# Appendix — Beattie v. Boeing Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1127

## Text

~ 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judgment followed an unpublished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.

“ar , acl v Pe, NP EN a a ae ee ; ono

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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employees
for whom Xanders was seeking "optimum
Presidential security clearance" but that
Barton had ordered Beattie's name taken

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om] pa os rT - *
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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{hf

Fre ee ae ee

be

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).

bai TIES Swe eT —— ee belt atte oe ee an haan a ? — , ae ee ee liad bai ail

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

eee, ap ee es 5 ad Sh teh eT es Lee Oe
” Bd * > ail a ate »
» udies ~ eo

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.

w
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1s hereby granted.
& /
— /

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1497%3A2. Public record. Not legal advice.