Doughty v. Department of the Navy

Filing 13

ORDER: The Amended Ex Parte for Temporary Restraining Order and Preliminary Injunction filed by Plaintiff Michael Doughty is denied. (Doc. 8 ). Signed by Judge William Q. Hayes on 10/6/2014. (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

(mdc)

WQH

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MICHAEL DOUGHTY, an individual,

CASE NO. 14cv2221-WGH-BLM

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ORDER

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Plaintiff,
vs.
DEPARTMENT FO THE NAVY, a
Federal agency,

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Defendant.

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HAYES, Judge:
The matter before the Court is the Amended Ex Parte for Temporary Restraining
Order and Preliminary Injunction filed by Plaintiff Michael Doughty. (ECF No. 8).
I. Background
On September 17, 2014, Plaintiff commenced this action by filing the Complaint.
(ECF No. 1). On September 18, 2014, Plaintiff filed a motion for a preliminary
injunction and temporary restraining order. (ECF No. 3). On September 19, 2014, the
Court denied the motion without prejudice “to Plaintiff filing a proof of service of the
Complaint and Motion or providing grounds as to why notice to Defendant should not
be required.” (ECF No. 4). On September 25, 2014, Plaintiff filed a proof of service
of the Complaint and summons. (ECF No. 7). On October 1, 2014, Plaintiff filed the
Amended Ex Parte for Temporary Restraining Order and Preliminary Injunction. (ECF
No. 8). On October 3, 2014, Defendant Department of the Navy (“the Navy”) filed an

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1 opposition. (ECF No. 10). On October 6, 2014, the Court held a hearing on the motion.
2 II. Allegations of the Complaint
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Plaintiff is a Lieutenant Commander in the United States Naval Reserve,

4 “currently mobilized on active duty orders.” (ECF No. 1 at 2, 4). Plaintiff is currently
5 involved in litigation with his former employer. As part of Plaintiff’s background
6 check, the Navy contacted Plaintiff’s former employer. Plaintiff’s former employer
7 made “serious, but baseless, allegations” to the Navy, including a “completely
8 fabricated narrative” and “questioning Plaintiff’s fitness to hold a security clearance.”
9 Id. at 2, 4. The Navy revoked Plaintiff’s security clearance “without allowing [Plaintiff]
10 an opportunity to respond despite the [Navy’s] stated policy that he would have up to
11 60 days to rebut the accusations.” Id. at 2.
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On September 8, 2014, the Navy sent Plaintiff a Letter of Intent titled “Intent to

13 Revoke Eligibility for Security Clearance and Access to Sensitive Compartmented
14 Information (SCI).” Id. at 4. On September 9, 2014, Plaintiff received a “First
15 Endorsement” of the first letter. Id. Both letters indicate that Plaintiff has fifteen days
16 from September 8, 2014 to respond to the Letter of Intent, and that Plaintiff may request
17 a forty-five day extension. Plaintiff requested and received a forty-five day extension.
18 On September 15, 2014, just seven days later, Plaintiff’s security clearance was
19 revoked, and the demobilization and discharge process began.
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The Complaint asserts a violation of the due process clause of the Fifth

21 Amendment, brought pursuant to 42 U.S.C. section 1983, and seeks declaratory relief,
22 preliminary and permanent injunctive relief, and costs of suit.
23 III. Motion for Temporary Restraining Order and Preliminary Injunction
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Plaintiff asserts that the Navy has given him until November 17, 2014 to respond

25 to the Letter of Intent. Plaintiff asserts that the demobilization process will begin on
26 October 6, 2014 and “result in his demobilization and discharge no later than
27 approximately October 20, 2014.” (ECF No. 8-1 at 2). Plaintiff requests that the Court:
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1. Declare that DON’s de-mobilization and discharge of Plaintiff violates
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the Due Process Clause of the Fifth Amendment to the Constitution of the
United States and enjoin Defendant from de-mobilizing and discharging
Plaintiff until he has a proper opportunity to respond to the periodic
investigation;
2. Issue preliminary and permanent injunctions enjoining DON from
de-mobilizing and discharging Plaintiff until he has had a proper
opportunity to respond to the periodic investigation; and
3. Order DON to reinstate Plaintiff to the pre-deployment training he was
undergoing when his security clearance was revoked without cause.

7 Id. at 8-9. Defendant contends that review of the Navy’s administrative decisions
8 regarding Navy personnel are non-justiciable in this case. Defendant also contends that
9 Plaintiff has failed to demonstrate irreparable harm in the absence of a preliminary
10 injunction.
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A. Preliminary Injunction Standard

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When the nonmovant has received notice, as here, the standard for issuing a

13 temporary restraining order is the same as that for issuing a preliminary injunction. See
14 Brown Jordan Int’l, Inc. v. Mind’s Eye Interiors, Inc., 236 F. Supp. 2d 1152, 1154 (D.
15 Haw. 2002); Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp.
16 1320, 1323 (N.D. Cal. 1995). “[A] preliminary injunction is an extraordinary and
17 drastic remedy, one that should not be granted unless the movant, by a clear showing,
18 carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)
19 (quotation omitted).
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To obtain preliminary injunctive relief, a movant must show “that he is likely to
21 succeed on the merits, that he is likely to suffer irreparable harm in the absence of
22 preliminary relief, that the balance of equities tips in his favor, and that an injunction
23 is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
24 (2008); see also Am. Trucking Ass’n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052
25 (9th Cir. 2009). “‘[S]erious questions going to the merits’ and a balance of hardships
26 that tips sharply towards the plaintiff can support issuance of a preliminary injunction,
27 so long as the plaintiff also shows that there is a likelihood of irreparable injury and that
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1 the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632
2 F.3d 1127, 1135 (9th Cir. 2011); see also Villegas Lopez v. Brewer, 680 F.3d 1068,
3 1072 (9th Cir. 2012). In other words, “a stronger showing of irreparable harm to
4 plaintiff might offset a lesser showing of likelihood of success on the merits.” Cottrell,
5 632 F.3d at 1131.
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At a minimum, “the moving party must demonstrate a significant threat of

7 irreparable injury.” Arcamuzi v. Cont’l Air Lines, Inc., 819 F.2d 935, 937 (9th Cir.
8 1987) (citation omitted). “[A]n injunction cannot issue merely because it is possible
9 that there will be an irreparable injury to the plaintiff; it must be likely that there will
10 be.” Am. Trucking Ass’n, 559 F.3d at 1052. “Issuing a preliminary injunction based
11 only on a possibility of irreparable harm is inconsistent with our characterization of
12 injunctive relief as an extraordinary remedy that may only be awarded upon a clear
13 showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. If the
14 moving party fails to meet the “minimum showing” of a likelihood of irreparable injury,
15 a court “need not decide whether [the movant] is likely to succeed on the merits.”
16 Oakland Tribune, Inc. v. Chronicle Pub. Co., Inc., 762 F.2d 1374, 1377 (9th Cir. 1985).
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“[E]conomic injury alone does not support a finding of irreparable harm, because

18 such injury can be remedied by a damage award.” Rent-A-Center, Inc. v. Canyon
19 Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991) (citing L.A.
20 Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1201 (9th Cir.
21 1980)); see also Sampson v. Murray, 415 U.S. 61, 90 (1974) (“Mere injuries, however
22 substantial, in terms of money, time and energy necessarily expended are not enough”
23 to constitute irreparable injury) (quotation omitted). However, the United States Court
24 of Appeals for the Ninth Circuit has “recognized that intangible injuries, such as
25 damage to ongoing recruitment efforts and goodwill, qualify as irreparable harm.”
26 Rent-A-Center, Inc., 944 F.2d at 603 (citing Regents of Univ. of Cal. v. Am. Broad.
27 Cos., 747 F.2d 511, 519-20 (9th Cir. 1984)); see also WMX Techs. v. Miller, 80 F.3d
28 1315, 1325 (9th Cir. 1996). “[T]he deprivation of constitutional rights ‘unquestionably
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1 constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.
2 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
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B. Likelihood of Success on the Merits: Fifth Amendment Due Process

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Plaintiff contends he is likely to succeed on the merits because the Navy

5 “violated the terms of its own policies and unilaterally revoked Plaintiff’s clearance
6 without affording him the opportunity to respond.” (ECF No. 8-1 at 7). Plaintiff asserts
7 that he will be able to “successfully rebut the baseless allegations that were the [Navy’s]
8 stated reasons for revoking his clearance, and his clearance will be reinstated.” Id.
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Defendant contends that Plaintiff’s claim is non-justiciable under Mindes v.

10 Seaman, 453 F.2d 197 (5th Cir. 1971) and Sebra v. Neville, 801 F.2d 1135, 1139-41
11 (9th Cir. 1986). Defendant contends that the claim is non-justiciable because Plaintiff
12 cannot establish the violation of a constitutional right. Defendant contends that
13 decisions to demobilize or discharge a reservist is only subject to review if based on
14 “constitutionally infirm grounds,” and Plaintiff has failed to allege any constitutionally
15 infirm grounds for demobilization and discharge. (ECF No. 10 at 7-8). Defendant
16 contends that there is no constitutional right to security clearance. Defendant contends
17 that the relief requested would interfere with military functions subject to military
18 discretion and expertise.
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“A procedural due process claim has two distinct elements: (1) a deprivation of

20 a constitutionally protected liberty or property interest, and (2) a denial of adequate
21 procedural protections.” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149
22 F.3d 971, 982 (9th Cir. 1998). In Alberico v. U.S., 783 F.2d 1024 (Fed. Cir. 1986), the
23 United States Court of Appeals for the Federal Circuit interpreted a federal law
24 providing that “reserve commissioned officers may be discharged at the pleasure of the
25 President,” and held that “Reserve officers such as [the plaintiff] have no reasonable
26 expectations of continued employment and thus no property interests protected by the
27 due process clause.” Id. at 1027 (citing 10 U.S.C. § 1162(a) (repealed by Pub. L. 10328 337, Div. A, Title XVI, § 1662(i)(2), Oct. 5, 1994)). In Baird v. United States, 243 F.3d
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1 558 (Fed. Cir. 2000) (unpublished), which followed repeal of 10 U.S.C. section
2 1162(a), the United States Court of Appeals for the Federal Circuit reaffirmed that “[a]
3 reservist on active duty does not have a constitutionally protected property interest in
4 his active duty position.” Id. at *1 (citing Alberico, 783 F.2d at 1027). 10 U.S.C.
5 section 12313(a) provides that “[e]xcept as otherwise provided in this title, the
6 Secretary concerned may at any time release a Reserve under his jurisdiction from
7 active duty.” 10 U.S.C. § 12313. Plaintiff has cited no authority for the proposition
8 that Plaintiff has a due process property or liberty right in continued service on active
9 duty orders or continued service in the U.S. Navy Reserves.1
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The Court concludes that Plaintiff has failed to establish “that he is likely to

11 succeed on the merits” or even “serious questions going to the merits” Winter, 555
12 U.S. at 20; Cottrell, 632 F.3d at 1135. Plaintiff’s failure to raise even “serious
13 questions going to the merits” is a sufficient ground for denial of the motion. Vanguard
14 Outdoor, LLC v. City of Los Angeles, 648 F.3d 737 (9th Cir. 2011) (“Importantly, a
15 preliminary injunction may be denied on the sole ground that the plaintiff has failed to
16 raise even ‘serious questions’ going to the merits.”) (citing Guzman v. Shewry, 552 F.3d
17 941, 948 (9th Cir. 2009).
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C. Irreparable Injury

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In the motion, Plaintiff contended that he will suffer “tremendous economic loss

20 and damage to his professional and personal reputation and character which would
21 likely adversely impact his future earning potential and deny him life, liberty and
22 property in violation of the Fifth Amendment to the U.S. Constitution.” (ECF No. 8-1).
23 At oral argument, Plaintiff’s counsel conceded that irreparable injury would not result
24 in the absence of a preliminary injunction. Plaintiff’s counsel stated that Plaintiff
25 believed he was being discharged at the time the motion was filed, but now understands
26 that he is only being demobilized from active duties.
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At oral argument, Plaintiff’s counsel stated that he was unaware of any cases
28 finding a due process right in continued service on active duty.
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Because Plaintiff concedes that there is no threat of irreparable injury, the Court

2 concludes that Plaintiff has failed to establish a significant threat of irreparable injury
3 in the absence of a preliminary injunction.
4 III. Conclusion
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IT IS HEREBY ORDERED that the Amended Ex Parte for Temporary

6 Restraining Order and Preliminary Injunction filed by Plaintiff Michael Doughty is
7 DENIED. (ECF No. 8).
8 DATED: October 6, 2014
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WILLIAM Q. HAYES
United States District Judge

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