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Schowengerdt v. United States

filed: September 6, 1991.

RICHARD NEAL SCHOWENGERDT, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA; DEPARTMENT OF THE NAVY; JOHN F. LEHMAN, JR., SEC. OF THE NAVY; GENERAL DYNAMICS CORPORATION; C.W. KESSEL; K.D. TILLOTSON; CARL W. JENSEN; RICHARD S. DAY, DEFENDANTS-APPELLEES. RICHARD NEAL SCHOWENGERDT, PLAINTIFF-APPELLANT, V. UNITED STATES OF AMERICA; DEPARTMENT OF THE NAVY; JOHN F. LEHMAN, JR., SEC. OF THE NAVY, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Central District of California. D.C. No. CV-83-8007-AAH. D.C. No. CV-83-8007-AAH. A. Andrew Hauk, District Judge, Presiding.

William C. Canby, Jr. and Pamela Ann Rymer, Circuit Judges, and James Ware,*fn* District Judge. Opinion by Judge Canby.

Author: Canby

CANBY, Circuit Judge

Richard Schowengerdt appeals from summary judgments dismissing his civil rights claims brought under 42 U.S.C. ยง 1983. Schowengerdt's claims arise out of the search of his office, where he worked for the Navy as a civilian military engineer on classified projects, and out of his subsequent discharge from the Naval Reserve. We affirm.

I. Background

A. Underlying facts*fn1

At the time of the events giving rise to this action, Schowengerdt was employed by the Navy as a civilian engineer to work on secret weapons-related projects, for which he had a "secret" security classification. Schowengerdt was also a Chief Warrant Officer in the Naval Reserve, assigned to a missile test center.

The Naval Industrial Ordinance Plant in Pomona, California, where Schowengerdt worked, houses a wide variety of projects of secret and top-secret military weapons design, manufacture and testing. The plant is owned by the Navy, but operated by General Dynamics Corporation, which provides security services for the plant. Extensive security precautions are taken at the facility. Those precautions include frequent scheduled and random searches of work spaces by security guards. General Dynamics also employs investigators to pursue more detailed investigations into possible instances of compromised security which come to their attention. To facilitate searches, security agents have access to keys to all offices and office furniture.

Schowengerdt was well aware of these security procedures, having been employed at this facility for thirteen years. He had personally observed his office being searched on numerous occasions to ascertain his compliance with procedures relating to the proper storage of classified documents. Also, all employees, including Schowengerdt, were required to attend periodic security briefings, at which they were informed of all security procedures. In those briefings, they were made aware that the Navy's security concerns extended beyond physical protection of classified documents, and included concerns that employees not divulge classified information to inappropriate sources. That concern encompassed a variety of conditions which might compromise an employee's ability to maintain security, including those which might make an employee susceptible to blackmail.

On August 9, 1982, Charles Kessel, who was a security investigator for General Dynamics, searched Schowengerdt's office, without his consent or a search warrant, after Schowengerdt had left work for the day. That search was precipitated by an anonymous tip, stating that Schowengerdt's office contained material "of interest to the security department." Kessel's search was confined to the credenza in Schowengerdt's office, which is where the informant said that the material would be found. The parties dispute whether the doors to Schowengerdt's office and to the credenza were locked.

In the credenza, Kessel found and seized a manila envelope marked with the following notations on the outside: "Strictly Personal and Private. In the event of my death, please destroy this material as I do not want my grieving widow to read it." The envelope contained correspondence and photographs indicating Schowengerdt's involvement in heterosexual and bisexual activities. The correspondence indicated that Schowengerdt solicited sexual encounters through want ads in "swingers" magazines and clubs.

During work hours the next day, when Schowengerdt was momentarily absent, his office was again searched without his consent or a warrant. This search was conducted by Kessel and Carl Jensen, special agent for the Naval Investigative Service, and K.D. Tillotson, the Navy Commanding Officer at the facility. At this search, the agents seized numerous personal items. This second search was authorized by Jensen's supervisor, who agreed with Jensen that no warrant was required because the supervisor believed that government employees did not have a legitimate expectation of privacy in their work spaces.

On the basis of the correspondence contained in the manila envelope, and the envelope's external inscription, Jensen concluded that Schowengerdt fit the profile of a person susceptible to blackmail by hostile intelligence agents.*fn2 Jensen then began an investigation to determine whether Schowengerdt constituted a security risk. He interviewed Schowengerdt, who admitted to being a bisexual.*fn3 Jensen also obtained Schowengerdt's permission to search his home.

As a result of this investigation, Jensen concluded that there was no evidence that plaintiff had been contacted by a hostile agent or that he was the target of blackmail. Jensen wrote a report of his investigation and transmitted that report to various federal offices responsible for maintenance of ...


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