United States Third Circuit

In plaintiff's suit against the Department of Energy (DOE) and its Acting Deputy Secretary claiming that the revocation of his security clearance and his subsequent termination was based on his political speech and because he is a Muslim, in violation of the U.S. Constitution and the Administrative Procedure Act (APA), dismissal of his claims is affirmed where: 1) the district court erred in dismissing plaintiff's First Amendment claim for lack of jurisdiction but it nevertheless is affirmed for failure to state a claim upon which relief can be granted because the legal framework applicable to that claim would demand from the DOE an explanation of its decision to revoke his clearance, plus allow a factfinder to weigh the DOE's arguments in support of that decision, and prior case law forbids both; 2) plaintiff's equal protection claim under the Fifth Amendment fails for a similar reason; and 3) plaintiff's claims of due process violations and violations of the APA were properly dismissed for failure to state a claim as plaintiff's security clearance was revoked in accordance with Executive Order 12968 and DOE regulations.

Appellate Information

• Argued 10/28/2009
• Decided 01/11/2010
• Published 01/11/2010

Judges

• Before SMITH, FISHER, and STAPLETON, Circuit Judges.

Court

• United States Third Circuit

Counsel

• For Appellant:
  
• George E. McGrann, Paul H. Titus, Keith E. Whitson (argued), Schnader Harrison Segal & Lewis, Pittsburgh, PA, Witold J. Walczak, American Civil Liberties Union, Pittsburgh, PA, for Appellant.


• For Appellees:
  
• Thomas M. Bondy, Beth S. Brinkmann (argued), United States Department of Justice, Washington, DC, Marcia Sowles, United States Department of Justice, Civil Division, Washington, DC, for Appellee.