Montgomery v. Sanders et al
Filing
176
DECISION AND ORDER DENYING PLAINTFFS' MOTION TO RECONSIDER GRANTING LEAVE TO AMEND - Plaintiffs have failed to show that the Court committed a manifest error of law in denying their Motion for Leave to File a Third Amended Complaint. Accordingly, their Motion to Reconsider is DENIED. Signed by Magistrate Judge Michael R Merz on 3/18/2013. (kpf1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JOEL B. MONTGOMERY, et al.,
Plaintiffs,
:
Case No. 3:07-cv-470
-vs-
Magistrate Judge Michael R. Merz
:
MARY L. SANDERS, et al.,
Defendants.
DECISION AND ORDER DENYING PLAINTFFS’ MOTION TO
RECONSIDER GRANTING LEAVE TO AMEND
This case is before the Court on Plaintiffs’ Motion to Reconsider (Doc. No. 140) which
seeks reconsideration of the Court’s Decision and Order of December 7, 2011, to the extent that
it denied Plaintiff’s leave to file a third amended complaint adding Debra L. Kyle as a defendant
and asserting against her a claim for deprivation of a liberty interest under Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
The
Defendants oppose the Motion (Doc. No. 147) and Plaintiffs have filed a Reply Memorandum in
Support (Doc. No. 156).
Defendants do not dispute the Court’s authority to reconsider the decision, interlocutory
in nature, to deny a motion to amend. Prejudgment orders remain interlocutory and can be
reconsidered at any time.” Moore's Federal Practice ¶0.404 (1982). However, “[a]s a general
principle, motions for reconsideration are looked upon with disfavor unless the moving party
demonstrates: (1) a manifest error of law; (2) newly discovered evidence which was not available
previously to the parties; or (3) intervening authority.” Meekison v. Ohio Dept. Rehab. & Corr.,
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181 F.R.D. 571, 572 (S.D. Ohio 1998)(Marbley, J.), rev’d on other grounds, 67 Fed. Appx. 900
(6th Cir. 2003), quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied,
476 U.S. 1171 (1986). Plaintiffs do not cite any newly discovered evidence or intervening
authority, so they must implicitly be asserting a manifest error of law. Nor do they assert the
Court applied an erroneous procedural standard to their Motion. (See Decision and Order, Doc.
No. 132, PageID 1875, citing Foman v. Davis, 371 U.S. 178 (1962), and its progeny.)
Defendants objected to the proposed amendments on the grounds that
Montgomery does not have a liberty interest in maintaining a
security clearance or having an investigation adjudicated so that he
may have his clearance reinstated, that Plaintiffs’ proposed Bivens
action is precluded by the APA, that the nature of Plaintiffs’ claims
foreclose a Bivens remedy, that Ms. Kyle is entitled to qualified
immunity, and that the Court should deny the Motion for reasons
of judicial economy.
(Decision and Order, Doc. No. 132, PageID 1875, citing Defendants’ Memo in Opp., Doc. No.
118). Applying Foman and considering Defendants’ objections, the Court concluded that the
amendment would be futile because the Bivens claim was found to be a disguised attempt to have
this Court review the merits of the suspension of Montgomery’s security clearance and the
Administrative Procedures Act precludes a Bivens action in these circumstances. Id. at PageID
1876.
In their Motion to Reconsider, Plaintiffs plainly concede that judicial review of the merits
of revocation of Montgomery’s security clearance is preclude by Department of Navy v. Egan,
484 U.S. 518 (1988) (Motion, Doc. No. 140, PageID 1928). Despite that concession, Plaintiffs
assert “[b]oth the Supreme Court and numerous other courts have held that a District Court
possesses the authority to review a claim that an agency violated its own procedural regulations
in making a security clearance determination.” Id.
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The authority relied on by Plaintiff is
reviewed below seriatim.
In Webster v. Doe, 486 U.S. 592 (1988), the Supreme Court held that 5 U.S.C. § 706
precluded judicial review of the CIA’s termination of Doe, but that § 102(c) of the National
Security Act of 1947 (50 U.S.C. § 403(c)) did not preclude district court jurisdiction over a claim
that the discharge was unconstitutional. The case was not a Bivens action against CIA Director
Webster and does not discuss whether such an action might be available. Webster does not
provide authority for the claim Montgomery seeks to make against Kyle.
Service v. Dulles, 354 U.S. 363 (1957), involved termination of employment of a foreign
service officer. The Supreme Court reversed the termination because the Department of State
had not followed its own regulations. Service involved no Bivens action for the obvious reason
that it was decided fourteen years before Bivens was handed down.
In Romero v. Department of Defense, 527 F.3d 1324 (Fed. Cir. 2008), the plaintiff was
discharged for failing to maintain his security clearance. The court of appeals reversed a
decision of the Merit Systems Protection Board which had upheld the discharge on the grounds
that it could not review the merits of the underlying security clearance revocation, holding the
MSPB could review “the procedural validity of the security clearance revocation.” Again, no
Bivens claim was involved.
Cheney v. Department of Justice, 479 F.3d 1343 (Fed. Cir. 2007), is another successful
appeal by a terminated employee from an MSPB decision upholding his termination. No Bivens
claim was made.
In Duane v. Department of Defense, 275 F.3d 988 (10th Cir. 2002), the court of appeals
upheld dismissal of an employee’s complaint for wrongful revocation of his security clearance,
finding the department did not violate its own regulations when it revoked the clearance. No
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Bivens claim was involved.
In Stehney v. Perry, 101 F.3d 925 (3rd Cir. 1996), plaintiff sought mandamus to compel
restoration of her security clearance and reinstatement to her position. The court of appeals
affirmed dismissal for lack of standing, lack of subject matter jurisdiction, and failure to state a
claim upon which relief could be granted. Stehney was employed by the Institute for Defense
Analyses, a private entity contracting to perform work for the National Security Agency. NSA
required persons holding positions similar to her to be subject to periodic polygraph
examinations. Her clearance was revoked and her employment terminated when she refused to
do so. She made constitutional claims that NSA had deprived her of a constitutionally protected
interest without due process of law, that its polygraph requirement violated her Fourth
Amendment rights, and that the exemption of certain other mathematicians from the polygraph
requirement violated Equal Protection. Although there were no Bivens claims, the court upheld
dismissal of all the constitutional claims made.
King v. Alston, 75 F.3d 657 (Fed. Cir. 1996), is a reversal of an MSPB decision reversing
the Department of the Navy’s enforced leave decision regarding an employee whose access to
classified information was suspended. No Bivens claim was involved.
In Hill v. Department of the Air Force, 844 F.2d 1407 (10th Cir. 1988), a former
employee obtained an injunction from the district court requiring the reinstatement of his
security clearance. The court of appeals reversed, holding the district court had no jurisdiction to
compel reinstatement of the security clearance. The court also expressly held that Hill had no
“constitutional or property interest in his security clearance.” Id. at 1411. The court’s fuller
constitutional analysis is pertinent:
The Executive Branch has constitutional responsibility to classify
and control access to information bearing on national security. A
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security clearance is merely temporary permission by the
Executive for access to national secrets. It flows from a
discretionary exercise of judgment by the Executive as to the
suitability of the recipient for such access, consistent with the
interests of national security. The notion of an individual property
right in access to the nation's secrets -- by definition a limitation on
Executive discretion -- is utterly inconsistent with those principles.
Whatever expectation an individual might have in a clearance is
unilateral at best, and thus cannot be the basis for a constitutional
right. See Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed.
2d 548, 92 S. Ct. 2701 (1972).
Hill emphasizes the existence of procedural rules which have been
developed by the Department of Defense and the various military
agencies relating to the suspension and potential revocation of an
existing clearance. Dept. of Defense Regulation 5200.2R/Air Force
Regulation (AFR) 205-32 (Nov. 26, 1982). Those procedures are
not the type of "rules or understandings that secure certain benefits
and that support claims of entitlement to those benefits." Board of
Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct.
2701 (1972). See Cleveland Board of Education v. Loudermill, 470
U.S. 532, 538-541, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985); Paul
v. Davis, 424 U.S. 693, 709, 47 L. Ed. 2d 405, 96 S. Ct. 1155
(1976). The procedures are administrative devices which are
indeed intended to promote fairness and safeguard the rights of
individual employees, but are not intended thereby to diminish
Executive authority rooted in Executive responsibility. If the courts
attempt to attach constitutional rights to security clearances
because rules have been promulgated to better administer
employee relations, it will provide a disincentive for government
agencies "to continue improving the mechanisms by which an
aggrieved employee can protect his rights." Bush v. Lucas, 647
F.2d 573, 577 (5th Cir. Unit B June 1981) aff'd, 462 U.S. 367, 103
S. Ct. 2404, 76 L. Ed. 2d 648 (1983). See also Broadway v. Block,
694 F.2d 979 (5th Cir. 1982).
The foregoing discussion applies as well to the question of a
liberty interest where Hill is concerned, with an additional
explanation. The district court found that suspending Hill's
clearance, creating a file showing the suspension, and
disseminating such information, impugned Hill's standing and
reputation and limited his ability to secure employment. Egan
compels a different view: "A clearance does not equate with
passing judgment upon an individual's character." Egan, 484 U.S.
at 528. The same is true of a suspension. Furthermore, potential
dissemination of the underlying reasons for the suspension, thus
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possibly damaging Hill's employability, was overshadowed in any
event by the fact of and reasons for Hill's discharge. Full due
process and a name-clearing opportunity were provided Hill in that
regard. The reasons for both suspension and discharge were the
same as was, presumably, their impact, if any, on Hill's ability to
secure employment based on his character and reputation. The Air
Force could not, and should not, be prohibited from
communicating to prospective employers who do work for the
government the facts underlying Hill's discharge. Finally, the
suspension itself neither deprived Hill of his employment, since he
remained employed until removed for misconduct, nor
"foreclosed" other employment opportunities. See Board of
Regents v. Roth, 408 U.S. 564, 573-74, 92 S. Ct. 2701, 33 L. Ed.
2d 548 (1971). Upon seeking employment in the private sector
which requires a security clearance Hill is free to apply to the
Defense Industrial Security Clearance Office for a clearance, and
to receive a full hearing if denial of a clearance is proposed. In
short, there was nothing in the suspension itself which implicated a
liberty interest.
Id. at 1411-1412. The quoted language comes just before that relied on by Plaintiffs at PageID
1929: “Constitutional questions aside . . .” But it is constitutional questions which Plaintiffs
seek to litigate in their proposed third amended complaint.
In Mangino v. Department of the Army, 818 F. Supp. 1432 (D. Kan. 1993), a former
sergeant in the United States Army sued the Army and the Defense Investigative Service for
revocation of his security clearance. The case was dismissed upon a finding that there was no
constitutional right attached to a security clearance. The court followed the Tenth Circuit in Hill,
supra, in concluding that the procedural rights attached to a security clearance did not give rise
to constitutional rights related to the clearance. No Bivens claim was involved.
In sum, none of the cases cited by Plaintiffs recognize a right to a Bivens action against a
government actor for her behavior in a security clearance revocation proceeding. The rights to
various procedures in processing a security clearance revocation are regulatory, not
constitutional; deprivation of those rights does not deprive a person of anything to which he or
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she is entitled by the United States Constitution.
A point raised by Defendants but not discussed in the original Decision and Order is
Kyle’s qualified immunity.
Briefly stated, government officials performing discretionary
functions are afforded a qualified immunity under 42 U.S.C. §1983 as long as their conduct
"does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Christophel v.
Kukulinsky, 61 F.3d 479, 484 (6th Cir. 1995); Adams v. Metiva, 31 F.3d 375, 386 (6th Cir.,
1994); Flatford v. City of Monroe, 17 F.3d 162, 166 (6th Cir. 1994).
Qualified immunity analysis involves three inquiries: (i) "whether, based upon the
applicable law, the facts viewed in the light most favorable to the plaintiffs show that a
constitutional violation has occurred;" (ii) "whether the violation involved a clearly established
constitutional right of which a reasonable person would have known;" and (iii) "whether the
plaintiff has offered sufficient evidence to indicate that what the official allegedly did was
objectively unreasonable in light of the clearly established constitutional rights." Radvansky v.
City of Olmsted Falls, 395 F.3d 291, 302 (6th Cir. 2005), quoting Feathers v. Aey, 319 F.3d 843,
848 (6th Cir. 2003). Qualified immunity must be granted if the plaintiff cannot establish each of
these elements. Williams ex rel. Allen v. Cambridge Bd. of Educ., 370 F.3d 630, 636 (6th Cir.
2004).
In deciding qualified immunity questions, district courts were for some years required to
apply a two-part sequential analysis, first determining whether the alleged facts, taken in the light
most favorable to the party asserting the injury, show that the officer’s conduct violated a
constitutional right, and then deciding if the right was clearly established at the time the officer
acted. Brosseau v. Haugen, 543 U.S. 194, 199 (2004), Estate of Carter v. City of Detroit, 408
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F.3d 305, 310-11 (6th Cir. 2005), and Klein v . Long, 275 F.3d 544, 550 (6th Cir. 2001), both
citing Saucier v. Katz, 533 U.S. 194, 201 (2001). However, the two-step process is no longer
mandated in light of experience with its use; trial judges are now permitted to use their sound
discretion in deciding which of the two prongs of the qualified immunity analysis should be
addressed first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Therefore a district court is free
to consider these two qualified immunity questions in whatever order is appropriate. Moldowan
v. City of Warren, 570 F.3d 698, 720 (6th Cir. 2009).
While Ms. Kyle has not technically pled the affirmative defense of qualified immunity
because she has not yet been added as a party and the third amended complaint has not been
filed, it is appropriate for the Court to consider the qualified immunity defense in deciding
whether the amendment would be futile, particularly since objection has been made on that basis
by the United States Attorney representing existing Defendants.
The Court concludes the amendment would be futile because Kyle would be entitled to
qualified immunity. Plaintiff Montgomery has not shown that any acts of Ms. Kyle violated any
of his constitutional rights, much less that any such rights were clearly established with the
requisite degree of particularity at the time she acted.
The foregoing analysis does not address Plaintiffs’ claims that the process by which his
security clearance was revoked is subject to judicial review. That is separate from the question
of whether Ms. Kyle’s actions give rise to a Bivens claim for deprivation of constitutional rights,
the claim sought to be added by the proposed third amended complaint.
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Plaintiffs have failed to show that the Court committed a manifest error of law in denying
their Motion for Leave to File a Third Amended Complaint. Accordingly, their Motion to
Reconsider is DENIED.
March 18, 2013.
s/ Michael R. Merz
United States Magistrate Judge
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