McKeand v. Laird, 71-2169.

• Decision Date: 30 January 1974
• Docket Number: No. 71-2169.,71-2169.
• Citation: 490 F.2d 1262
• Parties: Robert Wallace McKEAND, Petitioner-Appellant, v. Melvin LAIRD, Secretary of Defense, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

490 F.2d 1262 (1973)

Robert Wallace McKEAND, Petitioner-Appellant, v. Melvin LAIRD, Secretary of Defense, et al., Respondents-Appellees.

No. 71-2169.

United States Court of Appeals, Ninth Circuit.

October 9, 1973.

Rehearing Denied January 30, 1974.

Burton Marks (argued), Beverly Hills, Cal., for petitioner-appellant.

James R. Dooley, Asst. U. S. Atty. (argued), Robert L. Meyer, U. S. Atty., Frederick M. Brosio, Jr., Asst. U. S. Atty., Los Angeles, Cal., for respondents-appellees.

Before MERRILL and WALLACE, Circuit Judges, and PECKHAM,^* District Judge.

WALLACE, Circuit Judge:

McKeand, an electronics engineer and an admitted homosexual, had been employed by a government contractor and was granted a secret security clearance in 1960. In 1967, his employer requested that McKeand's clearance be raised to top secret. Subsequent to an administrative investigation and hearing, primarily involving alleged homosexual activity, the hearing examiner concluded that "it is not clearly consistent with the national interest to grant Applicant McKeand security clearance at any level." McKeand's administrative appeal was unsuccessful. The security clearance denial was challenged by McKeand in the district court. Summary judgment was entered against him from which he appeals. We affirm.

By Executive Order, the Secretary of Defense was directed to prescribe regulations which would safeguard classified information in companies such as McKeand's employer. Access was to be allowed "only upon a finding that it is clearly consistent with the national interest to do so." Exec. Order No. 10865, 25 Fed.Reg. 1583 (1960), as amended, 3 C.F.R. 83, 84 (1973). See Adams v. Laird, 136 U.S.App.D.C. 388, 420 F.2d 230, 238-39 (1969), cert. denied, 397 U.S. 1039, 90 S.Ct. 1360, 25 L.Ed.2d 650 (1970); Clifford v. Shoultz, 413 F.2d 868 (9th Cir.), cert. denied, 396 U.S. 962, 90 S.Ct. 426, 24 L.Ed.2d 426 (1969). Here a contrary finding was made, the basis of which is clearly dispositive of this appeal.

We are aware of the division of opinion as to whether a person can lose his or her security clearance on the sole basis of private homosexual activity. See, e. g., the majority and the dissent in Adams, supra. But here, the hearing examiner not only found McKeand was a homosexual, but, in addition, made specific findings of fact clearly describing why his homosexuality posed a threat of divulgence of classified material. The examiner found that "it is apparent from the record of the hearing that he fears disclosure; he is thus a target for coercion or pressure which may be likely to cause action contrary to the national interest." This constitutes a rational nexus — in addition to the fact of homosexuality — between McKeand's conduct and the government's denial of his security clearance.

Judicial review of factual determinations by agencies is limited to whether, considering the record as a whole, there is substantial evidence supporting the findings. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Assuming, without holding, that this test should be applied,¹ the district court correctly found it was met.²

The examiner having found and relied on such a rational nexus, and the findings being supported by substantial evidence in the record, it is unnecessary for us to decide whether a finding of homosexuality alone would be sufficient to uphold the denial of a security clearance.

The other issues raised are without merit.

Affirmed.

PECKHAM, District Judge (dissenting):

McKeand, an engineer for a major defense contractor, held a "secret" security clearance from 1960 to 1967. At his employer's request, he applied to the Department of Defense for a "top secret" security clearance in 1967. The Department of Defense, during its investigation of McKeand's application, discovered letters which indicated that McKeand was a homosexual. Also, McKeand submitted a written statement which reviewed his infrequent homosexual activity during the last three decades.

The Department of Defense informed McKeand that his security clearance would be revoked. Department of Defense administrative hearings upheld this revocation decision. McKeand's action in district court ended in summary judgment in favor of the Department of Defense. McKeand now appeals that decision to this court.

This court must decide whether the Department of Defense's decision to deny McKeand a security clearance at any level is supported by substantial evidence on the record studied in its entirety. The majority, despite its reservations, applies this standard as stated in Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951):

"The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. . . . A reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board\'s view." Id. at 488, 71 S.Ct. at 464.

I cannot agree that the Department of Defense's decision is supported by substantial evidence.

The Department of Defense revoked McKeand's security clearance pursuant to 32 C.F.R. §§ 155.4, 155.5 which implement a presidential order concerning security requirements for government contracts. Section 155.4 states that the "policy" that "(a) Access to classified information shall be granted or continued only to those individuals who have been determined eligible based upon a finding that to do so is clearly consistent with the national interest." Section 155.5 list various "criteria" upon which the Department of Defense could deny an individual a specific security classification. The relevant "criteria" for this case include: "(n) Any behavior, activities, or associations which tend to show that the individual is not reliable or trustworthy."; and "(p) Any criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, habitual use of intoxicants to excess, drug addition, or sexual perversion."; and "(s) Any facts or circumstances which furnish reason to believe that the individual may be subjected to coercion, influence, or pressure which may be likely to cause action contrary to the national interest."

The Department of Defense, to justify the revocation of the security clearance, must offer proof of a rational connection between McKeand's admitted homosexuality, and his ability to safeguard classified information. Gayer v. Laird, 332 F.Supp. 169, 171 (D.D.C.1961) (and cases cited therein). Such proof cannot depend solely on the use of convenient labels such as "immoral conduct." Norton v. Macy, 135 U.S.App.D.C. 214, 417 F.2d 1161 (1969). "A pronouncement of `immorality' tends to discourage careful analysis because it unavoidably connotes a violation of divine, Olympian, or otherwise universal standards of rectitude." Id. at 1165. Rather, the government must present specific reasons why an individual's behavior makes him not reliable, not trustworthy, or open to coercion.

The mere fact that an individual admits his own homosexuality does not provide sufficient reason without further evidence to justify withdrawal of a security clearance. Wentworth v. Laird, 348 F.Supp. 1153 (D.D.C.1972). To support a withdrawal, the record must reveal facts showing why and how the homosexual activity renders an individual a security risk. "Generalized assumptions that all homosexuals are security risks certainly cannot outweigh almost eight years of faithful service." Adams v. Laird, 136 U.S.App.D.C. 388, 420 F.2d 230, 241 (1969) (Wright J., dissenting).

In the present case, the record gives scant evidence that McKeand posed any threat to national security. The record clearly establishes that since 1960 McKeand has never talked with others concerning secret information within his access; has never been approached by others seeking secret information; and, in fact, has never breached his security classification in any way.

The majority relies heavily on the hearing examiner's determination that McKeand feared disclosure of his homosexuality. However, ...