THOMAS W. HILL, PETITIONER V. DEPARTMENT OF THE AIR FORCE, PAUL S.
BRITT, AND PAUL J. VALLERIE

   No. 87-2029

   In the Supreme Court of the United States

   October Term, 1988

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit

   Memorandum For The Respondents In Opposition

   Petitioner contends that the court of appeals erred in dissolving
an injunction requiring the Air Force to reinstate his top secret
security clearance and to notify any inquiring employer that he is
entitled to access to classified materials.

   1. Petitioner was a civilian employee of the Air Force from January
1966 to July 1985.  Immediately prior to his termination, he had been
assigned to Kirtland Air Force Base, New Mexico, where he worked in
the Directorate of Aerospace Studies in space weaponry research
(sometimes called "star wars" research).  Pet. App. 2.  In May 1985,
the Air Force served him with a notice of proposed removal from the
federal service based on his alleged misuse of government long
distance telephone service and his unauthorized removal of records
from the desk of a prior supervisor (id. at 3, 40).  For the same
reasons, the Air Force determined that petitioner was untrustworthy
and suspended his top secret security clearance (id. at 7, 40).  /1/
Petitioner was removed from his job in July 1985 (id. at 2).

   Petitioner appealed his removal to the Merit Systems Protection
Board (MSPB).  He did not dispute that he had misused government
telephone service or improperly removed records from his supervisor's
desk, but instead argued that dismissal was not warranted for those
offenses.  The MSPB "fully adjudicated" his discharge claim,
concluding that petitioner's "'misconduct related to his integrity and
trustworthiness'" (Pet. App. 51 (quoting MSPB Mem. Op. at 24)).  The
MSPB's decision upholding the removal was in turn affirmed by the
Federal Circuit (Hill v. Dep't of the Air Force, No. 86-1018 (Feb. 10,
1987)).

   After he was removed, petitioner sought employment in the private
sector that required him to have access to classified information.  He
brought this suit in the United States District Court for the District
of New Mexico challenging the suspension of his security clearance,
and the court entered a preliminary injunction requiring the Air Force
to restore the clearance.  The court also ordered the Air Force to
remove the "Z Code" modifier, a notation indicating that it might
possess information pertinent to petitioner's suitability for a
security clearance, from his records, and prohibited the Air Force
from providing "derogatory information" about petitioner to employers.
 Pet. App. 16.

   The court of appeals sua sponte remanded the case "for the limited
purpose of allowing the district court to explain the basis for its
jurisdiction" (Pet. App. 21).  The district court thereafter issued an
opinion (id. at 21-30) finding that it had jurisdiction under 28
U.S.C. 1331, the federal question provision, because petitioner had
alleged that the suspension of his security clearance "resulted in
deprivation of his fifth amendment rights to due process and equal
protection of the laws" (Pet. App. 24-25) (footnote omitted)).  The
district court went on to conclude, with respect to petitioner's due
process claim, that he had a property interest in his security
clearance and a colorable claim that the suspension of his clearance
infringed on a liberty interest (id. at 28).  The court also concluded
that its preliminary findings indicated that the Air Force may have
treated petitioner arbitrarily, "implicat(ing) a violation of equal
protection" (id. at 29).

   After this Court issued its decision in Department of the Navy v.
Egan, No. 86-1552 (Feb. 23, 1988), holding that the MSPB may not
review a decision to deny or revoke a security clearance, the court of
appeals remanded with instructions that the district court dissolve
the preliminary injunction (Pet. App. 31-35).

   2. As the court of appeals concluded, Egan disposes of petitioner's
claims.  The Court in Egan determined that the "predictive judgment"
as to who should have security clearances "must be made by those with
the necessary expertise in protecting classified information" and that
"it is not reasonably possible for an outside nonexpert body to review
the substance of such a judgment" (slip op. 10).  Accordingly, under
Egan, as the court of appeals concluded, the district court erred in
reviewing "the merits and motives of Air Force decisions relating to
(petitioner's) clearance" (Pet. App. A42).  While petitioner's claim
differs from the claim in Egan in that he alleges constitutional
violations, the court of appeals correctly noted that if the holding
in Egan "can be bypassed simply by invoking alleged constitutional
rights, it makes the authority of Egan hardly worth the effort" (Pet.
App. 44).  /2/

   In addition, since the Court stressed in Egan that "no one has a
'right' to a security clearance" (slip op. 9), the court of appeals
correctly concluded that there was no basis for petitioner's claim
that he had a property interest in his security clearance (Pet. App.
45).  And since a "clearance does not equate with passing judgment
upon an individual's character" (Egan, slip op. 9-10), the court of
appeals correctly concluded that the Air Force had not infringed on
any liberty interest by suspending petitioner's security clearance.
In any event, as the court noted, the remedy for infringement of a
liberty interest is a name-clearing hearing, and petitioner had
already had an opportunity to clear his name in the MSPB proceeding in
which he challenged his removal.  The allegations that petitioner had
misused government telephone service and removed records from a
supervisor's desk served as the bases for both his removal and the
suspension of his security clearance, and petitioner could have
challenged those allegations in the MSPB proceeding, but did not.
Furthermore, as the court noted (Pet. App. 48-49), petitioner, who has
obtained a top secret security clearance and a job with a defense
contractor, will have another opportunity to clear his name if he
loses his clearance after the injunction is dissolved, since he may
challenge the revocation of a clearance under 32 C.F.R. 155.  /3/

   The court of appeals also correctly concluded that whether a
procedural violation was committed in the course of the suspension of
petitioner's security clearance by the Air Force is a matter of no
continuing importance.  The MSPB concluded that petitioner was
properly removed from the Air Force on the basis that he was
untrustworthy, and its decision was upheld on appeal and is
"conclusive and binding" (Pet. App. 51-52).  Given that it is too late
to restore petitioner to his position with the Air Force, the question
whether the Air Force followed proper procedures in revoking the
security clearance he held in connection with that position has no
retrospective significance.  As the court noted (id. at 53), if the
security clearance petitioner currently holds is revoked after the
injunction is dissolved, he may challenge that decision under 32
C.F.R. 155.  /4/

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   AUGUST 1988

   /1/ The classification "Top Secret" applies "only to information,
the unauthorized disclosure of which reasonably could be expected to
cause exceptionally grave damage to the national security." Exec.
Order No. 12,365, Section 1.1(a)(1), 3 C.F.R. 166, 167 (1983 Comp.);
see also DOD Directive 5200.1-R, Section 1-501 (1979).

   /2/ The decision below is not inconsistent with the decision in
Webster v. Doe, No. 86-1294 (June 15, 1988), where the Court held that
a constitutional challenge to the dismissal of an agent of the Central
Intelligence Agency was reviewable.  In that case, the petitioner
sought judicial review of his dismissal, not a decision to revoke his
security clearance.  Moreover, in that case no other avenue for
obtaining judicial review was available, whereas the petitioner here
was able to challenge his dismissal in the MSPB and the Federal
Circuit.  Petitioner's challenge to the suspension of his security
clearance is therefore governed by Egan, not by Webster v. Doe.

   /3/ Section 155 provides that a "security clearance shall not be
revoked unless the applicant has been provided with a written
Statement of Reasons" (32 C.F.R. 155.7(c)).  The applicant may respond
and obtain a hearing at which he (or his counsel) may present evidence
and cross-examine adverse witnesses (32 C.F.R. 155.7(g)).  The hearing
examiner must make written findings "for or against the applicant with
respect to each allegation in the Statement of Reasons" (32 C.F.R.
155.7(q)).  The examiner's decision is subject to review by an Appeal
Board, an expert panel within the Department of Defense (32 C.F.R.
155.3), and the Board must also issue a written opinion (32 C.F.R.
155.7(u)).

   /4/ The other arguments advanced by the pro se petitioner, such as
his contention (Pet. 33-41) that the Privacy Act, 5 U.S.C. (& Supp.
IV) 552a, requires the Air Force to reinstate his security clearance
and his contention (id. at 41-44) that his supervisor caused his
security clearance to be suspended because he disliked petitioner,
which were not addressed by the court of appeals, plainly do not
warrant review by this Court.