168 F.3d 520 (D.C. Cir. 1999), 98-5036, Ryan v. Reno
|Citation:||168 F.3d 520|
|Party Name:||John Clement RYAN, Eugene Glynn, Francis Reale and Joseph Halvey, Appellants, v. Janet RENO, United States Attorney General, United States Department of Justice and United States Immigration & Naturalization Service, Appellees.|
|Case Date:||February 26, 1999|
|Court:||United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit|
Argued Dec. 7, 1998.
Appeal from the United States District Court for the District of Columbia (No. 96cv01015).
William F. Causey argued the cause for the appellants. Harry J. Kelly, III was on brief for the appellants.
Diane M. Sullivan, Assistant United States Attorney, argued the cause for the appellees. Wilma A. Lewis, United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, were on brief for the appellees.
Before: GINSBURG, HENDERSON and ROGERS, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LeCRAFT HENDERSON, Circuit Judge:
Appellants John C. Ryan, Eugene Glynn, Francis Reale and Joseph Halvey challenge the district court's dismissal of their employment discrimination suit. In their complaint the appellants, who are of Irish birth and of dual Irish and American citizenship, alleged that the United States Department of Justice (DOJ) and the United States Immigration and Naturalization Service (INS) denied them security clearances and withdrew offers of employment contingent on the clearances on account of national origin and citizenship in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. 1 The district court dismissed the action, concluding it lacked jurisdiction to review the reason given for withdrawing the offers-that because of the length of time the appellants had lived abroad, DOJ could not conduct adequate background investigations to grant them the required clearances. We review the district court's dismissal for lack of jurisdiction de novo, taking as true the facts alleged in the complaint. Moore v. Valder, 65 F.3d 189, 196 (D.C.Cir.1995), cert. denied, 519 U.S. 820, 117 S.Ct. 75, 136 L.Ed.2d 35 (1996). Applying this standard, we conclude that the district court's dismissal should be affirmed.
The material facts are undisputed. In April 1998 INS announced openings for Immigration Inspectors at Shannon International Airport in Shannon, Ireland and published an advertisement in Irish newspapers soliciting applicants. The Immigration Inspector position is a "sensitive" one requiring background investigations and security clearance of applicants. The appellants, then residents of Ireland, applied for the openings. In letters dated July 7, 1988 Robert A. Cleary, Chief of the Operations Services Branch of the INS Personnel and Training Division, informed each of the applicants that each had been "tentatively selected" for the positions "pending satisfactory completion of security requirements" and requested that each notify INS of his "acceptance or declination" and complete and return enclosed security forms. Joint Appendix (JA) 97-100. Each appellant accepted the offer and returned the forms as requested. To expedite the applicants' hiring, INS sent "waiver packages" to DOJ's Office of Security and Emergency Planning Staff (SEPS). A memorandum in each package requested "a waiver of the preappointment full-field investigation" of each applicant and asserted: "The individual will not have access to classified information until after the requisite full-field background investigation has been completed and an appropriate security clearance granted pursuant to applicable Departmental regulations. Access to sensitive Department of Justice information will be kept to a minimum." See, e.g., JA 185, 186. The waiver requests were "disapproved" on June 27, 1989. In a memorandum to INS of the same date, SEPS Director Jerry Rubino explained the disapproval:
Since these applicants have lived in Ireland for a period of years and cannot be adequately investigated for the purpose of determining their trustworthiness, and therefore their eligibility to...
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