High Tech Gays v. Defense Indus. Sec. Clearance Office

• Decision Date: 02 February 1990
• Docket Number: No. 87-2987,87-2987
• Citation: 895 F.2d 563
• Parties: 60 Fair Empl.Prac.Cas. 1435, 52 Empl. Prac. Dec. P 39,608, 58 USLW 2473 HIGH TECH GAYS; Timothy Dooling, and all others similarly situated; Joel Crawford; and Robert Weston, Plaintiffs-Appellees, v. DEFENSE INDUSTRIAL SECURITY CLEARANCE OFFICE; Director, Defense Industrial Security Clearance Office; Defense Investigative Service; Director of Defense Investigative Service; Secretary of Defense, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 563

895 F.2d 563

60 Fair Empl.Prac.Cas. 1435,

52 Empl. Prac. Dec. P 39,608, 58 USLW 2473

HIGH TECH GAYS; Timothy Dooling, and all others similarly

situated; Joel Crawford; and Robert Weston, Plaintiffs-Appellees, v. DEFENSE INDUSTRIAL SECURITY CLEARANCE OFFICE; Director,

Defense Industrial Security Clearance Office; Defense

Investigative Service; Director of Defense Investigative

Service; Secretary of Defense, Defendants-Appellants.

No. 87-2987.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 16, 1988.

Decided Feb. 2, 1990.

Jay S. Bybee, Appellate Staff, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendants-appellants.

Richard Gayer, San Francisco, Cal., for plaintiffs-appellees.

Matthew A. Coles, San Francisco, Cal., for amicus, American Civ. Liberties Union of Northern California, Inc.

Stephen V. Bomse, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., for amicus, National Gay Rights Advocates.

Appeal from the United States District Court for the Northern District of California.

Before BRUNETTI and LEAVY, Circuit Judges, and CURTIS, ^* Senior District Judge.

BRUNETTI, Circuit Judge:

The plaintiffs-appellees challenge whether the Department of Defense's (DoD) policy of subjecting all homosexual applicants for Secret and Top Secret clearances to expanded investigations and mandatory adjudications, and whether the alleged DoD policy and practice of refusing to grant security clearances to known or suspected gay applicants, violates the equal protection component of the Fifth Amendment's Due Process Clause and the rights of free association guaranteed by the First Amendment.

In analyzing the equal protection challenge, the district court concluded that "gay people are a 'quasi-suspect class' entitled to heightened scrutiny," High Tech Gays v. Defense Industrial Security Clearance Office, 668 F.Supp. 1361, 1368 (N.D.Cal.1987), and that the DoD security clearance regulations "must withstand strict scrutiny because they impinge upon the right of lesbians and gay men to engage in any homosexual activity, not merely sodomy, and thus impinge upon their exercise of a fundamental right." Id. at 1370. The district court rejected the reasons proffered by the DoD to justify its policies and found the absence of even a "rational basis for defendants' subjecting all gay applicants to expanded investigations and mandatory adjudications while not doing the same for all straight applicants." Id. at 1373. The district court therefore concluded that the DoD policy violates the Constitution and granted summary judgment to the plaintiffs. We reverse the part of the district court's order granting summary judgment to the plaintiffs, vacate the part denying summary judgment to the DoD, and remand to enter summary judgment in favor of the DoD.

I. Background

A.

This appeal involves a class action ¹ challenging the mandatory investigation of all homosexual ² applicants seeking a Secret or Top Secret clearance. The clearance process begins when the defense contractor forwards an individual's name to the DoD for Secret or Top Secret clearance. 32 C.F.R. Secs. 154.30, .31 (1987). ³ For a Secret clearance, the Defense Industrial Security Clearance Organization (DISCO) conducts a National Agency Check (NAC), which consists at a minimum of a record check of the Federal Bureau of Investigation and the Defense Central Intelligence Index, but may also include a record check of the Office of Personnel Management, the Immigration and Naturalization Service, the State Department, and the Central Intelligence Agency. 32 C.F.R. Sec. 154.3(m); DoD 5200.2-R, app. B (1979). For Top Secret clearance, the Defense Investigative Service (DIS) completes a Background Investigation (BI) for each applicant, which consists of a NAC, local records check, and interviews with personal sources.

DISCO will grant a Secret clearance if no adverse or questionable information is developed by the NAC. If adverse information arises from the NAC, DIS conducts an expanded investigation to substantiate or disprove the adverse or questionable information and conducts a personal interview of the applicant. 32 C.F.R. Sec. 154.8(i)(2), (j). If information obtained from the expanded investigation resolves the question of potentially adverse information, DISCO grants the Secret clearance. Similarly, for a Top Secret clearance application, if the BI resolves any potentially derogatory information that may have arisen during the investigation, DISCO grants the clearance. The Department of Defense Personnel Security Program, DoD 5200.2-R, app. E (1979), provides guidelines for DISCO in determining whether there is significant adverse information that prevents the granting of a clearance. 32 C.F.R. pt. 154, app. D.

For both Secret and Top Secret clearances, if DISCO cannot find that granting the security clearance would be clearly consistent with the national interest, the case is referred to the Directorate for Industrial Security Clearance Review (DISCR) for review and adjudication. 32 C.F.R. Secs. 155.2(c), .7(a). DISCR evaluates the application under the standards and criteria set forth in the DoD directives and determines whether or not to grant a clearance. 32 C.F.R. Sec. 155.7(b).

The personnel security standard that must be applied to determine whether a person is eligible for access to classified information or assignment to sensitive duties is whether, based on all available information, the person's loyalty, reliability, and trustworthiness are such that entrusting the person with classified information or assigning the person to sensitive duties is clearly consistent with the interests of national security.

32 C.F.R. Sec. 154.6(b).

The ultimate decision in applying ... Sec. 154.6(b) and (c) must be an overall common sense determination based upon all available facts.

32 C.F.R. Sec. 154.7.

Section 154.7 provides a list of criteria for determining eligibility for a clearance under this standard. ⁴ These criteria are further explained in 32 C.F.R. pt. 154, appendices D and H. In appendix D, number 2, acts of sexual misconduct under 32 C.F.R. Sec. 154.7(q) are defined to include "all indications of moral turpitude, heterosexual promiscuity, aberrant, deviant or bizarre sexual conduct or behavior, transvestitism [sic], transsexualism, indecent exposure, rape, contributing to the delinquency of a minor, child molestation, wife-swapping, window peeping, and similar situations from whatever source." 32 C.F.R. pt. 154, app. D, no. 2.

In appendix H, each category is further broken down into sections describing disqualifying factors and mitigating factors. The disqualifying factors under sexual misconduct include conduct involving acts performed in open or in public places; acts performed with minors or animals; acts involving inducement, force, coercion, or violence; prostitution; sexual harassment; self-mutilation; spouse swapping or group sex orgies; adultery that is recent, frequent and likely to continue and has adverse effect in the work place; conduct determined to be criminal in the locale in which it occurred; and deviant or perverted sexual behavior which may indicate a mental or personality disorder (e.g., transsexualism, transvestism, exhibitionism, incest, child molestation, voyeurism, bestiality, or sodomy). 32 C.F.R. pt. 154, app. H. The disqualifying factors also include whether such conduct has been recent; whether it increases the applicant's vulnerability to blackmail, coercion or pressure; and whether the applicant is likely to repeat the conduct in the future. Id. Mitigating factors include whether the conduct occurred on an isolated basis, the age of the applicant at the time of the act, whether the applicant has completed professional therapy, and whether the sexual misconduct can no longer form the basis for vulnerability to blackmail, coercion or pressure. Id.

The DIS Manual for Personnel Security Investigations (DIS 20-1-M) establishes operational and investigative policy and procedural guidance for conducting personnel security investigations. See DIS 20-1-M (1985). According to the DIS 20-1-M, the DIS will not ordinarily "investigate allegations of heterosexual conduct between consenting adults." Id. para. 4-10, at 4-5. If circumstances warrant, the DIS will expand the investigation "to determine if the SUBJECT, through his or her activities is susceptible to coercion and blackmail has committed criminal acts, or engaged in reckless and irresponsible conduct." Id. Extramarital sexual relations are considered a legitimate concern when the potential for undue influence or duress exists. Id. Other sexual conduct including homosexuality, bestiality, fetishism, exhibitionism, sadism, masochism, transvestism, necrophilia, nymphomania or satyriasis, pedophilia and voyeurism is considered a "relevant consideration in circumstances in which deviant conduct indicates a personality disorder or could result in exposing the individual to direct or indirect blackmail or coercion." Id.

"Participation in deviant sexual activities may tend to cast doubt on the individual's morality, emotional or mental stability and may raise questions as to his or her susceptibility to coercion or blackmail." Id. para. 4-11, at 4-5, 4-6. At a minimum the investigators are instructed to determine the following:

a. [T]he nature and full extent of deviant acts engaged in, including the period(s) of the SUBJECT's life during which such activity occurred and the frequency and recency of such acts. (The purpose of this inquiry is to determine if the SUBJECT's activities involve actual violation of criminal statutes.)

b. [A] general categorization of the types of individuals with whom the SUBJECT participates in deviant activity. Inquiries should be designed to determine whether the SUBJECT and the coparticipants are open or secretive regarding their deviant activity. Ascertain the general age group of the SUBJECT's...