Appendix — Beattie v. Boeing Co.

~ Supreme Court, U.S.

9) riixz£s

No. 941 6 0 2 mar 39 1995

OFFICE OF THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1994

ROBERT M. BEATTIE JR.,

Petitioner,

THE BOEING COMPANY,

a Delaware Corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

Robert M. Beattie Jr., Esq.

BEATTIE LAW OFFICE

#296, 6505 East Central

Wichita, KS 67206

(316) 683-5242

Pro se

March 1995

i

TABLE OF CONTENTS

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

Tenth Circuit Opinion

Filed December 30, 1994.......

United States District Court

for the District of Kansas

Memorandum and Order

Entered August 10, 1992.......

Tenth Circuit Opinion

P2i0G BOW. 2G, 1998. w sc ccecess

United States District Court

for the District of Kansas

Opinion Filed March 15, 1991..

Other Appended Materials..........

Page

]

Robert M. Beattie, Jr.,

Plaintiff-Appellant,

Vv.

The Boeing Company,

Defendant-Appellee.

No. 92-3314.

United States Court of Appeals

Tenth Circuit. J

Dec. 30, 1994.

James S. Phillips, Jr. of Phillips «

Phillips, Wichita, KS, for plaintiff-

appellant.

Timothy B. Mustaine (Mary Kathleen

Babcock and Susan Lee Smith, on the

brief), of Foulston & Siefkin, Wichita,

KS, for defendant-appellee.

Before BRORBY, HOLLOWAY and KELLY,

Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff-appellant Robert A. [sic]

Beattie, Jr. (Beattie) appeals from a

summary judgment entered in favor of

defendant-appellee The Boeing Company

(Boeing) on Beattie's Bivens (Footnote 1)

2

claim for violation of his First Amendment

right of free speech. (Footnote 2). The

judgment followed an unpublished

Memorandum and Order. We affirm.

Footnote 1. Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403

U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619

(1971).

Footnote 2. While the court also granted

summary judgment on Beattie's claim for

interference with prospective economic

advantage under Kansas law, Beattie does not

appeal this part of the court's ruling.

I

In 1984 Beattie was employed as a

firefighter with the Boeing Fire

Department. Appellant's Appendix

(Appendix.) at 50, 175. In 1986 Boeing

contracted with the United States to build

two Air Force One planes for the use of

3

the Sreunaens of the United States. Id.

at 51 The contract there were two types

of access clearance: unescorted and

escorted (i.e., access in the company of a

person with unescorted access clearance).

Only the Air Force could grant unescorted

access. However, Boeing could grant

escorted access, subject to Air Force

Override. Id. at 137-139, 141, 143, 200,

205-7, 222-23, 226. Applicants for either

type of access clearance were subject to a

background check to determine if they

satisfied the clearance criteria set forth

in the contract including "unquestioned

loyalty to the United States." Id. at

324. The criteria for both types of

access were specified in the contract's

Annex 2, on special security requirements.

Appendix. at 263a, 324-25. Physical

access to the Air Force One area was

4

monitored and controlled by Air Force

guards, assisted by Boeing employees. Id.

at 143-44, 279-83, 286.

The parties disagree as to whether

Beattie ever had any access clearance,

whether escorted or unescorted. Beattie

Claims that prior to February 1989 he had

escorted access clearance and had entered

the secured area on at least seven

occasions to perform work-related duties.

Id. at 180-91; Brief of Appellant at 5-6.

(footnote 3).

Footnote 3. The cestimony of two other Boeing

employees corroborates Beattie's claim that he

previously had access to the Air Force One

area. A Boeing security guard testified that

he had escorted Beattie into the restricted

area on several occasions in order for Beattie

to issue permits for cutting or welding on the

aircraft. Appendix at 283-84, 286. Another

Boeing employee testified that he [sic] had

5

seen Beattie in the Air Force One area between

one and five times before Beattie's name was

removed from the entry control list, the list

of persons allowed to enter the area, by order

of Boeing's security administrator. fTId. at

320-21.

Boeing contends that "the credible

uncontroverted evidence is that plaintiff

did not have such access clearance and

that plaintiff was never on the escorted

access list." Brief of Appellee at 7.

(Footnote 4).

Footnote 4. The district court apparently

adopted Boeing's characterization of the

evidence. In its Memorandum and Order

granting summary judgment, the court stated

that "[{a]lthough Beattie had a general Boeing

security clearance, he had not received Air

Force One clearance." Brief of Appellant,

App. at 4.

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6

On February 11, 1989, Beattie

requested entry to the Air Force One area

in order to check certain fire valves, but

his request was denied by the Air Force

days later, Beattie asked the fire chief,

Roger Xanders, what the reason was for the

denial. Xanders told him that Boeing's

Security Administrator, James Barton, had

decided to take Beattie off the Air Force

One project because of his previous off-

duty political activities, including

certain anti-nuclear activities. Id. at

188-89, 191, 232-33, 254. (Footnote 5).

Xanders further indicated that he had

included Beattie on

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for whom Xanders was seeking "optimum

Presidential security clearance" but that

Barton had ordered Beattie's name taken

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Footnote Beattie summarizes his past

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poiiticai activities as follows: My political

to the editor and the members of Congress,

making speeches, running for the Legislature

for Dukakis, organizing a group of

firefighters to work for prevention of nuclear

war and other mainstream activities:;. I have

spoken out on the issues related to nuclear

Footnote 6. In his deposition, Xanders

testified that he submitted Beattie's name to

Barton for approval for escorted access

Clearance. App. at 232. Xanders further

testified that Barton instructed him to remove

Beattie’s name from the list because of his

off-duty political activities. JId. at 232-

2320

8

According to Beattie, Barton told him

that he had been taken off the Air Force

One project and the list of potential

candidates for "optimum Presidential

security clearance” because his prior

anti-nuclear activities called into

question his loyalty to the United States

and, hence, his eligibility for access

clearance under the Air Force contract.

1ecision to remove Beattie from the list

of candidates for access clearance was

neither reviewed nor confirmed by his

Superiors at Boeing or by the Air Force.

Ep J y

4 *) | ‘5

Id. at 205, 21 —12.

On March 3, 1989, Beattie wrote a

memorandum to Xanders requesting that his

y pare be submitted “for the Air Force

Clearance described to me by Mr. Barton

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9

‘optimum Presidential security

clearance.'" Appellee's Supp.App.

(Supp.App.) at 91, which Beattie

understood to mean escorted access

ciearance. App. at 114, 115. Xanders

passed the request on to his superiors at

Boeing, including Barton, Adolph Lomely,

Jr. (Boeing's manager of program

security), Natt J. Addleman (Boeing's

manager for information security), and

Kerry D. Crisp (Boeing's manager of

security and fire protection). Id. at

213-14, 218; Supp.App. at 218.

In the course of an initial

investigation of Beattie's background and

Suitability for access clearance, Barton

provided Lomely with information about

some of Beattie's "anti-nuclear

activities," and Lomely passed the

information on to Addleman. App. at 214,

10

334. Based on this information and a

Boeing Defense Investigative Service

report detailing two previously

undisclosed contacts between Beattie and

citizens of the Soviet Union, (Footnote 8)

the Boeing managers concluded that

Beattie's request for escorted access

should be referred to the Air Force. Id.

at 214-18, 221-22, 288-91.

Footnote 7. In his deposition, Barton denied

that he intended to question Beattie's loyalty

to the United States. Appellee's Supp.App. at

42

ae.

Footnote 8. The report dated March 24, 1989,

noted two contacts between Beattie and Soviet

citizens. App. at 317. In April 1986,

Beattie reportedly contacted the Soviet

Embassy in Washington, D.C., to express his

sympathy in connection with the death of

Chernobyl firefighters. Jd. And in March

1]

1987, Beattie reportedly spoke with a Soviet

doctor at a conference in Chicago, Illinois,

about remarks made by a certain senator. Id.

Under the Boeing Security Manual for

Safeguarding Classified Information § 2.1(J),

the foregoing contacts should have been

reported in advance to Boeing's Security

Administration, but Beattie did not report the

incidents until March 24, 1989. Supp.App. at

a3, 156.

Accordingly on May 10, 1989, Crisp

sent a letter to the appropriate Air Force

representative requesting that the Air

Force decide whether Beattie's request

should be approved because "unique

circumstances" precluded Boeing from

making a “fair and just determination."

Supp.App. at 8l.

The special circumstances

referred to ... concern a report to

the Defense Industrial Security

Clearance Office ... This report was

prompted by our learning of Mr.

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12

Beattie's making contact with

representatives from designated

countries and failing to report that

contact. The findings of any

investigation resulting from this

report could influence an access

decision. We are not, however, privy

to this information and therefore are

unable to make an informed

determination in this case.

In July 1989 the Air Force determined

that "[{b]ased on Mr. Beattie's past

history, he is not authorized escorted or

unescorted access to the [Air Force One]

security area." (Footnote 9). Supp.App.

at 82. Beattie remained at Boeing until

June 1990 when he resigned his employment

as a firefighter to attend law school.

Id. at 7; Brief of Appellee at 15.

Beattie filed the instant suit

against Boeing in 1991 alleging that his

loss of access clearance had damaged his

reputation, caused him to lose promotional

opportunities, and led to harassment on

13

the job which resulted in mental distress.

App. at 7-8. (Footnote 10). Following

extensive discovery, Boeing filed a motion

for summary judgment, arguing that (1) no

Bivens action can be maintained against a

private corporation such as Boeing, and

(2) even if a Bivens action could in

theory be asserted against Boeing,

Beattie's claim against the company fails

because Boeing was not engaged in federal

action. App. at 65(1) and 65(0).

In granting summary judgment, the

district court did not decide whether a

Bivens claim can be asserted against a

nongovernmental entity such as Boeing.

Instead, the court based its ruling on its

finding that Boeing had not engaged in

governmental action in connection with the

refusal to grant Beattie access to the Air

Force One area. Specifically, the court

14

concluded that Boeing had not "engaged in

joint activity with the Air Force" because

the company "made no recommendation as to

whether [{Beattie's access] request should

be allowed or denied"; rather, "[i]t was

the Air Force which denied Beattie's

request for clearance." Id. at 59-60

(citing and distinguishing Lusby v. T.G. &

Y. Stores, Inc., 749 F.2d 1423, 1430 (10th

Cir. 1984), cert denied, 474 U.S. 818, 106

S.Ct. 65, 88 L.Ed.2d 53 (1985), and cert.

granted, decision vacated and remanded for

reconsideration by City of Lawton v.

Lusby, 474 U.S. 805, 106 S.Ct. 40, 88

L.Ed.2d 33 (1985) (mem.), reaff'd on

reconsideration, 796 F.2d 1307 (10th

Cir.), cert. denied, 479 U.S. 884, 107

S.Ct. 275, 93 L.Ed.2d 251 (1986)).

The court concluded that Boeing's

affairs were not "so intertwined with

15

those of the government that it may be

said to have acted on behalf of the

government," and the government "did not

‘delegate’ decision-making responsibility

for security to Boeing" so as to permit

Boeing to exercise powers traditionally

reserved exclusively to the government.

App. at 59-60. Instead, the court found

that the Air Force merely allowed Boeing

to “take action with regard to limited

security clearance," subject to Air Force

Override, and held that Boeing's

activities did not amount to governmental

action subject to constitutional scrutiny

and potential Bivens liability. Id. at

60-61.

Footnote 9. In the same letter, the Air Force

expressed concern that Boeing "didn't

disqualify Mr. Beattie based on the report

made to the Defense Investigative Service."

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16

Supp. App. at 33, 158.

Footnote 10. Beattie previously brought a

civil rights suit against the United States,

seeking declaratory and injunctive relief

premised on the same adverse action concerning

access to the Air Force One area which is

alleged in the instant case. Summary judgment

was granted for the government due to lack of

jurisdiction to review the security decision

and lack of merit to the constitutional claims

asserted. Beattie v. United States, 759

F.Supp. 753 (D.Kan.1991). We dismissed the

appeal of that judgment because the cause had

become moot due to buattie's unilateral

termination of his employment with Boeing, and

we remanded the case to the district court

with directions to vacate its judgment and

dismiss the action for want of jurisdiction.

Beattie v. United States, 949 F.2d 1092, 1095

(10th Cir. 1991).

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17

The Availability of a Bivens Remedy

The threshold question in this appeal

is whether we should recognize a Bivens

action in this case. If we cannot

recognize a Bivens action under these

facts, then the district court's grant of

Summary judgment in favor of Boeing must

be affirmed.

For reasons given below, we are

convinced that there are "special factors

counseling hesitation" before recognizing

a Bivens action in these circumstances.

Bivens v. Six Unknown Named Agents of the

Fed. Bureau of Narcotics, 403 U.S. 388,

396, 91 S.Ct. 1999, 2004, 29 L.Ed.2d 619

(1971). While defendant Boeing does not

frame its appellate propositions and

arguments in these terms, its brief before

us does refer to the "special factors"

55 peal

18

uae which we feel requires our

holding that we should not recognize a

Bivens claim here. (Footnote 11j. In any

event, we are obliged to make this

analysis because "(bJefore a Bivens remedy

may be fashioned ... a court must take

into account any 'special factors

counseling hesitation.'" Chappell v.

Wallace, 462 U.S. 296, 298, 103 S.Ct.

2362, 2365, 76 L.Ed.2d 586 (1983) (emphasis

added); see also Bush v. Lucas, 462 U.S.

367, 378, 103 &.Ct. 2404, 2411, 76 L.Ed.2d

648 (1983) (federal courts must, in making

a remedial determination appropriate for a

common-law tribunal, pay “particular heed,

however, to any special factors counseling

hesitation before authorizing a new kind

of federal litigation"). Here we find

that the predominant issue of national

security clearances amounts to such a

19

special factor counselling against

recognition of a Bivens claim in this

case.

In Bivens, the Supreme Court

recognized that a violation of the Fourth

Amendment "by a federal agent acting under

color of his authority gives rise to a

cause of action for damages consequent

upon his unconstitutional conduct." 403

U.S. at 389, 91 S.Ct. at 2001. The Court

noted that Congress had not specifically

provided for a damages remedy for Fourth

Amendment violations by federal agents and

that "the Fourth Amendment does not in so

many words provide for its enforcement by

an award of monetary damages for the

consequences of its violation." Id. at

396, 91 S.Ct. at 2004. The Court noted,

however, that "(t]he present case involves

no special factors counseling hesitation

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20

in the absence of affirmative action by

Congress," id, and therefore held that

Bivens could maintain an action for

damages against the federal agents who

allegedly violated his Fourth Amendment

rights.

Footnote 11. In its brief before us, Boeing

mentioned the "special factors" analysis while

addressing its argument that Boeing did not

act under color of federal law or engage in

federal action:

In [Stevens v. Morrison-Knudsen Saudi

Arabia Consortium, 576 F.Supp. 516

(D.Md.1983), aff'd, 755 F.2d 375 (4th

Cir. 1985)], the defendant was a private

corporate employer under a substantial

construction project with the United

States Army Corps of Engineers. The

court in Stevens first noted that a

Bivens cause of action is narrow and that

the United States Supreme Court has

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21

cautioned that even where a Bivens claim

might otherwise lie, the remedy may be

unavailable where "special factors

counseling [sic] hesitation" exist. 576

F.Supp. at 520, quoting Bivens, 403 U.S.

at 396 [91 S.Ct. at 2004].

Brief of Appellee at 22.

Moreover, Beattie treated the special

factors analysis, although briefly, in his

Reply Brief of Appellant at 12, stating:

"There are no special considerations which

should block applicability of Bivens and hence

the First Amendment to this case. This Court

should recognize the viability of Bivens-style

actions against private corporations who act

under color of federal law." Further Beattie

argued that defendant Boeing omitted from its

discussion of Gerena v. Puerto Rico Legal

Serv., Inc., 697 F.2d 447 (lst Cir.1983), the

fact that the decision "did not deem

defendant's private status as a special factor

counselling hesitation." Jd. at 11. Thus,

22

the "special factors" analysis was mentioned,

although briefly, by the parties.

Bivens actions have also been

recognized for violations of the equal

protection component of the Fifth

Amendment Due Process Clause, Davis v.

Passman, 442 U.S. 228, 99 S.Ct. 2264, 60

L.Ed.2d (1979), and the Eighth Amendment

Cruel and Unusual Punishment Clause,

Carlson v. Green, 446 U.S. 14, 100 S.Ct.

1468, 64 L.Ed.2d 15 (1980). (Footnote

12). "In each of these cases, as in

Bivens itself, the Court found that there

were no ‘special factors counseling

hesitation in the absence of affirmative

action by Congress,' no explicit statutory

prohibition against the relief sought, and

no exclusive statutory alternative

69)

remedy." Schweiker v. Chilicky, 487 U.

eee ee i a a A al ih i a a a ta

23

412, 421, 108 S.Ct. 2460, 2566, 101

L.Ed.2d 370 (1988). In Chilicky the Court

stated:

In sum, the concept of "special

factors counselling hesitation in the

absence of affirmative action by

Congress" has proved to include an

appropriate judicial deference to

indications that congressional

inaction has not been inadvertent.

When the design of a Government

program suggests that Congress has

provided what it considers adequate

remedial mechanisms for

constitutional violations that may

occur in the course of its

administration, we have not created

additional Bivens remedies.

iq@. at 423, 108 S.Ct. at 2467,

In more recent decisions, the Court

has "responded cautiously to suggestions

that Bivens remedies be extended into new

contexts. The absence of Statutory relief

for a constitutional violation, for

example, does not by any means necessarily

imply that courts should award money

damages against the officers responsible

dpi ercs ad Tere eee ee eee ee fa) is

24

for the violation." Chilicky, 487 U.S.

412, 421-22, 108 S.Ct. 2460, 2466-67. In

each case, the Court has examined whether

there is an alternative remedy or whether,

even in the absence of an alternative

remedy, "special factors" preclude a

Bivens action.

Footnote 12. The Supreme Court has declined

to recognize Rivens actions involving alleged

First Amendment violations in some

circumstances. See, e.g., Bush v. Lucas, 462

U.S. 367, 368, 103 S.Ct. 2404, 2406, 76

L.Ed.2d 648 (1983) (refusing to allow Bivens

action for violations of federal employee's

First Amendment rights by his superiors

because the employment relationship was

“governed by comprehensive procedural and

Substantive provisions giving meaningful

remedies against the United States.").

However, whether a Bivens actions exists must

be decided on a case by case basis, including

25

consideration of whether special factors may

counsel hesitation in recognizing such a

claim.

We note that we have previously

recognized Bivens actions for violations of

the First Amendment where federal employees

infringe on rights of association and

expression. See Nat'l Commodity and Barter

Ass'n v. Gibbs, 886 F.2d 1240, 1248 (10th Cir.

1989) (per curiam); Nat'l Commodity and Barter

Ass'n v. Archer, 31 F.3d 1521, 1529-31 (10th

Cir. 1994); accord Dellums v. Powell, 566 F.2d

167, 195-96 (D.C.Cir.1977), cert. denied, 438

U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161

(1978); Gibson v. United States, 781 f.2d

1334, 1342 (9th Cir. 1986), cert denied, 479

U.S. 1054, 197 S.Ct. 928, 93 L.Ed.2d 979

In Chappell v. Wallace, 462 U.S. 296,

103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), the

Court unanimously refused "to create a

Bivens action for enlisted military

26

personnel who alleged that they had been

injured by the unconstitutional actions of

their superior officers," Chilicky, 487

U.S. at 422, 108 S.Ct. at 2467, despite

the fact that the personnel had no remedy

against the government. The Court noted

that "the unique disciplinary structure of

the Military Establishment and Congress'

activity in the field constitute "special

factors' which dictate that it would

inappropriate to provide enlisted military

personnel a Bivens-type remedy against

their superior officers." Chappell, 462

U.S. at 304, 103 S.Ct. at 2367.

In United States v. Stanley, 483

U.S. 669, 681, 107 S.Ct. 3054, 3062, 97

L.Ed.2d 550 (1987), the Court stated the

general proposition that Bivens actions

should never be allowed for military

personnel where the alleged "injury arises

27

out of activity ‘incident to service.'"

(Footnote 13). The “special factor"

counselling hesitation was "the fact that

congressionally uninvited intrusion into

military affairs by the judiciary is

inappropriate." Id. at 683, 107 S.Ct. at

3063. Thus, "no Bivens remedy is

avallable for injuries that ‘arise out of

Or are in the course of activity incident

to service.'" Id. at 684, 107 S.Ct. at

3064 (citation omitted).

Footnote 13. Stanley arose out of the Army's

program of secret testing of the drug lysergic

acid diethylamide (LSD). Stanley was a master

sergeant at Fort Knox who had volunteered in

1958 to test the effectiveness of protective

clothing and equipment as defenses against

chemical warfare. Instead, he was secretly

administered doses of LSD four times in a

month. He suffered hallucinations, periods of

28

incoherence and memory loss, among other

adverse effects. It was not until late 1975

that he learned he had been given LSD. See

Stanley, 483 U.S. at 671-72, 107 S.ct. at

3057-58.

The Supreme Court has not

specifically addressed whether the denial

of a security clearance can be grounds for

a Bivens action. However, in Dep't of

Navy v. Egan, 484 U.S. 518, 108 S.ct. 818,

98 L.Ed.2d 918 (1988), the Court

considered "whether the Merit Systems

Protection Board (Board) has authority to

review the substance of an underlying

decision to revoke a security clearance in

the course of reviewing an adverse

action." Id. at 520, 108 S.Ct. at 820.

In concluding that it did not, the Court

noted that "the grant of security

clearance to a particular employee, a

sensitive and inherently discretionary

ae eS eee aia

29

judgment call, is committed by law to the

appropriate agency of the Executive

Branch.” Id. at 527, 108 $.Ct. at 824.

The Court emphasized:

The President, after all, is the

"Commander in Chief of the Army and

Navy of the United States." U.S.

Const., Art. II, § 2. His authority

to classify and control access to

information bearing on national

security and to determine whether an

individual is sufficiently

trustworthy to occupy a position in

the Executive Branch that will give

that person access to such

information flows primarily from this

constitutional investment of power in

the President and exists quite apart

from any explicit congressional

grant.

It should be obvious that no one

has a "right" to a security

Clearance. The grant of a security

clearance requires an affirmative act

of discretion on the part of the

granting official. The general

Standard is that a clearance may be

granted only when "clearly consistent

with the interest of the national

security." [citations omitted].

Predictive judgments of this

kind must be made by those with the

necessary expertise in protecting

ere rs ee eee. Se ee eee ee PIE on

30

classified information. For "reasons

too obvious to call for enlarged

discussion," [citation omitted], the

protection of classified information

must be committed to the broad

discretion of the agency responsible,

and this must include broad

discretion to determine who may have

access to it. Certainly, it is not

reasonably possible for an outside

nonexpert body to review the

substance of such a judgment and to

decide whether the agency should have

been able to make the necessary

prediction with confidence. Nor can

such a body determine what

constitutes an acceptable margin of

error in assessing potential risk....

Thus, unless Congress has

specifically provided otherwise,

courts traditionally have been

reluctant to intrude upon the

authority of the Executive in

military and national security

affairs. [citations omitted].

Id. at 527-530, 108 S.Ct. at 824-825.

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

31

review such decisions, we believe that the

reasoning extends to review by the courts.

See Hill v. Dep't of Air Force, 844 F.2d

1407, 1411-13 (10th Cir.), cert. denied,

488 U.S. 825, 109 S.Ct. 73, 102 L.Ed.2d 49

(1988). Like the Board, we are an

"outside nonexpert body" unqualified to

second-guess the judgment of the

President, acting through his officials in

the Executive Branch, on whether to grant

Or deny a security clearance. As we said

in Hilis:

The Executive Branch has

constitutional responsibility to

Classify and control access to

information bearing on national

security. A security clearance is

merely temporary permission by the

Executive for access to national

secrets. It flows from a

discretionary exercise of judgment by

the Executive as to the Suitability

of the recipient for such access,

consistent with the interests of

national security.

Id.

32

In Hill, the district judge had

granted a preliminary injunction requiring

the Air Force to reinstate the plaintiff's

security clearance. 844 F.2d at 1408.

The district judge found that the Air

Force's action in suspending the

plaintiff's clearance had deprived

plaintiff of his Fifth Amendment rights to

equal protection and due process. On

appeal, we applied the rationale of Egan

and held that the district court had no

authority to review the Air Force's

suspension of Hill's security clearance:

[Egan] removes any doubt regarding

the authoritv of federal courts to

review the merits of the grant or

denial of security clearances. Under

any circumstances which might be

germane to this case there is no such

authority. As is indicated by the

Supreme Court's statement of the

question in that case, Egan extends

to the merits of suspension,

modification, or revocation of a

previously granted security

clearance, since the underlying

rationale applies with equal logic to

33

revocation as it does to an initial

grant of authority. These matters

are a "sensitive and inherently

discretionary judgment call

committed by law to the appropriate

agency of the Executive Branch."

Id. at 1409 (citation omitted). See also

Dorfmont v. Brown, 913 F.2d 1399, 1401

(9th Cir.1990) ("'[w]Je have no more

business reviewing the merits of a

decision to grant or revoke a security

clearance than does the [Merit Systems

Protection Board]. Thus, the reasoning

behind Egan precludes this type of

judicial review."), cert. denied, 499 U.S.

905, 111 S.Ct. 1104, 113 L.Ed.2da 214

(1991). We believe the reasoning of Egan

and Hill applies to this case as well.

In a prior lawsuit arising out of the

Same underlying facts, Beattie sued the

United States alleging, as he has here,

that denying his access to the Air Force

One area violated his constitutional

neo

> gia ania Dee cana ek als Raps ttn ut ahaa Oe: Fee HE a eae: ny “

34

rights. Beattie v. United States, 759

F.Supp. 753 (D.Kan.1991) (Beattie I),

vacated as moot, 949 F.2d 1092 (10th

Cir.1991). The district court in Beattie

I granted the government's motion for

Summary judgment, stating:

The decision whether to allow access

to the Air Force One area is the same

type and quality and requires the

Same predictive judgment as the

decision whether to grant a security

clearance. The only distinction

appears to be one of degree. An

employee with secret security

clearance is not necessarily allowed

escorted or unescorted access to the

Air Force One area. This court

concludes it cannot judicially review

the merits of the Air Force's

decision to deny the plaintiff access

to this secured area. This court is

in no position to second-guess that

decision.

759 F.Supp. at 759 (emphasis

added) (citation omitted). Addressing

Beattie's claim that his First Amendment

right to free speech was violated, the

court concluded:

b

35

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.

Id. 762. We agree with this sound

reasoning and decide the current lawsuit

on the same grounds.

To be sure, the case before us

involves a private party rather than a

government agency. However, Boeing's

limited authority to grant or deny

escorted access clearance derived solely

from its contract with the Air Force.

App. at 137-41, 205-07, 222-23, 226.

(Footnote 14). Boeing's authority was

thus delegated to it by the Air Force, and

hence by the Executive Branch. We see no

compelling reason to treat the security

36

clearance decision by Boeing differently

than the similar decision made by the Air

Force. Both decisions represent the

exercise of authority delegated by the

Executive Branch and are entitled to

appropriate deference by the federal

courts. See Beattie I, 759 F.Supp. at

759. Therefore, we conclude that we may

not review Boeing's action or that of the

Air Force in denying Beattie access to the

Air Force One area. (Footnote 15).

Footnote 14. According to deposition

testimony, in making decisions regarding

security clearance Boeing was required to

apply the standards set forth in the contract,

including ascertaining whether an applicant

possessed "unquestioned loyalty to the United

States." App. at 137-41, 205-07, 222-23, 226;

Supp.App. at 118.

Footnote 15. At this time, we need not

by SELES ES IEE RY PEE EI EBT) PCE IE A EB

37

resolve whether such denials are unreviewable

under all circumstances. See Jamil v. Sec’y,

Dep't of Defense, 910 F.2d 1203, 1207 (4th

Cir. 1990) ("we need not and do not reach the

question of whether Egan precludes courts from

reviewing security clearance decisions for

pretext in the context of ... a Title VII

claim of discrimination.")

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

counselling hesitation," which precludes

Our recognizing a Bivens claim in this

case.

AFFIRMED.

38

In The United States District Court

For the District of Kansas

ROBERT M. BEATTIE, JR.,

Plaintiff,

VS.

THE BOEING COMPANY,

Defendant.

No. 91-1050-K

MEMORANDUM AND ORDER

August 10, 1992

PATRICK F. KELLY, Chief Judge.

Robert Beattie joined the Boeing Fire

Department on October 1, 1984. Asa

firefighter at Boeing, Beattie was a

member of the International Union, United

Plant Guard Workers of America. The terms

and conditions of Beattie's employment

were defined by a collective bargaining

agreement between Boeing and the union.

39

The agreement includes a provision

imposing mandatory grievance procedures.

In addition, the collective

bargaining agreement required Beattie to

maintain a governmental security

clearance. The security clearance

requirement includes provisions contained

in Boeing's Security Manual for

Section 2.1(J) of the manual requires that

personnel with clearances must report to

security administrators 30 days before

attending "a meeting where representatives

of Designated Countries may be in

attendance." The manual also requires

that persons with security clearances must

report in writing the nature of their

contacts with the agents of "Designated

Countries." The manual expressly includes

the former USSR in its list of designated

OC OO ao

40

countries.

In 1986, Beattie telephoned the

Soviet Embassy to express his condolence

to the families of Soviet firefighters

killed at Chernobyl. In 1987, Beattie

attended a national convention of the

Physicians for Social Responsibility. At

this convention, he spoke with one Dr.

Okdem Keshaashivili, a Soviet physician

and representative of a Soviet anti-

nuclear organization. Beattie made

another telephone call to the Soviet

Embassy at about the same time.

Beattie mentioned these contacts to

other persons at the Boeing Fire

Department. However, it is uncontroverted

that Beattie filed no written report of

his telephone contacts, nor did he file a

report prior to attending the conference

4)

where he spoke with Dr. Keshasshvili.'

Beattie was the subject of a 1988

investigation by the Defense Investigative

Service (DIS). The DIS investigation

occurred without the knowledge of Boeing.

DIS took no adverse action against Boeing

as a result of its investigation.

In 1986, Boeing entered into a

contract with the United States Air Force

under which it would produce two airplanes

to replace the current Air Force One.

Under the contract, the area in which

Boeing would construct the designated

airplanes was a secured area. In order to

enter the area, Boeing employees had to

obtain formal access clearance. Access

|. Beattie was also engaged in domestic activities relating to

nuclear war, to which he was opposed. On September 20,

1986, an article mentioning Beattie's participation in various

disarmament organizations was published in the local

newspaper.

42

clearance might take the form of either

escorted access or unescorted access.?

Each department manager at Boeing

(including Roger Xanders, Chief of the

Boeing Fire Department) was allowed a

given number of security clearances which

they might allocate.’ The decision of a

manager to deny a request for clearance

was not reviewable by higher level

management; it was a matter left to the

discretion of the department manager.

When the manager did agree to process an

individual's request for Clearance, the

2. This access clearance is separate and distinct from the

general security clearance maintained by Beattie as a member

of the Boeing Fire Department. An individual might be denied

access Clearance without any negative effect on his general

security clearance.

3. Xanders has testified that although the size of his clearance

allotment might vary over time, he was generally "only allotted

SO man," Or was give "X amount of folks" for who clearances

might be obtained.

43

request was forwarded by the manager to

James Barton, Air Force One Program

Security Administrator.

No person had a right to work in the

Air Force One area. Under contract

between the Air Force and Boeing, a

background investigation was required of

each person seeking access to the Air

Force One area. As program security

administrator, Barton had discretion to

deny or revoke requests for escorted

access to the Air Force One area. If the

case was questionable, Barton referred the

matter to his superiors at Boeing, Adolph

Lomely (Manager of Program Security), and

Nathaniel Addleman (Manager of Information

Security and Fire Protection Engineering).

However, independent of the decisions

made by Boeing security personnel as to

requests for escorted access, the Air

44

Force retained the final power to

determine whether a given person should or

Should not have access. The Air Force

possessed the authority to completely

exclude any individual from access to the

Air Force One area. The criteria by which

persons might be granted escorted access

into the Air Force One area were specified

by the Air Force, not Boeing. Finally,

only the Air Force could extend unescorted

access to the Air Force One area.

Beattie told Xanders that he wished

to be considered for access clearance to

the Air Force One area. Although Beattie

had a general Boeing security clearance,

he had not received Air Force One access

Clearance. Xanders promised to check with

Barton about access clearance for Beattie.

In late 1988 or early 1989, Xanders

spoke with Barton. Barton expressed

ee

45

concern to Xanders about Beattie's Soviet

contacts, and stated that to process the

request would present the risk that

Beattie might lose his security clearance

because of the resulting government

investigation. However, if a request was

submitted, Barton indicated he would not

refuse it, but would treat the request

like that of any other person.

On February 13, 1989, Beattie asked

Xanders about the status of his access

request. Xanders told Beattie that he had

not formally forwarded a request for

access clearance, since the fire

department's allotment of access

clearances had been filed and since

Beattie was not needed in the Air Force

One area. He also related the concern

that had been expressed by Barton--that

pursuing the matter might result in the

Sl —_

46

loss of Barton's [sic] security clearance

after a government investigation. If

Beattie had any questions, Xanders Said,

he should speak with Barton.

Later that month, Beattie met with

Barton. Barton told Beattie that he

thought Beattie's chances for obtaining

clearance were very poor under the

circumstances.

After this meeting, Beattie filed a

position statement Stating that he had

been taken off the Air Force One project

"solely because of my political

activities." However, Beattie filed no

formal grievance over the matter. The

president of his. union local told him that

he did not believe the matter should be

grieved. Beattie signed an agreement

holding the union harmless if, as a result

of further actions on his part, he lost

47

his security clearance.

On March 3, 1989, Beattie requested

through Xanders that Boeing submit his

name for an Air Force One clearance from

the government. In his request, Beattie

asked for "optimum Presidential security

Cclearance."* At that time, no member of

the Boeing Fire Department had unescorted

access, and only a minority of the

firefighters had escorted access, to the

Air Force One area.

Chief Xanders submitted the request

to Barton on March 9.° Barton prepared a

4. "Optimum" is defined as "most favorable or most conducive

to a given end esp[ecially] under fixed conditions." Webster's

Third International Dictionary, (3rd ed.). In his response to

Boeing's motion for summary judgment, Beattie contends that

he only meant to apply for escorted access. Whatever Beattie

may have subjectively intended, the request itself reflects an

intention to obtain the greatest possible level of clearance.

5. Beattie contends that as a result of this request, Barton

instructed Xanders to "take his [Beattie's] name off the list" of

persons with escorted access. This is a misrepresentation of

48

file on the subject which he passed on to

his superiors, Lomely and Addleman. The

clearance request was then considered by

Lomely and Addleman along with Kerry

Crisp, the head of security at Boeing.

In reviewing the request, the three

security administrators learned of

Beattie's Soviet contacts and the failure

to file the required written reports. In

addition, Boeing by this time had also

learned of the 1988 DIS investigation.

The results of that investigation remained

unknown to Boeing. Lomely, Addleman and

Crisp concluded that the matter was a

“grey area" which should not be decided by

Boeing, and that the extent of access, if

any, was a matter which should be

the cited portion of Xander's testimony. The uncontradicted

facts establish that Beattie was never on this list of persons

with access (escorted or unescorted) to the Air Force One

area.

a

49

determined solely by the Air Force. This

decision was based on their determination

that the Air Force was the more

appropriate entity to decide such matters,

coupled with the belief that the Air Force

was likely to be aware of the results of

the DIS investigation.

On May 10, 1988, Crisp forwarded

Beattie's request to Captain Barry Graham

of the Air Force. Having learned of both

Beattie's Soviet contacts and his

reporting failures, Lomely, Addleman and

Crisp were required by the security manual

to convey this information to the

government. Accordingly, an adverse

information report was filed with the DIS.

On July 27, 1989, the Air Force

decided that Beattie should have neither

escorted nor unescorted access to the Air

Force One area.

50

Beattie continued to work at Boeing

until June, 1990, when he voluntarily left

work to attend law school. Until his

resignation, he retained his general

security clearance and remained fully

eligible to serve as a member of the

Boeing Fire Department. The denial of Air

Force One access clearance did not affect

Beattie's job rating, hours, Salary, or

eligibility for raises.

Beattie contends that because he was

denied access to the Air Force One area,

he lost the opportunity to obtain a

promotion to lieutenant in the Boeing Fire

Department. Beattie has offered no

credible evidence that Air Force One

acceSs wasS a requirement for advancement

to the position of lieutenant. In

addition to his own conclusory

allegations, not based on personal

51

knowledge, that he was denied the position

because his request for access had been

denied, Beattie simply cites the testimony

of two fire department lieutenants.

This testimony indicates at most that

these individuals "occasionally" enter the

Air Force One area. The testimony does

not indicate that such entry (access

clearance) is in itself a requirement for

advancement to the position of lieutenant.

On the other hand, there is uncontroverted

testimony by Chief Xanders that Air Force

One area access was not a prerequisite for

advancement to the position of lieutenant.

Beattie has alleged a Bivens-type

claim, contending that Boeing violated his

First Amendment rights. Second, he

contends that Boeing committed the tort of

interfered-with prospective advantage.

Boeing has now moved for summary judgment

5

f

52

on both claims advanced by Beattie. Oral

argument relating to this motion was

presented to the court in a hearing held

July 15, 1992,

Summary judgment is proper where the

pleadings, depositions, answers to

interrogatories, and admissions on file,

together with affidavits, if any, show

there is no genuine issue as to any

material fact, and that the moving party

is entitled to judgment as a matter of

law. Fed.R.Civ.P. 56(c). In considering

a motion for summary judgment, the court

must examine all evidence in a light most

favorable to the opposing party. McKenzie

Vv. Mercy Hospital, 854 F.2d 365, 367 (10th

Cir. 1988). The party moving for summary

judgment must demonstrate its entitlement

to summary judgment beyond a reasonable

doubt. Ellis v. E] Paso Natural Gas Co.,

ree eet =~

53

754 F.2d 884, 885 (10th Cir. 1985). The

moving party need not disprove plaintiff's

Claim; it need only establish that the

factual allegations have no legal

Significance. Dayton Hudson Corp, v.

Macerich Real Estate Co,, 812 F.2d 1319,

1323 (10th Cir. 1987).

In resisting a motion for summary

judgment, the oppos‘ng party may not rely

upon mere allegations or denials contained

in its pleadings or briefs. Rather, the

nonmoving party must come forward with

specific facts showing the presence of a

genuine issue of material fact for trial

and significant probative evidence

Supporting the allegation. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 256

(1986). Once the moving party has carried

its burden under Rule 56(c), the party

opposing summary judgment must do more

54

than simply show there is some

metaphysical doubt as to the material

facts. "In the language of the Rule, the

nonmoving party must come forward with

‘specific facts showing that there is a

genuine issue for trial." Matsushita

Elec. Indus. Co., Ltd, v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986) (quoting

Fed.R.Civ.P. 56(e)) (emphasis in

Matsushita). One of the principal

purposes of the summary judgment rule is

to isolate and dispose of factually

unsupported claims or defenses, and the

rule should be interpreted in a way that

allows it to accomplish this purpose.

Celotex Corp, v. Catrett, 477 U.S. 317

(1986).

1. Bivens Claim and Governmental

55

In Bivens v. Six Unknown Federal

Narcotics Agents, 403 U.S. 388 (1971), 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. The courts have

generally demurred from deciding whether

this cause of action may also be brought

against private parties. However, even

assuming a Bivens action is available

against a private actor, the facts of the

present case establish that at the time of

the alleged constitutional deprivation,

Boeing was not engaged in governmental

action.

The courts have evolved three tests

to determine the existence of governmental

action by private persons. First, under

the joint action or symbiosis test,

56

governmental action may be found where the

private party is a willful participant in

joint action with the government or its

agents. Second, under the nexus test,

governmental action may be found where the

affairs of the private party are so

intertwined with those of the government

that it may be said to have acted on

behalf of the government. Fina.ly, under

the public function test, gove--ynmental

actions exists when a private party

exercises powers traditionally reserved to

the governmen* exclusively. See, e,g,,

Howerton v. Gabica, 708 f.2d 380, 383 (9th

Cir. 1987) (security agents of private firm

conducting search of offices of Navy

officer at Navy Industrial Reserve Plant

engaged in governmental activity); Lusby

VeI.G, & Y. Stores, Inc., 749 F.2d 1423,

1430 (10th Cir. 1984), cert, denied, 474

57

U.S. 818 (1985) (store security guard

allowed by local police "to substitute his

judgment for that of the police" was

engaged in governmental action); Thorne v,

\ El Se e 426 F.2d 459, 471 n.1]1

(9th Cir. 1983) (private person

administering polygraph exam on behalf of,

and paid by, the police was engaged in

governmental action); Goichman v. Rheuban

Motors, 682 F.2d 1320 (9th Cir.

1982) (private towing company, acting at

direction of local police and pursuant to

Cutory scheme designed to accomplish

te’s enforcement of its traffic

ct

ei

@

ff

ct

08)

laws, performing public function); Do.oyns

Vv, E-Systems, Inc., 667 F.2d 1219, 1226

with the government to provide a

Surveillance system in the Sinai peninsula

and to which the government had delegated

hy

}

j

58

"a broad governmental role including a

peacekeeping role," engaged in

governmental action by conducting searches

of its employees). Cf. Morast v. Lance,

807 F.2d 926 (llth Cir. 1987) (national

bank which fired its executive vice-

president was not engaged in governmental

action, despite federal regulation of

national banks).

Application of each of these tests

fails to demonstrate the existence of

governmental action by Boeing. It is

important to note that the Air Force did

not "delegate" decision-making

responsibility for security to Boeing.

The Air Force allowed Boeing to take

action with regard to limited security

clearance. However, the Air Force

expressly retained the right to determine

requests for unescorted access to the Air

el

59

Force One construction project.

Nor, in the events which led to

Beattie's asserted injury, was Boeing

engaged in joint activity with the Air

Force. Boeing passed on to the Air Force

Beattie's request for "optimum"

presidential security clearance and

information of Beattie's security

background. Boeing made no recommendation

as to whether the request should be

allowed or denied. It was the Air Force

which denied Beattie's request for

clearance.

2. State Tort Claim

Beattie has also asserted a state

tort claim against Boeing for interference

with prospective advantage. This clain,

however, is preempted by § 301 of the

Labor Management Relations Act. Since the

claim of tortious interference with

60

prospective advantage requires a review of

Beattie's right to promotion under the

bargaining agreement, and therefore an

interpretation of the agreement itself,

the present claim is preempted by federal

law and instead should have been submitted

for the appropriate grievance resolution

procedures. See Lingle v. Norge Division

Of Magic Chef, 486 U.S. 399 (1988).

Moreover, even without the

application of federal preemption, it is

apparent that Beattie's tort claim must

fail under Kansas law. The tort of

interference with prospective advantage,

itself, presupposes some action by a third

person which as altered the relationship

between the plaintiff and the party which

would otherwise have extended the

advantage. Here, however, the claim is

essentially that Boeing interfered with

6]

itself. The plaintiff has offered no

authority for this remarkable expansion of

law relating to tortious interference.

Moreover, under the law of Kansas, an

employer is privileged to convey

information relating to the work history

of a former employee to a prospective

employer. In any claim by the employee

for tortious interference with prospective

advantage, the employee must prove that

his former employer was acting with actual

Malice. Turner v. Halliburon, Inc,., 240

Kan. 1, 722 P.2d 1106 (1986). The court

finds that the public policy concerns

which led the Kansas Supreme Court to

adopt this privilege in Turner would also

lead it to find a similar need for

protection for an employer that conveys

information regarding an employee to the

federal government for purposes of

62

national security. Since there is no

evidence of actual malice in the present

have known, the information it conveyed to

the Air Force was wrong or reckless,

annot stand.

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1s hereby granted.

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PATRICK F. KELLY, CHIEF JUDGE

63

Robert M. Beattie, Jr.,

Plaintiff-Appellant,

Vv.

United States of America,

Department of Defense of

the United States, Defense

Investigative Service,

Defendants-Appellees.

No. 91-3139.

United States Court of Appeals,

Tenth Circuit.

Nov. 26, 1991.

James S. Phillips, Jr. of Phillips &

Phillips, Chartered, Wichita, Kan., for

plaintiff-appellant.

Lee Thompson, U.S. Atty., Stephen K.

Lester, Asst. U.S. Atty., Wichita, Kan.,

for defendants-appellees.

Before ANDERSON, BARRETT, and BRORBY,

Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Plaintiff Robert M. Beattie, a former

64

fire fighter at the Boeing Military

Airplane Company (BMAC), brought this

Civil rights action for declaratory and

injunctive relief to redress various

constitutional violations alleged in

connection with a decision of the

Defendant United States Air Force (USAF)

denying him access, for security reasons,

to the Air Force One project area at his

BMAC plant. The government filed a motion

for dismissal on mootness grounds and a

motion for summary judgment on the merits.

The district court granted the latter

motion in a published opinion, see Beattie

v. United States, 759 F.Supp. 753

(D.Kan.1991), and this appeal followed.?

1. After examining the briefs and

appellate record, this panel has

65

We shall recount only those facts and

allegations pertinent to our disposition

of this appeal. A full account of the

background of the case may be found in the

district court's opinion. At the

commencement of this action, Plaintiff

retained his position with BMAC, but his

promotional opportunities were allegedly

impeded by his inability to enter the Air

Force One area. In his Second Amended

Complaint and the Pretrial Conference

Order, Plaintiff also alleged damage to

his reputation by the defamatory

impression created by the Air Force One

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.

The case is therefore ordered submitted

without oral argument.

66

access denial, as well as unspecified

harassment on the job by other BMAC

employees. Plaintiff sought various forms

of equitable relief to undo the USAF's

decision and remedy the injury it

allegedly caused. During the course of

this litigation, however, Plaintiff

unilaterally terminated his employment

with BMAC, prompting the government's

motion to dismiss the action as moot. The

district court summarily denied the motion

at the outset of its opinion, stating that

it would, rather, "proceed to the motion

for summary judgment as the defendant's

cursory arguments for mootness appear

flawed." Beattie, 759 F.Supp. at 755.

The mootness question

necessarily constitutes our threshold

67

inunkey, because the existence of a live

case or controversy is a constitutional

prerequisite to the jurisdiction of the

federal courts. Lewis v. Continental Bank

Corp., 494 U.S. 472, 477-78, 110 S.Ct.

1249, 1253, 108 L.ED.2d 400 (1990). Since

this requirement "subsists through all

Stages of federal judicial proceedings,

it [is] not enough that a dispute was

very much alive when suit was filed....

The parties must continue to have a

'"personal stake in the outcome"' of the

lawsuit." Id. 110 S.Ct. at 1253-54

(quoting City of Los Angeles v. Lyons, 461

U.S. 95, 101, 103 S.Ct. 1660, 1665, 75

L.Ed.2d 675 (1983) (quoting Baker v. Carr,

a69 U.8. 1866, 264, 62 §.Ct. 691, 703, 7

L.Ed.2d 663 (1962))). We must therefore

68

determine whether Plaintiff's termination

of his employment relationship with BMAC,

within which the challenged USAF ruling

had its only direct application, has

mooted the parties' admittedly once-live

controversy.

It is significant that Plaintiff's

claims are limited to equitable relief,

because "while a plaintiff who has been

constitutionally injured can bring a[n]

action to recover damages, that same

plaintiff cannot maintain a declaratory or

injunctive action unless he or she can

demonstrate a good chance of being

likewise injured in the future." Facio v.

Jones, 939 F.2d 541, 544 (10th Cir.1991) ;

see, e.g., Melvin v. Nickolopoulos, 864

F.2d 301, 304 (3rd Cir.1988) (receipt of

69

requested parole deprivation hearing

mooted claim for injunctive relief but not

damages); Francis v. Fox, 838 F.2d 1147,

1149 and n. 6 (11th Cir. 1988) (claim for

unconstitutional denial of work release

not mooted by subsequent parole because

damages sought in addition to declaratory

and injunctive relief). We continue to

heed the Supreme Court's pertinent

admonition, in O'Shea v. Littleton, 414

U.S. 483, 495-96, 94 S.Ct. 669, 675-76, 38

L.Ed.2d 674 (1974), that "[p]ast exposure

to illegal conduct does not in itself show

a present case or controversy regarding

injunctive relief ... if unaccompanied by

any continuing, present adverse effects."

See, e@.g., Facio, 929 F.2d at 545; Feit v.

Ward, 886 F.2d 848, 857 (7th Cir. 1989).

70

Likewise, with respect to declaratory

relief, "we look beyond the initial

'controversy' which may have existed at

one time [and] ... decide 'whether the

facts alleged ... show that there is a

substantial controversy ... of sufficient

immediacy and reality to warrant the

issuance of a declaratory judgment."

Schepp v. Fremont County, 900 F.2d 1448,

1452 (10th Cir.1990) (quoting Maryland

Casualty Co. v. Pacific Coal & Oil Co.,

312 U.S. 270, 273, Gi 8.Ct. $16, $12, 8S

L.Ed. 826 (1941)) (emphasis added in

Schepp) .

The only immediate and direct adverse

effects of the challenged USAF decision

related to the conditions of Plaintiff's

employment at the BMAC plant where the Air

71

Force One project was located. Under the

principles recited above, Plaintiff's

termination of his employment at BMAC

clearly mooted any claims for relief in

this regard. See, e.g., Hampton v. IRS,

913 F.2d 180, 182 (5th Cir. 1990) (claims

for equitable redress of discrimination

regarding conditions of employment mooted

by plaintiff's subsequent unchallenged

discharge); Feit, 886 F.2d at 857-58

(equitable First Amendment challenge to

forest service policy prohibiting

political protest by employees mooted by

plaintiff's termination from forest

service); Sandidge v. Washington, 813 F.2d

1025, 1025-26 (9th Cir.1987) (equitable

First Amendment challenge to unfavorable

job performance evaluation mooted by

72

plaintiff's discharge); Back v. Baptist

Medical Ctr., 671 F.2d 1100, 1102-03 (8th

Cir.1982) (plaintiff mooted equitable

claims regarding alleged sex

discrimination when he "voluntarily

removed himself from the impact of the

challenged practice by discontinuing his

employment land) abandoning his claim for

damages"). Again, the absence of any

claim for compensatory relief is critical

to our mootness analysis here.? Cf. Bunch

2. We also note that the "capable of

repetition, yet evading review" exception

to madness has no application here, as

this particular controversy is neither

likely to recur nor, by nature, so

ephemeral as to elude the processes of

judicial review. See, e.g., Feit, 886

F.2d at 858 n. 12 and accompanying text;

Backus, 671 F.2d at 1103. See generally

Johansen v. City of Bartlesville, 862 F.2d

1423, 1426 (10th Cir.1988) (outside of

class action context, exception is limited

73

v. Bullard, 795 F.2d 384, 389 (5th

Cir.1986) (Title VII claim for denial of

promotion not mooted by plaintiff's

resignation because compensatory back-pay

Still available); Aiello v. City of

Wilmington, 623 F.2d 845, 850 n. 8 (3d

Cir.1980) (challenge to Fire Bureau

regulations, pursuant to which plaintiff

had been disciplined, not mooted by

plaintiff's retirement because

compensatory damages sought).

Furthermore, Plaintiff's

conclusory allegations of continuing

to cases where "'(1) the challenged action

was in its duration too short to be fully

litigated prior to its cessation or

expiration, and (2) there was a reasonable

expectation that the same complaining

party would be subjected to the same

action again'" (quoting Weinstein v.

Bradford, 423 U.S. 147, 149, 96 S.Ct. 347,

349, 46 L.Ed.2d 350 (1975)).

74

injury and collateral consequences are not

sufficient to keep this case alive.

Plaintiff asserted below that the

challenged USAF decision (1) ultimately

resulted in "Plaintiff's resignation from

Boeing, which may be deemed a constructive

discharge," Plaintiff's Response in

Opposition to Defendant's Motion to

Dismiss at 13 (Appellant's App. at 141);

(2) damaged his reputation by creating a

"defamatory impression," Pretrial

Conference Order at 4 (Appellant's App. at

17); see also Second Amended Complaint at

5, 8 (Appellant's App. at 5, 8); and (3)

"impaired his employment prospects," id.

Plaintiff did not even plead a

constructive discharge theory or include

one in the Pretrial Order, much less

75

substantiate such a claim on the record

before us. As for injury to reputation,

the following passage from the district

court's opinion, though addressed directly

to the related but separate question

whether the USAF decision deprived

Plaintiff of a liberty interest, also

explains why that decision cannot be

deemed defamatory:

"A [security] clearance does not

equate with passing judgment upon an

individual's character." [Department

of the Navy v.] Egan, 484 U.S. [518,]

928, 108 S.Ct. [818,] 824 [98

L.Ed.2d 918] [(1988)]. The Air Force

informed BMAC that it was denying

plaintiff access because of his "past

history," in particular, his Soviet

76

contacts that were the subject of the

[Defense Investigative Service]

report. These are no specific reasons

which fall within the Supreme Court's

rationale in Egan. Because clearance

may be denied for reasons ranging

from past conduct to familial ties

with a hostile country, the mere act

of denying clearance does not imply

"disloyalty or any other repugnant

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

108 S.Ct. at 824-25.

Beattie, 759 F.Supp. at 761. This

analysis is entirely consistent with our

discussion of a similar matter in Hill v.

Department of Air Force, 844 F.2d 1407,

1409, 1412 (10th Cir.) (quoting and

interpreting same statements from Egan) ,

77

cert. denied, 488 U.S. 825, 109 S.Ct. 73,

102 L.Ed.2d 49 (1988). See also Jamil v.

Secretary, Dep't of Defense, 910 F.2d

1203, 1209 (4th Cir.1990) (revocation of

security clearance "does not constitute ad

adjudication of one's character").

Finally, Plaintiff's unsubstantiated

allegations regarding the unspecified

impairment of unidentified employment

prospects are simply too speculative to

Support the exercise of federal

jurisdiction.* See Feit, 886 F.2d at 857-

3. We emphasize the quite limited

character of the USAF decision in this

case. The USAF determined only that

Plaintiff should not be permitted access

to BMAC's Air Force One project area. It

did not generally revoke Plaintiff's

security clearance, which could

conceivably have had a more objectively

demonstrable effect on specifiable

employment opportunities with other firms

78

58; Sendidee, 813 F.2d at 1025-26; see

also Westmoreland v. National Transp.

Safety Bd., 833 F.2d 1461, 1463 (11th

Cir.1987) (possibility that plaintiff

might be disqualified from potential

future employment if challenged suspension

requiring such clearances as a condition

of hire. We do not mean to suggest,

however, that demonstration of such

adverse consequences would have any

Significance beyond the threshold question

of mootness. As the district court's

opinion aptly reflects, pertinent case law

would present Plaintiff a virtually

insurmountable task on the merits. See

Hill, 844 F.2d at 1409, 1411-13 (Egan

removes any doubt regarding federal

courts' lack of authority to review

substance of security clearance decisions,

and plaintiff's constitutional allegations

advanced in connection therewith provided

no independent basis permitting federal

courts to pass on merits of such

decisions); see also Dorfmont v. Brown,

913 F.2d 1399, 1401-04 (9th Cir.1990),

cert. denied,— U.S.—, 111 S.Ct. 1104,

113 L.Ed.2d 214 (1991); Jamil, 910 F.2d at

1205-06, 1209; Williams v. Reilly, 743

F.Supp. 168, 171-72 (S.D.N.Y.1990).

79

of her ussiengetatt pilot certificate were

disclosed held too speculative to create a

cognizable interest in outcome of

litigation sufficient to support federal

jurisdiction); cf. Phelps v. Wichita

Eagle-Beacon, 886 F.2d 1262, 1268-69 (10th

Cir.1989) (allegations that defendants

placed "defamatory cloud" over plaintiff's

"employment opportunities," without

evidence of present harm to established

business relationships, deemed mere

"speculative future harm" too intangible

to implicate liberty or property

interest).

For the reasons expressed above, we

conclude that this case has become moot.

Accordingly, this appeal is DISMISSED, and

the cause is REMANDED to the United States

80

District Court for the District of Kansas

with directions to vacate its judgment and

dismiss the action for want of

jurisdiction. United States v.

Munsingwear, Inc., 340 U.S. 36, 39-40, 71

S.Ct. 104, 106-07, 95 L.Ed. 36 (1950).

$1

Robert M. Beattie, Jr.,

Plaintiff,

We

United States of America,

Defendant.

No. 89-1526-C

United States District Court,

D. Kansas.

March 15, 1991.

James S. Phillips, Jr., Phillips &

Phillips, Wichita, Kan., for plaintiff.

Stephen K. Lester, Asst. U.S. Atty.,

Wichita, Kan., for defendant.

MEMORANDUM AND ORDER

CROW, District Judge.

This case comes before the court on

the defendant's motion for summary

judgment (Dk. 22) and motion to dismiss

ee

82

(Dk. 48). Plaintiff brings this civil

rights action alleging certain of his

constitutional rights were violated when

he was denied access to the Air Force One

project area. Defendant argues in support

of summary judgment that the plaintiff

either was without const’ tutional rights

Or was not denied them. Defendant also

seeks to dismiss the plaintiff's suit for

mootness as the plaintiff quit his

employment as a fire fighter at Boeing

Military Airplane Company (BMAC). The

court will proceed to the motion for

summary judgment as the defendant's

cursory arguments for mootness appear

flawed.

A motion for summary judgment gives

the judge an initial opportunity to assess

83

the need for a trial. Without weighing

the evidence or determining credibility,

the court grants summary judgement when no

genuine issue of material fact exists and

judgment can be entered for the movant as

a matter of law. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct.

2505, 2511,91 L.Ed.2d 202 (1986). The

basic inquiry is "whether the evidence

presents a sufficient disagreement to

require submission to a jury or whether it

is so one-sided that one party must

prevail as a matter of law." Anderson,

477 U.S. at 251-252, 106 S.Ct. at 2512.

An issue of fact is "genuine" if the

evidence is significantly probative or

more than merely colorable such that a

jury could reasonably return a verdict for

84

the semana iin party. Id. at 248, 106

S.Ct. at 2510. An issue of fact is

"Material" if proof of it might affect the

outcome of the lawsuit. 477 U.S. at 249,

106 S.Ct. at 2510. Factual inferences are

drawn to favor the existence of triable

issues, and where reasonable minds could

ultimately reach different conclusions,

summary judgment is inappropriate. See

Riley v. Brown & Root, Inc., 896 F.2d 474

476-77 (10th Cir. 1990).

The movant's initial burden under

Fed.R.Civ.P. 56 is to show the absence of

evidence to support the nonmoving party's

case. Windon Third Oil and Gas v. Federal

Deposit Ins.. 805 F.2d 342, 345 (10th Cir.

1986), cert. denied, 480 U.S. 947, 107

S.Ct. 1605, 94 L.Ed.2d 791 (1987). The

85

movant must specify those portions of

"'the pleadings, depositions, answers to

interrogatories and admissions on file,

together with affidavits if any,'" which

demonstrate the absence of a genuine issue

of fact. Windon, 805 F.2d at 345 (quoting

Fed.R.Civ.P.56(c)). It may be sufficient

for the movant to establish that the

alleged factual issues are without legal

Significance. Dayton Hudson Corp. v.

Macerich Real Estate Co., 812 F.2d 1319,

1323 (10th Cir.1987).

The opposing party may not rest upon

mere allegations or denials in the

pleadings but must set forth specific

facts supported by the kinds of

evidentiary materials listed in Rule

56(c). Anderson, 477 U.S. at 250, 106

86

S.Ct. at 2511. The evidence is deemed

true and all reasonable inferences are

drawn in his favor. Windon, 805 F.2d at

346. More than a "disfavored procedural

shortcut," summary judgment is an

important procedure "designed 'to secure

the just, speedy and inexpensive

determination of every action. '

Fed.R.Civ.P. 1." Celotex Corp. v.

Catrett, 477 U.S. 317, 327, 106 $.Ct.

2548, 2554, 91 L.Ed.2d 265 (1986).

Rule 56 does not bar a court from

entertaining motions for summary judgment

before discovery is completed. Weir v.

Anaconda Co., 773 F.2d 1073, 1081 (10th

Cir. 1985). Under Rule 56(f), a litigant

may file an "affidavit explaining why he

or she cannot present facts to oppose the

87

motion." Dreiling v. Peugeot Motors of

America, Inc., 850 F.2d 1373, 1376 (10th

Cir.1988). An affidavit is not sufficient

unless the affiant shows how a continuance

would provide the facts necessary to

create genuine issues of material fact.

Weir, 773 F.2d at 1083. Plaintiff

originally responded that discovery was

incomplete. The attached affidavit did

not explain why the additional discovery

would be important to any of the pending

motions. Plaintiff has filed a

supplemental brief (Dk. 60) referring to

some of this additional discovery without

renewing his argument for more discovery.

The court is satisfied that the

defendant's motion for summary judgment is

ripe for decision.

88

For purposes of this motion, the

court finds the following facts to be

uncontroverted:

1. In 1986, Boeing Military Airplane

(BMAC) entered into a contract with the

United States Air Force to build two

aircraft to replace the President's

existing aircraft known as Air Force One.

2. Entrance to the building area of

these two aircraft is controlled and

supervised. Unescorted permission to

enter is granted by the Air Force, and

escorted permission is granted by Boeing.

3. Plaintiff, Robert M. Beattie, was

employed by BMAC as a fire fighter.

Plaintiff worked there from 1984 until

June of 1990 when he resigned. On

different occasions, plaintiff entered the

89

Air Force One area to care for injured

workers and issue permits for certain

potentially hazardous work.

4. In February of 1989, plaintiff

attempted to enter the Air Force One area

to check the fire valves but was told that

his name was not on the list of authorized

persons. When asked by plaintiff, his

superiors at BMAC explained that a

criteria for access to the area was

"unquestioned loyalty to the United

States" and that his name was removed

because of his political activities.

5. Plaintiff then filed a grievance

against BMAC based on these events. On

March 3, 1989, plaintiff and BMAC settled

the grievance agreeing that BMAC would

request the Air Force to determine whether

90

plaintiff would be allowed access to the

Plaintiff executed the following

document on the same day:

I, Robert M. Beattie, acknowledge the

possibility exist [sic] that through

my efforts to obtain an Air Force One

clearance, that questions could arise

from the Government's investigation

jeopardizing my ability to retain a

secret clearance. I further

understand that a secret clearance is

required by contract with Boeing

Military Airplanes and United Plant

Guard Workers of America, Local 255

to maintain employment as a member of

the Boeing Fire Department.

With these things in mind, I hereby

request that the Company submit my

91

name to be processed for an Air Force

One clearance. In doing this I am

accepting full responsibility of the

outcome and do release the

International Union United Plant

Guard Workers of America (UPGWA) and

specifically Local 255, Wichita,

Kansas of any liability in the event

that should occur.

6. Kerry Crisp, manager of security

and fire protection at BMAC, wrote Capt.

Barry Graham at the Wright-Patterson Air

Force Base in Ohio. Mr. Crisp

acknowledged that BMAC had adjudicated

escorted entries in the past according to

the terms of the contract and security

administration requirements, but he

believed that the instant matter had

92

unique circumstances and that the Air

Force was better suited to make an

informed determination. Mr. Crisp set

forth the circumstances in the letter as

follows:

This case concerns a Mr. Robert M.

Beattie Jr._._He is a Boeing Military

Airplanes Fireman and his job

includes facilities fire inspections

and special welding permits which

would require his periodic entry into

the AF-1 Area. The special

circumstances referred to in

paragraph 1 of this letter concern a

report to the Defense Industrial

Security Clearance Office in

accordance with Industrial Security

Manual, paragraph 6.b(9). This

93

report was prompted by our learning

of Mr. Beattie's making contact with

representatives from designated

countries and failing to report that

contact. The findings of any

investigation resulting from this

report could influence an access

decision. We are not; however, privy

to this information therefore are

unable to make an informed

determination is this case.

(emphasis supplied). Mr. Crisp included

information gathered from their local

investigation to assist the Air Force in

its determination.

7. In consideration of the access

issue, Captain Graham reviewed Boeing's

security folder on plaintiff, a copy of a

94

personnel records check, a copy of a

security violations check, and a copy of a

report filed by Boeing with the Defense

Investigative Services (DIS). He also

spoke with Jim Barton, Nat Addleman, Kerry

Crisp, and Carol Dickey in regards to the

letter written by Mr. Crisp.

8. Two and one-half months later, Lt.

Col. Darrell J. Johnson informed BMAC of

the Air Force's decision in a letter dated

July 27, 1989:

Based on Mr. Beattie's past history,

he is not authorized escorted or

unescorted access to the VC-25A

security area. Further, we are

concerned that you didn't disqualify

Mr. Beattie based on the report made

to the Defense Investigative Service

95

(DIS). Unless the DIS investigation

shows otherwise, Mr. Beattie clearly

fails to meet paragraphs III.A and

III.C of Annex 2 of the Statement of

Work. In the future, it is necessary

that BMA accomplish adjudication of

employee screenings in accordance

with the procedures set forth in

Annex 2.

9. The DIS report referenced above

was made by N.J. (Nat) Addleman, manager

of information security at BMAC, and was

dated March 24, 1989. Addleman reported:

Individual has had contact with

citizen from USSR. In April 1986,

individual contacted (by phone) the

Soviet Embassy in Washington, D.C. to

express personal sympathy on the

96

death of the firefighters at

Chernobyl. He was requested to

convey this message in writing, which

he did. No further contact has been

received from the Embassy or sought

by the individual. In March of 1987,

individual spoke with a Dr. Simon

Kechanayli at a conference in

Chicago, IL. Individual ay »logized

for a remark made by a local Senator

and stated that not everyone from

Kansas agreed with the Senator. No

further contact has been made with or

received from any representatives

from designated countries.

Plaintiff does not dispute the accuracy of

this report.

10. In response to this report, the

97

Defense Investigative Service (DIS), a

separate agency under the Department of

Defense, from March 1989 through June

1989, investigated Mr. Beattie's contacts

with the Soviet Union and interviewed him,

his associates, and his supervisors. The

DIS, in its limited role, communicated the

results of its investigation to the

Directorate for Industrial Security

Clearance Review (DISC), which is part of

the Defense Legal Services Agency of the

Department of Defense. The DISC

adjudicates security clearances for those

employed in private industry which have

been referred to it by DIS. The DISC made

a favorable determination concerning

plaintiff after reviewing the DIS

investigative file. It determined the

98

plaintiff's security clearance at the

secret level was consistent with the

national interest.

11. The Air Force issued its

decision on July 27, 1989, denying

plaintiff access to the Air Force One area

apparently without knowing of or reviewing

the DIS's investigation or the DISC's

favorable determination.

12. The contract between BMAC and

the Air Force provides in pertinent part:

2. The contractor must use only

personnel who meet the qualifications

prescribed in paragraph IIIB(1) for

Presidential aircraft. Failure of an

employee to meet these qualifications

will be a matter between the employer

and employee. Denial does not allow

an

Shi

99

the employee an appeal under the

Industrial Personnel Access

Authorization Program.

5. Only those persons who are

determined to be best suited for such

duties consistent with optimum

Presidential security will be

nominated, selected, assigned,

employed, or retained in Presidential

Support positions. Nominees must be

the most suitably qualified

individuals available for

consideration and must:

b. Be of excellent character

and stability with a high degree of

Maturity, discretion,

100

trustworthiness, professional

competence and unquestioned loyalty

to the United States.

f. Have no personal habits,

characteristics, traits, activities

or associations which would be the

basis for reasonable doubt as to the

individual's reliability, stability,

or general suitability for

Presidential Support duties.

Paragraph 6b(9) of the Industrial Security

Manual requires BMAC to report to the DIS

the travel or contact of BMAC employees in

or with certain foreign countries.

13. In his affidavit, plaintiff

avers that BMAC supervision was promptly

told of his contacts with the Soviet

101

Embassy and his later conversation with a

Soviet doctor at a conference in Chicago.

14. The Air Force's action denying

plaintiff access to Air Force One did not

affect plaintiff's job rating, hours of

work, or his income. Plaintiff alleges he

was denied ecvmutions and harassed by

coworkers because of the Air Force's

decision. He also offers evidence that

his reputation has suffered as a result.

Plaintiff states he resigned from Boeing

in June of 1990 due to the humiliation and

lack of promotional opportunities caused

by the denial of access.

This case presents a question of

subject matter jurisdiction that has not

been briefed nor argued by the parties.

Parties cannot waive the issue of subject

102

matter jurisdiction, and the court must

dismiss a case for the lack of

jurisdiction even if the parties fail to

bring it to the court's attention.

Williams v. Life Sav. and Loan, 802 F.2d

1200, 1202 (10th Cir.1986). Plaintiff

asserts the court has jurisdiction of his

suit under 28 U.S.C. § 1331 and 5 U.S.C. §

702. The latter statute is concerned with

judicial review of agency action and is

expressly subject to other limitations on

judicial review. The former statute

creates federal question jurisdiction. In

the pretrial order, plaintiff articulates

the following constitutional claims:

denial of plaintiff's right to procedural

due process under the Fifth Amendment when

he was denied his property interest in

103

employment and/or his liberty interest to

pursue his chosen profession without a

hearing, denial of his right to

substantive due process under the Fifth

Amendment when he was subject to arbitrary

and capricious action, and denial of his

right to freedom of speech and association

under the First Amendment when the reasons

for the adverse action were protected

political activities. The jurisdictional

issue is whether this court can review the

defendant's decision denying plaintiff

access to the Air Force One area.

The Supreme Court in Department of

the Navy v. Egan, 484 U.S. 518, 108 S.Ct.

818, 98 L.Ed.2d 918 (1988), held that the

Merit Systems Protection Board lacked

authority to review an executive decision

104

to revoke a security clearance. Circuit

courts have construed Egan as logically

precluding judicial review of these same

executive decisions. Dorfmont v. Brown,

913 F.2d 1399, 1401 (9th Cir.1990), cert.

denied,-U.S.—, 111 S.Ct. 1104,

—L.Ed.2d—(1991); Jamil v. Secretary,

Dept. of Defense, $10 F.2d 1203, 1205-06

(4th Cir.1990); Hill v. Department of Air

Force, 844 F.2d 1407, 1409 (10th Cir.),

cert. denied, 488 U.S. 825, 109 S.Ct. 73,

102 L.Ed.2d 49 (1988).

In Dorfmont, plaintiff, an employee

with a government contractor, was denied a

security clearance after a DISC

investigation. 913 F.2d at 1400. The

security clearance was a requirement for

plaintiff's position. She appealed the

105

decision through the various levels of the

Department of Defense and eventually

turned to the federal courts. The Ninth

Circuit held that the district court could

not review the merits of the department's

revocation of plaintiff's security

Clearance. 913 F.2d at 1401. In the

Ninth Circuit's opinion, the case of

Webster v. Doe, 486 U.S. 592, 108 S.Ct.

2047, 100 L.Ed.2d 632 (1988), confirmed

that federal courts are without

jurisdiction to review the merits of

security clearance decisions. 913 F.2d at

1401. The Supreme Court in Webster found

that the discretion conferred to the

Director of the Central Intelligence

Agency by statute precluded judicial

review of security clearance decisions.

106

486 U.S. at 601, 108 S.Ct. at 2052.

In Jamil v. Secretary, Dept. of

Defense, the plaintiff conceded and the

Fourth Circuit agreed that the substance

of the Defense Mapping Agency's decision

to revoke the security clearance of one of

its employees was not judicially

reviewable. 910 F.2d at 1206. The Tenth

Circuit in Hill quoted extensivel: from

Egan in support of its conclusion that

judicial review was not available on the

merits of the Air Force's decision to

revoke the security clearance of the

plaintiff, a civilian, whose employment

depended upon the clearance. 844 F.2d at

1409-1410.

The circuit courts logically extended

the reasoning in Egan to judicial review

107

because of the compelling statements made

by the Supreme Court therein:

The President, after all, is the

"Commander in Chief of the Army and

Navy of the United States." (us

Const, Art II, § 2. His authority to

Classify and control access to

information bearing on national

security and to determine whether an

individual is sufficiently

trustworthy to occupy a position in

the Executive Branch that will give

that person access to such

information flows primarily from this

constitutional investment of power in

the President and exists quite apart

from any explicit congressional

grant. (Citations omitted).

108

484 U.S. at 527, 108 S.Ct. at 824. The

Court recognized a security clearance

decision was a prediction of sorts made by

those with the necessary skill, training,

and experience:

[I]t is only an attempt to predict

his possible future behavior and to

assess whether, under compulsion of

circumstances or for other reasons,

he might compromise sensitive

information....

Predictive judgment of this kind

must be made by those with the

necessary expertise in protecting

Classified information. For "reason

too obvious to call for enlarged

discussion," CIA v. Sims, 471 U.S.

159, 170, 85 L.Ed.2d 173, 105 S.Ct.

A

7 : i > ne ioe 7

fe ac hy (seal

109

1881 [1888] (1985), the protection of

Classified information must be

committed to the broad discretion of

the agency responsible, and this must

include broad discretion to determine

who may have access to it.

Certainly, it is not reasonably

possible for an outside non-expert

body to review the substance of such

a judgment and to decide whether the

agency should have been able to make

the necessary affirmative prediction

with confidence. Nor can such a body

determine what constitutes an

acceptable margin of error in

assessing the potential risk. The

court accordingly has acknowledged

that with respect to employees in

110

sensitive positions "there is a

reasonable basis for the view that an

agency head who must bear the

responsibility for the protection of

classified information committed to

his custody should have the final Say

in deciding whether to repose his

trust in an employee who has access

to such information." Cole v. Young,

351 U.S. 536, 546, 100 L.Ed. 1396, 76

S.Ct. 861 [868] (1956).

Egan, 484 U.S. at 928-529, 108 S.Ct. at

824-825. The decision whether to allow

access to the Air Force One area is the

Same type and quality and requires the

Same predictive judgment as the decision

whether to grant a security clearance.

The only distinction appears to be one of

111

degree. An employee with secret security

clearance is not necessarily allowed

escorted or unescorted access to the Air

Force One area. This court concludes it

cannot judicially review the merits of the

Air Force's decision to deny plaintiff

access to this secured area. This court

is in no position to second-guess that

decision. No jurisdiction exists to

entertain such a challenge. See Williams

v. Reilly, 743 F. Supp. 168, 171

(S.D.N.Y.1990).

As previously set forth, plaintiff

makes a number of constitutional attacks

against the Air Force's adverse ruling.

The courts are unsure whether review is

available even when the plaintiff raises

the challenges to a constitutional level.

112

The Tenth Circuit noted in Hill that "if

the statutory constraints imposed in Egan

can be bypassed simply by invoking alleged

constitutional rights, it makes the

authority of Egan hardly worth the

effort." 844 F. 2d at 1411. See also

Williams v. Reilly, 743 F.Supp at 171-72.

But see Thomas Brooks Chartered v.

Burnett, 920 F.2d 634, 643 (10th

Cir.1990). The Fourth Circuit avoided

answering what it called a difficult

question and, in rather summary fashion,

considered and dismissed the

constitutional claims. Jamil, 910 F.2d at

1209. The Ninth Circuit pointed out in

Dorfmont that jurisdiction may exist over

constitutional claims since the Supreme

Court had held in Webster that courts

113

could entertain colorable constitutional

claims unless Congress clearly intended in

the statutes to do away with any judicial

review. 913 F.2d at 1402.

The plaintiff has couched his

constitutional challenges in such terms

that reveal they are simply disguised

attempts to have this court review the

merits of the Air Force's decision.

Plaintiff repeatedly characterizes his

contacts with a Soviet doctor and the

Soviet Embassy as "innocuous" and

"innocent." Plaintiff insists the Air

Force relied on erroneous and misleading

information. Plaintiff is adamant that

the Air Force's decision is unreasonable

and without justification. How this case

got here is another indication of

114

plaintiff's intent. When BMAC denied him

access, plaintiff lodged a grievance.

Plaintiff agreed to settle his dispute

with the union and his employer by having

the Air Force decide the issue of his

access. Now convinced that the Air Force

wrongly decided the issue, plaintiff wants

this court's opinion on the matter.

Though plaintiff's constitutional claims

are thinly veiled requests for judicial

review, the court will address them.

PROCEDURAL DUE PROCESS

The protection of procedural due

process extends only to those established

and recognized property or liberty

interests. Setliff v. Memorial Hosp. of

Sheridan County, 850 F.2d 1384, 1394 (10th

115

Cir. 1988). "[T]he range of interests

protected by procedural due process is not

infinite." Board of Regents v. Roth, 408

U.S. 564, 570, 92 S.Ct. 2701, 2708, 33

L.Ed.2d 548 (1972).

Though protected by the

Constitution, property interests emerge

from another source such as state

Statutes, local ordinances, established

rules, or mutually explicit

understandings. Perry v. Sindermann, 408

U.S. 593, 601-602 n. 7, 92 S.Ct. 2694,

2700 n. 7, 33 L.Ed.2d 570 fig) ae |

property interest is more than an

"abstract need or desire" and more than a

"unilateral expectation of it." Roth, 408

U.S. at 577, 92 S.Ct. at 2709.

The concept of liberty

116

encompasses two interests in a public

employment setting: "1) the protection of

his good name, reputation, honor, and

integrity, and 2) his freedom:to take

advantage of other employment

Opportunities." Conaway v. Smith, 853

F.2d 789, 794 (10th Cir. 1988) (quoting

Miller v. City of Mission, Kan., 705 F.2d

368 (10th Cir.1983)). Injury to

reputation alone will not suffice to

trigger due process requirements unless

entangled with the loss of a more tangible

interest such as employment. Setliff, 850

F.2d at 1396. "For an employee to make a

successful liberty deprivation claim, in

addition to proving one of the above-

recognized interests, he must also show

that his dismissal resulted in the

117

publication of information which was false

and stigmatizing." Conaway v. Smith, 853

F.2d at 794 (emphasis in original) (citing

Sipes v. United States, 744 F.2d 1418,

1421 (10th Cir.1984)).

Plaintiff has no

constitutionally protected property or

liberty interest in his access to the Air

Force One area. See Dorfmont, 913 F.2d at

1402-04; Jamil, 910 F.2d at 1209; Hill,

844 F.2d at 1411-12. The Tenth Circuit in

Hill looked primarily to the reasoning

expressed in Egan to reject the claim of a

property or liberty interest in a security

Clearance. 844 F.2d at 1407. The Supreme

Court there made clear:

It should be obvious that no one has

a "right" to a security clearance.

118

The grant of a clearance requires an

affirmative act of discretion on the

part of the granting official. The

general standard is that a clearance

may be granted only when "clearly

consistent with interests of the

national security." (Citation

omitted). A clearance does not

equate with passing judgment upon an

individual's character. Instead, it

is only an attempt to predict his

possible future behavior and to

assess whether, under compulsion of

circumstances or for other reasons,

he might compromise sensitive

information. It may be based, to be

Sure, upon past or present conduct,

but also may be based upon concerns

119

completely unrelated to conduct, such

as having close relatives residing in

a country hostile to the United

States. "[T]lo be denied [clearance]

on unspecified grounds in no way

implies disloyalty or any other

repugnant characteristic." Molerio

Vv. FBI, 242 US App DC 137, 146, 749

F.2d 815, 824 (1984).

Egan, 484 U.S. at 528-29, 108 S.Ct. at

824-825. A security clearance is

determined upon the "discretionary

exercise of judgment by the Executive as

to the suitability of the recipient for

Such access, consistent with the interests

of national security." Hill, 844 F.2d at

1411. To find a property interest in

access to national secrets or a secured

120

area, like the facilities housing Air

Force One, would be inconsistent with the

principles so clearly enunciated in Egan.

Whatever expectation that plaintiff had in

entering the Air Force One area was

unilateral at best and, therefore, could

not give rise to a property interest.

Roth, 408 U.S. at 577, 92 S.Ct. at 2709.

Plaintiff mistakenly relies on Greene

V. McElroy, 360 U.S. 474, 79 §.ct. 1400,

3 L.Ed. 2d 1377 (1959), to recognize a

Property or liberty interest in employment

affected by denial of a security

Clearance. The Court expressly decided

against addressing those issues in favor

of deciding whether the Plaintiff could be

deprived of certain procedures in the

absence of authorization by either the

121

President or Congress. Id. at 492, 508,

79 S.Ct. at 1411, 1419. Greene does not

substantially advance the plaintiff's

argument. Dorfmont, 913 F.2d at 1404.

For the same reasons that a property

interest has been rejected, the circuit

courts have not found a liberty interest

implicated by the revocation of a security

Clearance. Dorfmont, 913 F.2d at 1403;

Hill, 844 F. 2d at 1412. Plaintiff did

not lose the right to his chosen

profession when he lost the Opportunity to

perform his profession in a particular

area or building. Having no protected

interest in that access, plaintiff cannot

have a liberty interest in the particular

employment requiring such access.

Dorfmont, 913 F.2d at 1403.

122

The Air Force did not publicly

disseminate the information used in its

decision. Restricted disclosure to the

employer and contractor for its use in

assigning workers to the secured area is

not stigmatizing. See Doe v. Cheney, 885

F.2d 898, 910 (D.C.Cir.1989). Gossip and

speculation by others does not Satisfy the

publication requirement. A liberty

interest is not impinged unless the false

and stigmatizing information is made

public by the government entity itself.

Derstein v. State of Kan., 915 F.2d 1410,

i414 (10th Cir.1990), cert. pending.

"A clearance does not equate

with passing judgment upon an individual's

character." Egan, 484 U.S. at 528, 108 Ss.

Ct. at 824. The Air Force informed BMAC

123

that it was denying plaintiff access

because of his "past history," in

particular, his Soviet contacts that were

the subject of the DIS report. These are

nonspecific reasons which fall within the

Supreme Court's rationale in Egan.

Because clearance may be denied for

reasons ranging from past conduct to

familial ties with a hostile country, the

mere act of denying clearance does not

imply "disloyalty or any other repugnant

characteristic." 484 U.S. at 528-29, 108

S.Ct. at 824-825. Plaintiff cannot show

the defendant deprived him of a liberty

interest.

Plaintiff next claims the Air

Force acted arbitrarily and capriciously

in denying him access and thereby violated

124

his sige to substantive due process under

the Fifth Amendment. This claim clearly

reveals plaintiff's desire to have the

merits of the Air Force's decision

reviewed. Assuming such a claim could be

made, plaintiff must allege a liberty or

property interest to trigger substantive

due process guarantees. Harris v. Blake,

798 F.2d 419, 424 (10th Cir. 1986), cert.

denied, 479 U.S. 1033, 107 S.Ct. 882, 93

L.Ed.2d 836 (1987). Unable to meet this

burden, the plaintiff cannot prevail on

his substantive due process claim.

Plaintiff's last constitutional

attack is that his right to freedom of

speech and association under the First

Amendment was violated. Again, it is

apparent this claim is a pretense for

125

obtaining judicial review on the substance

of the Air Force's decision. In

particular, the plaintiff argues:

Plaintiff's activities were clearly

innocent and hence protected by the

First Amendment. There was no reason

to consider them as evidence of

questionable character or loyalty to

the United States or of a suspicious

nature

Defendant's contention in its

brief that the call to the Embassy

and the visit in the hotel lobby

raise legitimate concerns about

Plaintiff's motives has no merit. It

cannot withstand careful analysis.

Assuming these contacts were the

126

basis for the denial of the Air Force

One access they too would violate the

First Amendment.

(Dk. 45; p. 56). Nonetheless, the court

will take up the plaintiff's First

Amendment claim.

Plaintiff couches his claim in two

approaches. First, BMAC originally denied

him access because of his political

activities and the defendant knew BMAC's

motivation and simply upheld it in also

ruling against plaintiff's access.

Second, the defendant was concerned over

the content of plaintiff's messages to

Soviet citizens which were clearly

political in nature. Neither approach

presents a colorable constitutional claim.

The evidence of record does not show

127

that the defendant in any way intended to

ratify or affirm any action taken by BMAC

aS a result of plaintiff's political

activities. None of the documents show or

sustain an inference that the plaintiff's

anti-nuclear protests or campaign

activities in support of candidates from

the Democratic party were a substantial or

motivating factor in the Air Force's

decision. See Conaway v. Smith, 853 F.2d

at 795. The only reasonable reading of

the letter of July 27th from Lt. Col.

Johnson to BMAC is that plaintiff's "past

history," as evidenced in BMAC's report to

the DIS, was the reason for the access

restriction. The fact some later

statements in internal Air Force

memoranda, dated after July 27th, make

128

obscure references to other possible

considerations does not raise a genuine

issue of material fact in this court's

judgment.

The Supreme Court in Egan elevated

the predictive judgments involved in

security clearances to a level beyond

direct judicial review. The Court

recognized the executive agency must have

broad discretion to determine who may have

access to information and what constitutes

a potential security risk. 484 U.S. at

529, 108 S.Ct. at 825. The content of

plaintiff's conversations with Soviet

citizens obviously must be a subject of

inquiry in evaluating him as an

appropriate candidate for access to the

Air Force One area. This alone does not

129

elevate the plaintiff's speech to a

protected status nor establish a violation

of the First Amendment.

On both occasions, the content of

plaintiff's conversations was seemingly

innocuous and personal in nature.

Assuming the speech addressed a matter of

public concern, 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.

Plaintiff's employment continued at BMAC

in the same position and only his

130

responsibilities were affected to a

limited degree. Plaintiff's right to

speak and associate with others remained

intact. In light of all these

circumstances, the balance strongly favors

the defendant's exercise of broad

discretion in deciding who should have

access to an area secured for important

national interests. The court is unable

to find a colorable constitutional claim

under the First Amendment.

IT IS THEREFORE ORDERED that the

defendant's motion for summary judgment

(Dk. 22) is granted.

131

Excerpts From the September 20, 1986

Newspaper Article Kept in Beattie's

Security File by James Barton, Boeing's

Security Administrator

The Wich; Eaq]

Religion/Ethics, Page 9C

(see App. to 10th Cir. at 314-315)

By Tom Schaefer

Staff Writer

JOB, PEACE ETHICS CONFLICTS GROW

Robert Beattie Jr., a 30-year-old

firefighter in Boeing Military Airplane

Co.'s department of security and fire

protection, said he became concerned about

nuclear destruction last year while taking

part in fire protection exercises with

Boeing's cruise missile operation and

after reading Jonathan Schell's "The Fate

of the Earth."

"At the time, it was troubling my

conscience," Beattie said about his work.

132

"I do think the policy of deterrence is

the greatest mistake our government's ever

made."

Because of his increased concern for

peace, Beattie said, he formed in January

the Firefighter-Emergency Medical

Technician Alliance With Citizens Working

Toward Prevention of Nuclear War

[Firefighters for Social Responsibility] --

a group of about two dozen firefighters

who seek to educate the public about the

threat of nuclear disasters. In addition,

he is chairman of the Wichita Area Peace

Alliance. Beattie says he hopes he has

"struck a balance" between his peace work

and his job responsibilities by avoiding

any activities that might jeopardize his

SRST

133

security clearance.

"Tf I lose my clearance, I'm out of a

job," said Beattie.

One such effort at balance is to be a

benefit softball game at 5 p.m. today at

Wichita State University's softball field,

matching members of the Wichita Area Peace

Alliance and the Wichita State University

Peace and War Group against Air Force

personnel connected with the Strategic Air

Command at McConnell Air Force Base.

Donations will be equally divided between

the Peace Alliance and the Air Force Aid

Society.

A spokesman for Boeing said

employee's involvement in peace activities

did not threaten their jobs.

"That's an individual decision," said

134 .

Allen Hobbs, a Boeing spokesman.

Hobbs said security clearances for

Boeing workers were handled by the federal

government and not by Boeing.

YEAR

1984

1986

1987

1988

135

TIMELINE

EVENT

Beattie granted security

clearance, begins at Boeing.

Beattie becomes president of

Firefighters for Social

Responsibility, which some of

Beattie's Boeing managers

Characterize as "anti nuclear"

Organization (although one

fire dept. manager joins).

Harassment of Beattie begins.

May--Beattie makes call from

Boeing to Soviet Embassy re

Death of Chernobyl Firefighters.

Sept.--Charity softball game.

A portion is broadcast live by

local NBC affiliate.

Early March, Beattie introduced

to Soviet Academician.

Late March, Beattie begins work

on AF-1 project at Boeing.

Sept., Beattie meets Gov.

Dukakis and starts "Firefighters

for Dukakis for President."

Oct., Local Democrat v.

Republican flag football game.

Beattie is captain of winning

Democrats. Game is lead story

of local nightly televison news.

AG Lhe aire abies wed

YEAR

1989

136

TIMELINE-continued

EVENT

Rumors abound, source unknown.

Feb., Boeing security

administrator revokes Beattie's

AF-1 clearance for his "off duty

political activities." Intense

harassment begins.

Feb., Beattie files grievance.

Mar., DIS begins investigation.

Mar. 3, Grievance settled.

Boeing agrees to submit matter

to Air Force for decision.

Boeing infers to Beattie that AF

will interview him.

Mar. 24, Beattie provides Boeing

with his handwritten DIS report

of Soviet contacts.

May, Boeing asks Air Force to

make AF-1 clearance decision.

They say their request is based

on their just having discovered

that Beattie had made previously

unreported Soviet contacts--no

mention of union settlement.

June, DIS closes investigation.

July, Without ever interviewing

Beattie, A.F. denies Beattie

security clearance. DISCR

grants Beattie security

clearance.

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 67206

Telephone: (316) 683-5242

Pro se

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