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

Supreme Court, U.S.

FILED

951498 MAR 1 3 1996 eC

OP: OF THE CLERK

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1996

THOMAS W. HILL,

Petitioner,

Vv.

DEPARTMENT OF AIR FORCE, MERIT SYSTEMS

PROTECTION BOARD, PAUL S. BRITT, and

PAUL J. VALLERIE,

Respondents.

Petition for Extraordinary Writ, and in the Alternative,

Petition for Writ of Certiorari to the United States Court of

Appeals for the Tenth Circuit

PETITION FOR EXTRAORDINARY WRIT,

AND IN THE ALTERNATIVE, PETITION

FOR WRIT OF CERTIORARI

THOMAS W. HILL,

Petitioner, Pro Se

1419 Stonewood Court

San Pedro, California 90732

(310) 831-4322

QUESTIONS PRESENTED FOR REVIEW

1. An extraordinary writ should be issued requiring the

United States District Court to enter findings de novo regarding

federal employee claims of age discrimination, rather than

deferring to the Court of Appeals for the Federal Circuit for ad-

judication of merit of claim contained in administrative record

and barring review by the District Court in favor of Federal

Circuit review of the administrative record.

2. In the alternative, certiorari should be granted to resolve

the conflict between the Tenth Circuit and other circuits which

have considered the matter of whether deference should be

afforded to adverse decisions of the Federal Circuit regarding

appeals of decisions of the Merit Systems Protection Board

("MSPB") which involve claims of discrimination.

3. Certiorari should be granted to resolve the conflict

between the Tenth Circuit and other circuits regarding the extent

to which provisions of the Civil Service Reform Act are to be

construed as barring complaints of federal employees filed under

provisions of the Privacy Act, especially in instances where the

District Court has found that the agency maintained improper

security clearance records willfully designed to inflict damages

and has further found that agency refusal to adjudicate the file is

in violation of the requirements of its own controlling regulation.

4. With regard to the issue of individual versus agency

liability addressed by recently-enacted legislation, i.e., the Federal

Employees Liability Reform and Tort Compensation Act of 1988

and the Whistleblower Protection Act of 1989, certiorari should

be granted to clarify the extent of liability for deliberate violation

of constitutional rights of federal employee which the District

Court specifically found to be "something other than ‘personnel

actions’ within the purview of any statutory scheme".

[aes ae

ii

PARTIES TO THE PROCEEDING

Petitioner, Thomas W. Hill, a space systems analyst holding a

doctorate degree in physics, was continuously employed by

Defendant Air Force as a general schedule (“GS”) employee at

various locations from January 1966 to July 1985. At the time

Suit was initiated in November 1985 Hill resided in Albuquerque,

New Mexico; he now resides in San Pedro, California. Hill was

the Plaintiff in the lower court proceedings of this case and was

the Appellant before the Tenth Circuit Court of Appeals in

Appeal No. 95-2017.

Respondent Department of the Air Force is an agency of the

executive branch of the federal government. The Air Force was

the Defendant in the lower court action and has been represented

by the United States Attorney throughout the proceedings. As

an Appellant, the agency has filed three interlocutory appeals

with the Tenth Circuit, prevailing on all counts. The agency was

the Appellee in Tenth Circuit Appeal No. 95-2017.

The Merit Systems Protection Board ("MSPB") is a quasi-

judicial agency of the executive branch of the federal govern-

ment, created pursuant to the provisions of the Civil Service

Reform Act of 1978. Under leave granted by the District Court

in January 1986, the MSPB was added as a Defendant in the

lower court action. Following refusal by the Federal Circuit to

transfer record review to the District Court, the District Court

released the MSPB as a Defendant.

Respondents Paul S. Britt and Paul J. Vallerie were officers

in the Air Force and were supervisory officials above Plaintiff

prior to the time suit was filed. Britt was an Appellant in two of

the above-referenced interlocutory appeals. Both Respondents

were Appellees in Tenth Circuit Appeal No. 95-2017, and both

are represented by the United States Attorney.

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TABLE OF CONTENTS

Page

Questions Presented for Review 0.0.0.0... cccccccccccccccceee. i

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I aria ihc pack ceieuedasctcccsanccioeessaesie: TT

soa ss siuessdsegiocadsbcnaesnrsasasiivs V

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Statement of Jurisdiction 0.0000... cccccecceceeseceseceeeeees ee

iro yo 5 scan pocsabccat-ereedisscusionciors 2

So cicassdosiedgavs camsovesdeciovovertes cence: 4

Reasons for Granting the Writ ..0...0.0000.0.0.ccccccccccecscseseees. 9

I. A Writ Should Be Issued Requiring the District

Court to Enter De Novo Discrimination Findings ...... 9

II. Certiorari Should Be Granted To Resolve The

Conflict Between The Tenth Circuit And Other

Circuits Regarding Deference To Federal Circuit

Discriminatioa Decisions ...................cccccccceccccseceeseee, 1]

Ii. Certiorari Should Be Granted To Resolve The

Conflict Between The Tenth Circuit And The District

of Columbia Circuit Regarding Statutory Rights Of

Federal Employees Under The Privacy Acct ............. 12

iV

TABLE OF CONTENTS (con’t.)

Page

IV. The Public Interest Is Not Served By The Shield

Of Absolute Immunity Which Has Been Afforded To

Minor Federal Employees Who Knew That Their

Actions Violated Another's Constitutional Rights ..... 14

Se RRR: stb Dek Ie SRN aS OE Ma SI Tee Ae 16

APPENDIX A - Findings of Fact Entered by the

United States District Court for the District of

New Mexico, Following June 1986 Hearing.

Fe Ge Fe BI as paiitisie en cesscseeseesetstanvssesernese A-1

APPENDIX B - Summary Judgment Order Entered

by the District Court. Filed January 11, 1993. ............... B-1

APPENDIX C - Denial of Petition for a Wnt and

Opinion of the United States Court of Appeals for

the Tenth Circuit. Filed October 20, 1995 .................... C-]

APPENDIX D - Denial of Petition for Rehearing

by the United States Court of Appeals for the

Tenth Circuit. Filed December 14, 1995 ..........0...0..0.... D-]

Vv

TABLE OF CITATIONS

Cases Cited

Astoria F.S. & L. Ass'n. v, Solimino, 501 U.S.

, 115 L.Ed.2d 96, 107(1991)..

Brewer v. U.S. Postal Service, 647 F.2d 1093,

1096 (Fed. Cir. 1981), cert. denied,

AUS. WOE

Chandler v. Roudebush, 425 U.S. 840 (1976).......

Cohen v. Austin, 833 F Supp. 512, 516

Fear SIME i on ot a

Dept. of Navy v. Egan, 108 S.Ct. 818 (1988) .........

Hill v. Dept. of Air Force, 796 F.2d 1469

MN TO ed te

Hill v. Dept. of Air Force, 844 F.2d 1047

(10th Cir. 1986), cert, denied,

488 U.S. 825 (1988) ae

Hill v. Dept. of Air Force, 884 F.2d 1318

(10th Cir. 1989), cert, denied,

SOUS, POTD scsi

Kean v. Stone, 926 F.2d 276, 285-6 (3rd Cir. 1991)

Miller v. Dept. Of Air Force, 39 EPD {| 36,006

OAR: TNO oe

9

sa 1]

vi

TABLE OF CITATIONS (con’t.)

Cases Cited (con.t.) Page

Strang v. U.S. Arms Control & Disarmament

Agency, 864 F.2d 859 (D.C.Cir. 1989)... 12

Statutes Cited

Age Discrimination in Employment Act,

FO UB. SG HE hicatss- ecarnrindcccnten passim

Civil Service Reform Act,

ULB OF pe itientikdintmnn aan 2

Privacy Act of 1974, As Amended,

5 USC. 6 Se ct pktaetaann 3

Federal Employees Liability Reform and Tort

Compensation Act of 1988 ..0...0..........cccceecceeeeeee 15

Whistleblower Protection Act of 1989.00.00... 15

5 U.S.C.A. § 1222 (Supp. 1990) ............. ioe SRP 14

Other Authority Cited

Congressional Record, Senate Report No. 969,

95th Cong., 2d Sess., reprinted in [1978].

U.S. Code Cong.& Ad. News, at 2785 ................. 12

ES AME IR tc BI 0 es pee Oe

l

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1996

THOMAS W. HILL.

Petitioner,

VS.

DEPARTMENT OF AIR FORCE, MERIT SYSTEMS

PROTECTION BOARD, PAUL S. BRITT, and

PAUL J. VALLERIE,

Respondents.

Petition for Extraordinary Writ, and in the Alternative,

Petition for Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

PETITION FOR EXTRAORDINARY WRIT, AND IN

THE ALTERNATIVE, WRIT OF CERTIORARI

OPINIONS BELOW

In an unpublished order dated October 20, 1995, the Tenth

Circuit Court of Appeals entered its opinion in this matter,

affirming the final judgment of the District Court. Hill's petition

for rehearing was denied on December 14, 1995 (Appendix D).

2

STATEMENT OF JURISDICTION

Under the jurisdiction afforded by 28 U.S.C. § 1651(a),

Petitioner seeks an Extraordinary Writ directed to the United

States District Court for the District of New Mexico, vacating a

summary disposition Order (Appendix B) and requiring the

District Court to enter findings de novo regarding claims of age

discrimination in Petitioner's firing by the Air Force and the

removal of his name from the list of candidates for a hiring action

at the Air Force Space Division.

In the alternative, Petitioner seeks review of the opinion of

the United States Court of Appeals for the Tenth Circuit and its

judgment entered on October 20, 1995 (Appendix C), for which

rehearing was denied on December 14, 1995 (Appendix D). The

judgment affirmed the District Court's grant of summary dis-

position of claims alleged under the provisions of the Privacy Act

and the Age Discrimination in Employment Act. Petitioner in-

vokes the certiorari jurisdiction conferred on the Supreme Court

by 28 U.S.C. § 1254(1).

STATUTES INVOKED

5 U.S.C. § 7702 provides, in pertinent part,

"(aX1) Notwithstanding any other provision of law, and except

as provided in paragraph (2) of this subsection, in the case of any

employee or applicant for employment who —

"(A) has been affected by an action which the employee

or applicant may appeal to the Merit Systems Protection

Board, and

"(B) alleges that a basis for the action was discrimination

prohibited by -- ...

3

"(iv) sections 12 and 15 of the Age Discrimination in

Employment Act of 1967 (29 U.S.C. 631,633a), ...

the Board shall, within 120 days of the filing of the appeal, decide

both the issue of discrimination and the appealable action in

accordance with the Board's appellate procedures under section

7701 of this title and this section. ...

"(eX1) Notwithstanding any other provision of law, if at any

time after -- ...

"(B) the 120th day following the filing of an appeal with

the Board under subsection (a)(1) of this section, there is no

judicially reviewable action (unless such action is not the

result of the filing of a petition by the employee under

subsection (b)1) of this section), ...

an employee shall be entitled to file a civil action to the same

extent and in the same manner as provided in ... section 15(c) of

the Age Discrimination in Employment Act of 1967 (29 U.S.C.

633a(c)) ...

"(3) Nothing in this: section shall be construed to affect the right

to trial de novo under any provision of law described in sub-

section (a1) of this section after a judicially reviewable action,

including the decision of an agency under subsection (a2) of

this section."

5 U.S.C. § 552a(g) provides, in pertinent part,

"(gX1) CIVIL REMEDIES. — whenever any agency ..

"(C) fails to maintain any recerd concerning any individual

with such accuracy, relevance, timeliness, and completeness

as is necessary to assure fairness in any determination relating

to the qualifications, character, rights, or opportunities of, or

benefits to the individual that may be made on the basis of

such record, and consequently a determination is made which

is adverse to the individual, ...

4

the individual may bring a civil action against the agency, and the

district courts of the United States shall have jurisdiction in the

matters under the provisions of this subsection. ...

"(4) In any suit brought under the provisions of subsection

(g1\(C) or (D) of this section in which the court determines that

the agency acted in a manner which was intentional or willful, the

United States shall be liable to the individual in an amount equal

to the sum of —

"(A) actual damages sustained by the individual as a

result of the refusal or failure ..."

STATEMENT OF THE CASE

Petitioner Hill is a former civil servant with a 20-year career

distinguished by awards, commendations and outstanding per-

formance ratings, who in separate actions was fired and suffered

revocation of his security clearance as the direct result of steps

taken by Paul S. Britt, the object of Hill's whistle-blowing. Britt

stated that his actions were based on Hill's use of government

telephones to make personal calls over a six-month period, which

he claimed to be worth about $135.

Hill appealed the actions to the Merit Systems Protection

Board ("MSPB"), which refused to consider the security sus-

pension in any manner and upheld the firing despite clear indi-

cation of pretext. The MSPB also disallowed Hill's claim of age

discrimination immediately after the filing of the appeal and

before Hill had an opportunity to discover evidence that Britt

sought to use the vacancy created by the firing to promote a

favored younger employee named Robert Blankert. The MSPB

presiding official later refused to reconsider the initial ruling or to

defer to any discrimination authority during the appeal process.

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In support of the security suspension, Britt generated a

special security file ("SSF") which was maintained by agency

officials under Hill's name and social security number, wherein

Britt claimed that Hill was "amoral" and a "thief".’ As a result of

Britt's actions agency officials placed a "Z-code" by Hill's name in

the agency's central computer, indicating the presence of deroga-

tory information regarding suitability to hold a security clearance.

The Z-code is disseminated throughout the defense industry.

By letter to Britt's superior, the Commander of Air Force

Contract Management Division ("AFCMD"), Hill appealed

Britt's security action and demanded the destruction of the SSF.

Major General Bernard L. Weiss, the Commander, investigated

the matter and wrote a letter’ stating that the acts attributed to

Hill did not have adverse security significance, that Hill's security

record was unblemished, and that Britt's security action against

Hill was unwarranted. However, agency officials refused to act

on General Weiss’ findings or to adjudicate or destroy the SSF.

Hill was never afforded any type of hearing on the security

matter notwithstanding requirements of the agency's own regu-

lation that hearing must be had and that the SSF must be adjudi-

cated even though the subject has left the employ of the agency.

' Britt was present throughout the MSPB hearing, and was fully

aware that Hill was not charged with theft. In response to Hill's defense

that the agency had not shown any intent of theft, the agency denied that

he was charged with that offense, and the MSPB hearing official stated,

“Appellant has alleged that the agency failed to prove all

the elements of theft. I find that the argument is irrelevant

because appellant is not charged with theft; instead ap-

pellant is charged with conversion. The agency does not

need to prove the criminal elements of theft."

? Agency officials refused to release General Weiss’ letter until

Ordered to do so by the District Court.

On 7 November 1985 Hill filed complaint in the United

States District Court for the Distriet,of New Mexico (Civil No.

85-1485), invoking jurisdiction under the Privacy Act of 1974,

As Amended, the Freedom of Information Act, and the

Constitution of the United States, and demanding inter alia (1)

an order requiring the agency to comply with the provisions of its

controlling security regulation and (2) award of damages. When

120 days had expired without a judicially-reviewable decision

having been provided by the MSPB, Hill amended the complaint

on 29 November 1985 to inchide an age discrimination cause

against the Air Force under provisions of 5 U.S.C. § 7702(e(1)

and 29 U.S.C. §§ 631, 633a. Hill sought de novo review of the

firing action as well as the arbitrary removal of his name from the

list of well-qualified candidates for a hiring action at the Air

Force Space Division. Following the eniry of a decision by the

MSPB, Hill moved the Court for leave to amend to include the

MSPB as a Defendant, pursuant to provisions of 5 U.S.C. §

7703. Leave was granted, and on 27 January 1986 Hill filed the

operative second amended complaint, restructuring his causes

and demanding damages under provisions of the Privacy Act.

Following a hearing conducted in June 1986, the District

Court found (Appendix A) above-stated facts regarding the

security clearance matter, hearing testimony that Britt had

boasted that the indefinite suspension of Hill's clearance would

foreclose Hill's future employment in the defense industry. The

Court enjoined the agency to reinstate Hill’s clearance and to

remove the Z-code by ‘is name in its security computer files.

At the time that he moved the Court for leave to amend to

add the MSPB as a Defendant, Hill appealed the adverse MSPB

ruling to the Court of Appeals for the Federal Circuit. Although

the District Court granted leave to amend to add the MSPB as a

Defendant and to include review of the MSPB record, the

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Od FARE RSs CSI 5 ry CR re: © YT rere er

7

Federal Circuit subsequently denied Hill's motion to transfer.

Without addressing Hill's evidence, the Federal Circuit held? that

Hill's claim before the MSPB was "frivolous" and later affirmed

the MSPB decision with a terse unpublished judgment, despite

Hill's submission of District Court findings entered in June 1986.

Upon agency appeal of the injunction, the Tenth Circuit re-

manded for jurisdiction clarification, and following the Supreme

Court decision in Dept. of Navy v. Egan, 108 S.Ct. 818 (1988),

reversed.* The Tenth Circuit held that the District Court lacked

jurisdiction under due process, but declined to consider Hill's

argument that the issue turned on provisions of the Age Discrimi-

nation in Employment Act ("ADEA") and the Privacy Act. The

Court acknowledged that the courts have jurisdiction to order an

agency to follow regulatory procedures, but anomalously held

that the District Court had not found violation of such procedure.

In September 1987 the District Court entered dispositive

Orders regarding Hill's Privacy Act, ADEA, and constitutional

tort claims. In one memorandum opinion the Court declined to

dismiss the Privacy Act cause, holding that Hill had raised a

triable issue of damages. In another, the Court reluctantly dis-

obligated to defer to the Federal Circuit decision. Hill appealed

the dismissal and moved to include ADEA and Privacy Act

issues in the pending security clearance appeal. The Tenth Cir-

cuit denied the motion and dismissed Hill's appeal as premature.

In denying Defendants’ motion to dismiss a constitutional tort

claim in 1987, the District Court held that Britt's "Gestapo-type

* ‘Hill v. Dept. of Air Force, 796 F.2d 1469 (Fed Cir. 1986).

* Hill v. Dept. of Air Force, 844 F.2d 1407 (10th Cir. 1988), cert.

denied, 488 U.S. 825 (1988).

8

tactics involving illegal surveillance and unwarranted takings"

directed at ‘Hill were "something other than ‘personnel actions'

within the purview of any statutory scheme". About a year later

Defendants renewed their motion to dismiss Britt, and following

denial by the District Court proceeded with a second interlocu-

tory appeal. The Tenth Circuit assumed jurisdiction over Hill's

protests, and again reversed.’ The Court acknowledged that

Britt's actions were not personnel actions, but effectively granted

him absolute immunity because of his supervisory position.

The District Court took no further substantive action in the

suit until the fall of 1992 when it set jury trial of Privacy Act

damages for December 1992. In response to a motion by the

Defendants, the Court vacated the trial and set oral argument on

Defendants’ renewed motion to dismiss. In January 1993 the

Court granted the Defendants’ motion and dismissed all tnal

issues. Appendix B. Although the Court did not state the basis

for dismissal in its Order, the Defendants cited Henderson v.

Social Sec. Admin., 908 F.2d 559 (10th Cir. 1990), in support of

their argument that construction of the Civil Service Reform Act

("CSRA") serves to bar statutory rights of federal employees

under the provisions of the Privacy Act. Hill filed a Rule 59

motion which was denied without comment in November 1994.

Hill appealed the final judgment and petitioned the Tenth

Circuit to issue a wmit directing the District Court to enter its own

findings in the discrimination matter. In October 1995 the Circuit

Court denied the petition and dismissed the appeal without

hearing oral argument, affirming the discrimination disrssal “for

* ‘Hill v. Dept. of Air Force, 884 F.2d 1318 (10th Cir. 1989), cert.

denied, 495 U.S. 947 (1990). The Tenth Circuit also allowed a third

interlocutory appeal filed on Britt's behalf regarding a minor order, and

reversed the District Court a third time.

9

substantially the reasons stated by the district court.”” Appendix

C. The Court characterized matiers involved in Britt's manipula-

tion of the SSF,’ which Hill complained of under provision of the

Privacy Act, as "prohibited personnel practices, 5 U.S.C. §

2302".* Hill petitioned for rehearing, but the petition was denied

on December 14, 1995.

REASONS FOR GRANTING A WRIT

I. A Writ Should Be Issued Requiring The District Court

To Enter De Novo Discrimination Findings.

The Supreme Court has repeatedly held that the controlling

Statute compels the district courts to provide de novo review

following administrative determination of discrimination claims

and that such review must be provided to federal employees as

° The District Court, as affirmed by the Tenth Circuit, held that

the Federal Circuit had provided Hill de novo review of whether he had

made a prima facie showing before the MSPB. However, this is not the

standard specified at 5 U.S.C. §§ 7702(e)(3). Furthermore, the Federal

Circuit has held in Brewer v. U.S. Postal Service, 647 F.2d 1093, 1096

(Fed.Cir. 1981), cert. denied, 454 U.S. 1141 (1982),

“In determining whether the Board's decision is supported

by substantial evidence, the standard is not what the Court

would believe on a de novo appraisal ...”

In a footnote the Tenth Circuit panel stated that Hill did not

appeal dismissal of his records amendment cause. The Notice of Appeal

and Hill's main brief oppose this conclusion.

* The District Court also labeled the arbitrary removal of Hill’s

name from a list of eligible candidates for a position at Air Force Space

Division and the use of that position to promote a “less senior” employee

as a “prohibited personnel practice under 5 U.S.C. § 2302".

10

well as other complainants. See, Chandler v. Roudebush, 425

U.S. 840 (1976) (overruling a plurality of circuit courts); also,

Astoria F.S. & L. Ass'n. v. Solimino, 501 US. ___, 115

L.Ed.2d 96, 107 (1991), holding,

"Administrative findings with respect to the age

discrimination claims of federal employees enjoy

no preclusive effect in subsequent judicial

litigation ..."

However, the District Court has concluded that Hill's legal

night to de novo review is precluded on the basis of the MSPB

determination in August 1985 that Hill’s age discrimination claim

was “frivolous”. The District Court stated that the question of

whether Hill's case was "mixed" was "a close one", holding,

"Had the appeal been lodged originally in this

Court, it is not inconceivable that the Court

would have considered it a ‘mixed case’ and pro-

ceeded with review accordingly, including de

novo review of Plaintiffs allegations of age dis-

crimination. However, the Court is faced with the

fait accompli that the Federal Circuit has already

reviewed and affirmed the matter on the merit..."

"The Court is not totally comfortable with the

Federal Circuit's decision to assume exclusive

jurisdiction over the appeal..."

Clearly, the Tenth Circuit opinion, sanctioning the District

Court decision to bar Hill's claim of age discrimination on the

basis of the results of an admumistrative decision, has so far

departed from the requirements of the law as decided by the

Supreme Court in Chandler and Astoria as to call for the

exercise of the supervisory power of the Court.

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Of additional importance is the fact that limiting the discrimi-

nation review to the MSPB administrative record as it stood in

August 1985 foreclosed Hill's nght to consideration of facts

which were not available until that record had been closed.

Specifically, Hill was able to show by affidavit executed by John

Gowan, Deputy Director of AFCMD/SA, that the agency waited

until the transfer motion had been denied to fill Hill’s position by

promoting a younger employee named Robert Blankert.

Il. Certiorari Should Be Granted To Resolve The Conflict

Between The Tenth Circuit And Other Circuits Regarding

Deference To Federal Circuit Discrimination Decisions.

Other circuits which have considered Federal Circuit deci-

sions involving discrimination have concluded that preclusive

effect cannot be afforded to such decisions. See, Kean v. Stone,

926 F.2d 276 (3rd Cir. 1991), refusing to defer an attorney fee

issue in a discrimination case before the MSPB (wherein the

appellant had prevailed) to the jurisdiction of the Federal Circuit,

and noting the anomaly of the Federal Circuit decision (Kean, p.

285 n.6; p. 286 n.7). See also, Cohen v. Austin, 833 F.Supp.

512, 516 (E.D.Pa. 1993), discussing the Federal Circuit decision

in Hill's case at length and holding,

"We note that Hill [v. Dept. of Air Force, 796

F.2d 1469 (Fed.Cir. 1986)] is not binding on this

Court, as it is a Federal Circuit decision."

In the case of Miller v. Dept. of Air Force, 39 EPD 4 36,006

(D. Mass. 1985), the agency pled res judicata based on adverse

results of a Federal Circuit decision and a showing that Miller

had not raised a proper discrimination claim before the MSPB.

The Massachusetts District Court denied the agency's motion to

dismiss, holding,

12

"Plaintiff argues that the Federal Circuit decision

of December 17, 1984, cannot be given res judi-

cata effect because the Federal Circuit would not

have had jurisdiction over Miller's discrimination

claim if he had raised it there. That is correct.

Chang v. MSPB, 677 F.2d 173 (ist Cir. 1982)

(per curiam)... [D]efendant wants this Court to

give preclusive effect to the MSPB decision.

That can not be done because federal employees,

after administrative adjudication, are entitled to a

de novo trial in the district court of their discrimi-

nation claims. Chandler v. Roudebush [11 EPD

910,957], 425 U.S. 840 (1974). Even if the

MSPB had decided the discrimination issue, that

decision would not preclude district court re-

view..."

Moreover, the Congressional Record shows that Congress did

not intend that the Federal Circuit review discrimination claims.

Congressional Record, Senate Report No. 969, 95th Cong., 2d

Sess., reprinted in [1978] U.S. Code Cong.& Ad. News, at 2785,

"To encourage uniformity in judicial decisions in

this area both kinds of cases should continue to

be considered by the U.S. District Court."

Ill. Certiorari Should Be Granted To Resolve The Conflict

Between The Tenth Circuit And The District of Columbia

Circuit Regarding Statutory Rights Of Federal Employees

Under The Privacy Act.

Strang v. U.S. Arms Control & Disarmament Agency

("ACDA"), 864 F.2d 859 (D.C.Cir. 1989), post-dates the

decisions in Hill, 844 F.2d 1407, and Egan, supra, and is in

13

conflict with the Tenth Circuit holding.” Underlying Strang is

the indisputable position that records used to determine an

employee's suitability for a security clearance are subject to the

standard of "accuracy, relevance, timeliness, and completeness as

is reasonably necessary to assure fairness to the individual"

mandated by the Privacy Act. /d., 864-868,

"The Privacy Act requires that a court consider

de novo an agency's refusal to amend its records.

5 U.S.C. § 552a(gX2)A). The lack of evidence

before the district court supporting ACDA's

conclusion that some information was uncleared

and the Court's Memorandum Opinion make it

evident that the court failed to consider this

matter de novo ..."

The D.C. Circuit disallowed Strang's claim for damages

under sections (g1\(C) and (g\4) of the Privacy Act since

Strang was unable to show "that the ACDA's determination to

suspend her and revoke her codeword clearance was caused by

its intentional or willful failure to maintain accurate records". /d_,

at 867. Instead, the district court had found that the ACDA had

believed that its actions were lawful, and the records for which

accuracy was in question and formed the basis for remand to the

district court "played no part in ... revocation of her codeword

clearance." Jd. This stands in contrast to Hill's case’® where (1)

° ‘Strang addresses statutory rights of employees regarding secur-

ity clearance records vis-a-vis the Privacy Act, whereas the Tenth Circuit

decision in Hill, supra, is limited to construction of constitutional rights.

‘© On 30 June 1985, after seeing the record created by Britt and

filed under Hill's name and social security number which would form the

basis of the SSF, Hill demanded in writing that the agency amend the

file. See 4 3 of Ex. "6" of the Second Amended Complaint, "I respect-

fully request that the file be destroyed as provided by the regulation.”

The agency never acted on the request.

14

he never had any type of security violations, (2) Britt's malici-

ously generated record formed the sole basis for the action, and

(3) the Court found agency actions to be intentional

Noticeably absent from Siang is a holding that construction

vis-a-vis the CSRA foreclosed Strang’s nghts under the Privacy

Act, even though Strang was suspended from her job. Further-

more, the damages which occurred to Hill as a result of agency

refusal to adjudicate the referenced SSF occurred more than

eight months after he had left the agency. The record shows that

Hill received two offers employment in February 1986 which

were withdrawn when the agency disseminated the Z-code to the

prospective employers.

The construction of the CSRA to preclude Privacy Act (and

ADEA) claims is opposed by federal law. See, 5 U.S.C.A. §

1222 (Supp. 1990), codifying in part the (retroactive) Whistle-

blower Protection Act of 1989,

“Except as provided in Section 1221( 1 ), nothing

in this chapter or chapter 23 shall be construed to

limit any right or remedy available under a pro-

vision of statute which is outside of both this

chapter and chapter 23.”

IV. The Public Interest Is Not Served By The Shield Of

Absolute Immunity Which Has Been Afforded To Minor

Federal Employees Who Knew That Their Actions Violated

Another's Constitutional Rights.

Since the time of the District Court ruling on Hill's

constitutional causes, mcluding a Federal Tort Claims Act

(“FTCA”) cause, federal law has changed significantly with.

regard to claims which may be pursued under the FTCA. The

nite he Ra eae IRSA EEN .

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15

Federal Employees Liability Reform and Tort Compensation Act

of 1988 allows persons injured by common jaw torts committed

by federal employees to sue for damages under the FTCA. The

Whistleblower Protection Act of 1989 at 5 U.S.C. § 1214(a)

through (h), creates an individual right of action.."’

In the fifth cause of the complaint Hill specifically alleged that

the defamation he endured violates “provisions of the New

Mexico Statutes" and that he has suffered damage including

"injury to reputation, meatal anguish, impairment of earning

ability, and loss of income". Materials obtained during discovery

showed that Arthur L. Staden and Eric B. Nelson, who had no

part in the firing action, had with assistance from David W.

Hickman circulated various memoranda throughout the Air

Force claiming that Hill had been fired because of "fraud and

stealing". Following the issuance of the Court’s findings (Appen-

dix A), Hill moved for leave to amend to name Hickman as a

Defendant, but his motion was denied.

The lower court actions have left Hill with a “Hobson’s

choice” -— he has not been permitted to pursue relief either

against the agency or against the individuals who clearly knew

that their actions violated Hill’s constitutional rights. Since both

of the referenced measures were passed while Hill’s suit was

pending and since both contain retroactive provisions, such a

position is no longer viable, and clarification by the Supreme

Court is appropriate.

“i Prior to the firing Hill filed a petition with the Office of the Special

Counsel for an order staying the adverse action under a finding of the

probable occurrence of a prohibited personnel practice. At the 13 June 1986

hearing, James H. Suttle testified that the investigator had recommended a

stay of the firing but was overruled by then-Counsel O'Connor.

16

CONCLUSION

In summary, Hill should be afforded either (1) mandamus

action enforcing previous, dispositive decisions of the Supreme

Court regarding nght to de novo review of age discrimination in

the District Court, or (2) Supreme Court resolution, upon a grant

of certiorari, of the conflict between the circuit courts regarding

deference to the Federal Circuit in matters of discrimination. In

addition, the Supreme Court should resolve the conflict between

the circuits with regard to the extent to which the CSRA may

serve as a bar to federal employee actions filed under the Privacy

Act. Lastly, Hill pleads for review of the propriety of his con-

stitutional claims against the background of the referenced

remedial legislation, and for such other and further relief'as may

be deemed appropriate by the Court.

Respectfully submitted,

THOMAS W. HILL,

Petitioner, Pro Se

1419 Stonewood Court

San Pedro, California 90732

(310) 831-4322

0 sR a ate MeO RO eho

IE ale SS Mt ps ik a le ee AS ee

A-1

APPENDIX A - FINDINGS OF FACT ENTERED BY THE

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW MEXICO, FOLLOWING JUNE

1986 HEARING. FILED SEPTEMBER 18, 1986.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

Civil No. 85-1485-JB

THOMAS W. HILL,

Plaintiff,

V.

DEPARTMENT OF AIR FORCE,

PAUL S. BRITT, and

PAUL J. VALLERIE,

Defendants.

RT'S FIND OF FA

N N NS 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 conclusions of law.

Findi {F

1. This matter comes before the Court on Plaintiffs motion

for injunction wherein he seeks reinstatement of his security

A-2

clearance which was revoked on or about May 24, 1985; that on

that date Plaintiff had a TOP SECRET clearance with access to

Sensitive Compartmentalized Information.

2. Prior to Plaintiff's removal from Federal service on July 5,

1985, Plaintiff was a Federal civil servant employed by Defendant

at the GS-13 and GS-14 grade levels and assigned, from July

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 classified 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 Paul Britt,

the Director of AFCMD/SA.

5. The tensions between Plaintiff and Colonel Britt resulted

from accusations of Colonel Britt that Plaintiff had made

personal telephone calls at government expense on the

Directorates AUTOVAN telephone system; that Plaintiff

responded to the allegations by accusing Colonel Britt of abusing

TDY funds to pursue personal interests that, thereafter, Colonel

Britt brought formal charges against Plaintiff for the

unauthorized calls and, further, accused Plaintiff of theft for

Plaintiffs removal of personal notes abandoned by a previous

Directorate employee.

6. Major John Gowan, the Deputy Director of AFCMD /SA,

upon being assigned to the unit, heard rumors and references

regarding Plaintiff which he deemed to be unprofessional: that

the Technical Director of AFCMD/SA referred to Dr. Hill as

te A LIREA NE RI LE PRN LB ELI Habis nn Mey th ol

A-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 Plaintiff and Colonel Britt in

order to resolve the problems in the Directorate; that Plaintiff at

all times acted professionally 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 statements reflecting a vindictive

attitude; that Colonel Britt used any opportunity to place Plain-

tiff in an unfavorable light.

8. James H. Suttle, previously a 14-year civil servant, grade

GS-14, with Aerospace Studies had known Colonel Britt since

1965 and had known Plaintiff since 1972-73; that he considered

Colonel Britt a friend as well as a boss.

9. Mr. Suttle played the role of a mediator in order to diffuse

tensions between Colonel Britt and Plaintiff but with no success;

that he characterized Colonel Britt's management technique as

that of a "threat type"; that this management style always had a

"whipping boy"; and that Plaintiff was the brunt of Colonel Britt's

technique.

10. Mr. Suttle testified that security clearances were used in

a way to influence behavior during Colonel Britt's tenure and that

of his predecessor, that disparate treatment was common regard-

ing sanctions imposed for security violations.

11. In acting as a mediator, Mr. Suttle informed Colonel

Britt that Plaintiff would drop certain grievances which he had in

an effort to mediate differences so that he could go on with his

A-4

assigned duties; that this offer was refused; that Colonel Britt

considered Plaintiffs grievances as a threat to Britt's authority

and that Colonel Britt set out to “get him [Plaintiff]"; 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 alienated

and informed Major Gowan that his actions in support of Hill

were inappropmiate; that, thereupon, Major Gowan requested to

be transferred and he was subsequently transferred to the

Emergency Directorate of CMD; that thereafter Colonel Britt

sought means to have Major Gowan court-martialed for his

having sided with Plaintiff.

13. Prior to his disaffection with Major Gowan because of

his support of Plaintiff, Colonel Britt rated Major Gowan in the

highest category possible in his officer effectiveness report of

June 1985.

14. According to Major Gowan, Colonel 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 "get Plaintiff"; that the removal of Plaintiffs

security clearance was a means to "eradicate" Plaintiff.

15. In retaliation for Plaintiffs charges Colonel Britt revoked

Plaintiffs security clearance on May 24, 1985, asserting that the

revocation was in the interest of national security and alleging

that Plaintiff had acted dishonestly, established a pattern of poor

further, Colonel Britt established a special security file on

Plaintiff, that Plaintiff was not given any opportunity to answer

the allegations or otherwise contest the revocation.

A-5

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 consequence of Colonel Britt's

actions, the Air Force Security Clearance Office (AFSCO) placed

a “pending adjudication" code by Plaintiff's name in its computer

file and made that data available to all Department 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 consequence of Plaintiff's

termination from Federal service the AFSCO has refused to

adjudicate the file.

18. On July 31, 1985, AFSCO entered a "Z code" by

Plaintiffs name in the AFSCO computer file; that the "Z code"

indicates that Plaintiff has left the employ of the agency and that

the agency possesses derogatory data regarding Plaintiff's

suitability for a security clearance; that the "Z code" has damaged

Plaintiff and precluded his employment in the defense community

although Plaintiffs capabilities are in demand.

19. In a conversation with Mr. Suttle in Washington, D.C.,

Colonel Britt knew that Plaintiff was seeking other employment

and acknowledged that the revocation of Plaintiffs security

clearance would prevent Plaintiff from obtaining employment.

20. Mr. Suttle testified in favor of Plaintiff before the Merit

Board, and as a consequence the Air Force retaliated against

Suttle.

21. John Gowan, the Deputy Director of AFCMD/SA, and

Mr. James H. Suttle, testified unequivocally that Plaintiff was

not a security risk.

A-6

22. In reviewing Colonel Britt's actions in revoking

Plaintiffs security clearance and questioning his eligibility,

General Bernard L. Weiss, Commander of the Air Force

Contract Management Division, made the following findings:

a. That the acts attributed to Plaintiff did not have

adverse security significance.

b. That the facts of Plaintiff's case did not indicate that

Plaintiff was a threat to national security.

c. That Plaintiffs security record during 20 years of

service was unblemished and the withdrawal of Plaintiffs security

clearance was unwarranted.

23. John W. Dettmer, Director of Strategic Defense Force,

and pnor director of the Technical Office in the Weapons

Laboratory, testified of Plaintiffs excellent reputation and that

Plaintiff was 70t a security risk.

24. In his performance evaluation by Li. Colonel Paul J.

Vallerie, Director of Aerospace Studies for the years 1982 and

1983, Plaintiff was rated as excelling in safeguarding classified

information and following established security procedures.

25. According to the Department of Defense Personnel

Security program, revocation of a security clearance for access to

classified information is deemed to be an adverse action.

Defendants’ Exhibit F, p. 59, para. 8-IOO(a).

26. Pursuant to the Personnel Security program;

Defendants are required to adjudicate all special security files

A-7

regardless of any other adverse action taken including separation.

Defendants’ Exhibit F, p. 60, para. 102(e)(2).

27. The actions of Colonel Britt with the assistance of

Captain David W. Hickman, the Staff Judge Advocate, as re-

flected in the evidence, lead the Court to conclude that the

revocation of Plaintiffs security clearance was not because of any

adverse security significance but, rather, motivated solely by a

deliberate intention to prevent Plaintiff from obtaining

employment with civilian agencies who deal in the defense

industry where security clearances are essential.

28. The Department of Air Force has failed to establish a

rational nexus between the adverse action taken and the

articulated reasons for the action.

29. Plaintiffs work opportunities have been severely limited

by a fact determination which failed to comport with the

traditional ideas of fair procedure; and that Defendants have

failed to observe even the most minimal due process procedures

in revoking Plaintiffs security 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 facie case showing a reasonable

probability that he will ultimately prevail on the merits.

A-8

4. The threatened injury to Plaintiff outweighs whatever

damage the proposed preliminary injunction may cause

Defendants.

5. The preliminary injunction, if issued, will not be adverse to

the public interest.

6. A preliminary injunction should be issued enjoining the

Department of Air Force to reinstate Plaintiff's security clearance

to the level held prior to May 24, 1985; and, further, that the

Department of Air Force should be enjoined to remove the "Z

code" by Plaintiffs name in the AFSCO computer file and that

the computer records should be programmed to indicate that

Plaintiff is entitled to access to classified material consistent with

the security clearance held pnor 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. Pra

s/ Juan G. Burciaga

Juan G. Burciaga

United States District Judge

3 in Daaiigiandenielcacascidendiiasiins ei Lind ta cl vee, ’

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B- 1

APPENDIX B - SUMMARY JUDGMENT ORDER

ENTERED BY THE DISTRICT COURT. FILED

JANUARY 11, 1993.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

Civil No. 85-1485-JB

THOMAS W. HILL,

Plaintiff,

Ve

DEPARTMENT OF AIR FORCE,

Defendant.

ORDER

THIS MATTER came on for a hearing on January 7,

1993 on Defendant’s April 8, 1988 motion to dismiss that

portion of Plaintiff's second cause of action which remains

after the Court’s 4 September 1987 dismissal of a portion of

Plaintiffs second cause of action. The Court having heard

the arguments of counsel, reviewed the submissions of the

parties, and made its findings and conclusions in open Court;

Wherefore,

IT IS ORDERED, ADJUDGED AND DECREED that

Defendant’s motion to dismiss be, and hereby is, granted.

IT IS FURTHER ORDERED that Plaintiff's December

14, 1992 request (motion) for leave to amend second cause

of action to corform with the facts be, and hereby is, denied.

B-2

IT IS FURTHER ORDERED that the Court sua sponte

grants summary judgment for Plaintiff on his request in

Count III of the second amended complaint for copies of

Equipment Action Requests (AU Forms 601) for AFCMD

/SA for the period of 1 January 1983 to 5 June 1985.

DATED this 8th day of January, 1993.

s/ Juan G. Burciaga

Chief Judge

C-1

APPENDIX C - DENIAL OF PETITION FOR A WRIT

AND OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT.

FILED OCTOBER 20, 1995.

No. 95-2017

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

THOMAS W. HILL,

Plaintiff- Appellant,

V.

UNITED STATES AIR FORCE, PAUL S. BRITT,

PAUL J. VALLERIE,

Defendants-Appellees.

ORDER AND JUDGMENT*

Before KELLY, SETH, and HENRY, Circuit Judges

After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially

assist the determination of this appeal. See Fed.R. App.P. 34(a);

10th Cir. R. 34.1.9. This case is therefore ordered submitted

without oral argument.

* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments, nevertheless, an

order and judgment may be cited under the terms and conditions of the

Court's General Order filed November 29, 1993. 151 F.R.D. 470.

]

C-2

Plaintiff appeals from the district court's dismissal of his age

discrimination, 29 U.S.C. §§ 631, 633a, and Privacy Act, 5

U.S.C. § 552a, claims brought against defendant United States

Air Force and his constitutional claims brought against the

individual defendants. The parties are familiar with the lengthy

and complex factual and procedural history of this case,

commenced in 1985. Therefore, we proceed directly to the

issues on appeal.

Plaintiff first argues that the district court erred in refusing to

provide him with a de novo trial of his age discrimination claim.

The district court dismissed the age discrimination claim for lack

of subject matter jurisdiction based on the jurisdictional

determination of the Federal Circuit that because plaintiff did not

raise a prima facie case of age discrimination within his Merit

Systems Protection Board appeal, jurisdiction was properly

before the Federal Circuit, see, Hill v. Department of Air Force,

796 F.2d 1469, 1471 (Fed.Cir. 1986). Reviewing the district

court’s dismissal of the age discrimination claim de novo, see

Cizek v. United States, 953 F.2d 1232, 1233 (10th Cir. 1992)

(subject matter jurisdiction), we affirm for substantially the

reasons stated by the district court.

Plaintiff next argues that he is entitled to trial of his Privacy

Act damages claim ' and that he should have been permitted to

supplement his complaint to include details concerning the extent

of the adverse agency actions regarding his security clearance.

We agree with the district court’s determination that the Privacy

Act did not provide the court with jurisdiction to review the

alleged prohibited personnel practices, 5 U.S.C. § 2302, because

Plaintiff does not appeal the district court’s dismissal of the portion of

the Privacy Act claim seeking amendment of his employment records.

eh ce :

ek ee ee ee See ee

soul.

C-3

the Civil Service Reform Act of 1978, Pub. L. 95-454, 92 Stat.

1111 (codified in various sections of 5 U.S.C.), provides an

exclusive remedial scheme. See also Henderson v. Social Sec.

Admin. , 908 F.2d 559, 560 (10th Cir. 1990). We also affirm the

dismissal of this claim and conclude the district court did not err

in failing to permit amendment of the complaint.

Plaintiff s final argument is that he is entitled to “some relief”

under the constitutional claims against the defendants. Plaintiff

concedes that this court already has decided his claim against

defendant Britt. See Hill v. Department of Air Force, 884 F.2d

1318 (10th Cir. 1989), cert. denied, 495 U.S. 947 (1990). Thus,

the law of the case doctrine applies to preclude further

consideration of that claim. See Rohrbaugh v. Celotex Corp., 53

F.3d 1181, 1183 (10th Cir. 1995). We agree with the district

court’s dismissal of the claim against defendant Vallerie as

precluded by a comprehensive statutory scheme. We affirm that

claim for substantially the reasons set forth by the district court,

as well as for the reasons set forth in Hill, 884 F.2d 1318.

The judgment of the United States District Court for the

District of New Mexico is AFFIRMED. Piaintiff’s petition for a

writ seeking an order directing the district court to hold a trial on

the age discrimination claim in DENIED. See Mailard v. United

States Dist. Court, 490 U.S. 296, 309 (1989) (petitioner must

prove he lacks alternatives to obtain relief), see also Weston v.

Mamn (In re Weston), 18 F.3d 860, 864 (10th Cir. 1994)

(mandamus is not substitute for appeal). Plaintiff motion for

leave to file a replacement reply brief is GRANTED. The

mandate shall issue forthwith.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

/

!

NEC eatin pen

Se

D- |

APPENDIX D -. DENIAL OF PETITION FOR RE-

HEARING BY THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT.

FILED DECEMBER 14, 1995.

No. 95-2017

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

THOMAS W. HILL,

Plaintiff- Appellant,

v.

UNITED STATES AIR FORCE, PAUL S. BRITT,

PAUL J. VALLERIE,

Defendants-Appellees.

RDER

Entered December 14, 1995

Before Kelly, Seth, and Henry, Circuit Judges.

This matter comes on for consideration of appellant’s petition

for rehearing and suggestion for rehearing in banc.

Upon consideration whereof, the petition for rehearing is

denied by the panel that rendered the decision.

In accordance with Rule 35(b), Federal Rules of Appellate

Procedure, the suggestion for rehearing in banc was transmitted

-

aaa

D-2

to all of the judges of the court who are in regular active service.

No member of the panel and no judge in regular active service on

the court having requested that the court be polled on rehearing

in banc, Rule 35, Federal Rules of Appellate Procedure, the

suggestion for rehearing in banc is denied.

Entered for the Court

PATRICK FISHER, Clerk

By: s/ Audrey F. Weigel

Deputy Clerk