844 F.2d 1407 (10th Cir. 1988), 86-2418, Hill v. Department of Air Force

• Citation: 844 F.2d 1407
• Party Name: Thomas W. HILL, Plaintiff-Appellee, v. DEPARTMENT OF AIR FORCE, Defendant-Appellant, and Paul S. Britt; Paul J. Vallerie, Defendants.
• Case Date: March 30, 1988
• Court: United States Courts of Appeals, U.S. Court of Appeals — Tenth Circuit

Page 1407

844 F.2d 1407 (10th Cir. 1988)

Thomas W. HILL, Plaintiff-Appellee,

v.

DEPARTMENT OF AIR FORCE, Defendant-Appellant,

and

Paul S. Britt; Paul J. Vallerie, Defendants.

No. 86-2418.

United States Court of Appeals, Tenth Circuit

March 30, 1988

Rehearing Denied April 11, 1988.

Page 1408

Thomas W. Hill, pro se.

Richard K. Willard, Asst. Atty. Gen., William L. Lutz, U.S. Atty., Barbara L. Herwig and Howard S. Scher, Attys., Appellate Staff Civil Div., Dept. of Justice, Washington, D.C., for defendants-appellants.

Before ANDERSON, BARRETT, Circuit Judges, and THOMPSON, ^[*] District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

This is an appeal from an order of the district court granting Thomas W. Hill's motion for a preliminary injunction and requiring the defendant Department of the Air Force to reinstate Hill's security clearance, remove the "Z code" relating to Hill's security clearance in its computer files, program the computer files to indicate Hill is entitled to access to classified materials consistent with his previous security clearance, and notify all inquiring agencies of the reinstatement of Hill's security clearance without giving any derogatory information. ¹

On appeal, the Air Force argues that the district court erred in ordering the Air Force to restore Hill's security clearance and in prohibiting the Air Force from releasing information pertaining to Hill's suitability for a security clearance. Specifically, the Air Force maintains that (1) courts are not permitted to second-guess the merits or wisdom of military or national security decisions; (2) the only proper basis for review of a military or national security decision is to determine whether pertinent procedural regulations were followed; (3) at most, the action should have been remanded to the Air Force for redetermination; and (4) there is no occasion to order reinstatement of a security clearance when an employee's removal from employment has not been set aside. We agree with the Air Force on every point.

At the request of this court the district court has filed a supplemental opinion explaining the basis for its jurisdiction, and reaffirming its earlier determination that it has jurisdiction in the matter.

The district court has reasoned that jurisdiction was conferred upon it under 28 U.S.C. Sec. 1331 on the theory that "agency actions in suspending [Hill's] access to classified material were illegal and resulted in deprivation of [Hill's] fifth amendment rights to due process and equal protection of the laws." The court found that Hill had both constitutional liberty and property interests in his security clearance, and "had a legitimate expectation of entitlement to access to classified information unless and until his access was terminated with proper procedures based upon the reasonable finding

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that he was a security risk." The court further found that Hill's liberty interests were infringed when his clearance was suspended because dissemination of Hill's suspended status impugned Hill's standing and reputation, and limited Hill's ability to secure employment. Finally, the district court ruled that Hill's superior maliciously caused the suspension of Hill's clearance out of personal animosity, and "[s]uch conduct would not be rationally related to legitimate government purposes and implicates a violation of equal protection."

On February 23, 1988, the United States Supreme Court issued its opinion in Dep't. of the Navy v. Egan, --- U.S. ----, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988). That opinion (which we awaited for whatever guidance it might afford in our disposition of this case), directly addresses only the narrow question of "whether the Merit Systems Protection Board (Board) has authority by statute to review the substance of an underlying decision to deny or revoke a security clearance in the course of reviewing an adverse action." Id. at 820 (emphasis added). Nevertheless, the case removes any doubt regarding the authority of federal courts to review the merits of the grant or denial of security clearances. Under any circumstance 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 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 824. The court elaborated as follows:

The President, after all, is the "Commander in Chief of the Army and Navy of the United States." U.S. Const., Art. II, Sec. 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. See Cafeteria Workers v. McElroy, 367 U.S. 886, 890 [81 S.Ct. 1743, 1746, 6 L.Ed.2d 1230] (1961). This Court has recognized the Government's "compelling interest" in withholding national security information from unauthorized persons in the course of executive business. Snepp v. United States, 444 U.S. 507, 509, n. 3 [100 S.Ct. 763, 766, n. 3, 62 L.Ed.2d 704] (1980). See also United States v. Robel, 389 U.S. 258, 267 [88 S.Ct. 419, 425, 19 L.Ed.2d 508] (1967); United States v. Reynolds, 345 U.S. 1, 10 [73 S.Ct. 528, 533, 97 L.Ed. 727] (1953); Totten v. United States, 92 U.S. [2 Otto] 105, 106 [23 L.Ed. 605] (1875). The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.

* * *

* * *

It should be obvious that no one has a "right" to a security clearance. 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 the interests of the national security." See, e.g., Exec. Order No. 10450, Secs. 2 and 7, 3 CFR 936, 938 (1949-1953 Comp.); 10 CFR Sec. 710.10(a) (1987) (Department of Energy); 32 CFR Sec. 156.3(a) (1986) (Department of Defense). 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 it also may be based upon concerns completely unrelated to conduct, such as having close relatives residing in a country hostile to the United States. "[T]o be denied [clearance] on unspecified grounds in no way implies

Page 1410

disloyalty or any other repugnant characteristic." Molerio v. FBI, 242 U.S.App.D.C. 137, 146, 749 F.2d 815, 824 (1984). The attempt to define not only the individual's future actions, but those of outside and unknown influences renders the "grant or denial of security clearances ... an inexact science at best." Adams v. Laird, 136 U.S.App.D.C. 388, 397, 420 F.2d 230, 239 (1969), cert. denied, 397 U.S. 1039, 90 S.Ct. 1360, 25 L.Ed.2d 650 (1970).

Predictive judgment of this kind must be made by those with the necessary expertise in protecting classified information. For "reasons ... too obvious to call for enlarged discussion," CIA v. Sims, 471 U.S. 159, 170 [105 S.Ct. 1881, 1888, 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 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 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 [76 S.Ct. 861, 868, 100 L.Ed. 1396] (1956). As noted above, this must be a judgment call. The Court also has recognized "the generally accepted view that foreign policy was the province and responsibility of the Executive." Haig v. Agee, 453 U.S. 280, 293-294 [101 S.Ct. 2766, 2775, 69 L.Ed.2d 640] (1981). "As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities." United States v. Nixon, 418 U.S. 683, 710 [94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039] (1974). Thus, unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs. See, e.g., Orloff v. Willoughby, 345 U.S. 83, 93-94 [73 S.Ct. 534, 540, 97 L.Ed. 842] (1955), Burns v. Wilson, 346 U.S. 137, 142, 144 [73 S.Ct. 1045, 1049, 1050, 97 L.Ed. 1508] (1953), Gilligan v. Morgan, 413...