Buttino v. FBI

• Citation: 801 F. Supp. 298
• Decision Date: 31 July 1992
• Docket Number: No. C-90-1639-SBA.,C-90-1639-SBA.
• Court: U.S. District Court — Northern District of California
• Parties: Frank BUTTINO, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

801 F. Supp. 298

Frank BUTTINO, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

No. C-90-1639-SBA.

United States District Court, N.D. California.

February 12, 1992.

On Motion for Reconsideration July 31, 1992.

Richard Gayer, San Francisco, Cal., for plaintiff.

William T. McGivern, U.S. Atty., San Francisco, Cal., Mary E. Goetten, Tracy L. Merritt, Attys., Dept. of Justice, Washington, D.C., Motion for Summary Judgment, William T. McGivern, U.S. Atty., San Francisco, Cal., Mary E. Goetten, Kevin E. Simpson, Robert A. Van Kirk, Attys., Dept. of Justice, Washington, D.C., Motion for Reconsideration, for defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ARMSTRONG, District Judge.

OVERVIEW

Plaintiff Frank Buttino brought this lawsuit to challenge the revocation of his security clearance and the termination of his employment as a Special Agent with the Federal Bureau of Investigation (the "FBI"). Plaintiff claims that he was deprived of his right to due process under the Fifth Amendment of the United States Constitution, his rights to freedom of speech and freedom of association under the First Amendment, and his right to equal protection under the Fifth Amendment. He also brings a Bivens claim against FBI Director William Sessions.

The matter is currently before the court on defendants' motion for summary judgment.¹ Having carefully considered all of the papers submitted by the parties, the court HEREBY GRANTS summary judgment as to plaintiff's due process and First Amendment claims and DENIES summary judgment as to plaintiff's equal protection claim.²

BACKGROUND

Frank Buttino joined the FBI as a Special Agent in 1969. During his twenty-year tenure with the agency, his assignments included undercover work and criminal and foreign intelligence. He performed investigations involving espionage, Chinese affairs, and terrorism. He received four special commendations as well as numerous cash awards for his service as a Special Agent, and the FBI has stated that it has no information to indicate that plaintiff ever failed to safeguard either the classified information or the money with which plaintiff was entrusted during his tenure with the agency. Buttino is gay.

In August, 1988, the FBI received an undated, handwritten letter stating that Buttino engaged in homosexual activity and enclosing a second handwritten letter to "James" signed "Frank," describing certain homosexual activities. The FBI then initiated an administrative inquiry regarding Mr. Buttino which resulted in the FBI's revocation of Buttino's Top Secret security clearance and, in turn, the termination of his employment.³

The parties agree to little else about the facts. Defendants describe plaintiff as being "repeatedly deceptive" during their investigation, while Buttino denies all deception other than initially lying when he denied writing the note to "James." Buttino states that he understood that he would have been fired if he had admitted the truth about the note, and that he corrected the lie when he was called back to FBI Headquarters on the matter five weeks later.

The defendants say that plaintiff's security clearance was revoked because he was deceptive, because he disclosed information he was not supposed to, and because he was uncooperative in their investigation. Plaintiff claims his security clearance was revoked because he is gay, consistent with the FBI's traditional anti-gay policy. He says the FBI's contention that he was fired because of his "lack of candor" is a mere pretext for the agency's anti-gay discrimination and that non-gay employees "guilty" of similar degrees of lack of candor or improper disclosure of information do not suffer punishment anywhere near that which he suffered.

Buttino seeks reinstatement. He has given defendants "unrestricted permission" to tell anyone they desire about his sexual orientation and conduct.

DISCUSSION

I. The Reviewability of Plaintiff's Equal Protection Challenge to the Revocation of his Security Clearance.

Defendants first argue that the revocation of plaintiff's security clearance is "not judicially reviewable" because such determinations are highly discretionary and are constitutionally committed to the Executive Branch. They cite Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988) and Dorfmont, in support of this argument. It is clear under Egan and Dorfmont that courts should be highly deferential in reviewing the denial or granting of security clearances for the reasons defendants indicate. Dorfmont, in fact, specifically held that a person cannot raise due process challenges to the revocation of a security clearance.

Defendants overstate the scope of Dorfmont, however. Dorfmont specifically refrained from ruling that all constitutional attacks on security clearance determinations cannot be heard, and acknowledged that Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), Dubbs v. CIA, 866 F.2d 1114 (9th Cir.1989) ("Dubbs I"), and High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990), "stand for the proposition that federal courts may entertain colorable constitutional challenges to security clearance decisions." Dorfmont, 913 F.2d at 1404. Significantly, Dubbs I and High Tech Gays both involved equal protection challenges to security clearance determinations.

Nevertheless, not only did Dorfmont stop short of holding that equal protection challenges to security clearance decisions are nonreviewable, but Dorfmont certainly did not speak to the situation in which there is an allegation of the government's pretextual revocation of a security clearance, which is really the essence of plaintiff's complaint. Indeed, only a strained reading of Dorfmont (when considered in tandem with High Tech Gays and Dubbs I) would support the shielding of the government's revoking a security clearance where such revocation is a mere pretext for the implementation of a discriminatory policy. To construe Dorfmont in that way would be to invite those government officials, who have both the authority to make security clearance determinations and the desire to discriminate against a certain class of persons, to effect such discrimination through their security clearance decision-making authority with the comfort of knowing that the nonreviewability of the "merits" of security clearance determinations would serve to immunize the discrimination from judicial review. Defendants have not persuaded the court that either Dorfmont or any accepted constitutional principles compel such a result.

In fact, Judge Eugene Lynch of this District expressly rejected rendering equal protection challenges to security clearance determinations nonreviewable per se in Dubbs v. CIA, 769 F.Supp. 1113 (N.D.Cal. 1990) ("Dubbs II"). In so doing, Judge Lynch stated:

The court accepts, as a general matter, the language in Egan which indicates that courts ought to be extremely deferential in reviewing issues such as the denial or granting of security clearances that are constitutionally committed to the Executive Branch and involve highly discretionary decisions requiring specialized expertise. See Egan, 484 U.S. at 527-530, 108 S.Ct. at 824-826. However, such deference to Executive Branch decisions does not require the Judiciary to abdicate its authority under Article III to decide whether or not an individual's right to equal protection under the Federal Constitution has been violated.

Dubbs II, 769 F.Supp. at 1116 n. 3. Judge Lynch continued:

More importantly, defendants' argument requires this Court to presume that they have acted rationally in the present case and would be acting rationally in any case where they deny an individual a security clearance because of her homosexual orientation and conduct. This standard, while not wholly unprecedented in constitutional jurisprudence, would effectively eviscerate the Dubbs 9th Circuit panel's decision that plaintiff's equal protection claims are colorable citation omitted, something which this Court is not at liberty to do in the absence of a contrary decision from the Ninth Circuit or a higher court.

Id. at 1116-1117.⁴

Judge Lynch's refusal to condone the abdication of an Article III Judge's authority to adjudicate constitutional equal protection claims notwithstanding the need for deference to Executive Branch decisions rests on more, of course, than mere separation-of-powers technicalities. The implication of the judiciary's divesting itself entirely of its role in reviewing colorable constitutional claims is, to put it mildly, unsound as a matter of policy because the result of adopting such a rule would be to effect the wholesale shielding of any actual deprivations of equal protection occurring in the course of the Executive Branch's allocation of security clearances.

To be comfortable with such a rule is to be blind to the historical reality that "national security" has frequently been asserted as the ostensible justification for sweeping deprivations of equal protection which, with hindsight, are nearly universally condemned and readily regarded as, at best, grossly disproportionate to the national security concerns at one time asserted as justifications.⁵

Accordingly, neither the governing authority nor considerations of policy justify adopting a rule of law by which courts would be barred from engaging in any equal protection review of security clearance decisions.⁶ Buttino's equal protection challenge to the FBI's revocation of his security clearance is not, therefore, inherently nonreviewable. As such, the court must proceed to considering whether a reasonable jury could find that plaintiff was discriminated against because of his homosexuality in the revocation of his security clearance, and, if so, whether there was a rational basis for such discrimination.

II. Is there a Triable Issue of Fact as to Whether ...