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Makky v. Chertoff

Dr. Wagih H. Makky was a world-renowned aviation security expert and engineer who was suspended from the Transportation Security Administration. The complaint in the case alleged that his suspension was on account of his Arab and Muslim heritage. Dr. Makky was suspended on the day the United States invaded Iraq, for reasons that have been kept secret from him. Even before he was finally suspended, Dr. Makky faced persistent prejudice at work. One supervisor told him that it had been a mistake to hire an Arab; another opined to him that "Muslims have no brains." A classified FBI file that was kept in the private safe of his supervisor and that supposedly formed the basis for his determination has been withheld from Dr. Makky during administrative proceedings initiated by his lawyers to uncover it. This suit raised employment discrimination and civil service protection claims for back wages, and due process claims. It also raised Freedom of Information Act claims in order to allow Dr. Makky to see the classified file supposedly containing the reasons for his suspension that have been withheld from him. Because courts cannot review security clearance determinations, the discrimination claim was limited to the fact that Mr. Makky should have been transferred or assigned other work after losing his security clearance (as others had been). On May 31, 2007, the District Court dismissed this lawsuit against the Transportation Safety Authority. The court ruled that, since it was not permitted to review security clearance decisions, it would not be able to address Dr. Makky’s discrimination claims. The Third Circuit Court of Appeals affirmed this decision.

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