Appendix — Schowengerdt v. United States

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

No.

RICHARD NEAL SCHOWENGERDT, PETITIONER

Vv.

THE UNITED STATES OF AMERICA, ET. AL.

APPENDIX

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

APPENDIX G

APPENDIX H

INDEX TO APPENDICES

Opinion of the Ninth Circuit

Court of Appeals filed 6 September 1991

District Court Opinions, Orders,

Findings of Fact, and Conclusions of Law

Opinion of the Ninth Circuit

Court of Appeals filed 30 July 1987

Petitioners Fourth Amended Complaint

dated 25 February 1988

Excerpt from Security Services Agreement

Between General Dynamics/Pomona Division

And the Naval Plant Reresentative Office

For Security Support Services 27 Apr 1982

Excerpt from Naval Investigative Service

dated 16 September 1982

Excerpt from Defense Investigative Service

Report dated 22 August 1983

Excerpt from Petitioner's Performance Record

OQ (7

APPENDIX A Opinion of the Ninth Circuit

Court of Appeals filed 6 September 1991

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD NEAL SCHOWENGERDT,

Plaintiff-Appellant,

Vv.

Untrep STATES OF AMERICA,

DEPARTMENT OF THE Navy; JOHN F.

LEHMAN, JR., Sec. of the Navy;

GENERAL DyNaMIcs CORPORATION,

C.W. KesseL; K.D. TILLoTson,

Cari W. Jensen; Ricnarn S. Day,

Defendants-Appellees.

RICHARD NEAL SCHOWENGERDT,

Plaintiff-Appellant,

Vv.

Untrep STATES OF AMERICA,

DEPARTMENT OF THE NAVY; Joun F.

LEHMAN, Jr., Sec. of the Navy,

Defendants-Appellees.

No. 89-55733

D.C. No.

CV-83-8007-AAH

No. 90-55191

D.C. No.

CV-83-8007-AAH

OPINION

Appeal from the United States District Court

for the Central District of California

A. Andrew Hauk, District Judge, Presiding

Argued and Submitted

March 8, 1991—Pasadena, California

Filed September 6, 1991

12451

a Ha ee

12452 ScHowENcERDT v. Unrrep States

Before: William C. Canby, Jr. and Pamela Ann Rymer,

Circuit Judges, and James Ware,* District Jduge.

Opinion by Judge Canby

SUMMARY

Constitutional Law

Affirming a district count grant of summary judgment, the

court of appeals held that a Navy civilian engineer with a

Secret” security classification had no reasonable expectation

of privacy in his office, desk or credenza requiring a search

warrant before personal items were seized.

Appellant Richard Neal Schowengerdt was employed

the Navy as a civilian engineer to work on etn ss

related projects, for which he had a “secret” secunity classifi-

cation. Extensive security precautions are taken at the facility

including the search of employees’ offices and office furni-

ture. Employees knew of the security procedures and con-

cems. Acting on a tip, an investigator searched

Schowengerdt's office without his consent Or a search war-

rant. Documents were found in an envelope in his credenza

indicating involvement in bisexual and heterosexual activites.

More items were seized during a second search.

Schowengerdt’s Supervisor concluded that, on the basis of the

lems seized, Schowengerdt fit the profile of a person suscep-

uble to blackmail by hostile intelligence agents. Information

reflecting adversely on Schowengerdt’s security status was

made known when he obtained employment with a private

military contractor. Subsequenuly, Schowengerdt was dis-

charge from the Navy pursuant to its regulations requiring

*The Hooorable James Ware, United States Distnct Jud

Northern Distnict of Calfornia, sitting by designation er

2,3

ScHowenceRpt v. Unrrep STATES 12453

discharge of homosexuals, including bisexuals. Schowengerdt

filed suit against the Navy under Section 1983, alleging viola-

tions of his civil rights. The district court granted summary

judgment in favor of the Navy, concluding that no warrant

was required for the searches.

{1] The court agreed that the operational realities of

Schowengerdt’s work place precluded his having an objec-

tively reasonable expectation of privacy in his office, desk or

credenza. [2] Whether locked or not, Schowengerut’s office

was searched daily, in his absence, by guards specifically

looking for security violations. The primary focus of those

searches was on the proper storage of classified documents,

for which employees also checked each other. [3] In this

peculiarly unprivate work environment, Schowengerdt had no

reasonable expectation of privacy in his desk and credenza,

locked or unlocked. [4] Schowengerdt was on notice from his

employer that searches of the type to which he was subjected

might occur from time to time for work-related purposes. On

that ground, the court affirmed the grant of summary judg-

ment.

[5] Schowengerdt’s claims stemming from his discharge

from the Naval Reserve were also meritless. The first amend-

ment was not violated because he was not discharged for writ-

ing about bisexuality but rather for being a bisexual, of which

his purely private correspondence was evidence. Neither did

his discharge violate due process because he was afforded

abundant opportunity to object to his discharge and to have

his objections heard by an administrative board. [6]

Schowengerdt’s substantive due process argument, based on

a might of privacy, was also meritless. [7] Schowengerdt’s

argument that his discharge was arbitrary and capricious

because he was never proven to be a bisexual was also merit-

less. The discharge board made an express adverse credibility

finding in that regard, and found him to be a bisexual. That

determination was supported by substantial evidence.

12454 ScHOWENGERDT v. Unrrep States

COUNSEL

Richard Neal Schowengerdt, Pro Se, Lak Californi

for the plaintiff-appellant. — ‘ae

Donna R. Eide, Assistant United Siates Attomey:

°s : mey;, Nancy P.

McClelland, Gibson, Dunn & Crutcher, Los Angeles, Califor.

nia, for the defendants-appellees.

OPINION

CANBY, Circuit Judge:

Richard Schowengerdt appeals from j

Richa chowenge summary judgments

dismissing his civil rights claims brought under 42 USC.

§ 1983. Schowengerdt’s claims arise out of the search of his

office, where he worked for the Navy as a civilian military

engineer on classified projects, and out of his is-

charge from the Naval Reserve. We affirm. a

I. Background

A. Underlying facts'

At the time of the events givi i i

giving rise tw this action,

Schowengerdt was employed by the Navy as a civilian engi-

neer to work On secret weapons-related projects, for which he

had a “secret” security classification. Schowengerdt was also

a Chief Warrant Officer in th i

edie ware in the Naval Reserve, assigned to a

The Naval Industrial Ordinance Plant in Po i

mona, Califor-

nia, where Schowengerdt worked, houses a ak sale

"The reievant facts have been related in this court's earlier ruling in this

action, Schowengerdt v. General Dynamics C 823 F

be 2d 1

1987) (*“Schowengerdi I"). For convenience, = repeat ronda ss

ScHowencerpt v. Untrep STATES 12455

projects of secret and top-secret military weapons design,

manufacture and testing. The plant is owned by the Navy, but

operated by General Dynamics Corporation, which provides

security services for the plant. Extensive security precautions

are taken at the facility. Those precautions include frequent

scheduled and random searches of work spaces by security

guards. General Dynamics also employs investigators to pur-

sue more detailed investigations into possible instances of

compromised security which come to their attention. To facil-

itate searches, security agents have access to keys to all

offices and office furniture.

Schowengerdt was well aware of these security procedures,

having been employed at this facility for thirteen years. He

had personally observed his office being searched on numer-

ous occasions to ascertain his compliance with procedures

relating to the proper storage of classified documents. Also,

all employees, including Schowengerdt, were required to

attend periodic security briefings, at which they were

informed of all security procedures. In those briefings, they

were made aware that the Navy's security concerns extended

beyond physical protection of classified documents, and

included concerns that employees not divulge classified infor-

mation to inappropriate sources. That concem encompassed a

variety of conditions which might compromise an employee's

ability to maintain security, including those which might

make an employee susceptible to blackmail.

On August 9, 1982, Charles Kessel, who was a security

investigator for General Dynamics, searched Schowengerdt’s

office, without his consent or a search warrant, after

Schowengerdt had left work for the day. That search was pre-

cipitated by an anonymous tip, stating that Schowengerdt’s

office contained materia! “of interest to the security

department.” Kessel’s search was confined to the credenza in

Schowengerdt’s office, which is where the informant said that

the material would be found. The parties dispute whether the

12456 ScHOWENGERDT v_ Unrrep STATES

nar s Schowengerdt’s office and to the credenza were

In the Credenza, Kessel found and seized a manila envelope

marked with the following notations on the Outside: “Strictly

Personal and Private. In the event of my death, please destroy

this material as I do not want my grieving widow to read it.”

bisexual activities. The corres indi

es. pondence indicated

Schowengerdt Solicited sexual encounters through want oy “s

Swingers magazines and clubs.

pe tha rg non pry ssid believed that government

not have a legiti j

ro ag egiumate expectation of Plivacy in

On the basis of the Correspondence contained in the manila

envelope, and the envelope’s external inscription, Jensen con-

Cluded that Schowengerdt fit the profile of a person Suscepti-

ble to blackmail by hostile intelligence agents.” Jensen * d

ScHOWENGERDT v. Unrrep STATEs 12457

began an investigation to determine whether Schowengerdt

constituted a security risk. He interviewed Schowengerdt,

who admitted to being a bisexual.” Jensen also obtained

Schowengerdt’s permission to search his home.

As a result of this investigation, Jensen concluded that there

was no evidence that plaintiff had been contacted by a hostile

agent or that he was the target of blackmail. Jensen wrote a

report of his investigation and transmitted that report to vari-

ous federal offices responsible for maintenance of security, as

well as to Schowengerdt’s Commanding Officer in the Naval

Reserve.

No action was taken against Schowengerdt by his

employer, other than an oral admonishment that he had exer-

cised poor judgment in storing the material in his office. His

security Clearance and duties remained unchanged. Shortly

after this incident, Schowengerdt resigned from his civilian

position with the Navy, and obtained employment with a pri-

vate military contractor. In the process of transferring

Schowengerdt’s security clearance from goverment employ-

ment to private employment, the agency responsible for estab-

lishing and monitoring security clearances inquired of the

Navy whether there was any evidence in Schowengerdt’s file

potentially reflecting adversely on his security stams. In

response, the Navy (through defendant Day) provided the

report of Jensen's investigation. Schowengerdt was ultimately

granted the security clearance he sought, bet only after a

delay of 13 months, caused, in part, by an inquiry into the

nature of the earlier investigation.

Upon receiving Jensen's security investigation report, the

Naval Reserve commenced discharge proceedings, pursuant

to its regulations requiring discharge of homosexuals, includ-

*Schowengerdi denied making this admission, but the Navy Discharge

Board ruled against him, making an adverse credibility finding. The dis-

tinct court accepted the Board's finding.

12458 Saiowencerpt v. Usrrep STATES

ing bisexuals. The bases for those proceedings we

Schowengerdt’s purported statement that he was a Seen

Charge, maintaining that he was not a bisexual. He denied

descnibing himself to Jensen as a bisexual, and asserted that

his correspondence describing bisexual activity was mere

charged.

B. Procedural History

Schowengerdt filed this action against the Uni

ted States,

os Department of the Navy, and their employees involved in

search and ensuing investigation. He also sued General

Dynamics and its employee Kessel. He charged that the

Speech, and to freedom from unreasonable searches i

and sei-

ZUres, as protected by the first, fourth, fifth, sixth and ninth

amendments, as well as various federal statutes. He also

ScHOWENGERDT Vv. Untrep States 12459

dismissed Schowengerdt’s claims based on his discharge from

the service because he had not yet exhausted his administra-

tive remedies in that regard. Schowengerdt appealed those

rulings to this court.

In Schowengerdt v. General Dynamics Corp., 823 F.2d

1328 (9th Cir. 1987) (“Schowengerdt I’), we affirmed the dis-

missal of Schowengerdt’s various statutory claims and state

law claims. We remanded the claims arising out of

Schowengerdt’s discharge from the Naval Reserve, because

government counsel acknowledged at oral argument that

Schowengerdt had, by then, exhausted his administrative rem-

edies. We reversed the district court’s fourth amendment rul-

ing, holding that the district court had erred in concluding that

Schowengerdt could not prove an unreasonable search

because he was a government employee, and because his desk

and credenza were the property of the government. We held

that

Schowengerdt would enjoy a reasonable expectation

of privacy in areas given over to his exclusive use,

unless he was on notice from his employer that

searches of the type to which he was subjected might

occur from time to time for work-related purposes.

Schowengerdt I, 823 F.2d at 1335 (foomote omitted).

We remanded for factual findings “relevant to the existence

and scope of policies and practices or regulations relating to

searches at the Naval facility.” Jd. Finally, we stated that:

(I]f it is found that Schowengerdt had a reasonable

expectation of privacy, under O’Connor v. Ortega,

107 S.Ct. 1492 (1987), a warrantless search of his

office nevertheless could be legal if the search was

both work-related — that is, carried out to retrieve

the employer’s property or to investigate work-

12460 SGHOWENGERDT v. Untrep States

related misconduct — and ‘reasonable’ under the

circumstances.

Id.

On remand, the district court granted summary judgment

dismissing all of Schowengerdt’s claims. The district count

rejected Schowengerdt’s fourth amendment claim, finding

that, because of the extensive security procedures in place at

the facility, he had no reasonable expectation of privacy in his

Office, desk or credenza. Thus, the district court concluded

that no warrant was required for these searches.‘

The district court also granted summary judgment in favor

of the Navy on Schowengerdt’s constitutional claims chal-

lenging his discharge on the ground of his bisexuality. The

district court held that: the first amendment was not violated

because Schowengerdt’s correspondence was not a matter of

public concern, nor was he discharged for exercising his

speech; the fourth amendm nt was not violated because

Schowengerdt’s discharge w nota consequence of an illegal

search; the fifth amendment’, procedural protections were not

violated because he was accorded an ample pre-termination

hearing; and Schowengerdt’s substantive due process or equal

protection claims did not survive the deferential review

accorded to the Navy's action in discharging him. This appeal

followed.

Il. Discussion

Schowengerdt argues that the district court committed

numerous errors. We disagree. We have reviewed all of

“Because we affirm the district court's ruling that Schowengerdt had 00

expectation of privacy in the areas searched, we do not address the district

court's alternanve rulings that the search was a reasonable, work-related

search, and that the defendants conducting the search were enntled to

qualified immunity.

iy.

SCHOWENGERDT Vv. UntreD STATES 12461

Schowengerdt’s arguments and find them meritless. We will

discuss here only those arguments regarding the legality of

the search of his office, his conspiracy claim, and his claims

arising out of his discharge from the Naval Reserve.

A. Fourth Amendment

[1] On remand from Schowengerdt I, the district court was

presented with extensive uncontroverted evidence relevant to

Schowengerdt’s expectation of privacy. The district court

concluded that “the operational realities” of Schowengerdt’s

work place precluded his having an objectively reasonable

expectation of privacy in his office, desk or credenza. After

de novo review of that conclusion, United States v. McCon-

ney, 728 F.2d 1195, 1203 (9th Cir.), cert. denied, 469 US.

824 (1984), we agree. Schowengerdt may have had a subjec-

ve expectation of privacy in his credenza, or the manila

envelope i it, but that expectation was not objectively rea-

sonable.

All employees at this facility were well aware of its

extremely tight security procedures. Upon entering and leav-

ing the building, and in the innermost recesses of their offices,

employees were constantly being searched and surveilled for

compliance with security precautions in a manner that would

be considered unduly invasive in a more conventional work

place.

[2] Whether locked or not, Schowengerdt’s office was

searched daily, in his absence, by guards specifically looking

for security violations. The primary focus of those searches

was on the proper storage of classified documents, for which

employees also checked each other. Schowengerdt himself

testified that, when it was his turn to search his fellow

employees’ offices, he would pull on drawers to see whether

they were locked and, if they were not, he “might be inclined

to look inside and see if there were any documents lying

loose, classified documents.”

12462 Scsowencennt v. Untrep STATES

[3] There is conflicting evidence offered as to whether

Schowengerdt’s credenza was locked at the ime of the

searches in question. This is not a dispute of material fact,

however, as Schowengerdt was well aware that secunty

investigators had access to duplicate keys should they wish to

pursue an investigation into his locked desk or credenza. In

this peculiarly unprivate work environment, Schowengerit

had no reasonable expectation of privacy in his desk and cre-

denza, locked or unlocked.

Schowengerdt argues that this constant surveillance was

confined to enforcing compliance with regulations for secur-

ing classified documents, which were clearly marked as such,

and that other materials that were clearly personal were not

subject to search. Uncontroverted evidence refutes his argu-

ment. Schowengerdt and his fellow employees were well

aware that the Navy was extremely concemed about the var-

ety of ways by which classified information could be divulged

to inappropriate sources, other than through the loss or theft

of inadequately secured documents.’ They were also aware

that the facility employed security investigators, as disunct

from security guards, whose job it was to investigate possibil-

ities of such breaches of security. In er an ge

investi were authorized to “look into more

rg a ait wu look into, . . . [into] details that a guard

would not be expected to look into, trying to determine what

actually happened ip 8 situation.” Schowengerdt knew that

these investigators had access to keys to his office, desk and

credenza.

[4] Given that peculiar environment, Schowengerdt did not

have a reasonable expectation of privacy in his office or in his

jocked credenza, or in a manila envelope stored in the cre-

"Eg. Schowengerdt testified that the Navy was concermed tat employ-

ces might be tempted to sell classified information, or mgbt be euther

induced or blackmailed into divulging informavon as a result of a roman

tic or sexual liaison.

(2,72

ScHOWENGERDT v. Unrrep STATES 12463

denza which indicated on its exterior that it contained infor-

mation which he wanted kept secret from his wife. He should

have known that his credenza, even if locked, was subject to

search, and that the inscnpuon on the manila envelope would

serve only to trigger the curiosity of an investigator, or any

fellow employee, trained to be alert w possibilities of

blackmail.* In short, Schowengerdt was “on notice from his

employer that searches of the type to which he was subjected

might occur from time to time for work-related purposes.”

Schowengerdt I, 823 F.2d at 1335. On that ground, we affirm

the district court’s grant of summary judgment dismissing

Schowengerdt’s fourth amendment claim.

B. Conspiracy

Schowengerdt has maintained throughout this litigation that

the search of his office was the resuit of a conspiracy on the

part of his superiors to retaliate against him for having gone

“over their heads” with a cost-saving suggestion that they had

earlier rejected. To prevail on this claim Schowengerdt must

“Schowengerdt’s own stalements in his briefs on appeal before this

court nearly concede this pomt

Duplicate keys are for necessary work-related matters m the

absence of the employee and when a cnitical need arises to enter

his desk or file cabinet. Keys are not intended for the purpose of

browsing around to see what you can find out about an employee

and they are not intended for intelligence specialists to gain pri-

vate information about employees without a warrant This is not

to preclude an investigation when it is warrantied, i.e. when an

indication that a security compromise has been made or is being

contemplated by an employee because of some reason which has

come to their atiention os there is evidence of thefi, etc. (Empha-

sis added.)

That Kessel’s mitial search was “warranicd” is also conceded:

While plaintiff agrees that Kessel was compelled to investigate to

the extent of an initial examination of the maternal in the manila

covelope, the investigation should have ended there under the

rules in force at the Pornoaa facility.

12464 Schowencerot v. Unrrep States

show that the defendants agreed among themselves to act

against him unlawfully, or for an unlawful purpose. Vieux v.

East Bay Regional Park Dist., 906 F.2d 1330, 1343 (9th Cir.),

cert. denied, 111 S.Ct. 430 (1990). To survive the defendants’

motion for summary judgment, Schowengerdt must provide

specific evidence establishing those facts. Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986). Schowengerdt has not

done so. He has only repeated the allegations in his complaint,

based on inference and speculation. The district court prop-

erly granted summary judgment on this claim.

C. Discharge from the Naval Reserve for Bisexuality

{5} Schowengerdt’s claims stemming from his discharge

from the Naval Reserve are also meritless. The first amend-

ment was not violated because he was not discharged for writ-

ing about bisexuality but rather for being a bisexual, of which

his purely private correspondence was evidence.’ See Pruitt v.

"Schowengerdi was discharged pursuant to Secretary of the Navy

Instructions (SBCNAVINST) 1900.9D. They provide, in relevant part

4. Policy Homosexuality is incompatible with mulitary services

--++ The presence im the military environment of persons «ho

engage @ bomosexual conduct or who, by their statements dem-

onstrate & propeasity to engage in homosexual conduct, seriously

impairs the accomplishment of tae military mission... Such

persons shall normally be separated from the naval service in

accordance with this structions.

5. Definitions.

b. Bisexual means a person who engages iw. desires to

engage in, or intends to engage in homosexual and betero-

sexual acts.

7. Bases For Admuustrative Separation.

—_—_——-_ _—

4,16

ScHOWENGERDT v. Untrrep STATES 12465

Cheney, No. 87-5914, slip op. 11295, 11302-05 (9th Cir. Aug.

19, 1991); Johnson y. Orr, 617 F.Supp. 170, 178 (E.D.Ca.

1985), aff d, 787 F.2d 597 (9th Cir. 1986). His discharge did

not violate procedural due Process because he was afforded

abundant Opportunity to object to his discharge and to have

his objections heard by an administrative board, before as

well as after termination. See C, leveland Board of Education

v. Loudermill, 470 U.S. 532, $43 (1985).

[6] Schowengerdt’s substantive due process argument,

based on a right of Privacy, is also meritless. We have

rejected such a challenge to regulations nearly identical to

those requiring Schowengerdt’s discharge here, and we did so

under a higher level of scrutiny than is Currently required. See

Beller v. Middendorf, 632 F.2d 788, 809 (1980), cert. denied,

454 U.S. 855 (1981) (holding the Naval policy of mandatory

discharge of homosexuals does not violate substantive due

process, under a level of scrutiny “somewhere between” the

two standards of “rational basis” and “strict” scrutiny.) See

also High Tech Gays v. Defense Industrial Security Clearance

Office, 895 F.2d 563, 571 (9th Cir. 1990) (stating that Bowers

v. Hardwick, 478 U.S. 186 (1987), “overruled” Beller, as

applying too high a level of scrutiny). Thus, Schowengerdt’s

argument for a substantive due Process violation here is pre-

cluded by Beller, Hardwick, and High Tech Gays*

b. A member shall be Separated under this instruction if, but

(2) The meme: has stated that he or she is a homosex-

ual or bisexual unless there is a further finding that

the member is not homosexual or bisexual.

"We do oot address the allegation of Schowengerdt’s complaint that the

Navy regulatons violate equal protection. An equal protection objection

1989) (ea banc) (Norris, Concurmng), cert. denied, 111 S.C. 384 (1990),

12466 Scnowencernr v. Unrrep States

[7] Schowengerdt’s argument that his discharge was arbi-

trary and capricious because he was never proven to be a

bisexual is also meritless. Schowengerdt denies that he is a

bisexual. He asserts that his correspondence was fantasy-

writing, and he denies that he told the security investigator

that he was a bisexual. The discharge board, however, made

an express adverse credibility finding in that regard, and

found Schowengerdt to be a bisexual. In light of the investi-

gating agent’s statement, and Schowengerdt’s correspon-

dence, the Board’s credibility determination was supported by

substantial evidence.” It cannot, therefore, properly be charac-

terized as arbitrary or capricious. Finally, Schowengerdt's

ninth amendment argument is meritless, because that amend-

ment has not been interpreted as independently securing any

Constitutional rights for purposes of making out a constitu-

tional violation. See Standberg v. City of Helena, 791 F.2d

744 (9th Cir. 1986).

ll. Conclusion

The search of Schowengerdt’s office, desk and credenza

without a warrant did not violate the fourth amendment in

light of the extreme security measures regularly taken in this

workplace. The routine practice of searching employees, their

work spaces, and their office furnishings precluded

Schowengerdt from having a reasonable expectation of pri-

Beller v. Middendorf, 632 F.2d at 807. Schowengerdt waived any equal

protechoa challenge be may have bad to the Navy's policy, however, by

failing, as be acknowledged at oral argument, to advance such a conien-

Gon on this appeal. He has instead confined himself to arguing that be was

incorrectly found wo be a bisexual.

ScHowencexot v. Unrrep States 12467

vacy in his office, desk or credenza. Schowengerdt’s dis-

charge from the Naval Reserve must also be affirmed Sonnaes

he has raised no consututional challenge which is not fore-

Findings of Fact, and Conc

APPENDIX B District Court Opinions, Orders

}

(901 SF VECOR

/ ROBERT C. BONNER a

1|| United States Attorney Fii [>

FREDERICK M. BROSIO, JR. F

2\| Assistant United States Attorney pa ar

Chief, Civil Division

3|| DONNA R. EIDE DEC 2 9 1988

Assistan! United States Attorney : ;

4 1 e United States Courthouse CLERK. U.S. O'STRICT COURT

» ‘ov 3 iorth Spring Street CENTRAL DISTRIC. -« -...UFOR

Y 5 Sbngeles, California 90012 bY ae ,

A e lephone: (213) 894-2448 we

nS Clery us pie.

a y$ for Federal Defendants —

DEC 3 0 1988

FOR THE CENTRAL DISTRICT OF CALIF TEE.

No. CV 83-8007-AAH( Px)

: UNITED STATES DISTRICT COURT

10 }| RICHA NEAL SCHOWENGERDT,

++ . Plaintiff,

12 V.

13] THE UNITED STATES OF AMERICA,

DEPARTMENT OF THE NAVY,

14]| JOHN LEHMAN, SECRETARY OF THE

NAVY; GENERAL DYNAMICS

18 || CORPORATION; C. W. KESSEL;

K. D. TILLOTSON; CARL W.

16]| JENSEN, and RICHARD §S. DAY,

—

Kttonbe s~ 1

Date: NOvemperm=t , 1988

Time: 10:00 a.n.

a ed

17 Defendants.

19 Defendants Day, Jensen and Tillotson's Motion for Summary

20 || Judgment came on regularly for hearing on Monday, Noveoriet=—?i |,

_—

fii

Che

21/1/1988, before the Honorable A. Andrew Hauk, United States District

22 || Judge, and the Court having considered the pleadings, the

23 || memorandum of points and authorities, exhibits, declarations and

24 || depositions and the oral argument at the time of the hearing, and

25 \}in accordance with the findings of fact and conclusions of law

26 li}entered herein,

27 I ///

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IT IS THEREFORE ORDERED that judgment be and the same hereby

is entered in favor of the defendants and against the plaintiff,

and that this action is dismissed with prejudice as to defendants

Day, Jensen and Tillotson.

DATED: ALteintt 7X , 1988.

/ -

UNITED STATES DISTRICT JUDGE

PRESENTED BY:

ROSERT C. BONNER

United States Attorney

FREDERICK M. BROSIO, JR.

Assistant United States Attorne

Chief, Civil Division

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DONNA R. EIDE

Assistant United States Attorney

Attorneys for Defendants Day,

Jensen and Tillotson

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DONNA R. EIDE 13a - CENTRAL DISTRI- “a

Assistant United States fee Reys osTnct.co' 7 BY

1100 United States C urfresse

312 North Spring Strdet' '

Los Angeles, California ‘9 DEL: | 21088

Telephone: (213) 894-2448

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Attorneys for Federal Defendants

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

RICHARD NEAL SCHOWENGERDT, No. CV 83-8007-AAH(Px)

Plaintifé, FINDINGS OF FACT AND

Vv. CONCLUSIONS OF LAW IN RE

MOTION FOR SUMMARY JUDGMENT

THE UNITED STATES OF AMERICA,

DEPARTMENT OF THE NAVY,

JOHN LEHMAN, SECRETARY OF THE

NAVY; GENERAL DYNAMICS

CORPORATION; C. W. KESSEL;

K. D. TILLOTSON; CARL W.

JENSEN, and RICHARD S. DAY,

FILED ON BEHALF OF DEPENDAMYS

TILLOTSON, JENSEN AND DAy

Defendants.

ee 8 te te tee

The defendants’ Motion for Summary Judgment came on for

hearing on x - 1988 before the Honorable A. Andrew Hauk,

United States District Judge. After having considered the

pleadings, the moving and opposition papers and accompanying

documents, exhibits, declarations, and depositions and the oral

argument at the time of the hearing, the Court makes the

following Findings of Fact and Conclusions of Law:

—

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FINDINGS FACTS

Nature Of The Action

i This action is brought against eight defendants an‘

includes four causes of action. The motion for Summary judgment

was brougnt on behalf of defendants Tillotson, Jensen and Day

(hereinafter the individual federal defendants) who are sued in

their individual capacities under a constitutional tort theory of

liability established in Bivens v. Six Unknown Named Agents of

*he Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29

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71) in "Count II" of the fourth amended complaint.

mThe action arises from the search of plaintiff's office desk an3

credenza on August 9, 1982 at the Naval Industrial Reserve

Ordnance Plant at Pomona, California (the °*Facility”).

r The plaintiff lleges that defendants Tillotson ani

Jensen violated and conspired to violate his Fourth Amendment

rights by searching his desk and credenza, and that defendanis

Day, Tillotson and Jensen violated and conspired to violare his

First Amendment rights by later disclosing to others the

discoveries made during the search.

Tne Parties

i On August 9, 1982 plaintiff was a civilian engineer

employed in a civilian capacity by the United States Navy

("Navy") at the Facility, and a chief warrant officer in the

Naval Reserve.

4. At all times relevant to this case General Dynamics

Corporation ("General Dynamics") was a private corporation

contracted by the Navy to provide, inter alia, the maintenance

and security at the Facility. Defendant Charles Kessel

("Kessel") was employed by General Dynamics as an investigator in

the Security Division.

3. At all times relevant to this case defendant Kenneth D.

Tillotson ("Tillotson") was a Lieutenant Commander in the Navy

stationed at the Facility. He was the Acting Commanding Officer

at the Facility in August 1982.

6. At all times relevant to this case defendant Carl Jensen

("Jensen") was employed as 4 Special Agent for the Naval

Investigative Services ("NIS"), assigned to the Office of the

Special Agent-in-Charge at El Toro, California. His duties were

to conduct criminal and counterintelligence investigations and

operations for the Navy.

7. At all times relevant to this case Defendant Richard S.

Day ("Day") was employed by the Navy in a civilian capacity as

the Security Officer Stationed at the Navy Ship Weapons System

Engineering Station ("NSWSES") at Port Hueneme, California. He

was the head of the security office responsible for processing

(but not granting) security clearances for civilian and military

Navy personnel, including plaintiff's clearance. His duties were

to request security clearance investigations, review the

applications and requests for security clearance packages to

ensure they were complete and accurate, and forward the packages

to the Defense Investigative Services ("DIS"), the agency

responsible for conducting security clearance background

investigations. If the DIS investigation and determination was

favorable, that office would notify Day's office, and his office

would then issue a4 certificate of clearance.

Factual Background

8. The Facility is a United States Navy-owned installation

where a variety of secret and top-secret military weapons systems

are planned, designed and manufactured. The Facility is occupied

jointly by General Dynamics Pomona Division and military and

civilian employees of the Navy. It houses approximately 7000

employees, of which 15% are employed by the Navy and 85% by

General Dynamics. The vast majority of the General Dynamics

employees at the Facility work in the areas of weapons research,

development, engineering and production, and approximately 95% of |

these employees are tr quired to have United States government

security clearances to work at the Facility.

o. The Facility is an enormous complex occupying over 160

acres and dozens of buildings. Chain link fences topped with

barbed wire and interwoven with electronic sensing devices

surround the Facility. In addition a steel cable is installed in|

the fence several feet above ground so that vehicles cannot

penetrate it. Concrete barriers fortify the lobby areas, while

vehicle entrances are secured not only by guard stations but also

with hydraulic barriers which block the passage of vehicles

through the gate until inspection is complete. Closed circuit

cameras located throughout the Facility are monitored by General

Dynamics security officers twenty-four hours a day.

10. General Dynamics’ security duties include general

maintenance and plant protection as well as monitoring the use

and storage of classified government information, guarding the

pedestrian and vehicle entrances and exits to the Facility anc

certain buildings within the Facility, ensuring that classified

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information is not removed from the Facility and preventing

prohibited items from being brought into the Facility. The

contract between NAVPRO and General Dynamics also requires

General Dynamics to “investigate act(s) of alleged espionage or

sabotage” and report the findings to NAVPRO.

The Plaintiff

11. A military industrial engineer for over 27 years.

plaintiff has had extensive and on-going exposure to the security

regulations and procedures governing the defense industry.

Plaintiff was also a member of the Naval Reserve from July, 1972

until June, 1984. Since his discharge from the Navy in 1954,

plaintiff has held a variety of civilian positions with the Navy,

the Rir Force and the private sector, all involving weapons

systems engineering.

12. In addition, from 1966 through 1968 plaintiff had his

own consulting firm which specialized in weapons systems

engineering. He obtained a secret industrial clearance for his

business and for himself which authorized him to maintain

classified government documents at his home. Plaintiff converted

a portion of his home into an office, which the Defense

Industrial Security Clearance Office ("DISCO") inspected

regularly to ensure compliance with government regulations

regarding the maintenance and storage of classified documents.

Plaintiff understood that under the terms of his clearance, any

area in his home that he used for his business could be searched

by DISCO representatives.

13. Plaintiff began working for the Navy's Naval Ship

Weapons System Engineering Station ("NAVSEA") in July, 1972 and

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was employed there continuously until early 1983. At the time of

the incident which is the subject of this action plaintiff was

assigned to the AEGIS program, which involves the design of a

variety of shipboard weapons systems. Plaiftiff's job was to

test and evaluate missiles developed for the AEGIS weapons

systems. These weapons systems were first produced for military

use in approximately 1975. When plaintiff worked on AEGIS, the

United States was the only government with access to the systems

he evaluated.

14. Plaintiff worked in Building 4 of the Facility where the

Facility's largest number of classified documents, including top

secret documents, are stored. Building 4 also has several

“strong room and closed areas” where particularly sensitive

military documents and hardware are housed. Special badges are

required for access to these areas. Because of the large number

of classified documents stored there and the special closed

areas, Building 4 is one of the most heavily secured buildings at

the Facility.

15. Plaintiff's defense-related jobs have required him to

hold numerous security clearances. Except for two

three-to-four-month periods, plaintiff had held a security

clearance continuously since 1955. His clearance has generally

been rated “secret,” although from time to time he has held

special access clearances as well. During the time he was

working on the AEGIS project at the Facility, plaintiff held a

“secret” clearance, which ranks just below "top secret."

16. In connection with obtaining these security clearances

plaintiff has been questioned about his sexual habits. He knew

that

grant a security clearance.

oper

describes as a career counseling and resume writing service. He

also used this business, however, to facilitate certain sexual

activities. He corresponded with prospective sexual partners on

Questant Enterprises letterhead, and he paid for sexually

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checks.

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investigated in some fashion, and searches occur daily and

continually.

To enter, every employee must display a picture badge, which must

be worn and visible at all times on the upper left-hand side of

the

picture, the badge verifies that the employee has a propet

security clearance. If the employee is authorized to bring a car

into the Facility, as plaintiff was, 8 special symbol must appear

on the badge.

Facility through the vehicle entrance, the employee is required

to show the picture badge and the employee's car may be searched

by the guards. The vehicle gate guards are authorized to search

an applicant's sexual habits could influence the decision to

17. In addition to his Navy engineering job, plaintiff

ated a business called “Questant Enterprises,” which he

icit photographs and other services with Questant Enterprises

Security Procedures At The Facility

18. Because the business conducted at the Facility is the

gn, testing and production of secret military weapons

ems, virtually every person who works there has been

19. Uniformed guards protect each entrance to the Facility.

employee's body. In addition to the employee's name and

20. Every time an employee drives a vehicle in or out of ‘the

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the entire car, including the glove compartment, trunk and closed

containers inside the car or trunk. Plaintiff was not aware of

3 || any limits to the guards’ authority to search. The Guard Force

4 Policies and Procedures Manual requires guards to search every

gj} car leaving the compound after normal working hours. Plaintiff's

6) car had been searched several times. The guarded vehicle

7|| entrance which plaintiff normally used bore 4 prominent sign

8 stating the following:

9 ALL VEHICLES SUBJECT TO SEARCH. |

10 YOU MAY OPEN TRUNK YOURSELF OR |

1 GUARD WILL DO IT FOR YOU. |

12 21. Plaintiff testified that all employees -—~ including |

13 himself -- must open all packages for inspection every time they |

14) enter or leave the building at the pedestrian entrances,

15 | including lobbies, in which he worked. The sign posted at the

| guard station in the lobby of Building 4 reads:

17 |) IDENTIFICATION BADGE MUST BE WORN ON |

ial THE LEFT SIDE ABOVE WAIST ON YOUR OUTER

* GARMENT. ALL PACKAGES, BOXES, BRIEFCASES, |

20| PURSES AND SACKS MUST BE OPENED FOR GUARDS’ |

21 INSPECTION UPON ENTRY AND EXIT. |

22 22. Employees and their belongings may be searched

23 || regardless of whether they consent to the search and even if they

|| claim to have no classified information with them. Plaintiff

95|| knew the guards conduct searches both on 4 random basis and when

26 || “someone was tipped off about something."

27 23. In addition to the stationary guards who search

28 || employees and their vehicles at the gates and lobbies 4s they

- 8 -

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y || enter and exit the Facility. General Dynamics guards also patrol

inside the Facility. These guards search the interior of

Plaintiff's building daily to ensure that all classified

information is properly secured and that no other security

5 regulation is breached. Plaintiff had frequently observed the

6 guards searching his building. Although they might initiate a

7|| search at any time, the guards often searched after regular

g || business hours when most of the employees were gone.

9 24. Security regulations mandate that all unattended

10 || classified documents be locked in a safe or other authorized

jj | container. Because of this regulation, many NAVSEA employees,

12 || inclu¢cing plaintiff, had safes in their offices in which ;

13] classified documents are locked when not in use. Plaintiff knew

14 that it violated security regulations to leave any classified

Gocument unattended on a desk or credenza, inside an unlocked

16 | desk or even inside a locked desk.

| 25. There are also central repository safes located in

18 | guarded vaults which hold other classified documents. An

vo | attendant monitors these vaults. In addition, certain “closed

20 || area” vaults are accessible only to persons with “special badge

21 || access."

22 26. To monitor and enforce these strict security

23|| regulations, the guards regularly search individual offices,

24|| including the interiors of desks and other office furniture. The

25|| "Guard Force Policies and Procedures Manual" explicitly directs

26 || guards carefully to inspect unlocked desk drawers for classified

27|| material which is not properly secured, and guards have access to

28|| keys when necessary.

27. Whenever a guard discovers an improperly stored

classified document, the guard confiscates and secures the

document and leaves in its place a written security citation for

the person who failed to store the material properly. The

offending employee must go to @ security officer to retrieve the

document and to explain the breach of security regulations.

After several citations an employee may be terminated.

28. To supplement the plant-wide security services performed

by General Dynamics, Navy employees follow a system of

double-checking one another to ensure that all security

regulations are observed. One employee in each work group is

assigned on 4a rotating basis the responsibility of verifying that

the offices and safes of co-workers are properly secured. An

office form kept on the top of each safe attesting that all

‘documents are properly stored must be signed and dated by the

employee responsible for the safe at the end of the day. After

the employee signs the form, the rotating security checker for

each work group inspects the safe and co-signs the form.

29. Plaintiff was 4 participant in this self-monitoring

system, and had the duty to "look around and see if there were

any classified documents lying around.” When it was his turn to

check other employees’ offices he pulled on desk drawers to see

if they were locked and, if not, "might be inclined to look

inside and see if there were any documents lying loose,

classified documents.”

30. In addition to the General Dynamics security force and

the work group security checkers, the Navy has its own Security

Office at the Facility whose civilian employees make random

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inspections of employees’ safes and generally assure compliance

with security procedures. Plaintiff was aware that General

Dynamics investigators such as Kessel conduct special, more

detailed security investigations from time to time.

31. Plaintiff knew that the Department of Defense conducts

official security inspections of the Facility every six months.

In plaintiff's own words this inspection "goes the entire gamut,

of inspecting classified documents for proper markings, storage

procedures for classified documents, [document] transmittal from

the Facility, handling of classified material." In addition,

General Dynamics performs a self-inspection between Department of

Defense inspections. Finally, each individual must inventory his

or her own classified document safe every six months.

32. Plaintiff attended many security briefings while he

worked at the Facility. Upon receiving a security clearance,

each employee receives a security briefing during which the

employee is instructed about the proper manner of safeguarding,

transmitting and storing classified material and the necessity of

wearing badges at all times. At his initial security briefing, |

plaintiff was instructed about the various kinds of searches that

occurred at the Facility and about his duty tc submit to them.

33. In addition to this initial briefing, plaintiff attended

many other security briefings or tutorial sessions during the

course of his employment at the Facility. These tutorial

sessions are mandatory and, if an employee missed one he had to

make it up.

34. The tutorial sessions consist of “C(rJefresher courses”

on how to protect classified information and include speakers and |

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films concerning proper security of classified information and

the threat of espionage. A vital subject repeatedly addressed in

these security sessions is the danger of inducements to divulge

classified information, thereby compromising national security.

one of the inducements about which plaintiff was specifically

warned was pressure to divulge classified information as a result

of a romantic or sexual entanglement. Plaintiff characterized

the inducement as follows: "Oh, there would sometimes be the

blonde that led the man astray. « .: gaining information from

him. . . . There was usually romance involved of some sort.”

35. Plaintiff also received numerous written instructions

regarding security procedures at the Facility. For example, the

“Industrial Security Manual for Safeguarding Classified

Information” is issued to contractors such as General Dynamics by

DISCO and is available to all employees at the Facility for their

review. Plaintiff was already familiar with the contents of this

manual when he came to work at the Facility, because he had

received the manual in 1966 when he obtained his security

clearance as an independent government contractor. While he was

an independent contractor, plaintiff was personally responsible

for safeguarding classified documents in accordance with the

provisions of the manual.

36. Plaintiff was aware he was also subject to the

provisions of a Navy security manual while he worked at the

Facility. In addition, & specific set of written security

instructions was distributed to the Navy employees at the

Facility. Plaintiff had received a copy of these instructions

and kept them in his office credenza -- the same credenza

.« 22 «@

1 searched by Kessel and Jensen. These instructions set forth the

2 procedures to be followed with regard to searches at the gates

3 and inside the building.

4 37. In addition to security briefings and written

5 instructions, the Navy held lectures approximately every six

6 months to review the conduct appropriate for government military

7 intelligence emplcyees. To complement these lectures, written

8 “standards of conduct” were regularly disseminated to plaintiff

9 and his Navy co-workers. Navy employees were required to read

10 these instructions regularly and that plaintiff had done so.

11 || Plaintiff understood that “associations of a dubious nature” were

12 among the types of conduct forbidden to Navy employees.

a 38. Plaintiff was required to disclose “any outside interest

14! or any business, any outside employment, anything of that sort.”

el Pursuant to this regulation, plaintiff filed several disclosure

ve forms relating to Questant Enterprises. He disclosed his

sal Questant Enterprises resume writing and career counseling

1 | activities, however; but never revealed the use of Questant

at Enterprises letterhead to procure sexual activities with

0 | "swinger" correspondents.

91 | 39. All of the NAVSEA technical employees, including

22|| plaintiff, had individual offices in Building 4 at the Facility.

93|| Their office doors could be locked. However, General Dynamics

2%4|| security and custodial employees as well as certain on-site Navy

25|| engineering officers kept duplicate keys permitting them to enter

|| plaintiff's office at any time.

27 40. Plaintiff kept his current, unclassified project files

og|| in his desk drawer. He commingled the personnel files with his

- [§-

project files despite the fact that he knew “[s]Jomeone, my boss,

g|| might want to go into my desk to look for a [project file)

L 3 document.” He also stored @ variety of non-business, personal |

4|| items in his @esk, such as personal letter, semi-precious gems

5 which he collected, rolodex cards and a checkbook. Although

6} plaintiff had a key to his desk, and it was his practice to lock

7 || the desk when he left the Facility in the evening, he knew there

gi was a duplicate key which ‘was available in the event you

9 | happened not to be there and some papers or things needed to be

10 | retrieved .. . or taken from your desk.’ ;

TT 41 Behinag his desk was plaintiff's credenza, which could

12} also be locked and for which plaintiff believes there was also a

13 | duplicate key Plaintiff stored a variety of professional

al materials, bulky project files and miscellaneous personal items

1g || in the crecenza He also kept the correspondence, photographs

16 | and name cards related to his sexual encounters in the lower left

17|| hand drawer of the credenza

18 | 42 Plaintiff kept his sexual materials in the bottom

19|| left-hand drawer of the credenza in a large manila envelope. On

20 | the outside of the envelope he had written a signed instruction

9) || to whomever might finc the envelope in the event of his death

92|| "{Pllease destroy this material as I do not want my grieving

93|| widow to read it.”

24 43. It was apparent to 4 reasonable person that from this

95|| instruction, plaintiff did not want his family to know about the

26 || sexual materials. Nor did he want his supervisor to find out

27|| about their existence. Plaintiff believed his supervisor would

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have instructed him to remove the sexual materials from the

Facility had the supervisor known of their existence and content.

44. Plaintiff did, however, disclose both the nature and

location of the sexual materials to & co-worker, Robert

Bordeaux. In early 1982, several months before the anonymous

call to Kessel, plaintiff described the materials to Bordeaux in

some detail and told Bordeaux where they were stored in the

credenza.

45. The materials plaintiff kept in the manila envelope

consisted of correspondence between plaintiff and women and men

with whom he sought sexual relationships. Plaintiff sent and

received sexually explicit letters arranging for sexual

‘encounters in groups of two or more. The letters indicated he

also belonged to a sex club which purported to have as members

women desirous of arranging sexual and romantic relationships.

He regularly sent money (called "Love Offerings”) to the club's

headquarters to finance its operations. The manila envelope also

contained magazine advertisements by persons seeking sexual

encounters of various kinds. Plaintiff kept copies of his

responses (letters and nude photographs) to these advertisements

and of his follow-up letters after an encounter occurred.

a6. When plaintiff responded to an advertisement by someone

seeking a sex partner, he regularly gave out his work telephone

number as a way of contacting him. He did this despite the fact

that he knew there was & government policy against using

government telephones for personal business. Plaintiff admitted

that prospective sexual partners did, in fact, call him at work

and that such calls had to be routed through the main

—————

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} |) switchboard. Because the switchboard operator clearly identifies

2|| the Facility as “General Dynamics" when answering calls, every

3); caller would necessarily discovery that plaintiff worked in the

4|| defense industry. - |

s 47. Plaintiff directly revealed his full name, profession |

6|| and his connection to the defense industry to his various sexual |

| partners in other ways as well. In Marious letters, for example, |

g|| plaintiff described himself as: “a missile engineer"; "a missile |

g|| engineer for the Navy as well as an active reservist"; "an

10 | electronics engineer (Missile Systems)"; “an engineer for the

1) || government"; “on military duty in the NAVAIR headquarters for two

2 weeks"; "sometimes uvol[ing] to Naval Weapons Station, China Lake’;

13|) "in the military as a Naval Reserve Chief Petting [sic] Officer

14 (E7)'! I work for the Navy as a Civilian, GS-13, Test and

15 | Evaluation Engineer. Finally, in one letter he tells the

* recipient "I'm trying to get my computerized missile failure data

17| bank up-to-date so we can start making various plots to present

18 | to management.

19 48. Plaintiff admitted at his deposition that references in

20 | the correspondence to the fact that he was a missile engineer

21| connected with the military "might .. . be harmful.” He had

22 | considered the possibility that some of the persons with whom he

23 | solicited sexual encounters might attempt to blackmail him.

24 | Although plaintiff was keenly aware of the dangers of disclosing |

2s| his defense industry status in the course of secret sexual

26 | liaisons, he did not conceal this information. |

27 49. Plaintiff decided to keep his "swinger" correspondence |

28 | and pictures at his office because he was afraid someone in his

- 16. |

}|| family might discovery them if they were stored at his home and

|| because he wanted ready access to them during the day. He wrote ~

3|| letters, sent and received mail and nude photographs with respect

4|| to his sexual correspondents while he was at work.

5 50. Plaintiff stored the sexual materials in the credenza :

6|| rather than the desk because he thought a colleague looking for a

9|| project document in his absence would be more likely to look in

g|| his desk than in his credenza.

9 | The Anonymous Tip Of August 9, 1982 Received By Kessel

10 51. In the late afternoon of August 9, 1982, Kessel received

11 | a telephone call in his office from an anonymous male caller who

12 || stated that if Kessel would go to a particular office in Building

° 13 | 4 of the Facility and look in the lower left-hand drawer of the

14 | credenza in that office he “would find material that would be of

1s | interest to the security department." Accordingly, after the

16 | telephone call, Kessel visited the office which the caller had

17|| described and found the manila envelope.

val Involvement Of Kenneth D. Tillotson In The Case

19 52. In August 1982, Tillotson was the Acting Commanding

20 Officer for the Navy at the Facility. On the morning of August

21 10, 1982, Tillotson received a call from Kessel who advised him

22|| that Kessel had some information in his office that he wanted to

23|| discuss with Tillotson. Tillotson went to Kessel's office and

24|| inspected the material discovered by Kessel.

25 53. Tillotson examined the material noting (i) its sexually

26|| explicit nature, (ii) that plaintiff had indicated in some of the

27|| letters that he was a Navy employee, a missile engineer, and a

28|| Navy warrant officer, and (iii) that plaintiff had included his

= 9.

| |

Navy business card in some of the correspondence. Tillotson-also

2|| noted that on the envelope in which the material had been

3|| discovered, plaintiff had written a statement to the effect that

4|| in the event of his death, the material should be destroyed so

g]| that it would not cause his family more grief. |

6 | 54. Based on his observations, Tillotson was seriously

7|| concerned that plaintiff could be a target of blackmail, |

g|| especially in light of the notation on the envelope indicating |

9| plaintiff's fear and concern that his family not find out about |

10|| his sexual escapades. Because of these concerns, Tillotson |

11 | immediately called the NIS at El Toro for investigative

12 | assistance. NIS Agent Jensen was sent to the Facility in

13 | response to that call on that same day.

14) 55. After Jensen had reviewed the material, he indicated his

15 | intent to conduct a further search of plaintiff's office.

16 | Tillotson, as Acting Commanding Officer, gave Jensen his

17 : authorization and accompanied Jensen and Kessel to plaintiff's

18 | unlocked office. Tillotson did not assist in the search of

19] plaintiff's office but merely remained in the area.

20 | 56. After Jensen had completed the search, he left the

21 Facility and Tillotson had no further contact with him. At 2

22 later date, the NIS report of investigation prepared by Jensen

231 was sent to Tillotson's office. Both Tillotson and Captain Wendt

24 ("Wendt"), the Commanding Officer, read the report and Tillotson

25|| placed it in the office safe. Tillotson did not provide anyone

27 contact with anyone at the United States Postal Service (“Post«-

28|| service"), the Naval Military Reserve or NSWSES regarding the

26| (other than Wendt) the copy of the report. Tillotson had no

- 48 °- a 40-.

discovery of the material, and he did not advise anyone that

plaintiff was involved in sodomy and homosexual activities.

Involvement Of Carl Jensen In The Case

57. Jensen became involved in this case for the first time

office at El Toro when his supervisor, Special Agent in Charge

Charles Van Page ("Page") advised him that Page had received a

g |) oF August 10, 1982. On that day, he was working at the NIS

g call from someone at the Facility. Page directed Jensen to go to

the Facility and meet with Kessel, a security investigator

10 employed by General Dynamics.

11 | 58. In accordance with those instructions, Jensen went to

2] the Facility on that same day and met with Kessel and another

13 || investigator employed by General Dynamics. At the meeting,

14|, Kessel informed Jensen of the circumstances surrounding the

discovery of tre material and showed Jensen the material he had

15|

| found in the plaintiff's office.

17 | 59. Jensen examined the material and concluded that

| plaintiff was involved in heterosexual and bisexual activities

involving multiple sexual partners with whom he had solicited: ,

—

20 sexual encounters through want ads in "swingers™ magazines.

21 60. Jensen noted the following facts which he considered

22|| significant: Plaintiff had included his office telephone number

93|| and his Navy engineer business card, and nude, sexually

24 suggestive photographs of himself as well as photographs of

95 || himself in full Navy uniform in some of the correspondence. one

26 || letter received by plaintiff from an Italian stewardess who was

27|| seeking sexual relationships primarily with servicemen. Many of

28 - 19 -

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the letters made reference to the fact that Schowengerdt worked

for the Navy as a missile engineer.

61. The letters from plaintiff were written on stationary

bearing the letterhead "Questant Enterprises,” which appeared to

be a business with which plaintiff was closely associated and

through which he conducted the sexual liaisons. Jensen was aware

that plaintiff was working in a Navy weapons missile project and

required and held a secret clearance to perform his work.

62. Based on his examination of the materials and his

knowledge of plaintiff's work activities, Jensen concluded that

plaintiff fit the profile of someone who would be susceptiple to |

blackmail or contact by hostile intelligence agents and, |

therefore, was a potential security risk to the United States.

In addition, Jensen was aware that Navy regulations prohibited

homosexual and bisexual activity by military personnel, and he

knew that plaintiff was in the Navai Military Reserve. Jensen

therefore decided to conduct a further investigation to resolve

his suspicions regarding possible blackmail and to determine

whether solicitation of sex and the mailing of sexually explicit

materials through the United States mails was a violation of the

United States postal laws.

63. Jensen decided a further search of plaintiff's office

was necessary and was concerned that if plaintiff became aware of |

the investigation, he might attempt to destroy evidence. Jensen

therefore decided to search plaintiff's office immediately.

However, before doing so, he contacted Page, his supervisor, to

advise him of what he had found, what he intended to do, and to

confirm what he understood from his training -- that a government

- 90 -

-2).-

employer had no legitimate expectation of privacy in a government

work space and that a warrant was not required. Page agreed that

no warrant was necessary.

64. On that same day, Jensen, accompanied by defendants

Tillotson and Kessel and another General Dynamics investigator

went to plaintiff's office. Only Jensen conducted the search.

The door to plaintiff's-office was unlocked, as were the desk and

credenza within his office. Jensen searched plaintiff's office

looking for evidence of contact by a foreign or hostile agent,

evidence that plaintiff had been blackmailed, and further

evidence of violations of the postal laws or Navy regulations

regarding homosexual or bisexual conduct.

65. During the course of his search, Jensen found more

material similar to that giscovered by Kessel. He discovered and

seized (i) a Japanese/English dictionary with notes and phrases

he believed could be evidence of a contact by a foreign agent;

(ii) a checkbook from Questant Enterprises which he believed

related to plaintiff's sexual encounters and in which foreign

foreign agents might be identified; (iii) gemstones found in a

Questant Enterprises envelope which he believed could have been

used by plaintiff to “pay off" potential blackmailers; and

(iv) several photographs of different women whose identity was

unknown to Jensen at the time. Jensen seized the photographs

because he suspected the women might be related to plaintiff's

Questant Enterprises activities, which at the time seemed very

unusual and an easy target for blackmail. In short, the items

seized related to Jensen's concerns that plaintiff might have

become a security risk through blackmail.

—

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Oo oo

66. After completing the search of plaintiff's office,

Jensen took the material he had seized and the material Kessel

had seized, and returned to his El Toro office. He immediately

contacted another agent in his office who specialized in foreign

counterintelligence investigations and sought his assistance in

reviewing the seized material.

67. On August 17, 1982, Jensen called a United States postal

inspector to determine if plaintiff had committed any criminal

violations of the postal laws. Jensen described the nature of

the material he had discovered but did not identify the plaintiff

by name. He was advised by the postal inspector that unless the

material established evidence of sexual conduct involving minors,

the Postal Service would not pursue the case (even though it

might technically violate the laws). That conversation was the

only contact Jensen had with the Postal Service concerning

plaintiff's activities.

68. Continuing his investigation, Jensen interviewed

plaintiff and obtained his consent to search plaintiff's

residence. Jensen's investigation uncovered no additional

evidence. Jensen ultimately concluded that there was no evidence

establishing that plaintiff had been contactec by a hostile agent

or was the target of blackmail. On September 16, 1982, Jensen

completed his final report of investigation, which was

transmitted to various federal agency offices, including NIS,

headquarters and region and the FBI, and to plaintiff's

Commanding Officer in the Reserve (since the evidence of

homosexual or bisexual conduct could bear on his status as a

reservist).

1 69. With the completion of his final report, Jensen was no

longer involved in the case. He was not contacted by anyone from

DIS concerning plaintiff's subsequent security clearance

investigations, and he did not send DIS a copy of his report.

Involvement Of Richard Day In This Case

the August 1982 searches. In late October or early November

1982, Day was informed by & personnel staffing specialist at

6 70. Day first became involved in this matter subsequent to

NSWSES, Port Hueneme, of the discovery of the sexually explicit

material in plaintiff's office at the Facility. This was also

the first time Day was specifically aware that plaintiff was a

Navy employee. It was Day Ss understanding that the personnel

—

13|| specialist advised him of the discovery of the material in

14|| plaintiff's office because it might have some impact on

1$ plaintiff's security clearance and might require that Day's

16) office request an investigation regarding that clearance.

7 71. Shortly after learning of the incident, Day was informed

° 18 | that his superior had received a copy of the NIS report relating

19 to the incident. Day was given a copy of the report and

20 | instructed to request & limited investigation by DIS to determine

21 | whether, in light of the discovery, plaintiff should retain his

22| secret clearance. In compliance with those instructions, Mr. Day

23|| submitted a request to DIS for a limited investigation of

24|| plaintiff to determine what action plaintiff might take were he

25|| subjected to coercion, pressure or blackmail because of his

2%|| sexual activities. Day did not send DIS, or anyone else, 8 copy

27\| of the NIS report concerning plaintiff.

28 - 23 -

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—

72. Day heard no more about the matter until he was advised |

by the personne] specialist that plaintiff had resigned from his |

Navy engineering job on January 21, 1983. Thereafter, DIS was |

advised, either by Day or his superior, that plaintiff had |

resigned, and no further investigation was needed.

73. Sometime in March 1983, @ letter addressed to the

"Security Officer’ for the NAV SEA TECH REP was received in Day s&s

office advising that DIS was attempting to convert plaintiff's

security clearance into an industrial (private sector)

clearance. The letter asked whether there had been any adverse

information developmented subsequent to the granting of

plaintiff's secret clearance in 1972. As the Security Officer,

Day was obligated to respond to the inquiry, which he did by

checking the "yes box and identifying NIS San Diego as the

location where the file with the adverse information could be

located. |

74. Day was not contacted again by DIS regarding plaintiff.

He has no personal knowledge of either the duration of the DIS

investigation of plaintiff before completion or what factors may

have caused the delay about which plaintiff now complains.

Course Of Events Concerning The Security |

Clearance Investigation Of Plaintiff Following |

The August 1982 Incident

75. DISCO is the Department of Defense agency responsible

for conducting personnel security clearance investigations under

that the agency was first contacted regarding plaintiff on March

the Defense Industrial Security Program. DISCO records indicate |

1, 1983. On that date, the Transfer/Conversion Board received 4 |

- 24 - (,

personnel security questionnaire from Northrop Corporation in

ws ae

Hawthorne, requesting that plaintiff's Civil Service Commission

st &

(government) clearance be converted to an industrial (private

76 ursuant to that request. & DISCO personnel security

specialist initiated an investigation by research of the Defense

Central Index of Investigations ("DCII") to determine whether any |

recent investigations had been initiated concerning the subject |

that warranted review before the clearance was converted. A |

query of the DCII revealed that plaintiff had been the subject of |

an NIS investigation in 1982 During this time, DISCO also sent |

the inquiry regarding adverse information to Day's office. On

April 14, 1983, the specialist requested a Copy of that file for

review It was not until five Gays later, April 19, 1983, that

DISCO officials received the response from Day indicating the

existence of adverse information.

77. Based on the procedures in place at pIsco, if the DISCO

investigators were aware of the existence of the NIS report |

either from the DCII query or from the reference to the report in

Day § memorandum, DISCO would have reviewed the NIS report and

initiated an expanded investigation of plaintiff to uncover all

relevant information. Thus, irrespective of Day's reply to the

DISCO inquiry, DISCO would have been aware of the NIS report and

proceeded as it did.

78. Day did not provide other information to DISCO or DIS

other than the disclosure to DISCO of the existence of the NIS

report (a fact of which it was already aware). Day was obligated

under the Department of Defense Personnel Security Program,

Bi th -41-

|| Paragraph 4-102, to inform authorized agencies whenever adverse

2|| information is known to him concerning an individual who is being

3 processed for a security clearance. The pertinent paragraph

4|| subsection provides:

5 .. Whenever a Civilian or military member |

6 | transfers from one DoD activity to another,

1} the losing organization's security office is |

8 | responsible for advising the gaining |

9 | organization of any pending action to suspend,

10 | deny or revoke the individual's security |

1) clearance as well as any adverse information

12 | that may exist in security, personnel or other

13) files In such instances the clearance shall

14) not be reissued until the questionable

+ | information has been adjudicated.

16 | 79. The delays in granting plaintiff's clearance were caused

17}, by the routine procedures involved in an evaluation of

18 | potentially adverse information. In plaintiff's case, DISCOS

19| clearance process began on March 1, 1983, the date the

20 | application for conversation of clearance was received from

91|| Northrop Corporation. It concluded on April 2, 1984, when the

22| industrial secret clearance was granted. The intervening time

23|| included the administrative aspects of the conversion of |

24|| clearance process (March 1, 1983 - April 25, 1983); completion of |

25|| the DD Form 48, Personnel Security Questionnaire, which was

2% || essential to the conduct of the current investigation (April 25,

nl 1983 - May 27, 1983); completion of that investigation (June 3,

28 || 1983 - January 9, 1984); evaluation of the results (October 14,

- 26 - Ag:

ii ts

} || 1983 - January 9, 1984); referral of the completed investigation

to the Director of the Industrial Security Clearance Review for

adjudication and final clearance determination (January 9, 1984 -

March 14, 1984); and referral of the clearance determination to

D1IscO for implementation (March 14, 1984 - April 2, 1984). A

of the DISCO investigative report is attached as Exhibit A.

80. Mr. Day's conduct did not cause any delay in the DISCO

| investigation of plaintiff or in issuing his security clearance.

64 13-month processing time in cases such as this is usual. A copy

;, ; ,

81. Any conclusion of law deemed to be a finding of fact is

incorporated here

12 II

13 | CONCLUSIONS OF LAW

14) Standards For Summary Judgment

5) l This Court has jurisdiction over this action pursuant to

ot 28 U.S.C. § 1331 and jurisdiction over plaintiff and individual

17| defendants

" 2. ummary judgment is proper if there is no genuine issue

19) as to any material fact and the moving party is entitled to

20 || judgment as a matter of law. See Anderson v. Liberty Lobby,

(1986) ("Liberty Lobby"); Fed.R.Civ.P. 56(c). The mere existence

. Inc., 477 U.S. 242, 247, 106 &.Ct. 2505, 2510, 91 L.Ed.2d 202

23 || of some alleged factual dispute between the parties will not

24|| defeat an otherwise properly supported motion for summary

25 || judgment; the requirement is that there be no genuine issue of

26|| material fact." Liberty Lobby, 477 U.S. at 247-48, 106 S.Ct. at

27 | 2510 (emphasis in original).

-Aq-

—-— =—-=e = —=— —= == =

I aA uw & WwW NY | OO

3. The threshold question in evaluating a summary judgment

motion is whether there is a need for & tria] because there

exists a genuine factua! issue which is capable to being resolved

in favor of either party that requires resolution by a fact

finder. Liberty lobby, 477 U.S. at 250, 106 S.Ct. at 2511. The

determination of whether a given factual dispute requires

submission to a jury is governed by the substantive evidentiary

standard of proof that would apply at trial in case. Id. at 2514.

4. If the non-moving party will bear the burden of proof at

trial on an element essential to its case, and that party fails

to make a showing sufficient to establish the existence of that

element, then summary judgment is appropriate. Celotex Corp. Vv.

Catrett, 477 U.S. 317, 322-23, 106 §.Ct. 2548, 2552-53, 91

L.Ed.2¢ 265 (1986) ("Celotex"). The summary judgment movant may

thus meet its burden of showing the absence of an issue of

material fact by pointing out that the plaintiff's proof is

lacking concerning an element essential to its case. Celotex,

477 U.S. at 325, 106 S.Ct. at 2554.

$. Where a defendant moves for summary judgment based on

the lack of proof of a material fact, the plaintiff must

demonstrate that there is sufficient evidence on which the jury

could reasonably find for it; “(t]he mere existence of a

scintilla of evidence in support of the plaintiff's position will |

be insufficient.” Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at

2512.

6. “The evidence of the nonmovant is to be believed and all

justifiable inferences are to be drawn in favor of the

- 28 -

- 50 -

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nonmovant.” Liberty Lobby, 477 U.S. at 255, 106 §.Ct. at 2513

(citation omitted).

Lx And while the evidence of the non-movant plaintiff must

be believed and all reasonable inferences drawn in its favor,

“Ci}£ the evidence is merely colorable or is not significantly

probative, summary judgment may be granted. Liberty Lobby, 477

U.S. at 249-250, 106 S.Ct. at 2511. Id. (Citations omitted).

8. The court finds there are no genuine issues of material

fact in this case precluding summary judgment.

Fourth Amendment Allegations

2. The Fourth Amendment protects the "right of the people

to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures". U.S. CONST. amend.

Iv. The applicability of the Fourth Amendment turns on whether

"the person invoking its protection can claim a ‘justifiable,’ a

‘reasonable,’ or a ‘legitimate expectation of privacy that has

been invaded by government action.” Smith v. Maryland, 442 U.S.

735, 740, 99 §.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); see also

New Jersey v. T.L.O., 469 U.S. 325, 338, 105 S.Ct. 733, 741, 83

L.Ed.2¢ 720 (1985) ("[t]he Fourth Amendment does not protect

subjective expectations of privacy that are unreasonable or

otherwise ‘illegitimate'")

10. Although there may be legitimate privacy expectations in

the workplace, such expectations are "far less than those found

at home or in some other contexts.” O'Connor v. Ortega, 480 U.S.

709, 107 S.Ct. 1492, 1502, 94 L.Ed.2d 714 (1987). See also New

York v. Burger, U.S. , 107 §.Ct. 2636, 2642, 96 L.Ed.2d

601 (1987) ("An expectation of privacy in commercial premises

- 29 - 4

oorna vu & WY WN =

Pe ed

is different from, and indeed less than, a similar

expectation in an individual's home.").

11. <A determination of whether an employee has & legitimate

expectation of privacy in his work environment depends on the

operational realities of the work place, and each situation must

be addressed on a case by case basis. Ortega, 107 S.Ct. at 1498.

12. Factors to be considered are: (1) whether the employee

can avoid exposing personal matters at his work by simply aan |

them at home; (2) whether established office practices shape the

employee §& expectation of privacy, including, e.g., whether

searches of the type the employee was subjected to might occur

from time to time; (3) whether other employees might have access

to the employee's office, desk, or file cabinets; (4) whether the

employee had the only key, and therefore exclusive control of his)

office; and (5) whether an employee's handbag or briefcase is

considered a part of the work place.

13. The court finds that in view of the operational

realities in plaintiff's work place stated in the findings of

fact, plaintiff did not have a reasonable expectation of privacy

in his work place which is protected by the Fourth Amendment.

14. Even if plaintiff had a legitimate privacy expectation

in his office, desk, or credenza, the warrantless search is

permissible under the Fourth Amendment so long as the search was

reasonable within the context in which it took place. Id. What

is “reasonable” for workplace searches requires “balancing the

nature and quality of the intrusion on the individual's Fourth

Amendment interests against the importance of the governmental

interests alleged to justify the intrusion." Id., quoting United

a 36. =

} || States Vv. Place, 462 U.S. 696, 703, 103 §.Ct. 2637, 2642, 77

L.Ed.2d 110 (1985). In this context this Court must “balance the

invasion of the employees” legitimate expectations of privacy

4|| against the government Ss need for supervision, control and the

g|| efficient operation of the workplace." Id.

15. In balancing the factors present in this case, the court

finds the balance tips sharply in favor of the government. The

g|| government has @ compelling national security interest in

g9|| maintaining the security at the facility and the invasion of the

plaintiff's privacy was by comparison minimal. Neither

plaintiff's person nor his briefcase, wallet, purse oF other

ees

—

12 || personal container was searched, only his office, desk, and

13|| credenza were.

14) 16. A warrant and probable cause is not required in this

S| case because the burden of obtaining a warrant is likely to

16|| frustrate the governmental purpose behind the search, 1.e€-

17| maintaining security at the facility. Id.

18 | 17. The search must nevertheless be reasonable under all the

19|| circumstances. Id. at 1502-3.

20 18. In this case, the search conducted by Jensen was

21|| reasonable. It was justified at its inception based on all the

22 || facts known to him since Jensen had a reasonable suspicion that

23|| evidence of work related misconduct, i.e... blackmail, violation

24|| of Postal Service laws or Navy regulations, would be found in

25 plaintiff's office, and the search was reasonably tailored to the

26|| discovery of that evidence and not excessively intrusive in light

27|| of the suspected misconduct. New Jersey v. T.L.O., 469 U.S: 325,

28 || 105 S.Ct. 733, 83 L.Ed. 720 (1985).

in soa

1] 19. Defendant Tillotson did not personally participate in

9|| the search of plaintiff's office and is not liable for Jensen's

3 || conduct under a theory of respondeat superior or vicarious

4 liability for violation of plaintiff's Fourth Amendment rights.

g|| Leer v. Murphy, 844 F.2d 623, 633 (9th Cir. 1988), Mann v. Adams,

6) 846 F.2d 589, 591 (9th Cir. 1988) reh. denied, 855 F.2d 639 (9th

q|| Cir. 1988).

8 20. Neither Jensen nor Tillotson violated plaintiff's Fourth

g|| Amendment rights.

10 Qualified Immunity On Fourth Amendment Allegations

1} 21. Government officials performing discretionary functions

12|| are shielded from civil damages liability as long as their |

13) conduct does not violate "clearly established statutory or |

14 constitutional rights of which a reasonable person would have |

1$|| Known.” Harlow v. Fitzgerald, 457 U.S. 809, 818, 102 S.Ct. 2727,

16|| 2738, 73 L.Ed.2d 396 (1982). |

17 | 22. Whether an official may appropriately rely upon the |

ial qualified immunity defense centers on the objective legal

19 | reasonableness of the conduct in question in light of the clearly

20 || established law at the time. Harlow, 457 U.S. at 818, 102 S.Ct.

21 || at 2738. The subjective intent or good faith of the particular

22|| official is generally irrelevant to this inquiry. Harlow, 457

23|| U.S. at 815-819, 102 S.Ct. at 2736-39.

24 23. The clearly established law that the government official

25|| is alleged to have violated may not be identified at any level of |

26|| generality. “The contours of the right must be sufficiently

27|| clear that a reasonable official would understand that what he is)

28 - 3 -

- 44-

doing violates that right.” Anderson V.- Creighton, 483

107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

24. The Supreme Court has stated that "ic is inevitable law

enforcement officials will in some cases reasonably but

mistakenly believe that (their conduct is constitutionally

permissible] and we have indicated that in such cases those

officers -~- like other officials who act in ways they reasonably

believe to be lawful -- should not be held personally liable.”

Anderson V.- Creighton, U.S. / 107 §.Ct. at 3039.

25. A law enforcement officer is not entitled to & qualified

immunity if, on &n objective basis, it is obvious that &

reasonably competent officer would have concluded that the

challenged conduct was uniawful; but if officers of reasonable

competence could disagree on the issue, immunity should be

recognized. Malley vV.- Briggs, 4795 y.S. 335, 341. 106 §.Ct. 1092,

1096, 89 L.Ed.2d 271 (1986) (emphasis added).

26. The qualified immunity defense protects “all but the

plainly incompetent or those who knowingly violate the law.”

Malley v. Briggs: ibid.

27. Damage suits involving constitutional violations need

not proceed to trial, but may be terminated on & properly

supported summary judgment motion based on the qualified immunity

defense. Butz V. Economou, 438 U.S. 478, 508, 98 s.ct. 2894,

2911, 57 L.Ed.2d 895 (1978).

28. In determining what the clearly established law was at

the time in question, this court must look first to decisions of

the Supreme Court ana the Ninth Circuit. Capoeman V- Reed, 754

F.2d 1512, 1514 (9th Cir. 1985). In the absence of such binding

j precedent, the court must then look to whatever decisional law is

2|| available, including decisions by other Circuits, by district

3|| courts, and by state courts. Ibid.

4 29. The court's research discloses that no Supreme Court or

g|| Ninth Circuit case in August 1982 addressed the issue of search

6, of an employee's work space in a factual context sufficiently

7|| analogous s0 as to clearly establish that the defendants’ conduct

g || violated plaintiff's Fourth Amendment rights. On the contrary. |

g|| the holding of United States v. Bunkers, 521 F.2d 1217 (9th Cir.)

10|| cert. denied, 423 U.S. 989, 96 S.Ct. 400, 46 L.Ed.2d 307 (1975) |

11 || suggests the defendant s conduct did not violate praintiff's |

12|| constitutional rights. |

13] 30. Furthermore, the discussion of the issue in Ortega |

ial indicates that prior to that decision the law was not clearly |

1§|| established at the time of the incident, August 9, 1982. |

16 || 31. Even if they had violated plaintiff's Fourth Amendment |

11 rights, defendants Jensen and Tillotson therefore are entitled to |

a qualified immunity regarding the allegation that they violated |

19 | plaintiff's Fourth Amendment rights in searching his office. |

20 | Allegations Relating To Disclosure Of |

21 Information Regarding Plaintiff

22 32. The information regarding plaintiff's “swinger” sexual

23|| activities found in his work place are not protected from

24|| non-disclosure by the general right to privacy recognized in the

25|| “penumbra” of fundamental rights found in the Bill of Rights,

26 || because they do not arise out of marriage and procreation and are

27|| not fundamental to the concept or ordered liberty. Paul v.

28|| pavis, 424 U.S. 693, 96 &.Ct. 1155, 47 L.Ed.2d 402 (1976).

ee 36°

ee ee ae

33. Even assuting the informatzcn were constituticnaily

protected against disclosure by the government, the discicsures

4 =

jmade by the defendants in th:s case were warranted and

lconstitutional uncer the balancing test enunciated in Dheorne Vo

isk or had viclatec federal law or regulation. The ¢isc.csur:

a8)

rev)

)

€

itp)

‘

’

)

he Jensen Ss C:Sc.cS-- -é his NIS invest.gative reccc: we:

authorized under the Pr-vec; mee, &§ U.S.C. § §52(D)C1) a=-

(d)(3 ana the holdins in S€--€% * Middendorf, 632 ¢ ae 78h

(9th Cir. 1989)

3€ The @isclosure by Dey wes 2° compliance with %:s

37. The law regarding tne existence or the extent cf a

constitutional right to non-disclosure of confidential

information by the government in the factual context of this case

was not clearly established in August, 1982. Thorne v. City of |

El Sequndo, 802 F.2d 1131 (9th Cir. 1986); Borucki v. City cf New |

York, 827.F.2d 836 (ist Cir. 1986).

38. The court finds that & reasonable and competent office:

confronted with the circumstances in this case could have |

- 35 -

, concluded that the dissemination of the information made in this

3 case was constitutionally permissible in light of the clearly

2 established law.

4 39. Accordingly, even assuming that defendants violated

5 plaintiff's constitutional right to privacy by disclosing the

6 | information, they are nevertheless entitled to qualified immunity |

- because a reasonable officer could have believed his conduct was |

8 lawful in light of clearly established law and information. |

9 Anderson v. Creighton, 0.8... 29 107 §.Cct. at 3049. |

10 | Conspiracy Allegations

al 40. To establish an actional Bivens conspiracy, the

12 plaintiff must establish the existence of a single plan, the

al essential nature and general scope of which were known to tne

| gefendants, and an actual deprivation of his constitutional

rignts. Hobson v. Wilson, 737 F.2d 1, 5152 (D.C. Cir.), Ceri.

Dooley v. Reiss, 736 F.2d 1392, 1395 (9th Cir. 1984).

6 | denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1984);

18 | 41. There is no evidence of a plan or conspiracy between OF

19 |) among any of the Bivens defendants in this case.

20| 42. Even if plaintiff had produced evidence of a plan or

21 conspiracy, there were no deprivations of plaintiff's

22 constitutional rights.

23 43. Defendants did not conspire to deprive plaintiff of his

4|| constitutional rights.

25 44. However, even if plaintiff had established that

2% defendants conspired to deprive plaintiff of his constitutional

rights, defendants are nevertheless entitled to qualified

immunity because the law regarding the existence ana extent of |

— ]

- 36 - |

the constitutional rights was not clearly established as stated

in conclusions of law numbers 29 and 37.

45. There are no genuine issues of material fact in dispute

3 | 2

| respecting any of the allegations in plaintiff's second cause of

s | action of the fourth amended complaint and the defendants Day,

6 | gensen and Tillorson are entitled to judgment in their favor as a

| |

matter of law

7| |

8 || 4€ Judament should be entered for defendants Tillotson, Day |

9 | and Jensen and against plaintiff as to the second cause of action,

ol DATED: Ce AA ee oN oe | ’ 1988.

1) rr |

| fe Ricvniew hw

12 — —

UNITED STATES DISTRICT JUDGE |

3) ..

}

14 or

ROSER Cc. BON

nit = St S é 1 orne |

15 banda ; |

| FREDERICK BROSIO,

yg] Assistant United states Mrorm |

Chief, Civ Divisi

| |

“ |

| aaa ake arenes ll — = |

Oy 1A rr EI |

19} Pa |

| Assistant United States Attorney

20 | |

Attorneys for Federal Defendants

» |

22 |

} |

23 | |

24 |

| |

}

28 || ca

STEPHEN E. TALLENT

NANCY P. McCLELLAND

GIBSON, DUNN & CRUTCHER

2029 Century Park East

Suite 4000

Los Angeles, California 900

(213) 552-8500

Attorneys for Defendants /

General Dynamics Corporation AN

and C.W. Kessel - N

° \

CENTRAL DISTRICT OF CALIFORNIA

RICHARD NEAL SCHOWENGERDT, No. CV 83-8007=-AAH (Px)

Plaintiff, JUDGMENT

Vv. a

Tava

Citry U Bist! -1 -.

THE UNITED STATES OF AMERICA: a

DEPARTMENT OF THE NAVY; |

JOHN LEHMAN, SECRETARY OF THE DEC 3 0 1988 |

NAVY; GENERAL DYNAMICS

CORPORATION; C.W. KESSEL;

K.A. TILLOTSON; CARL W. JENSEN;

and RICHARD S. DAY,

Defendants.

eee eee ee eee eee ee ee ee ee

This motion of defendants General Dynamics Corporation

and C.W. Kessel (the “Privo*e Defendants") for summary judgment on

the Second Cause of Action of the Complaint of plaintiff Richard is

Neal Schowengerdt ("Plaintiff"), pursuant to Federal Rule of Civil

Procedure 56 and to dismiss LE sens state law claims set out in

the Fourth and Fifth Causes of Action of the Complaint for lack of

pendent jurisdiction came on for hearing before the Court, the

A: rT

Honorable Andrew ay Hauk presiding.

— 4 lot 2 Sey i £ a

s.. aills. "ght 00000 -) 4 -

— DEC 8 ¢ 1990 , er /

| .

A Buen & Crvtcne:

Now on considering the pleadings and papers in the action

and having heard oral argument and found that there is no genuine

issue of material fact regarding Plaintiff's Second Cause of

Action based on the Findings Of Uncontroverted Facts And

Conclusions Of Law and a decision having been rendered that

Private Defendants are entitled to summary judgment on that claim

as a matter of law, it is hereby

ORDERED, ADJUDGED AND DECREED that Private Defendants'

motion for summary judgment on the Second Cause of Action of the

Complaint and to dismiss the pendent state law claim set out in

the Fourth and Fifth Causes of Action be granted and that summary

judgment be entered herein in the Private Defendants' favor

dismissing the Complaint as to the Private Defendants in its

entirety.

Dated: A {4 9 C , 1988

SUDGE OF Li yp fee, HE UNITED STATES

DISTRICT COURT

5761Q

|| STEPHEN E. TALLENT

|| NANCY P. McCLELLAND

|| GIBSON, DUNN & CRUTCHER

|| 2029 Century Park East

3 Suite 4000

Los Angeles, California 90067

= || .

|| (213) 5852-8500 UEC 2 .

5 |

e ; * rates ——

6|| Attorneys for Defendants ‘

|| General Dynamics Corporation

7\| and C.W. Kessel

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

No. CV 83-8007-AAH (Px)

)

) FINDINGS OF UNCONTROVERTED

) FACTS AND CONCLUSIONS OF LAW

) RE: SUMMARY JUDGMENT IN FAVOR

) OF PRIVATE DEFENDANTS

THE UNITED STATIS OF AMERICA: )

DEPARTMENT OF THE NAVY; )

JOHN LEHMAN, SECRETARY OF THE )

16 NAVY; GENERAL DYNAMICS

CORPORATION; C.W. KESSEL;

»|| K.A. TILLOTSON; CARL W. JENSEN;

and RICHARD S. DAY,

Defendants.

ee ee es ee ee

— ~~

22| This matter came on regularly for hearing before the

“an os] Honorable Andrew Hauk, Judge of the United States District

a Court, on December 5, 1988, and the defendants having appeared by

al their respective counsel and the plaintiff having appeared in pro

ld per and the parties having filed pleadings and papers in support

vg of and in opposition to the motion of defendants General Dynamics

g|| Corporation and C.W. Kessel (the "Private Defendants") for summary

Gibson Duan & Crutcner ||

| a

pibsen Ounn & Cryicner

Action and to dismiss the pendent state law claims set out in the

Fourth and Fifth Causes of Action of the Complaint for lack of

pendent jurisdiction, and the matter having been argued and

Submitted, the Court makes the following findings of fact and

Gideon Dunn & Crutcner

STATEMENT OF UNCONTROVERTED FACTS

hs At all times relevant to the Second Cause of Action,

plaintiff Richard Neal Schowengerdt ("Plaintiff") was a military

industrial engineer who was a civilian employee of the United

States Navy (the "Navy") working at the Naval Industrial Reserve

Ordnance Plant at Pomona, California (the “Pacility").

a Defendant General Dynamics Corporation ("General

Dynamics") operated and provided security services at the Facility

pursuant to a contract with the Navy which, among other things,

required General Dynamics to perform general security, plant

protection and classified document control functions and to

investigate alleged espionage or sabotage at the Facility.

De At all times relevant to the Second Cause of Action,

defendant C.W. Kessel ("Kessel") worked for General Dynamics as an

investigator in its security department at the Facility.

4. At all times relevant to the Second Cause of Action,

Plaintiff held a "secret" security clearance and was subject to

and had extensive and ongoing exposure to the security regulations

and procedures governing the defense industry.

S. Plaintiff's office was located in Building 4 of the

Facility where a large number of classified documents, including

top secret documents, were stored and where numerous “strong rooms

and closed areas" containing particularly sensitive military and

national security documents and hardware were located.

6. Plaintiff was aware that every time an employee

entered or exited the Facility, the employee and the employee's

belongings, including all packages, briefcases and purses, were

subject to search regardless of the employee's consent, by guards

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at pedestrian entrances to the Facility and by guards at vehicle

gates who had the authority to search all vehicles arriving at or

departing from the Facility, including the glove compartments,

trunks and closed containers inside a vehicle or trunk.

iP Plaintiff was aware that guards regularly searched

inside individual offices and inside desks and other office

furniture in Building 4 of the Facility in order to monitor and

enforce security regulations concerning classified documents and

that such searches could be conducted in response to tips

concerning security breaches.

8. Plaintiff himself periodically participated in

searches of the offices and desks of co-workers to be sure that no

breaches of security occurred at the Facility.

9. Plaintiff received numerous security briefings about

the various Kinds of searches that occurred at the Facility and

about his duty to submit to such searches, and Plaintiff received

numerous written instructions regarding security procedures at the

Facility.

10. Plaintiff was aware that numerous individuals,

including General Dynamics security and custodial employees and

on-site Navy engineering officers, possessed duplicate keys

permitting them to enter Plaintiff's office at any time.

ll. Plaintiff was aware that the engineering officer at

the Facility possessed duplicate keys to the desk and the credenza

in Plaintiff's office which were available so that documents in

Plaintiff's desk or credenza could be retrieved in Plaintiff's

absence.

///

: 4S.

Gesan Dur & Cruicner

12. Prior to the events giving rise to the Second cause

of Action, Plaintiff stored a manila envelope containing

sexually-explicit correspondence, photographs and other materials

related to various extra-marital sexual encounters with "swingers"

in the lower left-hand drawer of the credenza in his office. The

outside of this manila envelope bore a handwritten request that in

the event of Plaintiff's death the material be destroyed because

Plaintiff did not wish his widow to know of it.

13. The materials in the manila envelope contained

references to the central telephone number at the Facility and

explicit references to the defense-industry nature of Plaintiff's

employment.

14. In the late afternoon of August 9, 1982, Kessel

received a telephone call in his office from an anonymous male

caller who stated that if Kessel would go to a particular office

in Building 4 of the Facility and search the lower left-hand

drawer of the credenza in that office he would find material that

would be of interest to the security department. The caller did

not identify the employee who worked in the office and, prior to

entering Plaintiff's office in response to the call, Kessel had

never heard of Plaintiff and had no prior dealings with hin.

15. Kessel proceeded to Plaintiff's office in response

to the call and entered it through the unlocked door of the

office. Upon opening the unlocked lower left-hand drawer of the

credenza, Kessel saw and brielfly inspected the unsealed manila

envelope containing the sexual materials.

16. Upon reviewing the materials in the envelope, Kessel

determined that the author was readily subject to blackmail or

4 es

-5-

1 | other inducements by his sexual cc..tacts that could lead to the

2!| compromise of classified information since the author had

3|| disclosed the nature of his work in the military defense industr:

,|| in a number of these pieces of correspondence and the author's

5 || wife did not know about these sexual contacts.

17. In accordance with General Dynamics' contractual

obligation to report to the Navy information suggesting the

3 | possibility of a compromise of security, Kessel took the envelope

and its contents to Kessel's office to confirm whether he was

ve)

10 | required to report the contents of the manila envelope to the Navy.

18. On the following day, August 10, 1982, Kessel gave

|| the material to the Navy Commander of the Facility, Lieutenant

| Commander K. A. Tillotson, and, at Tillotson's directicn, Kessel

14| and Clarence Johnson, a General Dynamics security investigator,

| escorted Tillotson and Navy Investigator Carl W. Jensen to

16|| Plaintiff's office where Jensen and Tillotson conducted a further

search of Plaintiff's files. Neither Kessel, Johnson nor any

18|| other General Dynamics' employee participated in this search.

19 | 19. After transferring the material to Plaintiff's Navy

o9|| superiors and escorting the Navy officials to Plaintiff's office

on August 10, 1982, neither Kessel nor any other General Dynamics

o9\|| employee had any other further connection with any investigation

52/1 of Plaintiff.

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20. All Findings of Fact set forth under the heading

"Conclusions of Law" and in the Motions for Summary Judgment of

the Public Defendants at pp 4:20 to 17:6 and the Private ///

Defendants at pp 5:23 to pp 17:9, and in the Private Defendants'

Reply to Plaintiff's Ojbections, etc. at pp. 20-21 are

incorporated herein by reference.

CONCLUSIONS OF LAW

i. All Conclusions of Law set forth under the heading

"Findings of Fact" are incorporated herein by reference.

2. Summary judgment shall be rendered forthwith if the

pleadings, depositions and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

™2fo~ a” €-- +> - «4=- ha o~--

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Gibeen Quan & Cruicner

7; The actual office practices, procedures and

legitimate regulations in place at the Facility precluded

Plaintiff from having a reasonable expectation of privacy in the

contents of his credenza.

8. The pleadings, papers, deposition excerpts and

declarations on file herein establish that there is no genuine

issue of material fact that the operational realities of

Plaintiff's workplace precluded him from heving a reasonable °

expectation of privacy in the contents cf his office credenza as a

matter of law, and the Private Defendants are entitled to judgment

in their favor against Plaintiff with respect to his Second Cause

of Action as a matter of law.

9. Even if a government employee has a legitimate

privacy expectation in the workplace, a warrantless search of the

public employee's workplace is permissible under the Fourth

Amendment so long as the search is reasonable within the context

in which it takes place. O'Connor, 107 S. Ct. at 1499.

10. Neither a warrant nor probable cause is necessary

for conducting a search of the workplace of a public employee so

long as the search concerns work-related, noninvestigatory

intrusions or investigations of work-related misconduct. Id. at

1502.

11. A search of the workplace of a public employee is

justified at its inception when there are reasonable grounds for

suspecting that the search will turn up evidence that an employee

is guilty of work-related misconduct or that the search is

necessary for a noninvestigatory work-related purpose, and such a

search is permissible in its scope when the measures adopted are

-9-

Gibsan Ounn & Cruicner ||

reasonably related to the objectives of the search and not

excessively intrusive in light of the nature of the alleged

miscenduct. Id. at 1503. :

12. The pleadings, papers, deposition excerpts and

declarations on file herein establish that there is no genuine

issue of material fact that the inception and scope of Kessel's

search were reasonable within the context in which the search

occurred, and the Private Defendants are entitled to judgment in

their favor against Plaintiff with respect to Plaintiff's Second

Cause of Action as a matter of law.

13. A warrantless search in a heavily-regulated industry

is reasonable if (1) the regulatory scheme pursuant to which the

search 1s conducted carries out a substantial government interest,

(2) the warrantless inspection is necessary to carry out the

regulatory scheme, and (3) the inspection program provides a

constitutionally adequate substitute for a warrant. New York v.

Burger, U.S. , 107 S. Ct. 2636, 2644, 96 L.Ed.2d 601 (1987)

14. Regulations in a heavily-regulated industry can

provide an employee notice that the employee's property may be

subject to periodic inspection undertaken for specific purposes

and can therefore provide a constitutionally adequate substitute

for a warrant. Id.

15. The pleadings, papers, deposition excerpts and

declarations on file herein establish that there is no genuine

issue of-material fact that the Facility is part of a

heavily-regulated industry and that Kessel's inspection of

Plaintiff's credenza was a reasonable warrantless inspection in

such an industry, and the Private Defendants are entitled to

-10-

, F/-

Judgment in their favor against Plaintiff with respect to

2 Plaintiff's Second Cause of Action as a matter of law.

3 16. In determining whether a disclosure of information

+|| Dy government agents is constitutional, it is appropriate to weigh

5 any intrusion into an individual's zone of privacy against the

5 public interest in and reason for the disclosure.

7 17. The pleadings, papers, deposition excerpts and

- declarations on file herein establish that there is no genuine

9 issue of material fact that Kessel's disclosure of the information

5 | concerning Plaintiff did not violate Plaintiff's constitutional

rights, and the Private Defendants are entitled to Judgment in

their favor against Plaintiff with respect to Plaintiff's Second

Cause of Action as a matter of law.

18. The defense of qualified immunity may be properly

15 | established on a motion for summary judgment when, by

16|| declarations, depositions and admissions, a set of undisputed

17 facts is revealed upon which the moving party is entitled to

18 judgment as a matter of law. Standridge v. City of Seaside, 545

19 | F. Supp. 1195, 1198 n.1 (N.D.Cal. 1982).

20 | 19. Officials performing discretionary government

21 functions are protected from persorial liability for civil damages

22 insofar as their conduct does not violate Clearly established

23|| statutory or constitutional rights of which a reasonable person

24 snould have knowledge. Harlow v. Fitzgerald, 457 U.S. 800, 818,

25 || 102 S. Ct. 2727, 2738, 73 L.Ed.2d. 396 (1982).

26 || 20. Whether an official protected by qualified immunity

27|; may be held personally liable for an allegedly unlawful official

2g8|| action generally turns on the objective legal reasonableness of

Gibsen Gunn & Crutcher -li-

-F~

the action assessed in light of the legal rules that were clearly

established at the time the action was taken. Anderson v.

Creighton, U.S. , 107 S. Ct. 3034, 3038, 97 L.Ed.2da 523

(1987).

21. Plaintiff sufficiently alleges in the Second Cause

of Action (which incorporates paragraphs ll, and 10-15 of the

Complaint) that the Private Defendants were federal actors acting

under federal law. Schowengerdt . General Dynamics Corporation,

823 F2d 1328, 1332 n.3 (9th Cir. 1987). See also: Bivens v. Six

Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29

Giesee Oume & Crvicney

24. There are no genuine issues of material fact or

evidence of a plan or conspiracy between or among Private

Defendants and any of the Bivens defendants in this case.

25. There are no genuine issues of material fact in

dispute respecting any of the allegations against the Private

Defendants in plaintiff's second cause of action of the Fourth

Amended Complaint, and defendants General Dynamics Corporation and

Kessel are entitled to judgment in their favor as a matter of law.

26. Judgment should be entered for the Private

Defendants and against Plaintiff as to the second cause of action.

27. In light of tne summary judgment granted herein as

to the Second Cause of Action, the only federal action stated

against the Private Defendants in the Complaint, this Court

declines to exercise jurisdiction over the Fourth and Fifth Causes

of Action on the basis of the principles set out in United Mine

Workers of America v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130,

1139-40, 16 L.Ed.2d 218 (1966) and dismisses the Complaint as to

the Private Defendants in its entirety.

DATED: Kia 25" | 1988

. Sie

ob ben,

JUDGE OF THE UNITED STATES

DISTRicT COURT

5761Q

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a |

OBERT C. BONNER

nited States Attorney : a>

REDERICK M. BROSIO, JR. eli Fi}

Assistant United States Attorney HS. Pa f

Chief, Civil Division

DONNA R. EIDE APR vic.

Assistant United States Attorney , MAY - | 0:

1100 United States Courthouse .

312 North Spring Street CLESH US

Los Angeles, California 90012 CENTRA’

Telephone: (213) 894-2464 BY

Attorneys for Defendant

United States of America

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

reas NEAL SCHOWENGERDT, No. CV 83-8007-AAH (Px)

| Plaintiff, JUDGMENT

Date: April 10, 1989

Time: 10:00 A.M.

| V.

THE UNITED STATES OF AMERICA,

DEPARTMENT OF THE NAVY,

JOHN LEHMAN, SECRETARY OF THE

NAVY; GENERAL DYNAMICS

CORPORATION; C. W. KESSEL;

K. D. TILLOTSON; CARL W.

JENSEN, and RICHARD S. DAY,

Defendants.

Defendant United States’ Motion for Summary Judgment came

on euatexts for hearing on Monday, April 10, 1989, before the

Honorable A. Andrew Hauk, United States District Judge, and the

Court having considered the pleadings, the memorandum of points

and authorities, exhibits, and the oral argument at the time of

the hearing, and in accordance with the findings of fact and

lconclusions of law entered herein,

- 59°

IT IS THEREFORE ORDERED that judgment be and the same

eee

hereby is entered in favor of the defendant United States and

against the plaintiff and that the first cause of action is

dismissed with prejudice. This is a final judgment entered in

accordance with Rule 54(b), F.R.Civ.P.

DATED: April » 1989.

ITED STATES DISTRICT JUDGE

PRESENTED BY:

ROBERT C. BONNER |

y3}United States Attorney

FREDERICK M. BROSIO, JR.

14 ASS1 Stant United States Attorney

; , } ;

Chief, C2 Vi Divisior

16 fete ‘Lor

DONNA R. EIDE

hasistant United States Attorney

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ROBERT C. BONNER

United States Attorney

FREDERICK M. BROSIO, JR.

Assistant United States Attl rney

Chief, Civil Division

DONNA R. EIDE

Assistant United States Attorney.

1100 United States Courthouse

312 North Spring Street

Los Angeles, California 90012

Telephone: (213) 894-2464 .

CLFRK Us

APR

Attorneys for Defendant

United States of America

UNI

CENTRAL DISTRICT OF

RICHARD NEAL SCHOWENGERDT,

Plaintiff,

Vv.

THE UNITED STATES OF AMERICA,

DEPARTMENT OF THE NAVY,

JOHN LEHMAN, SECRETARY OF THE

NAVY; GENERAL DYNAMICS

CORPORATION; C. W. KESSEL;

K. D. TILLOTSON; CARL W.

JENSEN, and RICHARD S. DAY,

Defendants.

ett Qa weet Ue i 7 CD TEE CET EP EP TEP EE

Tne defendants’ Motion for

hearing on April 10, 1989 before the

United States District Judge.

pleadings, the moving and opposition

documents,

hearing,

of va tm eabslchiontoVs aowrts mall

rf Gaur whieh ove Waal wor

TED STATES DISTRICT COURT

2g °

MAY ~ 4 1989

ey TRAL DiSTadCT OF CALIFOKNIA

DEPUTY

No. CV 83-8007-AAH (Px)

FINDINGS OF FACT AND

Summary Judgment came on for

The Court having considered the

exhibits, and the oral argument at the time of the

now makes the following findings of fact and conclusions

foc anckeoel

| ta | -57-

CONCLUSIONS OF LAW

Date: 1989

Time:

April 10,

10:00 A.M.

Honorable A. An@rew Hauk,

papers and accompanying

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there

UNCONTROVERTED PACTS

The Court adopts the Findings of Fact In Re Motion For

them by reference as though fully set forth here.

CONCLUSIONS OF LAW

Le Summary judgment is proper if there is no genuine

any material fact and the moving party is entitled to

nt aS a matter of law. See Anderson v. Liberty Lobby,

477 U.S. 242, 247, 106 S.Ct. 2505, 2510, $1 L.Ed.2d 20

("Liberty Lobby"); Fed.R.Civ.P. 56(c The mere exis

e factual dispute will not defeat an otherwise properly

r c £ = af v

be no genuine issue of material fact Liberty Lobby,

i, A¢ ~ iy r ~ -

t 247-48, 106 S.ct. at 2510 (emphasis in original

wr ,

é The threshold question in evaluating a mmary jud

motion is whether there is a need for a trial because there

exists a genuine factual issue which is capable to being res

in favor of either party that requires resolution by a fact

finder Liberty Lobby, 477 U.S. at 250, 106 S.Ct. at 25}

determination of whether a given factual dispute requires

Submission to a jury is governed by the substantive evidenti

Jard of proof that would apply at trial in case. Id. at

>»

Summary Judgment Filed on Behalf of Defendants Tillotson, Jensen,

and Day which were filed on December 29, 1988 and incorporates

3. If the non-moving party will bear the burden of proof

at trial on an element essential to its case, and that party

fails to make a showing sufficient to establish the existence of

that element, then summary judgment is appropriate. Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53,

91 L.Ed.2d 265 (1986) ("Celotex"). The summary judgment movant

may thus meet its burden of showing the absence of an issue of

material fact by pointing out that the plaintiff's proof is

lacking concerning an element essential to its case. Celotex,

477 U.S. at 325, 106 S.Ct. at 2554.

4. Where a defendant moves for summary judgment basec on

the lack of proof of a material fact, the plaintiff must

demonstrate that there is sufficient evidence on which the jury

could reasonably find for it; "(t]he mere existence of 4

Scintilla of evidence in support of the plaintiff's position will

be insufficient.” Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at

2512. “The evidence of the nonmovant is to be believed and all

justifiable inferences are to be Grawn in favor of the

Nonmovant." Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513

(citation omitted).

5. And while the evidence of the non-movant plaintiff must

be believed and all reasonable inferences drawn in its favor,

"'ijf the evidence is merely colorable or is not significantly

probative, summary judgment may be granted. Liberty Lobby, 477

U.S. at 249-250, 106 S.ct. at 2511. Id. (Citations omitted).

6. The allegations in paragraph 1l of the fourth amended

complaint allege an invasion of privacy -- more specifically --

the tort of intrusion into private affairs.

e3-

7. The lack of clarity of the meaning of "wrongfully and

eee in paragraphs 12-14 of the complaint requires

analysis of those allegations under two theories of common law

tort liability. If plaintiff intends to allege that the

disclosures were "wrongful and erroneous” because the information

disclosed was false, then the allegations are properly

Characterized as libel or slander. If plaintiff intends to

allege that the disclosures were "wrongful and erroneous”

because, even if true, should not have been made, then the tort

alleged is public disclosure of private facts - one of the four

branches of the general invasion of privacy tort recognized in

California. See generally Vol. 5, B.E Witkin Summary of

California Law, 1988, §§ 577-592, Pp. 672-89. For the reasons

set forth below, none of these torts are actionable in this case.

8. The Federal Tort Claims Act, 28 U.S.C. § 2680(h), bars

"Any Claim arising out of... libel, slander, misrepresentation

-" In determining whether a claim is barred by § 2680(h)

the court must look beyond the label to determine if the claim is

barred. Thomas-Lazear v. F.B.1., 851 F.2d 1202, 1207 (9th Cir.

1988). Moreover, section 2680(h) does not merely bar claims that

are specifically labeled as those stated in § 2680(h). “In

sweeping language it excludes any Claims arising out of

(slander, libel, or misrepresentation]." United States v.

Shearer, 473 U.S. 52, 55, 105 S.Ct. 3039, 3042, 87 L.Ed. 38

(1985).

9. If the essential wrong plaintiff is alleging in

paragraphs 12-14 of the fourth amended complaint by the language

pike

or has a tendency to injure him in his occupation, then

B.Witkin, Summary of California Law, 1988, §§ 471-481 pp.

Id. at 272.

is the place where the acts occurred. 28 U.S.C. § 1346;

nited States, 826 F.2d 806, 809 (9th Cir. 1987).

"wrongful and erroneous disclosure” is that a matter was 1)

published i.e. communicated to a third person who understands its

meaning and application to the plaintiff, 2) that is false and

unprivileged and, 3) which expose the person contempt or ridicule

plaintiff's claims arise out of slander and libel. (See Vol. 5.

557-565). i/ These causes of action are therefore barred by 28

U.S.C. §2680(c).

10. The elements of the tort of public disclosure of

private facts are 1) public disclosure, 2) of a private fact, 3)

lpersor and, 4) which is not of legitimate public concern. D-a2

lv. Oakland Tribune, Inc... 139 Cal.App. 3rd 118, 126, 188 Cal.

IRptr. 762 (1982). "Public disclosure” in this context means

publicity in the sense of communication to the public in general

or to a large number of persons as distinguished from one

individual or a few. It must be a public @isclosure, not a

private one. Kinsey V. Macur, 107 Cal.App. 3rd 265, 271, 165

Cal.Rptr. 608 (1980). Communications to a single recipient for a

lspecific, nonmalicious purpose does not constitute invasion of

l1/ California law governs the liability of the United States

under the Federal Tort Claims Act in this case because California

Garcia Vv.

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ll. With respect to paragraph 12, plaintiff alleges that

federal employees advised the Posta] Service that plaintiff was

sending and receiving pornographic literature and photographs

through the mail. Based on the evidence this conduct does not

constitute public disclosure of private facts.

The conversation did not identify the plaintiff by name.

The recipient of the information from Jensen at the Postal

Service could not have attributed the actions to the plaintiff.

Thus, the communication can not be characterized as a disclosure

at all. Jensen's conversation with an agent of the Postal

Service does not constitute a publication. It was not

communication to the public in general or even to a large number

of persons It was merely a communication to a single recipient

€ c ati sino Tim - S = = =

-Or a specific, nonmalicious purpose Such communication is not

an invasion of privacy Id

12. Paragraph 13 of the fourth amended complaint all

that federal employees wrongfully and erroneously advisec

Plaintiff's employer and the Naval Reserve that plaintiff was

involved in sodomy and homosexual activity. Basec on the

@vidence and conclusions of law entered previously, the conduct

does not constitute public disclosure of private facts. There

was no publication; it was a disclosure made to a very limited

group for a legitimate governmental purpose. The disclosure

therefore fails to meet elements 1 and 4 of the tort of invasion

of privacy. The disclosure cannot be characterized as offensive

and objectionable to the reasonable person, It was done out of

concern -- that p

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that he may have engaged in conduct prohibited under the terms

and conditions of his employment.

13. The findings of fact and conclusions of law entered by

this Court with respect to paragraph 14 of the complaint

similarly preclude a finding of invasion of privacy. In that

paragraph, plaintiff alleges federal employee Day wrongfully and

erroneously notified the Defense Investigation Service that

plaintiff was a security risk, thereby causing plaintiff's

security interest to be withheld for over one year. .

14. In view of the findings of fact 73-80 and conclusion of

law 34-36 previously entered, plaintiff cannot establish that

there was a public disclosure by Day. The evidence establishes

that the Gisclosure by Day was not that plaintiff was a security

risk, but rather that certain events had occurred subsequent to

the granting of his initial clearance which may have a bearing on

the status of his clearance. It was made to one person only.

Nor can he establish that the disclosure was offensive and

objectionable to the reasonable person. The court finds that was

reasonable. Finally, plaintiff cannot establish that the

Gisclosure did not relate to a legitimate public concern. The

Court finds that it related to legitimate publ:c concerns that

plaintiff might be a security risk. The United States is

therefore, entitled to judgment as a matter of law as to the

allegations of paragraphs 12-14.

15. Plaintiff alleges in paragraph 11 of his fourth amended

complaint that federal employees wrongfully and unlawfully

entered his office and seized photographs and letters pertaining

oo ov awn st 6 WN =

to his private sexual life, as well as other personal property.

Plaintiff cannot establish facts sufficient to prevail on a

theory of intrusion into private affairs - another branch of the

tort of invasion of privacy.

16. Under applicable California law the elements for this

tort are: 1) intrusion (physically or otherwise), 2) upon the

solitude of another or his private affairs, 3) which 1s highly

offensive to a reasonable person. Miller v. National

Broadcasting Company, 187 Cal.App.3d 1463, 1482, 232 Cal.Rptr.

668 (1986) (citing the Restatement Second of Torts, section

652B). In determining what is highly offensive, a court must

consider:

the degree of the intrusion, the context,

conduct and circumstances surrounding the

intrusion, as well as the intruder's motives,

and objectives, the setting into which he

intrudes, and the expectation of those whose

privacy is invaded.

484-85.

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—~

17. Based on the findings of fact 3-69 and conclusions of

law 11-14 previously entered, and the Standards set forth in

Miller v. National Broadcasting, supra, the Court finds as a

matter of law that defendants are not liable to the plaintiff for

invasion of privacy in connection with the search of his office

and seizure of his documents. Plaintiff had no expectation of

Privacy in the area. Thus, plaintiff cannot establish that his

Drivacy, i.e. seclusion and solitude, was invaded. The search

o§-

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was motivated for reasons directly relating to issues of national

security (suspicion that plaintiff may be a security risk),

Suspicion of criminal violations of the Postal laws, or concern

that plaintiff's conduct may preclude his continued service in

the military. Given those considerations, plaintiff cannot

establish that the intrusion was "highly offensive to a

reasonable person." Indeed the Court has found it was

reasonable. Accordingly, the United States is entitled to

judgment as a matter of law as to paragraph 11 of the fourth

amended complaint.

18. Any finding of fact erroneously designated a conclusion

of law is incorporated here.

19. There are no genuine issues of material fact in dispute

respecting any of the plaintiff's first cause of action allegec

in his fourth amended complaint and defendant United States of

America is entitled to judgment in their favor as a matter of law.

20. Judgment should be entered for those defendants and

against plaintiff.

wo wow A TR & |W WN =

ee ed

a ao ef & 2 & &

ppursuant to Rule 54(b), F.R.Civ.P.

DATED: April x. 1989.

21. This judgment is entered as a final judgment even

though it disposes of few than all of the claims and liabilities

of fewer than all of the parties. The Court finds that there is

no just reason for delay and therefore expressly enters judgment

PRESENTED BY:

ROBERT C. BONNER

United States Attorney

FREDERICK M. BROSIO, JR.

Assistant United States Attorney

Chief, Civil Divigion .

Acer G

Assistant United States Attorney

DONNA R. EIDE

Attorneys for Defendant

United States of America

UNITED STR poy Keb JUDGE

GARY A. FEESS

United States Attorney

PREDERICK M. BROSIO, JR.

Assistant United States At

Chief, Civil Division

DONNA R. EIDE

Assistant United States Atthrn y

1100 United States Courthonse-7. ar ch Oo

312 North Spring Street \.9-'*~

Los Angeles, California

Telephone: (213) 894-2464

Attorneys for Defendants

Secretary of the Navy and

the er of the Navy

tht

CLERK. US > ‘iater CAURT

NITED STA P

| Kav 1 6 088 UNITED STATES DISTRICT COURT

FQR THE CENTRAL DISTRICT OF CALIFORNIA

RTFAL DISTRICT OF CALIFE = |

RICHARD NEAL SCHOWENGERDT, ) No. CV 83-8007-AAH(Px)

Plaintiff, JUDGMENT

Vv. ) Date: November 13, 1989

) Time: 10:00 A.M.

THE UNITED STATES OF AMERICA, )

DEPARTMENT OF THE NAVY, )

JOHN LEHMAN, SECRETARY OF THE )

NAVY; GENERAL DYNAMICS )

CORPORATION; C.W. KESSEL; )

K. D. TILLOTSON; CARL W. )

JENSEN, and RICHARD S. Day, )

)

Defendants.

Defendants Department of the Navy and the Secretary of the

Navy's Motion for Summary Judgment came on regularly for hearing

on Monday, November 13, 1989 before the Honorable A. Andrew Hauk,

United States District Judge, and the Court having considered the

pleadings, the memorandum of points and authorities, exhibits, and

the oral argument at the time of the hearing, and in accordance

with the findings of fact and conclusions of law entered herein.

. to,

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IT IS THEREFORE ORDERED that judgment be and the same hereby

is entered in favor of the defendants Department of the Navy and

the Secretary of the Navy and against the plaintiff and that the

first cause of action is dismissed with prejudice. This is a

final judgment entered in accordance with Rule 54(b), PF.R.Civ.P.

KA. AIRTW HAUK

UNITED STATES DISTRICT JUDGE

PRESENTED BY:

GARY A. FEESS

United States Attorney

FREDERICK M. BROSIO, OR.

Assistant United States Attorney

Chief, Civil Division

DONNA R. EIDE

Assistant United States Attorney

Attorneys for Defendants

Secretary of the Navy and

the Department of the Navy

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COUT

GARY A. FEESS

United States Attorney

FREDERICK M. BROSIO, JR.

Assistant United States Attorney

Chief, Civil Division

DONNA R. EIDE

Assistant United States Attorney

1100 United States Courthouse

312 North Spring Street-

12, Nov &4

Los Angeles, California [90Dt2 oR es — cay | Fi =|)

Telephone: (213) 894-2}64@e BS ooo 2°7 xert | L. :

Attorneys for Defendants Crp

Secretary of the Navy and

the Department of the Navy pour ca is

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DEPL.

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, NOV | 3 1980

ne AK U.S. DISTRICT COURT

YB GENTAAL DISTRICT ~~ LUFORK

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

RICHARD NEAL SCHOWENGERDT,

Plaintiff,

Vv .

THE UNITED STATES OF AMERICA,

DEPARTMENT OF THE NAVY,

JOHN LEHMAN, SECRETARY OF THE

NAVY; GENERAL DYNAMICS

CORPORATION; C.W. KESSEL;

K. D. TILLOTSON; CARL W.

JENSEN, and RICHARD S. Day,

Defendants.

ee eee ee ee ee eee

No.

Date:

Time:

CV 83-8007-AAH(Px)

November 13, 1989

10:90 A.M.

STATEMENT OF UNCONTROVERTED

FACTS AND CONCLUSIONS OF LAW

ole

UNCONTROVERTED FACTS

1. In this motion, the defendants the Department of Navy

and the Secretary of the Navy, move for summary judgment in their

favor regarding the third cause of action ("Count III") set forth

in the Fourth Amended Complaint.

2. Plaintiff maintains that his Constitutional rights

secured under the First, Fourth, Fifth and Ninth Amendment were

violated when he was discharged from the Naval Reserves. He also

Oo oo Ys BA eR & WwW WW

alleges that the decision to discharge him was arbitrary and

—

capricious and not supported by substantial evidence. He seeks

—

declaratory relief and reinstatement to his former position with

13 the Naval Reserve with all “rights and benefits to which he is

14 entitled.”

15 3. As a result of the discovery of the evidence in

16 plaintiff's office at his employment as a civilian engineer with

the United States Navy at the NAVSEA facility at Pomona (see

eee

Findings of Fact and Conclusions of Law ("FFCC") entered by this

Court on December 12, 1988, 44 1-80), plaintiff was discharged

20 from the Navy. He held the rank of a chief warrant office in the

Naval Reserve and was assigned to the Pacific Missile Test Center

22 at Point Magu, California.

4. The Navy initiated plaintiff's discharge by memorandum

%“ dated March 8, 1983. In that memorandum, plaintiff was advised

25 that he was to be separated as a member of the Naval Reserve

%6 because he had admitted to being bisexual. Concurrently with the

27 issuance of that memorandum, the Navy requested that a board of

9g |;officers be convened to consider plaintiff's case. Plaintiff

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rejected the option of resignation and advised the Navy he would

appear before the board of officers.

informed of his rights before the board and given a copy of the

Navy policy concerning homosexuals. Among the rights provided to

plaintiff at his hearing before the board were the right to

military appointed counsel, full access to all statements,

documents or records to be considered by the board, the names of

all witnesses, the right to present evidence, sworn statements,

argument,

case. A written summary of the hearing was prepared. Subsequent

to the presentations of factual evidence and argument, the board

of officers found by a vote of 3 to 0 that plaintiff had admitted

that he is bisexual and, based on that finding, recommended

plaintiff's discharge from the Naval Reserves under honorable

conditions. The board's recommendation was referred to the

Secretary of the Navy by memorandum dated June l, 1984.

correction of military naval records, seeking “reinstatement in

the Naval Reserves". In the application, plaintiff maintained

that the board had insufficient evidence upon which to base its

finding that plaintiff had stated he was bisexual. On October 3,

1984 plaintiff was informed by memorandum from the Secretary of

the Navy that he was honorably discharged from the U.S. Naval

Reserves effective June 7, 1984. By letter dated September 4,

1985, plaintiff was informed that his application for correction

of records was denied,

By memorandum dated April 20, 1983, plaintiff was

and rebuttal, and the right to cross examine any witness.

On June 23, 1983, the board convened to hear plaintiff's

On March 2, 1984, plaintiff filed an application for

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8. Plaintiff timely exhausted his administrative remedies

by seeking review of his discharge when he filed an Application

for Correction of Military Naval Records on March 2, 1984.

Thereafter, plaintiff filed suit in federal district court.

9. As the record of hearing the board of officers

establishes, the basis for plaintiff's discharge was that he had

Stated that he was bisexual. The finding was based on certain

letters written and received by plaintiff discovered during the

search of his civilian employment office at Pomona on August 9,

1982. It was also based on a statement plaintiff made to the

Naval Investigative Service (NIS) special agent investigating the

discovery of the letters. In an interview with the NIS agent on

August 11, 1982, plaintiff stated that he was bisexual.

10. As a defense to this evidence, plaintiff maintained that

although he held himself out as a bisexual, had solicited sexual

encounters with both men and women in the letters, and had

indicated in the letters that he had previously performed fellatio

with men, he was not actually bisexual. Plaintiff maintained that

such writings were mere fantasy. The board did not accept

plaintiff's explanation as credible. Plaintiff also maintained

that he did not state to the NIS agent that he was bisexual. The

board did not find plaintiff credible on this point and chose to

believe the NIS agents version of the interview.

CONCLUSIONS OF LAW

ll. The applicable Department of the Navy regulations,

Secretary of the Navy Instructions ("SECNAVINST") 1900.9D (id. at

oh<

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33-35) provide:

4. Policy. Homosexuality is incompatible with

military services ... . The presence in the

military environment of persons who engage in

homosexual conduct or who, by their statements

demonstrate a propensity to engage in

homosexual conduct, seriously impairs the

accomplishment of the military mission

Such persons shall normally be separated from

the naval service in accordance with this

instruction.

5. Definitions.

b. Bisexual means a person who engages in,

desires to engage in, or intends to

engage in homosexual and heterosexual

acts.

7. Bases For Administrative Separation.

b. A member shall be separated under this

instruction if, but only if, one or

more of the following three approved

findings is made: ...

(2) The member has stated that he or

she is a homosexual or bisexual

unless there is a further finding

that the member is not homosexual

or bisexual.

12. Plaintiff's prayer for relief seeks reinstatement "with

all rights and benefits to which he is entitled.” This prayer

- Ay

’

, necessarily implies a claim for back wages and other financial

2 benefits. The defendants named in this cause of action are the

3 Department of the Navy and the Secretary of the Navy, sued in his

4 official capacity.

‘ 13. In general, the United States os 8 sovereign is immune

6 from suit unless it consents to be sued. The terms of the consent

- to be sued define the jurisdiction of the court entertaining the

3 suit. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767,

9 769, 85 L.Ed.2d 1058 (1976). Unless sovereign immunity has been

10 waived, it bars equitable and legal remedies against the United

i States. Beller v. Middendorf, 632 F.2d 788, 796 (9th Cir. 1980).

12 14. The Administrative Procedures Act (APA), 5 U.S.C. § 702,

13 waives sovereign immunity only for nonmonetary relief for

14 constitutional violations, it does not provide a basis for an

15 award of monetary damages for constitutional violations. Id. at

16 797-798. The Federal Tort Claims Act does not waive sovereign

7 immunity for constitutional torts brought against the United

18 States either. Arnsberg v. United States, 757 F.2d 971, 980 cert.

19 denied 475 U.S. 1010, 106 S.Ct. 1183, 89 L.Ed.2d 307 (1986).

20 15. Elaintiff is limited only to declaratory relief and

21 reinstatement should the court find his rights were violated.

22 FIRST AMENDMENT RIGHTS

23 Ié. Plaintiff was discharged from the Navy because he

24 admitted to being a bisexual in letters to third parties and

25 admitted being bisexual to an NIS agent. These admissions are not

%6 entitled to First Amendment protection.

27 17. In evaluating the First Amendment rights of public

28 || employees, the threshold inquiry is whether the statements at

-6- “4 :

' issue were a matter of public concern. Allen v. Scribrer, 812

, F.2d 426, 430 (9th Cir. 1987) as amended 828 F.2d 1445 (9th Cir.

3 1987). If the matter is not a matter of public concern

4 "government officials should enjoy wide latitude in managing their

; offices, without intrusive oversight by the judiciary in the name

6 | of the First Amendment.” Connick v. Myers, 461, U.S. 138, 145,

5 103 S.Ct. 1684, 75 L.Ed.2d 708, 719 (1983). "Because

8 (plaintiff's) statements were made 'for personal reasons and not

9 to inform the public of matters of general concern' they are not

10 entitled to First Amendment protection. Woodward v. United

1 States, 871 F.2d 1068, 1071 n.2 (Fed.Cir. 1989) quoting Fiollo v.

2 United States Department of Justice, 795 F.2d 1544, 1550 (Fed.

13 Cir. 1986).

14 18, Plaintiff's statements that he was a bisexual were made

15 in two contexts, neither of which can be considered a "matter of

16 public concern". The letters seeking sexual encounters were

17 private affairs. The statement he made to the NIS agent involved

18 only the investigation of those private affairs. The statements

19 were not of general public concern but were matters personal to

20 plaintiff. See also Johnson v. Orr, 617 F.Supp. 170, (E.D. Cal.

21 1985) (holding that self assertion of homosexuality is an

22 admission of fact that can serve as a basis for discharge.)

23 19. Plaintiff was not discharged for exercising his freedom

| of speech. He was discharged because he was an admitted

25 bisexual. Had the Navy determined that plaintiff was not, in

6 fact, bisexual despite his admissions, he would not have been

27 subject to discharge under Navy regulations despite those

93 || admissions (See SECNAVINST 1900.9D @ 7(b)(2)). The essence of the

-7- rhe -

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24. Neither the Navy regulations nor the practices of the

Navy created a reasonable expectation of continued employment once

a person is determined to be an admitted homosexual. There is no

basis for inferring any expectation of continued service

sufficient to constitute a constitutional property interest.

Middendorf, Id.

25. The Navy's action had not deprived plaintiff of a

liberty interest in violation of the Fifth Amendment. Id. at

806. There is no allegation or evidence that plaintiff's

discharge from the Navy prevented him from retaining or obtaining

civilian employment or seriously damaged his standing and

association in the community constituting a deprivation of a

liberty interest.

26. Even if there were, plaintiff was accorded a hearing

which had adequate safeguards to ensure procedural due process.

Id. at 806. He was offered appointment of military counsel, he

had the opportunity to present witnesses and cross examine

witnesses testifying against him, he had advance notice of the

charges against him, and had a variety of other rights equivalent

to those afforded federal civil litigants. Therefore, even if he

had a liberty interest, it was sufficiently protected at the

hearing before the board.

27. Fifth Amendment equal protection claims are treated the

same as claims under the Fourteenth Amendment. Weinberger Vv.

Wiesenfeld, 420 U.S. 636, 638 n.2, 95 S.Ct. 1225, 1228 n.2, 43

L.Ed.2a 514 (1975). In an equal protection case, the initial

inquiry is what level of judicial scrutiny is appropriate. "The

general rule is that legislation is presumed to be valid and will

-9- ¢ 1i3

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be sustained if the classification drawn is rationally related to

a legitimate governmental interest" (low-level scrutiny).

Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct.

3249, 87 L.Ed.2d 313 (1985). The rule gives way when a statute or

regulation is based on "Suspect" classifications. If so, the

regulations are subjected to strict scrutiny (high level

scrutiny), and are constitutional only if narrowly tailored to

serve a compelling state interest. Id. at 440. Legislation based

on quasi-suspect classification are subjected to intermediate or

"heightened” level of review, and will be sustained only if the

classification is "substantially related to an important

governmental interest.” Id. at 441.

28. In Rich v. Secretary of The Army, 735 F.2d 1220 (10th

Cir. 1984), plaintiff challenged the Army's policy of excluding

homosexuals as a violation of the equal protection clause,

maintaining that homosexuality is an immutable characteristic

requiring strict scrutiny review. The court rejected the argument

stating "{a] classification based on one's choice of sexual

partners is not suspect," citing Hatheway v. Secretary of Army,

641 F.2d 1376, 1382 (9th Cir. 1981) cert. denied, 454 U.S. 864,

102 S.Ct. 324, 70 L.Ed.2d 164 (1981); DeSantis v. Pacific

Telephone & Telegraph, 608 F.2d 327 (9th Cir. 1979). In Hatheway

the Ninth Circuit applied mid-level scrutiny in concluding that

the Army's policy of selectively prosecuting sodomy cases

involving homosexuals only and concluded that the policy was

constitutionally permissible.

29. Since Hatheway was decided, the Supreme Court in Bowers

v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1987)

1AGY

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decided if a Georgia statute criminalizing sodomy between

consenting adults violated the substantive due process rights of

those charged under the statute. The Court upheld the statute,

holding that the Constitution does not confer a fundamental right

to homosexuals to engage in sodomy. Although Hardwick did not

expressly consider whether homosexuals were a suspect class, the

underlying rationale and logic of the decision suggest that

homosexuals would not be treated as a suspect class:

The court's reasoning in Hardwick .

forecloses appellant's efforts to gain suspect

class status for practicing homosexuals. It

would be quite anomalous, on its face, to

declare status defined by conduct that states

may constitutionally criminalize as deserving

strict scrutiny protection under the equal

protection clause... . After all, there can

hardly be more palpable discrimination against

a class than making the conduct that defines

the class criminal.

Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987).

30. A critical criteria used to identify suspect classes is

the existence of immutable characteristics such as race. See e.g.

Loving v. Virginia, 388 U.S. 1, ll (1967) (race) or Korematsu Vv.

United States, 323 U.S. 214, 214 (1984) (national origin). This

characteristic does not apply to homosexuais.

Members of recognized suspect or quasi-suspect

classes .. . exhibit immutable

characteristics, whereas homosexuality is

VG -

“y

' behavioral in nature... . The conduct or

3 behavior of the members of a recognized suspect

3 or quasi-suspect class has no relevance to the

4 identification of those groups.

5 Woodward v. United States, 871 F.2d at 1076. For the reasons

6 cited in Woodward, plaintiff's claim of violation of equal

- protection should be rejected.

& NINTH AMENDMENT RIGHTS

9 31. "The Ninth Amendment has never been recognized as

10 independently securing any constitutional right for purposes of

i pursing a civil rights claim." Standberg v. City of Helena, 791

12 F.2d 744, 748 (9th Cir. 1986). Where plaintiff has failed to

13 identify any other constitutional amendment or fundamental right

14 Guaranteed by the constitution which defendants have abridged, he

15 Cannot maintain a claim under the Ninth Amendment. Schertz v.

16 Waupaca County, 683 F.Supp. 1551, 1561 (E.D. Wis. 1988). In fact

17 the Supreme Court in Bowers v. Hardwick, supra at 190 rejected the

18 notion that there is a fundamental right to privacy in homosexual

19 Conduct Because no other constitutional right has been violated

20 in plaintiff's case, the Ninth Amendment claim must also fall.

21 NON-CONSTITUTIONAL CLAIMS

2 32. The remainder of plaintiff's allegations are that his

23 discharge was arbitrary, capricious and an aduse of discretion.

“4 These are non-constitutional claims. Such claims are not

25 reviewable. The Supreme Court has frequently cautioned that

6 encroachment by civilian courts into military life must

27 necessarily be limited because "judges are not given the task of

28 running the Army." Orloff v. Willoughby, 345 U.S. 83, 93, 73

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~~ A uR & WY NR | OC

S.Ct. 534, 540, 97 L.Ed.2d 842 (1953). In Wallace v. Chappell,

661 F.2d 729, 733 (9th Cir. 1981) the court recognized that this

kind of litigation is potentially disruptive to military

operations and creates difficulty in military discipline. Id. at

732.

33. Even if the plaintiff's non-constitutional claims

relating to his discharge were reviewable, the discharge withstands

judicial scrutiny. There is substantial evidence to support the

board's finding that plaintiff had admitted he was bisexual. See

e.g. AR at 60, 62, 74, 76, 97. Plaintiff's only defense to this

evidence was that his writings were mere fantasy. The board

simply did not believe the plaintiff's explanation.

34. The APA, under which plaintiff seeks review, does not

permit trial de novo. United States v. Consolidated Mines and

Smelting Company, 455 F.2d 432 (9th Cir. 1971). In determining

credibility issues, the reviewing authority should not substitute

is own judgment for that of the fact-finder. Fairbank v. Hardin,

429 F.2d 264, 268 (9th Cir. 1970). Due deference is to be

rendered to agency determinations of fact, so long as there is

substantial evidence to be found in the record as a whole.

N.L.R.B. v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 13 L.Ed.2d 839

(1965).

35. Given the overwhelming weight of the evidence, it can

not be said that the board's decision to disbelieve plaintiff was

arbitrary, capricious or not supported by substantial evidence.

oli 3e

- Ol

ee ee ee

36. There are no genuine issues of material fact, and

defendants are entitled to judgment as a matter of law,

oe. BES 12, 1989.

PRESENTED BY:

GARY A. FEESS

United States Attorney

FREDERICK M. BROSIO, JR.

Assistant United States Attorney

Chief, Civil Division

) 7

J) , a?

Kh— fe

DONNA R. EIDE

Assistant United States Attorney

Attorneys for Defendants

Secretary of the Navy and

the Department of the Navy

A. ANDREW KAUK

UNITED STATES DISTRICT JUDGE

st.

APPENDIX C Opinion of the Ninth Circuit

Court of Appeals filed 30 July 198

eee ee ee CS

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

)

RICHARD Neat SCHOWENGERDT,

Plaintiff-Appellant,

V. No. 84-6231

GENERAL DYNAMICS CORPORATION; L D.C. No.

C.W. KESSEL; K.D. TILLOTSON;

CV 83-8007-AAH

CaRL W. JENSEN; RICHARD S. Day; . OPINION

and JOHN LEHMAN, SECRETARY OF

THE Navy,

Defendants-Appellees.

—EEEE J

Argued and Submitted

February 6, 1986—Pasadena, California

Filed July 30, 1987

Before: Betty B. Fletcher, Dorothy W. Nelson and

Cynthia Holcomb Hall, Circuit Judges.

Opinion by Judge Fletcher

Appeal from the United States Distnct Court

for the Central District of California

A. Andrew Hauk, District Judge, Presiding

SUMMARY

Civil Rights

Appeal from the dismissal of a complaint. Athirmed in part,

reversed in part and remanded for further proceedings

2 SCHOWENGERDT v. GENERAL Dynamics Corp

Appellant Schowengerdt (Schowengerdt) was employed by

the Department of the Navy in a Civil Service engineering

position at a Naval Industrial Reserve plant in Pomona, Cali-

fornia, and was also in the Naval Reserve. Appellee Genera!

Dynamics provided secunty services for the plant and

employed appellee Kessel as a Security Investigator. The

complaint alleges Kessel acted on behalf of and as an agent for

the Navy in entering Schowengerdt's locked office, searching

his locked desk, and seizing personal photographs and corrte-

spondence that involved sexual matters. The next day appel-

lee Tillotson, acting naval plant representative, and appellee

Jensen, special agent for the Naval Investigative Service,

joined in a second warrantless search, later informing the

Postal Service that Schowengerdt was receiving and sending

pornographic materials through the mails. They also

informed the Naval Reserve that Schowengerdt was involved

in homosexual activities.

During proceedings which led to his discharge, the Secre-

tary of the Navy sent a letter to appellant’s home concerning

the discharge, which family members intercepted and read.

Five months after the search, Schowengerdt resigned from

the Civil Service and took a job in private industry, but his

security clearance was withheld for 16 months, allegedly

because of an adverse comment by appellee Day. Schow-

engerdt’s complaint alleges these acts were an abuse of

authority by the defendants and that the search was not

authonzed by government regulations. Concluding

Schowengerdt had no reasonable expectation of privacy in his

desk, the district court granted motions to dismiss for failure

to state a claim.

[1] Bivens v. Six Unknown Federal Narcotics Agents, 403

U.S. 288 (1971), allows victims of a constitutional violation

by a federal agent to recover damages despite the absence of

any statute conferring such a right, [2] but a Bivens cause of

action may be defeated if special factors counsel hesitation in

the absence of affirmative action by Congress. [3] The district

SCHOWENGERDT v. GENERAL Dynamics Corp 3

court ruled that Schowengerdt could not have had a reason-

able expectation of privacy in his desk primarily because the

desk was the property of his employer, but fourth amendment

privacy interests do not tum on property interests, but

depend on the existence of a reasonable expectation of free-

dom from governmental intrusion. [4] In O'Conner v. Ortega,

107 S.Ct. 1492 (1987), the Supreme Court was unanimous in

finding that a state hospital doctor on administrative leave

had a reasonable expectation of privacy in his desk and filing

cabinets. [5] Although a majority of the Ortega court did not

reach consensus as to what determines whether an employee's

expectation of privacy is reasonable, sufficient guidance was

provided to allow a conclusion that in this case the district

court erred in finding that under no circumstances could

Schowengerdt have a reasonable expectation of privacy in his

desk and credenza.

{6] U.S. v. Bunkers, 521 F.2d 1217 (9th Cir.), cert. denied,

423 US. 989 (1975), upheld the search of a postal worker's

locker based on published regulations making it clear that the

lockers were subject to search, [7] but it is concluded that

Schowengerdt would enjoy a reasonable expectation of pn-

vacy in areas given over to his exclusive use unless he was on

notice from his employer that searches of the type to which he

was subjected might occur from time to time for work-related

purposes. [8] On remand Schowengerdt and the government

should be given the opportunity to develop facts relevant to

the existence and scope of policies and practices or regula-

tions relating to searches at the facility. [9] Because

Schowengerdt had a constitutional right to be free from

unnecessary, overbroad, or unregulated employer investiga-

tions into his sexual practices, the search of his desk and cre-

denza to find and seize materials relating to such matters

would be reasonable only if relevant to his job as a naval eng!-

neer, and the scope of the inquiry must be no broader than

necessary. [10] The “private” defendants’ argument that a

Bivens action is not available against them since they are not

me:

4 SCHOWENGERDT v GENERAL Dynamics ( ScROWENGERI v. GENERAL Dynamics Corp 5

government employees (though they may be federal actor<)

i¢

Stephen E. O'Neal and Nancy P. McClelland, Los Angele

rejected

California, for the defendant-appellee

[11] Private corporations can be liable for constit

violations, {12} provided the defendant engaged in

OPINION

action. [13] Whether or not the private defenda: ts acti

a federal action is a question of fact to be determ

: FLETCHER, Circuit Judge

remand. [14] Nor can it be argued that Congress has acted to

regulate the aspect of governmenVemployee relations at issue ciddeteiilis: mieneale” ie diana iit tle: enineabihen

rhe aiid maha en ee we S against General Dynamics, a General Dynamics security

Bivens action employee, the Secretary of the Navy, and vanous Navy per

nae for failure to state a claim. We afhrm in part, reverse

[15] Schowengerdt's claims under the Posse Comitatus Act

in part, and remand for further proceedings

fail because the Act is inapplicable to Navy involvement, [16]

and no cause of action is stated under 18 U S< § 1702 I. BACKGROUND

which protects correspondence in the U.S. mails, because the

law protects only letters that have not been received [17]

Although the claim under 18 U.S.C § 2510-2520,

interception

Schowengerdt seeks declaratory and injunctive relief and

rates yney damages against General Dynamics and C.W. Kessel,

f oral and wire communications is defective

a General Dynamics secunty investigator (“private

because Schowengerdt has alleged no such Interceptions, this defendants”), Secretary of the Navy John Lehman and Navy

Suet oe be cured by amendment [18] No clain personnel Carl Jensen, K.D. Tillotson, and Richard Day

is stated under 42 U.S.C. § 1985(3) because racial or other ‘federal defendants”). Jurisdiction is invoked under, inter

class-based animus is alleged, and membership in a class lia, 28 U.S.C. § 1331, for claims arising “under the First.

rena one ae support a § 1985 action Fourth, Fifth, Sixth, and Ninth Amendments to the Constitu-

[19] Mailing the letter to Schowengerdt’s home did not viol

tion, Title 18 U.S.C. Sections 1385, 1702, and 2510-20, and

the Privacy Act because it was not a “disclosure” within t Title 42 U.S.C. Section 1985(3).” The complaint specifically

meaning of the act, and the letter was directed to an employee alleges violations of Schowengerdt’s rights to privacy, to free-

concerning his employment status, and was thus a routine use dom of association and speech, and to freedom from unrea-

authonzed under the Act [20] The claim for injunctive relief 1 sonable searches and seizures. We read it also as alleging a

from military discharge is ripe for review by the district coun conspiracy among all defendants to violate those ngbts." In

if Schowengerdt has exhausted h

4 - *fendants

is administrative remedies ddition, the first cause of action also alleges that defe

violated Privacy Act regulations, while the second and thirc

causes of actions allege pendant state-law invasion-of-privacy

i tresp Ims again . vate defendants

-OUN nd trespass claims against the pn

COUNSEI a tres

‘ 4 eer th Defendants were

j The complaint reads in part allcg nat

Carl B. Pearlston, Jr., Torrence. Calif mia, for the plaintft china nspiratonal a aintuff because of vanous past

T 4 310 <¢ sf ¢ é

appellant

6 SCHOWENGERDT v. GENERAL Dynamics Corp.

Schowengerdt was employed by the Department of the

Navy in a Civil Service engineering position at a Naval Indus-

trial Reserve plant in Pomona, California. He was also a

Chief Warrant Officer in the Naval Reserve. General Dynam-

at the plant. Carl Jensen was a special agent for the Naval

(nvestigative Service and Richard Day was Chief of Security

at a Naval Engineering Station at Port Hueneme, California.

On August 9, 1982, Kessel entered Schowengerdt’s locked

Office, searched his locked desk and credenza, and seized per-

sonal photographs and correspondence that involved sexual

matters. On the following day, Kessel and Navy employees

Tillotson and Jensen conducted a second search and seized

similar items. These searches were carried out without a war-

rant. Schowengerdt contends that they were not authonzed

by Naval regulations.

Tillotson and Jensen informed the Postal Service that

Schowengerdt was receiving and sending Pornographic mate-

mals through the mails. They also informed the Naval

Reserve that Schowengerdt was involved in sodomy and

homosexual activities. Following administrative discharge

Proceedings, and review by the Secretary of the Navy,

Schowengerdt was discharged from the Naval Reserve. Dur-

ing the course of the discharge Proceedings, Lehman sent a

*tter by regular mail to Schowengerdt’s home, stating that

Schowengerdt was being considered for discharge from the

Naval Reserve because of homosexual and bisexual activities.

The letter was intercepted and read by Schowengerdt’s fam-

ily.

Approximately five months after the search, Schowengerdt

resigned from the Civil Service and took a job in private

industry. Schowengerdt alleges that an adverse comment

—_ScHonencenor v. Generat Dynamics Corp. 7

The complaint alleges that these acts were an abuse of

authority by the defendants and that the Search was not

The private and the federal defendants filed separate

motions to dismiss the complaint. The district judge dis-

available administrative remedies h

ad not yet been

exhausted. Finally, the court held that Schowengerdt failed to

allege facts sufficient to state a claim under 42 U.S.C

$ 198503) ihe court did not specifically addres; Schow-

enger t's other statutory claims, but rather sj ismi

all causes of action. ie

ll. STANDARD OF REVIEW

Whether a complaint should be dismissed for failure to

State 4 claim pursuant to Fed. R. Civ, p. 12(b\6) isa question

Of law subject to de novo review Western Reserve Oil & Gas

8 SCHOWENGERDT v. GENERAL Dynamics Core

true and construing them in the light most favorable to the

appellant. /d. The test we apply is generous to the plaintiff:

dismissal for failure to state a claim is improper unless “it

appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to

relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957), quoted in

Gibson v. United States,

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