* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 17 1999 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ARNOLD L. TALBOTT, Plaintiff-Appellant,

v. SHEILA WIDNALL, Secretary, Department of the United States Air Force, Agency, Defendant-Appellee. No. 98-1361 (D.C. No. 97-M-139) (Colorado)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BALDOCKand HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he cause is therefore ordered submitted without oral argument.-2-

Mr. Arnold L. Talbott, plaintiff, brought a Title V II action against Dr. Sheila Widnall, Secretary, Department of the United States Air Force, pursuant to 42 U.S.C. §§ 2000e et seq. , regarding the revocation of Mr. Talbott’s security clearance and subsequent termination of employment. The district court dismissed the claim for lack of subject matter juri sdiction. We affirm. This case has a tortured and confusing past which w e review only in relevant part. Mr. Talbott was a civilian employee of the United States Air Force where he worked as an audio visual production speci alist. In 1993, Mr. Talbott filed discrimination complaints with the EEOC. In April 1994, the Air Force suspended his security clearance which eventually l ed to his employment termination. As a result, Mr. Talbot modified his EEOC complaint to further allege his suspension was the result of the Air For ce’s retaliation against him for filing the earlier EEOC discrimination claims. The two parties negotiated a settlement under which Mr. Talbott’s security clear ance would be reinstated. The Air Force allegedly breached the settlement agreeme nt when it refused to reinstate the clearance. On June 24, 1996, an EEOC administ rative judge found in favor of Mr. Talbott on his claims of reprisal. The find ings were adopted by the Appellate Review Division of the Air Force on Septe mber 9, 1996. Mr. Talbott brought suit in federal district court under Title VII seeking to either have his security clearance reinstated or to receive damages for the-3-

suspension of his security clearance. The court di smissed the complaint under Fed.R.Civ.P. 12(b)(1) for lack of subject matter ju risdiction after concluding that Mr. Talbott’s claims required court review of the r evocation of his security clearance, which is well beyond the jurisdiction of a federal district court. Mr. Talbott appeals pro se. We review de novo a dismissal for lack of subject m atter jurisdiction. See Bryan v. Office of Personnel Management , 165 F.3d 1315, 1318 (10th Cir. 1999). It is well established that a district court has no jurisdiction to review the merits of a decision to revoke or deny a security clearance. See Hill v. Department of Air Force , 844 F.2d 1407, 1411 (10th Cir. 1998). In Hillthe plaintiff challenged the revocation of his security clearance by the Air For ce. Applying Department of the Navy v. Egan , 484 U.S. 518 (1988), we held that courts have no statutory authority to review “the merits and motives of Air Force deci sions relating to Hill’s clearance, and the nexus between those decisions an d national security interests.” Hill , 844 F.2d at 1411. Furthermore, we determined that since “no one has a ‘right’ to a security clearance,” id. at 1409 (quoting Egan , 484 U.S. at 528), there is no liberty or property interest to protect, id. at 411. Accordingly, no Fifth Amendment due process right is implicated. See id. In the instant case, Mr. Talbott asserts a number o f issues. We only address those presented to the district court. See City of Stilwell v. Ozarks Rural Elect.-4-

Coop. , 166 F.3d 1064, 1073 (10th Cir. 1999) (declining t o consider an issue not raised below). The four issues raised below were d iscrimination and retaliation in violation of Title VII, a constitutional due proces s violation “in regard to the suspension and revocation of his security clearance , and loss of his job,” rec. vol. I, doc. 59, at 14, and a breach of the negotiated s ettlement agreement for failure to reinstate his security clearance. Mr. Talbott argu es that we can review these claims because they are separable from the merits o f the revocation of the security clearance. We address the jurisdictional issue foreach claim in turn. Essentially, Mr. Talbott contends that the motives behind the revocation of the security clearance were discriminatory and reta liatory. As we stated in Hill , the motives for the denial of a security clearance are not reviewable by a court. See Hill , 844 F.2d at 1411. We thus have no jurisdiction o ver Mr. Talbott’s claims of discrimination and retaliation. Hillalso directly controls Mr. Talbott’s due process c laim. Because we expressly stated in Hillthere is no “right” to a security clearance and th erefore no entitlement to due process, we also cannot review t his issue. Finally, the breach of the negotiated settlement tu rns entirely on the decision of the Air Force not to reinstate the security clea rance. This claim is inextricable from a review of the merits of granting a security clearance, which again is not within the subject matter jurisdiction of the court s.-5-

There is one remaining issue which we summarily add ress. Mr. Talbott argues that the magistrate erred in failing to cons ider his Motion for Default which he filed after defendants did not respond to severa l requests for admissions submitted to them in May 1997. A review of the re cord shows that Mr. Talbott failed to object to the magistrate’s report on this basis. See rec., vol. I, doc. 79. He therefore waived his right to raise the issue onappeal. United States v. One Parcel of Real Property , 73 F.3d 1057, 1059 (10th Cir. 1996). We AFFIRM the judgment of the district court. ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge