Petition for Writ of Certiorari — Beattie v. Boeing Co.

Supreme Cour, ug.

ee ED

Supreme Court of the United States

OCTOBER TERM, 1994

ROBERT M. BEATTIE JR.,

Petitioner,

THE BOEING COMPANY,

A Delaware Corporation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Robert M. Beattie Jr., Esq.

BEATTIE LAW OFFICE

#296, 6505 East Centra]

Wichita, KS 6/206

(316) 683-5242

Pro se

March 1995

i

QUESTIONS PRESENTED

1. Ina Bivens action, should Executive

Branch security clearance decisions by a

private party should be treated the same

as those of a government agency?

?. Whether this Court's holding in Egan--

that the Merit Systems Protection Board

may not review Executive Branch security

clearance decisions--"exte:r ds to review by

the courts," as the court of appeals held?

3. Whether denial of a security clearance

can be grounds for a Bivens action?

4. Whetuer a private party, acting as a

federal agent under color of authority

when making Executive Branch security

clearance decisions over other private

parties, may be sued in a Bivens action?,

and, if so, when the private party 1s a

corporation, is the corporation a person

for Bivens action purposes?

-

ii

LIST OF PARTIES

The parties to the proceeding in the

United States Court of Appeals for the

Tenth Circuit are listed in the caption.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.........--- i

PARTIES TO THE PROCEEDING....... ii

TABLE OF AUTHORITIES........2222ee- iii

OPINIONS BELOW...... 22 eee eee ec eeees 1

BASIS FOR JURISDICTION............. 1

CONSTITUTIONAL PROVISIONS INVOLVED. 2

STATEMENT OF THE CASE.......-.---0-- 2

REASONS FOR GRANTING THE WRIT...... 17

THIS CASE OFFERS THE OPPORTUNITY TO

RESOLVE IMPORTANT QUESTIONS

OF FEDERAL LAW IN BIVENS ACTIONS

INVOLVING SECURITY CLEARANCE CASES

WHICH HAVE NOT BEEN, BUT SHOULD BE,

SETTLED BY THIS COURT.........-2..4-. 17

SPECIAL FACTORS ANALYSIS: When a

private party is making security

clearance decisions over other

private parties, this special

factor calls for judicial attention,

not judicial hesitation............ 21

iii

TABLE OF AUTHORITIES

Cases Page(s)

Bivens v. Six Unknown Named

Federal Narcotics Agents, 17,18, 20,

G3 U.S s JOR tiWt al wha ens so eeesee Sy 4 Po & w

1,344,142;

Beattie v. Boeing, 14,15,18,

43 ¥..30 559. tiGth Caik. i906) « 20% 20,21.

Beattie v. Boeing, (Unpublished)

No. 91-1050-K (D.Kan. 1992)..... Z0ees,%

Beattie v. U.S.,

949 F.2d 1092 (10th Cir.1992)... da

Beattie v. U.S., Le See Be

759 F.Supp. 753 (D.Kan. 1991) LG,ik-2

(vacated as moot, 949 F.2d 1092.) i ae ES

Dep't of Navy v. Egan, 18,19,20,

CRG 9s. Die te Reers eh 0 i ee ee eee 21,24.

Dorfmont v. Brown,

Si3 F.2@ i399 (Stn Cir. 19390)... 18.

F.D.1.C. Vv. Meyer,

335 Bala. Dew LRP ee hohe essa we 18.

Hill v. Dep't of Air Force,

644 F.2d 1407 (10th Cir. 1988).. 18.

: Jamil v. Secretary, Dep't of Defense,

| 910 F.2d i203 (4th Cir. 1990)... 18.

Marbury v. Madison,

L CROPGE 137 {EPCS vo ces euws ews eos

lv

TABLE OF AUTHORITIES--continued

Cases Page(s)

Myers v. U.S.,

Rie Gals De TARO dee hte et weenes 24

Webster v. Doe,

486 U.S. 592 0 | ae pone i

West Virginia v. Barnette,

3h Be PR Se ke: eee ‘ees ee

U.S. Constitution Ls ade

Article Three, Section 2, Clause l. ‘ip

Zeatas

pe NE Se ee ee ee 23,26.

Federal Statutes

», ee ee eS ee ee ee ee +

ee kw io

Constitutional History

James Madison,

The Federalist No.5] (1/88)........ 24.

Arthur Schlesinger, Jr.,

ye Im lal Presidency (1973) 28-29.

je#es8 eee

Other

Abe Fortas,

e rning |] ME G4 go ) Pe 26-27.

O.W. Holmes Jr.,

T S i Ts | os a vy B

eek 6

|

PETITION FOR WRIT OF CERTIORARI

Petitioner hereby petitions for a

writ of certiorari to review the judgment

of the United States Court of Appeals for

the Tenth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals

is reported at 43 F.3d 559 (1994). The

prior district court Memorandum and Order

is unpublished. Two related opinions from

a prior suit based on the same facts are

tie v. Uni ,» #399 F.Supp. 753

(D.Kan.1991), vacated as moot, Beattie v.

United States, 949 F.2d 1092 (10th Cir.

1992). All are found in the appendix.

JURISDICTION

The judgment of the court of appeals

was entered on December 30, 1994. This

Court has jurisdiction under 28 U.S.C. §

1254(1).

2

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Article

III, Section 2, Clause 1: "The

judicial power shall extend to all

cases, in law and equity, arising

under this Constitution, ...--to

controversies to which the United

States shall be a party--...."

United States Constitution, Amendment

I: "Congress shall make no law

respecting an establishment of

religion, or prohibiting the free

exercise thereof; or abridging the

freedom of speech, ... , or the right

of the people ... to petition the

government for a redress of

grievances."

STATEMENT OF THE CASE’

Petitioner pro se Beattie’ cause

arises directly under the Constitution and

is heavily fact dependent. Beattie, a

civilian, was employed by Boeing in 1984

to work in its Dept. of Security «& Fire

}. Jurisdiction in the court of first instance was based on 28

U.S.C. § 1331.

2. Beattie has been an attorney only 17 months. His counsel

of record was terminated and has withdrawn.

3

Protection (S&FP), granted a SECRET level

security clearance by the Director

Industrial Security Clearance Review

(DISCR), and began working on classified

Air Force (AF) projects at Boeing.

In 1987, Beattie began working on,

and had access to classified information

concerning, the two 747's Boeing had

contracted with the AF to build to serve

the Commander-in-Chief as the next Air

Force One (AF-1). see,’ _Beattie v.

Boeing, 43 F.3d 559, 560, Footnote 3. (A4-

5). Beattie v. U.S,, 759 F.Supp. 753,

755-56 (D.Kan.1991) (finding of

uncontroverted fact # 3) (A88-89). N.J.

Addleman, Boeing's manager of information

security report to DIS and AF, March 24,

3. "App." refers to Beattie's appendix sent to Tenth Circuit in

Beattie v. Boeing. "P.App." refers to Beattie's appendix sent

to Tenth Circuit in the prior case of Beattie v. United States.

"(Axxx)" refers to the appendix of this petition for certiorari.

1989. App. at 317.

Beattie filed a grievance with his

union, United Plant Guard Workers of

America (UPGWA) shortly after February 1l,

1989, when civilian Boeing security

administrator, James Barton, revoked

Beattie's Air Force One (AF-1) security

clearance in response to Beattie's "off

duty political activities, including anti-

nuclear activities."* see Beattie v.

Boeing 43 F.3d 559, 561 (1994) (A6-9).

Statement of U.S.A.F. Captain Barry S.

4. Beattie was president of Firefighters for Social

Responsibility (FSR), a nonprofit organization modeled after

Physicians for Social Responsibility (PSR), the American

affiliate of International Physicians for Prevention of Nuclear

War, the 1985 NOBEL PEACE PRIZE recipient. Victor

Sidel, M.D., a PSR founder who represented PSR in receiving

the PEACE PRIZE in Oslo, Norway, was on FSR's Board and

gave deposition testimony that Beattie is known nationally by

leaders in the peace movement. App. at 308. However, the

only visible political activity temporally proximate to his

security clearance revocation was Beattie's having just been

team captain of the Democrats in the local Democrat v.

Republican publicity flag football game. The Democrats won.

5

Graham, 27 Sept. 1989 ("Beattie was not

selected by Boeing [for a AF-1 security

Clearance] because of his antinuclear

activities."). P.App. at 154. re:

grievance see Beattie v. U.S., 759

F.Supp. at 756 (finding of uncontroverted

fact #5), App. at 254-262 (grievance).

Prior to Boeing's decision,

groundless rumors, source unknown, were

spread that Beattie was a traitor to the

United States who would soon have‘his

security clearance revoked, then be

arrested, and that he had a tattoo of a

hammer and sickle on his body identifying

nim as a deep cover Soviet spy.°

At a tension-filled squadroom meeting

Beattie refuted the rumors and explained

that his security clearance had been

5. Beattie has a burn scar from an injury during a fire alarm

which might look like a hammer and sickle from some angles.

6

revoked because of his off duty political

activities. Several of Beattie's

skeptical co-workers retorted that they

had participated with Beattie in some of

his off duty political activities, and the

government had not revoked their security

clearances, so it appeared to them that

the rumors must be based in truth. In

other words, only Boeing's security

clearance revocation, made under color of

federal authority, gave the rumors

legitimacy in their eyes.

Beattie replied that Boeing's

Security Administrator told him that it

was Beattie's "visibility which is what

really creates a problem." App. at 256.

At times thereafter, Beattie was told

by some Boeing firefighters that should he

become trapped in a burning building, he

Should not expect to be rescued. Some

7

Boeing guards fingered their firearms and

"stared him down" when Beattie neared

them, with one once actually unsnapping

his holster and grasping his sidearm. For

the next several weeks Beattie had a

legitimate fear of death or crippling

injury at the hands of guards who might,

even inadveitently, shoot him, or

firefighters who might abandon him.

When Beattie would sit at the squad

room lunch table to eat, everyone else

would get up and leave. None of his co-

workers would speak to Beattie, on or off

duty, unless absolutely necessary. A

cartoon drawing of Beattie shown with a

hammer and sickle on his forehead was

placed at the guard entrance to AF-1.

Beattie's employee locker at the

Boeing fire station was filled with empty

Seven-Up soda pop cans [this a reference

8

to convicted spy John Walker's method of

placing empty 7-Up cans at pre-designated

locations to communicate messages with his

Soviet contacts]. Beattie was given the

nickname "7-Up" and constantly monitored.

Beattie's supervisors told him he

would never be promoted, nor allowed a

transfer, assigned him to a Friday through

Tuesday work schedule, and said he would

never again see a weekend off. One

supervisor told him he should quit Boeing.

Boeing's security and fire protection

(S&FP) manager (Boeing's top security

policy making individual), Kerry Crisp,

made threats against Beattie and said to

Boeing fire dept. captain Roy Tate, "I

wish somebody would get rid of that Bob

Beattie." Deposition of Roy Tate, May 24,

1990, pp. 36.

Acting on Beattie's grievance, the

9

union president met with Boeing's S&FP

Manager. They wrote a document settling

the grievance, and this was signed by

representatives of the union, Boeing, and

by Beattie on or about March 3, 1989.

Beattie v. U.S, 759 F.Supp. at 756 (A89-

91). Boeing agreed in the document to

request the AF to determine whether

Beattie would again be allowed an AF-1

security clearance. Id. at 756(A89-91).

Boeing said that from this time forward it

was completely the decision of the AF.

That being the case, the union president

then told Beattie that this was the end of

union involvement in this matter.°®

Responding to the spy rumors, a

representative of the Defense

6. This exhausted Beattie's administrative remedy. Beattie

later filed suit against the U.S. only after being completely

Stonewalled by the Air Force, who refused to respond to either

Beattie or his attorney. see Complaint, Beattie v. U.S..

10

Investigative Service (DIS) met with

Beattie on or about March 24, 1989.

Beattie reported two contacts with Soviet

citizens to the DIS. Beattie claims he

had immediately reported these contacts to

his Boeing supervisors, but was told not

to make a written report as this would

entail unnecessary paperwork. Beattie v.

U.S. 759 F.Supp. at 758(A100-101).

On the DIS form, on or about March

24, 1989, Beattie made a hand-written

~eport of these Soviet contacts. The

district court characterized these

contacts "as seemingly innocuous...."

Beattie v. U.S, 759 F.Supp. at 762(A129).’

7. One contact, wholly unanticipated, consisted of being

introduced by mutual friend Michael McCally M.D. Ph.D. to

visiting Soviet physician Dr. Simon Keshanivilli, Head of the

Soviet Cancer Institute. The other was Beattie's telephoning

the Soviet Embassy from the Boeing fire station, telling them,

as president of FSR, that America's firefighters were sending

their sympathy at the deaths of the firefighters of Chernobyl in

the form of a plaque, and that Congressman Dan Glickman

1]

The DiS investigated Beattie from

March 1989 until June 1989, when their

results were forwarded to DISCR for a

decision. [cite omitted]. DISCR determined

on July 30, 1989 that Beattie should

maintain his security clearance, "based on

the standard that it is clearly consistent

with the national interest." Declaration

of Leon J. Schachter, Acting Director,

DISCR, November 30, 1989. see Beattie v.

U.S. 7/59 F.Supp. at 757(A97-98).

On May 10, 1989 Boeing's S&FP manager

wrote the AF asking them to make a

decision on Beattie's AF-1 clearance, and

tells the AF not that this request was

pursuant to a written settlement agreement

with Beattie's union, but that "This

(now Secretary of Agricuiture-Designate) would be delivering

the plaque to their Embassy, which was done.

12

report was prompted by our learning of Mr.

Beattie's making contact with

representatives of designated countries

and failing to report that contact.”

Beattie v. Boeing 43 F.3d at 561-562 (All-

12). Boeing does not send the AF a copy

of Beattie's contact report, but only

their own. App. at 31/7.

In making its security clearance

determination, no one from the AF ever

spoke with Beattie. B le v. U 7159

F.Supp. at 756-757 (A93-94). In June 1989

the AF denied Beattie's security clearance

access to AF-1 based on Beattie's “past

history." Id. at 762(Al127).

The court of appeals holds, as a

matter of law, that the Boeing security

administrator's decisions regarding

security clearances "represent[s] the

exercise of authority delegated by the

13

Executive Branch...." Beattie v. Boeing

43 F.3d at 566(A36). They quote Beattie

v. United States, 759 F.Supp. at 762 (A35):

this court is not willing to

compromise national security and

substitute its decision for that of

the Air Force on what is a security

risk. To deny access on the basis of

plaintiff's contacts with Soviet

citizens is not so unreasonable or

untenable as to justify a closer

scrutiny, or judicial investigation

of sorts, into the Air Force's

reasoning.

"We agree with this sound reasoning

and decide the current lawsuit on the same

grounds. ... We see no compelling reason

to treat the security clearance decision

by Boeing differently than the similar

decision made by the Air Force, and hence

by the Executive Branch." Beattie v.

Boeing 43 F.3d 559, 566 (A35-36).

However, Boeing's factual reasons for

revoking Beattie's security clearance are

wholly distinct from those of the AF.

14

Boeing represented both to the Executive

and Judicial Branches that they did not

know of Beattie's Soviet Union contacts

until March 24, 1989, more than six weeks

after Boeing had already revoked Beattie's

security clearance and during the time

Beattie suffered significantly from

harassment and mental distress. The court

finds that the Air Force revoked Beattie's

clearance because of his Soviet Contacts--

which Boeing could not have done by Feb.

11, not yet knowing of them until March

24--reports that Boeing revoked Beattie's

clearance for this "off duty political

activities," yet the court reaches their

decision on the "same grounds." Beattie

43 F.3d at 566 (A35).

The entire focus of ttj V

Boeing, as opposed to the case of Beattie

v, U.S.,is on Beattie's harms suffered due

15

to Boeing's unconstitutional actions, well

prior to any decisions by the AF or DIS.

By June 16, 1990 when Beattie

resigned, a few of Beattie's co-workers

had come to him and apologized for their

earlier behavior, saying they now believed

Beattie's initially claims were correct.

Others still thought, and think, Beattie

is a treasonous spy. Boeing's Sé&FP

management continued to harass him,’

pointedly passing him over for a promotion

to lieutenant, which led to Beattie's

8. Boeing's managers harassment of Beattie began after he

became FSR president in 1986. In Feb. 1986 Beattie filed a

grievance with his union concerning the behavior of fire dept.

captain Roger Kucharek. Kucharek, while haranguing Beattie

over his "anti nuclear" activities, ordered Beattie to perform an

exhausting hose carrying drill three times without rest. When

Beattie refused the fourth time, Kucharek gave Beattie the

finger and made contemptuous remarks. Kucharek admitted to

the latter behavior at the grievance meeting. see Minutes of

Morning Meeting, UPGWA Local 255, March 4, 1986.

16

final grievance and his decision to quit.’

On June 16, 1990, a portion of

Beattie's co-worker's held a going away

party for him at the Boeing fire station.

As Beattie was leaving, the Boeing S&FP

emergency dispatcher toned the emergency

klaxon and announced Beattie's "final

alarm" over the radio. This is a

firefighter salute traditionally given

only out of the deepest respect.

The emergency dispatcher referred to

supra was then demoted and transferred to

the night shift by Boeing's S&FP manager,

Kerry Crisp.*°

9. Beattie had two earned college degrees. The candidate

Boeing promoted had no college and ten years less experience

than Beattie, but did have an AF-1 clearance. Beattie's local

union president refused to prosecute the grievance. After the

union president later gave a deposition unfavorable to Beattie,

he was promoted into Boeing S&FP management.

10. After his testimony that Kerry Crisp had threatened

Beattie, Roy Tate was demoted from captain to lowest level

17

REASONS FOR GRANTING THE WRIT

THIS CASE OFFERS THE OPPORTUNITY TO

RESOLVE IMPORTANT QUESTIONS OF FEDERAL LAW

IN BIVENS ACTIONS INVOLVING SECURITY

CLEARANCE CASES WHICH HAVE NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS COURT

The Supreme Court has not

specifically addressed whether the denial

of a security clearance can be grounds for

a Bivens action. Beattie v. Boeing 43

F.3d 559, 564(A28). This is an important

federal question which should be settled

by this Court. This case is directly on

point. More particularly, in this case

the Court may also address the status of

private corporate persons under Bivens who

are accused of Constitutional violations

while exercising their judgment on behalf

of the President. The questions presented

are not resolved by the Court's opinions

in Dept. of Navy v. Egan 484 U.S. 518

firefighter. Kucharek was promoted to deputy chief.

18

(1988), Webster v. Doe 486 U.S. 592

(1988), or F.D.1.C. v. Meyer 114 S.Ct. 996

(1994). While three circuits have held

that they may not review an executive

branch decision to revoke a security

clearance (Dorf Vv wn, 913 F.2d

1399, 1401 (9th Cir. 1990); Jamil v.

Secretary, Dept. of Defense, 910 F.2d

1203, 1205-06 (4th Cir. 1990); Hill v

Dept. of Air Force, 844 F.2d 1407, 1409

(10th Cir. 1988)), in each case the denial

was by a government body (DISCR, the CIA,

and the U.S. Air Force), unlike this case,

where the denial was by a private party, a

corporate person (Boeing), over another

private party (Beattie). Unlike other

cases, in this case the Executive is not

of one mind, with DISCR resolving that

Beattie's having a security clearance is

"Clearly consistent with the national

19

interest," while three days earlier the AF

decides he shouldn't have a security

clearance because of his "past history."”’

To decide the case in the absence of

a Supreme Court decision on point, the

Tenth Circuit discusses Dep't of Navy v.

Egan 464 U.S. 518 (1988) and says of it in

Beattie v. Boeing at 565(A30-31):

Egan thus stands for the proposition

that decisions regarding the grant or

denial of a security clearance are

the province of the Executive Branch.

Although Egan addressed only the

authority of the Merit Systems

Protection Board to review such

decisions, we believe that the

reasoning extends to review by the

courts.

The court of appeals here needlessly

vastly expands the Supreme Court's narrow

holding in Egan, and denies a coordinate

11. Among the items in the Boeing security administrator's

subpoenaed file on Beattie included a copy of the Sept.20,

1986 Wichita Eagle "Religion/Ethics" page, which featured an

interview with Beattie about his peace activities. (A131-34).

20

branch of government, the entire federal

judiciary of the tenth circuit, the right

to decide what is constitutional in the

realm of security clearance decisions.

The court of appeals concludes its

opinion by saying:

Beattie alleges that the denial of

access violated his First Amendment

rights. To consider this claim would

necessarily require us to review the

merits of the decisions to deny

access to the Air Force One area.

This we cannot do. The

unreviewability of the security

clearance decision is a "special

factor counseling hesitation," which

precludes our recognizing a Bivens

claim in this case. Beattie v.,

Boeing 43 F.3d 559, 566 (10th Cir.

1994) (A37).

In Bivens the Supreme Court held that

a cause of action existed for persons

suffering violations of their

constitutional rights arising from the

actions of federal agents under color of

authority. Beattie v. Boeing No. 91-

1050-K MEMORANDUM AND ORDER D.Kan. (1992)

21

at 9 (A55). The court of appeals legal

conclusion is that Boeing was acting as a

federal agent under color of authority, *

and the facts indicate that Boeing revoked

Beattie's security clearance for his "off

duty political activities," which Beattie

alleges violates his First Amendment

rights. The immediate and devastating

damages to Beattie were directly

consequent to Boeing's alleged

unconstitutional conduct. Therefore, a

valid and lawful Bivens claim is made.

SPECIAL FACTORS ANALYSIS

WHEN A PRIVATE PARTY IS MAKING SECURITY

CLEARANCE DECISIONS OVER OTHER PRIVATE

PARTIES, THIS SPECIAL FACTOR CALLS FOR

JUDICIAL ATTENTION, NOT HESITATION

The Court wisely created the rule of

12. Both the relatively unsophisticated Boeing employees and

the relatively sophisticated appellate court judges thought that

Beattie's security clearance revocation by Boeing was de facto

and de jure by the government, and both, in their own way,

gave the government its due deference.

22

"special factors counselling hesitation"

in Bivens actions and have applied it to

Executive Branch security clearance

decisions with crystalline logic.

However, as Holmes observed, "The life of

the law has not been logic, but has been

experience." Holmes, The Common Law at 1.

The Court can say, as it did in Egan, that

"to be denied clearance ... in no way

implies disloyalty or any other repugnant

characteristic," 484 U.S. at 528-29, but,

as Lincoln observed, calling a tail a leg

does not give a dog five legs. Whether

Beattie's harms logically should have

followed as a consequence of his security

clearance revocation by Boeing, they did.

The special factor in this case is

that the security clearance was revoked by

a private party, with private interests of

its own, which clearly will not always

A ERO RAL A SIN ERI IE CMI NOE Ce el alae ae ea or) ae

23

coincide with the People’s. There seems

to be an inherent problem with the

Executive giving such power to civilians

over other civilians, but if the Executive

is going to do so, the Court must be ready

to fulfill its constitutional role

balancing the Executive's power.

The Court must not so restrain itself

that the courts may no longer carry their

Constitutionally assigned duties. In this

case an Article Three court has held that

it is powerless to decide whether an

Executive Branch official carrying out a

Presidential function has violated a

private citizen's First Amendment rights.

I find no authority for such a decision in

the text of the U.S. Constitution, which

does say at Art.3, "The judicial power of

the United States shall be vested in one

Supreme Court and ...such...courts as the

2

;

:

t

;

:

:

24

Congress may ...establish." and that "The

judicial power shall extend to all cases,

in law and equity, arising under this

Constitution...--to controversies to which

the United States shall be a party...."

In contrast to the monarchy they had

so recently overthrown, and feared, the

constitutional framers sought to disperse

authority among three independent branches

of government, equipping the leaders of

each with the "necessary constitutional

means and personal motives to resist

encroachments of the others." James

Madison, The Federalist No. 51, February

6, 1788. The point of the system, as

Justice Brandeis later observed, was "not

to promote efficiency but to preclude the

exercise of arbitrary power." Myers v.

U.S., 272 U.S. 52, 293 (1926). While

there should be considerable differences

ELE HIST SIGNS NNR EE IIR TA SHRI ATA

25

of opinion as to whether a private citizen

security administrator hired by, employed

by, paid by, and supervised by a for-

profit non-governmental transnational

corporation (Boeing) (identified as a

"private party" by the court of appeals)

is actually acting in the best interests

of the United States President in all its

security clearance decisions, there should

be no doubt but that "It is emphatically

the province and duty of the judicial

department to say what the law is."

Marbury v. Madison, 1 Cranch 137 (1803).

"Tf there is any fixed star in our

constitutional constellation, it is that

no official, high or petty, can prescribe

what shall be orthodox in politics,

nationalism, religion, or other matters of

opinion.... If there are any

circumstances which permit an exception,

Bie AK CAIN REINER TT. yn ME Peg ysl e et

pirkae

26

they do not now occur to us." West

Virginia v. Barnette 319 U.S. 624,

(1943). By default, the court of appeals

has said that they have found

circumstances which permit an exception to

a petty official prescribing what shall be

orthodox in politics. The court is also

saying by default that Beattie has no

First Amerdment right to petition the

government for a redress of grievances in

the courts, although the court seems to be

the proper place to go.

Time and again, the Court has rebuked

and rejected efforts to deprive

people from their jobs in state and

federal governments for their mere

beliefs.... In our system, the

courts have the ultimate

responsibility of striking the

balance between the state's right to

protect itself...and the individual's

right to protest, dissent and oppose.

The courts are not instruments

of the executive or legislative

branches of the government. They are

totally independent--subordinate only

to the Constitution and to the rule

of law. Abe Fortas, Concerning

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os

27

Dissent, p. 47,49,50 (1970).

If the Supreme Court lets the court

of appeals holdings stand in this case,

then it is easy to see what security

administrators in private companies in the

Tenth Circuit will be able to do, immune

from Bivens actions: They may revoke the

security clearances of women who refuse to

have sex with them. If pro-life, they may

freely revoke the security clearances of

those who are pro-choice. If pro-choice,

they are free to revoke the security

clearances of those who are pro-life. The

company can intentionally dispose ofa

person with a disability, or one reaching

great age, or a racial minority, or any

member of a judicially or legislatively

protected class with complete immunity

from a Bivens suit. They don't even need

to make up a pretext, because the courts

28

never reach the merits of the claims, so

long as the revocation of a security

clearance is an aspect of what they do.

The Constitution will not be vindicated,

and those puzzled persons who, as

petitioner, are without other statutory or

administrative remedy, will be without

judicial means of redress.

The First Congress, which included

sixteen members of the Constitutional

Convention and many more from state

ratifying conventions, has been

described as almost an adjourned

session of the Convention. It was

here that Congressman Alexander White

argued that it would be better

for the President, "to extend his

power on some extraordinary occasion,

even where he is not strictly

justified by the constitution, than

(that) the Legislature should grant

him an improper power to be exercised

at all times." ... "That this

doctrine was accepted by every single

one of our early statesmen," a

careful scholar, Lucius Wilmerding,

JX., has written, "can easily be

shown. Arthur M. Schlesinger, Jr.

"What The Founding Fathers Intended, Z

The Imperial Presidency, pp.

21(1973).

29

One may fairly substitute the word

"Judiciary" for "Legislature" in the above

quote. It was never the intent of the

framers that the coordinate branches, the

Legislature or the Judiciary, should grant

by act or omission to the Executive such

extraordinary unreviewable power over

private citizens as the court of appeals

has granted the President in this case.

In the cases where a private party is

exercising its security clearance decision

making power over other private parties

under color of executive authority, so

long as the courts have the means to cross

examine witnesses under oath--often called

"the bulwark of liberty"--they will be

competent to fulfill their textual duty

and review the merits of security

clearance decisions allegedly made in

violation of the Constitution.

30

CONCLUSION

For all the foregoing reasons, the

Court should grant the Petition for Writ

of Certiorari.

DATED March 1995.

Respectfully submitted,

ROBERT M. BEATTIE JR., ESQ.

BEATTIE LAW OFFICE

#296, 6505 East Central

Wichita, KS 6/7206

Telephone: (316) 683-5242

Pro se