In the Supreme Court of the United States

NO. 13-256 In the Supreme Court of the United States MAHMOUD HEGAB, Petitioner, v. LETITIA A. LONG, DIRECTOR, NATIONAL GEOSPATIAL-INTELLIGENCE AGENGY, AND NATIONAL GEOSPATIAL-INTELLIGENCE AGENCY, Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit REPLY BRIEF OF PETITIONER SHELDON I. COHEN Counsel of Record Law Offices of Sheldon I. Cohen P.O. Box 4068 Oakton, VA 22124 (703) 522-1200 sicohen@sheldoncohen.com Counsel for Petitioner Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001

i TABLE OF CONTENTS TABLE OF AUTHORITIES... ii REPLY TO RESPONDENTS OPPOSITION... 1 I. Department of Navy v. Egan does not foreclose judicial review... 1 II. III. IV. Constitutional challenges are not limited to statutes or agency policies... 2 This case presents an actual controversy not a request for an advisory opinion.... 4 The Courts are best suited to review constitutional claims... 5 CONCLUSION... 8 APPENDIX Appendix A Excerpt of Transcript, in the United States District Court for the Eastern District of Virginia, Alexandria Division (January 13, 2012)...App. 1

ii TABLE OF AUTHORITIES Cases Bacerra v. Dalton, 94 F.3d 145 (4 th Cir. 1996), cert. denied, 519 U.S. 1151 (1997)... 1 Bennett v. Chertoff, 425 F.3d 999 (D.C. Cir. 2005)... 1 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)... 1 Brazil v. United States Dept. of Navy, 66 F.3d 193 (9 th Cir. 1995), cert. denied, 517 U.S. 1103 (1996)... 1 Davis v. Passman, 442 U.S. 228 (1979)... 6 Dept. of Navy v. Egan, 484 U.S. 518 (1988)... 1, 2, 4 Dorfmont v. Brown, 913 F.2d 1399 (9 th Cir. 1990), cert. denied, 499 U.S. 905 (1991)... 2 Douglas v. Buder, 412 U.S. 430 (1973)... 6 Gregory v. City of Chicago, 394 U. S. 111 (1969)... 6

iii Hall v. United States Dept. of Labor Admin. Rev. Bd., 476 F.3d 847 (10 th Cir.), cert. denied, 552 U.S. 993 (2007)... 1 Hamdi v. Rumsfeld, 542 U.S. 507 (2004)... 6, 7, 8 Hesse v. Dept. of State, 217 F.3d 1372 (Fed. Cir. 2000), cert. denied, 531 U.S. 1154 (2001)... 1 National Federation of Federal employees v. Greenberg, 983 F.2d 286 (D.C. Cir. 1993)... 2 Oryszak v. Sullivan, 576 F.3d 522 (D.C. Cir. 2009)... 2 Perez v. Federal Bureau of Investigation, 71 F.3d 513 (5 th Cir. 1995), cert. denied, 517 U.S. 1234 (1996)... 1 Ryan v. Reno, 168 F.3d 520 (D.C. Cir. 1999)... 1 Schware v. Board of Bar Examiners, 353 U.S. 232 (1957)... 6 Service v. Dulles, 354 U.S. 363 (1957)... 7 Thompson v. City of Louisville, 362 U.S. 199 (1960)... 6

iv United States v. Robel, 389 U. S. 258 (1967)... 8 Vitarelli v. Seaton, 359 U.S. 535 (1959)... 7 Webster v. Doe, 486 U.S. 592 (1988)... passim Statutes and regulations U.S. Const. Amend I... 7 U.S. Const. Amend V... 7 U.S. Const. Amend IX... 7 Executive Order 12,968... 6 Executive Order 12,968 5.2(c)... 7 National Security Act 102(c)... 3 Title VII of the Civil Right Act... 1 Other Authorities Brief for Petitioner filed in Webster v. Doe (1987 WL 881344(U.S.) (Appellate Brief).... 4 Gerald L. Neuman, The Constitutional Requirement of Some Evidence, 25 San Diego L. Rev. 631 (Sept./ Oct. 1988).... 6

v Richard J. Peirce, Jr., 3 Administrative law Treatise, 17.9, 4 th Ed., 2002 (Aspen Law & Business).... 2

1 REPLY TO RESPONDENTS OPPOSITION I. Department of Navy v. Egan does not foreclose judicial review Respondents argument that Dept of Navy v. Egan, 484 U.S. 518 (1988) forecloses judicial review of a colorable constitution claim is wrong, and the cases they cite do not support their argument. (Respondents brief, 10-12). Egan preceded Webster v. Doe by six months and was cited in Webster, so this Court was obviously well aware of its earlier decision when, in Webster, it held that the District court had jurisdiction to hear Doe s claim that his security clearance had been revoked in violation of his constitutional rights. The lower court cases cited by respondents were all challenges under statutes such as Title VII of the Civil Right Act where the courts held that Congress did not expressly provide for review of security clearance challenges, or were Bivens claims against individuals not the government. 1 In one case cited by respondents, Ryan v. Reno, the court specifically held that We emphasize that our holding is limited to Title VII 1 Brazil v. United States Dept. of Navy, 66 F.3d 193 (9 th Cir. 1995), cert. denied, 517 U.S. 1103 (1996) (Title VII of the Civil rights Act and a Bivens claim); Hall v. United States Dept. of Labor Admin. Rev. Bd., 476 F.3d 847 (10 th Cir.), cert. denied, 552 U.S. 993 (2007) (Title VII and whistleblower claim); Bennett v. Chertoff, 425 F.3d 999 (D.C. Cir. 2005) (Title VII); Hesse v. Dept. of State, 217 F.3d 1372 (Fed. Cir. 2000), cert. denied, 531 U.S. 1154 (2001) (Whistleblower Protection Act); Ryan v. Reno, 168 F.3d 520 (D.C. Cir. 1999) (Title VII); Bacerra v. Dalton, 94 F.3d 145 (4th Cir. 1996), cert. denied, 519 U.S. 1151 (1997) (Title VII); Perez v. Federal Bureau of Investigation, 71 F.3d 513 (5 th Cir. 1995), cert. denied, 517 U.S. 1234 (1996) (Title VII).

2 discrimination actions and does not apply to actions alleging deprivation of constitutional rights. See Webster v. Doe, 486 U.S. 592, 603...(1988). 168 F.3d 520, 524 (D.C. Cir. 1999). 2 Other courts have held that Department of Navy v. Egan would not foreclose judicial review of a security clearance decision where there was a colorable constitutional claim. 3 The instant case exemplifies a recurring and significant issue facing the lower courts and is an ideal vehicle to resolve that issue. II. Constitutional challenges are not limited to statutes or agency policies Respondents next argue that even if Dept. of Navy v. Egan does not fully bar petitioner s claim, Webster v. Doe is inapplicable because it involved the interpretation of a statute, and in any event, a court can only address claims challenging an agency s policies, not individual actions. (Respondents brief,13-15). Both arguments fail. The appeal in Webster was 2 The Court has always distinguished between judicial review of an agency action based on an alleged violation of a statute and judicial review of an agency action based on a credible claim that the action violates the petitioners constitutional right. Richard J. Peirce, Jr., 3 Administrative law Treatise, 17.9, 4 th Ed., 2002 (Aspen Law & Business). 3 Oryszak v. Sullivan, 576 F.3d 522, 526 (D.C. Cir. 2009)(security clearance claims are non-justiciable except for constitutional claims); National Federation of Federal employees v. Greenberg, 983 F.2d 286, 289-290 (D.C. Cir. 1993) (It is simply not the case that all security clearance decisions are immune from judicial review); (Dorfmont v. Brown, 913 F.2d 1399, 1401-04 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (court lacks jurisdiction except where an individual has a colorable constitutional claim).

3 twofold, under the National Security Act and directly under the Constitution. This Court upheld the CIA Director s discretion under the Act because Doe had not met the heightened showing required to show that congress did not intend to make that discretion absolute under the statute, a showing necessary in order to avoid the serious constitutional question that would arise if a federal statute were construed to deny any judicial forum to a colorable constitution claim. 486 U.S. 592, 603 (1988). However, this Court continued, Nothing in 102 ( c) persuades us that Congress meant to preclude consideration of colorable constitutional claims arising out of the actions of the Director pursuant to that section; we believe that a constitutional claim based on an individual discharge may be reviewed by the District Court. We agree with the Court of Appeals that there must be further proceedings in the District court on this issue (emphasis added). 486 U.S. 592, 603-604. Respondents further argue that Webster v. Doe stands only for the proposition that an individual can challenge an agency policy which infringes upon a constitutional right. (Respondents brief, 15). This too is incorrect; the clear reading of Webster shows that it did not so hold. In Webster it was admitted by the government that it was the CIA s practice to make security clearance decisions on a case by case basis and not a broad sweeping policy. The Court noted: [T]he Deputy General Counsel of the CIA later informed respondent that homosexuality was merely a

4 security concern that did not inevitably result in termination, but instead was evaluated on a case-bycase basis. 486 U.S. 592, 602. 4 As noted above, this Court held that we believe that a constitutional claim based on an individual discharge may be reviewed by the District Court. 486 U.S. 592, 603-604. The notion that there is an exception to Egan for constitutional challenges to policies, but not to individual decisions makes little sense. Insulating an unconstitutional action from any judicial review raises serious due process concerns whether it is a decision stemming from an unconstitutional policy or from a discrete unconstitutional agency decision. For that reason, this Court in Webster v. Doe acknowledged that a constitutional claim could proceed. III. This case presents an actual controversy not a request for an advisory opinion. Respondents argument that petitioner seeks to resolve a division of authority that might arise in the future, or simply seeks a resolution of which judge is correct in the case below is also wrong. Petitioner believes that all three of the 4 th Circuit judges incorrectly interpreted the holding in Webster v. Doe but for different reasons. The only thing on which they 4 The Government s brief filed at the Supreme Court in Webster v. Doe stated: Two security officers had told respondent that his homosexual activities violated Agency regulations, but the then- CIA Deputy General Counsel told respondent s attorney that homosexuality was a security concern that did not inevitably result in dismissal and was evaluated on a case-by-case basis. (Brief for Petitioner filed in Webster v. Doe, p. 4 (1987 WL 881344(U.S.) (Appellate Brief)).

5 could agree was that petitioner should lose. Judges Motz and Davis concurred only in the result, but not the reasoning of Judge Niemeyer who held that petitioner had not stated a colorable constitutional claim, but only challenged the agency s fact finding. Judges Motz and and Davis both agreed the petitioner had stated a colorable constitutional claim. Judge Motz, nevertheless, held that petitioner could only challenge an agency policy, not an individual decision. (Pet. App. 15-19). We submit that Judge Motz was wrong for the reasons stated above (Supra, p 3-4). We submit further that Judge Davis was wrong in finding that the holding of Webster v. Doe, referring the case for a hearing on the constitutional claims, was simply dictum (Pet. App. 22-23), and wrong in holding that it was a political question beyond the purview of the courts. (Pet. App. 21-22). The plain language of Webster v. Doe shows that it is neither. IV. The Courts are best suited to review constitutional claims Respondents argue that agencies should be free from judicial oversight of security clearance decisions, even in the face of colorable constitution claims, because the courts are non-expert outside bodies which are not well situated to review the agency s predictive judgments about a persons suitability for a security clearance. (Respondents Brief, 11). Courts are called upon every day to make judgments concerning highly technical matters such as patents, antitrust and environmental issues without being subject-matter experts in each issue brought before them. Due to their broad experience judges are best able to determine whether there is sufficient evidence to sustain a

6 position, whether a party s actions meet basic statutory or constitutional requirements, and how to balance conflicting national interests. Hamdi v. Rumsfeld, 542 U.S. 507, 528-29 (2004). Judges are experienced in determining burdens of proof, which side has that burden, and how much evidence is necessary to sustain a burden of proof. Eg., Davis v. Passman, 442 U.S. 228, 245 (1979). (experience in evaluating claims for back pay). In the instant case petitioner pled that he had provided voluminous evidence that the charity for which his wife worked, Islamic Relief USA, was not a risk to national security, and that respondents had provided no evidence to the contrary. (Pet. App. 47-50, 52-57). Petitioner argued from the very beginning that a denial of his security clearance based on no evidence violated his constitutionals rights. (Pet. Supp. App. 1-4). This court has held in a variety of cases that there must be some evidence to support an agency s decision, and the absence of at least some evidence would be unconstitutional. Douglas v. Buder, 412 U.S. 430 (1973) (per curiam); Schware v. Board of Bar Examiners, 353 U.S. 232 (1957); Thompson v. City of Louisville, 362 U.S. 199 (1960); Gregory v. City of Chicago, 394 U. S. 111 (1969). 5 A Federal District court certainly has the expertise to determine whether an agency has presented sufficient evidence to support its conclusions, a function courts perform daily. Respondents cite Executive Order 12,968, as setting out the due process procedure in adjudicating security 5 See, Gerald L. Neuman, The Constitutional Requirement of Some Evidence, 25 San Diego L. Rev. 631 (Sept./ Oct. 1988).

7 clearances. (Resp. brief 2-4). Section 5.2 of that Executive Order requires any decision to be based on evidence which is to be provided to the employee if requested, and Agency heads are required to promulgate regulations implementing that Section. Executive Order 12,968 5.2(c). 6 Yet the record in this case, which respondents stated was based entirely on open source information (Pet. App. 46), contains absolutely no evidence that the employment of petitioner s wife by Islamic Relief USA posed any security risk, while petitioner provided voluminous evidence that it did not. (Pet. App. 46-47, 50, 52-57). Respondents contend that a court, as an outside nonexpert body, would interfere with critical national security judgment calls necessary to make security clerance determinations (Resp. Brief 13), while petitioner, on the other hand, claims that his rights under the First, Fifth and Ninth Amendments were abridged when an adverse determination was made with no evidence to support it, and in the face of over whelming evidence to the contrary. As noted in another contested issue in Hamdi v. Rumsfeld, Sec. of Defense: Both of these positions highlight legitimate concerns. And both emphasize the tension that often exists between the autonomy that the Government asserts is necessary in order to pursue effectively a particular goal and the process that a citizen contends he is due before 6 It is long established that agencies are required to follow their own regulations. Service v. Dulles, 354 U.S. 363, 388 (1957); Vitarelli v. Seaton, 359 U.S. 535, 538 (1959).

8 he is deprived of a constitutional right.... Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad....; see also United States v. Robel, 389 U. S. 258, 264 (1967) ( It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties... which makes the defense of the Nation worthwhile ). 542 U.S. 507, 532 (2004). The entire record concerning petitioner s wife points to one common thread, her association with Islamic organizations in high school, college and work, none of which were shown to be subversive. Without any other evidence petitioner should not have had his security clearance revoked. CONCLUSION For the Foregoing reasons, the petition for a writ of certiorari should be granted.

DATE: November 6, 2013 9 Respectfully submitted, Sheldon I. Cohen Counsel of Record Law offices of Sheldon I. Cohen P.O.Box 4068 Oakton, VA 22124 (703)522-1200 sicohen@sheldoncohen.com Attorney for Petitioner

APPENDIX

i APPENDIX TABLE OF CONTENTS Appendix A Excerpt of Transcript, in the United States District Court for the Eastern District of Virginia, Alexandria Division (January 13, 2012)...App. 1

App. 1 APPENDIX A IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION 1:11cv1067 [January 13, 2012] MAHMOUD M. HEGAB, ) ) Plaintiff, ) ) -vs- ) ) LETITIA A. LONG, et al, ) ) Defendants. ) ) Courtroom 1000 U.S. District Courthouse Alexandria, Virginia Friday, January 13, 2012 The above-entitled matter came on to be heard before the HONORABLE JAMES C. CACHERIS, Judge, in and for the United States District Court for the Eastern District of Virginia, in the Courthouse, Alexandria, Virginia, beginning at 10:27 a.m.

App. 2 [p. 13] APPEARANCES: On Behalf of the Plaintiff: SHELDON COHEN, ESQUIRE On Behalf of the Defendants: BERNARD KIM, ESQUIRE MR. COHEN: Now, I submit, what would be the role of the Court in this case if you were to rule that you -- that the Court would hear the case? I don t suggest that the Court has to make a de novo review of the record, but I think the Court could set some evidentiary standard, however low it feels -- THE COURT: What would the standard be? MR. COHEN: That the Government must submit some evidence, some evidence, to show that its decision was not discriminatory. In this case, there is -- we have asked for some evidence. We have asked for -- for anything to show that there is reason to interfere with Mr. Hegab s right to associate with his wife who works at this organization. We have seen absolutely nothing. I think the Court puts out a standard where the Government could set a standard of some evidence on behalf of the Government to at least overcome its total lack of evidence here supporting this decision. Without that, we are left with a situation, we have a rule of men rather than a rule of law, people making decisions in secret, people making decisions contrary to common sense, [p. 14]

App. 3 contrary to the evidence, and this is what s led us down the road to -- THE COURT: You indicate the Court has some standard in order to review the agency decision. It would be arbitrary and capricious or what? I mean, I m trying to get to the standard, assuming the case proceeds. MR. COHEN: Arbitrary and capricious could be one way of phrasing the evidence, or perhaps a de minimis standard of the Government having to come forward with something to support its decision here. The Government in this case has refused to present any evidence supporting its decision. All of the evidence in this case that we ve -- that has been provided has been to the contrary, that there is nothing adverse to the organization that his wife works for, or worked for until today. It is a all-american charity recognized by every agency in the United States government, and for the NGA to deprive Mr. Hegab of his security clearance, of his job and of his future opportunities throughout the Government or anything that would require a clearance based upon his association with his wife who works for this organization, I submit, is just a blatant violation [p. 15] of his -- of his constitutional rights. THE COURT: All right. I understand your argument. MR. COHEN: Thank you, Your Honor.