Beattie v. Boeing Co.

• Decision Date: 30 December 1994
• Docket Number: No. 92-3314,92-3314
• Citation: 43 F.3d 559
• Parties: Robert M. BEATTIE, Jr., Plaintiff-Appellant, v. The BOEING COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 559

43 F.3d 559

Robert M. BEATTIE, Jr., Plaintiff-Appellant, v. The BOEING COMPANY, Defendant-Appellee.

No. 92-3314.

United States Court of Appeals Tenth Circuit.

Dec. 30, 1994.

James S. Phillips, Jr. of Phillips & Phillips, Wichita, KS, for plaintiff-appellant.

Timothy B. Mustaine (Mary Kathleen Babcock and Susan Lee Smith, on the brief), of Foulston & Siefkin, Wichita, KS, for defendant-appellee.

Before BRORBY, HOLLOWAY and KELLY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff-appellant Robert A. Beattie, Jr. (Beattie) appeals from a summary judgment entered in favor of defendant-appellee The Boeing Company (Boeing) on Beattie's Bivens ¹ claim for violation of his First Amendment right of free speech. ² The judgment followed an unpublished Memorandum and Order. We affirm.

I

In 1984 Beattie was employed as a firefighter with the Boeing Fire Department. Appellant's Appendix (App.) at 50, 175. In 1986 Boeing contracted with the United States to build two Air Force One planes for the use of the President of the United States. Id. at 51. The contract provided that the planes be constructed in a secured area into which only persons with access clearance could enter. Id. at 51-52.

Under the contract there were two types of access clearance: unescorted and escorted (i.e., access in the company of a person with unescorted access clearance). Only the Air Force could grant unescorted access. However, Boeing could grant escorted access, subject to Air Force override. Id. at 137-139, 141, 143, 200, 205-07, 222-23, 226. Applicants for either type of access clearance were subject to a background check to determine if they satisfied the clearance criteria set forth in the contract including "unquestioned loyalty to the United States." Id. at 324. The criteria for both types of access were specified in the contract's Annex 2, on special security requirements. App. at 263a, 324-25. Physical access to the Air Force One area was monitored and controlled by Air Force guards, assisted by Boeing employees. Id. at 143-44, 279-83, 286.

The parties disagree as to whether Beattie ever had any access clearance, whether escorted or unescorted. Beattie claims that prior to February 1989 he had escorted access clearance and had entered the secured area on at least seven occasions to perform work-related duties. Id. at 180-91; Brief of Appellant at 5-6. ³ Boeing contends that "the credible uncontroverted evidence is that plaintiff did not have such access clearance and that plaintiff was never on the escorted access list." Brief of Appellee at 7. ⁴

On February 11, 1989, Beattie requested access to the Air Force One area in order to check certain fire valves, but his request was denied by the Air Force guard on duty. App. at 188, 255. Two days later, Beattie asked the fire chief, Roger Xanders, what the reason was for the denial. Xanders told him that Boeing's Security Administrator, James Barton, had decided to take Beattie off the Air Force One project because of his previous off-duty political activities, including certain anti-nuclear activities. Id. at 188-89, 191, 232-33, 254. ⁵ Xanders further indicated that he had included Beattie on a list of employees for whom Xanders was seeking "optimum Presidential security clearance" but that Barton had ordered Beattie's name taken off that list because of his political activities. Id. at 188-191, 232-33, 255. ⁶

According to Beattie, Barton told him that he had been taken off the Air Force One project and the list of potential candidates for "optimum Presidential security clearance" because his prior anti-nuclear activities called into question his loyalty to the United States and, hence, his eligibility for access clearance under the Air Force contract. Id. at 115, 191, 255-56, 264; see also id. at 232-33. ⁷ Barton's decision to remove Beattie from the list of candidates for access clearance was neither reviewed nor confirmed by his superiors at Boeing or by the Air Force. Id. at 205, 210-12.

On March 3, 1989, Beattie wrote a memorandum to Xanders requesting that his name be submitted "for the Air Force clearance, described to me by Mr. Barton as 'optimum Presidential security clearance.' " Appellee's Supp.App. (Supp.App.) at 91, which Beattie understood to mean escorted access clearance. App. at 114, 115. Xanders passed the request on to his superiors at Boeing, including Barton, Adolph Lomely, Jr. (Boeing's manager of program security), Natt J. Addleman (Boeing's manager for information security), and Kerry D. Crisp (Boeing's manager of security and fire protection). Id. at 213-14, 218; Supp.App. at 218.

In the course of an initial investigation of Beattie's background and suitability for access clearance, Barton provided Lomely with information about some of Beattie's "anti-nuclear activities," and Lomely passed the information on to Addleman. App. at 214, 334. Based on this information and a Boeing Defense Investigative Service report detailing two previously undisclosed contacts between Beattie and citizens of the Soviet Union, ⁸ the Boeing managers concluded that Beattie's request for escorted access should be referred to the Air Force. Id. at 214-18, 221-22, 288-91.

Accordingly on May 10, 1989, Crisp sent a letter to the appropriate Air Force representative requesting that the Air Force decide whether Beattie's request should be approved because "unique circumstances" precluded Boeing from making a "fair and just determination." Supp.App. at 81.

The special circumstances referred to ... concern a report to the Defense Industrial Security Clearance Office.... This report was prompted by our learning of Mr. Beattie's making contact with representatives from designated countries and failing to report that contact. The findings of any investigation resulting from this report could influence an access decision. We are not, however, privy to this information and therefore are unable to make an informed determination in this case.

Id.

In July 1989 the Air Force determined that "[b]ased on Mr. Beattie's past history, he is not authorized escorted or unescorted access to the [Air Force One] security area." ⁹ Supp.App. at 82. Beattie remained at Boeing until June 1990 when he resigned his employment as a firefighter to attend law school. Id. at 7; Brief of Appellee at 15.

Beattie filed the instant suit against Boeing in 1991 alleging that his loss of access clearance had damaged his reputation, caused him to lose promotional opportunities, and led to harassment on the job which resulted in mental distress. App. at 7-8. ¹⁰ Following extensive discovery, Boeing filed a motion for summary judgment, arguing that (1) no Bivens action can be maintained against a private corporation such as Boeing, and (2) even if a Bivens action could in theory be asserted against Boeing, Beattie's claim against the company fails because Boeing was not engaged in federal action. App. at 65(l ) and 65(o).

In granting summary judgment, the district court did not decide whether a Bivens claim can be asserted against a nongovernmental entity such as Boeing. Instead, the court based its ruling on its finding that Boeing had not engaged in governmental action in connection with the refusal to grant Beattie access to the Air Force One area. Specifically, the court concluded that Boeing had not "engaged in joint activity with the Air Force" because the company "made no recommendation as to whether [Beattie's access] request should be allowed or denied"; rather, "[i]t was the Air Force which denied Beattie's request for clearance." Id. at 59-60 (citing and distinguishing Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1430 (10th Cir.1984), cert. denied, 474 U.S. 818, 106 S.Ct. 65, 88 L.Ed.2d 53 (1985), and cert. granted, decision vacated and remanded for reconsideration by City of Lawton v. Lusby, 474 U.S. 805, 106 S.Ct. 40, 88 L.Ed.2d 33 (1985) (mem.), reaff'd on reconsideration, 796 F.2d 1307 (10th Cir.), cert. denied, 479 U.S. 884, 107 S.Ct. 275, 93 L.Ed.2d 251 (1986)).

The court concluded that Boeing's affairs were not "so intertwined with those of the government that it may be said to have acted on behalf of the government," and the government "did not 'delegate' decision-making responsibility for security to Boeing" so as to permit Boeing to exercise powers traditionally reserved exclusively to the government. App. at 59-60. Instead, the court found that the Air Force merely allowed Boeing to "take action with regard to limited security clearance," subject to Air Force override, and held that Boeing's activities did not amount to governmental action subject to constitutional scrutiny and potential Bivens liability. Id. at 60-61.

II The Availability of a Bivens Remedy

The threshold question in this appeal is whether we should recognize a Bivens action in this case. If we cannot recognize a Bivens action under these facts, then the district court's grant of summary judgment in favor of Boeing must be affirmed.

For reasons given below, we are convinced that there are "special factors counselling hesitation" before recognizing a Bivens action in these circumstances. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 396, 91 S.Ct. 1999, 2004, 29 L.Ed.2d 619 (1971). While defendant Boeing does not frame its appellate propositions and arguments in these terms, its brief before us does refer to the "special factors" analysis which we feel requires our holding that we should not recognize a Bivens claim here. ¹¹ In any event, we are obliged to make this analysis because "[b]efore a Bivens remedy may be fashioned ... a court must take into account any 'special factors counselling hesitation.' " Chappell v. Wallace, 462 U.S. 296, 298, 103 S.Ct. 2362, 2365, 76 L.Ed.2d 586 (1983) (emphasis added); see also Bush v. Lucas, 462 U.S. 367, 378, 103 S.Ct. 2404, 2411, 76 L.Ed.2d 648 (1983) (federal courts must, in making a remedial determination appropriate for a...