Dr. Wagih Makky was born in Egypt and came to this country as a young man. He received his Ph.D. in electrical engineering here and became a U.S. citizen. After the bombing of Pan Am Flight 103 over Lockerbie, he was recruited to help create a program within the FAA (now within the TSA) to detect and prevent explosives from being brought aboard airplanes. He worked in that program until the day the United States invaded Iraq. That day he was placed on leave by a supervisor who had made derogatory remarks around the office about Arabs and Muslims. Dr. Makky was later indefinitely suspended.

In January 2005 TSA proposed to revoke Dr. Makky’s security clearance for reasons that seemed to us insubstantial if not bogus, and we agreed to represent him in resisting the revocation. Through FOIA and Privacy Act requests and appeals, we eventually obtained the documents on which the agency’s decision was based (except the documents that were said to be classified). Based on our advocacy in the administrative process, TSA found, in March 2006, that Dr. Makky had “successfully mitigated” all but one of the proposed grounds for the revocation. Of course that ground—“association with foreign nationals and/or individuals connected with a foreign government and your responses to questions posed to you by the FBI [on that topic]”—was the one regarding which the crucial documents had not been disclosed, making it impossible to respond. We filed an appeal to the Department of Homeland Security’s Security Appeals Panel, which was denied in August 2006.

We also represented Dr. Makky in an appeal to the Merit Systems Protection Board from his suspension without pay. After an evidentiary hearing in January 2006, an Administrative Judge upheld the suspension, finding that TSA had provided him with an adequate statement of the reasons for his suspension and rejecting his claim of national origin and religion discrimination. We petitioned for review by the full MSPB, which was denied in August 2006.

In September 2006, we filed suit in federal court. The government moved to dismiss his discrimination and due process claims on the ground that a court can’t review security clearance determinations and that Dr. Makky’s job suspension was a proper result of the suspension of his security clearance. The government also moved for summary judgment on his Freedom of Information claims on the ground that they sought classified information that would reveal secret “sources and methods.” We opposed those motions, but in May 2007 the district court accepted the government’s position on all these issues.

We appealed, but in August 2008 the Third Circuit affirmed. In its view, the fact that Dr. Makky had presented a claim of unlawful employment discrimination with evidence that a judge or jury could accept, was irrelevant because his failure to have an active security clearance precluded any remedy, and the court could not look behind the revocation of his clearance.

Pro Bono Law Firm(s)

Akin Gump Strauss Hauer & Feld LLP, Seton Hall Law School

Date filed

January 1, 2005