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Constitutional Challenges To Security Clearance Revocations Are Permissible


In El-Ganayni v. U.S. Dep't of Energy, 591 F.3d 176 (3d Cir. 2010), the court found that it had jurisdiction to hear constitutional challenges to an agency's decision to revoke a security clearance, provided it could do so without examining the merits of the revocation decision. In this case, the court concluded that it was not possible avoid review of the merits of the agency's decision, either when assessing the plaintiff's affirmative case alleging violations of First Amendment rights to free speech and free exercise of religion and the Fifth Amendment right to equal protection or when evaluating the agency's anticipated defense, so affirmed the dismissal of the constitutional challenges.

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Alan W. H. Gourley
Partner – Washington, D.C., London
Phone: +1 202.624.2561 , +44.20.7413.1342