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WILLIAMS v. REILLY

May 17, 1990

MILES WILLIAMS, PLAINTIFF,
v.
JOHN T. REILLY, JOHN M. THOMSON, PAUL HODEN AND CHARLES MCCAUSLAND, DEFENDANTS.



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.

BACKGROUND

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.

The gravamen of Williams' complaint is that the DLA wrongfully downgraded his security clearance, resulting in the loss of a promotion for which he had been selected.*fn1 The events leading up to this decision began in December, 1987 when an unspecified amount of marijuana was found in the plaintiff's jacket during a routine inspection. This incident was investigated by the Naval Investigative Service ("NIS") of the Department of the Navy.*fn2 Reilly Dec. at 7. No charges were filed against the plaintiff in connection with this incident because there was inconclusive evidence linking Williams to the marijuana allegedly found. Letter from Department of the Navy to Williams, Attached to Plaintiff's Memorandum as Exhibit Q at 1.

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 Defendant's Memorandum.

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.

DISCUSSION

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).

Although it is an unfortunate occurrence to lose a promotion, Williams' complaint presents no viable legal claims. First, the DLA's decision to investigate or revoke a security clearance is not reviewable by this or any court. Second, that decision by the DLA does not invoke the requirement of due process. Finally, the allegations surrounding the DLA officials' conduct of the marijuana investigation do not state a claim for violation of any statute or agency regulation.

I. Jurisdiction

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 . . . ...

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