briefs, and testimony presented." Id. at 387 (quoting section 393.1 of the relevant regulation). In sustaining plaintiff's contention and affirming the power of federal courts to review an agency's actions to ensure that it has followed its own regulations, the Court explained:
The necessary effect of section 393.1 was to subject the exercise of [the agency's] authority to . . . the procedural requirements that such cases must be decided 'on all the evidence' and 'after consideration of the complete file, arguments, briefs, and testimony presented.' . . . The Secretary . . . could not, so long as the Regulations remained unchanged, proceed without regard to them.
Id. at 388. As to the issue of whether plaintiff has stated a legally sufficient claim which this court has the jurisdiction to consider, the court finds that Dulles is controlling.
Finally, defendants argue that the Administrative Judge did in fact consider mitigating factors but determined that none were relevant to plaintiff's case. To buttress this claim, defendants have appended to their Motion to Dismiss, the Determination of the Administrative Judge and the Appeal Board determination to. See Motion to Dismiss, Exs. A & D. By arguing that the record of the underlying adjudication contradicts plaintiff's claim that the DISCR did not consider mitigating factors, defendants invite this court to consider evidence outside the pleadings and in so doing, compel this court to convert their Motion to Dismiss into a Motion for Summary Judgment.
Rule 12(b) of the Federal Rules of Civil Procedure specifically provides:
If, on a motion . . . to dismiss for failure. .. to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
The standards for summary judgment are embodied in the trilogy of cases decided by the Supreme Court in 1986. Under Federal Rule of Civil Procedure 56, summary judgment shall be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.") Moreover, the nonmoving party may not rely on the allegations contained in the complaint, but must present significant probative evidence showing there is a genuine issue for trial. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
Having decided that this court has jurisdiction to review plaintiff's complaint, and having converted defendants' Motion to Dismiss into a Motion for Summary Judgment, plaintiff's fifth claim can now be properly addressed. The allegation that the DISCR failed to follow its own regulations by not considering mitigating factors, though a legally cognizable claim under Rules 12(b)(6) and 12(b)(1), is not supported by the administrative record which defendants have submitted in support of their motion. The burden is therefore on the plaintiff to "set forth specific facts showing there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Plaintiff has failed to do so.
A close examination of the Administrative Judge's written findings demonstrates that after considering the relevant mitigating factors, he determined that none were applicable to plaintiff, either with respect to the charge of sexual misconduct or criminal misconduct. See Motion to Dismiss, Ex. A at 3. With respect to whether plaintiff reformed himself, the Administrative Judge discussed and specifically concluded that the plaintiff had failed to prove that he had reformed. On appeal, plaintiff argued that the Administrative Judge failed to consider these same mitigating factors, and the Appeal Board rejected the argument. See Motion to Dismiss, Ex. D at 3-5.
Therefore, the DISCR made a finding based upon the evidence that none of the mitigating factors relating to criminal conductor sexual misconduct set forth in 32 C.F.R. Part 154, Appendix H, applied to plaintiff's case. Plaintiff argues that under the Administrative Procedures Act and the relevant decisional law, this court has jurisdiction to review an allegation that the DOD has not followed its own regulations in revoking a security clearance. As explained at some length above, plaintiff is correct. However, plaintiff has failed to bear his burden on the converted Motion for Summary Judgment. In his Opposition, plaintiff merely re-asserts the bald allegation contained in his complaint, namely, that the DISCR failed to consider the mitigating factors required under 32 C.F.R. Part 154, Appendix H. In light of the record of the underlying adjudication submitted by defendants, plaintiff must do more than this to survive a Motion for Summary Judgment. For this reason, and only for this reason, defendants' motion is granted.
Having converted defendants' Motion to Dismiss into a Motion for Summary Judgment, the court rules that there is no genuine issue of material fact in dispute. Accordingly, defendants' motion is GRANTED.
IT IS SO ORDERED.
Dated: OCT 22 1992
MARILYN HALL PATEL
United States District Judge