d ed. 2004) (same).

Therefore, Count I was properly dismissed because it failed to

state a claim upon which relief could be granted. See Port

Authority of N.Y. & N.J. v. Arcadian Corp., 189 F.3d 305, 312

(3d Cir. 1999) (stating dismissal under Rule 12(b)(6) is

appropriate where “a complaint states a claim based upon a

wrong for which there is clearly no remedy, or a claim which the

plaintiff is without right or power to assert and for which no

relief could possibly be granted”) (emphasis added). 

El-Ganayni’s equal protection claim under the Fifth

Amendment fails for similar reasons. This court would apply

the McDonnell Douglas-Burdine burden-shifting framework to

that claim. See, e.g., Rode v. Dellaciprete, 845 F.2d 1195, 1205

(3d Cir. 1988) (applying McDonnell Douglas framework to

equal protection claim); Stewart v. Rutgers, 120 F.3d 426, 431-

32 (3d Cir. 1997) (applying framework to claim of racial

discrimination in employment). Under that framework, to prove

that the decision to suspend and revoke his security clearance

was based on his religion and national origin, El-Ganayni would

have to first establish a prima facie case of discrimination by a

preponderance of the evidence. Stewart, 120 F.3d at 432. The

burden would then shift to the DOE to come forward with a

non-discriminatory explanation for its decision. Id. Finally, ElGanayni could offer evidence demonstrating that the DOE’s

non-discriminatory explanation was a pretext. Id. 
26

Count II fails because the legal framework governing that

claim, like the framework governing Count I, would inevitably

involve scrutiny of the merits of the DOE’s decision to revoke

El-Ganayni’s clearance. Even assuming that El-Ganayni could

establish his prima facie case, neither the second nor third steps

could proceed without running headlong into Egan. As

explained above, neither El-Ganayni nor a court could compel

the DOE to offer a “non-discriminatory explanation” for its

decision to revoke El-Ganayni’s clearance. The DOE cannot be

held to a “burden” to justify the decision to revoke El-Ganayni’s

clearance under the McDonnell Douglas-Burdine framework

because the DOE has no duty to justify that decision, period. It

is beyond judicial review. For similar reasons, El-Ganayni

could never establish that the DOE’s national security

explanation was a pretext for a discriminatory motive. He could

never gather the evidence necessary to prove that claim, and

even if he could, no fact finder could be permitted to weigh the

merits of the DOE’s decision to decide whether it was a pretext.

Egan forbids it. See Brazil, 66 F.3d at 197. Thus, as with

Count I, Egan stands as an “insuperable bar” to relief on Count

II, and it must be dismissed for failure to state a claim. See

Benton, 524 F.3d at 870; Port Authority of N.Y. & N.J., 189 F.3d

at 312.

IV. 

In Count III, El-Ganayni alleges due process violations

and violations of the APA, both arising from the DOE’s alleged
In any event, such a claim would be meritless. The 6

“requirements of due process do not apply unless [the plaintiff]

can first show that [he] has a cognizable liberty or property

interest in his security clearance.” Dorfmont, 913 F.2d at 1403;

Jamil, 910 F.2d at 1209 (affirming summary judgment for

defendants on due process claim because no cognizable liberty

or property interest was at stake). No one, including ElGanayni, has a right to a security clearance, and “[w]here there

is no right, no process is due under the Constitution.” Dorfmont,

913 F.2d at 1403. 

27

failure to follow its own regulations in revoking his clearance.

At the outset, we note that there is no dispute as to the court’s

jurisdiction over the allegations in Count III. The government

concedes, as it must, that the APA grants federal courts “the

power to review whether an agency followed its own regulations

and procedures during the revocation process.” Stehney, 101

F.3d at 932. 

Count III of El-Ganayni’s complaint references both the

Due Process Clause of the Fifth Amendment and the APA. To

the extent Count III alleged a due process violation, El-Ganayni

abandoned that claim at oral argument. All that remains of 6

Count III, then, is El-Ganayni’s claim under the APA that the

DOE failed to follow its own regulations, 10 C.F.R. §§ 710.1-

710.36 (the “Regulations”), and Executive Order 12968 in

revoking his clearance. The District Court disagreed, as do we.

Because the DOE followed the applicable Regulations and
28

Executive Orders in revoking El-Ganayni’s clearance, Count III

fails to state a claim and was properly dismissed. 

A. 

 In reviewing the DOE’s actions in this case, we note that

we owe “great deference” to the DOE’s interpretation of

Executive Order 12968 because the DOE has been charged with

administering that Order. See Udall v. Tallman, 380 U.S. 1, 16

(1965). Similarly, we will “give substantial deference to an

agency’s interpretation of its own regulations,” Thomas

Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994), and must

accept the agency’s interpretation as “controlling” unless it is

“plainly erroneous or inconsistent with the regulation.” Id.; see

also Morrison v. Madison Dearborn Capital Partners, 463 F.3d

312, 315 (3d Cir. 2006). 

El-Ganayni argues that the DOE’s interpretations of the

relevant Executive Orders and Regulations are not entitled to

deference because its interpretations raise “serious constitutional

concerns.” Appellant’s Reply Br. at 11. El-Ganayni does not

state which of his constitutional rights would be violated by the

Agency’s interpretations, but presumably, he is arguing that he

has a due process right to review under the Regulations. This

argument conflates El-Ganayni’sstatutory rights under the APA

and his constitutional rights. El-Ganayni may have a right under

the APA to judicial review of whether the DOE “followed its

own regulations and procedures during the revocation process,”
29

Stehney, 101 F.3d at 932, but he has no due process right to a

security clearance. Id. at 936. Therefore, even if we were to

accept his argument that an agency interpretation that raises

“serious constitutional concerns” is not entitled to deference,

that rule would not be applicable here. 

B. 

The Regulations implemented two Executive Orders.

The first was Executive Order 10865, titled “Safeguarding

Classified Information within Industry.” See 10 C.F.R. §

710.1(b). Issued in 1960, it describes certain minimum

procedures required in clearance revocation proceedings. See

Exec. Order 10865 §§ 3-5, 25 Fed. Reg. 1583 (Feb. 20, 1960).

The Order also preserves the authority of the head of an agency

to bypass any procedure otherwise provided under the Order, if

he determines that such procedures “cannot be invoked

consistently with the national security.” Executive Order 10865

§ 9. The agency head’s determination that the use of such

procedures is inconsistent with national security is “conclusive.”

Id. 

The second Executive Order implemented by the

Regulations was Executive Order 12968. That Order establishes

“a uniform Federal personnel security program for employees”

under consideration for security clearances. Exec. Order 12968,

Preamble, 60 Fed. Reg. 40245 (Aug. 2, 1995). Section 5.2(a) of

the Order grants certain procedural rights to individuals who are
30

denied security clearances. Among those are the right to a

written explanation of the basis for the denial of a clearance; the

right to request certain documents upon which a denial is based;

the right to representation, at the individual’s own expense,

during revocation proceedings; the right to reply in writing to a

revocation decision; the right to appeal that decision; and the

right to appear personally before the agency and present

evidence. See Exec. Order 12968 § 5.2(a)(1)-(7). Section 5.2(c)

orders agency heads to issue regulations to implement the

procedures described in Section 5.2(a). Exec. Order 12968 §

5.2(c). Despite Section 5.2(a)’s provision of what appears to be

generous procedural rights, Section 5.2(d) of the Order reserves

agency heads’ broad power to bypass those procedures. Under

Section 5.2(d), “when the head of an agency or principal deputy

personally certifies that a procedure set forth in this section

cannot be made available in a particular case without damaging

the national security interests of the United States . . . the

particular procedure shall not be made available.” Exec. Order

12968 § 5.2(d). A certification under Section 5.2(d), like the

comparable certification available under Section 9 of Executive

Order 10865, is “conclusive.” Id. Similarly, Section 5.2(e)

clarifies that nothing in Section 5.2(a) limits the authority of the

head of an agency to deny or revoke a security clearance

“pursuant to any law or other Executive Order,” if the agency

head determines that the procedures described in Section 5.2(a)

“cannot be invoked in a manner that is consistent with national

security.” Executive Order 12968 § 5.2(e). If the agency head

makes such a determination, that too is “conclusive.” Id. 
31

As noted, the DOE has implemented Executive Orders

10865 and 12968 through regulations found at 10 C.F.R. § 710

et seq. The Regulations provide, inter alia, that an individual

whose clearance is under review has the right to be represented

by a person of his choosing; the right to present evidence on his

own behalf; and the right to cross-examine witnesses, where

possible. See 10 C.F.R. § 710.26(a)-(d). Despite their

provision of extensive procedural protections, the Regulations

do not purport to alter the Secretary of Energy’s authority over

security clearances. By their own terms, the Regulations do not

limit the Secretary of Energy’s “responsibility and powers . . . to

. . . revoke access to restricted data, national security

information, or special material” to the extent otherwise

permitted by law. 10 C.F.R. § 710.31(c). Thus, as long as the

Secretary of Energy has some valid source of authority for

revoking a clearance, he may do so consistent with the

Regulations. 

El-Ganayni’s clearance was permanently revoked by the

Bodman Certification on November 24, 2008. It is undisputed

that he did not receive the full procedural protections prescribed

by Section 5.2(a) and the Regulations. The Bodman

Certification cited Executive Order 10865 § 9 and Executive

Order 12968 § 5.2(d) as authority for bypassing those

procedures. Secretary Bodman certified: 

In accordance with Section 9 of the Executive

Order 10865 . . . and Section 5.2(d) of Executive
32

Order 12968 . . . I certify that the procedures set

forth in Section 3, 4, and 5 of Executive Order

10865, in Section 5.2(a) of the Executive Order

12968, and in the [DOE] regulations at 10 C.F.R.

§ 710.26-710.30 cannot be made available to Dr.

El-Ganayni without damaging the interests of

national security by revealing classified

information. This certification is conclusive. 

The certification also stated that the procedures

contemplated by Section 5.2(a) could not be “invoked in a

manner . . . consistent with national security,” pursuant to

Section 5.2(e). Finally, the certification revoked El-Ganayni’s

clearance without further process, also pursuant to Section

5.2(e). Because Section 5.2(e) requires some “other law or

Executive Order” to authorize the revocation of a clearance, the

Bodman Certification cited 42 U.S.C. § 2165 as authority to

terminate “El-Ganayni’s access to classified information in the

interest of national security.” 

We conclude that the Bodman Certification properly

revoked El-Ganayni’s security clearance under Section 5.2(e) of

Executive Order 12968. To do so, Secretary Bodman was

required to (1) determine that the usual security clearance

procedures could not be “invoked in a manner that is consistent

with national security” under (2) “any law or other Executive

Order” that grants the power to revoke security clearances.

Exec. Order 12968 § 5.2(e). The Secretary satisfied both of
 Although the Bodman Certification does not specify, it 7

appears that Secretary Bodman relied upon Section 2165(a).

Section 2165(a) provides as follows: 

No arrangement shall be made under section 2051

of this title, no contract shall be made or

continued in effect under section 2061 of this

title, and no license shall be issued under section

2133 or 2134 of this title, unless the person with

whom such arrangement is made, the contractor

or prospective contractor, or the prospective

licensee agrees in writing not to permit any

individual to have access to Restricted Data until

the Director of the Office of Personnel

Management shall have made an investigation and

report to the Commission on the character,

associations, and loyalty of such individual, and

the Commission shall have determined that

permitting such person to have access to

Restricted Data will not endanger the common

33

those requirements here. First, as required by Section 5.2(e),

Secretary Bodman determined that El-Ganayni’s security

clearance proceedings could not continue without damaging the

interests of national security by revealing classified information.

That determination was “conclusive.” Exec. Order 12968 §

5.2(e). Second, the Secretary cited 42 U.S.C. § 2165 as a “law

or other Executive Order” empowering him to revoke ElGanayni’s clearance. El-Ganayni contends that this was 7
defense and security.

42 U.S.C. § 2165(a) (2006). 

34

invalid, because 42 U.S.C. § 2165 does not pertain to security

clearance revocations. Section § 2165(a) does discuss the

DOE’s authority to revoke security clearances, in that it requires

an agency to determine that permitting a contractor to have

access to Restricted Data “will not endanger the common

defense and security.” 42 U.S.C. § 2165(a). We need not

decide whether Section 2165 was an appropriate authority,

however, because in any case Article II of the Constitution is

clearly a source of “law” permitting the revocation of ElGanayni’s security clearance. See Egan, 484 U.S. at 527 (citing

U.S. Const. art. II, § 2). Egan makes clear that under the

Constitution, the President, and by extension his designees in the

Executive branch, have the authority to “control access to

information bearing on national security, and to determine

whether an individual is sufficiently trustworthy to [merit] . . .

access to such information[.]” Id. This authority exists by

virtue of the “constitutional investment of power in the

President and exists quite apart from any explicit congressional

grant.” Id. Regardless of whether Section 2165 empowered

Secretary Bodman to revoke El-Ganayni’s clearance, Article II

clearly did, so the revocation of El-Ganayni’s clearance was not

inconsistent with Section 5.2(e). 
35

We further conclude that Secretary Bodman properly

invoked Section 5.2(d) to bypass the procedures described in

Section 5.2(a) and the Regulations. Section 5.2(d) allows the

Secretary to suspend a procedure otherwise provided by

Executive Order and regulation, by certifying that it “cannot be

made available in a particular case without damaging the

national security interests of the United States.” That

certification is conclusive. Exec. Order 12968 § 5.2(d).

Certifying that the usual procedures could not be made available

due to national security concerns is precisely what Secretary

Bodman did in El-Ganayni’s case. 

El-Ganayni raises two arguments against the Secretary’s

reliance on Sections 5.2(d) and 5.2(e). First, he argues that the

Regulations supersede Executive Order 12968, and in particular,

the authority described in Sections 5.2(d) and (e). According to

El-Ganayni, the Regulations were the DOE’s official

interpretation and implementation of Executive Order 12968,

and they contain nothing implementing Section 5.2(d) and (e).

Therefore, he contends, Sections 5.2(d) and (e) have been

supplanted by the Regulations and are no longer effective. ElGanayni argues that if the Secretary of Energy wanted to

preserve his broad powers under Sections 5.2(d) and (e), he

should have explicitly incorporated those powers into the

Regulations. 

El-Ganayni’s argument is not persuasive. Nothing in the

language of the Regulations suggests that they superseded
 Nor does anything in the Regulations suggest that they 8

were intended to affect the Secretary’s powers under Executive

Order 10865. 

 The Executive Order is a delegation of inherently 9

executive authority by the President to another member of the

Executive Branch. See 3 U.S.C. § 301 (authorizing the

President to delegate executive functions to the head of

agencies). An agency head is bound by the terms of that

delegation. See Myers v. United States, 272 U.S. 52, 132-34

(1926) (noting that agency heads are subject to Presidential

control in execution of delegated authority and can be removed

for failure to follow Presidential orders). The Order, by its own

terms, is “effective immediately” as of its issuance. Exec. Order

12968, § 7.2(f). The delegation of executive authority to the

Secretary, including the authority to revoke security clearances

36

anything in Executive Order 12968. To the contrary, the 8

Regulations state that “[n]othing in these procedures shall be

deemed to limit or affect the responsibility and powers of the

Secretary . . . to deny or revoke access to Restricted Data [or]

national security information” under any other law or Executive

Order. 10 C.F.R. § 710.31(c). Even though the Regulations did

not explicitly incorporate the language of Section 5.2(d) or (e),

they did not purport to supersede those provisions either. The

Regulations explicitly left undisturbed the Secretary’s preexisting authority over clearances, including his authority to

revoke those clearances under Section 5.2(d) and (e) where

required by national security. In short, nothing in the 9
under Section 5.2(d) and (e), was therefore immediately

effective irrespective of the promulgation of the implementing

regulations.

37

Regulations precludes the Secretary from invoking Sections

5.2(d) and (e), so Secretary Bodman’s reliance on those

provisions in revoking El-Ganayni’s clearance did not violate

the Regulations or the APA. 

Second, El-Ganayni argues that the Bodman Certification

improperly bypassed all of the Section 5.2(a) procedures, in

violation of the plain language of Section 5.2(d). He notes that

Section 5.2(d) refers to the Secretary’s authority to deny “a

procedure” set forth in Section 5.2(a), upon a finding that “the

particular procedure” cannot be utilized without damaging

national security. According to El-Ganayni, the references in

Section 5.2(d) to individual procedures means that Section

5.2(d) cannot be used, as it was in the Bodman Certification, to

effect a blanket denial of all of the Section 5.2(a) procedures.

He contends that Section 5.2(d) requires the DOE to certify that

each particular procedure under Section 5.2(a) cannot be made

available, and explain that conclusion to the hearing officer. We

disagree. Under Section 5.2(d), the Secretary need only state

that a “procedure set forth in this section” cannot be made

available. As the District Court correctly noted, this

certification does not require any particular degree of specificity.

Here, Secretary Bodman certified that the procedures set forth

in Executive Order 10865, Section 5.2(a) of Executive Order
38

12968, and the regulations at 10 C.F.R. § 710.26—710.30 could

not be made available to El-Ganayni in a manner consistent with

national security. While Bodman did not list each and every

procedure available under each of those provisions, we are

satisfied that his identification of the procedures that could not

be used was sufficient to satisfy Section 5.2(d). Essentially, the

Secretary construed a singular term in Section 5.2(d)—“the

particular procedure”—as also encompassing the plural, i.e., all

of the procedures enumerated in Section 5.2(a). We cannot say

that this interpretation of Section 5.2(d) was “plainly

erroneous.” See Udall, 380 U.S. at 17-18. 

Accepting as true all of the factual allegations in ElGanayni’s complaint, we conclude that his security clearance

was revoked in accordance with Executive Order 12968 and

DOE regulations. Therefore, Count III fails to state a claim

under the APA, and was properly dismissed by the District

Court. 

V.

For the foregoing reasons, we will affirm the judgment

of the District Court.