Mangino v. Department of Army, Civ. A. No. 91-2318-GTV.

Citation818 F. Supp. 1432
Decision Date30 March 1993
Docket NumberCiv. A. No. 91-2318-GTV.
PartiesMichael MANGINO, Plaintiff, v. DEPARTMENT OF the ARMY and Defense Investigative Service, Defendants.
CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas

Michael Mangino, pro se.

Janice M. Karlin, Office of U.S. Atty., Kansas City, KS, for defendants.

MEMORANDUM AND ORDER

VAN BEBBER, District Judge.

This case comes before the court on the following motions:

Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Doc. 18);
Plaintiff's Motion for Summary Judgment (Doc. 27);
Defendants' Supplemental Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Doc. 53);
Plaintiff's Motion for Summary Judgment (Doc. 56);
Plaintiff's Motion for Oral Argument (Doc. 39);
Plaintiff's Motion for Oral Argument (Doc. 58);
Plaintiff's Motion to Strike (Doc. 66); and
Plaintiff's Motion to Delay Summary Judgment Decision (Doc. 70).

All motions have been responded to by the opposing party. For the reasons stated below, Defendants' Motion to Dismiss, or in the alternative, for Summary Judgment (Doc. 18) and Supplemental Motion to Dismiss, or in the alternative, for Summary Judgment (Doc. 53) are granted. Plaintiff's Motions for Summary Judgment (Docs. 27 and 56) are denied. Plaintiff's Motions for Oral Argument (Docs. 39 and 58) are denied. Plaintiff's Motion to Strike (Doc. 66) is denied. Plaintiff's Motion to Delay Summary Judgment Decision (Doc. 70) is denied as moot.

This case concerns Plaintiff Michael Mangino's disputes with the United States Army regarding a 1984 revocation of his security clearance. Plaintiff brought this action pro se on August 22, 1991, seeking damages, declaratory relief, reenlistment in the Army, and other relief. Specifically, plaintiff asserts claims under the Privacy Act, 5 U.S.C. 552a(g)(1)(C) and (g)(4), constitutional violations, and review of the Army's compliance with its own regulations and procedures under the Administrative Procedures Act, 5 U.S.C. § 706.

I. FACTUAL BACKGROUND

The pertinent uncontroverted facts established by the parties in accordance with D.Kan. Rule 206(c) are as follows:1

Plaintiff Michael Mangino is a former Sergeant of the United States Army. In October, 1983, the Defense Investigative Service began a full field investigation of plaintiff pursuant to a 5-year periodic re-investigation before re-granting a Top Secret security clearance held by plaintiff. In December, 1983, plaintiff departed the United States and was assigned to U.S. Army Headquarters, NATO, in the Netherlands.

On March 15, 1984, the Army issued a letter of intent to revoke plaintiff's security clearance. Plaintiff responded to the notice of intent to revoke security clearance on August 14, 1984. On September 21, 1984, the Army notified plaintiff that it had reviewed his August 14, 1984, response, but had nevertheless decided to revoke his security clearance.

On December 21, 1984, plaintiff wrote another letter regarding his security clearance. On March 6, 1985, the Army responded to plaintiff's December 21, 1984, letter and indicated that the decision to revoke his security clearance was based on a review of his record while a member of the Army, as well as a review of his record while he was a member of the Air Force in previous years. After the revocation of his security clearance, plaintiff was reclassified to another job position which did not require a security clearance.

In February, 1987, the Army began a new security investigation of plaintiff to determine his current eligibility for access to classified material. That investigation was stopped upon plaintiff's honorable discharge from the Army on March 20, 1987. The Army indicates the reason for his discharge as "expiration of term of service-reduction in authorized strength." Plaintiff thereafter enlisted in the Army Reserves. He was honorably discharged from the Army Reserves on March 20, 1990.

On July 5, 1989, plaintiff applied to the Army Board for Correction of Military Records (ABCMR) for correction of his military records pursuant to 10 U.S.C. § 1552. On August 10, 1990, the ABCMR requested the Army Central Clearance Facility (CCF) provide an advisory opinion regarding plaintiff's request for correction of his records. The advisory opinion was provided on August 21, 1990. On November 14, 1990, the ABCMR issued a Memorandum of Consideration, indicating that it had considered plaintiff's request and finding that plaintiff had failed to submit sufficient evidence to demonstrate the existence of probable error or injustice.

On February 14, 1990, plaintiff made a request under the Freedom of Information Act to obtain his military records. On May 21, 1991, plaintiff made a request for correction of records under the Privacy Act. On June 7, 1991, the Army informed plaintiff that it had determined that information provided by plaintiff in his May 21, 1991 letter would make his Army file more complete and that it would include the letter in his Army intelligence dossier to assure fairness. On August 20, 1991, plaintiff brought this lawsuit against the Department of the Army and the Defense Investigative Service.

II. DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION OR FAILURE TO STATE A CLAIM
A. Jurisdiction to Review the Merits of a Security Clearance Decision

Defendants have moved this court to dismiss this action in its entirety based on a lack of subject matter jurisdiction. Specifically, defendants argue that a decision to revoke a security clearance is not judicially reviewable. The court agrees that it has no authority to review the merits of a decision to revoke or deny a security clearance. See Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988); Hill v. Department of the Air Force, 844 F.2d 1407, 1411 (10th Cir.), cert. denied, 488 U.S. 825, 109 S.Ct. 73, 102 L.Ed.2d 49 (1988). Thus, to the extent that any of plaintiff's claims require this court to evaluate the merits of the Army's decision to revoke plaintiff's security clearance, they are dismissed. However, plaintiff has sought more than a simple review of the merits of the Army's decision to revoke his security clearance. Plaintiff has also sought relief on account of alleged constitutional violations by the Army, he has sought a review by this court of whether the Army failed to follow its own regulations pertaining to the revocation of a security clearance, and he has asserted claims under the Privacy Act.

B. Constitutional Claims

Based upon the Hill decision recently rendered by the Tenth Circuit Court of Appeals, the court concludes that plaintiff's claims based upon undifferentiated constitutional violations fail as a matter of law. While the exact nature of plaintiff's alleged constitutional claims is unclear, in his response to the defendants' motion for summary judgment, plaintiff appears to be articulating a due process claim based upon either some type of liberty or property interest related to the security clearance, an interest created by the Army's regulations governing security clearances, a property interest in his employment with the Army, or some sort of defamation claim based on inaccuracies in his records. The court concludes that none of these states a cognizable constitutional claim.

In Hill, the Tenth Circuit held that a person has no property right or liberty interest in a security clearance upon which a constitutional claim can be based. Id. "Whatever expectation an individual might have in a clearance is unilateral at best, and thus cannot be the basis for a constitutional right." Id. (citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)). This conclusion was echoed by Judge Crow in the recent District of Kansas case Beattie v. United States, 759 F.Supp. 753 (D.Kan.), appeal dismissed, 949 F.2d 1092 (10th Cir.1991).

Further, the Tenth Circuit in Hill held that procedural rules relating to the suspension and revocation of clearances are not the type of rules which secure certain benefits and which support claims of entitlement to those benefits. Hill, 844 F.2d at 1411-12 (citations omitted). Thus, the Tenth Circuit held that constitutional rights will not be attached to a security clearance merely because rules have been promulgated to promote fairness and safeguard the rights of individuals. Id. at 1412.

Not only is there no constitutional right attached to a security clearance, but the court concludes that plaintiff has no constitutional claims rising from losing his job under the circumstances of this case. First, at least two courts have held that "`if there is no protected liberty interest in a security clearance, there is no liberty interest in employment requiring such clearance.'" Doe v. Schachter, 804 F.Supp. 53, 58 (N.D.Cal.1992) (quoting Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1104, 113 L.Ed.2d 214 (1991)). Second, it is uncontroverted that plaintiff remained in the Army for approximately three years after losing his security clearance. Although plaintiff contends that his lack of security clearance contributed to a non-promotable status which led to his discharge, it is uncontroverted that plaintiff was discharged from the service at the time his term expired. Plaintiff's only complaint, therefore, would be based on the Army's alleged denial of reenlistment. Because it is clearly established law that there is no right to enlist or reenlist in the armed forces, plaintiff cannot state a claim based upon some property interest in being employed by the Army. See Lindenau v. Alexander, 663 F.2d 68, 72 (10th Cir.1981); see also Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973). This is not a case where a member of the armed service was discharged before his term of duty expired.

Finally, plaintiff's attempt to state a constitutional claim based upon defamation by the...

To continue reading

Request your trial
6 cases
  • Stehney v. Perry
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 3 décembre 1996
    ...592, 603-04, 108 S.Ct. 2047, 2053-54, 100 L.Ed.2d 632 (1988); Dubbs v. C.I.A., 866 F.2d 1114 (9th Cir.1989); Mangino v. Department of Army, 818 F.Supp. 1432, 1438 (D.Kan.1993); 5 U.S.C. § 706(2). Since this alternative was available to Stehney, grant of a writ of mandamus would be B. Count ......
  • Burkins v. US, Civ. A. No. 93-K-2125.
    • United States
    • U.S. District Court — District of Colorado
    • 4 octobre 1994
    ...§ 552a must be brought within two years from the date on which the cause of action arose. Mangino v. Department of the Army and Defense Investigative Service, 818 F.Supp. 1432, 1437 (D.Kan.1993), aff'd, 1994 WL 55606 (10th Cir.1994).16 The statute of limitations is jurisdictional, and it is......
  • Shearson v. Holder
    • United States
    • U.S. District Court — Northern District of Ohio
    • 9 septembre 2011
    ...in another lawsuit describing disclosure of records, even though he did not receive actual documents); Mangino v. Dep't of Army, 818 F.Supp. 1432, 1437 (D.Kan.1993) (“Although plaintiff may not have known for certain the identity of the sources developed in the security clearance investigat......
  • Stone v. Trump
    • United States
    • U.S. District Court — District of Maryland
    • 20 août 2019
    ...right to be commissioned in the Air Force Reserve or to serve in the Armed Forces at all." (citations omitted)); Mangino v. Dep't of Army, 818 F.Supp. 1432, 1435 (D.Kan. 1993) ("Because it is clearly established law that there is no right to enlist or reenlist in the armed forces, plaintiff......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT