High Tech Gays v. Defense Indus. Sec. Clear. Off., C 84-6078 TEH.

• Citation: 668 F. Supp. 1361
• Decision Date: 19 August 1987
• Docket Number: No. C 84-6078 TEH.,C 84-6078 TEH.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Parties: HIGH TECH GAYS; Timothy Dooling; Joel Crawford; Robert Weston; and all others similarly situated, Plaintiffs, v. DEFENSE INDUSTRIAL SECURITY CLEARANCE OFFICE; Director of Defense Industrial Security Clearance (now G.M. Crane); Defense Investigative Service: Director of Defense Investigative Service (now Thomas J. O'Brien); and Secretary of Defense (now Caspar Weinberger), Defendants.

668 F. Supp. 1361

HIGH TECH GAYS; Timothy Dooling; Joel Crawford; Robert Weston; and all others similarly situated, Plaintiffs, v. DEFENSE INDUSTRIAL SECURITY CLEARANCE OFFICE; Director of Defense Industrial Security Clearance (now G.M. Crane); Defense Investigative Service: Director of Defense Investigative Service (now Thomas J. O'Brien); and Secretary of Defense (now Caspar Weinberger), Defendants.

No. C 84-6078 TEH.

United States District Court, N.D. California.

August 19, 1987.

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

Joseph Russoniello, U.S. Atty., Stephen Schirle, Asst. U.S. Atty., San Francisco, Cal., for defendants.

ORDER

THELTON E. HENDERSON, District Judge.

This case is a nationwide class action challenging the Department of Defense's policy of subjecting lesbian and gay applicants for Secret and Top Secret industrial security clearances to expanded investigations and mandatory adjudications because they are lesbian or gay.¹ The case requires the Court to decide whether the United States Constitution permits the Department of Defense, in the interest of national security, to subject citizens to expanded investigations because they seek and engage in emotional, affectional, and sexual relationships with people of their own sex. The matter is presently before the Court on plaintiffs' and defendants' cross-motions for summary judgment. After careful consideration of the record and the papers submitted in the matter and after hearing oral argument of the parties, the Court hereby grants in part and denies in part plaintiffs' motion for summary judgment and grants in part and denies in part defendants' motion for summary judgment.

Procedures for Evaluating Security Clearances

The purpose of the Department of Defense's policies and procedures concerning security clearances is to determine which persons employed in defense-related positions should be granted access to classified information. The Department of Defense Personnel Security Program Regulation, DoD 5220.2-R, Jan. 1, 1987, 32 C.F.R. § 154 (1987), and the Department of Defense Industrial Personnel Security Clearance Review Program, DoD 5220.6, Aug. 12, 1985, set forth the procedures, standards, and criteria which govern applications for Secret and Top Secret clearances. When a person applies for either a Secret or Top Secret clearance he must first submit a personal security questionnaire to the Defense Industrial Security Clearance Organization (hereinafter "DISCO"). For a Secret clearance, DISCO then conducts a National Agency Check (hereinafter "NAC"). An NAC consists of a record check of designated agencies of the federal government, generally the Federal Bureau of Investigation and the Defense Central Intelligence Index. For a Top Secret clearance, the Defense Investigative Service (hereinafter "DIS") completes a Background Investigation for each applicant. A Background Investigation consists of an NAC, checks on local records, and interviews with potentially knowledgeable personal sources.

For an application for a Secret clearance, DISCO will grant the clearance if no adverse or questionable information is developed after the NAC. If adverse or questionable information arises from the questionaire or the NAC, DIS conducts an expanded investigation to the extent necessary to substantiate or disprove the adverse or questionable information. In addition, DIS conducts a personal interview of the applicant to resolve the potentially adverse information. 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 Background Investigation 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, 32 C.F.R. § 154, App. D (1987), provides guidelines for DISCO to determine that there is significant adverse information that would prevent DISCO from granting the clearance.

For both Secret and Top Secret clearances, if DISCO cannot resolve the difficulty and thus 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 (hereinafter "DISCR") for review and adjudication with a statement explaining the basis for the referral. Upon referral from DISCO, DISCR evaluates the application under the standards and criteria set forth in DoD 5200.2-R and DoD 5220.6 and determines whether or not to grant a clearance. The criteria for determining eligibility for a clearance includes, but is not limited to, seventeen categories listed in DoD 5200.2-R, II-1-II-3, 32 C.F.R. § 154.7 (1987) and further explicated in DoD 5200.2-R, App. I, 32 C.F.R. § 154, App. H (1987). If DISCR denies the clearance, the applicant is entitled to a written statement of reasons, an opportunity to reply in writing to those reasons and a hearing at which she can be represented by counsel and have an opportunity to cross-examine witnesses.² Finally, the Department of Defense through the Defense Central Index of Investigations maintains a record of whether DIS conducted an investigation of the applicant.

Differential Treatment of Homosexual and Heterosexual Applicants

The Department of Defense treats gay people differently than straight people in its determination of whether an applicant should receive either a Secret or Top Secret clearance. First, for Secret clearances, the Defense Department subjects all lesbian and gay applicants for clearances to expanded investigations to which it does not subject straight applicants. DISCO considers the fact that an applicant is gay, assuming there was homosexual activity within the last fifteen years, to be "information of a derogatory nature" that would result in DISCO's conducting an expanded investigation of the applicant. This expanded investigation typically results in a two and one-half month delay in DISCO's processing of the applicant's case. All applicants who apply for Secret clearance must undergo the NAC, which takes 60-65 days or approximately two months. If the applicant is gay, the expanded investigation takes another 70-75 days or approximately another two and one-half months, resulting in a total investigation time of 135-140 days or approximately four and one-half months.

The policy basis for these expanded investigations is set forth in the DIS investigation manual. DIS Manual for Personnel Security Investigations, DIS 20-1-M, July 1985, provides staff direction, operational and investigative policy, and procedural guidance for conducting personnel security investigations of applicants. DIS subjects lesbian and gay applicants to different types of investigation than it does straight applicants. DIS does not generally investigate straight applicants with respect to sexual behavior; however, it subjects all lesbian and gay applicants to investigations. The manual states that "normally DIS does not investigate allegations of heterosexual conduct between consenting adults." DIS will investigate heterosexual behavior only if it shows that the person is susceptible to coercion and blackmail, that the person has committed a criminal act, or that the person has engaged in "reckless and irresponsible conduct." DIS 20-1-M at 4-5.

However, all homosexual activity is subject to investigation. The manual states that "sexual conduct can be 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." The manual states that "such behavior includes homosexuality ..." Describing behavior that is "deviant sexual conduct," the manual lists homosexuality along with bestiality, fetishism, exhibitionism, necrophilia, nymphomania or satyriasis, masochism, sadism, pedophilia, transvestism, and voyeurism. The manual simply uses the term homosexuality as a general term that encompasses all types of homosexual experience and would include a long-term affectional, emotional, and sexual relationship between two openly gay people or a simple, casual dating relationship between two openly gay people. The manual describes homosexuality as "sexual misconduct" and "aberrant sexual behavior" and states that participation in such "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." DIS 20-1-M at 4-5.

Second, for both Secret and Top Secret clearances, DISCO refers all cases of lesbian or gay applicants to DISCR for adjudication while it does not do so for straight applicants. For Secret clearances, DISCO refers applications of lesbians and gay men to DISCR for adjudication because DISCO does not consider "derogatory" information of homosexuality to be resolvable. For Top Secret clearances, although all applicants must undergo Background Investigations, DISCO refers all cases of lesbian or gay applicants to DISCR for adjudication because it considers information regarding homosexuality to be potentially significant adverse information that requires further adjudication.

The basis for DISCO's referring all applications of lesbians and gay men for Top Secret clearances to DISCR for adjudication is set forth in DoD 5200.2-R, App. E, 32 C.F.R. § 154, App. D. (1987). This appendix provides standards for DISCO to follow to determine whether the Background Investigation for a Top Secret applicant contains significant adverse information that requires referral to DISCR. The standards incorporate the adjudicative criteria and guidelines discussed below. See DoD 5200.2-R, II-1-II-3, App. I; 32 C.F.R. § 154.7, App. H (1987). In addition, the standards state that "all indications...