United States District Court, S.D. California
WILLIAM Q. HAYES, District Judge.
The matter before the Court is the Amended Ex Parte for Temporary Restraining Order and Preliminary Injunction filed by Plaintiff Michael Doughty. (ECF No. 8).
On September 17, 2014, Plaintiff commenced this action by filing the Complaint. (ECF No. 1). On September 18, 2014, Plaintiff filed a motion for a preliminary injunction and temporary restraining order. (ECF No. 3). On September 19, 2014, the Court denied the motion without prejudice "to Plaintiff filing a proof of service of the Complaint and Motion or providing grounds as to why notice to Defendant should not be required." (ECF No. 4). On September 25, 2014, Plaintiff filed a proof of service of the Complaint and summons. (ECF No. 7). On October 1, 2014, Plaintiff filed the Amended Ex Parte for Temporary Restraining Order and Preliminary Injunction. (ECF No. 8). On October 3, 2014, Defendant Department of the Navy ("the Navy") filed an opposition. (ECF No. 10). On October 6, 2014, the Court held a hearing on the motion.
II. Allegations of the Complaint
Plaintiff is a Lieutenant Commander in the United States Naval Reserve, "currently mobilized on active duty orders." (ECF No. 1 at 2, 4). Plaintiff is currently involved in litigation with his former employer. As part of Plaintiff's background check, the Navy contacted Plaintiff's former employer. Plaintiff's former employer made "serious, but baseless, allegations" to the Navy, including a "completely fabricated narrative" and "questioning Plaintiff's fitness to hold a security clearance." Id. at 2, 4. The Navy revoked Plaintiff's security clearance "without allowing [Plaintiff] an opportunity to respond despite the [Navy's] stated policy that he would have up to 60 days to rebut the accusations." Id. at 2.
On September 8, 2014, the Navy sent Plaintiff a Letter of Intent titled "Intent to Revoke Eligibility for Security Clearance and Access to Sensitive Compartmented Information (SCI)." Id. at 4. On September 9, 2014, Plaintiff received a "First Endorsement" of the first letter. Id. Both letters indicate that Plaintiff has fifteen days from September 8, 2014 to respond to the Letter of Intent, and that Plaintiff may request a forty-five day extension. Plaintiff requested and received a forty-five day extension. On September 15, 2014, just seven days later, Plaintiff's security clearance was revoked, and the demobilization and discharge process began.
The Complaint asserts a violation of the due process clause of the Fifth Amendment, brought pursuant to 42 U.S.C. section 1983, and seeks declaratory relief, preliminary and permanent injunctive relief, and costs of suit.
III. Motion for Temporary Restraining Order and Preliminary Injunction
Plaintiff asserts that the Navy has given him until November 17, 2014 to respond to the Letter of Intent. Plaintiff asserts that the demobilization process will begin on October 6, 2014 and "result in his demobilization and discharge no later than approximately October 20, 2014." (ECF No. 8-1 at 2). Plaintiff requests that the Court:
1. Declare that DON's de-mobilization and discharge of Plaintiff violates the Due Process Clause of the Fifth Amendment to the Constitution of the United States and enjoin Defendant from de-mobilizing and discharging Plaintiff until he has a proper opportunity to respond to the periodic investigation;
2. Issue preliminary and permanent injunctions enjoining DON from de-mobilizing and discharging Plaintiff until he has had a proper opportunity to respond to the periodic investigation; and
3. Order DON to reinstate Plaintiff to the pre-deployment training he was undergoing when his security clearance was revoked without cause.
Id. at 8-9. Defendant contends that review of the Navy's administrative decisions regarding Navy personnel are non-justiciable in this case. Defendant also contends that Plaintiff has failed to demonstrate ...