Abdel Moniem Ali El-Ganayni v. United States Department of Energy

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

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(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

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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 El-
Ganayni’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.,

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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

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Eid al-Fitr is a feast celebrating the end of Ramadan.1
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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. The1
superintendent refused to accept any money raised by El-

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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. El-
Ganayni 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

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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.

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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 o r 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,

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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

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The Bodman Certification was issued after this lawsuit2
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

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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

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“The Merit Systems Protection Board is an3
independent, quasi-judicial agency in the Executive branch that
serves as the guardian of Federal merit systems.” About MPSB,
M S P B . g o v ,
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 Board3

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http://www.mspb.gov/sites/mspb/pages/About%20MSPB.aspx
(last visited Nov. 30, 2009).
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proceedings, the Navy contended that the Board “did not have
the authority to judge the merits of the underlying security-
clearance 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

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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

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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]

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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

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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 non-
reviewable. 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.

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We also reiterated that Stehney had no “constitutionally4
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).
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(citing Webster, 486 U.S. at 603-04). In concluding that Article4
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 El-
Ganayni’s allegations that constitutional violations occurred in
the process of revoking his security clearance. In Count I, El-
Ganayni claims that the decision to suspend and then revoke his

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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.

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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

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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 constitutionally-
prohibited 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. El-
Ganayni gives away the game when he concedes that his
constitutional claims “may entail an examination of the basis for

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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

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We need not and do not decide what would happen if5
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.
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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 non-
discriminatory explanation for its decision to revoke El-
Ganayni’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

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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”

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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, El-
Ganayni could offer evidence demonstrating that the DOE’s
non-discriminatory explanation was a pretext. Id.

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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

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In any event, such a claim would be meritless. The6
“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 El-
Ganayni, 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 of6
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

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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’s statutory 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,”

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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

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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.

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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

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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

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Although the Bodman Certification does not specify, it7
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 El-
Ganayni’s clearance. El-Ganayni contends that this was7

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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 El-
Ganayni’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).

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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. El-
Ganayni 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

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Nor does anything in the Regulations suggest that they8
were intended to affect the Secretary’s powers under Executive
Order 10865.
The Executive Order is a delegation of inherently9
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, the8
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 pre-
existing 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 the9

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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

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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 El-
Ganayni’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.

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