# Petition for Writ of Certiorari — Hill v. Department of the Air Force > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1868%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 488 U.S. 825 ## Text 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 te) \ rid tutu » se : | — a o One yz yy D) oe ifeh Baru Place —_— Dp ar aA el pesacn ae ava’ 5. d. 1a IV éZ00 a a os et alee ; _ | Tre_e 213) 545-4174 [home] ~~ 4 a? oe A an r - = 213) 618-8798 (office 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? LO Whether the Tenth Circuit erred in Ordering the District Court to dismiss Plaintiff's cause, wnerein he has specifi- 0 cally pled noncompliance with AFR 2 j TT} os Y j~ : > J no “~ ¢ _ , YO ~ 7 4 md4 4 —-—oe Fan 4. Whether tne Tenth Circuit erred nn +-ar = _~ _-— =~ >+- Nn “A - rr _ Nw a Lit ECL US 4 eet er OoOune:z -bhaa,. “Wilks Gs 3 PR ¢ : ee es ene =~ © oe a ee 3 he a a op @ - ww WJ A :S ae | j Se Rare ‘ Z ee 7 ee c es CH ESE bode GO od - - am r ar Mr Tm “ > AT nC ah dee eed a a a 2 A? ] are 5 . — 1 1+ : ; } - ‘ 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 ii ¢ 23 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. 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 SE 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. iv bh uy 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; V 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. vi 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 pa @ 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?) c? J @ 0 O C " c? 3 0 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 nn A 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 iV OD vi fp =) OQ. T DD 1" 2 : hie ] ; 4 ec in nis own nanadwriting "unwarranted", J > Cc? o% ) \v ey) Q. D a | W © > ‘2 c? ~~ O a = ey) ” q that Plaintiff's 20-year security clear- _ Q ™~™ a mc ~ 2 + \ an Q . ~~ el Yr * — 2 — \ s 4 hits s wa \ wy AALS ed } , ‘7 ae] - T T , mmnorc ~ ? ur am 1«. * = rg, re S 4 atei J 4am W awrat -_ raanay wnnre ec c - ay _ IWinle ur access to a =| e : — - . » | 20500 4 Lea Lick Lai f ~ ete - 5 / us . 2. { smry . 4 } 4» 'S e ead J , i | » i , _ . . ‘ : 7 : . ~ 2 = + > —— a. ee raul oOo Dri \.Signa ire | - fe _ * ’ ™ si QR Yr ry) > = = /e SP, = a > Ime iycso Vi1is _ trict Court hearing 4 LATS Gs L1iB- 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. 'r) b+ l ry . bd ae | * Testimony of Bernard L. Weiss, 13 7 “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 4 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, 5/ 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. 5 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. 6 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 7 ¢ 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. 8 y Kt 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- 9/ 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. UO WW 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" C t = 9 7 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. 10 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 a | 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. 11 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., 12 : " ... (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." 13 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 14 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- 16 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, 17 "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 18 _ 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 me 19 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. 20 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 ..." sa 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." 99 ee 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. ao McElroy, 367 U.S. 886 (1961), no liberty 23 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 24 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- aa 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." a 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) 0 0 1" 79) J + o — 0 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 Britt) was not a commander > +. as _™ A tt ) . 2 . : a - 7 i rararz Bele i 4. AFIS ZU yr ne commander of the duty "oOo « : . + . - = organization shail deter —- ar mine whether ... it is in -} + 7 . ‘ = the interest of national se = . ] ~ CUFIECY .c -O take interim . - . . ‘ se lea action to suspend suDdDiect’s - . ——, > _" =» access to classified infor ao ? sr ._2 + _ m Lion . 4 Empnasis acca io" Ty} 4 t rT : o , _ D the adverse action was no taken by a commander r tne second r _ ' . Lx or the Seconda Amendec mpiaint. itll fn WT) “anqwriting p aud S = t 1as acKnOWlecgec Caking tne suspension action ) it , 2 1% | “oO IRE — 4«F a =) _ an) “or y r 9 OY 72 era ’ = Ktoactrt 4 ide! ‘ cS wn “— m4 ser . > At > “Tee . ‘eae re | . 7 MEamMor.a Kirt Sele \ > er oT > | ene dw —- ; 2 e . aU | ‘ hear neo ‘* . “~—tT. : oA er Bele ing as + a > — sThar | +. + — WL sd “a _— naar ica sc i . c a“ + co S se tia OL er era rag - ¥ > - 4 4 «= ‘ act s “Terk y ‘ hoe : ~ 7’ oa - » 4 ec ~~ J 4 nrry LV 4S CoO > . = > + cad > 2 ior ot ica ‘ — " Acad ’ of _ ice my 7 es Dria ~— ct... AULaGi _ AF coca Lu « Weiss, 7 , 5 ry r Ls + 4 UU) . rictt ever | naer iti- CMD ? Ty : : Arn- ” ’ ’ . wy = fl a. ~ | ? 5 ares Ww SOT e mnhr Cc e Dnrase nr rT “mT. > c . + rel lis > ) 2 : o- “ La j sey li eT - , 7 = 2 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 ] P t on" st it io ie ~ . T ‘ ~ ArS ry The . e85c* i... > _ . . WaS Torwa eC 4 Q 5 . 5 . r — - —Tr wil 1uUu sTIG Tal we ss 5 ] > . , ’ ome q : ‘ - “4 r ’ r = a a 4 AS ’ ; LS wvUlle SS, ea .F.R. 8 297 for its civilian employees. Uy "ty es 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. 33 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. 36 e 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- 37 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 38 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, 39 ) | 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 VU a clear statutory right of Plaintiff to portions of the relief granted by the pre- liminary injunction. Although the Privacy ct 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- 'U } : @ 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- _-. 7 er Se . “~* .- - } ¢ : so Le \ 4 -~+ . . -_ Ua anil Aa ln \ Ly ier neoadtie tr A mR Vad ici itce * ie Lent _— x " so . — . a4 / - Abbe » | we | exe ec DV Ch ? OULU . . ie em- -~ ‘vYea tata ta ,+¢4 >- > - : ¥ pee f=) Or lertense nei ca & wrt ‘ i Ai A444 » ¥ emp Lovmen?t > _+ ~ sa i ~ a =) Qa rocarncin : i > 4- Saeeee' — > ‘ } inces + : _ —-_... LJ ~c., _— i ‘ lg mOoOwever, , rt. , > > . ) . ~." 7h > h . ’ s = , t) i | I eCWa i) ye = oo, ’ . . t St ] > , “7 = a > 2 Sse rate 2 YY -Or wr r ira ( —. ~Y “w - ‘ . : at “+ 4 ; > — ‘ . . j rire , y . | So + . ‘tra ror hehe . om, b ’ ; lI t | =" i=" mac te } - ‘ hiv il ral t r - - + . —_— Lé€ } oad + neramanrt« ~~... i A L Rit - ii ( ~ ~ Isso - 2 ; “w r ~ 2 ' . . - i ‘ | ew it ee Le Te i nie - Foy scar . ‘ ‘ : 7 ‘ . Ms = . , . . ‘ , 4 "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 g 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." A 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 Qty Taneafitea ans T y , + a 7c 9 UL ; ' 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 jr 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, 7) (\ \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, - + atitioaner Pro Se . > — 2 Sars ib > + ry R . 50 al sat + Lo Ri iiac a \ et > \ 1lifornia } ) ~ , Am ¢ } a > \ + i ae | - ne | . Doe , ~ . 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 iv Tanth Jirecuit Denial Of Petition Tor Zak ) - - ~~ Ss Letter, Dated » Plaintiff's June 1986 Hearing .. 6 W) 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- 1 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 2 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 3 "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 4 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- 5 ? 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 6 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- 7 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 8 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 9 , 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 v7 of Aerospace Studies for the years 1982 and 1983, Plaintiff was rated as excel- ling in safeguarding classified informa 1 tion and following established security} procedures. T ¥ 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; 12 a | 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 13 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 14 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: 15 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 16 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 17 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 21 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 @) rh 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 2? 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- 23 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- “ i ~ 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 £ d t the action was "adverse" to Plain- f Ct ‘emu * ‘ rs c r and under the Air Force's own reg- ns, required a final adjudication. fendant maintains that this was not eh! a 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. Fe 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- 26 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- 27 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 28 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 29 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 30 50 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) ba 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: ke 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- 33 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- j c? oa D 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. 36 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. 38 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 39 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 t4 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 41 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. 42 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 43 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 44 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 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- 50 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 + —————————— TT 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. RA 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- aa 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- ae tion. Furthermore, we:hold that, #., a 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 be 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. 56 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. LA 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; 59 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 Oo 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 60 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. 61 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 c? ive) c? ( ~0 ps ey) -- cr ae r? rt WY 7) @ 0 - a | ity clearance, be- cause of denial of due process and also because of the agency's failure to estab- 63 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 64 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 65 , _ 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 66 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1868%3A1. Public record. Not legal advice.