supra, 687 F. Supp. at 715; see also Hill, supra, 844 F.2d at
1409 (authority of Egan may not be bypassed by invoking alleged
constitutional rights). This Court cannot review DLA's decision
to investigate or revoke Williams' security clearance.
Moreover, as the following discussion shows, even if the
Court had jurisdiction to review the merits of Williams'
claim the Court would be unable to find any constitutional
defect in the procedure by which his clearance and promotion
II. Constitutional Claims
A. Due Process
Williams argues that under the due process guarantees of
the Fifth Amendment, he was entitled to fair notice and a
hearing prior to the commencement of the investigation into
his security clearance, prior to the downgrading of this
clearance, and prior to the revocation of his promotion.
Plaintiff's Memorandum at 1.
It is well established that due process guarantees do not
apply to all deprivations, and not every decision to deny a
person a benefit or entitlement requires notice or hearing.
Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886,
894-95, 81 S.Ct. 1743, 1748-49, 6 L.Ed.2d 1230 (1961). Due
process guarantees are applicable only when a property and/or
liberty interest is at stake. Board of Regents v. Roth,
408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).
Williams' due process claim thus depends on the presence of a
property or liberty interest in his clearance or promotion.
Property rights cannot be created by a mere expectation or
unilateral understanding. One "must have a legitimate claim
of entitlement" to the benefit. Board of Regents v. Roth,
supra, 408 U.S. at 577, 92 S.Ct. at 2709. There is no such
entitlement here. A security clearance is "merely a temporary
permission by the Executive for access to national secrets."
Hill, supra, 844 F.2d at 1411. The Supreme Court recently
stated that, "[i]t should be obvious that no one has a `right'
to a security clearance." Egan, 484 U.S. at 528, 108 S.Ct. at
824; see also Cafeteria Workers' Union, supra, 367 U.S. at
893-94, 81 S.Ct. at 1747-48. Moreover, plaintiff was on notice
that his security clearance was at all times subject to
continual investigation. See Reilly Dec. at 6; 32 C.F.R.
154.60. Plaintiff has no property right in his security
Similarly, there is no liberty interest implicated in the
downgrading of plaintiff's security clearance. Due process
may be required even if no property interest exists only if
the reasons given for the denial of the benefit are made
public and would impair the plaintiff's liberty interest in
his "good name, reputation, honor or integrity". Bishop v.
Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684
(1976). The reason given for the denial of Williams' clearance
was that he refused to assist in the investigation by
completing two forms. No liberty interest is implicated by such
a revocation, even under the Bishop v. Wood rule. The Supreme
Court has recently stated with respect to security clearances:
"A clearance does not equate with passing
judgment upon an individual's character. . . .
[I]t may be based . . . upon past or present
conduct, but it also may be based upon concerns
completely unrelated to conduct. . . . `To be
denied clearance on unspecified grounds in no way
implies disloyalty or any other repugnant
Egan, supra, 484 U.S. at 528-29, 108 S.Ct. at 824-25 (quoting
Molerio v. FBI, 749 F.2d 815, 824 (D.C.Cir. 1984)). Moreover,
pursuant to DOD regulations and in accordance with the Privacy
Act, the plaintiff's personnel records, including the reports
related to the marijuana incident, are unavailable for public
disclosure. See 32 C.F.R. 701.24(f) and (g); 5 U.S.C. § 552(b).
Thus, there was no possibility of impairment of plaintiff's
"good name" or "reputation," as contemplated in Bishop v. Wood.
Accordingly no liberty interest was implicated by the denial of
Williams' security clearance.
Since plaintiff had no property interest in his clearance,
and no liberty interest implicated by its revocation, there
is no basis for his allegation of a due process violation.
See Hill, supra, 844 F.2d at 1411 (no due process rights for
revocation of security clearance because of absence of property
or liberty interest); see also Medina v. United States,
541 F. Supp. 719, 723-24 (D.P.R. 1982) (no property or liberty
interest implicated in revocation of permission to enter
Similarly, here Williams has no cognizable property or
liberty interest in his promotion, which was offered
contingent upon the granting of a security clearance. Thus he
cannot look to the Due Process Clause for relief.
B. Racial Conspiracy
Plaintiff further complains as follows: "Through a
coordinated effort, the Command Security offices of both
headquarters DLA and DCASR-NY have abridged my XIV Amendment
rights to due process and in so doing, have denied me equal
protection. . . ." The Court assumes that Williams means to
raise a claim of equal protection as implied by the Fifth
Amendment, since the Fourteenth Amendment by its terms
applies to the States and not to the Federal government.
Fullilove v. Klutznick, 448 U.S. 448, 497, 100 S.Ct. 2758,
2784, 65 L.Ed.2d 902 (1980) (citing Bolling v. Sharpe,
347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954)).
A thoroughgoing search of plaintiff's complaint yields no
averment that his membership in a suspect class caused him to
be treated unequally. Accordingly, the Court is at a loss to
comprehend the nature of his equal protection claim. Looking
outside the Complaint to the letters and exhibits he appends
to his memorandum of law, he alludes to racially-based
mistreatment. In an exhibit to his Memorandum he states that
Reilly was "acting out of personal and racial resentment of"
him and that "racial discrimination had reared its ugly head
through attempted persecution." Letter from Plaintiff, date
unknown, excerpts attached to Plaintiff's Memorandum as
Exhibit Y.*fn4 In another exhibit he refers to a race
discrimination complaint he apparently filed with the EEOC
prior to commencing this suit, although he does not advise
the Court of the status of that action. See Plaintiff's Letter
to Department of Justice, dated January 3, 1989, attached to
Plaintiff's Memorandum as Exhibit R, at 2. On the basis of
these attachments, the Court surmises that Williams' present
equal protection claim amounts to a claim of race
The Court will infer on Williams' behalf that he hereby
means to complain of violations of federal civil rights laws.
The most probable candidates would be 42 U.S.C. § 1981 or
1985, although plaintiff does not cite these, or indeed any,
statutory basis for this claim. Not even these statutes,
however, can provide the relief that Williams seeks.
In order to make out a conspiracy claim under § 1985(3), a
plaintiff must allege that (1) he is a member of a protected
class; (2) defendants conspired to deprive him of his
constitutional rights; (3) defendants acted with class-based,
invidiously discriminatory animus; and (4) the plaintiff
suffered injury. Gleason v. McBride, 869 F.2d 688, 694-95 (2d
Cir. 1989); Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91
S.Ct. 1790, 1798-99, 29 L.Ed.2d 338 (1971). Unsubstantiated,
conclusory, vague or general allegations of a conspiracy to
deprive constitutional rights are not enough to survive a
motion to dismiss. See Studifin v. New York City Police Dept.,
728 F. Supp. 990 (S.D.N.Y. 1990) (even pro se plaintiff must
allege some factual basis to support claim that defendants
conspired together to deprive him of his constitutionally
interests); Lee v. Carlson, 645 F. Supp. 1430, aff'd,
812 F.2d 712 (2d Cir. 1987); Ostrer v. Aronwald, 567 F.2d 551, 553 (2d
Cir. 1977); Peck v. United States, 470 F. Supp. 1003, 1011
In this case, plaintiff has failed adequately to plead the
elements of a § 1985 conspiracy. First, he does not allege that
he is a member of a protected class. Next, most of his
allegations of conspiracy are vague and conclusory. For
example, plaintiff provides no specific factual basis for his
allegation that defendants conspired together to deprive him of
a benefit or right. Indeed, he alleges no specific acts by
defendants Hoden, McCausland, or Thomson at all.
As against defendant Reilly, Williams does allege one
specific act. Williams accuses him of intentionally removing
documents relating to plaintiff's military record from
plaintiff's personnel file in 1987. Plaintiff's letter,
attached as Exhibit Y. Notably, evidence provided by
plaintiff himself tends to show that Reilly was not even the
DLA official who made the decision regarding Williams'
security clearance. Letter from DLA to Williams, dated March
12, 1987, attached to Plaintiff's Memorandum as Exhibit V at
1. Also of significance in connection with this allegation is
that Williams received his original security clearance
after Reilly allegedly removed the personnel documents. Letter
from plaintiff, attached as Exhibit Y, at 3.
Moreover, Williams does not explain how this alleged act
"reasonably relate[s] to the promotion of the claimed
conspiracy," i.e., the denial of his security clearance.
Powell v. Workmen's Comp. Bd. of N.Y., 327 F.2d 131, 137 (2d
Cir. 1964). This single overt act, tenuously related to the aim
of the alleged conspiracy, is insufficient to make out a claim
under § 1985(3). Thus, Williams' conspiracy allegations fail to
state a claim under § 1985 in several respects.
A § 1981 claim is also unavailable to the plaintiff. The
exclusive remedy for racial discrimination in federal
employment is provided for by Title VII of the Civil Rights Act
of 1964. Brown v. General Services Administration,
425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976); Stewart
v. United States Immigration and Naturalization Service,
762 F.2d 193, 197 (2d Cir. 1985). Under this statute, plaintiff
must exhaust his administrative remedies prior to seeking
relief in the federal courts. 42 U.S.C. § 2000e-16(c). Because
there is no evidence that plaintiff has exhausted his remedies
before the EEOC,*fn5 any claims of racial discrimination that
may be inferred from the complaint cannot be heard by this
Court.*fn6 Hall v. New York State Dept. of Environmental
Conservation, 726 F. Supp. 386, 387 (N.D.N.Y. 1989); Sheehan v.
Purolator Courier Corp., 676 F.2d 877, 881 (2d Cir. 1981).
C. Ninth Amendment
In the absence of any other applicable constitutional
provisions, Williams seeks assistance from the Ninth
Amendment. Plaintiff argues that "[t]he right to pursue
upward mobility in the workplace is something taken for
granted by most Americans," and that for him such upward
mobility is contingent upon his maintaining his security
clearance. This argument has no precedent in Ninth Amendment
jurisprudence. In light of the special nature of a security
clearance and its relation to the interests of national
security, this Court declines to use this case to make new
forays into the interpretation of unenumerated rights.
III. Statutory Violations
A. Privacy Act
In addition to his constitutional complaints, plaintiff
also contends that his statutory right to privacy was
violated by communication between NIS and DLA over the
marijuana incident. Plaintiff basically argues that it was
improper for NIS to inform DLA of the marijuana incident and
plaintiff's alleged admissions made during that
The Privacy Act and DLA regulations prohibit any
unauthorized disclosure of personnel records to the public or
another agency. See 32 C.F.R. 1286.5(f); 32 C.F.R.
701.105(b)(3). Plaintiff's reliance on these protections is
misplaced, however, because they protect against inter-agency,
not intra-agency, disclosures. For purposes of the Privacy Act,
NIS and DLA are considered components of one agency, the
Department of Defense.
Chapter XII of the Department of Defense Section of the
Code of Federal Regulations delineates the responsibilities
and function of DLA. That section states in relevant part:
(b) Agency. For the purpose of disclosing records
subject to the Privacy Act among Department of
Defense components, the Department of Defense is
considered a single agency.
32 C.F.R. 1286.3(b). Similarly, regulations on the
record-keeping duties of NIS state that:
"[d]isclosure [of personnel records] may be made
to personnel of the Department of the Navy or
other components of the Department of Defense
(DOD) . . . who have a need for the record in the
performance of their duties, provided that this
use is compatible with the purpose for which the
record is maintained. This provision is based on
the "need to know" concept. . . .
Examples of personnel outside the Navy who may be
included are: . . . Defense Investigative
32 C.F.R. 701.2105. Accordingly, any information shared
between NIS and DLA was not subject to the requirements of
the Privacy Act. NIS had full authority to inform DLA
officials that plaintiff had been the subject of an
investigation into possession of marijuana and that plaintiff
revealed illicit drug use to Naval authorities. Such
intra-agency communication is not prohibited by the Privacy
Act nor the relevant provisions of the Code of Federal