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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1127

## Text

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

1 GREYS ae

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rea aA eke ha naeia eae SE

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1497%3A1. Public record. Not legal advice.