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Gill v. United States Department of Justice

United States Court of Appeals, District of Columbia Circuit

November 14, 2017

Kaiser Gill, Appellant
United States Department of Justice and Federal Bureau of Investigation, Appellees

          Argued September 22, 2017

         Appeal from the United States District Court for the District of Columbia (No. 1:15-cv-00824)

          Faisal Gill argued the cause and filed the briefs for appellant.

          Charles W. Scarborough, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were H. Thomas Byron III and Jaynie Lilley, Attorneys. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

          Before: Rogers and Tatel, Circuit Judges, and Silberman, Senior Circuit Judge.


          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.


         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 of 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 (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)).


         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 official[s'] 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 ...

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