Kaiser GILL, Appellant v. UNITED STATES DEPARTMENT OF JUSTICE and Federal Bureau of Investigation, Appellees, 875 F.3d 677

Concurring opinion filed by Circuit Judge Tatel. PER CURIAM. The Federal Bureau of Investigation revoked appellant Kaiser Gill’s security clearance after he, while employed as a special agent,'' conducted unauthorized searches of a Bureau database. Gill filed suit,' alleging that the revocation of his security clearance violated the equal protection and due process clauses of the Constitution, ' as well as the Foreign Intelligence Surveillance Act. The district court concluded that Gill’s claims failed or were otherwise barred and dismissed the case.

Although following a slightly different path, we reach the same destination and affirm. I. A decorated veteran and Pakistani immigrant, Kaiser Gill worked for the Federal'Bureau of Investigation (FBI) as a special agent until 2006, when the Bureau revoked his security clearance after he conducted unauthorized searches óf its Automated Case Support system.

Gill sought review of this decision with the Department of Justice’s Access Review Committee (ARC), where he admitted his misconduct and, claiming that the “risk of him engaging in similar misconduct ... was miniscule,” asked that he be given “another opportunity to perform his duties as an FBI agent.” Memorandum from Mari Barr Santangelo, ARC Chair, to Alex J. Turner, Assistant Director, FBI Security Division, at 4 (Apr. 2, 2014) (“ARC Opinion”).

Although the ARC recognized Gill’s-remorse, it emphasized that his “admitted misconduct in accessing sensitive information for personal reasons ... raise[d] straightforward concerns regarding his ability to safeguard classified information.” Id, Citing applicable , guidelines requiring that any doubt be resolved in favor -of national security, the ARC affirmed the FBI’s revocation of Gill’s security clearance. Gill filed a six-count complaint against the FBI and Department of Justice in the U.S. District Court for the District of Columbia.

Gill contended that the FBI violated the Foreign Intelligence Surveillance Act (FISA) by introducing evidence in the ARC hearings that it obtained through undisclosed FISA-authorized surveillance (Count Three). See 50 U.S.C. § 1806(c) (requiring disclosure of “any information obtained ... pursuant to the authority of this subchapter” when used as evidence in certain proceedings).

Gill also alleged that his due process rights were infringed by the FISA violation (Count Two), by the fact that it took the ARC five years to issue its decision (Count Six), and by the ARC’S treatment in that decision of his naturalized family members as “foreign influence[s]” (Count Four). Compl. ¶ 78. Finally, Gill contended that the government denied him equal protection both by treating his family members as foreign influences (Count Five) and by treating him, a Muslim, differently from non-Muslims guilty of similar misconduct (Count One).

The government moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), asserting several defenses, including that under the Supreme Court’s decision in Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), federal courts lack authority to review challenges to agency revocations of security clearances. Finding Gill’s various claims either meritless or barred, the district court granted the government’s motion and dismissed the complaint. Gill appeals, reiterating the arguments he advanced in the district court. Our review is de novo.

American National Insurance Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (applying de novo standard to district court dismissal under Rule 12(b)(1)); King v. Jackson, 487 F.3d 970, 972 (D.C. Cir. 2007) (applying de novo standard to district court dismissal under Rule 12(b)(6)). II. We begin with Gill’s claim that the FBI violated FISA. Under that statute, the Attorney General may, in certain circumstances, authorize electronic surveillance without court order. 50 U.S.C. § 1802.

But before information obtained through such surveillance may be used in any “trial, hearing, or other proceeding,” FISA requires that the surveilled person and the court (or other authority) be notified. Id. § 1806(c). In this case, Gill alleges that the FBI used information gained through FISA-authorized surveillance in the ARC proceeding without the required disclosure. The district court dismissed Gill’s FISA claim, explaining that “[t]here must be a valid waiver of the United States’ sovereign immunity for ...

Gill to bring claims against an agency of the United States,” and that he had identified “no [such] waiver.” Gill v. Department of Justice, No. 15-824, 2016 WL 3982450, at *7-8 (D.D.C. July 22, 2016). Challenging that decision, Gill relies on Clark v. Library of Congress, 750 F.2d 89 (D.C. Cir. 1984), in which our court recognized that “sovereign immunity does not bar suits against government officials where the challenged actions of the officials are unconstitutional or beyond the officials’] statutory authority,” id. at 103. Gill also invokes

Section 702 of the Administrative Procedure Act (APA), which operates as a waiver of sovereign immunity where, as here, the plaintiff seeks only injunctive relief. See 5 U.S.C. § 702. In the district court, however, Gill cited neither Clark nor the APA. Because Gill raises these two theories of sovereign immunity waiver for the first time on appeal, we decline to consider them. See Odhiambo v. Republic of Kenya, 764 F.3d 31, 35 (D.C. Cir. 2014) (holding that a new theory of sovereign immunity waiver, advanced for the first time on appeal, was forfeited).

We can just as quickly resolve Gill’s claim that the FBI’s revocation of his security clearance violated his rights under the due process clause. Conceding that he had no constitutionally protected property interest in his security clearance, Gill argues that the revocation infringed a liberty interest. Doe v. Cheney, 885 F.2d 898, 909-10 (D.C. Cir. 1989) (explaining that “no one has a right to a security clearance” but describing the conditions under which one may show that a liberty interest was violated by the revocation of a security clearance (internal quotation marks omitted)).

Gill and the government debate at length about whether Gill has stated a liberty interest. But we need not venture into that thicket because even if Gill has a protected liberty interest, he received all the process that was due: a full hearing before the ARC where he had the right to counsel and the opportunity to make his case. Id. at 910 (“[D]ue process entitle[s] [one] to a hearing in order to refute the charges against him and to clear his name.”).

Repurposing his FISA argument, Gill claims that the ARC proceeding could not have satisfied the requirements of due process because it was tainted by the alleged FISA violation. As the district court explained, however, “Gill’s misconduct was uncovered through a security unit interview, not electronic surveillance authorized by FISA.” Gill, 2016 WL 3982450, at *8 n.6. That is, “[t]he facts alleged in the Complaint and the [ARCJ’s decision state [that] ... Gill’s security clearance was revoked because ’...

Gill’s admitted misconduct in accessing sensitive information for personal reasons involving his family raises straightforward concerns regarding his ability to safeguard classified information and not disclose it for personal reasons.’ ” Id. (quoting ARC Opinion at 4). Gill also argues that the ARC proceeding failed to comply with principles of due process because the Committee based its decision on “the perceived foreign influence by [Gill’s] foreign bom relatives who are naturalized U.S. citizens” in violation of applicable guidelines. Appellant’s Br. 24. Gill misreads the ARC decision.

Although the ARC does mention Gill’s “ties to his foreign-born relatives,” that reference appears in its synopsis of the FBI’s arguments. ARC Opinion at 4. In its own analysis, the ARC made no mention of Gill’s relatives. Id. Instead, it relied on the “straightforward concerns” Gill’s “admitted misconduct” raised regarding his trustworthiness. Id. Gill claims that the ARC proceeding violated due process for still another reason—the Committee took five years to issue its decision.

As our court has explained, however, an agency’s delay in issuing an otherwise valid decision does not offend principles of due process without some showing of harm caused by the delay. Zevallos v. Obama, 793 F.3d 106, 117 (D.C. Cir. 2015) (rejecting a due process challenge because plaintiff failed to show how “a faster pace would have changed [the] outcome”). According to Gill, his inability to “seek redress” in court for five years was “per se harmfful].” Appellant’s Br. at 26. But that is not so, as the only case Gill cites makes clear. See Barker v.

Wingo, 407 U.S. 514, 533-36, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (holding that a five-year delay between arrest and trial did not deprive the defendant of due process and explicitly eschewing a per se approach). We come now to Gill’s equal protection claims. Specifically, he argues that his equal protection rights were violated in two ways: because he received a harsher penalty for his admitted misconduct than non-Muslim agents who committed similar misconduct; and because the ARC treated his naturalized family; members “differently than native born [U.S.] citizens Compl. ¶ 93.

The government argues, that these claims are barred by Department of the Navy v, Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), where the Court held that the.Merit Systems, Protection Board had no authority to “review security-clearance determinations,” id. at 529-31, 108 S.Ct. 818. According to the government, this means that “outside, non-expert bodies,” including federal courts,' “cannot review Executive Branch judgments about whether specific individuals pose a risk to the national security.” Appellee’s Br. 14.

Gill. disagrees, insisting that “Egan does not apply to review of security clearance decisions on the basis that they have deprived an individual of their constitutional rights.” Appellant’s Br, 12. As interesting as this issue is, we need not reach.it because, even if Gill’s equal protection claims are not barred by Egan, they fail for other reasons. His claim that the ARC inappropriately took account of his family members’ foreign-born status rests, as we have explained, supra at 681-82, on a misreading of the Committee’s decision.

The ARC relied not on any concerns about Gill’s family, but rather on his “admitted misconduct” and the “straightforward concerns”-it raised regarding his trustworthiness. ARC Opinion at 4;. Gill’s second claim—that the FBI revoked his security clearance because he is Muslim—suffers from a different, equally fatal defect: Gill failed to raise it before the ARC. In.its decision, the Committee thoroughly summarized his arguments against affirmance—i.e., his remorse and request for mercy—and that

summary mentions no equal protection challenge. Moreover, nowhere in his complaint or briefing before this court has Gill alleged that the ARC ignored his constitutional challenges. Accordingly, Gill has forfeited this equal protection claim. “Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.” United States v. L.A.

Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952). III. For the foregoing reasons, we affirm the district court’s grant of the government’s •motion to dismiss. So ordered.