In plaintiff's suit against the Department of Energy (DOE) and its Acting Deputy Secretary claiming that the revocation of his security clearance and his subsequent termination was based on his political speech and because he is a Muslim, in violation of the U.S. Constitution and the Administrative Procedure Act (APA), dismissal of his claims is affirmed where: 1) the district court erred in dismissing plaintiff's First Amendment claim for lack of jurisdiction but it nevertheless is affirmed for failure to state a claim upon which relief can be granted because the legal framework applicable to that claim would demand from the DOE an explanation of its decision to revoke his clearance, plus allow a factfinder to weigh the DOE's arguments in support of that decision, and prior case law forbids both; 2) plaintiff's equal protection claim under the Fifth Amendment fails for a similar reason; and 3) plaintiff's claims of due process violations and violations of the APA were properly dismissed for failure to state a claim as plaintiff's security clearance was revoked in accordance with Executive Order 12968 and DOE regulations.
On Appeal from the United States District Court for the Middle District of Pennsylvania
Opinion Filed January 11, 2010
Opinion by Circuit Judge Smith
For Appellant: Keith E. Whitson, Schnader Harrison Segal & Lewis
For Appellee: Beth S. Brinkman, US Department of Justice, Civil Division