The opinion of the court was delivered by: Kram, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pro se against individual
representatives of his employer, the Defense Logistics Agency,
seeking a temporary restraining order and damages for alleged
deprivations of his constitutional rights and for alleged
violations of the Privacy Act, 5 U.S.C. § 552a et seq., the
Freedom of Information Act, 5 U.S.C. § 552, and several
provisions of Title 32 of the Code of Federal Regulations.
Plaintiff invokes the jurisdiction of this Court under
28 U.S.C. § 1331 and 5 U.S.C. § 552a(g)(5).
On January 19, 1990, this Court summarily dismissed the
complaint for, inter alia, lack of subject matter jurisdiction.
Pursuant to plaintiff's request, the following is a fuller
explanation of the reasons behind the dismissal.
Plaintiff Miles Williams was at all relevant times a
civilian employee of the Defense Logistics Agency ("DLA"),
which provides support services for the Department of Defense
("DOD"). Williams was originally hired in October, 1985 as a
Price/Cost Analyst in the Garden City, New York office of the
Contract Administrative Services Management Area
("DCASMA-NY"). DCASMA-NY is a subregional office of the
Defense Contract Administration Services Region — New York,
("DCASR-NY"), which provides contract administration and
quality assurance services for DOD procurement contracts.
Defendant John Reilly is Command Security Officer for
DCASR-NY, and is responsible for the implementation and
execution of personnel decisions made at DLA headquarters in
Alexandria, Virginia. Declaration of John Reilly at 1
("Reilly Aff.") The other defendants include Brigadier
General John Thomson, the commanding officer of DCASR-NY with
general oversight authority; Colonel Paul Hoden, Command
Officer of DLA in Virginia; and General Charles McCausland,
Director of DLA in Virginia. Defendants' Memorandum in
Support of Motion at 3.
Reilly received a copy of this report from NIS and he
forwarded the report to DLA in Virginia, as required by DLA
regulations. Reilly Dec. at 7. The NIS report indicated that
plaintiff had admitted to naval authorities that he had
engaged in illegal drug use. Reilly Dec. at 9. Prompted by
this admission, DLA made the decision to review the
plaintiff's security clearance. Id.
In December 1988, as part of its review of Williams'
continued eligibility for security clearance, DLA instructed
Reilly to request that Williams complete a Personnel Security
Questionnaire, Form 398, and an Authority for Release of
Information and Records, Form 2221. Id at 10. Citing the
voluntary nature of these forms, Williams refused to comply.
Id. at 10.
During this time, plaintiff also applied and was selected
for a promotion to Contract Price/Cost Analyst, GS-12 at
DCASMA-NY. Letter from DLA to Williams, Attached as Exhibit C
at 1. Although DLA informed Williams that he would jeopardize
his promotion by not participating in the investigation,
Williams continued to refuse to complete the forms. Letter of
John Reilly, dated January 3, 1989, attached as Exhibit F to
Williams then filed the instant suit, seeking an injunction
directing his employers to activate his promotion, cease the
investigation and pay monetary damages for loss of earnings.
On April 28, 1989, DLA sent Williams a letter informing him
that his security clearance had been revoked and that he
could appeal the decision to the Deputy Director of DLA.
Letter to Williams from James H. Pope, Chairman of DLA
Central Adjudication Board, Attached to Plaintiff's
Memorandum as Exhibit U. Plaintiff did not appeal. On June
27, 1989, Reilly informed plaintiff by letter that since he
had not appealed the decision on his clearance, the decision
revoking the clearance had become final, and Williams was no
longer eligible to occupy a sensitive position at DLA. Letter
from John Reilly to Williams, Attached to Plaintiff's
Memorandum as Exhibit W.
Although Williams' pro se complaint is difficult to
understand, the Court, conferring upon it the liberal
construction due under Haines v. Kerner, 404 U.S. 519, 520-21,
92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972), reads it to allege
three basic claims. First, Williams alleges that he was
deprived of his constitutional guarantee of due process by the
downgrading of his security clearance and the subsequent loss
of the promotion for which he had been selected: "I was
deprived of a promotion and . . . an existing security
clearance was downgraded without . . . due process in the form
of fair notice and the opportunity to be heard." Plaintiff's
Memorandum in Opposition at 1. Second, plaintiff claims that
DLA and NIS violated his statutory rights to privacy by sharing
information about the investigation into the marijuana
incident. Id. Finally, plaintiff contends that he was
wrongfully deprived of his security clearance under the Privacy
Act for refusing to complete forms 388 and 2221. Id.
Pro se complaints must be accorded a close and sympathetic
reading. Haines v. Kerner, supra, 404 U.S. at 520-21, 92 S.Ct.
at 595-96. They must be construed liberally so as to permit any
possible valid claim. Boag v. MacDougall, 454 U.S. 364, 102
S.Ct. 700, 70 L.Ed.2d 551 (1982). Applying this standard, the
Court interprets Williams' claim against the federal officials
as a constitutional tort under 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).
Before this Court can consider the merits of these claims,
it must ascertain whether it has jurisdiction over the
dispute. This Court is a court of limited jurisdiction.
Lockerty v. Phillips, 319 U.S. 182, 187, 63 S.Ct. 1019, 1022,
87 L.Ed. 1339 (1943). Williams' complaint is essentially
premised on a challenge to a decision of DLA, an agency of the
Defense Department, to investigate and revoke a security
clearance. In addition to arguing that DLA had no authority to
receive information concerning the marijuana incident,
discussed infra, plaintiff argues that DLA should not have
commenced an investigation after the NIS investigation proved
inconclusive. Plaintiff also argues that his clearance should
not have been revoked in light of his exemplary work record.
Plaintiff is essentially asking this Court to evaluate the
circumstances of his employment with DLA and to second-guess
the discretionary judgment of the Department of Defense. This
Court has no authority to engage in this type of review. In
Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98
L.Ed.2d 918 (1988), the Supreme Court held that the Merit
Systems Appeals Board did not have the statutory authority to
review the substantive decision of the Navy to revoke the
plaintiff's security clearance. The Court reasoned that:
The President, after all, is the Commander and
Chief of the Army and Navy of the United States.
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 on 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. . . .
For reasons `too obvious to call for enlarged
discussion,' [quoting CIA v. Sims, 471 U.S. 159,
105 S.Ct. 1881, 85 L.Ed.2d 173 (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
nonexpert body to review the substance of such a
judgment . . . ...