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DOE v. SCHACHTER

October 22, 1992

JOHN DOE, Plaintiff,
v.
LEON J. SCHACHTER, DIRECTOR OF DIRECTORATE FOR INDUSTRIAL SECURITY CLEARANCE REVIEW, DEFENSE LEGAL SERVICES AGENCY, FOR THE U.S. DEPARTMENT OF DEFENSE; RICHARD CHENEY, SECRETARY OF DEFENSE, U.S. DEPARTMENT OF DEFENSE; and DOES 1 to 10, inclusive, Defendants.



The opinion of the court was delivered by: MARILYN HALL PATEL

 Plaintiff, an employee of a defense contractor, filed this action against the Department of Defense ("DOD") seeking declaratory and injunctive relief against revocation of his security clearance. Defendants move to dismiss for lack of subject matter jurisdiction, pursuant to Federal Rules of Civil Procedure 12(b)(1), or in the alternative, for failure to state a claim upon which relief can be granted, pursuant to Federal Rules of Civil Procedure 12(b)(6). After carefully considering the parties' submissions and arguments, the court enters the following order and opinion.

 BACKGROUND

 Plaintiff, a research specialist employed by the same defense contractor for 25 years, has held a "secret" security clearance since July 17, 1957. Prior to November 27, 1991, plaintiff's security clearance had been routinely renewed.

 Plaintiff has lived in the same apartment complex since 1960. On the morning of August 23, 1990 a witness reported to the police that she had seen plaintiff in her carport with no pants on. Later that day, when police officers questioned plaintiff about the allegations, he admitted that he had appeared in his apartment complex's carport sans pants.

 Subsequently, plaintiff appeared in the County's Municipal Court where he pleaded not guilty to one misdemeanor count of indecent exposure. The court referred the matter to the County Mental Health Division. The Mental Health Division evaluated plaintiff and concluded that "there is no evidence of psychiatric disorder," and that plaintiff is not "a danger to the community." Based on this evaluation and a subsequent County Probation Department report which confirmed that plaintiff "is not criminally-oriented, is highly remorseful and cooperative," and would not "recidivate during the course of therapy," the court admitted plaintiff to eighteen months of Mental Health Diversion. *fn1"

 Plaintiff responded to the DISCR's "Statement of Reasons" by admitting the factual allegations set forth in support of the aforementioned criterion, but maintained that these facts neither warranted a finding of the criterion nor a finding that his security clearance should be revoked. In November 1991 the matter was heard in a one day hearing conducted by a DISCR Administrative Judge who found against plaintiff on all criterion and concluded: "it is not clearly consistent with the national interest to grant or continue a security clearance for [plaintiff]." Motion to Dismiss, Ex. A at 6 (Determination of Administrative Law Judge). Plaintiff filed a timely appeal with the Department of Defense Appeal Board which affirmed the decision to revoke plaintiff's security clearance.

 Plaintiff brings the present action seeking declaratory and injunctive relief from the decision to revoke his security clearance. Specifically, plaintiff sets forth five separate claims, alleging that the revocation of his security clearance: (1) violates his right to substantive due process of law, (2) violates his constitutional right against arbitrary denial of employment, (3) violates his constitutional right against self-incrimination, (4) violates his constitutional right to privacy, and (5) was an abuse of discretion in violation of the DOD's own regulations. Defendants filed a motion to dismiss for lack of subject matter jurisdiction, or in the alternative, for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(1) & 12(b)(6).

 LEGAL STANDARD

 In his complaint, plaintiff asserts that jurisdiction in this court is proper under the Administrative Procedures Act, 5 U.S.C. § 551 et seq.; under the court's general federal question jurisdiction, 28 U.S.C. § 1331; under 28 U.S.C. §§ 1346 & 1361; and under the First and Fifth Amendments of the Constitution. Defendants argue that plaintiff's claim must be dismissed because federal courts lack jurisdiction to review an executive decision to revoke a security clearance. As for plaintiff's first four claims, defendants maintain that none states a colorable constitutional claim. Accordingly, defendants urge this court to dismiss plaintiff's complaint for lack of subject matter jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1), or in the alternative, for failure to state a claim upon which relief can be granted pursuant to Federal Rules of Civil Procedure 12(b)(6).

 A motion to dismiss for lack of subject matter jurisdiction may also be a "speaking motion" in which the defendant challenges the veracity of the jurisdictional facts underlying the plaintiff's complaint. In such a case a different standard obtains:

 Faced with a factual attack on subject matter jurisdiction, "the trial court may proceed as it never could under Rule 12(b)(6). . . . No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist."

 Thornhill Pub. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979).

 A court deciding a motion to dismiss for lack of subject matter jurisdiction, therefore, must distinguish between a facial attack, under which the nonmoving party is entitled to the same protections it would receive in defending against a motion to dismiss for failure to state a claim, and a factual attack, under which the court considers matters outside the pleadings to resolve disputed jurisdictional facts. See Osborn v. United States, 918 F.2d 724, 728-730 (8th Cir. 1990. In other words, where the jurisdictional issue is separable from the merits of the case, the court may hear evidence regarding jurisdiction, resolve existing factual disputes, and rule on that issue. Thornhill, 594 F.2d at 733. However,

 where the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits, the jurisdictional determination should await a determination of the relevant facts on either a motion going to the merits or at trial.

 Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983) (citing Thornhill, 594 F.2d at 733-35); see also Trentacosta v. Frontier Pac. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987) (where the jurisdictional issue and the merits are intertwined, the court must apply the summary judgment standard in ...


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