Adams v. Laird

• Decision Date: 12 December 1969
• Docket Number: No. 22506.,22506.
• Parties: Robert Larry ADAMS, Appellant, v. Melvin R. LAIRD, Secretary of Defense.
• Court: U.S. Court of Appeals — District of Columbia Circuit

420 F.2d 230 (1969)

Robert Larry ADAMS, Appellant, v. Melvin R. LAIRD, Secretary of Defense.

No. 22506.

United States Court of Appeals District of Columbia Circuit.

Argued June 5, 1969.

Decided December 12, 1969.

Certiorari Denied April 20, 1970.

COPYRIGHT MATERIAL OMITTED

Mr. William M. Barnard, Washington, D.C., with whom Mr. Ralph J. Temple, Washington, D.C., was on the brief, for appellant.

Mr. H. Yale Gutnick, Atty., Department of Justice, with whom Asst. Atty. Gen. J. Walter Yeagley and Kevin T. Maroney, Atty., Department of Justice, were on the brief, for appellee.

Before WRIGHT, McGOWAN and TAMM, Circuit Judges.

Certiorari Denied April 20, 1970. See 90 S.Ct. 1360.

McGOWAN, Circuit Judge:

Appellant's complaint in the District Court sought declaratory and injunctive relief requiring the Secretary of Defense to accord to appellant certain security authorizations for access to classified information alleged by appellant to be essential to his continued employment by private companies engaged in defense work. Each side moved for summary judgment, and this appeal is from the District Court's order, entered without a statement of reasons, granting appellee's motion. We affirm.

I

This case grows out of the Federal Government's program to protect the integrity, while in the possession of private industry, of classified information relating to the national defense. That program was reorganized and established on new foundations in 1960 as a consequence of the Supreme Court's inability to find in it adequate procedural protections for the individual seeking or holding security clearance. Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). The basic charter of the revised program is Executive Order 10865, issued by the President on February 20, 1960. 25 Fed.Reg. 1583. It directs the Secretary of Defense, among others, to prescribe regulations for the safeguarding of classified information within industry. It admonishes that an authorization for access to such information may be given "only upon a finding that it is clearly consistent with the national interest to do so." It prescribes a broad range of procedural rights for the individuals seeking or holding such authorization.

As directed, the Department of Defense issued on July 28, 1960, its Directive 5220.6, which embodies the Industrial Personnel Access Authorization Review Program. 25 Fed.Reg. 14399. DOD 5220.6 is a comprehensive document which states its policy to be the implementation of Executive Order 10865 by the taking of adequate measures "to insure that no person is granted, or is allowed to retain, an authorization for access to classified information unless the available information justifies a finding that such access authorization * * * is clearly consistent with the national interest." The organization for the administration of the program is spelled out in detail. A "Standard" for access authorization is defined in terms of a grant or continuation of access "only if it is determined that such access by the applicant is clearly consistent with the national interest." There are also enumerated several "Criteria" for the application of the Standard to individuals; and this particular section of the Directive is completed with a statement of several principles which are designated as "Guidance" for the application of the Standard and the Criteria. The first, and most central, of these principles asserts that the matters identified in the criteria

"may, in the light of all the surrounding circumstances, be the basis for denying or revoking an access authorization. The conduct varies in implication, degree of seriousness and significance depending upon all the factors in a particular case. Therefore, the ultimate determination of whether an authorization should be granted or continued must be an over-all commonsense one on the basis of all the information which may properly be considered under this Regulation including but not restricted to such factors, when appropriate, as the following: the seriousness of the conduct, its implications, its recency, the motivations for it, the extent to which it was voluntary and undertaken with knowledge of the circumstances involved and, to the extent that it can be estimated and is appropriate in a particular case, the probability that it will continue in the future.

The remainder of DOD 5220.6 is largely devoted to a detailed prescription as to how cases are to be processed and the procedures which are to be observed. The adjudicatory hierarchy is comprised of a Screening Board, a Field Board, and the Central Industrial Personnel Access Authorization Board.

Appellant was employed in private industry as an electronics technician. In 1957, while employed by Melpar, Inc., appellant was given a Secret access authorization. In 1962 his then employer, National Scientific Laboratories, Inc., urged him to apply for a Top Secret authorization, which he did. This application went to the Screening Board for processing. The Board thought further investigation was necessary, and appellant was requested to present himself for an interview at the Potomac River Naval Command. Appellant appeared there at 9:00 A.M. on the morning of July 30, 1964, and was interviewed by two investigators from the Office of Naval Intelligence. They advised appellant at the outset of his right to refrain from answering questions, and that any answers he gave might be used against him. Appellant did not elect to stand mute, and the conversations began, continuing until four in the afternoon and being resumed for a short time on August 4. These discussions were mainly concerned with appellant's involvement in homosexuality, as to which he made a number of revelations.

Thereafter appellant's Secret authorization was suspended and his application for Top Secret denied. A "Statement of Reasons" was furnished to him at that time by the Screening Board, which, as set forth in the margin,¹ identified four of the Criteria as incompatible with certain homosexual conduct attributed to appellant. When appellant sought more particulars about this last, he was supplied, by a letter dated June 30, 1965, with a list of what were characterized as "further details." Appellant sent a letter by way of answer to these specifications, in which he admitted some of the acts but denied most of them, and ended by appearing to say that he perhaps made some admissions to his interviewers for the purpose of bringing the interrogation to an end.

Appellant asked for a hearing, which took place before the Field Board in Washington. Appellant was represented by counsel at this hearing, and testified on his own behalf. One of the ONI interviewers testified in person. Cross-examination of each witness took place. Each side was permitted to make documentary evidence part of the record.

The record so made, and the Field Board Examiner's report, went to the Central Board for review. Appellant was subsequently notified by letter, dated April 7, 1966, of a tentative adverse determination by the Central Board, a conclusion which appellant's counsel attacked in oral argument before the Central Board. That Board thereafter notified appellant of its final determination in these terms:

"After considering all of the information available to it, including — in addition to the items enumerated in letter of April 7, 1966 — the argument presented at the appearance before the Central Board and the additional material submitted with your letter of June 9, 1966, the Central Board has determined that the granting of authorization to Mr. Adams for access to any information classified pursuant to Executive Order 10501 is not clearly consistent with the national interest. In reaching that determination, the Board found against Mr. Adams with respect to each allegation, paragraph and Criterion of the Statement of Reasons furnished him under date of May 28, 1965. However, as pointed out in letter of April 7, 1966, the Board attributed no adverse significance to the matters detailed in subparagraphs a.(1), a.(2), a.(3), a.(7), and paragraph b. of letter of June 30, 1965 signed by Mr. Herbert Lewis of this Office. The Board concluded that its final determination and findings were adequately supported by, and the result of, its independent consideration of the evidence of record, excluding the matters immediately above-mentioned."

The matters to which the Board, in both its tentative and its final determinations, attributed no derogatory significance related to homosexual acts before appellant reached adulthood, frequenting a public restaurant said to be a hangout of homosexuals, and refraining during the ONI interview on self-incrimination grounds from answering any questions about sexual relationships since 1960 with Mr. "A", a fellow employee at Melpar, Inc. This left as the factual basis for the Board's inability to find that security clearances for appellant were in the national interest (1) homosexual acts engaged in with two fellow employees at Melpar, Inc., whom appellant would identify only as Messrs. "A" and "B", (2) a homosexual act with one "Y" in 1963, and (3) the solicitation of "X" in 1962, when they were working jointly on a science fair project, to engage in homosexual acts.^*

II

The record in the District Court was the administrative record compiled in the agency proceedings.² On this appeal, appellant does not assert that the evidence in that record is inadequate to support the factual determinations as to appellant's conduct which were relied upon by appellee in denying the clearances. Appellant claims that that evidence was, in two respects, obtained or admitted under circumstances violative of due process of law, Executive Order 10865, or DOD 5220.6. Over and beyond these alleged procedural defects, appellant urges a failure of due process in that (1) the evidence was weighed under standards not articulated with the requisite degree of...