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

January 11, 2010

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.

The opinion of the court was delivered by: Smith, Circuit Judge

PRECEDENTIAL

Argued October 28, 2009

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

OPINION

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 ElGanayni'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., 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 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.*fn1 The superintendent refused to accept any money raised by El- 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. ElGanayni 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 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.

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 or 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, 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 ...


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