# Petition for Writ of Certiorari — Kanarek v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1878%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 379 U.S. 838 ## Text 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