Duane v. US Dept. of Defense

• Decision Date: 03 January 2002
• Docket Number: No. 00-1309,00-1309
• Parties: (10th Cir. 2002) GREGORY DUANE, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF DEFENSE; DEFENSE INVESTIGATIVE SERVICE; DIRECTORATE FOR INDUSTRIAL SECURITY CLEARANCE REVIEW, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 988

275 F.3d 988 (10th Cir. 2002)

GREGORY DUANE, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF DEFENSE; DEFENSE INVESTIGATIVE SERVICE; DIRECTORATE FOR INDUSTRIAL SECURITY CLEARANCE REVIEW, Defendants-Appellees.

No. 00-1309

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

January 3, 2002

Appeal from the United States District Court for the District of Colorado (D.C. No. 94-D-2585) Barry D. Roseman of Roseman & Kazmierski, LLC, Denver, Colorado for Plaintiff-Appellant.

Martha A. Paluch, Assistant United States Attorney (Thomas L. Strickland, United States Attorney, with her on the brief), Denver, Colorado for Defendants-Appellees.

Before KELLY and HOLLOWAY, Circuit Judges, and SHADUR, District Judge.^*

SHADUR, District Judge.

Gregory Duane ("Duane") has sued the United States Department of Defense ("Department") for the allegedly wrongful revocation of his security clearance. Duane contends that Department violated its own regulations by revoking his clearance on the basis of charges not contained in the Statement of Reasons (sometimes referred to here simply as "Statement") that it had provided to him before his administrative hearing, so that he was denied a full and fair opportunity to defend himself against those new charges at the hearing.¹

Department filed a motion to dismiss Duane's Complaint on the grounds (1) that the court lacked jurisdiction to review the complaint and (2) that even when the Complaint is viewed on its merits, Department did not violate its own regulations when it revoked Duane's security clearance. That motion was referred to a magistrate judge, who issued a report recommending that the complaint be dismissed, a recommendation that was then adopted by the district court. We AFFIRM.

Facts

From 1983 to 1988 Duane worked in a series of private sector jobs that required him to possess a security clearance granted by Department. To obtain that clearance in 1984, Duane submitted answers to a Personnel Security Questionnaire ("Questionnaire") that included this question:

Have you ever used any narcotic, depressant, stimulant, hallucinogen (to include LSD or PCP) or Cannabis (to include marijuana or hashish) except as prescribed by a licensed physician?

Duane responded "No."

On April 28, 1988 Duane's clearance was suspended by Department pending an investigation.² Following that investigation, Department issued a Statement of Reasons as required by the agency's internal regulations. Its Statement said Department could not find, as required by its regulations, that it was "clearly consistent with the national interest" to continue to grant Duane a security clearance. That non-finding was in turn based on three general findings: (1) that Duane advocated the use of force or violence to overthrow the United States Government, (2) that he had knowingly and willingly falsified, concealed or misrepresented material facts in statements to Department and (3) that his actions reflected poor judgment, unreliability or untrustworthiness.

As to the second of those reasons, the Statement included these specific charges, as amended without objection:

a. You falsified material facts on a Personnel Security Questionnaire (DD Form 48), executed by you under date of January 25, 1984, on which you were required to reply to the following question: "15.a. Have you ever used any narcotic, depressant, stimulant, hallucinogen (to include LSD or PCP) or Cannabis (to include marijuana or hashish) except as prescribed by a licensed physician?"; to which you answered "NO"; whereas in truth and in fact, as you then and there well knew and sought to conceal, you used marijuana until at least 1981.

b. During a September 17, 1988 interview with a Special Agent of the Defense Investigative Service, you falsified material facts in that you stated that you had not used marijuana or any other illegal drug since 1974; whereas in truth and in fact, as you then and there well knew and sought to conceal, you used marijuana until at least 1981.

Duane responded by denying those charges, although he admitted that he had used marijuana sporadically as a college undergraduate during the years 1970-74 and that he had failed to disclose that information on his Questionnaire. As he explained:

I was not trying to conceal anything that I thought mattered. I simply thought that I had tried marijuana so long before that it did not seem significant or relevant. When I was asked about drug use in an interview in 1988, I readily admitted to my past use of marijuana.

In September 1991 a hearing was held before an administrative judge ("AJ"). Special Agent David Kerno ("Kerno"), who had handled the investigation of Duane's security clearance, testified for Department that he had interviewed Duane on September 19, 1988. At the interview Duane initially denied having any "drug involvement" in college, but upon further questioning he admitted that he had smoked marijuana about 12 times during 1970-71, his first two years as a college undergraduate. Duane originally justified his omission of that information from the Questionnaire by saying that he did not think the government would be interested in such minimal use, but he later admitted that he omitted the information intentionally out of fear that it would prevent him from obtaining a security clearance. On cross-examination Kerno admitted that he had not included Duane's initial denial of all drug use in the written report he prepared following the interview, explaining that he gave Duane "the benefit of the doubt" because he had admitted the usage later in the same conversation.

Special Agent Albert Snyder ("Snyder") testified for Department that he had conducted a pre-polygraph-test interview with Duane in October 1988.³ According to Snyder, Duane said during the interview that he had used marijuana approximately 200 times between the years 1970 and 1981. On cross-examination Snyder admitted that Duane might have given 200 as an upper limit on the number of times he had used marijuana, but he also reiterated that Duane had told him he had last used marijuana in 1981.

Duane presented testimony of his friend Rosanna Jenne ("Jenne"), who had been present during Duane's interview with Snyder. Jenne testified that in the course of the interview Duane calculated the number 200 by estimating that "in the worst possible case" he had smoked marijuana once a week over a two-year period, meaning a total of 100 times. Duane then doubled that number to an "upper limit" of 200 to be absolutely certain he would pass the polygraph test. Duane also presented testimony from a colleague he had known since 1975, who stated that he had never seen any sign of Duane using illegal drugs during that time.

Duane also testified on his own behalf, refuting several of the assertions made by Department's witnesses. He said he had never denied marijuana use to Kerno. Duane explained that it was difficult for him to recall a meaningful number when asked how often he had used marijuana because of the length of time that had elapsed and the nature of his use, which occurred strictly in social settings at his fraternity. He testified that shortly after his interview with Kerno, he had provided a written statement that recalled one additional instance of marijuana use in 1974. Duane also explained that his failure to disclose his drug use on the Questionnaire arose from a "presumptive reading" of the question, in which he assumed that Department would not be interested in his reporting that he had tried marijuana so long ago and, on that premise, he wished to avoid any potential complications in the security clearance procedure.

Finally, Duane testified at length about the pre-polygraph interview with Snyder, explaining that he reached the number of 200 as an "upper bound" at which he would have no concerns about passing the polygraph exam. Duane said he had told Snyder that he felt there was no discrepancy between the number 200 and the 12 times he had initially told Kerno because "12 was a lot closer to the truth." He also stated that he told Snyder he could not recall ever using marijuana after 1974 but had given 1981 as a date he was absolutely certain would allow him to pass the polygraph exam.

Following the hearing the AJ made several key factual findings:

1. Duane used marijuana between 100 and 200 times during 1970-74, but never since that time.

2. Duane deliberately failed to disclose his marijuana use on the Questionnaire out of fear that the information would affect his ability to obtain a security clearance.

3. Duane intentionally misrepresented his marijuana use during his interview with Kerno by first denying any drug involvement and by later admitting to such usage only 12 times during 1970-71.⁴

In light of those findings, the AJ ruled in Duane's favor as to the first charge (advocating the use of force or violence) and charge 2.b (falsely denying in the 1988 interview that he had used marijuana until 1981). But as to charge 2.a (misrepresenting the marijuana use on the Questionnaire), the AJ sustained the allegation and found that Duane's denial of any drug use in his Questionnaire constituted a knowing and willful misrepresentation of material fact (charge 3). In the AJ's view there were aggravating factors that compounded the misrepresentation: Duane's initial denial of drug use in his 1988 interview with Kerno, plus the discrepancies in the numbers he gave throughout the investigation as estimates of the frequency of his drug use--and those factors overrode the mitigating factors of Duane's unblemished work history and character references. That determination led the AJ (1) to conclude that continuing Duane's access to classified information was not clearly consistent with the national interest and (2) to uphold the revocation of Duane's clearance.

Both parties appealed that determination to the Directorate of Industrial Security Clearance Review Appeal Board, which...