AR 604-5 PDF

All motions have been responded to by the opposing party. Plaintiff's Motions for Summary Judgment Docs. Plaintiff's Motions for Oral Argument Docs. Plaintiff's Motion to Strike Doc. This case concerns Plaintiff Michael Mangino's disputes with the United States Army regarding a revocation of his security clearance.

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All motions have been responded to by the opposing party. Plaintiff's Motions for Summary Judgment Docs. Plaintiff's Motions for Oral Argument Docs. Plaintiff's Motion to Strike Doc. This case concerns Plaintiff Michael Mangino's disputes with the United States Army regarding a revocation of his security clearance. Plaintiff brought this action pro se on August 22, , seeking damages, declaratory relief, reenlistment in the Army, and other relief.

Specifically, plaintiff asserts claims under the Privacy Act, 5 U. The pertinent uncontroverted facts established by the parties in accordance with D. Rule c are as follows: [1]. In October, , 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, , plaintiff departed the United States and was assigned to U. Plaintiff responded to the notice of intent to revoke security clearance on August 14, On September 21, , the Army notified plaintiff that it had reviewed his August 14, , response, but had nevertheless decided to revoke his security clearance.

On December 21, , plaintiff wrote another letter regarding his security clearance. On March 6, , the Army responded to plaintiff's December 21, , 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, , 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, The Army indicates the reason for his discharge as "expiration of term of service-reduction in authorized strength. He was honorably discharged from the Army Reserves on March 20, The advisory opinion was provided on August 21, On November 14, , 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, , plaintiff made a request under the Freedom of Information Act to obtain his military records. On May 21, , plaintiff made a request for correction of records under the Privacy Act. On June 7, , the Army informed plaintiff that it had determined that information provided by plaintiff in his May 21, 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, , plaintiff brought this lawsuit against the Department of the Army and the Defense Investigative Service.

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. Department of the Air Force, F. 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. 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.

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. 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, F. 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. 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. Brown, F. 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, F. 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 government also fails as a matter of law. Plaintiff has argued that his clearance was revoked due to false information, that he was stigmatized by the revocation, and that adverse action was taken against him by the Army based upon the revocation in that he was transferred to another job specialty and was not promoted. In order to establish a deprivation of a liberty or property interest in one's reputation, plaintiff must first establish that information was published which was false and stigmatizing.

Wulf v. City of Wichita, F. Plaintiff's claim must fail due to clearly established law that the denial of a security clearance constitutes no judgment upon a person's character. Beattie v. United States, F. Neither the parties nor this court have found any case where a claim for defamation or a constitutional due process claim based upon defamation arose from a denial of a security clearance.

The denial of a security clearance could be based upon a wide variety of reasons having nothing to do with a person's character. Although plaintiff argues that the revocation of a security clearance is somehow more stigmatizing than an initial denial of a security clearance, the court sees no practical difference. Plaintiff's claims for constitutional violations are dismissed for failure to state a claim upon which relief can be granted.

The court also notes that in plaintiff's Amended Complaint, Fifth Cause of Action, plaintiff has attempted to allege some constitutional cause of action for monetary damages against individual defendants. Because no individual defendants are named, plaintiff's Fifth Cause of Action is dismissed for failure to state a claim upon which relief can be granted.

In addition to the above claims, plaintiff seeks review in this court of the Army's alleged failure to follow its own regulations in revoking his security clearance, specifically, certain regulations found in the Code of Federal Regulations and certain Army regulations ARs. The defendants assert that this court it without subject matter jurisdiction to hear this claim. The court disagrees. In Hill, the Tenth Circuit stated: "Constitutional questions aside The court went on to state that had the district court in that case found that the Air Force violated any particular procedure, the remedy would have been remand for the purpose of compliance with the applicable procedures.

Although the brief statement in Hill is the Tenth Circuit's only statement on the reviewability of military security clearance procedural violations, the Fifth and the Ninth Circuits have adopted a two-tiered test to determine the reviewability of internal military decisions.

See Sebra v. Neville, F. Seaman, F. Under this test, an decision is not reviewable unless the plaintiff alleges: a a violation of the Constitution, a federal statute, or a military regulation, and b exhaustion of available intraservice remedies.

Sebra, F. Further, even if the plaintiff meets these prerequisites, the court must weigh four additional factors to determine whether review is appropriate: 1 the nature and strength of plaintiff's claim, 2 the potential injury to plaintiff if review is denied, 3 the extent to which review would potentially interfere with military functions, and 4 the extent to which military discretion or expertise is involved.

Assuming that the Tenth Circuit would apply the foregoing test, plaintiff has met the first prong of the test in the present case by alleging that the military failed to follow its own regulations and that he has exhausted all available administrative remedies. Considering the four factors in the second prong of the test, the court sees no reason why plaintiff's claim for failure to follow regulations should not be reviewed by this court.

The court is mindful, however, of the often-stated maxim that "judges are not given the task of running the Army. On the other hand, courts have often reiterated the proposition that "[g]overnment must obey its own laws.

The granting, denial, or revocation of a security clearance is "sensitive" and "inherently discretionary. Security decisions are uncertain, and rest upon the ability to predict an individual's future behavior. The Dorfmont court described the standards for granting a security clearance as follows:. With the especially subjective and discretionary nature of security clearances in mind, the court in Schachter stated that review should not be undertaken if a review of the merits of the underlying decision would be involved.

This court concludes that it can review the defendants' compliance with applicable military regulations without any improper review of the merits of the Army's decision to revoke plaintiff's security clearance. The court therefore will not dismiss this claim for lack of subject matter jurisdiction. The court's further review of this claim is included in this memorandum and order at Section III.

Defendants have moved to dismiss plaintiff's claims brought under the Privacy Act, 5 U. Section a g 5 provides that an action to enforce any liability created under Section a must be brought within two years from the date on which the cause of action arose.

The statute of limitations is jurisdictional, and it is plaintiff's burden to establish that the time limit has been met. See Bowyer v. Under the Privacy Act, a cause of action arises when 1 an error is made in maintaining plaintiff's records, 2 plaintiff was wronged by such error, and 3 plaintiff either knew or had reason to know of the error. Bergman v. Defendants assert that the cause of action in the present case arose in May of , when plaintiff became aware of the content of interviews conducted by the defendant Defense Investigative Service DIS in conjunction with plaintiff's security clearance investigation.

Plaintiff contends, however, that the cause of action did not accrue until June, , when plaintiff received his military records and discovered that sources used as the basis for revocation of his security clearance had not claimed confidentiality, and that there were several other alleged errors in the security clearance investigation.

Further, plaintiff claims that the statute of limitations was tolled under 5 U. The court concludes in the present case that the statute of limitations began to run no later than December 21, In letters dated May 18, , and December 21, , plaintiff responded to the Army's intended revocation of his security clearance.

The contents of these letters clearly indicate that plaintiff had knowledge of the records which were being used as the basis for revoking his security clearance. Although plaintiff may not have known for certain the identity of the sources developed in the security clearance investigation, he clearly had sufficient knowledge to put him on notice that an error or errors may have existed in his military records.

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