Talbott v. Widnall

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 26, 1999
• Docket: 98-1361
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS SEP 17 1999

TENTH CIRCUIT PATRICK FISHER Clerk

ARNOLD L. TALBOTT,

Plaintiff-Appellant,

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

Defendant-Appellee.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Mr. Arnold L. Talbott, plaintiff, brought a Title VII 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 jurisdiction. We affirm.

This case has a tortured and confusing past which we 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 specialist. In 1993, Mr. Talbott

filed discrimination complaints with the EEOC. In April 1994, the Air Force

suspended his security clearance which eventually led to his employment

termination. As a result, Mr. Talbot modified his EEOC complaint to further

allege his suspension was the result of the Air Force’s retaliation against him for

filing the earlier EEOC discrimination claims. The two parties negotiated a

settlement under which Mr. Talbott’s security clearance would be reinstated. The

Air Force allegedly breached the settlement agreement when it refused to reinstate

the clearance. On June 24, 1996, an EEOC administrative judge found in favor

of Mr. Talbott on his claims of reprisal. The findings were adopted by the

Appellate Review Division of the Air Force on September 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

-2- suspension of his security clearance. The court dismissed the complaint under

Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction after concluding that

Mr. Talbott’s claims required court review of the revocation 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 matter 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 Hill the plaintiff challenged the

revocation of his security clearance by the Air Force. 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 decisions relating to Hill’s

clearance, and the nexus between those decisions and 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 of issues. We only address

those presented to the district court. See City of Stilwell v. Ozarks Rural Elect.

-3- Coop., 166 F.3d 1064, 1073 (10th Cir. 1999) (declining to consider an issue not

raised below). The four issues raised below were discrimination and retaliation in

violation of Title VII, a constitutional due process 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 settlement agreement for failure to

reinstate his security clearance. Mr. Talbott argues that we can review these

claims because they are separable from the merits of the revocation of the security

clearance. We address the jurisdictional issue for each claim in turn.

Essentially, Mr. Talbott contends that the motives behind the revocation of

the security clearance were discriminatory and retaliatory. 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 over Mr. Talbott’s claims

of discrimination and retaliation.

Hill also directly controls Mr. Talbott’s due process claim. Because we

expressly stated in Hill there is no “right” to a security clearance and therefore no

entitlement to due process, we also cannot review this issue.

Finally, the breach of the negotiated settlement turns entirely on the decision

of the Air Force not to reinstate the security clearance. 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 courts.

-4- There is one remaining issue which we summarily address. Mr. Talbott

argues that the magistrate erred in failing to consider his Motion for Default which

he filed after defendants did not respond to several requests for admissions

submitted to them in May 1997. A review of the record 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 on appeal. 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

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