The opinion of the court was delivered by: GREEN
Plaintiff Killian B. Swift brings this suit alleging that the government unreasonably and unlawfully denied him access to the White House to perform his duties as a stenographer, thereby violating his rights under the Administrative Procedure Act and the Constitution. Defendant has moved to dismiss the complaint for failure to state a claim upon which relief can be granted. For the reasons set forth below, the Court will grant defendant's motion with respect to certain counts, and deny it with respect to the remainder.
Plaintiff Swift worked at the White House for nearly two years recording and transcribing the President's public speeches and press conferences -- first for the TTW Reporting Company and, after that company went bankrupt, for Koba Associates, Inc. ("Koba"). Both companies were under contract with the Defense Supply System ("DSS"), which required that all contractor personnel possess a White House access clearance. Plaintiff maintained such a security clearance from February 26, 1982 through January 3, 1984, except for a six-week period in 1983 between the termination of TTW's contract with DSS and the commencement of Koba's contract. Plaintiff alleges that in the fall of 1983, an agent of defendant, Dennis Sculimbrene, approached plaintiff's supervisor, Marcia Baggott, and asked her whether plaintiff is homosexual. Ms. Baggott confirmed that, to her knowledge, he is. On January 3, 1984, defendant notified Koba that plaintiff had been determined to be a security risk and that he would no longer be permitted access to the White House complex. Immediately thereafter Koba terminated plaintiff's employment.
Plaintiff's mother wrote Nancy Reagan, inquiring into the reasons for the revocation of her son's security clearance, and was advised in a letter of February 3, 1984, from Richard Hauser, Deputy Counsel to the President, that "no determination was made that your son is a 'national security risk.'" Complaint, para. 12. To date, defendant has refused to restore plaintiff's security clearance, provide him or Koba any explanation for the loss of that clearance, or offer him an opportunity to clear his name.
A. Plaintiff's Property Interest
Defendant moves to dismiss plaintiff's claim that he was deprived of property without due process of law on the ground that plaintiff had no legitimate property right in continued access to the White House. To possess a property interest in a given benefit, a person must have a "legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). Such an entitlement is "created and . . . defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. Where a claim of entitlement rests on understandings, they must be " mutually explicit understandings," Perry v. Sindermann, 408 U.S. 593, 601, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972) (emphasis supplied); a "unilateral expectation" is insufficient. Roth, 408 U.S. at 577. As this case demonstrates, this test is often more easily stated than applied. Plaintiff contends that the government had never terminated a reporter/transcriber's access to the White House for any reasons other than a failure to perform contractual obligations satisfactorily, or a determination that the person was a security risk. He characterizes this practice as a "consistent, positive action" on the part of the government -- one that gave rise to a justifiable expectation on his part that his security clearance would not be denied for any other reason. The government, on the other hand, argues that its inaction does not amount to a consistent past practice, and that plaintiff's claim of entitlement rests on nothing more than a purely subjective expectation of continued access.
In resisting defendant's motion to dismiss, plaintiff relies principally on two cases, which, he contends, demonstrate that "the consistent, positive action of government officials" can give rise to a property interest in continued access to government facilities. In Phillips v. Bureau of Prisons, 192 U.S. App. D.C. 357, 591 F.2d 966 (D.C. Cir. 1979), the District of Columbia Circuit held that a paralegal had a protected property interest in access to federal prisons. The Court noted that defendant had a "long-standing policy of extending visitation privileges liberally to attorneys" and that paralegals were "routinely granted access to federal prisoners." Id. at 971 (footnotes omitted). This "consistent, positive action," the Court concluded, created "a justifiable expectation that the only basis for the government's refusal to grant entrance is concern for internal security, order and discipline," and accordingly that plaintiff had a legitimate claim of entitlement to continued access. Id. (footnote omitted). In Sherrill v. Knight, 186 U.S. App. D.C. 293, 569 F.2d 124 (D.C. Cir. 1977), a Washington-based reporter challenged the government's refusal to grant him a White House press pass. Unlike the situation in Phillips, where published regulations set out the standards for access to federal prisons, in Sherrill there were no published guidelines governing the issuance of press passes. Nevertheless, plaintiff demonstrated that such passes were routinely issued to journalists who resided in the Washington area, possessed passes for the House and Senate galleries, and needed to report from the White House on a regular basis. Plaintiff satisfied these criteria, but the government denied him access and refused to explain the basis of its decision. While holding that plaintiff had been denied his first amendment liberty interest without due process, the Court noted in a footnote that plaintiff may also have been deprived of a "related and perhaps equally compelling property interest." Id. at 131 n.22 (emphasis in original).
It is apparent that all parties to this case recognize the right of a journalist to a White House press pass if he has obtained House and Senate press credentials, resides in Washington, and has a need to report from the White House, unless he is a source of potential danger to the President or his family. There is no indication in the record that the Secret Service has ever denied press credentials for any other reason. Nor is the Secret Service authorized to deny credentials for non-security-related reasons. It could be argued, convincingly we believe, that in these circumstances, appellee has a justifiable expectation that the only basis for the government's refusal to grant a White House press pass is concern for the physical security of the President or his family. While appellee's entitlement is not created expressly by the Constitution or by positive federal law, it is created by the consistent, positive action of government officials.
Id. (citation omitted) (emphasis in original). Plaintiff contends that, like the plaintiffs in Phillips and Sherrill, he has a legitimate claim of entitlement to continued White House access based on the fact that the government has consistently granted access to stenographers such as himself, unless they fail to discharge their duties or are deemed security risks.
As plaintiff recognizes, however, both cases are distinguishable from the present dispute. In Phillips, as noted above, the plaintiff's justifiable expectation of access arose from published regulations governing visitation rights for attorneys; those regulations created and defined the plaintiff-paralegal's legitimate entitlement. Here, no rules or regulations define plaintiff's right to access to the White House complex. His entitlement, therefore, hinges on his claim that the government has a consistent practice of denying access only for cause -- a claim which the Court must accept as true for present purposes. In Sherrill, of course, the Court did not actually hold that the practice of the White House Press Office gave rise to a property right, but merely suggested that such a claim could be convincingly argued. In making this suggestion, however, the Court noted that ancillary constitutional values lent substantial force to a claim of a protected property interest. In the footnote quoted above, the Court stated that "when the substance of the property interest involves first amendment values to the degree of this entitlement to a White House press pass, it would be difficult not to infer constitutional recognition of this interest." 569 F.2d at 131 n.22. Plaintiff has not, nor could he, claim that his entitlement to access to the White House as a stenographer is in any way fortified by first amendment values. His asserted property right, therefore, must arise solely from the practice he has identified, without benefit of any ancillary constitutional values.
Defendant characterizes this practice as simply one of inaction, and argues that the government's prior failure to exercise its discretion and deny security clearances for reasons other than those enumerated by plaintiff cannot give rise to a property right. The Ninth Circuit, in Bollow v. Federal Reserve Bank of San Francisco, 650 F.2d 1093 (9th Cir. 1981), cert. denied, 455 U.S. 948, 71 L. Ed. 2d 662, 102 S. Ct. 1449 (1982), ruled that merely because the Federal Reserve Bank had never before fired an employee with ten years' tenure for the reasons plaintiff was terminated did not give rise to a property interest in continued employment. The Court noted that "there must have been at least some sort of affirmative conduct on the part of the Bank" in order to create such an interest. Id. at 1099.
Here, plaintiff has identified no affirmative conduct on the government's part -- no published regulations such as those in Phillips, or in Perry v. Sindermann, where the Supreme Court found that provisions in an official college publication, coupled with a practice of re-hiring faculty members, may have created a property interest in continued employment. See 408 U.S. at 599-600. In Williams v. Barry, 228 U.S. App. D.C. 220, 708 F.2d 789 (D.C. Cir. 1983), this Circuit expressed reservations about the district court's finding that the District of Columbia's practice of providing food and shelter to the homeless, along with statements by city officials concerning the city's policy on the provision of such services, gave rise to a property interest. Although the city did not challenge this ruling on appeal, the court characterized the statements, declarations and actions of the city officials as "weak and inconsistent . . . evidence of [an] entitlement." Id. at 792.
Here, plaintiff has offered no statements or declarations ...