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El-Ganayni v. United States Dep't of Energy

November 20, 2008

ABDEL MONIEM ALI EL-GANAYNI, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF ENERGY AND JEFFREY F. KUPFER, ACTING DEPUTY SECRETARY OF DEPARTMENT OF ENERGY, DEFENDANTS.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM ORDER

Pending before the Court is the remaining portion of the MOTION TO DISMISS (Document No. 20) filed by Defendants United States Department of Energy and Jeffrey F. Kupfer, Acting Deputy Secretary (collectively, "DOE"). In a Memorandum Order dated October 31, 2008, the Court granted Defendants' motion to dismiss Counts I and II of the Complaint, but deferred ruling on Count III pending supplemental briefs. The parties have now filed the requested supplemental briefs (Document Nos. 33, 34) and the motion is ripe for disposition. Also pending is the MOTION FOR RECONSIDERATION (Document No. 32) filed by Plaintiff. As noted in its earlier Memorandum Order, these motions must be resolved before the Court considers the pending motion for injunctive relief.

The Court will not reiterate the factual background of this case in full, as set forth in the Complaint and its earlier Memorandum Order. Briefly, Dr. El-Ganayni's security clearance was revoked and he attempted to challenge the revocation pursuant to DOE's regulations. During the administrative process, Acting Deputy Secretary of Energy Jeffrey Kupfer signed a certification (the "Kupfer Certification"), which purported to render the proceeding moot. The Kupfer Certification made the following "certification and determinations":

1. In accordance with Section 5.2(d) of Executive Order 12968 (Access to Classified Information) (August 4, 1995), I certify that the procedures set forth in Section 5.2(a) of the Executive Order and in the Department of Energy's regulations at 10 C.F.R. § 710.26-710.30 cannot be made available to Mr. ElGanayni without damaging the interests of national security by revealing classified information. This certification is conclusive.

2. In accordance with Section 5.2(e) of Executive Order 12968, I have determined that the procedures prescribed by subsection (a) of Section 5.2 of the Executive Order cannot be invoked in a manner that is consistent with national security.

3. Pursuant to the authority granted to the Secretary of Energy by section 145 of the Atomic Energy Act of 1954, as amended (42 U.S.C. § 2165), I hereby terminate Mr. El-Ganayni's access to classified information in the interests of national security.

4. The determinations in paragraphs 2 and 3 hereof are conclusive.

This litigation followed. Plaintiff asks this Court to enjoin "defendants from using the national-security certification to shield their clearance-revocation decision from scrutiny." Count III alleges a Due Process violation of agency regulations under the Administrative Procedure Act and the Fifth Amendment. Plaintiff seeks as relief a declaration that Defendants' actions violated his constitutional rights and an order requiring DOE to provide him with notice and hearing procedures consistent with the Constitution and DOE regulations to review the security-clearance revocation determination.

Plaintiff's Motion for Reconsideration

Plaintiff asks the Court to reconsider its decision to dismiss Counts I and II of the Complaint. Plaintiff argues that the concerns expressed in the Court's earlier Memorandum Order can be addressed by requiring Defendants to conduct a review pursuant to the applicable DOE regulations, and that such a procedure is consistent with Webster v. Doe, 486 U.S. 592 (1988) and Stehney v. Perry, 101 F.3d 925, 932 (3d Cir. 1996).

These arguments do not meet the high standard required to justify reconsideration. Generally speaking, a motion for reconsideration will only be granted if: (1) there has been an intervening change in controlling law; (2) new evidence, which was not previously available, has become available; or (3) necessary to correct a clear error of law or to prevent manifest injustice. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 47 U.S. 1171 (1986).

Plaintiff has pointed to no intervening change in controlling law, new evidence, a clear error of law, or manifest injustice. Rather, Plaintiff simply disagrees with the manner in which this Court has attempted to reconcile and apply Webster and Stehney and Department of Navy v. Egan, 484 U.S. 518 (1988). Motions for reconsideration are not designed to provide litigants with a second bite at the apple. Bhatnagar v. Surrendra Overseas Ltd., 52 F.3d 1220, 1231 (3d Cir. 1995).

Moreover, an order requiring Defendants to conduct the review themselves would implicate the same separation of powers principles that caused the Court to grant the motion to dismiss Counts I and II. As the Court explained in its earlier Memorandum Order:

Kupfer certified that following the regulatory procedures would not be consistent with national security. Plaintiff would have this Court override this certification and order that such procedures be made available. There are no clear principles by which the Court may decide which party is correct. In Egan, the Supreme Court explained that an outside non-expert body cannot reasonably review the substance of the agency's predictive judgment or determine what ...


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