McGUIRE, District Judge.
The plaintiff seeks a mandatory injunction and declaratory judgment directed towards the nullification of a communication dated April 17, 1953 by the then Assistant Secretary of the Navy to his employer, an engineering and research corporation with its principle place of business in Maryland, to the effect that his access to Navy classified security information was inconsistent with the best interests of national security.
First of all, it may be said: "It is a prerequisite to the maintenance of any action for specific relief that the plaintiff claim an invasion of his legal rights, either past or threatened." Larson v. Domestic & Foreign Corp., 337 U.S. 682, at page 693, 69 S.Ct. 1457, 1463, 93 L.Ed. 1628. In other words, he must allege conduct that is illegal and "If he does not, he has not stated a cause of action. This is true whether the conduct complained of is sovereign or individual." Id.
The factual picture briefly is this: The plaintiff, as had been indicated, was employed by the corporation referred to above and has been for some
There was also published on or about the same time an Industrial Security Manual, so-called, designed specifically for the safeguarding of classified matter which the contractor agreed to adhere to in relation to security controls, and which Manual defined responsibility with regard to classified material on Government defense contracts. Paragraph 4(e) of the Manual stated:
Both the contractual agreement and the Industrial Security Manual were in force during the critical time period of April 1953 when the communication in question was written and at all times relevant thereafter.
It might be said that the plaintiff originally had clearances for access to classified Department of Defense information and materials. These clearances, however, were revoked on December 5, 1951. This finding was reversed subsequently by the Industrial Employment Review Board and by letter dated January 29, 1952, the plaintiff's employer was so advised. However, in March of 1953 the Army-Navy-Air Force Personnel Security Board and the Industrial Employment Review Board were abolished and there was then established by the various Secretaries of the individual military establishments, jointly, what were designated as Regional and Industrial Personnel Security Boards, together with so-called Uniform Standards of Operation. It was at this time, upon the abolishment of the Industrial Employment Review Board, and immediately prior to the establishment of the new Boards, that the communication complained of was written in conformity to paragraph 4(e) referred to above.
The plaintiff's employer immediately complied with the request and by letter dated April 24 in that year advised that it had excluded the plaintiff from any part of its plant, factories and sites and barred him access to all security information. As a consequence, the services of plaintiff were dispensed with.
There is no need to follow the rather tortuous course of events that followed. Sufficient to say that upon request, the plaintiff was furnished with a detailed statement of the reasons which resulted in the revocation of his clearances and which had been previously made known to him by correspondence. None of this post factum activity in relation to the communication, no matter how viewed, fills in the fatal gap so plainly present in the plaintiff's claim. It is fundamental when one presumes to accept a contractual offer then that offer must be accepted in terms, and one of the terms here, as has been said, related to security controls. The necessity for such is obvious. If the plaintiff's employer did not see fit to accept and conform, it had perfect freedom not to enter into the contract. On acceptance of the offer in terms, it
Assuming arguendo he was entitled to hearing and review, he was accorded such and an examination of the extensive and repetitive record fails to show any violation of procedural due process. It should be noted also that the hearings held in the instant case apparently are exempted from the requirements of the Administrative Procedure Act, 5 U.S.C. A. § 1001 et seq., as hearings held "by regulation, rule, custom, or special dispensation; not * * * held by compulsion." Wong Yang Sung v. McGrath, 1950, 339 U.S. 33, 50, 70 S.Ct. 445, 454, 94 L.Ed. 616.