Dorfmont v. Brown

• Citation: 913 F.2d 1399
• Decision Date: 10 September 1990
• Docket Number: No. 88-6580,88-6580
• Parties: Linda B. DORFMONT, Plaintiff-Appellant, v. James P. BROWN, Director of Department of Defense, Defense Legal Services Agency, Directorate for Industrial Security Clearance Review; Frank C. Carlucci, Secretary of Defense; United States of America, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1399

913 F.2d 1399

59 USLW 2197

Linda B. DORFMONT, Plaintiff-Appellant, v. James P. BROWN, Director of Department of Defense, Defense Legal Services Agency, Directorate for Industrial Security Clearance Review; Frank C. Carlucci, Secretary of Defense United States of America, Defendants-Appellees.

No. 88-6580.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 29, 1990.

Decided Sept. 10, 1990.

Dale M. Fiola, Anaheim, Cal., for plaintiff-appellant.

Tomson T. Ong, Asst. U.S. Atty., Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before NELSON, BRUNETTI and KOZINSKI, Circuit Judges.

KOZINSKI, Circuit Judge:

Linda Dorfmont lost her security clearance. We consider whether the federal courts can do anything about it.

Facts

Linda Dorfmont worked on United States government defense contracts for Hughes Aircraft, a job for which the Department of Defense had granted her a security clearance.

In 1984, while working on one of those defense contracts, Dorfmont found herself in need of a computer programmer. Unable to secure a programmer within the company, she decided to go outside for help; far outside. On several occasions during the summer of 1984, she sent company data to one Lubemir Peichev. A Bulgarian national, Peichev was serving a life sentence in federal prison for his part in the attempted hijacking of an airliner. For all that, he was said to be a top-notch programmer.

The Directorate for Industrial Security Clearance Review (DISCR), the Defense Department agency charged with reviewing the security clearances of industrial employees working on defense contracts, discovered Dorfmont's arrangement with Peichev; it was not amused. In July 1985, it sent Dorfmont a Statement of Reasons explaining that it could not make a preliminary finding that granting Dorfmont continued access to classified material was "clearly consistent with the national interest." The Directorate also advised Dorfmont it was recommending that her case be submitted to a hearing examiner for a determination whether to revoke her security clearance. The stated reason for this recommendation was "conduct of a reckless nature indicating poor judgment, unreliability or untrustworthiness," to wit the turning over of documents to Peichev.

Dorfmont submitted a response to the Statement of Reasons, and requested a formal hearing. The hearing took place before a hearing examiner on four days in September 1986. After receiving evidence and testimony from both Dorfmont and the Department of Defense, the examiner concluded that it was not clearly consistent with the national interest to continue Dorfmont's security clearance.

Dorfmont appealed to the Department of Defense Appeal Board. In September 1987, the appeal board filed its determination, finding error and remanding to the hearing examiner for reconsideration. Pursuant to the appeal board remand order, the examiner considered additional evidence and once again concluded that it was not clearly consistent with the national interest to continue Dorfmont's security clearance. Dorfmont appealed once more and, in July 1988, the appeal board affirmed the determination of the hearing examiner.

A month later, Dorfmont filed the present action seeking an injunction against the revocation of her security clearance. Dorfmont alleged that the decision of the hearing examiner and appeals board violated her rights to procedural and substantive due process. The district court dismissed the complaint, finding that it did not have jurisdiction to review the lifting of Dorfmont's security clearance.

Dorfmont appeals. The existence of subject matter jurisdiction is a question of law we review de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir.1989).

Discussion

I. Judicial Review of Security Clearance Decisions

A. 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 Protection Board (MSPB) has no authority to review an executive decision to revoke a security clearance. The logic of that decision precludes judicial review as well.

The Court explained in Egan that the normally strong presumption in favor of appellate review of agency decisionmaking "runs aground when it encounters concerns of national security." Id. at 527, 108 S.Ct. at 823. In this "sensitive and inherently discretionary" area of decisionmaking, the "authority to protect [security] information falls on the President as head of the Executive Branch and as Commander in Chief." Id.

Because of the extreme sensitivity of security matters, there is a strong presumption against granting a security clearance. Whenever any doubt is raised about an individual's judgment or loyalty, it is deemed best to err on the side of the government's compelling interest in security by denying or revoking clearance. The general administrative standard is that a clearance may be granted or retained only if "clearly consistent with the interests of the national security." Id. at 528, 108 S.Ct. at 824 (internal quotations omitted). In light of this presumption, "no one has a 'right' to a security clearance." Id.

Security clearance decisions are inherently uncertain; they rest on the ability to predict an individual's future behavior. In Egan, the Court recognized the necessity for expertise in making such decisions. Id. at 529-30, 108 S.Ct. at 824-30. In the key passage for our purposes, the Court concluded:

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.

Id. at 529, 108 S.Ct. at 825. This reasoning applies no less to the federal courts than to the MSPB. When it comes to security matters, a federal court is "an outside nonexpert body." We have no more business reviewing the merits of a decision to grant or revoke a security clearance than does the MSPB. Thus, the reasoning behind Egan precludes this type of judicial review.

In its subsequent decision in Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), the Court confirmed that federal courts lack jurisdiction to review the merits of security clearance decisions. The Court considered the scope of judicial review available for decisions by the Director of Central Intelligence to terminate a CIA employee for security reasons. Webster held that such decisions were committed to the discretion of the director by law, thereby precluding judicial review pursuant to the Administrative Procedure Act. Id. at 601, 108 S.Ct. at 2052.

The Department of Defense revoked Dorfmont's security clearance. The department derives its authority directly from the President. See Exec. Order No. 10865, 25 Fed.Reg. 1583 (1960), as amended by Exec Order No. 10909, 26 Fed.Reg. 508 (1961). The decision to grant or revoke a security clearance is committed to the discretion of the President by law. Egan, 484 U.S. at 527, 108 S.Ct. at 823. The district court therefore cannot review the merits of the department's decision to revoke Dorfmont's security clearance. See id. at 529-30, 108 S.Ct. at 824-25; Webster, 486 U.S. at 601, 108 S.Ct. at 2052.

B. Although Dorfmont fashions her claims as due process challenges, they are, save two, attacks on the merits of the decision to lift her security clearance. She argues essentially that her actions did not justify the lifting of her clearance: that the findings of the hearing examiner were contrary to the evidence; that the examiner must have been biased because his findings were contrary to the evidence and because he chose not to believe Dorfmont's testimony; that his findings were contrary to Department of Defense Directive 5220.6 Sec. F.3, which provides that a security clearance will be continued only if "clearly consistent with the national interest"; ¹ that the examiner abused his discretion in denying Dorfmont's motion to dismiss; that he abused his discretion by failing to follow the remand order of the appeal board; and that the appeal board erred and abused its discretion by affirming the determination of the examiner after reconsideration. Dorfmont also complains that the criteria defendants use to make security clearance decisions do not assure a reasonable nexus between the applicant's behavior and the security objectives of the United States. All of these claims are attacks on the merits of the department's decision in this case and on security decisions generally; the district court has no authority to review them.

Dorfmont does, however, raise two claims that do not attack the substance of the department's decision. The appeal board, in affirming the determination of the hearing examiner, explained that it has no authority to reverse a decision of the examiner, but can only affirm or remand for further proceedings. Dorfmont claims that this limitation on the appeal board's review powers violates her right to procedural due process. Dorfmont also alleges that the criteria defendants use to make security clearance decisions are vague and arbitrary and therefore do not provide adequate notice of what conduct is likely to lead to revocation of a security clearance. Id. This is a substantive due process claim. See Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1407 (9th Cir.1989) ("the due process clause includes a substantive component which guards against arbitrary and capricious government action"), cert. denied, --- U.S. ----, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990). We must consider whether the district court can hear these claims.

II. Due Process Attack on Security Clearance Decisions

A. Webster held that even though ...