Ozonoff v. Berzak, 83-1850

• Decision Date: 21 September 1984
• Docket Number: No. 83-1850,83-1850
• Citation: 744 F.2d 224
• Parties: David OZONOFF, Plaintiff, Appellee, v. William P. BERZAK, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 224

744 F.2d 224

53 USLW 2183

David OZONOFF, Plaintiff, Appellee, v. William P. BERZAK, et al., Defendants, Appellants.

No. 83-1850.

United States Court of Appeals, First Circuit.

Argued April 6, 1984.

Decided Sept. 21, 1984.

Victor D. Stone, Atty., Washington, D.C., with whom William F. Weld, U.S. Atty., Boston, Mass., Benjamin C. Flannagan, Atty., and Daniel E. Fromstein, Atty., Dept. of Justice, Washington, D.C., were on brief, for defendants, appellants.

Leonard B. Boudin, New York City, with whom Eric M. Lieberman, Judith Levin, Terry Gross, and Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York City, were on brief, for plaintiff, appellee.

Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges.

BREYER, Circuit Judge.

Dr. David Ozonoff, the plaintiff-appellee, would like to work for the World Health Organization ("WHO"), but he does not want to undergo the loyalty check that the American government performs (by agreement with WHO) before WHO will offer a job to an American citizen. The Executive Branch conducts the loyalty check pursuant to the terms of Executive Order No. 10422, 18 Fed.Reg. 239 (Jan. 9, 1953), reprinted as amended at 22 U.S.C. Sec. 287. Ozonoff brought this suit, seeking a declaration that the Executive Branch could not investigate his loyalty as a precondition to his employment at WHO, both because the President lacks the constitutional authority to promulgate the Order and because the specific terms of the Order are vaguer and broader than the first amendment allows. The district court agreed with Ozonoff on both counts and granted summary judgment in his favor. We agree with Ozonoff's second claim, namely that specific terms of the Order, as applied to WHO job applicants, violate the first amendment. Since this reason is sufficient to invalidate the Order, thereby eliminating the government's basis for the investigation in question, we affirm the district court's judgment without reaching Ozonoff's other claims.

I

Executive Order 10422 sets the terms and conditions for the loyalty investigations that Ozonoff challenges. The Order, first promulgated by President Truman in 1953, applies to Americans who seek work The Order provides that the Secretary of State, after appropriate investigation, will report to the international organization whether "there is a reasonable doubt as to the loyalty of the person involved to the Government of the United States." Order, Part II, p 1. It states that, in making this determination, the person's

                at the United Nations, see Order, Part I, p 1, or with other public international organizations that enter into special loyalty screening agreements with the United States, id., Part III.  (See Appendix for the text of the Order.)    Since 1953, WHO has maintained such an agreement with the United States (and apparently with no other nation).  See World Health Organization Manual Part II, paragraphs 130, 390, 490 (1983) (discussing "special procedures required" by the Executive Order in hiring United States citizens)
                

[a]ctivities and associations ... which may be considered ... may include one or more of the following:

(a) Sabotage, espionage, or attempts or preparations therefor, or knowingly associating with spies or saboteurs.

(b) Treason or sedition or advocacy thereof.

(c) Advocacy of revolution or force or violence to alter the constitutional form of government of the United States.

(d) Intentional, unauthorized disclosure to any person, under circumstances which may indicate disloyalty to the United States, of United States documents or United States information of a confidential or non-public character obtained by the person making the disclosure as a result of his previous employment by the Government of the United States or otherwise.

(e) Performing or attempting to perform his duties, or otherwise acting, while an employee of the United States Government during a previous period, so as to serve the interests of another government in preference to the interests of the United States.

(f) Knowing membership with the specific intent of furthering the aims of, or adherence to and active participation in, any foreign or domestic organization, association, movement, group or combination of persons, which unlawfully advocates or practices the commission of acts of force or violence to prevent others from exercising their rights under the Constitution or laws of the United States, or of any State, or which seeks to overthrow the Government of the United States or any State or subdivision thereof by unlawful means.

Order, Part II, p 2. In making a loyalty determination, the investigating agency is normally to check the files of appropriate governmental agencies, including the FBI and the Office of Personnel Management. If any "derogatory" information is disclosed, the Federal Bureau of Investigation "shall conduct a full field investigation...." Id., Part I, paragraphs 3-4. A special Loyalty Board receives the results of such investigations. After providing the job applicant with a chance to be heard, it reaches an "advisory determination" about loyalty, which it sends to the Secretary of State, who, in turn, reports the loyalty determination to the international organization.

Dr. Ozonoff, an expert in international health and health planning, has already once been subject to this type of security check. In 1970 he applied for a six-month appointment at WHO in order to prepare a WHO monograph. The FBI undertook a full background investigation; the Department of State conducted an overseas investigation; and several months later the government concluded that there were no reasonable doubts concerning his loyalty. WHO then hired him to write the monograph; he did so; and WHO officials told him they would like to hire him again, perhaps in a permanent position, in the future.

Dr. Ozonoff has again filed an employment application with WHO. He states in an unchallenged affidavit that "representatives of the World Health Organization have indicated a continuing interest in employing"

                him, and that he "wish[es] to seek and obtain employment with the World Health Organization as soon as it can be arranged conveniently and without the necessity of obtaining a loyalty-security clearance from the United States government."    Ozonoff says that the previous investigation took time, intruded upon his privacy, and injured his reputation.  He adds that the loyalty screening program inhibits him from joining the organizations he wishes to join and from expressing views or opinions that he may hold.  He also fears that an investigation may end up depriving him of a WHO job.  WHO, however, will not proceed with his application until he submits to a loyalty screening, and American authorities have told him that he will need a new clearance to be eligible for renewed employment with WHO.  Thus, he must undergo the loyalty screening or lose the job possibility.  Faced with this standoff, Dr. Ozonoff brought his federal court suit and obtained a judgment that effectively forbids the loyalty investigation--a judgment that the government challenges on this appeal
                

II

The government first argues that the Order does not threaten to cause Ozonoff any real, immediate, or direct injury. In its view, for a court to hear his claim now would violate principles of "standing"--principles which promote sound judicial decisions by assuring that legal questions are presented not abstractly, but embedded in concrete factual contexts, and which minimize friction between courts and individuals, groups, or other governmental bodies by assuring that courts act only when the threat of injury to a plaintiff is real. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472-74, 102 S.Ct. 752, 758-59, 70 L.Ed.2d 700 (1982).

The principles of standing determine whether a particular plaintiff is the type of person whom the law intends to protect against the type of harm of which he complains. They are of two sorts--constitutional and 'prudential.'

The constitutional standing rules seek to ensure that a concrete Article III "case or controversy" exists by focusing on plaintiff's "harm." They ask whether the plaintiff has "in fact" suffered a redressable injury as a result of the defendant's actions. In the words of the Supreme Court, the plaintiff must demonstrate that his injuries " 'fairly can be traced to the challenged action of the defendant,' or put otherwise, that the exercise of the Court's remedial powers would redress the claimed injuries." Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 74, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978) (citations omitted). This language imposes three fairly strict requirements, namely: (1) an injury; (2) a causal connection between the injury and the complained-of acts; and (3) redressability. See, e.g., Valley Forge Christian College, supra; Munoz-Mendoza v. Pierce, 711 F.2d 421, 424 (1st Cir.1983).

A plaintiff who has established the constitutional element of standing must go on to convince a court that various 'prudential' considerations also warrant hearing the case. See, e.g., Valley Forge Christian College, 454 U.S. at 474-75, 102 S.Ct. at 759-60; Warth v. Seldin, 422 U.S. 490, 500-01, 95 S.Ct. 2197, 2205-06, 45 L.Ed.2d 343 (1975). He must show that his "injury" is of a sort against which the law seeks to protect him. See Valley Forge Christian College, 454 U.S. at 474-75, 102 S.Ct. at 759-60. He may do so, for example, by showing that the harm of which he complains amounts to a "common law" injury, such as a tort. See CBS, Inc. v. United States, 316 U.S. 407, 422, 62 S.Ct. 1194, 1202, 86 L.Ed. 1563 (1942); Stewart, The Reformation of American Administrative Law, 88 Harv.L.Rev. 1667, 1723-25 (1975). Or he may show that his claim falls "within 'the zone of interests to be protected or regulated by the statute or...