Wentworth v. Laird

• Citation: 348 F. Supp. 1153
• Decision Date: 26 May 1972
• Docket Number: Civ. A. No. 149-71.
• Parties: Benning WENTWORTH, Plaintiff, v. Melvin R. LAIRD et al., Defendants.
• Court: U.S. District Court — District of Columbia

348 F. Supp. 1153

Benning WENTWORTH, Plaintiff, v. Melvin R. LAIRD et al., Defendants.

Civ. A. No. 149-71.

United States District Court, District of Columbia.

May 26, 1972.

Dennis M. Flannery, Washington, D. C., for plaintiff.

Garvin Lee Oliver, Benjamin C. Flannagan, U. S. Attys., for defendants.

MEMORANDUM

JOHN H. PRATT, District Judge.

This is a suit for a declaratory judgment and injunctive relief for the purpose, among others, of setting aside defendants' withdrawal of plaintiff's SECRET security clearance as an employee of Bell Laboratories. After two hearings before an Examiner and two appeals to the defendants' Appeal Board, plaintiff, by letter dated July 17, 1970, was notified that his security clearance had been withdrawn because of the Appeal Board's determination that "it is not clearly consistent with the national interest to grant security clearance for the applicant, Benning Wentworth, at any level of classified defense information."

The standard that access to classified national defense information is to be permitted only when it is "clearly consistent with the national interest" is set forth in Executive Order 10865, Section 2. The Executive Order is implemented by Department of Defense Directive 5220.6 dated December 7, 1966, which lists some twenty-one criteria (Section VI) which "may, in the light of the surrounding circumstances, be the basis for denying or revoking a clearance." Among the criteria are the following:

"Any criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, habitual use of intoxicants to excess, drug addiction or sexual perversion." (Criterion P)

"Any facts or circumstances which furnish reason to believe that the individual may be subjected to coercion, influence or pressure which may be likely to cause action contrary to the national interest * * *" (Criterion S)

It is these criteria which plaintiff allegedly has not met and which are the basis for the successive Determinations of the Examiner and the Appeal Board. The matter came before us on cross-motions by the parties for summary judgment. After a careful review of the entire record including the transcript of the two evidentiary hearings before the Examiner, the transcript of the two arguments before the Appeal Board, and the depositions of William J. Scanlon, Director of the Industrial Security Clearance Review Office (ISCRO) and Examiner Raymond A. Waldman, we grant plaintiff's motion for summary judgment. Heeding the comment of our Court of Appeals in Adams v. Laird, 136 U.S. App.D.C. 388, 392 n.2, 420 F.2d 230, 234 n.2 (1969), cert. denied 397 U.S. 1039, 90 S.Ct. 1360, 25 L.Ed.2d 650 (1970), we hereinafter set forth some of the reasons for our action.

Admittedly, our function as a reviewing Court is to be exercised within narrow limits and we are not to determine de novo the merits of whether an applicant for security clearance is entitled to access. Since the grant or denial of clearance is an executive function, we have no authority to substitute our judgment for that of the executive officials who have the responsibility under the law to make such determinations. Our sole function is to determine whether or not the administrative process accorded a fair hearing in accordance with procedural due process. Bearing in mind the limited scope of our jurisdiction to review and after a reading of the entire record, we have concluded that plaintiff did not receive a fair and impartial adjudication.

First, the fact that plaintiff is an admitted on-going homosexual was accepted, without more, as being an adequate basis for the withdrawal of access. Aside from rather passing references to plaintiff's alleged "susceptibility as a target" for possible blackmail, it is clear that the Determinations of the Examiner and of the Appeal Board place almost complete stress on plaintiff's homosexual condition. Mr. Scanlon, Director of ISCRO, frankly admitted on deposition that it was conceivable that an on-going homosexual might be granted clearance, but that he could not think of a single case where clearance had been granted. Considering the fact that Mr. Scanlon's experience with the Industrial Security Clearance Program dates back to 1...