Petition for Writ of Certiorari — Hill v. Department of the Air Force

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87-2029

PETITION NO.

SUPREME COURT OF THE UNITED |

OCTOBER 1987 TERM OF COURT

THOMAS W. HILL,

Vv.

DEPARTMENT OF THE AIR FORCE,

MERIT SYSTEMS PROTECTION BOARD,

PAUL S. BRITT, and

PAUL J. VALLERIE,

Respondents-Defendants.

ON WRIT OF CERTIORARI TO THE U.S. COURT

OF APPEALS FOR THE TENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

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QUESTIONS PRESENTED FOR REVIEW

1. Whether the Tenth Circuit erred

in Ordering complete dissolution of a pre-

liminary injunction when the injunction

has provided some appropriate relief?

2. Whether the Tenth Circuit erred

in holding that provision to Plaintiff of

process specified by Air Force Regulation

("AFR") 205-32 would be a "useless exer-

cise" and may be waived when the District

has found injury from noncompliance?

Whether the Tenth Circuit erred

in Ordering the District Court to dismiss

Plaintiff's cause, wnerein he has specifi-

cally pled noncompliance with AFR 2

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4. Whether tne Tenth Circuit erred

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Ait parties are 1ist2ed in the caption.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

LIST OF PARTIES

TABLE OF CONTENTS

TABLE OF AUTHORITIES

REFERENCE TO REPORTS

GROUNDS FOR JURISDICTION

INVOLVED LEGAL BASES

STATEMENT OF THE CASE

REASONS FOR ALLOWANCE OF WRIT

I. The Tenth Circuit Deci-

sion In This Matter Conflicts

With Decisions In The D.C.

Bae TASC GOPCULEe 6 5 ik os bee wes

II. The Tenth Circuit Decision

To Relieve The Agency Of Respon-

sibility To Provide Plaintiff

Regulatory Process Opposes

Supreme Court Holdings ............

III. The Tenth Circuit Rul-

ing That Plaintiff Has No

Constitutionally Guaranteed

Interest In His 20-Year Se-

curity Clearance Has Decided

A Matter Which Should Be

Decided By The Supreme Court ......

IV. Contrary To The Circuit

Court Holding Regarding Defect

In The Instant Process, The

Record Shows Three Substan-

tive Procedural Violations ........ 26

V. The Tenth Circuit Erred

In Refusing To Consider The

Alternate, Statutory Bases

For Jurisdiction As Stated

In The Complaint ois 5 die cea wanes aa

VI. The Merit Of The Case

Warrants ROViGM 6.<4556 nee dee eee 41

Comeiusion .64sekasae ddan ee eee 45

APPENDIX

DECLARATION OF SERVICE Back Cover

TABLE OF AUTHORITIES

Page

Andrade v. Lauer, 729 F.2d 1475,

1495-94 (9.0. Git. ERS) ceca nvc ee 26

Bush v. Lucas, 462 U.S. 367

CEOS) ss ks dn see ook S 6 2k eee 13

Cafeteria Workers v. McElroy,

S07 U.@. SOO CAFO4) no 6s wk eee eee 23

Davis v. Passman, 442 U.S. 228

C1978) isu kk kas be ae eee 25

Dept. of the Navy v. Egan,

No. 86-1552 (23 Feb. L988) «<isa > Passim

Doe v. U.S. Dept. of Justice,

753 F.24 1092 (0.6 .638 Sees see ee

Greene v. McElroy, 360

CCT CME ceecesssecesccecs 15,

Harper v. Kobelinski, 589

rn eet CE. BOPP ccc csccscce

Hansen v. Harris, 619 F.2d

CL EME so tte ce eee cece ee

Hill v. Dept. of Air Force,

796 F.2d 1469 (Fed.Cir. 1986) .......

Hobson v. Wilson, 737 F.2d 1

I ae ae

Liguori v. Alexander, 495

Pomme. G@Sh Co.u.m.4. 1980) ........

Loeb v. Textron, Inc., 600

OE SS yh)

Mathews v. Eldridge, 424

McCulloch v. Maryland,

re ewe MNES CRED) co ccccccsccs

McIntosh v. Weinberger, 810

Pua aeaa, aeas (Stn Cir. 1987) .....

aoe. Boe. £e.S.. 618

eee eee Cee) ESB) fw tt tt cee

R.R. v. Dept. of the Army,

482 F.Supp. 770 (D.D.C.1980) ........

Service v. Dulles, 364

ES a

U.S. ex rel. Accardi v

pueeemew. Sef Ute. 200 ....2.000.

Vitarelli v. Seaton, 359

Cis Dae CUED we cede eese cans sessans 22

OTHER AUTHORITIES

Black's Law Dictionary,

SEM GE. , Bs TESS Fcc cecasecesessseses 20

5 Wright & Miller 1357

an ES Re yp BOP rrr rey Serr rer reer 45

REFERENCE TO REPORTS

This petition seeks review of the

30 March 1988 Order and Judgment, Appeal

No. 86-2418, Tenth Cir., reh'g denied, 11

May 1988. Appeal taken by Dept. of Air

Force from preliminary injunction entered

on 18 September 1986 by the U.S. District

Court for the District of New Mexico.

The following are also pertinent:

Hill v. Dept. of Air Force, Appeal

No. 87-2415, Tenth Cir., 11 February 1988;

rehn'g denied, 30 March 1988;

Hill v. Dept. of Air Force, Appeal

No. 86-1081, Fed. Cir., 10 February 1987;

reh'g denied, 9 March 1987;

iia

Hill v. Dept. of Air Force, 796 F.

2d 1469 (Fed. Cir. 1986);

Hill v. U.S. Air Force, 795 F.2d

1067 (D.C. Cir. 1986), reh'g denied;

Hill v. Dept. of Air Force, MSPB

Case No. DE0O7528510204 (11 December 1985).

GROUNDS FOR JURISDICTION

The Judgment for which review is

sought (Appendix, p. 31) is dated March

30, 1988, and was entered by the Tenth

Circuit Court of Appeals on that date.

Plaintiff's Petition For Rehearing

was denied by the Tenth Circuit Court of

Appeals by Order dated May 11, 1988. The

said Order also stayed the mandate for 30

days, pending the submission of petition

for writ of certiorari (Appendix, p. 56).

Plaintiff believes that 28 U.S.C. 8

1254 confers upon the Supreme Court the

jurisdiction to review the Tenth Circuit

Judgment in question.

INVOLVED LEGAL BASES

1. U.S. Constitution. This case

involves the provision of the Fifth Amend-

ment to the Constitution of the United

States, which states in pertinent part:

"No person shall ... be deprived

of life, liberty, or property

without due process of law".

2. The case involves the following

federal statutes, provisions of which are

stated in pertinent part:

28 U.S.C. 8 1331. Federal question;

amount in controversy; costs.

"(a) The district courts shall have

Original jurisdiction of all civil

actions wherein the matter in con-

troversy exceeds the sum or value

of $10,000, exclusive of interest

and costs, and arises under the

Constitution, laws, or treaties of

the United States."

5 U.S.C. 8 702. Right of Review.

"A person suffering legal wrong be-

cause of agency action, or adverse-

ly affected or aggrieved by agenc

action within the meaning of a re.-

evant statute, is entitled to judi-

cial review thereof. An action in

United States seek-

her than money damages

ing a claim that an agency

Vil

or an officer or employee thereof

acted or failed to act in an offi-

cial capacity or under color of le-

gal authority shall not be dismiss-

ed nor relief therein be denied on

the ground that it is against the

United States or that the United

States is an indispensable party."

28 U.S.C. 8 1361. Action to compel

an officer of the United States to

perform his duty.

"The district courts shall have orig-

inal jurisdiction of any action in

the nature of mandamus to compel an

officer or employee of the United

States or an agency thereof to per-

form a duty owed to the plaintiff."

> 0.8.6. @ Saee. (a) (3) Civil Re-

medies.

“Whenever any agency

(A) makes a determination under

subsection (d)(3) of this section

not to amend an individual's record

in accordance with his request, or

fails to make such review in con-

formizty with that subsection;

che dividual may Dring a civil ac-

op! against the agency, and the

di = courts of the United

S shall have jurisdiction in

the ters uncer the provisions of

t ibsection

(2) (aA) in any suit bdr

the provisions of subsec

or this section, '

r the agency to amend the in-

1?)

Vv} ._*

—_——

dividual's record in accordance

with his request or in such other

way as the court may direct. In

such a case the court shall deter-

mine the matter de novo."

3. Involved provisions of the fol-

lowing section of public law and of fed-

eral regulations are set out verbatim in

the text of the Reasons for Allowance of

the Writ, at the pages indicated:

Pages

SEC.2.(a), Public Law

Deere Gaere? céawane tate ns 39

AFR 205-32 17°20, 27, 29, 31

;

STATEMENT OF THE CASE

his is a case wherein evidence ad-

itted by the District Court at a June

1986 hearing shows that a vindictive of-

ficial who had absolutely no authority

inder the Air Force's own controlling se-

curity regulation took an adverse secur-

ity action against Plaintiff's TOP SECRET

‘learance, branding Plaintiff as a "thief

and as being “amoral". The official in

whom the regulation vests such authority

independently reviewed the matter in July

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ec in nis own nanadwriting

"unwarranted",

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that Plaintiff's 20-year security clear-

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trict Court hearing

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ance "has not been blemished", and that

"The acts attributed to Mr Hill ... did

not have adverse security pipeiiamice™

However, the said official refused to per-

form his duty as specifically required by

the regulation -- Air Force Regulation

("AFR") 205-32, at paragraph 8-102(e)(2),

and instead attempted to use an offer to

perform his duty as a bargaining chip to

ree Plaintiff to abandon the appeal of

his removal from federal euininnc When

Plaintiff declined to be bound on the a-

gency's terms, the authorized official

3/ Pl. Ex."25" (App. p. 65), 13 June

1986 District Court hearing. Injunction

inding No. 22, App. p. 10.

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* Testimony of Bernard L. Weiss, 13

“4

June 1986 hearing, Tr. p. 149,

Q But in fact my security clearance

was non-negotiable, is that cor-

rect? It's a non-negotiable item.

Either I could be trusted or I

couldn't, is that correct?

weiss: No, it's part of the overall set-

tlement."

(Major General Bernard L. Weiss) refused

to perform his regulatory duty, and the

Chief of the Air Force Security Clearance

Office (Colonel David C. Evans) refused

to adjudicate the adverse security matter,

even though the regulation (AFR 205-32)

at paragraph 8-102 (e) requires "adjudica-

tion ... regardless of any other adverse

action taken including separation". (In-

junction Finding 26, Appendix, p. 11).

Plaintiff sought review of the ad-

verse security action during appeal of

his federal service removal before the

Merit Systems Protection Board ("MSPB");

however, the presiding official ordered

(MSPB No. DE 0752 8510204 at Tab No. 24),

"(T]he presiding official ruled that

she will not consider evidence a-

bout the suspension of appellant's

security clearance because it was

not the basis for the agency's re-

moval action."

After 120 days had passed without

any judicially-reviewable MSPB decision,

Plaintiff filed an amended complaint in

the U.S. District Court for the District

of New Mexico, claiming jurisdiction of

all adverse agency actions under the Age

Discrimination in Employment Act ("ADEA"),

the Administrative Procedure Act, the Pri-

vacy Act, mandamus, the Fifth Amendment

of the U.S. Constitution, and other bases.

Following tthe MSPB decision's becoming

judicially-reviewable in December 1985,

Plaintiff simultaneously petitioned the

Court of Appeals for the Federal Circuit

to set aside the MSPB decision as being

arbitrary and moved the District Court to

permit second amendment of his complaint

to include de novo review of the MSPB de-

cision under the ADEA. District Court

permission was granted in January 1986

(App. po. 39), and Plaintiff moved the Fed-

eral Circuit to transfer its review. In

April 1986 the Federal Circuit denied the

motion to transfer, Hill v. Dept. of Air

Force, 796 F.2d 1469 (Newman, P.), apply-

ing the age discrimination standard spe-

cifically rejected in Loeb v. Textron,

Inc., 600 F.2d 1003 (ist Cir. 1979), and

holding that Plaintiff was bound by dis-

crimination allegations before the MSPB,

which were alleged to be "frivolous".

In February 1986 Plaintiff received

an offer of employment from a defense con

tractor, which employment required a se-

curity clearance. Upon receipt of DD Form

48-3 as executed by Plaintiff, officials

of the Defense Industrial Security Clear-

ance Office ("DISCO") were unable to pro-

vide Plaintiff a clearance in the manner

authorized by the Industrial Security Man

ual (DoD 5220.22-M) at paragraph 27. In-

junction Finding 18 (App. p. 9); Memoran-

dum Opinion and Order, n. 1 (App. p. 25);

2/ In an unpublished decision dated

10 February 1987, the Federal Circuit af-

firmed the MSPB with a single sentence.

Pl. Exs."51", "52" (13 June 1986 hearing) .

In response to Plaintiff's subse-

quent motion the District Court conducted

the June 1986 hearing and entered a pre-

iiminary injunction against the Air Force

(App. p. 15). With regard to the actions

taken by Defendant Britt against Plain-

tiff's security clearance the Court found

(i) that despite Defendants' claims, the

actions constituted an adverse action as

defined by AFR 205-32 (Findings, App. p.

1, No. 25); "that Plaintiff was not given

any opportunity to answer the allegations

Or otherwise contest the revocation" ois

15); that "Defendants are required to ad-

judicate all special security files re-

6/ In fact, )9 aintiff was not pro-

vided a copy of his special security file

until March 1986 3 a result of Court-

Ordered discovery, Listrict Court Dkt. No.

24c), some five months after the MSPB re-

cord had closed. He therefore did not

even know the identities of his accusers,

nor specifics of the charges made against

him. Defn. Ex. "H', 13 June 1986 hearing.

gardless of any other action taken includ-

ing separation" (No. 26); and "that De-

fendants have failed to observe even the

most minimal due process procedures in re-

voking Plaintiff's security clearance"

(No. 29). The Court further found base

motives and reprisal on the part of De-

fendant Britt (Nos. 15, 16).

Defendants immediately appealed and

moved the Tenth Circuit Court of Appeals

for an emergency stay. The Appellate

Court denied the motion for a stay on 27

October 1986 (App. p.17). However, on 28

May 1987 the Tenth Circuit entered an Or-

der and Judgment (App. p.19) partially re-

manding the matter to the District Court

for the limited purpose of allowing that

Court to state the basis for its juris-

diction. The District Court conducted a

hearing on 7 August 1987, and by Memoran-

dum Opinion (App. p. 22) reaffirmed its

earlier findings and conclusions, holding

that its jurisdiction was based on Plain-

tiff's fifth amendment rights to due pro-

cess and equal protection of the laws. sal

The Court cited 28 U.S.C. 8 1331 as au-

thorizing jurisdiction, and further noted

that 28 U.S.C. 8 702 allows for granting

injunctive relief against the agency.

Following the Supreme Court deci-

sion in Dept. of the Navy v. Egan, No. 86-

1552 (23 Feb. 1988), the Tenth Circuit en-

7/ Plaintiff argued before the Dis-

trict Court and also before the Tenth Cir-

cuit that both the records amendment sec-

tions of the Privacy Act and provisions

of the ADEA provided statutory bases for

jurisdiction for the injunction. See Dkt.

No. 56, Appeal No. 86-2418, Tenth Cir-

cuit; see also, Tenth Circuit Appeal No.

S/ 2415. In September 1987 the District

Court dismissed the ADEA cause, giving

preclusive effect to the cited Federal

Circuit decision, and also dismissed the

records amendment portion of the Privacy

Act cause, but denied Defendants' motion

to dismiss the Privacy Act damages cause.

On 11 February 1988 the Tenth Circuit dis-

missed Plaintiff's appeal of the District

Court dismissals (Appeal No. 87-2415),

holding that the involved orders were not

"final orders". Plaintiff's motion for

rehearing was denied on 30 March 1988.

tered the Judgment and Order (App. p. 31)

for which the writ of certiorari is being

sought. The Circuit Court held (1) "Hill

did not have a constitutional property or

liberty interest in his [20-year] secur-

ity clearance" (App. p. 44); (2) "the dis

trict court made no finding that the Air

Force violated any particular procedure"

(App. p. 49); #64) a hearing before the

MSPB regardin Plaintiff's removal from

the federal service is "a material inter-

vening, and dispositive, factor ... mak-

[ing] a remand regarding a top secret se-

curity clearance a useless exercise"

8/ The holding is not supported by

the record. Finding Nos. 15, 25, 26, App.

1; Memorandum Opinion n.1l, App. p. 24.

1 oe

Q ct

is anomalous that the panel

relied on Egan for teaching that neither

the MSPB nor the Court may substitute its

evaluation of whether Plaintiff's alleged

acts had security significance for that

of the responsible agency official, but

nevertheless substituted its opinion for

General Weiss' finding that the acts "did

not have adverse security significance"

App. p. 51); (4) "Hill ... received full

due process under applicable statutes and

regulations" (App. p. 40). Although the

Circuit Court also held (App. p. 49) that

"[Cjourts do have the power to com-

pel agencies to follow their own

regulations",

and even though Plaintiff has specifi-

cally pled (Fourth Cause, App. p. 61),

"1. The actions taken by the agency

in suspending plaintiff's access to

classified information have not con-

formed with the provisions of the

agency's governing regulations,i.e.,

Air Force Regulation 205-32..."

the panel Ordered that

"(T]he district court shall dismiss

with prejudice the fourth cause of

action contained in Hill's second

amended complaint, dealing with his

security clearance and alleged ac-

tions or omissions by the Depart-

ment of the Air Force with respect

tnereto." [Emphasis added. |

Piaintiff timely petitioned for re-

hearing, or rehearing en banc, b5ut Ais

plea was denied on 11 May 1988 (App. p.

56). However, the Circuit Court did stay

the mandate pending this appeal. Id.

Te ee ee |

REASONS FOR ALLOWANCE OF WRIT

SUMMARY

This brief shall show the following.

(1) A conflict exists among the

Circuits as to whether federal employees

have a right of review in District Court

upon exhaustion of administrative remedy

and uncontested showing of harmful non-

compliance with federal regulations.

(2) The Tenth Circuit has decided

the federal question of whether an agency

may be relieved of regulatory obligations

in a manner which is in conflict with

previous decisions of the Supreme Court.

.3) The Tenth Circuit has decided

the important question of whether an indi

vidual has due process rights in a career

P + 5 xr ae | AMR DA TTA AAA Q h - ~ a

=SCULritcy Ci@earance, wnicn matter nas not

| i mae tot tee tun 3 A } 4 nr -

been, but should be decided by this Court.

(4) There is sufficient merit in

the matter to warrant review by the Court.

a; The Tenth Circuit Decision In This

Matter Conflicts With Decisions In

The D.C. And Eighth Circuits.

1. In a decision which should have

been dispositive to the instant appeal,

compelling an outcome in Plaintiff's fa-

vor, the D.C. Circuit held,

"Courts, of course, have long re-

quired agencies to abide by in-

ternal procedural regulations

concerning the dismissal of em-

ployees even when those regula-

tions provide more protection

than the Constitution or rele-

vant civil service laws." ([(Em-

phasis added.] Doe v. U.S. Dept.

of Justice, 753 F.2d 1092, 1098

(1985).

The Tenth Circuit's failure to

recognize the implication of a separate

liberty interest in Plaintiff's retention

of his 20-year security clearance is with-

out precedent and further opposes the D.C.

Circuit. The Doe Court specifically ad-

dressed the distinction between property

interest in a federal job and liberty in-

terest in one's profession. At 1103, Id.,

" ... (T]he fact that government

employees who enjoy a property

interest in continued employ-

ment might have an adequate op-

portunity to challenge govern-

ment defamation in the consti-

tutional remedy required to

protect their property interest

does not affect (additional em-

phasis added] the existence of

an independent right of action

under the liberty aspect of

the due process clauses."

By contrast the Tenth Circuit

has limited Plaintiff's concerns to appli-

cation of civil service job procedures

even though his profession as a defense

systems analyst, which is surely more im-

portant than a property interest in con-

tinued Air Force employment, is at stake.

Moreover, the D.C. Circuit has

noted the propriety of injunctive relief

against federa. officials for constitu-

tional violaticrs. Id., at 1109 n. 1/7,

"(Niotning in Bush [{ v. Lucas,

462 >. 367 (1983)) or any oth-

er court opinion casts doubt on

presumed availability of feder-

al equitable relief against fed-

eral officials for committing

constitutional violations."

2. The failure of the Tenth Cir-

cuit to recognize Plaintiff's property

interest, by virtue of his compliance and

support over a 20-year period, in the reg-

ulatory procedure under which adverse se-

curity actions may be taken, is in con-

flict with the Eighth Circuit. McIntosh

v. Weinberger, 810 F.2d 1411, 1433 (1987),

[E]xtensive [agency] regula-

tions governing promotion

provided th plaintiffs with a

substantial, legitimate expecta-

tion by establishing that appli-

cations for competitive place-

ment ... were to be evaluated

in accord with specified crite-

ria and procedures ... We there-

fore hold that the plaintiffs

had a property interest in [the

agency] merit promotion system

that was clearly established."

Surely Plaintiff's soncerns

where his security clearance is dived,

ar thus is chosen career f are

m portant tna terests & 2 era

emp ovees Y promot Lon oT : , e "enth

sircuit found no implication of interest

=f any type beyond former job rights

3a The Tenth Circuit Decision To Re-

lieve The Agency Of Responsibility

To Provide Plaintiff Regulatory Pro-

cess Opposes Supreme Court Holdings.

Supreme Court decisions have

acknowledged a complainant's right to reg-

ulatory process when injury is present.

Greene v. McElroy, 360 U.S. 474, 496

159) (notes and citations omitted],

"Certain Principles have re-

mained relatively immutable in

our jurisprudence. One of these

is where governmental action

seriously injures an individual

and the reasonableness of the

action depends on fact findings,

the evidence used to prove the

government's case must be dis-

closed to the individual so

that he has an opportunity to

show that it is untrue. While

. . . "

.- o - -

LS is important in Tne case

.** > : 4 . ee

4ocumentary eviqence, LG is

' . ’ o »}

im more important wnere tne

3 —— * mes ata > } . is

ience consists or tne testi

sf individuals whose memo-

be fault or who,

gnt be perjurers o per-

Ss motivated by malice,

tiveness, intolerance, preju-

‘e, or jealousy. We have for-

zed these protections

- , . a > > ,? -

requirements or contronta

ind cross~-examination.

The Court has been zealous to

protect these rights from ero-

sion. It has spoken out not on-

ly in criminal cases ... but al-

so in all types of cases where

administrative and regulatory

actions were under scrutiny."

2. There is no question that Plain-

tiff was injured by the agency's actions.

a. A declaration by the Deputy

Director of the Defense Industrial Secur-

ity Clearance Office ("DISCO") (Pl. Ex.

"51", 13 June 1986 hearing) states,

"This meant that ...[Plaintiff's]

Department of Air Force’ secur-

ity clearance could not be sim-

ply converted to a Defense In-

dustrial Security Clearance 5

Failure to transfer cost Plaintiff timely

employment in a defense industry position

and resulted in lost income. P1l.Ex. "52",

Id. Plaintiff's legitimate interest in

transfer is shown by the Industrial Se-

curity Manual (DoD regulation 5220.22-M),

27. a. “Personal Security Clear-

ances issued by a user agency

to civilian or military person-

nel who are U.S. citizens may

be converted to industrial per-

sonal security clearances as

follows:

(3) for other civilian or military

personnel separated or retired from

active service -- 12 months from

the time of separation or retire-

ment from active federal service".

b. Absent District Court dis-

covery, Plaintiff would never have known

the contents of the derogatory security

file. Neither would he even have known

the identities of some of his accusers.

Even now he has never had any opportunity

to make a responsive input, or to refute

criminal conduct charges made against him,

or to confront certain accusers (Defn. Ex.

"H', 13 June 1986 hearing). The control-

ling regulation (below) provides’ safe-

guards, and Plaintiff is entitled to Dis-

trict Court action to ensure complianc:.

3. The MSPB review does not suts:i-

tute on a one-for-one basis for the pro-

cess provided by AFR 205-32.

a. Paragraph 8-200, AFR 205-32,

"8-200 General

No final personnel security

determination shall be made on

a member of the Armed Forces,

an employee of the Department

of Defense, a consultant of the

Department of Defense, or any

other person affiliated with

the Department of Defense with-

out granting the individual con-

cerned the procedural benefits

set forth in 8-201 below, when

such determination results in

an adverse action (see para-

graph 8-100). As an exception,

Red Cross/United Service Organ-

ization employees’ shall be af-

forded the procedures pre-

scribed by DOD Directive 5210.

25 (reference (u)).

8-201 Adverse Action Procedures

Except as provided for below,

no adverse action shall be tak-

en under the authority of this

Regulation unless the _ person

concerned has been given:

*(AF) Under this paragraph, ac-

tions required by 'the command-

er' refer to the unit commander

of the individual concerned (in-

cluding actions on persons in

appellate leave status). [{Excep-

tions made for persons in con-

finement status. ]

a. A written statement of the

reasons why the adverse action

is being taken. The statement

shall be as comprehensive’ and

detailed as the protection of

_ eee

sources afforded confidentially

under the provisions of the

Privacy Act of 1974 (5 U.S.C.

552a) (reference (k)) and na-

tional security permit. Prior

to issuing a statement of rea-

sons to a civilian employee for

Suspension or removal action,

the issuing authority must com-

ply with the provisions of Fed-

eral Personnel Manual, Chapter

732, Subchapter 1, paragraph 1-

6b (reference(aa));

*a. (AF) For Air Force civili-

ans, the issuing authority must

comply with AFR 40-732. For

all Air Force personnel, the

Statement of reasons must be

included in the letter of noti-

fication from AFSCO of the in-

tent to take adverse action,

sent to the individual through

the commander. This ‘intent no-

tification’ is a tentative de-

termination, dependent upon re-

ply from the individual before

a final decision is made.

b. An opportunity to reply in

Writing to such authority as

the head of the Component con-

cerned may designate;

b. (AF) Response co the ‘intent

notification’ is nade to AFSCO.

If the letter dees not contain

a suspense date, i: will be re-

turned by the ird:ividual to AF

SCO within 10 working days of

receipt.

c. A written response to any

submission under subparagraph

b. stating the final reasons

therefor, which shall be as

specific as privacy and nation-

al security considerations per-

mit; and

c. (AF) Final decisions are

sent by letter to the individu-

al through the commander, and

the decision is recorded at

this time in the PDS.

d. An opportunity to appeal to

a higher level of authority

designated by the Component

concerned.

d. (AF) Appeal of a final deci-

Sion may be made in writing to

the Administrative Assistant to

the Secretary of the Air Force,

through the AFSCO." {Emphases

added].

b. The review before the MSPB

did not provide any opportunity to make

security clearance inputs (MSPB order, re-

cord at Tab 24); it excluded all security

related evidence (such as the Weiss let-

ter, for which the presiding official al-

so refused to compel production); and the

charges were not the same. At the MSPB

hearing Plaintiff demanded that the agen-

cy prove the elements of theft against

him. Black's Law Dictionary, 5th ed., p.

1324. The agency representative respond-

ed (MSPB Tr. p. 536),

"MR HICKMAN: We contest that the a-

gency has charged the

appellant with theft."

Instead, Plaintiff was charged with "con-

version" of telephone services (Id.), and

there was no suggestion that he was "amor-

al", "unscrupulous", etc. The Tenth Cir-

cuit has now sanctioned dissemination of

Britt's malicious, unchallenged charges,

without any of the procedural safeguards

which "due process" demands.

4. Decisions of the Supreme Court

regarding the requirement on the agency

to follow the dictates of its regulations

could not be more lucid. See, Service v.

Dulles, 364 U.S. 363 (1957),

"[Rjegulations prescribed by Sec-

retary of State relating to loy-

alty and security of State De-

partment employees were appli-

cable by their terms and admin-

istrative interpretation to dis-

charges under ... [the Secreta-

ry's] absolute discretion ..."

See also Service, at 372, characterizing

U.S. ex rel. Accardi v. Shaughnessy, 34/7

U.S. 260, as holding that,

"([Rlegulations validly prescribed

by a government administrator

are binding upon him as well as

the citizen, and ... this prin-

ciple hoids even when the admin-

istrative action under review

is discretionary in nature."

See, Vitarelli v. Seaton, 359 U.S. 535,

546 (1959), (Frankfurter, J., concurring),

"An executive agency must be rig-

orously held to the standards

by which it professes its ac-

tions to be judged."

Against these holdings and pri-

ma facie showing of agency non-compliance

with provisions of AFR 205-32, there is

no legal basis for the Tenth Circuit's

Ordering dismissal of Plaintiff's fourth

ause, wherein he has specifically pled,

"1. The actions taken by the agency

in suspending plaintiff's access to

classified information have not con-

formed with the provisions of the

agency's governing regulations,i.e.,

Air Force Regulation 205-32 and oth-

er regulations, and have thus re-

sulted in denial of due process."

III. The Tenth Circuit Ruling That Plain-

tiff Has No Constitutionally Guar-

anteed Interest In His 20-Year Se-

curity Clearance Has Decided A Mat-

ter Which Should Be Decided By The

Supreme Court.

1. In its decision involving poten-

tial liberty interest of an individual in

his previously-granted security clearance,

the Supreme Court carefully avoided re-

solving the constitutional rights implica-

tions and instead based its decision on

legally enforceable procedural require-

ments. Greene v. McElroy, 360 U.S. 474,

508 (1959),

"Whether those [hearing] proced-

ures under the circumstances

comport with the Constitution

we do not decide."

See also, Service v. Dulles, supra, where-

in regulatory procedure was again held to

be paramount. In Cafeteria Workers Vv.

McElroy, 367 U.S. 886 (1961), no liberty

interest was implicated because the in-

volved security badge revocation neither

impacted the principal's chosen career

nor placed a slur her reputation.

The Supreme Court has still not

resolved this due process issue for se-

curity clearance revocations. The issue

was not reached in Dept. of Navy v. Egan,

(No. 86-1552, 23 February 1988), since

that plaintiff received the process re-

quired by regulation. Id., Opinion p. l,

"The narrow question presented

by this case is whether the

Merit Systems Protection Board

(Board) has authority by sta-

tute to review the underlying

decision to deny or revoke a se-

curity clearance in the course

of reviewing an adverse action."

2. The Tenth Circuit has intrepid-

ly expanded the statutory holding of Egan

to all facets of a constitutional chal-

lenge, failing to discern any distinction

whatsoever, even where it is recognized

that the applicable regulation was not

followed. In an instance having direct

applicability to the due process issues

herein, Davis v. Passman, 442 U.S. 228,

241 (1979), the Supreme Court has held,

"(T]he question who of may en-

force a statutory right is

fundamentally different from

the question of who may enforce

a right that is protected by

the Constitution.

Statutory rights and obliga-

tions are established by Con-

gress, and it is entirely ap-

propriate for Congress, in cre-

ating these rights and obliga-

tions, to determine in addition

whe may enforce them and in

what manner.

The Constitution, on the other

hand, does not ‘partake of the

prolixity of legal code.' Mc-

Culloch v. Maryland, 4 Wheat,

316, 407 (1819). It speaks in-

stead with a majestic simplici-

ty. One of ‘its important ob-

jects,' ibid., is the designa-

tion of rights. And in ‘its

great outlines,' ibid., the ju-

diciary is clearly discernible

as the primary means through

which these rights may be en-

forced."

3. The D.C. Circuit specifically

applied this distinction to a federal per-

sonnel matter wherein the involved feder-

al employees challenged not the mechanics

of an involved reduction-in-force, but

rather the constitutional authority of

certain supervisory officials to take ac-

tions which harmed them. Citing Mathews

v. Eldridge, 424 U.S. 319 (1976), the Ap-

pellate Court held, Andrade v. Lauer, 729

F.2d 1475, 1493-94 (D.C. Cir. 1984),

"(Pllaintiffs have a right that

the government act in accord

with due process principles

when it takes action against

them, even if such conformance

may not change the substantive

outcome."

"(Wle hold that there was a suf-

ficient causal connection be-

tween ... appellees" alleged

lack of authority ... and the

injury suffered ... to easily

support their standing to raise

their constitutional claim."

TX ~ . ‘i Vs ie , f- s 2334 ae —_>

ee Contrary To The Circuit Court

ing Regarding Defect In The Inst

Process, The Record Shows’ Three

Substantive Procedural Violations.

be Th suspension of Plaintiff's

lassified information was an

08)

79)

—

illegal action at its inception. Only

the commander of Plaintiff's duty organ-

Try tr : . Aide Pawnee “antract Manace-

atl — * > € ' Lrac Manare

to suspenad tne access, and tne orriciail

who took the suspension action (Paul §S

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D the adverse action was no

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tify AFSCO of his action, and request de-

letion of the "Pending Adjudication" code

by Plaintiff's name in the AFSCO computer

file. He refused to do so, and attempted

istead to use performance of his duty as

"When local actions, includ-

ing UCMJ [Uniform Code of

Military Justice action,

are complete, the commander

must either [emphasis add-

ed .

(1) (AF) Destroy the SSF

according to AFM 1 }

if the investigation find-

ings clearly indicate, with-

mot . eho Pandine A 4 ‘-

re i O _ri€ rencacing Ac ]

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Yet, General Weiss testified,

(1) That he had been AFCMD

Commander since 2 July 1985 (Tr. p. 139),

(2) That he directed on

23 July 1985 that a letter addressed to

AFSCO (Col Evans) be drafted (Tr. p. 152;

Pl. Exs."16", "25", admitted in evidence

at the 13 June 1986 hearing) stating,

"As the new AFCMD Commander

(as of 2 Jul 85) it was in-

cumbent upon me to careful-

ly scrutinize all aspects

of this case and to make

the decision."

(3) That in his’ own hand-

writing, he had written on the draft copy

(Tr. p.157; Pl. Ex.”16", 13 June hearing)

"His [Plaintiff's] security

record during the past 20

years has not’. been blem-

ished and withdrawal of his

security clearance is un-

warranted."

(4) That the letter was

placed in final form by his staff on 25

July 1985, (id.; Pi. Bx."25* Age. 6. $5),

(5) That the letter was

never sent to AFSCO (Tr. p.156), and that

he attempted instead to use it to bargain

with Plaintiff to abandon his appeal of

the removal action (Tr. p. 149).

3. The third violation of the reg-

ulation occurred when, following receipt

of the special security file ("SSF"),

Colonel David C. Evans, AFSCO Commander,

refused to adjudicate the said file; and

there is positive indication that his

refusal was coordinated with AFCMD. Pl.

Exs. "24", "26", 13 June 1986 hearing.

a. Para. 8-405.b, AFR 205-32,

" .-. 4& the subject of an SSF

is separated or otherwise ter-

minated from Air Force service

or employment the SSF must be

disposed of [emphasis added] ac~

cording to paragraph 8-102e(2).

At para. 8-102.e(2), AFR 205-32,

"Send the SSF to AFSCO for adju-

dication in all other cases

{“other" referencing those re-

solved locally in favor of the

subject] (except SCI-indoctrin-

ated persons), regardless of

any other adverse action taken,

including separation. For an

SCI-indoctrinated person...send

the SSF to the MAJCOM SIO [ma-

jor command SI office; Andrews

Air Force Base, in Plaintiff's

case] ... to HQ AFIS/INAB [Head-

quarters, Air Force IS/INAB di-

rectorate, Washington, D.C,

... for joint processing with

AFSCO". [Emphases added. ]

At paragraphs 8-102.f and g, only two ad-

judication options are authorized: "fav-

orabl[{e]" and "tentative...adverse", with

the latter to be followed by "procedural

benefits", as defined at paragraph 8-200.

In sum, both the initial suspension

of plaintiff's security clearance by Paul

Britt and the referral of the special

security file to AFSCO violated the pro-

visions of the controlling regulation,

AFR 205-32. Upon becoming involved and

making his findings, General Weiss was ob-

ligated to order destruction of “ne spe-

cial security file, which was 2 duty he

owed to Plaintiff. Once the aaverse file

had been sent to AFSCO, whether erroneous-

ly or otherwise, the regulation obligated

the agency to dispose of the file, either

favorably or unfavorably with correct pro-

cess, even though Plaintiff was separated

prior to adjudication. Any holding other-

wise is pure sophistry.

The District Court's Injunction pro-

vided that relief and further required un-

doing subsequent actions, i.e., (i) entry

of a Z-code by plaintiff's name in the AF

SCO computer and (ii) notification to in-

quirers regarding the derogatory data in

the AFSCO files.

Vv. The Tenth Circuit Erred In Refusing

To Consider Alternate, Statutory

Bases For Jurisdiction, As Stated

In The Complaint.

1. With regard to Privacy Act mat-

ters, the District Court record shows the

following.

a. By letter dated 30 June

1985, Plaintiff complained to the Com-

mander of Air Force Contract Management

Division ("AFCMD") that the provisions of

AFR 205-32 had not been followed, and re-

quested him to order destruction of the

special security file. Second Amended

Complaint, Ex. "6", p. 1,

"The suspension of my access to

classified information was not

accomplished in accordance with

the provisions of AFR 205-32.

Reference page 59."

At By ES eee

"Therefore, I respectfully re-

quest that the [special secur-

ity] file be destroyed as pro-

vided by the regulations."

b. Responsible agency offici-

10/

als reviewed Plaintiff's letter, but

took no responsive action. Pl. Ex. "32",

10/ In the Answer to the (First)

Amended Complaint (D.N.M. Dkt. No. 22, at

para. 16), Defendants admitted that Plain

tiff had submitted the letter to the AF

CMD Commander. In their Answer to the

Second Amended Complaint (D.N.M. Dkt. No.

38, para. 17), Defendants changed their

minds and claimed that they did not know

whether the letter had been received.

admitted, 13 June 1986 hearing (Tr. p. 5).

The exhibit references Plaintiff's letter

in its title.

c. The controlling federal reg-

ulation, 5 C.F.R. 8 297. 102, defines the

term “amendment'' within the context of

the Privacy Act to include destruction of

records.

11/

d. The said regulation at 5

C.F.R. 8 297.208(a) further requires that

whenever a records amendment request is

delivered to an official other than the

Privacy Act monitor, that official must

i2/

promptly forward the request to the pro-

1l/ sat 32 C.F.R. $ 806b.0, the Air

cree is committed to the provisions of

>.F.R. 8 297 for its civilian employees.

Uy "ty

4) Plaintiff's letter met the reg-

ulatory requirements of 5 C.F.R. 8 208(b)

by identifying the special security file,

requesting its destruction, and providing

a statement of the reasons for the re-

quest. Additional information is not re-

quired. In fact, the regulation at 8

297.201(c) permits the request to be made

Oraiiy. if.

per authority.

e. Examination of the special

security file (Defn. Ex. "A") shows Plain-

tiff's name and social security number in

its title. Examination of the coordina-

tion form included with the file (Defn.

Ex."H'"'), shows that information was re-

trived therefrom by numerous agency offi-

cials. Thus, the file constitutes a "sys-

tem of records'' within the meaning of 5

U.S.C. @ SSzatercoe.

f. The involved statute, at 5

U.S.C. 8 552a(d)(2), requires the agency

to make the requested amendment within

ten days after receipt of a request, or

alternatively, to formally deny the re-

quest and provide information reqarding

administrative appeal procedures. The

agency did neither.

2. The Second Amended Complaint al-

leges that the agency's refusal to amend

Plaintiff's records is illegal.

a. At para. 11 under “Facts”,

Plaintiff has identified the 30 June 1985

request and has attached a copy to the

Complaint.

b. Under the "Second Cause Of

Action",

"4H. There is no legal basis

for the agency's refusal to

make the amendments re-

quested by plaintiff, and

maintenance of the records

is injurious to plaintiff's

professional reputation.

5. Plaintiff has exhausted

administrative remedies and

is entitled to judicial re-

view of the agency's refus-

al to amend the records as

provided by 5 U.S.C. 8552a."

3. Expungement of the special se-

curity file and removal of the Z-Code

from Plaintiff's name, Ordered in the

form of an injunction, is precisely the

relief authorized by the Privacy Act.

a. The refusal of the agency

to respond to Plaintiff's amendment re-

quest of 30 June 1985 constitutes exhaus-

tion of administrative relief and estops

the Defendants from pleading otherwise.

See, e.g., Liguori v. Alexander, 495 F.

Supp. 641 (S.D.N.Y. 1980) at 647, citing

Hansen v. Harris, 619 F.2d 942 (2d Cir.

1980), and Harper v. Kobelinski, 589 F.2d

721 (D.C. Giese 237087:

"Where ... [agency] failure

to comply with the mandate

of the Privacy Act that it

inform the employee not on-

ly of its refusal to amend

.. but also of procedures

established by the agency

to obtain a review of such

refusal, the employee's

suit ... was not barred on

the ground that the em-

ployee failed to exhaust

his administrative remedies"

Id.

Defendants had ample oppor-

tunity to expunge t.2 illegal special se-

curity file and w-:s2 aware that it was

continualiy damaginz Plaintiff. Pl. Ex.

"10", para. 13, 13 J :ne 1986 hearing, ad-

mitted. However, tney willfully elected

not to act on the request in order to use

the threat posed by the file to their set-

tlement advantage.

b. The relief contemplated by

the Privacy Act for refusal to amend is

expungement, and not merely supplement or

additional administrative review. See,

e.g., R.R. v. Dept. of the Army, 482 F.

Supp. 770, 774 (D.D.C.1980), and Hobson v.

Wilson, 737 F.2d 1, 65 (D.C. Cir. 1984).

ec. The Privacy Act authorizes

injunctive relief for refusal to amend

records. Parks v. U.S. Internal Revenue

Service, 618 F.2d 677 (10th Cir. 1980).

d. Removal of the 2Z-Code by

Plaintiff's mame in the agency's central

computer is ro accordance with the stated

purposes of the Privacy Act. At SEC.2.(a)

of Public Law 93-579 (1974),

TE,

The Congress finds that --

(2) the increasing use of

computers and sophisticated

information technology,

) |

while essential to the ef-

ficient operations of the

Government, has greatly mag-

nified the harm to individ-

ual privacy that can occur

from any collection, main-

tenance, use, or dissemin-

ation of personal informa-

tion;

(3) the opportunities for

an individual to secure em-

ployment, insurance, and

credit, and his right to

due process [emphases add-

ed), and other legal protec~

tions are endangered by the

misuse of certain in forma-

tion systems;

(5) in order to protect the

privacy of individuals iden-

tified in information sys-

tems maintained by Federal

agencies, it is necessary

and proper for the Congress

to regulate the collection,

maintenence, use, and dis-

semination of information

by such agencies.”

4 The esse | point of the Pri-

vacy Act matter, mh the Circuit Court

refused to co ier in response ¢t p -

tiff's motion to combine appeals (see, n.

7 above) is that the Privacy Act provides

fal

a clear statutory right of Plaintiff to

portions of the relief granted by the pre-

liminary injunction. Although the Privacy

Act is complemented and reinforced by

iff's constitutional right of due

process, it was unnecessary for the Court

to reach the issue of whether due process

alone authorizes measures provided by the

he Merit Of The Case Warrants Re-

} : @ 3 ft ; oe 4 .

laintiff's demand for equity

in the Federal Court is not unreasonable.

a. In pursuit of his vendetta

inst Plaintiff, Brit's actions went

beyond those rea for removal and

“ ~ cesigne t re wit 21a -

iberty ¢t 2 s; chosen ca-

reer > normal security procedure for

re ils suc as Plaintirt's is simply re-

T wit i subsequent security debrief-

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"MAJOR GOWAN: [Britt] disc ed a wide va-

riety of things... [Hle

ington quite

often.

Q. Were they ..

al business?

A. ... mostly personal. ... he

had many conversations with

Lt Col Davidson Sally Da-

Davidson, Britt's personal

friend (MSPB Tr. p.107, 111)

Washington, D.C.]. I would

say those j|AUTOVON] calls

were all persona!

. Tr’. “* *.* > y *.* . } . .*- **

a iney were. eee lL WOULQ Say

> . a *.? ~ ) 4 >

e' were On ne orcacer Or!

- onl if A heath + ‘ +}

may be 1VU to 43 minutes eacn.

h le . } “he

a nait an nour on tne

i. «A > . ] "

qid ne ~ 95 eer adout

don't think | ever heard

rener3 officers mentioned.

make, [I think, many

} rning s house

_ , _-

: 2 i S|

. , +7 sacand

a w SS -e. s

" W e you talked to Ms Da

~~ ry “Fr hoe . = =

, "4. A1€ Conver

ae — nesrieg¢ad anrnh mat e«

>a > sa ¥ S Lived Such ma

ters as purchasing automo-

biles, building a house,

even personal love affairs?

BRITT: At times the calls have had

some of that as_ content,

yes."

he Privacy Act provides for de

nsideration by the Court of agency

fusal to destroy the special security

e created on Plaintiff.

in eAnsaed - T h Circuit

in adda] ion, tne Lentn \ a Sg

s@7 18 SELE“LNCCHASLSETCSIIL , nolding tnat

"Hill did not have a constitu-

a |

tional property or liberty in-

terest in his security clear-

the basis of its determination that,

5-32 procedures] are not

the type of ‘rules or under-

~- A+ ae ie an ~ , ame Ar Cc ™ — 5 Yr

5tamnd lg Ss na secure er 217)

r — re ~~ a ~ 44 a

> 2T S anda Ccnat SUDDOT

LMS OT entitiement to tnose

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' e Lt »05- hy ie ~~ a reac ro

& * 3 ae TOC S59 & —2-. a Cc

AMmanwat .-. - a a . OC TLImnA71t AK

aadministrative qevices wnicn

are indeed intended to promote

rairness and Sateguard tne

; } > c ; 14 1 A119" mr | a "

rignts of individua.i employees.

l + 4

CONCLUSION

In the 1985 to 1986 time period

both Plaintiff and the District Court,

not being descendants of the Prophetess

of Thebes, relied upon available author-

‘ties for timely District Court equitable

review of the vindictive actions of agen-

cy officials against Plaintiff's security

clearance. The Tenth Circuit elected to

await the Egan decision, then applied and

expanded a statutory decision to Plain-

riff's constitutional challenge, and cut

off all right of review, even in the face

of acknowledged agency refusal to provide

Plaintiff regulatory process.

+. "“oO¢ 2 ~ | hoa i ie emnmt £S @ ‘ =

Tt seems clear tnat Piaintit s com

int is sufficient frame sbtain

2ast regulator pr s JO‘

. - - a

i a a? ogi" 4 ad LY 24

Vy. S ae EES

4 be 257 t Fi

L #4 A Jf atl b 4 9

ay a | - d a, -hWat

(T]t need not appeal tnat

ee or .

tiff can obtain tne specific reile

demanded as i1ong as tne Cour. can

is} a

ascertain from the face of the conm-

plaint that some relief can be

granted."

However, the Tenth Circuit Order,

if allowed to stand, will foreclose al]

review, and will become a basis for de-

cisions adversely affecting federal em-

ployees in excess of the stated intent of

Egan. For these reasons, the Supreme

Court should review and reverse appropri-

ate portions of the Order.

spectfully submitted,

(\ \ormay 7} Vas Lf

Pro Se

Thomas W. Hill,

a cee ee ete a a a - poms

PETITION NO.

SUPREME COURT OF THE UNITED STATES

TERM OF COURT: October 1987

eer a ae

) j 4

THOMAS W. ALLL,

Petitioner-Plaintitrt

DEPARTMENT OF THE AIR FORCE,

MERIT SYSTEMS PROTECTION BOARD,

PAUL S. BRITT, and

PAUL J. VALLERIE

+ }

AU l Lu dtd ds 4 at 9

~ ; ~-e-NDNafandantea

Responaents~Verendal?lits.

ON WRIT OF CERTIORARI TO THE U.S. COURT

° u Sees -

- ADDLTATS PAR TUR TENTH .

OF APPEALS FOR ‘ EN [ [

: a een ‘ és

a ati 5 SE) BAe ee SE ne PEBeTTH

APPENDIX: PETITION FORK WRii UF CERTIORARI

M ~ 4

MAS W Li tidus,

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atitioaner Pro Se

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TABLE OF CONTENTS

District Court's Finding Of Fact

And Conclusions Of Law Support-

ing Preliminary Injunction

(September 18, 1986) ............ 1

Preliminary Injunction

(September 18, 1986) ............ Ba

Tenth Circuit Notice Of Denial

Of Department Of Air Force

Motion To Stay Injunction

(October 27, 1986) ........ Rae garni: we

Tenth Circuit Order And Judgment

Partially Remanding The Matter

fui fae Fae. 2 Sam en mani Uni 19

District Court Supplemental

Memorandum Opinion And Order

coco oe eee es eS ea ea en

Tenth Circuit Order And Judgment

Directing Dismissal Of Plain-

' tiff's Fourth Cause Of Action

(eet a0 COMMS 4566 ca uae. 31

Tanth Jirecuit Denial Of Petition

Tor Zak )

- - ~~

Ss Letter, Dated

» Plaintiff's

June 1986 Hearing .. 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

FILED

At Albuquerque

Sep 18 1986

Jesse Casaus

Clerk

THOMAS W. HILL,

Plaintiff,

Vv. Civil No.

85-1485-JB

DEPARTMENT OF AIR FORCE,

PAUL S. BRITT, and

PAUL J. VALLERIE,

Defendants.

COURT'S FINDINGS OF FACT

AND CONCLUSIONS OF LAW

THIS MATTER having come on for a

hearing on June 13 and 16, 1986, and the

Court having adduced evidence, makes the

following findings of fact and conclu-

sions of law.

Findings of Fact

1. This matter comes’ before the

Court on Plaintiff's motion for injunc-

tion wherein he seeks reinstatement of

his security clearance which was revoked

on or about May 24, 1985; that on that

date Plaintiff had a TOP SECRET clearance

with access to Sensitive Compartmental-

ized Information.

2. Prior to Plaintiff's removal

from Federal service on July 5, 1985,

Plaintiff was a Federal civil servant em-

ployed by Defendant at the GS-13 and

GS-14 grade levels and assigned, from Ju-

ly 1973 to July 1985, to the Directorate

of Aerospace Studies at Kirtland Air

Force Base, New Mexico, (AFCMD/SA).

3. During almost twenty years of

his employment, Plaintiff was cleared for

access to claasified materials, the most

recent level being TOP SECRET Sensitive

Compartmentalized Information.

4. At the time of the revocation

of his security clearance, Plaintiff was

under the direct supervision of Colonel

as ia i igre

Paul Britt, the Director of AFCMD/SA.

5. The tensions between Plaintiff

and Colonel Britt resulted from accusa-

tions of Colonel Britt that Plaintiff had

made personal telephone calls at govern-

ment expense on the Directorate's AUTOVAN

telephone system; that Plaintiff respond-

ed to the allegations by accusing Colonel

Britt of abusing TDY funds to pursue per-

sonal interests that, thereafter, Colonel

Britt brought formal charges against

Plaintiff for the unauthorized calls and,

further, accused Plaintiff of theft for

Plaintiff's removal of personal notes a-

bandoned by a previous Directorate em-

ployee.

6. Major John Gowan, the Deputy Di-

rector of AFCMD/SA, upon being assigned

to the unit, heard rumors and references

regarding Plaintiff which he deemed to be

unprofessional: that the Technical Direc-

tor of AFCMD/SA referred to Dr. Hill as

"Dr. Moriarty"; that Plaintiff had been

singled out for adverse and disparate

treatment.

7. Major John Gowan gave special

attention to Plaintiff because of the way

management responded to Plaintiff; that

he attempted to intercede between Plain-

tiff and Colonel Britt in order to re-

solve the problems in the Directorate;

that Plaintiff at all times acted profes-

sionally and made reasonable professional

attempts to reconcile all differences;

that Colonel Britt was unresponsive and

negative in manner; that Colonel Britt

was not objective and made numerous state-

ments reflecting a vindictive attitude;

that Colonel Britt used any opportunity

to place Plaintiff in an unfavorable

light.

8. James H. Suttle, previously a

14-year civil servant, grade GS-14, with

Aerospace Studies had known Colonel Britt

since 1965 and had known Plaintiff since

1972-73; that he considered Colonel Britt

a friend as well as a boss.

9. Mr. Suttle olayed the role of a

mediator in order to diffuse tensions be-

tween Colonel Britt and Plaintiff but

with no success; that he characterized

Colonel Britt's management technique as

that of a "threat type"; that this manage-

ment style always had a “whipping boy";

and that Plaintiff was the brunt of Colo-

nel Britt's technique.

10. Mr. Suttle testified that se-

curity clearances were used in a way to

influence behavior during Colonel Britt's

tenure and that of his preaecessor; that

disparate treatment was common regarding

sanctions imposed for security violations.

11. In acting as a mediator, Mr.

Suttle informed Colonel Britt that Plain-

tiff would drop certain grievances which

he had in an effort to mediate differ-

i | ,

ences so that he could go on with his as-

signed duties; that this offer was re-

fused; that Colonel Britt considered

Plaintiff's grievances as a threat to

Britt's authority and that Colonel Britt

set out to “get him [Plaintiffl"; that

Colonel Britt carried out a vendetta; and

that Colonel Britt became obsessed with

the "Hill problem."

12. As Major Gowan sought to act

as an arbiter between Colonel Britt and

Plaintiff, Colonel Britt became more a-

lienated and informed Major Gowan that

his actions in support of Hill were inap-

propriate; that, thereupon, Major Gowan

requested to be transferred and he was

subsequently transferred to the Emergency

Directorate of CMD; tha= thereafter Colo-

nel Britt sought means to have Major

Gowan court - martialed for his having

sided with Plaintiff.

13. Prior to his disaffection with

Major Gowan because of his support of

Plaintiff, Colonel Britt rated Major

Gowan in the highest category possible in

his officer effectiveness report of June

1985.

14. According to Major Gowan, Colo-

nel Britt wanted Plaintiff out of the Air

Force and “erased from memory"; that he

referred to Plaintiff as a "non-person"

and stated that he would do anything to

"set Plaintiff"; that the removal of

Plaintiff's security clearance was 4

means to “eradicate” Plaintiff.

15. In retaliation for Plaintiff's

charges Colonel Britt revoked Plaintiff's

security clearance on May 24, 1985, as-

serting that the revocation was in the

interest of national security and alleg-

ing that Plaintiff had acted dishonestly;

established a pattern of poor judgment

and unreliable behavior and was untrust-

worthy; that, further, Colonel Britt es-

tablished a_ special security file on

Plaintiff; that Plaintiff was not given

any opportunity to answer the allegations

Or otherwise contest the revocation.

16. Colonel Britt's actions were

also motivated by Plaintiff's having

filed suit against the agency in June

1984 and of his having filed grievances

in the past.

17. On June 10, 1985, as a conse-

quence of Colonel Britt's actions, the

Air Force Security Clearance Office (AF

SCO) placed a "pending adjudication" code

by Plaintiff's name in its computer file

and made that data available to all De-

partment of Defense users; that the coded

entry has prevented Plaintiff's access to

classified materials until such time as

the special security file on Plaintiff

has been adjudicated; that as a conse-

quence of Plaintiff's termination from

Federal service, the AFSCO has refused to

adjudicate the file.

18. On July 31, 1985, AFSCO entered

a "Z code" by Plaintiff's name in the

AFSCO computer file; that the "Z code" in-

dicates that Plaintiff has left the em-

ploy of the agency and that the agency

possesses derogatory data regarding Plain-

tiff's suitability for a security clear-

ance; that the "Z code" has damaged Plain-

tiff and precluded his employment in the

defense community although Plaintiff's

capabilities are in demand.

19. In a conversation with Mr.

Suttle in Washington, D.C., Colonel Britt

knew that Plaintiff was seeking other em-

ployment and acknowledged that the revoca-

tion of Plaintiff's security clearance

would prevent Plaintiff from obtaining em-

ployment.

20. Mr. Suttle testified in favor

of Plaintiff before the Merit Board, and

as a consequence the Air Force retaliated

21. John Gowan, the Deputy Director

»9f AFCMD/SA, and Mr. James H. Suttle, tes

ied unequivocally that Plaintiff was

not a security risk.

22. In reviewing Colonel Britt's

1ctions in revoking Plaintiff's security

>-learance and questioning his eligibility

General Bernard L. Weiss, Commander of

the Air Force Contract Management Divi-

sion, made the following findings:

a. That the acts attributed

-o.6 6©vPPlaintiff did not have adverse secur-

b. That the facts of Plain-

iff's case did not indicate that Plain-

iff was a threat to national securi

yrd during 20 years of service was un-

slemished and the withdrawal of Plain-

iff's security clearance was unwarranted.

23. John W. Dettmer, Director of

Strategic Defense Force, and prior direc-

tor of the Technical Office in the Wea-

pons Laboratory, testified of Plaintiff's

excellent reputation and that Plai

was not a security risk.

ntifft

24. In his performance evaluation

by Lt. Colonel Paul J. Vallerie, Director

of Aerospace Studies for the years 1982

and 1983, Plaintiff was rated as excel-

ling in safeguarding classified informa

tion and following established security}

procedures.

25. Accoraing to the Department of

Defense Personnel Security program,

revo~

cation of a security clearance for access

to classified information is deemed

an adverse action. Defendants Exhibit

p. 59, para. 8-100(a).

96. Pursuant to the Personnel Se-

curity program; Defendants are required

to adjudicate all special security files

regardless of any other adverse action ta-

to be

ken including separation. Defendants’ Ex-

hibit F, p. 60, para. 102(e)(2).

27. The actions of Colonel Britt

with the assistance of Captain David W.

Hickman, the Staff Judge Aovocate, as re-

flected in the evidence, lead the Court

to conclude that the revocation of Plain-

tiff's security clearance was not because

of any adverse security significance but,

rather, motivated solely by a deliberate

intention to prevent Plaintiff from ob-

taining employment with civilian agencies

who deal in the defense industry where se-

curity clearances are essential.

28. The Department of Air Force has

failed to establish a rational nexus be-

tween the adverse action taken and the

articulated reasons for the actions

29. Plaintiff's work opportunities

have been severely limited by a fact de-

termination which failed to comport with

the traditional ideas of fair procedure;

and that Defendants have failed to ob-

serve even the most minimal due process

procedures in revoking Plaintiff's secur-

ity clearance.

Conclusions of Law

1. The Court has jurisdiction of

the subject matter of, and the parties to,

this action.

2. Plaintiff will be irreparably

harmed if a preliminary injunction is not

granted.

3. Plaintiff has made a prima fa-

cie case showing a reasonable probability

that he will ultimately prevail on the

merits.

/ rL +} . 4 ae sai

4 e threatened injury to Plain

a a “2 manatee, — snarever a ma e tho npro-

ey & wy a « | 4 7rns wnatevetr camage tile p+

posed pOr2_iminary iniunction may cause

T) £ a “tr 2

Derendcdants

5 7 reoliminar’ nN rION +

a ine preliminary injunction, ae

issued, will not be adverse to the public

interest.

6. A preliminary injunction should

be issued enjoining the Department of Air

Force to reinstate Plaintiff's security

clearance to the level held prior to May

24, 1985; and, further, that the Depart-

ment of Air Force should be enjoined to

remove the "Z code" by Plaintiff'a name

in the AFSCO computer file and that the

computer records should be programed to

indicate that Plaintiff is entitled to

access to classified material consistent

with the security clearance held prior to

May 24, 1985; that the Department of Air

Force notify all inquiring agencies of

the reinstatement of Plaintiff's security

clearance without derogatory information.

[Signed by Juan G. Burciaga]

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

FILED

At Albuquerque

Sep 18 1986

Jesse Casaus

Clerk

THOMAS W. HILL,

Plaintiff,

Vv. Civil No.

85-1485-JB

DEPARTMENT OF AIR FORCE,

PAUL S. BRITT, and

PAUL J. VALLERIE,

Defendants.

PRELIMINARY INJUNCTION

THIS MATTER having come on for con-

sideration of Plaintiff's motion fora

preliminary injunction, and the Court hav-

ing entered its findings of fact and con-

clusions of law, finds that the motion is

well taken and should be granted.

Wherefore,

IT IS ORDERED, ADJUDGED AND DECREED

as follows:

1. Defendant Department of Air

Force shall reinstate Plaintiff's secur-

ity clearance to the level held prior to

May 24, 1985;

2. Defendant Department of Air

Force shall remove the "Z code" by Plain-

tiff's name in the AFSCO computer file;

3. Defendant Department of Air

Force's computer records shall be program-

med to indicate that Plaintiff is en-

titled to access the classified material

consistent with the security clearance

held prior to May 24, 1985; and

4. Defendant Department of Air

Force shall notify all inquiring agencies

of the reinstatement of Plaintiff's secur-

ity clearance without derogatory informa-

tion.

DATED this 18th day of September,

1986.

[Signed by Juan G. Burciaga|]

United States District Judge

UNITED STATES COURT OF APPEALS

TENTH CIRCULT

OFFICE OF THE CLERK

C404 UNITED STATES COURTHOUSE

DENVER. COLORAOO 80294

October 27, 1986

Telephone

ROBERT L. HOECKER (303) 844-3157

CLERK (FTS) 564-3157

Ms. Barbara Herwig

Mr. Howard S. Scher

Appellate Staff, Civil Division

U.S. Department of Justice, Room 3631

Washington, D.C. 20530-0001

Re: No. 86-2418; Hill v. U.S. Depart-

ment of the Air Force, et al.

Dear Counsel:

The court has today entered an or-

der, in the captioned appeal, on the dock-

et as follows:

"10/27/86 Order: Appellant's motion

for stay pending appeal and emergency

stay pending consideration of stay pend-

ing appeal is denied -- Circuit Judges

James K. Logan and Stephie K. Seymour.

(parties served by mail)"

Very truly yours,

(signed by]

ROBERT L. HOECKER, Clerk

RLH kmh

ec: Mr. Thomas W. Hill, P.O. Box 14232,

Albuquerque, NM 8/7191

Mr. William Lutz, U.S. Attorney, Mr.

L. D. Harris, Assistant, Pr...

Box 607, Albuquerque, NM 8/7103

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PAUL. S. BRITT;

PAUL J. VALLERIE,

Defendants.

FILED

MAY 28 1987

ROBERT L. HOECKER

Clerk

THOMAS W. HILL, )

)

Plaintiff-Appellee, )

) No. 86-2418

- ) (D.C.Neo.85-1485JB)

) (BD. mses?

DEPT. OF AIR FORCE, )

)

Defendant-Appellant, )

)

and )

)

ORDER AND JUDGMENT

re ANDERSON and BARRETT, Circuit

S and THOMPSON, District Judge.*

er ee ee ae

Ralph G. Thompson, Chief Judge,

ct Court for the Western Dis-

ahom Sitting by designation.

“4 e briefs and the

t s three-judge panel

n mous that oral argu-

in the determination of this appeal. See

Fed.R.App.P. 34(a); lOth Cir.R. 34.1.8(c)

and 27.1.2. The cause is therefore or-

dered submitted without oral argument.

This is an appeal from an order of

the district court granting plaintiff's

motion for a preliminary injunction and

requiring the defendant Air Force to re-

instate plaintiff's security clearance,

remove the "Z code" from plaintiff's name

in its computer files, program the compu-

ter files to indicate plaintiff is en-

titled to access to classified materials

consistent with his previous’ security

clearance, and notify all inquiring agen-

cies of the reinstatement of plaintiff's

security clearance without giving any de-

rogatory informacion.

The district court stated that it

had jurisdiction to consider this case.

Although the parties do not address jur-

isdiction on appeal, the jurisdiction of

the district court is not clear. This

court may sua sponte raise issues relat-

ing to jurisdiction. McKinney v. Gannett

Co., 694 F. 2d 1240, 1245-46 (10th Cir.

1982); United States v. Siviglia, 686 F.

2d 832, 835 (lOth Cir. 1981), cert. de-

nied, 461 U.S. 918 (1983); Golden Villa

Spa, Inc. v. Health Indus.,Inc., 549 F.2d

1363, 1364 (lOth Cir. 1977).

Because the basis for the district

court's jurisdiction is unclear, we par-

tially REMAND this matter for the limited

purpose of allowing the district court to

explain the basis for its jurisdiction.

Upon conclusion of the district court pro-

ceedings, the clerk of the district court

shall transmit the record of the proceed-

ings to this court as a supplemental re-

cord on appeal.

This court shall retain jurisdic-~-

tion of this appeal for all other matters.

ENTERED FOR THE COURT PER CURIAM

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

FILED

AUG 21 1987

Jesse Casaus, Clerk

THOMAS W. HILL,

Plaintiff,

Vv. Civil No. 85-1485-JB

DEPARTMENT OF AIR FORCE,

MERIT SYSTEMS PROTECTION BOARD,

PAUL S. BRITT, and

PAUL J. VALLERIE,

Defendants.

MEMORANDUM OPINION AND ORDER

THIS MATTER came on for a hearing

on August 7, 1987, following the partial

remand the matter by the United States

Court of Appe2z.is for the Tenth Circuit

“for the lim:=:2d purpose of allowing the

district court to explain the basis for

its jurisdiction" following the Court's

entry of a preliminary injunction requir-

ing the Defendant Air Force to reinstate

Plaintiff's security clearance access to

classified materials.

At the hearing the Court elected to

state to the parties its bases for con-

cluding that there was jurisdiction to

enter the preliminary injunction. The

Court then afforded the parties an oppor-

tunity to state their opposition to the

Court's conclusions. The Court not hav-

ing beer persuaded by the Government's

arguments to the contrary, finds that it

has jurisdiction over the subject matter

of the preliminary injunction entered in

this cause on September 18, 1986, and

herein adopts its findings and conclu-

sions as stated in open court on August

7, 1987, with the following elaborations.

The Court relies or the matters al-

leged in the Fourth Cause Of Action con-

tained in Plaintiff's Second Amended Com-

plaint to support its entry of the pre-

liminary injunction. As Plaintiff has ap-

peared pro se at all times in this action,

the Court has given Plaintiff's complaint

a liberal reading. The Court adopts the

findings of fact and conclusions of law

entered in connection with its grant of a

preliminary injunction on September 18,

1986. The Court is of the opinion, as it

was on that date, that the facts adduced

at that hearing support Plaintiff's alle-

gations that the agency actions in sus-

pending his access to classified material

were illegal and resulted in deprivation

of his fifth amendment rights to due pro-

“

cess and equal protection of the laws.

: As the facts demonstrate, the con-

tinuing investigation of Plaintiff's sus-

pension to access resulted in the crea-

tion of a special security file. When

Plaintiff was removed from this position

ith the Air Force, the investigation Dy

ne Air Force was terminated and Plain~

ff's status as a security risk remained

judicated. The Court previously found

t the action was "adverse" to Plain-

‘emu *

‘

and under the Air Force's own reg-

ns, required a final adjudication.

fendant maintains that this was not

eh!

Such claims involve a_ federal question

that supports jurisdiction under 28 U.S.C.

8. 332 .~ While the Air Force has not

waived its sovereign immunity with re-

spect to damage actions where a constitu-

tional violation is implicated, 5 U.S.C.

§ 702 allows for the grant of injunctive

relief against the United States or its

agencies. "A person suffering legal wrong

because of agency action, or adversely

affected or aggrieved by agency action

within the meaning of a relevant statute,

is entitled to judicial review thereof."

Surely there is no more serious wrong

than a constitutional wrong and that is

the “legal wrong” implicated in this

an adverse action, and that no adjudica-

tion was required as Plaintiff was no

longer an employee of the Air Force.

However, the special security file resur-

faced, restricting him from regaining a

security clearance as a civilian employee.

The Air Force's. irrational procedures

place Plaintiff in a "Catch-22" situation.

cause. While the Court acknowledges that

8 702 is not an independent grant of fed-

eral jurisdiction, the underlying consti-

tutional cause of action supports. the

Court's jurisdiction to award injunctive

relief.

While Defendants contend that Plain-

tiff is limited to statutory remedies and

procedures only, the Court disagrees and

finds the authority relied on by Defend-

ants to be distinguishable. While it is

true that much deference is afforded to

agency action in grievances between the

Government and its employees, this is not

the case when constitutional rights are

implicated and injunctive relief is

— ee

sought. Andrade v. Lauer, 729 F.2d 1475,

1491 (D. C. Cir 1984). It is true that

where damages aze sought as the result of

an allegedly unconstitutional "federal

personnel policy," there may be “special

factors counseling hesitation" in expand-

NI Ls th

ing the employee's common law remedies

where the Civil Service Reform Act pro-

vides a comprehensive remedial scheme.

See Bush v. Lucas, 462 U.S. 367 (1983).

There are different fiscal and policy con-

cerns when injunctive relief is sought to

remedy an ongoing constitutional viola-

tion. Accord Doe v. United States Depart-

ment of Justice, 753 F. 2d 1092, 1109 n.

17 (D.C. Cir. 1985) ("nothing in Bush or

any other Court opinion casts doubt on

the presumed availability of federal equi-

table relief against federal officials

for committing constitutional violations"

(emphasis added)). Furthermore, it is the

Court's understanding that the Merit Sys-

tems Protection Board, who entertained

Plaintiff's appeal of the removal deci-

sion, declined to review the security

clearance issues. Where there is no oth-

er remedy that Plaintiff could invoke,

the Bush v. Lucas rationale does not ap-

ply and the constitutional ‘issues are

ripe for determination hy this Court. See

Bush, 462 U.S. at 391 (Marshall, J., con-

curring); McIntosh v. Weinberger, 810 F.

2d 1411, 1435 (8th Cir. 1987); National

Treasury Employees Union v. Reagan, 651

F.Supp. 1199 (E.D. La. 1987).

The Court finds that Plaintiff has

alleged cognizable liberty and property

interests under the due process’ clause

that are independently deserving of pro-

tection. Plaintiff had a legitimate ex-

pectation of entitlement to access to

classified information unless) and until

his access was terminated with proper pro-

cedures based on the reasonable finding

that he was a_ security risk. The Court

further finds that Plaintiff has present-

ed a colorable claim that the suspension

of his access to classified materials in-

fringed on a liberty interest. The gov-

ernment's placing of Plaintiff's security

file in an unadjudicated or incomplete

status and disseminating such information

impugn the Plaintiff's standing and repu-

tation and limits his ability to secure

employment. The Court's preliminary find-

ings also support that Plaintiff was

treated in a purposefully discriminatory

and arbitrary fashion, with a stated in-

tent to "get" tbe Plaintiff. Such conduct

would not be rationally related to legit-

imate government purposes and implicates

a violation of equal protection. The

Court finds support for the principle

that jurisdiction lies where agency ac~-

tion has been challenged as unconstitu-

tional and equitable relief is sought a-

gainst government agencies. See Ogden v

United States, 758 F. 2d 1168, 1177 n. :

(7th Cir. 1985); Ghandi v. Police Depart-

ment of City of Detroit, 747 F. 2d 338,

343 (6th Cir. 1984); Swift v. United

States, 649 F.Supp. 596 (D.C. 1986). The

cases cited by Defendants, Weatherford v.

Dole, 763 F. 2d 392 (10th Cir. 1985) and

Broadway v. Block, 694 F.2d 979 (5th Cir.

1982), are not inapposite where a color-

able constitutional claim is implicated.

Having conducted a hearing on the

matter and the Court having stated its

additional findings and conclusions, and

having entered this memorandum Opinion,

the Court orders that this matter be re-

turned to the Court of Appeals for the

Tenth Circuit, in compliance with thaty

court's Order and Judgment of May 28,

1987. This Court shall retain jurisdic-

tion over all matters not related to the

appeal.

DATED this 21st day of August. 1987.

[Signed by Juan G. Burciagzs

United States Dis J

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

FILED

MAR 30 1988

ROBERT L. HOECKER

Clerk

THOMAS W. HILL,

Plaintiff-Appellee,

No. 86-2418

(D.C.No.85-1485JB)

(D. New Mexico)

DEPT. OF AIR FORCE,

Defendant-Appellant,

and

PAUL. S. BRITT;

PAUL J. VALLERIE,

eee ee eee ee ee

Defendants.

ORDER AND JUDGMENT

Before ANDERSON, BARRETT, Circuit Judges,

and THOMPSON,* District Judge.

*Hon. Ralph G. Thompson, Chief Judge, U.S.

District Court for the Western District

of Oklahoma, sitting by designation.

After examining the briefs and ap-

pellate record, this panel has determined

Ri:

Air Force to restore Hill's security

clearance and in prohibiting the Air

Force from releasing information pertain-

ing to Hill's suitability for a security

clearance. Specifically, the Air Force

maintains that (1) courts are not per-

mitted to second-guess the me its or wis-

dom of military or national security deci-

sions; (2) the only proper basis for re-

view of a military or national security

decision is to determine whether pertin-

ent procedural regulations were followed;

(3) at most, the action should have been

remanded to the Air Force for redetermina-

tion; and (4) there is no occasion to or-

der reinstatement of a security clearance

when an employee's removal from employ-

ment 743s mot been set aside. We agree

with the Air Force on every point

Ac the request of this court the

district court has filed a supplemental

opinior explaining the basis for its jur-

2 ee

isdiction, and reaffirming its earlier de-

termination that it has jurisdiction in

the matter.

The district court has’ reasoned

that jurisdiction was conferred upon it

under 28 U.S.C. §$ 1331 on the theory that

"agency actions in suspending (Hiil's] ac-

cess to classified material were illegal

and resulted in deprivation of [Hill's]

fifth amendment rights to due process and

equal protection of the laws." The court

found that Hill had both constitutional

liberty and property interests in his se-

curity clearance, and “had a legitimate

expectation of entitlement to access to

classified information unless and until

his access was terminated with proper pro-

cedures based upon the reasonadie rinding

Hill's suspended status impugned Hill's

standing and reputation, and limited

Hill's ability to secure employment. Fi-

nally, the district court ruled that

Hill's superior maliciously caused the

suspension of Hill's clearance out of

personal animosity, and "(sluch conduct

would not be rationally related to legit-

imate government purposes and implicates

a violation of equal protection."

On February 23, 1988, the United

States Supreme Court issued its opinion

in Deo't. of the Navy v. Egan, 108 S. Ct.

818 (1988). That opinion (which we await-

ed for whatever guidance it might afford

in our disposition of this case) directly

i ssses only the narrow question of

rher the Merit Systems Protection

= i (Board is authority Dv statute to

ew the substance of an uncerlying de-

or revoke a security clear-

verse action." Id. at 820 (emphasis add-

ed). Nevertheless, the case removes any

doubt regarding the authority of federal

courts to review the merits of the grant

or denial of security clearances. Under

any circumstance which might be germane

to this case, there is no such authority.

As is indicated by the Supreme Court's

Statement of the question in that case,

Egan extends to the merits of suspension,

modification or revocation of a previous-

ly granted security clearance, since the

underlying rationale applies with equal

logic to revocation as it does to an in-

itial grant of authority. These matters

are a "sensitive and inherently discre-

tionary judgment call... Committad by la

to the appropriate agency of the Exe-c::-

tive Branch.” Id. at 824. The court ei::-

2ratec as follows:

The President, after all, is the

“Commander in Chief of the Army anc

Navy of the United States." JU. s.

Const., Art. II, 8 2. His author-

ity to classify and control access

to information bearing on national

security and to determine whether

an individual is sufficiently trust-

worthy to occupy a position in the

Executive Branch that will give

that person access to such informa-

tion flows primarily from this con-

stitutional investment of power in

the President and exists quite a-

part from any explicit congression-

al grant. See Cafeteria Workers v.

McElroy, 367 U.S. 886, 890 (1961).

This Court has recognized the Gov-

ernment's "compelling interest" in

withholding national security infor-

mation from unauthorized persons in

the course of executive business.

Snepp v. United States, 444 U.S.

507, 509, n.3 (1980). See also Unit-

ed States v. Robel, 389 U.S. 258,

267 (1967); United States v. Rey-

nolds, 345 U.S. 1, 10 (1953); Tot-

ten v. United States, 92 U.S. 105,

106 (1875). The authority to pro-

tect such information falls on the

President as head of the Executiv

Branch and as Commander in Chief.

rt 3s:ould be obvious that no_ one

1a 'rignt" to a security clear-

anc > The grant or a clearance re-

ef 9s an affirmative act of dis-

a= mM on the part of the granting

officias The general standard is

chat 2a learance maybe granted only

anen ‘clearly consistent with the

interests of the national security.”

See, 2.g., Exec. Order No. 1045

o- Ws

ys - =") . ae Sa ae

88 ? an / 3 R 936, 938 (1949-

an Se eee ee

1953. Comp.); 10 CFR § 710.10 (a)

(1987) (Department of Energy); 32

CFR 8 156.3(a) (1986)(Department of

Defense). A clearance does not e-

quate with passing judgment upon an

individual's character. Instead, it

is only an attempt to predict his

possible future behavior and to as-

sess whether, under compulsion of

circumstances or for other reasons,

he might compromise sensitive infor-

mation. It may be based, to be

sure, upon past or present conduct,

but it also may be based upon con-

cerns completely unrelated to con-

duct such as having close relatives

residing ina country hostile to

the United States. "[Tlo be denied

[clearance] on unspecified grounds

in no way implies disloyalty or any

other repugnant characteristic. "

Molerio v. FBI, 242 U.S. App. D.C.

137, 146, 749 F.2d 815, 824 (1984).

The attempt to define not only the

indiviauals [sic] future actions,

out those of outside and unknown in-

fluences renders the “grant or deni-

al of security clearances... an in-

exact science at best." Adams v.

Laird, 136 U.S. App. D.C. 388, 337,

429 F.2d 230, 239 (1969), cert. de-

hugg. 397 U.S. 1036 (1970).

Predictive judgment of this kind

ToS De made by those with the ne-

C2ssary expertise in protecting

classified information. For 'rea-

SONS... C00 obvious to call for en-

larged discussion," CIA v. Sims,

O71 oe. La ee (1985), the pro-

tection of classified information

must be committed to the broad dis-

Cretion of the agency responsible.

and this must include broad discre-

tion to determine who may have ac-

cess to it. Certainly, it is not

reasonably possible for an outside

nonexpert body to review the sub-

stance of such a judgment and to de-

cide whether the agency should have

been able to make the necessary af-

firmative prediction with confi-

dence. Nor can such a body deter-

mine what constitutes an acceptable

margin of error in assessing the po-

tential risk. The Court according-

ly has acknowledged that with re-

spect to employees in sensitive po-

Sitions "there is a reasonable bas-

is for the view that an agency head

who must bear the’ responsibility

for the protection of classified in-

formation committed to his custody

should have the final say in decid-

ing whether to repose his trust in

an employee who has access to such

information. Cole v. Young, 351

U.S. 536, 5466 (1956). As noted a-

bove, this must be a judgment call.

The Court also has recognized "the

generally accepted view that for-

eign policy was the province and

responsibility of the Executive."

Haig v. Agee, 453 U.S. 280, 293-294

(1981). “As to these areas of Art.

II duties the courts have tradition-

ally shown the utmost deference to

Presidential responsibilities." U-

nited States v. Nixon, 418 U.S.

683, 710 «.1974). Thus, unless Con-

eress specifically has provided oth-

erwise, courts traditionally have

been reluctant to intrude upon the

authority of the Executive in mili-

tary and national security affairs.

See e.g., Orloff v. Willoughby, 345

om, 346 U.S. 137, 2425 286 (aeae.

Gilligan v. Morgan, 413 U.S. 1, 10

(1973), Schlesigner v. Councilman,

620 U.S. 758, (377738 (i9fo), Goao-

pel v. Wallace, 462 U.S. 296 (1983).

Id. at 824-26 (emphasis added).

There are strong parallels between

this case and Egan. Both Hill and Egan

lost their civilian jobs with agencies of

the military under circumstances’ related

to a security clearance. Egan lost his

job because he was not granted a clear-

ance. Hill lost his job because of the

Same misconduct (conversion of telephone

services, among other actions) which was

cited as the reason for the suspension of

his clearance. And, although Hill's em-

ployment was not immediately afzected by

his loss of access to secret information,

we assume it would have been affected by

ultimate revocation of his clearance.

Both Hill and Egan contested their

loss of employment, and received full due

U.S. 83, 93-94 (14955), Burns v. Wil-

son

process under applicable statutes and reg-

ulations: notice, hearing before the Mer-

it Systems Protection Board ("MSPB"), con-

frontation, and rights of appeal. In that

process Hill was able to present affirma-

tive defenses, and defenses on the merits,

without success. Egan's loss of employ-

ment due to his inability to get a clear-

ance was eventually upheld on appeal.

Hill's loss of employment was also upheld

on alae The fact that Hill lost his

job because of misconduct presents a much

stronger case for the terminating agency

than the fact situation in Egan.

In Egan the MSPB was’ held to have

no authority to review ‘the substance of

an underlying decision to deny or revoke

a security clearance. qd. at 820 (em-

phasis added). Here, the MSPB refused to

hear Hill's arguments with respect to Air

Force action as to his security clearance

because it was his misconduct, not the

suspension of his clearance that cost him

his job. But that does not alter the con-

trolling proposition. Under Egan, if

Hill's clearance had been revoked, and

his job lost asa result, neither the

)

MSPB nor the courts would have had statu-

tory authority to conduct the very type

of review Hill urges here, and which the

district court accorded him -- a review

which examined the merits and motives of

Air Force decisions relating to Hill's

clearance, and the nexus between those

decisions and national security interests.

If the merits underlying a revocation can

not be examined, there are even stronger

reasons why the merits underlying an in-

terim action such as a suspension cannot

be examined. We have no doubt that if

Hiil's arguments on the suspension of his

1 Hill v. Dep't. of the Air Force, No.

86-1081 (Fed. Cir. Feb. 10, 1987), reh'g

denied, March 9, 1987.

security clearance had been before the

MSPB in the context of hearings on his

job loss, or otherwise, the MSPB would

would have been prohibited under Egan

from doing what the district court did

here. The MSPB, and reviewing courts,

would have been limited to the fact of

suspension and whether suspension had oc-

curred for a facially valid reason. The

substance of the underlying decision

would be beyond review.

Of course the holding in Egan deals

with statutory powers of review. The es-

sential question before us is whether the

constitutional allegations advanced below

form an independent jurisdictional basis

by which the district court could proceed

to examine and pass on the nrerits of the

Air Force decision to susperc Hill's se-

curity clearance. Prior to examining that

question, we observe at’ the outset that

if the statutory constraints imposed in

Egan can be bypassed simply by invoking

alleged constitutional rights, it makes

the authority of Egan hardly worth the ef-

fort.

The constitutional rights invoked

in this case are those of due process and

equal protection. As the district court

correctly perceived, Fifth Amendment due

process is not implicated here unless

Hill had a constitutionally cognizable

property or liberty interest in his secur-

ity clearance under the circumstances of

this case. See Weatherford v. Dole, 763

F.2d 392, 393 (lOth Cir. 1985); Broadway

v. Block, 694 F.2d 979 (5th Cir. 1982).

We hold that Hill did not have a

constitutione. property or liberty inter-

est in his ::+-urity clearance. The same

reasoning ‘«h.ch underpins Egan supports

that conciusion. The Executive Branch has

constitutiona. responsibility to classify

and control access to information bearing

on national security. A security clear-

ance is merely temporary permission by

the Executive for access to national se-

crets. It flows from a discretionary ex-

ercise of judgment by the Executive as to

the suitability of the recipient for such

access, consistent with the interests of

national security. The notion of an in-

dividual property right in access to the

mation's secrets -- by definition a lim-

itation on Executive discretion -- is ut-

terly inconsistent with those principles.

Whatever expectation an individual might

have in a clearance is unilateral at

best, and thus cannot be the basis for a

constitutional right. See Board of Re-

gents v. Roth, 408 U.S. 564, 577 ‘1372).

Hill emphasizes the exis<ence of

procedural rules which have been devel-

oped by the Department of Defense and the

various military agencies relating to the

suspension and potential revocation of an

existing clearance. Dept. of Defense Reg-

ulation 5200.2R/Air Force Regulation (AFR)

205-32 (Nov. 26, 1982). Those procedures

are not the type of "rules or understand-

ings that secure certain benefits and

that support claims of entitlement to

those benefits." Board of Regents v. Roth,

408 U.S. 564, 577 (1972). See Cleveland

Board of Education v. Loudermill, 470 U.S.

532, 538-541 (1985); Paul v. Davis, 424

U.S. 693, 709 (1976). The procedures are

administrative devices which are indeed

intended to promote fairness and safe-

guard the rights of individual employees,

but are not intended thereby to diminish

Executive authority rooted in Executive

responsibility. If the courts attempt to

attach constitutional rights to security

clearances because rules have been promu!-

gated to better administer employee rela-

tions, it will provide a disincentive for

government agencies "to continue improv-

ing the mechanisms by which an aggrieved

employee can protect his rights." Bush v.

Lucas, 647 F.2d 573, 577 (5th Cir. Unit B

[sic] June 1981) aff'd, 462 U.S. 367, 103

S.Ct. 2404, 76 L. Ed. 2d 648 (1983). See

also Broadway v. Block, 694 F.2d 979 (5th

Cir. 1982).

The foregoing discussion applies as

well to the question of a liberty inter-

est where Hill is concerned, with an ad-

ditional explanation. The district court

found that suspending Hill's clearance,

creating a file showing the suspension,

and disseminating such information, im-

pugned Hill's standing and reputation and

limited his ability to secure employment.

Egan comoels a different view: "A clear-

ance dces not equate with passing judg-

ment upon an individual's character."

Egan ac 9-10. The same is true of a sus-

pension. Furthermore, potential dissemin-

ation ot the underlying reasons for the

suspension, thus possibly damaging Hill's

employability, was overshadowed in any

event by the fact of and reasons for

Hill's discharge. Full due process and a

name-clearing opportunity were provided

Hill in that regard. The reasons for both

suspension and discharge were the same as

was, presumably, their impact, if any, on

Hill's ability to secure employment based

on his character and reputation. The Air

Force could not, and should not, be pro-

hibited from communicating to prospective

employers who do work for the government

the facts underlying Hill's discharge.

Finally, the suspension itself neither de-

prived Hill of his employment, since he

remained emploved until removed for mis-

conduct, nor “foreclosed" other employ-

ment opportunities. See Board of Regents

v. Roth, 408 U.S. 504, 573-74 (1971). Up-

on seeking employment in the private sec-

tor which requires a security clearance

Hill is free to apply to the Defense In-

dustrial Security Clearance Office for a

clearance, and to receive a full hearing

if denial of a clearance is proposed. In

short, there was nothing in the suspen-

sion itself which implicated a liberty in-

terest.

Constitutional questions aside, how-

ever, courts do have the power to compel

agencies to follow their own regulations.

See e.g., Cafeteria & Restaurant Workers

Union, Local 473 v. McElroy, 367 U.S. 886,

892-93 (1960); Watkins v. United Stares

Army, 721 F. 2d 687, 690 (9th Cir. 1983).

The Air Force acknowledges that point.

Supplemental Brief for the Appellants on

Jurisdiction at 5 ("({Wje do not dispute

that the district court had jurisdiction

to review whether the required procedures

were folliowed....")

But the district court made no find-

ing that the Air Force violated any parti-

cular procedure; and even if such a find-

ing had been made the remedy would have

been a remand for the purpose of compli-

ance with applicable procedures, not an

order requiring reinstatement of Hill's

clearance. See generally Gayer v. Schle-

singer, 490 F.2d 740, 752 (D.C.Cir. 1973).

Hill's main complaint is that the

Air Force refused to continue the process

of adjudicating his security status after

his employment was terminated. That re-

fusal has left the suspension of his

clearance, with a "Z" code, intact and in

Limbo. He contends he is still entitled

to a hearing with respect to the reasons

asserted for the suspension of his clear-

ance and whether he can fairly be labeled

a security risk after almost twenty years

of loyal service. The Air Force responds

that it has neither need nor authority to

apply an employee-related adjudication

process to someone who is no longer an em-

ployee. Hill calls that response a

"“catch-22".

As a general proposition, the Air

Force makes a valid point. The security

clearance was issued by the Air Force

solely to facilitate on-the-job perform-

ance by one of its employees, not to cre-

ate an independent, portable right for

the benefit of a former employee. Howev-

er, it is unnecessary for us to decide

whether the Air Force can be ordered to

complete its adjudication of a former em-

ployee's clearance because we view Hill's

removal for misconduct as a material in-

tervening, and dispositive, factor. There

is no way to return Hill to the status

que ante. Hill's fully adjudicated dis-

charge resulted in a finding by the MSPB

of misconduct and that Hill's “misconduct

related to his integrity and trustworthi-

ness." MSPB Mem. Op. Nov. 6, 1985 at 24.

The findings of the MSPB were upheld on

| 51

——————————

appeal and are conclusive and binding on

us, Hill, and the Air Force. Those facts

on their face would make a remand regard-

ing a top secret clearance a useless exer-

cise. At the very least the factual bas-

is upon which adjudication would proceed

would be so substantially altered as to

present an entirely different case. For

instance, Hill would not be entitled to

re-litigate the issue of his conversion

of telephone services.

Furthermore, it is a fallacy to con-

tend that no hearing is available. Hill

is entitled to apply anew for a clearance

from the appropriate agency as an em-

ployee of a government contractor. When

investigation of that application turns

the special file created by the Air

, Hill can make his explanations and

avail himself of the detailed procedures

for notice and a hearing permitted with

respect to any propcsed adverse action.

Mis FS

Dept. of Defense Directive, 5220.6, Au-

gust 12, 1985, (codified at 32 C.F.R. §

155 (1987)). Under those procedures Hill

would receive the very same type of hear-

ing, and with respect to the same matters

and contentions, that he complains he was

not accorded by the Air Force. We under-

stand that since his termination by the

Air Force Hill has obtained other employ-

ment and has been granted a top secret

security clearance. If that clearance is

affected by the dissolution of the pre-

liminary injunction issued in this case,

then Hill still would be entitled to no-

tice and a hearing of the same type and

quality just mentioned.

Since the district court supported

its finding of i::--sdiction under the E-

qual Protection Clause and the Administra-

tive Procedure Act, 5 U.S.C. 8702, on the

Same reasoning which we have already ad-

dressed and rejected in the foregoing dis-

cussion, it iS unnecessary to pursue

those subjects. We hold that no jur

tion was conferred on those grounds.

isdic-

To summarize, the district court im-

properly based its jurisdiction upon

Com~

Stitutional grounds and, in that connec-

tion, evaluated the motives and the

Rex

its of the agency's actions with respect

to Hill's security clearance. The Supreme

Court has now made clear, in Egan,

that

the courts are Witnout power to conduct

such a review under circumstances which

would include those presented in this

case. he district court lacked jurisdic

tion on the grounds ennumerated in its de

cision. The court did have jurisdiction

in general with respect to whether pro-

cedures were violated, but nad no author-

ity to order a reinstatement of Hill's

clearance, or to grant tne additional re-

tion. Furthermore, we:hold that,

#.,

Wee sis Mm &

the circumstances of

review of the procedu

this case, a further

res followed in sus-

pending Hill's clearance, and of the agen-

cy's refusal to continue to adjudicate

the matter following

misconduct, is unnece

Hill's removal for

ssary and inappropri-

ate. The case is remanded to the district

court with instructi

preliminary injuncti

case. Upon proper mot

the district court shall

judice the fourth c

ons to dissolve the

on issued in this

ion by the Air Force

dismiss with pre-

ause of action con-

tained in Hill's second amended complaint,

dealing with his security

alleged actions or

partment of the Air

hereto

le revo

ee ee

Stephen

Circuit

clearance and

omissions by the De-

Force with respect

for the Court:

H. Anderson

Judge

MAY TERM - May 11, 1988

Before Honorable William J. Holloway,

Jr., Chief Judge, Honorable James E. Bar-

rett, Honorable Monroe G. McKay, Honor-

able James K. Logan, Honorable Stephanie

K. Seymour, Honorable John P. Moore, Hon-

orable Stephen H. Anderson, Honorable

Deanell Reece Tacha, Honorable Bobby R.

Baldock, and Honorable Wade Brorby, Cir-

cuit Judges, United States Court of Ap-

peals, and Honorable Ralph G. Thompson,

Chief Judge, United States District Court

for the Western District of Oklahoma*

THOMAS W. HILL,

Plaintiff-Appellee,

Vv. No. 86-2418

DEPT. OF AIR FORCE,

Defendant-Appellant,

and

PAUL S. BRiTi;

PAUL J. VALLERIE,

Nakann ant.

Defendants.

Nee eee

* The Honorable Ralph G. Thompson, United

States District Judge for the Western Dis-

trict of Oklahoma, sitting by designation.

suggestion for rehearing en banc, motion

to stay the mandate, motion for oral ar-

gument if rehearing is granted, and objec-

tion to the taxation of costs.

It is ordered:

1. The materials submitted by ap-

pellee have been reviewed by the members

of the hearing panel, who conclude that

the original disposition was correct. Ac-

cordingly, the petition for rehearing is

denied on the merits. The petition having

been denied on the merits by the panel to

whom the case was submitted and no member

of the panel or judge in regular active

servic on the court having requested

that the court be polled, the suggestion

or rehearing en banc is denied.

‘

aah s —- ee ee ee

ine motion ror oral argument 1

rehearing is granted is denied as moot.

The motion to stay the mandate

for thirty days is granted. See Fed. R.

5/7

App. FP. 6&1 (€B).

4. The objection to taxation of

costs is denied.

ROBERT L. HOECKER, Clerk

{signed by Patrick Fisher,

Chief Deputy Clerk]

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF NEW MEXICO

FILED

THOMAS W. HILL, JAN 27 1986

Jesse Casaus,

Plaintiff, lerk

Vv. Civil No. 85-1485 JB

DEPT OF AIR FORCE,

MERIT SYSTEMS

PROTECTION BOARD,

PAUL S. BRITT, and

PAUL J. VALLERIE,

Defendants.

SECOND AMENDED COMPLAINT

Comes now the plaintiff, Thomas W.

Hill, appearing pro se, and for cause of

action herein, alleges and states:

Jurisdiction and Venue

Inzs i8 a@ civil action for in-

junctive, teclaratory, and monetary re-

lief, and mandamus action. The Court has

jurisdiction over all involved issues pur-

Suant to provisions of the Freedom of In-

formation Act ("FOIA"), 5 U.S.C. §$ 552;

the Privacy Act of 1974, 5 U.S.C. 8 552a;

the Administrative Procedure Act, 5 U.S.C.

88 551 and 701 et seq.; the Civil Service

Reform Act of 1978, 5 U.S.C.8 2301 et seq.

and 5 U.S.C. 88 7702 and 7703; the Age

Discrimination in Employment Act of 1967,

29 U.S.C. 88 631 and 633a; 28 U.S.C. 88

1331 and 1361; andthe First, Fourth,

Fifth, Ninth, and Fourteenth Amendments

to the Constitution of the United States.

Venue is proper this district pursuant to

provisions of 5 U.S.C. 8 552a (g)(5); 5

U.S.C. 8 552(a)(4)(B); 5 U.S.C. 8 703; 28

U.S.C. 8 1391 ane other statutes.

Facts Relevant To Causes Of Action

At =ne time of notification

Britt stated tract he was withdrawing

plaintiff's access to classified informa-

tion and read aloud some notes he had

mor

prepared. Reference Exhibit "5

11. On 30 June 1985 plaintiff sub-

mitted a letter to the AFCMD Commander

complaining that he had been denied due

process by the actions taken by agency

officials in suspending his security

clearance. Reference Exhibit "6"

Fourth Cause Of Action

1. The actions taken by the agency

in suspending plaintiff's access to clas-

sified information have not conformed

with the provisions of the agency's gov-

erning regulations, i.e., Air Force Regu-

lation 205-32 and other regulations, and

have thus resulted in denial of due pro-

cess.

2. Agency actions t<“2n subsequent

to the illegal suspension or such access

have not conformed with the provisions of

5 U.S.C. 8 7532, and have resulted in fur-

ther denial of due process.

Free a ee

3. The agency has illegally placed

plaintiff's security clearance indefinite-

ly in an “in adjudication" status at the

Air Force Security Clearance Office ("AF

SCO") in Washington, D.C., and will not

accomplish "further processing ... until

[he] ... is reinstated as a government em-

ployee". Reference Affidavit of J. Leon

Vialpando attached herewith as Ex. "18".

4. Said abevance of further action

has resulted in an unwarranted slur on

plaintiff's reputation and also prevents

his obtaining other employment commensur-

ate with his capabilities.

5. Agency officials have used ac-

tions related to the improper suspension

in an attempt to coerce plaintiff to voi-

untarily resign from his former position,

thereby abandoning his right of judicial

review of the illegal removal.

6. Plaintiff has exhausted all po-

tential for administrative relief, and is

entitled to judicial review and mandamus

action against the agency to restore his

clearance, in accordance with the provi-

sions of 5 U.S.C. 88 702 and 2302, and 28

U.S.C. 8 1361.

Relief Sought

Wherefore, Plaintiff prays that the

Court will

(i) Issue a declaratory judgment

that plaintiff has been denied due pro-

cess by the defendants, and has been the

victim of actions specifically prohibited

by law,

(iv) Order the agency to remove the

"in adjudication" notation entered on

plaintiff's security clearance records as

maintained by ne Air Force Security

Clearance Office. and further to rein-

«a

ive)

(

ey)

a |

ity clearance, be-

cause of denial of due process and also

because of the agency's failure to estab-

lish any nexus between alleged actions

and plaintiff's ability to safeguard clas-

sified information,

(viii) Permanently enjoin Paul S.

Britt or anyone acting under his supervi-

sion or on his behalf, from taking any

action of any type which would have ad-

verse impact on plaintiff's employment,

and Order other sanctions against agency

officials as deemed to be appropriate by

the Court, soe GRE

(xii) Grant such other and further

relief to plaintiff as the Court deems to

be just and proper.

Plaintiff respectfully demands tri-

al by jury of all issues of fact, and de

novo consideration by the Court of all

matters involved in this action.

signed |

Thomas W. Hili, Pro Se

SP/ F.Farris/ 4-0171/ dd/ 24 Jul 85

Rewritten 25 Jul 85 “

{From:] CC

[Subj:] Special Security File (SSF) re Mr

Thomas W. Hill, 239-56-9010 DAFC

{To: ] HQ AFSCO (Col Evans)

1. A Special Security File (SSF) on AFCMD

employee, Mr Thomas W. Hill, has been for-

warded to you by the 1606 ABW/SPIA, the

servicing security police office for Kirt-

land AFB. Mr Hill's security clearance

eligibility is presently in adjudication.

2. At Mr Hill 's personal request I have

looked into this matter. As the new AFCMD

Commander (as of 2 Jul 85) it was incum-

bent upon me to carefully scrutinize all

aspects of this case to make the decision.

My review of the case reveals the follow-

ing:

a. The acts attributed to Mr Hill,

although they may have’ shown a lapse in

_ EE ae

judgment and are of a serious nature, did

not have adverse security significance.

b. I do not believe the facts of

this case indicate that Mr Hill has been

a threat to national security or that he

may be subject to coercion, infiuence or

pressure that could cause him to act con-

trary to the national security.

c. His security record during the

past 20 years has not been blemished and

withdrawal of his security clearance is

unwarranted.

3. Request that this matter be given

your very careful review and I recommend

removal of "in adjudication" status and

that Mr Hill's clearance be reinstated.

4. Request that vou expedite the adjudi-

cation of the Srecrial Security File (SSF).

BERNARD L. WEISS cc: 1606 SPG

Major General, USAF

Commander

FOR OFFICIAL USE ONLY

DECLARATION OF SERVICE

Pursuant to the provisions of 28

U.S.C. 8 1746, I hereby declare service

of the foregoing petition with appendix

on the opposing parties by first-class

mailing of true copies to:

Howard S. Scher, Appellate Staff

Civil Division, Room 3631

Department of Justice

Washington, D.C. 20530

on the 10th day of June, 1988, Manhattan

Beach, California.

' /} ? Ay. -4 Pe,

\hkemag ff Vas Uf

Thomas W. Hill, Pro Se

463 36th Place

Manhattan Beach, CA 902566

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.