Stehney v. Perry, No. 96-5036

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtSCIRICA
Citation101 F.3d 925
Parties12 IER Cases 495 Ann K. STEHNEY, Appellant, v. William J. PERRY, Secretary of Defense; J. Michael McConnell, Director, National Security Agency/Central Security Service; Lee Hanna, Former Chief of Management Services, National Security Agency/Central Security Service; Jeanne Zimmer, Chief of Management Services, National Security Agency/Central Security Service; The Institute For Defense Analyses, Center For Communications Research, a Delaware Corporation; David M. Goldschmidt, Director, The Institute for Defense Analyses, Center for Communications Research.
Decision Date03 December 1996
Docket NumberNo. 96-5036

Page 925

101 F.3d 925
12 IER Cases 495
Ann K. STEHNEY, Appellant,
v.
William J. PERRY, Secretary of Defense; J. Michael
McConnell, Director, National Security Agency/Central
Security Service; Lee Hanna, Former Chief of Management
Services, National Security Agency/Central Security Service;
Jeanne Zimmer, Chief of Management Services, National
Security Agency/Central Security Service; The Institute For
Defense Analyses, Center For Communications Research, a
Delaware Corporation; David M. Goldschmidt, Director, The
Institute for Defense Analyses, Center for Communications Research.
No. 96-5036.
United States Court of Appeals,
Third Circuit.
Argued Aug. 8, 1996.
Decided Dec. 3, 1996.

Page 927

Stephen Z. Chertkof, (argued), Kator, Scott & Heller, Washington, D.C. and Frank Askin, Constitutional Litigation Clinic, Rutgers Law School, Newark, New Jersey, for Appellant.

Freddi Lipstein, (argued) Barbara L. Herwig, United States Department of Justice Appellate Staff, Civil Division, Washington, D.C., for Federal Appellees.

Keith P. Jones, (argued), Hill Wallack, Princeton, New Jersey, for Appellees, the Institute for Defense Analyses and David M. Goldschmidt.

Page 928

Before: MANSMANN and SCIRICA, Circuit Judges and DIAMOND, District Judge. *

OPINION OF THE COURT

SCIRICA, Circuit Judge.

The National Security Agency revoked Ann Stehney's security clearance after she refused to submit to a polygraph examination. As a result, the Institute for Defense Analyses terminated her employment. Alleging constitutional and statutory violations, Stehney sought a writ of mandamus and other appropriate relief. The district court dismissed her suit under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) and Stehney now appeals.

I. Facts and Procedural History

Ann Stehney is a mathematician. In 1982, she left a tenured position at Wellesley College to work for the Institute for Defense Analyses at the Center for Communications Research in Princeton, New Jersey. The Institute is a private think tank that conducts cryptological research--the making and breaking of secret codes--as a contractor for the National Security Agency, an agency within the Department of Defense that gathers and protects intelligence information related to national security. To conduct this research, Institute employees like Stehney require access to classified information. Before granting access, NSA conducts a thorough background investigation of each person and makes "an overall common sense determination." DCID 1/14, Annex A. 1 The NSA background investigation includes a review of personal history, criminal, financial and medical records, and at least one interview. NSA must ensure that access to classified information is "clearly consistent with the national security," and "any doubt concerning a person's continued eligibility must be resolved in favor of the national security." NSA/CSS Reg. 122-06.

In 1982 NSA investigated Stehney and granted her a security clearance. NSA is authorized by statute and regulations to use polygraph examinations as part of its investigations, see 29 U.S.C. § 2006(b) and DCID 1/14 Annex A, and since 1953 has used polygraphs in all investigations of NSA employees. Dep't. of Defense, The Accuracy and Utility of Polygraph Testing 11 (1984). 2 But in 1982 when Stehney was hired by the Institute, NSA did not ask her to take a polygraph examination because it believed that requiring polygraph examinations might impede recruitment by NSA contractors. Shortly after Stehney was hired, the Department of Defense changed this policy and authorized use of polygraph examinations for all persons with access to classified information, including contractor employees.

In 1989, Stehney signed a Contractor Employee Advisory Handout informing her that she was "subject to an aperiodic review" of her security clearance, that review would be conducted with the aid of a polygraph examination, and that "[f]ailure to consent to an aperiodic polygraph examination may result in denial of continued access" to classified information. 3

Page 929

In 1992, NSA asked Stehney to submit to a polygraph examination. Stehney refused because she believes polygraph examinations are scientifically unsound and inherently unreliable. NSA revoked Stehney's security clearance because she refused to take the polygraph examination. Shortly thereafter, the Institute terminated Stehney's employment because she no longer possessed a security clearance.

After exhausting administrative remedies, Stehney filed suit in the United States District Court for the District of New Jersey against Secretary of Defense William J. Perry, two current and one former NSA administrators, the Institute for Defense Analyses, and its director David Goldschmidt. Stehney's complaint alleged that: NSA failed to follow its binding agency regulations during the security clearance revocation process (Count 1); NSA deprived her of a constitutionally protected interest without due process of law (Count 2); NSA's requirement that she submit to a polygraph examination violated the Fourth Amendment (Count 3); NSA's policy of exempting certain mathematicians from the polygraph requirement denied her equal protection under the law (Count 4); NSA's and the Institute's policies requiring polygraph examinations violated New Jersey employment law (Count 5); and the Institute's failure to assist Stehney in securing an exemption from the polygraph requirement in the same manner it assisted similarly situated male employees violated New Jersey anti-discrimination law (Count 6). Stehney sought a writ of mandamus and other appropriate relief to require NSA to reinstate her clearance or reconsider its revocation and to require the Institute to reinstate her employment.

The district court dismissed Count 1 under Fed.R.Civ.P. 12(b)(1) because Stehney lacked standing, her suit was barred by the political question doctrine and by sovereign immunity, and because she had not met the requirements for a writ of mandamus under 28 U.S.C. § 1361. The district court dismissed Stehney's constitutional claims in Counts 2, 3, and 4 under Fed.R.Civ.P. 12(b)(6) for failure to state a claim for which relief can be granted. The court dismissed Count 5 because her state law claim was preempted by federal law and declined to exercise supplemental jurisdiction over Count 6 because all federal claims had been dismissed. Stehney v. Perry, 907 F.Supp. 806, (D.N.J.1995). Stehney now appeals the dismissal of Counts 1, 2, 4, 5, and 6.

II. Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. § 1291. Although we typically review mandamus decisions for abuse of discretion, we review non-discretionary elements de novo. See Arnold v. BLaST Intermediate Unit 17, 843 F.2d 122 (3d Cir.1988). The remaining issues on appeal are subject to plenary review. Hutchins v. I.R.S., 67 F.3d 40, 42 (3d Cir.1995) (dismissal for standing subject to plenary review); State of New Jersey v. United States, 91 F.3d 463, 466 (3d Cir.1996) (dismissal of political question and dismissal pursuant to Fed.R.Civ.P. 12(b)(6) subject to plenary review); Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 (3d Cir.1996) (dismissal for sovereign immunity subject to plenary review); Coleman v. Kaye, 87 F.3d 1491, 1497 (3d Cir.1996) (jurisdiction questions subject to plenary review); Susan N. v. Wilson School Dist., 70 F.3d 751, 763 (3d Cir.1995) (dismissal for preemption subject to plenary review).

III. Threshold Issues

A. Standing

The district court dismissed Stehney's claim that NSA failed to follow its regulations in revoking her security clearance because it found that she lacked standing. Because Stehney was no longer employed at the Institute, the district court observed she no longer possessed the "need to know" classified information, a prerequisite for security clearance. Nor did the district court believe the Institute was under an obligation to rehire Stehney even if her security clearance were restored. In these circumstances, the district court concluded her claim was based

Page 930

on speculation "about what a third-party might do in hypothetical future circumstances," and therefore insufficient to establish standing and to warrant an effective remedy. Stehney, 907 F.Supp. 806, 815-16. We disagree.

In Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), an employee was dismissed from a private company because of the revocation of his government security clearance. The Supreme Court found the plaintiff had standing to challenge the security clearance decision: "We note our agreement ... that petitioner has standing to bring this suit.... Respondents' actions, directed at petitioner as an individual, caused substantial injuries, and were they the subject of a suit between private persons, they could be attacked as an invasion of a legally protected right to be free from arbitrary interference in private contractual relationships." Greene v. McElroy, 360 U.S. at 493 n. 22, 79 S.Ct. at 1412 n. 22 (citations omitted).

Greene is factually indistinguishable from this case. Stehney too has suffered a substantial injury--loss of her employment. She too was fired because of the government's allegedly arbitrary interference in her private contractual relationship with the Institute. Of course, we recognize that Greene was decided in 1959 and since then, the Supreme Court has clarified the test for standing. We will look, therefore, at the recently articulated standard.

The Supreme Court established a three-part test for Article III standing in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982): "Art. III requires the party who invokes the court's authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury fairly can be traced to the...

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125 practice notes
  • Evangelical Lutheran Church in America v. Immigration and Naturalization Service, Civil Action 02-01297 (HHK) (D. D.C. 10/30/2003), Civil Action 02-01297 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 30, 2003
    ...347 U.S. 260, 268 (1954) (distinguishing between the failure to use discretion and the exercise of same); cf. Stehney v. Perry, 101 F.3d 925, 933 (3d Cir. 1996) (noting that, although a decision may be "committed to agency discretion by law," a court may still review the decision to determi......
  • Semper v. Curtis, No. 13–2582.
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    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 24, 2014
    ...Four on jurisdictional grounds. In any event, a writ of mandamus also represents an extraordinary remedy. See, e.g., Stehney v. Perry, 101 F.3d 925, 934 (3d Cir.1996) (“ ‘It is not disputed that the remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.’ ”) (qu......
  • Semper v. Gomez, No. 13-2582
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 24, 2014
    ...Four on jurisdictional grounds. In any event, a writ of mandamus also represents an extraordinary remedy. See, e.g., Stehney v. Perry, 101 F.3d 925, 934 (3d Cir. 1996) ("'It is not disputed that the remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.'" (quot......
  • Grand Jury, In re, Nos. 97-7016
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 25, 1997
    ...described in Wheeler are the three which are referred to most commonly in discussions of prudential standing. See, e.g., Stehney v. Perry, 101 F.3d 925, 930-31 (3d Cir.1996) (applying Wheeler considerations, finding that litigant satisfied all three, and concluding that litigant had prudent......
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121 cases
  • Evangelical Lutheran Church in America v. Immigration and Naturalization Service, Civil Action 02-01297 (HHK) (D. D.C. 10/30/2003), Civil Action 02-01297 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 30, 2003
    ...347 U.S. 260, 268 (1954) (distinguishing between the failure to use discretion and the exercise of same); cf. Stehney v. Perry, 101 F.3d 925, 933 (3d Cir. 1996) (noting that, although a decision may be "committed to agency discretion by law," a court may still review the decision to determi......
  • Semper v. Curtis, No. 13–2582.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 24, 2014
    ...Four on jurisdictional grounds. In any event, a writ of mandamus also represents an extraordinary remedy. See, e.g., Stehney v. Perry, 101 F.3d 925, 934 (3d Cir.1996) (“ ‘It is not disputed that the remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.’ ”) (qu......
  • Semper v. Gomez, No. 13-2582
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 24, 2014
    ...Four on jurisdictional grounds. In any event, a writ of mandamus also represents an extraordinary remedy. See, e.g., Stehney v. Perry, 101 F.3d 925, 934 (3d Cir. 1996) ("'It is not disputed that the remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.'" (quot......
  • Grand Jury, In re, Nos. 97-7016
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 25, 1997
    ...described in Wheeler are the three which are referred to most commonly in discussions of prudential standing. See, e.g., Stehney v. Perry, 101 F.3d 925, 930-31 (3d Cir.1996) (applying Wheeler considerations, finding that litigant satisfied all three, and concluding that litigant had prudent......
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    ...assert only that NJDEP’s issuance of the permit here has a disproportionate efect on certain minorities. See, e.g. , Stehney v. Perry , 101 F.3d 925, 937 (3d Cir. 1996) (“[A] facially neutral policy does not violate equal protection solely because of disproportionate efects.”). “[A]n invidi......
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    ...assert only that NJDEP’s issuance of the permit here has a disproportionate efect on certain minorities. See, e.g., Stehney v. Perry, 101 F.3d 925, 937 (3d Cir. 1996) (“[A] facially neutral policy does not violate equal protection solely because of disproportionate efects.”). “[A]n invidiou......

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