[00:00:00] Speaker 04:
The case number 16-5250, Kaiser Hill Appellant versus the United States Department of Justice et al.

[00:00:08] Speaker 00:
Mr. Hill for the appellant.

[00:00:09] Speaker 00:
Mr. Scarborough for the appellees.

[00:00:23] Speaker 03:
Good morning.

[00:00:25] Speaker 01:
Good morning, Your Honors.

[00:00:27] Speaker 01:
My name is Faisal Gillit.

[00:00:28] Speaker 01:
I am the counsel for the appellant, Kaiser Gill.

[00:00:33] Speaker 01:
Your Honor, it is simply not the case that all security clearance cases are immune from judicial review.

[00:00:39] Speaker 01:
Those are not my words.

[00:00:40] Speaker 01:
Those are the words of this court in National Federation of Federal Employees versus Greenberg.

[00:00:45] Speaker 01:
This case is not about second-guessing the decision of the executive.

[00:00:50] Speaker 01:
This case is about whether the FBI and Department of Justice violated Special Agent Kaiser-Gill's constitutional rights in making that decision.

[00:00:58] Speaker 01:
We are not here, if this case was about the merits, we would be before this court asking this court to determine whether Special Agent Gill's actions justified revocation of security clearance.

[00:01:10] Speaker 01:
That is not what we are asking here.

[00:01:12] Speaker 01:
And we do not believe that Egan prevents... Did you consider the McElroy case?

[00:01:19] Speaker 02:
I'm sorry, Your Honor.

[00:01:20] Speaker 02:
Did you consider the McElroy case?

[00:01:22] Speaker 01:
I'm sure we did, Your Honor.

[00:01:24] Speaker 01:
I don't recall that case at this particular time.

[00:01:27] Speaker 02:
Well, it seemed to me quite relevant.

[00:01:29] Speaker 02:
It's a Supreme Court case holding five to four in an opinion by Justice Stewart that the decision to bar a cook at a restaurant on the Naval Yard or in Washington

[00:01:49] Speaker 02:
was legitimate because the determination that she could not have a security clearance was not reviewable.

[00:02:01] Speaker 01:
Your Honor, there has been a line of cases where security clearance is not reviewable.

[00:02:04] Speaker 01:
The difference is whether there is a liberty interest at stake here.

[00:02:07] Speaker 02:
No, that was due process was exactly the argument in McElroy.

[00:02:12] Speaker 02:
That was the liberty interest at stake.

[00:02:15] Speaker 02:
That was the argument.

[00:02:17] Speaker 01:
Again, Your Honor, in Webster v. Doe, in other cases, this court has spoken in Carciva, in other cases, the liberty interest, if there is a liberty interest at stake, and if we're able to show that there is a liberty interest at stake.

[00:02:28] Speaker 02:
In McElroy, Justice Brennan wrote a very strong dissent.

[00:02:32] Speaker 02:
If you read the dissent and the Stuart opinion together, you reach the conclusion that if the government specifically stated that someone is denied a security clearance because

[00:02:44] Speaker 02:
he or she is a Muslim, let us say, or a Catholic, there might be an equal protection claim.

[00:02:52] Speaker 02:
But you cannot inquire beyond that.

[00:02:54] Speaker 02:
In other words, other than a facial claim that's based on a statement that could raise a constitutional question, you can't go into the denial of the security clearance.

[00:03:06] Speaker 01:
Your honor, this court has reviewed exactly such decisions in Carceva.

[00:03:10] Speaker 01:
This court has reviewed such decisions in Doe v. Cheney, in Ranger v. Tennant.

[00:03:17] Speaker 01:
In all those cases, there were security clearance issues, denials issued, and the court actually went and did the analysis of whether there was a liberty interest at stake.

[00:03:25] Speaker 02:
and in determining Doe v. Cheney as they set off the... But if you follow the McElroy case, which of course is the McElroy case... Yes, Your Honor.

[00:03:34] Speaker 02:
You can only raise such a thing if the statement is made that you're denied a security clearance and therefore you can't have the job because you're a Muslim or because you're a Catholic.

[00:03:48] Speaker 02:
But you can't go beyond that.

[00:03:50] Speaker 01:
Again, Your Honor, I would argue that this Court has done exactly that.

[00:03:54] Speaker 01:
In Kartsevo, the Court remanded the case back to the District Court for further proceedings to look to see what... What was the... Remind me what the facts were in that case.

[00:04:04] Speaker 01:
Your Honor, in Kartsevo, there was a Russian translator working at the Department of State whose security clearance was revoked.

[00:04:10] Speaker 01:
and the court did an analysis of whether there was a liberty interest of state.

[00:04:16] Speaker 01:
What was the claim in the case?

[00:04:18] Speaker 01:
There was a due process, Your Honor.

[00:04:20] Speaker 02:
What were the facts?

[00:04:22] Speaker 02:
What was the claim?

[00:04:22] Speaker 01:
Your Honor, it was a Russian transmitter.

[00:04:25] Speaker 02:
No, no, what was the claim?

[00:04:26] Speaker 02:
What was the reason given?

[00:04:29] Speaker 02:
Was there a statement made by the State Department?

[00:04:32] Speaker 01:
There was not a statement made by the State Department, Your Honor.

[00:04:34] Speaker 01:
There was a statement made that I believe that she had failed to disclose something on her security clearance application.

[00:04:43] Speaker 01:
And then as they were reviewing that, they had stated that they were going to remove her from a particular contract in the State Department.

[00:04:50] Speaker 01:
And this court wanted to do an analysis to see if it was just being removed from this particular contract, whether they were being removed from the Department of State.

[00:04:57] Speaker 01:
or whether she was being precluded from working as a Russian translator.

[00:05:02] Speaker 02:
Was there a denial of security clearance?

[00:05:05] Speaker 02:
That was the case, a denial of security clearance?

[00:05:09] Speaker 01:
Revocation of security clearance, Your Honor.

[00:05:11] Speaker 04:
I'm sorry.

[00:05:11] Speaker 04:
Mr. Gill.

[00:05:12] Speaker 04:
Yes, Your Honor.

[00:05:15] Speaker 04:
The government says in its brief that we don't even have to address the question of whether there's a liberty interest here.

[00:05:22] Speaker 04:
Because under our case law, your client got all the process that was due before the ARC got a hearing.

[00:05:31] Speaker 04:
And they cite our case in Cheney, which is exactly what we did there.

[00:05:35] Speaker 04:
And this is at page 35 of the government's brief.

[00:05:43] Speaker 04:
So you had a full hearing before the ARC.

[00:05:46] Speaker 04:
So even if there was a liberty interest, your client got all the process that was due.

[00:05:53] Speaker 04:
You didn't respond to that.

[00:05:55] Speaker 01:
Would you like to now?

[00:05:57] Speaker 01:
Yes, Your Honor, I believe we did.

[00:05:58] Speaker 01:
We were arguing that the hearing before- Did what?

[00:06:00] Speaker 01:
You did respond?

[00:06:01] Speaker 01:
I believe so, Your Honor.

[00:06:02] Speaker 01:
We responded by stating that the hearing before the ERC was not a full and fair hearing because of the FISA violation.

[00:06:09] Speaker 04:
No, that can't be right because, as the district court pointed out, the revocation of the security clearance did not

[00:06:19] Speaker 04:
turn on any evidence obtained from FISA.

[00:06:23] Speaker 04:
It turned only on evidence obtained during an interview where Mr. Gill conceded that he had improperly accessed FBI files.

[00:06:31] Speaker 04:
So that can't possibly be a basis for... Your Honor, we respectfully disagree with the District Court's determination.

[00:06:40] Speaker 04:
Why?

[00:06:41] Speaker 01:
the right after the arc, it was a six-year wait between.

[00:06:45] Speaker 04:
Am I right about arc?

[00:06:49] Speaker 04:
Before arc, Mr. Gill conceded that he had improperly accessed FBI files.

[00:06:54] Speaker 04:
He conceded it was wrong, and he basically threw himself on the mercy of the panel, right?

[00:07:00] Speaker 04:
That was it.

[00:07:01] Speaker 04:
And the panel said, correct me if I'm wrong, the ARC said,

[00:07:07] Speaker 04:
The FISA warrant is not relevant to whether or not there was a

[00:07:34] Speaker 01:
Again, Your Honor, I would respectfully disagree in the sense that the, if this case is allowed to continue on, and if we are allowed to get to the discovery phase, we will be able to demonstrate that there are other agents similar situated at Special Agent Gill who have accessed those same files, those same records, who have not had their security clearance revoked, who have not been terminated.

[00:07:56] Speaker 01:
The reason we believe that we did not

[00:07:58] Speaker 04:
We'll go ahead and finish and then we'll end.

[00:07:59] Speaker 01:
Your Honor, the reason we believe that we did not get a full hearing before the ARC is because we do believe the ARC considered information gained from a FISA wiretap without notifying Special Agent Kiel that they were going to consider that.

[00:08:13] Speaker 04:
You've made two points here.

[00:08:14] Speaker 04:
Let me go back to your first one.

[00:08:15] Speaker 04:
Yes, Your Honor.

[00:08:16] Speaker 04:
Let me go back to your first one.

[00:08:17] Speaker 04:
That is your argument that the FBI treated non-Muslims who improperly access FBI files differently from Muslims, right?

[00:08:30] Speaker 04:
Correct.

[00:08:31] Speaker 04:
So I looked pretty carefully in the record and I couldn't find it, but as far as I can tell,

[00:08:38] Speaker 04:
That argument was not made before the ARC.

[00:08:41] Speaker 04:
Am I right about that, or did you make that argument before the ARC?

[00:08:45] Speaker 01:
Your Honor, that argument was made before the ARC.

[00:08:47] Speaker 04:
Point to something in the record that tells me that.

[00:08:50] Speaker 01:
I couldn't find it.

[00:08:51] Speaker 01:
It's in our complaint.

[00:08:53] Speaker 04:
Well, your complaint alleges that that happened.

[00:08:56] Speaker 04:
Your complaint alleges that the FBI treats Muslims and non-Muslims differently with respect to accessing FBI files.

[00:09:09] Speaker 04:
That's in your complaint.

[00:09:11] Speaker 04:
But my question was, did you make that argument before the ARC?

[00:09:15] Speaker 04:
In other words, did you say to the ARC,

[00:09:18] Speaker 04:
look, one of the reasons you can't punish him is because the FBI doesn't treat non-Muslims this way, doesn't punish them this way, doesn't take away their security clearances.

[00:09:33] Speaker 04:
And I need to know, I could not find that argument.

[00:09:35] Speaker 04:
The only argument I could find in the record that Mr. Gil made before the ARC was

[00:09:44] Speaker 04:
basically a plea for mercy, that don't take away my security clearance.

[00:09:51] Speaker 04:
He didn't say, don't take away my security clearance because you haven't taken it away from non-Muslims.

[00:09:57] Speaker 04:
At least I couldn't find that in the record.

[00:10:00] Speaker 04:
Can you point to something in the record?

[00:10:02] Speaker 01:
Your Honor, I believe it's in my initial brief with the Department of Justice in response, motion of opposition.

[00:10:10] Speaker 01:
Wait, your what?

[00:10:11] Speaker 03:
Into what?

[00:10:12] Speaker 01:
To their motion to dismiss in the district court.

[00:10:15] Speaker 02:
He's asking you a question about the District Court.

[00:10:17] Speaker 02:
He's asking you a question about the administrative procedure before.

[00:10:21] Speaker 01:
No, and we did make it for the ARC, Your Honor.

[00:10:24] Speaker 01:
We presented a memo.

[00:10:26] Speaker 02:
Judge Tate will ask you for reference in the record to where you made that argument before the ARC.

[00:10:32] Speaker 03:
So you're saying you had a memorandum that you submitted to the ARC?

[00:10:38] Speaker 01:
Yes, Your Honor.

[00:10:39] Speaker 03:
And can we find that in the record?

[00:10:42] Speaker 03:
We did not attach that memorandum to the district court briefs or to the our initial complaint But before the ARC did you make the argument that you make in count two of your complaint?

[00:10:56] Speaker 03:
That because you did not have notice you were unable to present a full defense to the evidence when you appeared before the ARC and

[00:11:07] Speaker 01:
Your Honor, we couldn't make that argument because we did not know the ARC was considering wiretaps from a FISA warrant at that time.

[00:11:15] Speaker 01:
We only found out subsequent to that when the ARC and the chairperson of the ARC requested a memorandum from OLC

[00:11:24] Speaker 01:
asking whether FISA and warrants applied to the ARC or whether Section 106 of FISA applied to the ARC or if it was just judicial proceedings.

[00:11:35] Speaker 01:
And OLC opined that it did apply to ARC and people before the ARC if the government is going to use evidence gained from an NSA wiretap, FISA wiretap,

[00:11:47] Speaker 01:
then they have to notify.

[00:11:49] Speaker 01:
The reason we believe that that's so important is because one of the issues before the ARC and one of the reasons for his revocation is because he was accessing these, accessing these files for his family members.

[00:12:01] Speaker 03:
One of his family members... But based on his own admission?

[00:12:05] Speaker 01:
Correct, Your Honor.

[00:12:07] Speaker 03:
And I just need, Judge Tatel was pursuing that with you earlier.

[00:12:13] Speaker 01:
Your Honor, we're not disputing that Special Agent Gill, we have never disputed at all at the ARC or at any briefing stage that Special Agent Gill accessed those files.

[00:12:23] Speaker 01:
He made a bad judgment in accessing those records.

[00:12:26] Speaker 02:
Well, why is the FISA relevant at all?

[00:12:29] Speaker 02:
The information that came from FISA is the information that

[00:12:34] Speaker 02:
He concedes, I don't get it.

[00:12:35] Speaker 01:
Your Honor, the information from FISA is that one of the members of his family, me, was under a NSA warrant at the time.

[00:12:44] Speaker 01:
Having that information,

[00:12:48] Speaker 01:
Having knowing that a family member, his brother, is under a FISA warrant, we believe the significant information, and we do believe that that affected the ARC's decision.

[00:12:56] Speaker 01:
That's why the ARC sought an opinion afterwards.

[00:12:59] Speaker 01:
Had Special Agent Kill known of that fact, Special Agent Kill's defense would have been tailored to address... I still don't understand.

[00:13:07] Speaker 02:
If he conceded the very fact that came from, allegedly, the FISA warrant, why is it relevant?

[00:13:13] Speaker 02:
Well, he didn't concede the very fact, Your Honor.

[00:13:16] Speaker 02:
The issue, the fact... He conceded that he had improper access to the files of family, right?

[00:13:23] Speaker 01:
But if that was the only issue, Your Honor, his security clearance would not have been revoked, as we stated before the ARC, as I believe I stated in my motion.

[00:13:33] Speaker 01:
There are other agents who access similar records who access the FBI's file system for family members who were not, who didn't have their security clearance revoked.

[00:13:42] Speaker 01:
who were not terminated from the FBI.

[00:13:44] Speaker 01:
We believe Special Agent Gill was terminated and revoked because he is Muslim and because

[00:13:51] Speaker 01:
It certainly adds another issue for him to address if one of his family members is under an active FISA warrant.

[00:13:58] Speaker 01:
And that is, I think, the exact reason why Section 106 of the Act exists.

[00:14:05] Speaker 01:
If the government is going to use that evidence because it is highly prejudicial, it should at least notify the person that they're using it against that that is evidence that we're going to use.

[00:14:14] Speaker 01:
Otherwise, there would be no reason for Congress to put that section

[00:14:19] Speaker 01:
in there and government would not have to notify the person that they're planning to use evidence gained from that.

[00:14:25] Speaker 01:
We don't know what evidence was gained from that.

[00:14:28] Speaker 01:
We don't know what FISA considered.

[00:14:32] Speaker 01:
What we do know is that they, after the arc, if that evidence was not important,

[00:14:37] Speaker 01:
the ARC would not have sought an opinion from OLC to see if they needed to notify Special Agent Gill or not, if that was not relevant information for them as they're making their decision.

[00:14:49] Speaker 01:
Because they sought the opinion, we do believe that that was information that was important, and we do believe that had he known about it, he would have squarely addressed that issue of being under a wiretap.

[00:15:03] Speaker 01:
It is a prejudicial issue, and certainly, if you're deciding

[00:15:06] Speaker 01:
whether foreign influence is at play and one of your family members is under a NSA warrant, that is something that an ARC absolutely would consider.

[00:15:15] Speaker 01:
And without him knowing that they're considering that, that left him at a severe disadvantage in mounting an effective defense.

[00:15:23] Speaker 01:
That is why we believe the ARC procedure, ARC process was not meaningful.

[00:15:32] Speaker 03:
All right.

[00:15:32] Speaker 03:
Shall we hear?

[00:15:33] Speaker 03:
Yeah.

[00:15:35] Speaker 00:
The government.

[00:15:41] Speaker 00:
May it please the court, Charles Scarborough for the Department of Justice.

[00:15:43] Speaker 00:
I'm standing in for my colleague, Janie Lilly, who had a medical emergency yesterday morning.

[00:15:47] Speaker 00:
Yes, we appreciate that.

[00:15:48] Speaker 00:
So I'll do my best.

[00:15:49] Speaker 02:
Could you raise that podium a little, because you're too tall for the?

[00:15:52] Speaker 02:
OK, sure.

[00:15:53] Speaker 02:
Well, you can raise it, can't you?

[00:15:55] Speaker 02:
I'll let you to raise the entire.

[00:15:57] Speaker 00:
Oh, the whole thing?

[00:15:58] Speaker 03:
Where is that button?

[00:16:00] Speaker 03:
You'd think I would know.

[00:16:01] Speaker 03:
Oh, it doesn't work in here.

[00:16:03] Speaker 00:
It doesn't work in here.

[00:16:03] Speaker 00:
Oh, it's a long courtroom.

[00:16:04] Speaker 00:
Sorry.

[00:16:05] Speaker 00:
I'll do the best I can.

[00:16:07] Speaker 00:
You're just too tall.

[00:16:08] Speaker 04:
can you help us with this point about what was argued before the ARC?

[00:16:12] Speaker 03:
Yeah.

[00:16:13] Speaker 00:
I'm not aware of anything in the record that shows what was argued.

[00:16:17] Speaker 00:
Again, this was decided at a very preliminary stage, so we're working off basically the complaint and what was attached to the complaint, which includes the ARC's decision.

[00:16:24] Speaker 00:
And I want to focus on the ARC's decision because... I want to just be clear.

[00:16:29] Speaker 03:
Does the government read the complaint to raise a procedural due process issue as distinct from some aspects of the brief that suggest you're just dealing with it as a substantive due process claim because you argue that necessarily it goes to the merits of whether the security clearance should have been revoked or not?

[00:16:58] Speaker 00:
I think that is the gist of our argument, Your Honor, is that these due process claims and the constitutional claims in general are their repackaged statutory... I'm not sure it's a substantive due process.

[00:17:07] Speaker 02:
I think it's an equal protection claim.

[00:17:09] Speaker 00:
Well, the equal protection claim is... It's a good place to start because the equal protection claim is essentially just the type of claim that you would see under Title VII.

[00:17:17] Speaker 00:
It's a claim of discrimination based on national origin.

[00:17:19] Speaker 00:
religion, those sorts of things.

[00:17:21] Speaker 00:
And the district court said there are a lot of reasons why that claim was barred.

[00:17:25] Speaker 00:
One is that under GSA versus Brown, you know, Title VII is the exclusive remedy for that sort of claim.

[00:17:30] Speaker 04:
How can it be an exclusive remedy if you can't bring it?

[00:17:36] Speaker 04:
How can Title VII be an exclusive remedy if you can't bring a Title VII case?

[00:17:42] Speaker 04:
Oh no, Egan says you can't bring a Title VII case, so how can that be the exclusive remedy?

[00:17:48] Speaker 04:
And all of our cases on this are statutory cases, and many of them say constitutional claims are different.

[00:17:57] Speaker 00:
But I don't think the upshot of that is that because your statutory claim that you would normally bring under Title VII is barred by Egan, that you get to reconfigure and repackage it as a constitutional claim.

[00:18:08] Speaker 00:
The court in the 10th Circuit in the Hill case

[00:18:10] Speaker 00:
addressed this type of situation.

[00:18:11] Speaker 00:
He says, if Egan could be bypassed by simply invoking constitutional rights, it's hardly worth the effort.

[00:18:17] Speaker 00:
And that's the sort of the fundamental point throughout this, is that simply repackaging the claims as constitutional claims and then asserting, basically attacking the merits and the process by which the FBI, you know, undertook the security clearance review here and the, you know, the evidence it considered.

[00:18:35] Speaker 04:
I suppose the FBI revoked all security clearances for Muslim or say African-American agents.

[00:18:47] Speaker 04:
Could they not bring a constitutional challenge to that?

[00:18:50] Speaker 00:
Well, Your Honor, I think that what your hypothetical raises is the exception that this court has clearly recognized for challenges to policies, constitutional challenges to policies in the Greenberg case when we're not... Well, no, suppose there isn't a written policy.

[00:19:04] Speaker 04:
Suppose it's just a practice.

[00:19:06] Speaker 04:
Suppose they just routinely revoke them individually.

[00:19:11] Speaker 04:
Suppose someone, an agent whose security clearance is revoked, alleges in his complaint

[00:19:17] Speaker 04:
that this is part of a pattern of revoking security clearances for African Americans.

[00:19:27] Speaker 04:
That's what he's alleging here.

[00:19:29] Speaker 04:
He's alleging here, in his complaint, that the FBI treats Muslim special agents differently from non-Muslims.

[00:19:39] Speaker 04:
That's exactly what he's alleging.

[00:19:41] Speaker 00:
He's alleging that, and I think it's useful, as Your Honor started to do it.

[00:19:46] Speaker 04:
But stick with my hypothetical.

[00:19:47] Speaker 04:
Why isn't that?

[00:19:49] Speaker 04:
And you just conceded that you could bring such a case.

[00:19:52] Speaker 00:
I conceded that we're not quarreling with the Greenberg proposition that you can bring a constitutional claim to challenge a procedure.

[00:20:00] Speaker 00:
I think there is a distinction in the type of constitutional claim that goes and attacks the merits of an individualized security clearance determination.

[00:20:07] Speaker 00:
That is what's going on here.

[00:20:09] Speaker 00:
I want to start.

[00:20:09] Speaker 04:
No, no, no.

[00:20:10] Speaker 04:
His allegation is that non-Muslims are treated as a class or treated differently.

[00:20:17] Speaker 04:
That non-Muslims who commit this offense do not lose their security clearance.

[00:20:22] Speaker 00:
With respect, Your Honor, I think that his allegation is about his treatment as a Muslim, that he was disciplined more harshly than other people.

[00:20:32] Speaker 00:
The non-Muslims.

[00:20:33] Speaker 00:
That's correct.

[00:20:34] Speaker 00:
The non-Muslims.

[00:20:34] Speaker 00:
But again, this is all about his security clearance and individualized determination.

[00:20:38] Speaker 04:
But that's true of any allegation that a class of people is treated differently on the basis of race.

[00:20:44] Speaker 04:
Of course, it relates to his case.

[00:20:47] Speaker 04:
Otherwise, he wouldn't have standing to bring it.

[00:20:49] Speaker 04:
What gets him standing to bring it is that he himself lost his security clearance.

[00:20:54] Speaker 04:
So clearly, it's about him.

[00:20:56] Speaker 04:
But his allegation is broader.

[00:20:59] Speaker 04:
His allegation is that non-Muslims are treated differently for this kind of offense.

[00:21:04] Speaker 04:
I don't know of any case that says he couldn't bring that challenge.

[00:21:13] Speaker 02:
Is your position that he did not make a complaint

[00:21:18] Speaker 02:
that Muslims are treated categorically unfairly by the FBI on security clearances.

[00:21:27] Speaker 02:
In other words, you're saying if he made that allegation in the complaint, it would be a different case?

[00:21:33] Speaker 02:
It would certainly be a different case, but I'm suggesting... Would it be a case that he would have a right to proceed in that situation?

[00:21:40] Speaker 02:
Well, again, if essentially... Had evidence that there was the FBI, instead of evidence that non-Muslims were treated better than he was, if he had an allegation that across the board Muslims were discriminated against by the FBI in security clearances, would you say at that point he had a right to proceed?

[00:22:01] Speaker 00:
I think it would be a different case.

[00:22:04] Speaker 00:
No, no, I know it's a different case.

[00:22:06] Speaker 02:
That's what hypotheticals are for.

[00:22:09] Speaker 00:
What I would say is that the answer to that would depend on how much it would fall into the category of cases recognizing Greenberg.

[00:22:18] Speaker 00:
You could have a constitutional challenge.

[00:22:19] Speaker 00:
That sounds like a de facto policy of treating Muslims or some disfavored class differently.

[00:22:27] Speaker 00:
That's not what we have here.

[00:22:30] Speaker 02:
You don't have an allegation of that.

[00:22:31] Speaker 00:
I don't think we do have an allegation.

[00:22:33] Speaker 00:
Again, this is a very limited challenge.

[00:22:37] Speaker 00:
He basically, as the court was observing earlier, he basically came to the ARC saying, I admitted to this misconduct.

[00:22:43] Speaker 00:
The ARC affirmed the revocation of his security clearance.

[00:22:47] Speaker 00:
I wanted to start with this quote on the ground that, quote, his admitted misconduct in accessing sensitive information for personal reasons raises straightforward concerns regarding his ability to safeguard classified information

[00:22:59] Speaker 00:
and not disclose it for personal reasons.

[00:23:01] Speaker 00:
That's the stated rationale by the trained adjudicators on security clearance determinations.

[00:23:07] Speaker 03:
In other words, I just need to be clear on this.

[00:23:10] Speaker 03:
This court, in your view, is bound to read the ARC's opinion as relying solely on his admission and, as Judge Tatel characterized it,

[00:23:25] Speaker 03:
throwing himself on the mercy of those hearing his case and that in no way was the ARC influenced in looking at the nature of his confession and the implications that it might have for his future conduct.

[00:23:50] Speaker 03:
because it knew that in fact a family member was being investigated?

[00:24:00] Speaker 03:
What we are saying is that... In other words, what I'm trying to get across, it's one thing supposed in a hypothetical, I mistakenly did this.

[00:24:11] Speaker 03:
I'll never do it again.

[00:24:12] Speaker 03:
And he's from a farm in Iowa and the FBI has no information about any family member

[00:24:21] Speaker 03:
or any acquaintance that would in any way adversely affect national security.

[00:24:32] Speaker 03:
That's what I'm trying to understand about this case.

[00:24:35] Speaker 03:
It may be all about him, but to the extent the court has said that there can be these procedural due process challenges, what is the role of the court?

[00:24:48] Speaker 00:
Well, again, I think that the basic thrust of our argument is that you can't second-guess the stated reasons given by the trained adjudicators who are making the security clearance.

[00:24:58] Speaker 03:
The stated reason here... That's the way the brief is written.

[00:25:01] Speaker 03:
Can you bring to court a claim not as to the ultimate decision

[00:25:10] Speaker 03:
but the process by which the decision was made in the sense you had a hearing, but it was unfair for the following two reasons.

[00:25:19] Speaker 00:
Well, so I guess our response to that is that type of due process claim distinct from a claim challenging a general policy governing security clearance procedures, which is the Greenberg sort of situation, that type of due process claim that you're positing is inextricably tied up with the merits.

[00:25:35] Speaker 00:
And if I could just point to like the different due process claims that he alleges in this case.

[00:25:40] Speaker 00:
The first one is that the agency, the ARC, misapplied the adjudicative guidelines.

[00:25:46] Speaker 00:
And basically the argument there is that the agency

[00:25:49] Speaker 00:
couldn't rely on these foreign influence concerns.

[00:25:52] Speaker 00:
There's two responses to that, well, a bunch of responses to that.

[00:25:55] Speaker 00:
One is that they didn't.

[00:25:56] Speaker 00:
There's nothing on the face of the ARC's decision that suggests that it did rely on foreign influence concerns.

[00:26:01] Speaker 00:
Secondarily, when you're talking, there's nothing on the face of the applicable regulation, 32 CFR 147.4, that says you can't rely on foreign influence concerns just because someone is a natural born U.S.

[00:26:14] Speaker 00:
citizen.

[00:26:14] Speaker 00:
There's lots of concerns that can play in

[00:26:16] Speaker 00:
to having serious doubts about someone's ability to have access to classified information.

[00:26:23] Speaker 02:
During the Cold War, there was often someone was denied a security clearance because they came from a country covered under the Warsaw Pact and they had family there and could be subject to blackmail, even though you were absolutely innocent.

[00:26:43] Speaker 02:
You could be denied a security clearance.

[00:26:47] Speaker 02:
in that situation.

[00:26:49] Speaker 00:
Right.

[00:26:49] Speaker 00:
I mean, I think the question goes to, there's lots of things that can play into security concerns.

[00:26:54] Speaker 00:
And Judge Rogers, going back to your question, that type of due process claim, you misapplied the adjudicative guidelines, that's inextricably tied with the merits, the judgments about what evidence is necessary.

[00:27:06] Speaker 02:
Your judge's view is that would be precluded by Egan.

[00:27:09] Speaker 00:
Yes, Your Honor, certainly.

[00:27:10] Speaker 02:
Biological conclusion as to what Egan

[00:27:13] Speaker 00:
And I think to expound on that, I think that this court's decision in Radigan, surprisingly, is helpful for us on this in the sense that it

[00:27:21] Speaker 04:
That's the first time I've ever heard the government say something like that.

[00:27:24] Speaker 04:
That's very reassuring to me.

[00:27:26] Speaker 04:
Thank you.

[00:27:26] Speaker 00:
I've been waiting for the opportunity to say that to this particular group of judges.

[00:27:34] Speaker 00:
But in the sense that you recognize in Vatican that it's important for the trained adjudicators there to have full access to even doubtful information.

[00:27:42] Speaker 00:
And you drew a line there as to knowing falsity and carved that out.

[00:27:45] Speaker 03:
But let me say, the logic of your argument, though, suggests that your response, that he had, quote, a fair hearing, is irrelevant.

[00:27:56] Speaker 03:
And I don't see the government taking that position.

[00:28:00] Speaker 03:
And that's why I'm trying to understand what this court's role might be in looking at the procedural due process argument.

[00:28:10] Speaker 03:
He had a hearing, but he came and sort of was blindsided.

[00:28:14] Speaker 03:
And so he didn't have the opportunity either to prepare a full defense, much less to present it.

[00:28:21] Speaker 00:
So let me try to be very clear, is that we're, in Section 1 of our brief, we're arguing that Egan precludes all the claims, including the due process claims, and especially the misapplication of the adjudicative guidelines, because ultimately they go to the merits and the process, and all that stuff that Egan bars, that's heartland Egan material.

[00:28:39] Speaker 00:
Secondarily, we have a section that, you know, goes off on some of the grounds that the district court ruled on, because the district court admittedly did not rule for us on Egan across the board.

[00:28:47] Speaker 00:
It ruled on a variety of due process grounds.

[00:28:49] Speaker 00:
So it's an argument in the

[00:28:51] Speaker 00:
We do think that this court, we would prefer a decision that stops with Section 1 of our brief and says Egan bars the claims, but we do, as the government often does, argue in the alternative that there was no denial.

[00:29:01] Speaker 03:
I understand, but I thought some of your answers as to practice or policy and you acknowledge our precedent,

[00:29:10] Speaker 03:
wouldn't allow you to take that position.

[00:29:14] Speaker 03:
Indeed, your brief says it's an open question in this circuit.

[00:29:17] Speaker 00:
Well, what we're acknowledging, just to be very clear, is we're not quarreling with Greenberg.

[00:29:22] Speaker 00:
We're not quarreling with cases that say you can have a constitutional challenge to a policy, a regulation, that sort of thing that deals with security clearance decisions.

[00:29:32] Speaker 00:
We're not saying in a broad-brush way security clearance, security determinations are completely off limits.

[00:29:38] Speaker 00:
What we are suggesting is that when you

[00:29:40] Speaker 00:
as the plaintiff here is, and you're coming in and you're second-guessing an individual adjudication that, you know, and again, where he's had a lot of process at pretty high levels, and you're saying that they, things like, you know, as a due process claim, they misapplied the adjudicative guidelines or they must have relied on some secret FISA evidence that nowhere appears on the face of the AARC's decision.

[00:30:01] Speaker 03:
You're doing- What's your best response then to why it asked, the AARC asked for an OLC, OLC opinion?

[00:30:10] Speaker 00:
I can't speculate on that, Your Honor.

[00:30:12] Speaker 00:
I mean, again, I think the best response is that at the end of the day, there was no FISA evidence considered.

[00:30:18] Speaker 00:
There's no indication on the face of the ARC's decision that there was any FISA evidence.

[00:30:22] Speaker 04:
Couldn't the district court actually find that, as a matter of fact?

[00:30:25] Speaker 04:
I'm sorry?

[00:30:26] Speaker 04:
The district court actually made a finding on that, right?

[00:30:29] Speaker 04:
The district court found that there was, that it didn't rely on any evidence from the FISA warrant, right?

[00:30:36] Speaker 00:
That's right, and I was just going more directly to the actual face of the decision, because I think it's important that in the Eagan world, you can't sort of assess for pretext the stated reasons given by the trained adjudicators for revoking or affirming the revocation of a security clearance.

[00:30:52] Speaker 00:
I mean, that's basically, that's core Ryan.

[00:30:55] Speaker 00:
You know, it's basically in the McDonnell-Douglas context.

[00:30:58] Speaker 00:
You said that, you know, figuring out whether a stated reason is protectual would run smack up against Deegan.

[00:31:04] Speaker 00:
And the same principle applies even if you are dealing with something that's configured as a constitutional claim, whether equal protection or due process.

[00:31:11] Speaker 03:
So there is no procedural due process protection.

[00:31:16] Speaker 03:
in an Egan context.

[00:31:18] Speaker 03:
Is that your position?

[00:31:19] Speaker 00:
I think it's slightly more limited.

[00:31:22] Speaker 00:
I think it's slightly more limited, Your Honor.

[00:31:24] Speaker 00:
I think it's when the due process claim challenges essentially the process by which the agency undertakes to review the security clearance revocation, the evidence it considers, those sorts of inputs.

[00:31:38] Speaker 00:
Again, Radigan is helpful in this.

[00:31:40] Speaker 00:
That is something that courts shouldn't be looking behind under Egan.

[00:31:46] Speaker 03:
So there's no way to look at what the subject's opportunity to defend is under Egan.

[00:31:56] Speaker 00:
I don't think so in the security clearance revocation in a specific individualized decision.

[00:32:00] Speaker 03:
That's the evidence.

[00:32:02] Speaker 03:
We don't really care what the employee may say in defense.

[00:32:10] Speaker 00:
I think the upshot of Egan, yes, is that a court cannot look behind that second guess, the rationale given by the trained security clearance adjudicators.

[00:32:21] Speaker 04:
I get that.

[00:32:23] Speaker 04:
I take your point about take this case.

[00:32:25] Speaker 04:
We have the ARC decision.

[00:32:27] Speaker 04:
We look at that, right?

[00:32:29] Speaker 04:
And we don't look beyond it.

[00:32:31] Speaker 04:
But suppose he had made an argument before the ARC that the FBI treats Muslims and non-Muslims differently for this kind of offense.

[00:32:45] Speaker 04:
And it just didn't appear.

[00:32:46] Speaker 04:
In other words, the ARC didn't account for it.

[00:32:49] Speaker 04:
That would be a different case, right?

[00:32:54] Speaker 04:
In other words, if the ARC simply ignored that argument.

[00:32:57] Speaker 00:
I'm not sure, Your Honor, because, again, looking behind the face of the ARC's decision, I think it raises considerable eagerness.

[00:33:06] Speaker 04:
Suppose they had actually filed a brief before the ARC with data which showed that they're treated differently, and the ARC ignored it.

[00:33:15] Speaker 04:
That's not this case.

[00:33:16] Speaker 04:
I agree with you.

[00:33:16] Speaker 04:
It's totally not this case.

[00:33:17] Speaker 00:
I'm avoiding saying that.

[00:33:19] Speaker 04:
What?

[00:33:19] Speaker 00:
I'm avoiding saying that, that it's not this case.

[00:33:21] Speaker 00:
But I'm reluctant to agree.

[00:33:23] Speaker 04:
But I'm asking you a hypothetical.

[00:33:24] Speaker 04:
Wouldn't it be different if he had made that argument?

[00:33:28] Speaker 04:
They wouldn't be looking beyond the ARC opinion.

[00:33:30] Speaker 04:
We would just have evidence that the ARC ignored probative evidence.

[00:33:34] Speaker 00:
I think that in some respects you would.

[00:33:37] Speaker 00:
You would be saying that the ARC's stated grounds for its decision.

[00:33:41] Speaker 00:
In other words, like here the stated grounds were that, look, the admitted misconduct was sufficient.

[00:33:46] Speaker 00:
That alone was enough.

[00:33:47] Speaker 04:
Wouldn't we insist on the ARC at least explaining why that evidence was not relevant?

[00:33:53] Speaker 00:
Well, again, that's sort of my point is that if the ARC didn't explain, if that argument had been posed to the ARC, which it was not here, if it had and the ARC ignored it for whatever reason, the court would be in the position of second guessing the ARC and essentially finding that the stated reasons given by the ARC that the admitted misconduct was by itself enough.

[00:34:15] Speaker 00:
In other words, you could have inputs and the ARC could essentially self-regulate and say, we don't need any of those inputs.

[00:34:21] Speaker 04:
So the government's position, then, is it doesn't make any difference.

[00:34:24] Speaker 04:
I mean, I was asking Mr. Gill carefully to find out whether he had made this argument before the ARC.

[00:34:30] Speaker 04:
And your point is interesting.

[00:34:32] Speaker 04:
I hadn't thought about it this way.

[00:34:34] Speaker 04:
Your point is that doesn't make any difference in the Egan situation, right?

[00:34:38] Speaker 04:
To the extent that we have to do, we look at the ARC thing, and we just

[00:34:42] Speaker 04:
And I'm not saying this is wrong.

[00:34:44] Speaker 04:
I just want to make sure I understand the government's position that the ARC opinion is it, and that's it.

[00:34:51] Speaker 04:
And if there's evidence, if he made an argument about discrimination, then we just have to assume that the fact that the ARC didn't mention it means that the ARC thought it wasn't relevant.

[00:35:03] Speaker 04:
End of case, right?

[00:35:04] Speaker 00:
I think that's right, Your Honor.

[00:35:06] Speaker 00:
And the reason why is that, again, the ARC gave reasons.

[00:35:10] Speaker 00:
In this case, the ARC said the admitted misconduct was a sufficient basis by itself to support the revocation of the security codes.

[00:35:18] Speaker 04:
Of course, you don't have to accept that for you to win this case, right?

[00:35:24] Speaker 04:
I take it you could also win on the basis of the fact that he just didn't make the argument.

[00:35:32] Speaker 00:
We could win it on that grounds as well.

[00:35:34] Speaker 03:
He said he filed a memorandum.

[00:35:38] Speaker 03:
Do you know anything about that?

[00:35:39] Speaker 00:
I do not know anything about that.

[00:35:40] Speaker 00:
And again, it's not in the record.

[00:35:42] Speaker 00:
I do know that it's not in the record.

[00:35:43] Speaker 00:
The record is very sparse in this case.

[00:35:44] Speaker 03:
Well, it's not in the record that we have, but it may be in the record that the ARC had.

[00:35:51] Speaker 00:
It's possible.

[00:35:52] Speaker 03:
It's all going to turn on whether, that's why I'm trying to press you on this point.

[00:35:56] Speaker 04:
But his point is it doesn't make any difference.

[00:35:58] Speaker 00:
That is my point, yes.

[00:35:59] Speaker 03:
The point is that it doesn't matter what the defendant may say.

[00:36:04] Speaker 00:
That's right.

[00:36:05] Speaker 00:
And I mean, the extent to which the court would have to go sort of rummaging around in the security clearance process, I mean, the sort of process that led up to the ARC's decision.

[00:36:14] Speaker 03:
But you're arguing, basically, that Egan, his confession, the ARC decision,

[00:36:21] Speaker 03:
He doesn't even have a right to a hearing.

[00:36:24] Speaker 03:
Well, he got a hearing, but my point is... Well, his argument is he got a hearing with his arms tied behind his back, so he couldn't present the evidence that he would have presented had he been aware

[00:36:38] Speaker 03:
that the government was going to present certain evidence.

[00:36:42] Speaker 03:
My point is... I just need to... Egan actually... I'm repressing you because, and I don't want to go back to the 50s and have that sort of argument, but the government has at least in its cases, and we seem to have assumed, that there is some opportunity for a fair hearing in the security clearance revocation process.

[00:37:08] Speaker 03:
And we haven't identified how deeply we can delve into that.

[00:37:12] Speaker 03:
But the questions you've heard is that if it was a clear proffer of a policy, et cetera, that there would be some process to address that.

[00:37:25] Speaker 03:
But now I think you're telling us there is no process to address that.

[00:37:31] Speaker 00:
And I think that's sort of that's.

[00:37:33] Speaker 02:
Suppose the denial of security clearance

[00:37:35] Speaker 02:
had been done by the FBI without any hearing at all, based on an informal adjudication.

[00:37:47] Speaker 02:
You know, just on administrative law and formal adjudication, just the supervisor or somebody who's in charge of security clearance has said, gee, this is a problem with this guy that's denying security clearance.

[00:37:59] Speaker 02:
Your view is, under Egan, that is not reviewable.

[00:38:03] Speaker 02:
That's correct, Your Honor, and there's a lot... Irrelevant whether you had an internal procedure or not.

[00:38:11] Speaker 02:
That's correct, Your Honor.

[00:38:12] Speaker 02:
Most security clearances are denied without regard to a process at all.

[00:38:18] Speaker 00:
Well, there certainly are more summary procedures, and often the challenges, you know, they often arise in Title VII context.

[00:38:26] Speaker 00:
The challenges arise, and all you have is a denial and, you know, the government's post hoc explanation for the denial.

[00:38:32] Speaker 00:
And the courts are uniformly, they hold that you cannot have review of that process or the investigative steps leading up to that process.

[00:38:40] Speaker 00:
There are legions of cases holding that.

[00:38:42] Speaker 02:
I think that's right.

[00:38:43] Speaker 02:
In this case, actually, we have more procedure than you typically have in a denial of security clearance.

[00:38:48] Speaker 00:
And yes, Your Honor, I agree with that completely.

[00:38:50] Speaker 00:
And then we may have gotten into trouble by talking about the additional procedure, because it may, in some respect, suggest that the court should evaluate that.

[00:38:58] Speaker 00:
But that's why I try to make clear that section two of our brief is an argument in the alternative.

[00:39:03] Speaker 00:
Section one is where we think the court should rest, is on the Egan grounds with respect to all of the claims.

[00:39:09] Speaker 04:
But speaking of that, Gill relies very heavily on Webster.

[00:39:14] Speaker 04:
How do you distinguish Webster?

[00:39:17] Speaker 02:
Webster.

[00:39:18] Speaker 04:
What do you do about Webster?

[00:39:21] Speaker 04:
The court said that the decision there, that was an employment decision, CIA's decision, quote, those sensitive and discretionary could be reviewed for constitutional error.

[00:39:33] Speaker 04:
And that's a post-Egan case.

[00:39:35] Speaker 00:
That's right, Your Honor.

[00:39:37] Speaker 00:
It was the same year as Egan.

[00:39:38] Speaker 00:
I'm not sure I can do any better than Judge Kozinski in the Dorfman case.

[00:39:41] Speaker 00:
Sorry, what?

[00:39:41] Speaker 00:
I'm not sure I can do any better than Judge Kozinski in the Dorfman case, where he talks about... Okay, just remind me.

[00:39:48] Speaker 04:
What did Judge Kozinski say in the Dorfman case?

[00:39:50] Speaker 00:
He talked about Webster and talked about how that it did not present that the issue there was whether the NSA statute foreclosed judicial review of a constitutional claim being brought there.

[00:40:03] Speaker 00:
And so that presented a difference.

[00:40:05] Speaker 04:
Well, that's true.

[00:40:07] Speaker 04:
That's a good point.

[00:40:09] Speaker 00:
Yes, precisely.

[00:40:11] Speaker 02:
The court did.

[00:40:11] Speaker 02:
The court.

[00:40:12] Speaker 02:
Another distinction.

[00:40:12] Speaker 02:
Yeah, the court did say that.

[00:40:14] Speaker 02:
Excuse me.

[00:40:15] Speaker 02:
Another distinction.

[00:40:16] Speaker 02:
Webster, the plaintiff was fired.

[00:40:19] Speaker 02:
It wasn't just a denial of a security clearance.

[00:40:23] Speaker 00:
That's correct, Your Honor.

[00:40:24] Speaker 00:
There's a lot of distinctions.

[00:40:26] Speaker 00:
And the point here is that when you're talking about sort of the dueling, you know, the executive branch's authority over classified material given by the Constitution, that's a different question.

[00:40:38] Speaker 00:
The Hagab case in the Fourth Circuit illustrates another court struggling.

[00:40:43] Speaker 03:
We've cited that in a brief.

[00:40:44] Speaker 03:
In your brief, and I realize, you know, the last minute substitution, et cetera.

[00:40:49] Speaker 03:
Sure.

[00:40:52] Speaker 03:
You acknowledged that this court has never directly addressed the issue that Judge Kozinski was identifying.

[00:41:01] Speaker 03:
That's correct, Your Honor.

[00:41:03] Speaker 03:
So to accept your first argument, we would have to decide that question, wouldn't we?

[00:41:08] Speaker 00:
Well, there's a lot of ways you could go about that.

[00:41:11] Speaker 00:
I mean, again.

[00:41:12] Speaker 03:
Oh, but you're saying these are alternative arguments.

[00:41:14] Speaker 03:
So you want us to cite Egan and just forget about everything else.

[00:41:20] Speaker 03:
But your own brief acknowledges that we would have this issue before us.

[00:41:26] Speaker 00:
Well, certainly when.

[00:41:27] Speaker 03:
But the alternative argument was to give us a way to avoid that very difficult question and to move on to these other points.

[00:41:37] Speaker 00:
I think that is an alternative available to this Court, especially under the decision in Orsak, which makes clear that Egan is not a jurisdictional decision, so you could reach the alternate grounds here.

[00:41:50] Speaker 02:
I guess what I was trying to suggest is that both Dorfmont and also the Fourth Circuit more recently... The problem with the alternative grounds, and this is where it's troubling me, does that really implicitly get into the merits of the question?

[00:42:03] Speaker 02:
Is that inconsistent with Egan?

[00:42:06] Speaker 02:
your reading of Egan?

[00:42:08] Speaker 02:
Your view of, I understand it, and putting together Egan and Webster v. Doe, keeping in mind, I think, McElroy, would be if there was a statement, a flat statement that you're denied security clearance because you're a Catholic or because you're a Muslim, that would be challengeable.

[00:42:35] Speaker 02:
because that would be reflecting across the board policy that you could challenge.

[00:42:40] Speaker 02:
It wouldn't be an internal, it wouldn't be specific to just one individual.

[00:42:47] Speaker 02:
But a denial of security clearance based on a judgment about an individual is not reviewable.

[00:42:54] Speaker 00:
I think that's a fair summation.

[00:42:55] Speaker 02:
And in the statement, which I gave at the beginning, a statement, you're denied security clearance because you are a Muslim or because you are Catholic.

[00:43:04] Speaker 02:
That would be an equal protection violation, not a due process problem.

[00:43:10] Speaker 00:
That's correct, Your Honor.

[00:43:11] Speaker 00:
I think that's right.

[00:43:14] Speaker 00:
And my point where I tried to start this argument is again that the ARC gave a reason.

[00:43:18] Speaker 00:
It said the admitted misconduct was enough to sustain the revocation of the security clearance.

[00:43:25] Speaker 00:
That being the case, any review of

[00:43:27] Speaker 00:
the inputs that came into that, the process, the evidence that the ARC may or may not have considered, all of that process, this Court has reiterated, albeit in the Title VII context, Judge Rogers, that that is something that Egan shields from judicial review.

[00:43:43] Speaker 00:
The same principle applies equally to constitutional claims.

[00:43:46] Speaker 00:
Just because you can reconfigure what would otherwise be a Title VII claim as an equal protection claim doesn't mean that Egan principles cease to be relevant here and preclude the review.

[00:43:57] Speaker 03:
Thank you very much.

[00:44:03] Speaker 03:
Thank you, Your Honor.

[00:44:07] Speaker 01:
Your honor, the ARC simply did not just state that it was the admitted misconduct.

[00:44:13] Speaker 01:
The ARC also wanted- ARC what?

[00:44:15] Speaker 04:
It's very hard to hear.

[00:44:17] Speaker 04:
Sorry, your honor.

[00:44:18] Speaker 04:
The ARC what?

[00:44:19] Speaker 01:
Your honor, the ARC just simply did not state that it was the admitted misconduct.

[00:44:23] Speaker 01:
The ARC also stated that it was a foreign influence.

[00:44:27] Speaker 04:
No, here's what the ARC said.

[00:44:30] Speaker 04:
Sorry, your honor.

[00:44:30] Speaker 04:
The comment, well, I shouldn't say no.

[00:44:33] Speaker 04:
I'm just leaving my notes on this.

[00:44:35] Speaker 04:
The comment about Gil's ties to his foreign-born relatives, the ARC describes that as the FBI's concern.

[00:44:52] Speaker 04:
It says the FBI is concerned that he accesses information, quote,

[00:44:59] Speaker 04:
quote, because of his ties to his foreign-born relatives.

[00:45:04] Speaker 04:
That's the FBI's concern.

[00:45:06] Speaker 04:
Then the ARC goes on and decides the case.

[00:45:10] Speaker 04:
And it decides the case solely on the grounds of his admitted misconduct.

[00:45:16] Speaker 01:
The ARC, Your Honor, also stated that they believed that Special Agent Gill was remorseful, but they could not overlook his foreign-born relatives, which is what we have brought forth, that that is a misapplication of the adjudicative process.

[00:45:29] Speaker 01:
There is no foreign influence here.

[00:45:31] Speaker 02:
The adjudicative process... That gets into the reviewing the merits of this issue, right?

[00:45:36] Speaker 01:
Well, if there is going to be a adjudicative standard, Your Honor, we believe it should be applied.

[00:45:43] Speaker 02:
That sounds like you're sort of relying on the Administrative Procedure Act and say this is arbitrary and capricious.

[00:45:51] Speaker 01:
No, Your Honor, we're basically stating that the ARC looked and examined the fact that he was a Muslim.

[00:45:56] Speaker 01:
We're basically trying to present evidence of that.

[00:45:59] Speaker 01:
Foreign influence, that factor should not even have been considered because there is no foreign influence.

[00:46:04] Speaker 01:
All the relatives that we're talking about are all U.S.

[00:46:06] Speaker 01:
citizens.

[00:46:07] Speaker 01:
Foreign influence, and if you look at the adjudicative standard,

[00:46:10] Speaker 01:
exactly refers to that, foreign people in other countries who, as you know, Mr. Silverman, you pointed out, in the war, in the Cold War, you know, Russian relatives who could be susceptible to blackmail.

[00:46:22] Speaker 01:
That was not the standard here.

[00:46:24] Speaker 01:
The standard here, that was not the facts here.

[00:46:26] Speaker 01:
The facts here were there were all U.S.

[00:46:28] Speaker 01:
citizens who happened to be born in another country.

[00:46:31] Speaker 01:
We do not believe that the ARC or the FBI could have considered that.

[00:46:35] Speaker 01:
That is not an

[00:46:36] Speaker 01:
appropriate adjudicated factor.

[00:46:38] Speaker 01:
That is what we're stating.

[00:46:40] Speaker 01:
That is one of the things that we were stating.

[00:46:41] Speaker 01:
The other thing that I want to point out is this is at the motion to dismiss state.

[00:46:46] Speaker 01:
At this date, all the facts must be construed in light most favorable to the appellant.

[00:46:51] Speaker 01:
We have made the claim that the FBI is treating, or in this case, treated Muslims differently.

[00:46:57] Speaker 01:
In our complaint, it clearly states that the FBI did this action because Special Agent Gill is Muslim and also because of national origin.

[00:47:06] Speaker 04:
But you see, that's different from whether or not that argument was made before the ARC.

[00:47:11] Speaker 01:
Your Honor, the argument was made before the ARC.

[00:47:13] Speaker 01:
We, as said, we did not attach the arguments, but again, I do not... But there's nothing in the record before us to demonstrate that, right?

[00:47:23] Speaker 01:
There is not, Your Honor.

[00:47:24] Speaker 01:
We did not attach.

[00:47:24] Speaker 01:
But however, I do believe that because we are at the motion to dismiss phase, that that fact must be construed in light... Let me ask a question, what I asked of government counsel.

[00:47:36] Speaker 02:
In most cases in which there's a denial of security clearance, you don't have any formal procedure at all.

[00:47:42] Speaker 02:
It's just an informal adjudication, which is an administrative law term, for just an administrative decision.

[00:47:50] Speaker 02:
And then, yes, Your Honor, you... To your theory that any determination of a denial of security clearance must, as a matter of constitutional due process, be accompanied by a hearing of some sort?

[00:48:05] Speaker 01:
Your Honor, if there are constitutional rights at stake, yes, it is.

[00:48:08] Speaker 02:
The ARC procedure exists to give an appellate procedure if you are... I understand about the ARC procedure, but it doesn't apply to all agencies and all departments of government, does it?

[00:48:21] Speaker 01:
Not the ARC, but the Department of Justice, but every other agency does have some form of appellate review for revocation of a decision.

[00:48:29] Speaker 01:
So for revocation... Not for denial of security clearances.

[00:48:33] Speaker 01:
Not for denial, Your Honor, no.

[00:48:34] Speaker 02:
Although your theory would be just as relevant for denial of a security clearance as a revocation.

[00:48:42] Speaker 01:
I do believe there is a difference, Your Honor.

[00:48:43] Speaker 02:
But the problem there is you're running a foul of Egan.

[00:48:48] Speaker 02:
Again, Your Honor, in other words, I think we're diverted as we talk about procedure here when procedure wasn't isn't really constitutionally necessary.

[00:48:56] Speaker 02:
under Egan.

[00:48:57] Speaker 02:
Any procedure.

[00:48:58] Speaker 01:
Your honor, even if that argument is correct, the issue comes down to if an appellant can identify a liberty interest, if he can identify a constitutional issue at stake, the court can review it.

[00:49:10] Speaker 01:
This circuit has held that over and over again.

[00:49:13] Speaker 01:
And again, I point the court to Kartseva.

[00:49:15] Speaker 01:
That is the case that I believe is most inagulous because you do have one

[00:49:19] Speaker 01:
Russian translator working in the Department of State whose security clearance was revoked because there was some information that was not cleared up.

[00:49:28] Speaker 01:
The court in this, this court, this circuit held that she did have a liberty interest.

[00:49:32] Speaker 01:
This court remanded the case back to the district court because it stated that at this stage we do not know what the impact of that revocation will be, how it stigmatized her.

[00:49:42] Speaker 02:
We would like to have more... We talked about, we mentioned a liberty interest, although I think it's an equal protection interest.

[00:49:48] Speaker 02:
But those terms get mixed up anyway.

[00:49:52] Speaker 01:
Yes, Your Honor.

[00:49:54] Speaker 01:
Your Honor, the best quote that I can point to this Court, too, as they're saying, as the judges have asked, what is the role of this Court in security clearance, is what this circuit stated in National Federation in Greenberg.

[00:50:08] Speaker 01:
All questions of government are ultimately questions of ends and means.

[00:50:11] Speaker 01:
The end may be legitimate, its accomplishment may be entrusted solely to the president, yet the judiciary still may properly scrutinize the manner in which the objective is to be achieved.

[00:50:23] Speaker 01:
That is what we're asking the court here to do.

[00:50:27] Speaker 01:
ARC did hold the proceeding, but not informing, since foreign influence was clearly at play here, not informing the appellant that there is a FISA warrant out there on his family member and what the implication of that is going to be is significant.

[00:50:46] Speaker 01:
And the best evidence we prove that is the fact that the chair of the ARC requested an opinion from OLC on that.

[00:50:52] Speaker 01:
And it took six years from the time the ARC was held

[00:50:56] Speaker 01:
to issue a judgment on that.

[00:50:58] Speaker 01:
We believe that if this case is allowed to continue beyond the motion to dismiss phase that we will have evidence, there will be, through discovery, which shows that Special Agent Gill was treated differently, Muslims are treated differently than other agents in similar actions.

[00:51:15] Speaker 02:
Can I ask a question of government's counsel?

[00:51:18] Speaker 03:
All right, thank you.

[00:51:19] Speaker 02:
May I just ask one question?

[00:51:20] Speaker 03:
Could we hear from government counsel?

[00:51:22] Speaker 02:
I just want to ask one question.

[00:51:23] Speaker 02:
Is that correct that every

[00:51:26] Speaker 02:
agency dealing with national security provides a hearing on a question of whether a revocation of security clearance was appropriate or not?

[00:51:37] Speaker 00:
I'm just not – I can't answer for – across the government.

[00:51:41] Speaker 00:
I think that – I think the answer is no.

[00:51:43] Speaker 00:
I think the answer is no, but again, without the confidence to be able to say that, I hesitate to do that.

[00:51:48] Speaker 03:
All right.

[00:51:48] Speaker 03:
We have nothing in the record here.

[00:51:50] Speaker 03:
All right.

[00:51:51] Speaker 03:
Thank you.

[00:51:52] Speaker 03:
All right.

[00:51:53] Speaker 03:
Yes, we will take the case under advisement.