Petition for Writ of Certiorari — Kanarek v. United States

Office-supreme Court, U.S.”

‘ ; nae ' FILED:

pn JUL 15 1964

, te SOHN FDA. CLERK

a IN THE

Supreme Court of the United States

— October Term, 1964

9

IrvinG A. KANAREK,

, Petitioner,

US.

UNITED STATES OF AMERICA,

Respondent.

PETITAON FOR WRIT OF CERTIORARI TO

THE|UNITED STATES COURT OF CLAIMS.

IRVING A. KANAREK,

14416 Victory Boulevard,

Van Nuys, ‘alifornia,

Crunusel for Petitioner.

y, 7 ee

Parker & Son, Inc., Law Printers, Los Angelus. Phone MA. 06-9171.

SUBJECT INDEX ,

Pes Pe eee

“Citation to opinion We oo. iS osdchchaeaas Sreeanitais oe

a ea ee ae = 3

. (Questions presented coed PE ie TE MS DAAC en Zz

Conctitutioriat provisions, statute and regulations in-

volved (See Appendix BB) sssicgnnlinstnnion svenosatonia Bae See i

Statement .......: Renmiestncacets Saemasterd | Pasarela pinasetas eerenaiat : 4

Reasons for granting the writ 0.0... Speen ee

SN ee peaarecsen mcceeactrconsemehe too nee asuactnvioon eS,

Appendix “A*. Opinion of the United States Court

pennant a Srl Pe TAS AAAS 6 a VANE ate OP 1

Appendix “BY. Constitutional provisions. statute

and provisions of regulations invelved —..... ae

"TABLE OF AUTHORITIES CITED ~

i ESSE ae eee eS e”

ie Page

Caltex, Inc. v.: Deltas ‘States, 100 Fed. Supp. 970,

tie IE santhinssnieistinennecnnsassnasesan Raicsnsntisioninsesess ‘BB

Dooley v. The United States, 182:U. S. 222 ............ 11

Dupree v. United States, 141 Fed. Supp. 773 13, 14, 15

Greene v. — 360 U. S. 474... 2 3% 3, it

TadsSie Sicdiadeaiciassacaibasuteladaasilbisshinnainsiaee setalinésachiancnsliy Galy 0%

vor v. Dollar, 330 U. S, PE cardia ticecan ened hte 12

Larson v. Domestic and Foreign Commerce Cor-

© poration, 337 U. S. 682 .......---.escescseceseneeesenceneensenes 12

Parker v. Lester,-227 J - Paeeeeoe iS ios

- Peters v. Hobby. 349 U. S. 331 ......... a 2, 14, 15

Public Utilities Commission v. United States, 355. .

IE: IE SUI saenisiieeshueh alli tisiclgdiinaasnincaeasiniebncsnichasetinnannobisacsabiasinn or

United States v. General Motors iil 323

Sais SUE ATE lid iat celia chpialibandsbeiltadameneanandlbhohanensienstiadaiccs 12

‘Wieman v. Updegraff, 344 U. S. 183 ................2, 14

~ Miscellaneous |

Federal Register, Title 20, p. 15540 o.....ecceccsseecceseeeees 2

Statutes |

United States Constitution, Fifth Amendment ....3, 10

‘clea RASS OE SNe: UR ae pe COS | A |

United States Constitution, Title 28, Sec. 1255(1) .. 2

United States Constitution, Title 28, Sec. 1491

11

*

~

~

Z%

a

“IN ‘THE

‘Supreme court of the United States

v

B ascaee! Term, 1964

Irvine A. KANaRrEK,

Petitioner,

US.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO ~»

THE UNITED STATES COURT OF CLAIMS.

-

To the Honorable Chief Justice Earl Warren, and

to the Honourable Associate Justices af the Supreme

Court of the United States:

Petitioner prays that a Writ of Certiorari issue to re-

view the judgment of the United States Court of

Claims entered in the above-entiled case on March 6,

1963; a timely Petition for Rehearing, filed April 5,

1963, was denied on April 17, 1964.

Citation to Opinion Below.

The judgment of the aforementioned United States

Court of Claims was entered on March 6, 1963; con-

currently with the entry of judgment said Court of

Claims filed a written opinion which is the only one

in this case. Said opinion is reported at 314 Fed. 2d

802. The certified record which accompanies this Peti-

tion for a Writ of Certiorari includes said opinion

[R. 146-151]. (See Appendix A, pp. 1-8).

aul ail

' _~ Jurisdiction.

As stated, supra, the Court of Claims judgment was

entered, with - written opinion, on March 6, 1963, and

timely Petition for Rehearing was filed on April 5,

1963; on April 17, 1964, the Petition for Rehearing

was denied without written opinion, by said Court of

‘Claims. The jurisdiction of this Court is invoked under

28 U.S. C. 1255(1).

. Questions Presented. _ :

A. Whether the United States Court of Claims has

power to invoke thie provisions of “The Industrial Per-

sonnel! Security. R&ipw Regulation” (Department of

Defense Directive 5220.6) termed Program “B” for the

sake of convenience in this Petition for a Writ of Cer-

_tiorari (set forth in 20 Federal Register 1554), and

‘its antecedent “The Industrial Personnel and Facilities

‘Security Clearance Program,” termed Program “A” for

the sake of convenience in this Petition for a Writ of

Certiorari, to evaluate the measure of nionetary recovery

of petitioner whose security clearance while employed at

North American Aviation, Inc., was: withdrawn with-

out authority by the United States, with the consequent

pinning on him of a lifetime “BADGE OF IN-

FAMY”,* in view of the fact that this Court holds in

Green v. McElroy, 360 U. S. 474 at page 504, that

Program “A” and Program “B” consti ute an “elab-

orate clearance program” which was unauthorized. In-

cluded in this question is whether there was, in fact,

*Language used by this Court in W’ieman v. Updegraff, 344

U.S. 183 at 191 (involving a State Civil Service employee) and

Peters v. Hobby, 349 U. S. 331 at 347 (involving a professor of-

~ medicine employed as a Spécial Consultant™by the Federal Gov-

ernment). . .

ro oe

any administrative remedy whatsoever available to pe-

titioner [See Public Utilitics Commission v. United

States, 355 U.S _ 534 at 539 and R: 121}.

B. Whether 28 U.S. C. 1491" prov ides a basis or

bases for monetary recovery by petitioner due to the

unauthorized withdrawal of petitioner's. security clear-

ance by the United States. Included in this question

is whether the due process clause of the Fifth Amend-

ment constitutes a basis for recovery and/or whether

the just compensation clause of said Fifth Amendment

constitutes a basis for.recovery.

C. What are the criteria which must -be used to

evaluate 'the extent of petitioner's monetary recovery

for the damage resulting te: him froni the unauthorized

withdrawal of sectrify clearance by the United, States?

——

id

Constitutional Provisions, Statrte and Regulations

Involved (See Appendix B).

A.* The Constitutional provisions ideal: are the”

due process and just compensation clauses of ‘the Fifth

Amendment. — . :

B. The Statute involved is 28 U o. C. 1491.

"C. The rezulations involved are ©

1... Industrial Personnel and Security Clearance .-

Program [R. 42-00], held a in

Greene @. McElroy. 300 U.S. 474. |

iS

lations, Department of -Defense Directive

No, 5220.6, held unauthorized in Greene @.

McElroy, 3600 U.S. 474. | Ex. 2 attached to

“Defendant's Reply to Plaintiff's Objections

ty Defendant’s Motion to Dismiss” and re-

ferred to at R. 68].

Industrial Personnel Secliw Review Regu- .

3 .

({n this Petition for a Writ of Certiorari 1, supra, is ©

termed program “A”, and 2, supra, is termed Program ‘

“1”; the purported Monetary Restitution provisions of

these two programs 7.e set forth in Appendix B).

-

Statement.

On April 1, 1958, petitioner filed a timely Petition

with the United States Court of Claims [R. 1-6]. This

Petition has a Court of Claims Docket Number 139-58.

The jurisdiction of the Court of Claims was invoked be-

cause the security clearance oi: petitioner “was revoked

by the purported authority of Program “A”, a ‘regula-

tion promulgated by the Secretaries of the Army. Navy

and Airforce on May 4, 1953 [R. 42-00].

Prior to and including July 12, 1954, petitioner was

employed at Los Angeles, California by North American

Aviation, Inc., hereinafter referred to for convenience

as North American, as a Research Engineer. Prior to |

and including July 12, 1954, petitioner. was possessed

of a security clearance authorizing petitioner to have ac-

cess to classified security information up to and: includ-

ing material and information classified as Top Secret.

‘On or .about July 12, 1954. petitioner and North

‘American were informed by the Screening Divjsion of

the Western Industrial Personnel Security Board. pur--

_portedly an agency of the Department of Defense of

the United States Government. that the granting of

clearance to petitioner of ‘Access to classified security in-

formation was not clearly consistent with the interests of

national security. Petitioner was'suspended without pay -

en or about July 12, 1954 by North American as a

result of said action of said Screening Division. Peti-

tiener’s salary -at the time of said suspension was.

$710.00 per month.

After a hearing before the Appeal Divisioh of the

Western Industrial- Personnel Security. Board, “ peti-

tioner and North American were informed on or about -

September 29, 1954, that granting petitioner access to

classified information was not clearly consistent with

the interests of national security.

On or about September 6. 19554the Industrial -Per-

sonnel Security Review Board -determined that the

granting to petitioner of clearance for access to classi-

fied information was clearly consistent with the interests

of national security. This Beard was purportedly

operating: under Department.of Defense Directive No..

5220.6 (termed Program “B” herein). { Referred to as

Ex. 2 at R. 68]. the ef fective date ‘of which was April

3. 1955. The aforementioned Directive’ purportedly

superseded, the Industrial: Personnel azid Facility Se- -

curity Program (termed Program “A"*herein). Both of

these Programs were found to*be unauthorized by

. this Court-in Greene v, McElroy, supra... Notwithstand-

ing, the determination of the Industrial Personnel Se-

curity Review Board (on or about September 6, 1955).

that the granting td petitioner of clearance for access

to classified information was clearly consistent with the

interests of national security, petitioner was’ not re-

granted access ,to information classified as Secret until

on or about February Y. 1958 while ‘emploved at Radio-

plane Co. po | ee e:

Due to the fact of the withdrawal of security clear-

ance petitioner was completely deprived of employment -

utilizing his technical skills -from July 12. 1954 ta April

9. 1956, During the period September 21, 1OR5 to

April 9, 1956 petitioner had nc earnings. “wl

a

During the period April 9, 1956 to January 21, 1956

Petitioner was employed at Lockheed Aircratt Corp...

Missile Systems Division, but notwithstanding the -ac-

tion of the Industrial Personnel Security Review Board

of on or about September 6, 1955, and the letter ot

September 15, 1955 sent. to the Headquarters Air Ma-

teriel Command [R. 127], the United States did not re-

grant petitioner. Secret clearance while he: petitioner,

was employed at Lockheed. j

Due. to the tact of withdrawal of security clearence

on or about July 12, 1954 and the fact that petitioner

Was not successful tn obtaining re-grant of security

ciearance to the Secret level (at North American pett-

tionershad a Top Secret security clearance) until on

or about February 7, 1958, petitioner has been exten-

sively and permanently damaged due to withdrawal of

his security clearance. Due to the fact of withdrawal

of security clearance on or about July 12, 1954 ain the

fact that petitioner was not successful in getting the

re-grant of security. clearance to the Secret level until

on or about February 7, 1958, petitioner has lost for:

ever irreplaceable experience-time in the field of rocket

propulsion research in which field he had been engaged:

The withdrawal of security clearance disloged petitioner

tron: the field of rocket propulsion research and the

entire field of rocket propulsion, research and other-

Wise, with consequent extensive and permanent dainage

tohim. . .

Petitioner is co-inventor of a patent (No, 2,760,845)

entitled “Stabilized Fuming Nitric Acid.” a material

now ‘extensively used as a propellant.(oxidizer) by the

United States Government in jet propulsion Griven ve-

hicles, such as vehicles driven by certain rocket engines.

et: a

This invention ‘also has nen- jet propulsion uses. Peti-

tioner is inventor of a patent (No. 2.930.684) entitled

“Propellant Combination Including Liquid Fluorine and .

Liquid Oxide Oxidizer.” Since these inventions Gc-

curred during t the course of research work while peti:

sioner was at North American, petitioner's interests in

said patents were assigned to North American, Never-

theless, North American has had 2 policy of making

certain monetary award@ to each inventor m connec-

tion with each of his inventions provided the inventor

is on the payroll ‘at the time of- the issuance of the

patent. The “Stabilized Fuming Nitric Acid” patent

referred to, supra, was issued on August 28, 1956:

the “Propellant Combination Including Liquid Fluorine

and Liquid Oxide Oxidizer” patent referred: to, supra,

was issued on March 29, 1960. Other patent disclosures

both classified and unclassified, were made to North

‘American by petitioner. Atleast two of said disclosures

have resulted in the issuance of-Setrecy Orders. by the

United States Patent Offices (Said Secrecy Orders are

themselves not classified. They are. transmitted by

ordinary mail and are not labeled as classified “matter.

No patent can issue from a disclosure covered by a

Secrecy Order, regardless of the patentability ot the

subject matter. until the Secrecy Order is, lifted. )

The fact of withdraw al of security Cenanee imposed.

and still imposes. a “badge of infamy" upon petitioner.

By way of illustration. reference is made to a paper

which was presented to the American Rocket Society at

its fall meeting, September 18-21, 1935, at Los Angeles.

California, by North American personnel. © This paper.

entitled. “Generalized Solution of the Theofetical Spe-

cific Thrust of a Rocket Motor for the C-H-N-O-F

—s—

Atomic System,” did not include petitioner as a co-au-

thor because of the fact of the withdrawal of his se-

curity clearance. | .

Due to the fact of withdrawal of security clearance

on or abeut July 12, 1954, employment, professional, and

other opportunities for petitioner have been permanently

and extensively damaged and limited. Petitioner did

not obtain re-grant of security clearance to the Secret

level until on or about February 7, 1958. -Petitioner’s

employment and professional opportunities in space age

industries and’ organizations, including, but not limited

to. the National Aeronautics and Space. Administration,

the Jet Propulsion Laboratory, Convair, a Division of

General Dynamics Corporation, the Ratito-Wooldridge

Corporation and its affiliates, and the Douglas Air-

craft-Company. Inc., have been permanently and ex-

tensively damaged. Due to the fact ef the withdrawal

of security clearance petitioner has lost forever the ca-

pacity to reach levels of financial recompense in both

scientific and non-scientific activity consistent with his

unique and highly specialized training, abilities. and ex-

perience, whether said activity requires security clear-

ance or not.

e

Petitioner alleges that he has been damaged in the

sum of at least $163,831.00. ;

On August 1, 1958, the detendant made a Motion to

Dismiss Plainutt’s Petition [R. I-6] for the alleged

reason that it failed to state a claim upon which re-

view can be granted. On November 19,°1958, in re-

sponse to this Motion to Dismiss, petitioner filed a brief

entitled “Plaintiffs Objections to Defendant's Motion

to Dismiss.” [R. 11-060]. (On December 3, 1958, pe-

tttioger filed certain corrections involving clerical errors

I~

nadie

[R. Ol- -62] to “Plaintiff's Objections to Detendant’s

Motion to Dismiss.) On October 14, 1959 defendant

filed “Defendant's Reply to Plaintiff's Objections to

Defendant’s Motion to Dismiss” [R. 63-94}.

~ On May. 12, 1961, petitioner: filed “Plaintiff's Re-

sponse Brief to Defendant's Reply to Plaintiff’s Objec-

tions to Defendant's Motion to Dismiss” [R. 95-122].

On June 5, 1961. defendant filed “Defendant’s Sup-

plemental Documents and Citations” [R: 123-128].

On June 5, 1961, petfioner moved to have the Peti-

tion deemed amended by the incorporation of certain

matter already before the Court and said Motion was

allowed on June 19, 1961 [R. 129-131].

On June 30, 1901, .atter oral argument before the

Court. by the parties. the Court suspended turther pro-

ceedings pending petitioner's “pursuit and completion

of the administrative remedy available through the De-

partment of the Airforce.” which remedy petitioner con-

tended. and now contends, is. in Tact. tio remedy at all

and unauthorized (see Sec. VIL. p. 23-et seq. of “Plain-

tiff’s Response Brief to Defendant's Reply to Plain-

tiff’s Objections to Detendant’ s Motion to Dismiss”

[R. 118-122]. wherein it is pointed out that there was

not any administrative remedy to exhaust since, iter

alia, Program “A” and Program “B.” supra, were un-

authorized. )

On December 7, 1962. defendant filed “Detendant’s

Supplemental Briet and , Exhibits, Following Admints-

trative Action” [R. 133-139]. where detendant purport-

edly determined that $4.677.52 was the maximum that

petitioner can recover. Petitioner filed ‘Plaintiff's Re-

spose to Defendant's Supplemental Briet and xhibits

*

%

—10—

Following Administrative Actian” [R. 140-142] on Feb-

ruary 4,.1963, and the affidavit of petitioner [R. 143-

145] on February 5, 1963. which affidavit reiterates the

fact that Secret clearance was not restored until Feb- .

ruary 7, 1958 [R. 145]. It was NOT restored on Sep-

tember 21, 1955. as Set forth in the Court of Claims’

judgment and opinion [R. 147]. The Top Secret level

of clearance was never restored | R. 145].

On April 5, 1963, petitioner filed a timely request

for a rehearing by way of “Motion ter Rehearing, Mo-

tion tor Alteration of Judgment, Motion ‘tor Amend-

ment of Judgment, and Motion for New Trial” 'R. 152-

159| which was opposed by “Detendant’s Response to

Plaintiff's Motion for Rehearing, Motion for Altera-

tion of Judgment, Motion for Assignment (sic), and

Motion for New ‘Trial’ [R. 160]. Petitioner's request

for a rehearing was denied on April 17, 1964 [R. 161-

162]. more than one year after the timely request was

filed.

Reasons for Granting the Writ.

The present paucity of judicial authority on the im-

portant question of the lability of the United States to

the eniplovee of a contractor of the United States,

where said employee's security clearance has been with-

drawn: without authorization, warrants review by this

Court of the instant case to determine the extent of the

obligation of the United States under the Fifth Ameid-

ment and or under 28 U.S!) C. 1491 to Petitioner in

view of the fact that said petitioner’s security clearance

was withdrawn without authorization. (About eight

years ago there were 3,000,000 employees and 22,000

private contractors involved in employee-contractor se-

—ll—.

curity programs [R. 18] ; today there are si outils both

mare employees and private contractors. ) Said security

clearance was held by petitioner at a time when he was-

‘an employee of North American Aviation, Inc., a con-

tractor of the Uni.ed States.. This question has not

been decided by ba Court. In Dooley 7. The United

. States, 182 U..S. 222 at 224. this Court, in referring

to an earlier version of. gre is now 28 U..S. C. 1491.

stated that the statute contemplated eae classes

of cases.” and near the botton’ of page 228 in Dooley

this Court clearly sets forth that even if a particular

case appears to be ruled out under one séction of the

statute, it may still fall within another section.

1. The instant case presents the question of what

criteria shall be usedim determining the measure of re-

covery of an employee of a contractor of the United

‘States when said emplofee has his security clearance

withdrawn without authorization by law: petitioner con-

tends that the Fifth Amendment. by way of the due

process and just compensation-.clauses, and 28 U.S. C.

1491, provide several independent bases fur the obliga-

tion of the United States to pay tor damages resulting

from the unauthorized withdrawal of security clearance

of a.contractor employce. This Court has not decided |

what criteria shall be used as a measure of damages

‘for the unauthorized withdrawal of, security clearance.

nor has this Court decided what legal basis or bases shall

be used to impose upon the United St: ites the obligation’

to pay for unauthorized withdrawal of security clear-

ance of a contractor employee, Tt is respectfully sug-

gested that this Court should re\ iew the decision of the.

Court of Claims in view of the fact that notwithstand-

ing this Court’s decision m/ Greene @. Mekiroy, 300

U. S. 474, that the purported security programs used

to withdraw security clearance of petitioner were unaw- .

authorized, the.Court of Claiins. nevertheless, purport-

edly used the monetary restitution provisions of those

security programs in determining the extent of pay ment

to be made to petit ioner. Petitioner claims at least $163.-

381 should be paid to him whereas the Court of Claims

has authorized payment of $4,077.52 plus the possibil--

ity of a maximum additional amount of only $5,580.48

[R. 151.-ineluding footnote, and R. 3, Item 13 in the:

original. Petition before the Court of Clsims]. This

Court will grant certiorari following a judgment by the

Court of Claims granting to a plaintiff the right to re-

cover even though said Courts of Claims has reserved

for further proceedings its determination as to the exact

amount of damages. ‘Caltex, Inc. v. United States, 100

Fed. Supp. 970 at 980, reversed, 344 Ul S. 149. Further-

more, this Court has acted where tihere is some im-

‘ portant and clear cut issue of law that is tundamental

to the further conduct of the case and that would other-

wisé quality as a basis for certiorari, despite the -inter-

locutory status which the case may have in the Court

below. heer States 7. General Mctors Corporation,

323 U. S. 373 at 377; Land v. Dollar, 330 U. S. 731

at 734. 1 note 2; Larson 7, Domestic and Foreign Com-

merce Corporation, 337 U. 5S. 682 at 684, note .3. In

the instant case there are such fundamental issues:.

(1) What is or are the legal basis or bases for re-

covery? (2) Whether the Court of Claims had the

power to invoke the monetary restitution provisions of

security programs which this Court has found to be

unauthorized. Greene v.. McElroy, supra, and (3)

whether there is. in fact, an administrative remedy: in

_

~ oe

view of the procedure available, or rather lack of it.

The Court of Claims has stated in its opinion [R. 146]

that the determination ‘and opinion of March 6. 1963.

constitutes a. determination of the petitioner's entire

claim. Despite Greene v7. McElroy, supray and the fact

that, in: fact. there was no administrative remedy avail-

able-through the Department of the Airforce [R. 118-

122]. the Court found an administrative remedy to exist:

[R. 146]. It*is noteworthy in_ this regard that no-

where in thé Court of Claims decision and judgment

[R. 146-151] is there any discussion or analysis of the

principles of Greene v. McElroy, supra, nor for that

matter any mention of the case whatsoever. |

2. In the decision it is stated [R. 147| that peti-

tioner s security clearance was restored on September |

21. 1955. This is not the fact. During ihe first part

of September, 1955, the Industrial Personnel Security

Review Board determined that the granting of clear-

ance to petitioner “for access to classified information

is clearly consistent with the interests oT national se-

curity” [R. 126}. Although the Conimiander, Ilead-

quarters Air Materiel Command. Wright Patterson

AFB, Ohio, was zilegedly inst-ucted to issue clearance

for access to classified inforfnation to petitioner by way

of letter dated September 15, 1985, clearance did not re-

sult therefrom: but. rather. it was not until on or about

February 7, 1958, that petitioner was cble to obtain a

re-grant of security clearance to the Secret level [R.

2, Item 9}.

3. The Court below laid great sstress in its decision

on Dupree 7. United States, 141 Fed. Supp. 773. 136

Court of Claims 37 [R. 148-149]. In Dupree. how-

ever, the regulations under which Dupree was denied

ee Yee

security clearance were promulgated with express statu-

tory and executive authority, 136 Court of Clainis 57 at

58. This Court, as set forth, supra, by way of Greene v.

McElroy, found the security ‘programs which were ap-

- plied to petitioner to be without authorization. This

Court should grant certiorari in the instant case in view

of the {act that’ without such grant there is no appellate

review possible of the Court of Claims decision in ‘the

instant case, and the law, and novel premise. would be

settled, without judicial review, that unauthorized

regulations can purportedly be tused to determine the

criteria for recovery [Bottom of R.- 149 to top of R.

150. and note 2 at the bottom of R. 08; also, see Ap-

pendix A. p. 6]; such procedure, offends due process

under. the Fifth Amendment as did the unauthorized

withdrawal of security clearance; notwithstanding the

statements in / Jupree JR. 148 and Appendix A. pp. 3-4],

petitioner contends that the right to follow @ awful —

calling is Constitutiona!lly protected and hence his/ claint

is one founded upon the Constitution. This is\ borne

out by Parker v. Lester, 227 F. 2d 708 at 717 where

the Court states, referring to privately employed mer-

chant seamen, that the liberty to follow their chosen

employment |

“is no doubtsa right more clearly entitled to Con-

stutional protection than the right of a Government

employee to obtain or retain. his job.”

Thus, there is a fundamental conflict between the Court

of Appeals tor the: Ninth Cireuit and- the Court of

- Claims; furthermore, it is urged that the position of

the Court of Claims is inconsistent with that cf this

Court in Wieman v. Updegraff, 344 U. S. 183, and

Peters v. Hobby, 349 U.S. 331 (see footnote at bottom

er | Sen

of p. 2, saprels: in ‘that, aS Stated’ by Mr. Justice® Doug-

las in his concurring opinion in Pe ters v. Hobby, supra,

at 351. :

“We deal here with the reputation of men and their

right to work—things more precious Gap property

a . ’

The Conn of Sadan in its decision in the instant case.

quoting from its own decision in Dupree, supra (Ap-

pendix A, p. 4) asks the question.

“did plaintiff lose his means of livelihood because

of the alleged violation. of his constitutional

rights?” | :

In the case of petitioner the answer must be “ves”

since, except for the violation of due process by way «if

the unauthorized withdrawal of the security clearance

vested in him. petitioner would not have been severed

wom North’ American and dislodged from the rocket-

propulsion field.

Conclusion.

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted.

TrvING_A. KANAREK,

Counsel for Petitioner.

APPENDIX “A”.

Opinion of the United States Court of Claims.

In the United States Court of. Claims.

No. 139-58 |

(Decided March 6, 1963)

Irving A. Kanarek v. The United States.

Rex M. Minter tor plaintitt.

_ Lawrence S. Smith, with whom was electing Assistant

Attorney General Joseph D. Guilfoyle, tor defendant.

Before Jones, Chief Judge; Whitaker. Judge; Lara-

more, Ji:dge; Durfee, Judge; and Davis, Judge.

On Defendant's Motion to Dismiss Plaintiff's Peti-.

tion ,

‘ Laramore, Judye, delivered the opinion of. the court:

_ This case originally came betore the court on detend

ant’s motion to. dismiss. The court, at that time.

suspende| the proceedings until plaintiff had exhausted

his administrative remedy through the, Department of

the Air Force.

Plaintiff thereafter pursued said remedy. and_ the

Secretary of the Air Force approved the claim in

the amount of $4.677.52.

On July 23, 1!

of proceedingy

. plaintiff moved that the suspension

x lifted and that the court set the

matter dowii for argument. This motion was premised

on the contention that more money is due. plaintiff.

ans The administrative recommendation of $4,677.52

was unacceptable to him. By order of court, this

motion was allowed and, after filing of certain addi

= eae

tional exihibits by defendant,’ the case was assigned

for argument.on the validity of plaintiff's claim.

- Thus the case n0W before us calls for a determination

of the entire claim of | plaintiff as alleged in his

petition. | : | }

It is plaintiff's claim that in nadia to loss of wages

diring the period his security clearance was withdrawn,

he is entitled to a much greater sum representing dam-

ages suffered because of lost merit raises and general

increases. damages based on a linear ‘increase in earning

power, loss of experience -in the field of rocket pro-.

pulsion research, loss of a bonus resulting from an

invention of plaintiff, damages because of certain patent

disclosures. by North American Aviation, Inc.. and for

-. damages occasioned by loss of employment opportunities.:

Plaintifi alleges his action arises under Article II

of the Constitution of the United States, the Firth

Amendment thereto, and section 1491,’ Title 28 U.S.C,,

‘the general jurisdictional act relating to the Court

of Claims.

The facts are these: On Juiy 12, 1954, while

employed as a researeh engineer for North American

Aviation. Inc., plaintiff's Government clearance for _

access to classified security information was with-

drawn. On September 21, 1955 it was restored. .

North American Aviation. Inc., was a Government -

contractor and had, on April 6, 1953, entered into

a written security: agreement with the Government.

containing various provisions for the safeguarding of

Panienmuate as the defendant filed exhibits to support its motign®,

to dismiss. we now treat the Government's tmotion asa metion

for summary judgment. Rule 16(b) of the Rules of this court.

classified security data that would come arco its posses-

sion in the course of its performance o¥ Government

contracts. One of these provisions was that the Govern-

ment agreed, upon” application of the contractor, to

designate employees. of the contractor Who could have

access to certain types of classified security information,

W ith the exception of plaintiff's claim for loss of

wages, we are of the opinion that plaintiff’s Gaims

are unfounded, and ‘we will dispose of -such claims at

the outset,

Plaintitf first: contends that his claim _ an inde-

pendent ‘contractual basis in that he is a third party

beneficiary of the security “agreement: the Government

had with North American Aviation.: Ine In this

respect, plaintiff cites no legal authority, and we know

of none favoring plaintiff. On its- face, the agreeme nt

between the Government and ‘the contractor was de!

signed to protect the interests of the UC nited States and

not an employee of the contractor as plaintiff argues.

Furthermore. it is apparent that there was no privity

between plaintiff and the Government, and since’ his

alleged injuries were the result of dealings between the

United States and the contractor, thete is’ no basis for

a contract implied or in tact between plaintift and the

United States. ; - , |

‘Nor can plaintiff base a claim upon the due process

clause of the Constitution, . It Was so held byg this

court in Dupree v. United States. 136 Ct. Cl. 57."

: .

In this case the court stated. at page G1:

We are. nevertheless, of opinion that his petition

‘is insttf fic ient Jo state a cause as one teunded on)

a *S

the Constitution. ~ If it is possible at all in a

x

case such as this to state a case founded on the

Constitution, it would, at least, be necessary to

allege Yacts. to show that, except for this violation

of his constitutional rights. the certificate would

have been granted him, and he would have been

permitted to follow his vocation ‘and: would have

earned the wages tor which he sues.

It is hardly conceivable that such a case could

be stated, and, even if it could be done. we seriously

doubt the right of a citizen to recover a money

judgment in such a case. But, assuming such a.

case could be stated; the question*is, did plaintiff

lose his means of livelihood because of the alleged

violation of his constitutional rights ? Otherwise

stated, is it necessarily true that the certificate

would. have been issued to him it his alleged

constitutional rights had been respected, that is,

had he been contronted by his accusers.

How can we know? Suppese he had been con-

tronted by his accusers and they had testified to

the things alleged * * *: and that after these

witnesses had been subjected to cross-examination,

the Commandant had still believed their testimony,

undér these circumstances must he have granted

the certificate? it this does not follow, plaintiff -

has not stated..a case. Plainly it does not follow.

The Dupree case and this case are strikingly similar.

Dupree’s security clearance was withheld; plaintiff's

security clearance was withheld. Here, as in the Dupree

case. nothing is present, alleged or proved, to convince us

that

under anv. circumstances plaintiff's certificate

would not have been removed or would have been

.

‘

‘

lance

granted him so that he would have been permitted to

follow his vocation. Having failed to allege and prove

the necessary allegations under the criteria of the

Dupree case, supra, plaintiff cannot recover under the

due process clause of the Constitution.

Nor has plaintiff stated’ a case under the just

compensation clause of the Fifth Amendment of the

Constitution. The action taken was simply the issuance

of a regulation designed to protect the United States

and action taken thereunder to withhold the security

clearance. Its purpose was not to take ‘property for

public’ Use, NOT Was property taken for public use w hich

is essential to a Fitth Amendment taking.

Since there can be no recovery in this case under any

article or amendment of the Constitution of-the U nited

States,.and absent a contract between plaintiff and the

United States, plaintiff's only alternative: for recovery,

with the exe eption noted ear lier relating to loss of wages.

would be under a statute, or a regulation, or for Jiqui- .

dated or unliquidated damages for cases not sounding

in tort. 28 U.S.C: $1491,

No statute or regulation is called 40 OUr attention:

and we know of none whith could form the basis of

plaintiff's claim. Consequently, plaintifi must als

fail on this aspect of the case. Ss 7

Respecting the portion of the statute which permits

‘suits for liquidated or unliquidated damages for cases

not sounding in tort. twe decisions of the Court of

Appeals for the Third Circuit? are significant. The

facts.of the above cases are very similar to the facts

“Dupree v. United States. 247 F. 2d 810: Dupree v. l nited

States, 264 F. 2d 140.

yee

.

a

—6—

in this. case, and the court therein clearly recognized

and treated the alleged actionable conduct of the de-

fendant as a tort. Recovery was denied because the

Federal Tort Claims Act specifically precludes recovery

if this particular category of torts. We can see no

distinction between the two above cited cases and the

case at bar. If it was a tort in the case of Dupree,

it is a tort in the instant case, and. since the statute

specificaily exludes tort claims from our jurisdiction,

plaintiff cannot recover undér this court's general

jurisdictional act, si¢pra.

This brings us to plaintiff's claim for wages lost

by reason of the withholding of his security clearance.

Paragraph 26, Industrial Personnel Security Review

Regulatign, Department of Defense Directive 5220.6;

dated February 2, 1955, as amended, authorized the

secretary of the department concerned to settle reim-

bursement claims in appropriate cases resulting from

the suspension of a contractor employee's clearance.

As noted earlier, plaintiff's security clearance was

restored September 21, 1955. Pursuant to tins court's

-order, plaintiff pursued his ‘administrative remedy and

the Secretary of the Air Force approved. the claim in

the amount of $4,677.52. covering the period: July 12.

1954 to January 29, 1955. less outside earnings. He’

did not grant the claim for the balarice of. thy period

January 30. 1965 to September 21, 1955. because

plaintiff failed to furnish satisfactory evidence to

reasonably demonstrate a deligent interest in securing

oa Ee

employment and availability therefor. It was pointed

out to plaintiff in the lettei allowing his claim in part

that he drew unemployment compensation benefits from

the State of California up to January 29, 1955, but

they were terminated on that date, presumably because

he failed to qualify for them under the unemployment |

code of that state, and that he did net contest or

otherwise dispute such action. This was the only

evidence concerning plaintiff's efforts to obtain em-

ployment during this period.

At the time of oral argument. plaintiff was granted

the opportunity to file an affidavit concerning his ef-

forts to obtain employment and he thereafter did

file such an affidavit. In his affidavit he avers that

while he is now unable to state with precision the

particular times, he did make efforts to secure employ-

ment and he lists the names of certain organizations

to which he applied. He also avers that his efforts were

- to no avail. He also avers that menial employment. such

as dishwashing as suggested by the Department of Em-

ployment of the State of California. was not..s ught,

and that he was always ready. willing and able to work

after July 12, 1954. |

We are of the opinion that a person with the scientific

background of plaintiff should not be forced to take

jobs. so far below his level of mtelligence and level

of his former employment in order to avoid the impli-

cation of failufe to seek employment. We are further

of the opinion that in consequence of his affidavit. a

i

,

—

question of fact now exists which cannot be disposed

of except by a trial before a commissioner of this court.

Consequently, we now remand the case to a commis-

_ sioner for a determination cf the unresolved question

of whether or not plaintiff actually did attempt to

obtain émployment in the period. January 30, 1955 to

September 21, 1955.°

On all other_phases of the case, defendant's motion

for summary judgment is granted, and plaintiff's

' petition with respect thereto is dismissed.

7

31f plaintiff prevails, he. of course, would be entitled to recover

loss o1 wages fur this period in addition to the administrative de-

termination of $4,677.52.

a

APPENDIX “B”.

Constitutional Provisions, Statute and Provisiors of

Regulations Involved.

Due Process Clause of Fifth Amendment

nor shall any person

“be deprived of litg, liberty, or property, with-

out due process at law;”’

Just Compensation Clause of Fifth Amendment

“nor shall private property be taken for public use,

without just compensation”.

Portion of 82 U.S.C.8491 pertinent in the instant case

“The Court ot Claims shall have jurisdiction to

render judgment upon any claim against the United

States founded either upon the Constitution, or any

Act of Congress. or any regulation of an execu-

tive department, or upon any express or implied

contract with the United States. or for liquidated

or unliquidated damages in cases not sounding in

tort.”

Purported Monetary Restitution. Provisions of Regula®

tions Held Unauthorized in Greene v. McEvoy, Sov

U.S. 174, a

“Industrial Personnel and Security Clearance Pro-

gram (reterred to as Program “A™ in this Peti-

tion for Writ of Certiorari, )

“23. Monetary Restitution: in cases where a

tinal determination is favorable to a contractor-

employee (but not a contractor), the Appeal Divi-

sion will instruct the Executive Secretary to rec-

onmnend to the Department whose ageney origi-

—id—

nally referred the case that . the contractor-

employee be reimbursed tor any loss of earnings

~. resulting | directly from the denial or revocation of

clearance during the interim in an amount not to

exceed the difference between the amount he

would have earned at the rate he was receiving

upon the date of the initial denia! or revocation of

clearance and the amount of his interim net

earnings.”

“Industrial Personnel Security Review Regulation

(Department of Detense Directive No. 5220.6) re-

ferred to as Program “B” in this Petition for

Writ of Certiorari.)

“26. Monetary Restitution: In cases where a

final determination is favorable to a contractor

employee, the department whose activity origi-

nally forwarded the case to the Director will re-

imburse the contractor employee in an equitable

amount for any loss of earnings during the in-

terini resulting directly from <a suspension of

clearance. Such-amount shall not exceed the dif-

ference between the amount the contractor em-

ployee would have earned. at the rate he was re-

ceiving on the date of suspension and the a-nount

of his interim net ¢arnings. -Ne contractor em-

ployeg shall be compensated for any increase in

his loss of earnings caused by his voluntary ac-.

tion in unduly delaying the processing of his case

under this regulation.”’