HIGH TECH GAYS v. DEFENSE IND. SEC. CLEARANCE OFF. No. 87-2987.
895 F.2d 563 (1990)
HIGH TECH GAYS; Timothy Dooling, and all others similarly situated; Joel Crawford; and Robert Weston, Plaintiffs-Appellees, v. DEFENSE INDUSTRIAL SECURITY CLEARANCE OFFICE; Director, Defense Industrial Security Clearance Office; Defense Investigative Service; Director of Defense Investigative Service; Secretary of Defense, Defendants-Appellants.
United States Court of Appeals, Ninth Circuit.
Decided February 2, 1990.
Jay S. Bybee, Appellate Staff, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendants-appellants.
Richard Gayer, San Francisco, Cal., for plaintiffs-appellees.
Matthew A. Coles, San Francisco, Cal., for amicus, American Civ. Liberties Union of Northern California, Inc.
Stephen V. Bomse, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., for amicus, National Gay Rights Advocates.
Before BRUNETTI and LEAVY, Circuit Judges, and CURTIS, Senior District Judge.
BRUNETTI, Circuit Judge:
The plaintiffs-appellees challenge whether the Department of Defense's (DoD) policy of subjecting all homosexual applicants for Secret and Top Secret clearances to expanded investigations and mandatory adjudications, and whether the alleged DoD policy and practice of refusing to grant security clearances to known or suspected gay applicants, violates the equal protection component of the Fifth Amendment's Due Process Clause and the rights of free association guaranteed by the First Amendment.
In analyzing the equal protection challenge, the district court concluded that "gay people are a `quasi-suspect class' entitled to heightened scrutiny," High Tech Gays v. Defense Industrial Security Clearance Office,
This appeal involves a class action
DISCO will grant a Secret clearance if no adverse or questionable information is developed by the NAC. If adverse information arises from the NAC, DIS conducts an expanded investigation to substantiate or disprove the adverse or questionable information and conducts a personal interview of the applicant. 32 C.F.R. § 154.8(i)(2), (j). 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 BI 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 (1979), provides guidelines for DISCO in determining whether there is significant adverse information that prevents the granting of a clearance. 32 C.F.R. pt. 154, app. D.
For both Secret and Top Secret clearances, if DISCO 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 (DISCR) for review and adjudication. 32 C.F.R. §§ 155.2(c), .7(a). DISCR evaluates the application under the standards and criteria set forth in the DoD directives and determines whether or not to grant a clearance. 32 C.F.R. § 155.7(b).
Section 154.7 provides a list of criteria for determining eligibility for a clearance under this standard.
In appendix H, each category is further broken down into sections describing disqualifying factors and mitigating factors. The disqualifying factors under sexual misconduct include conduct involving acts performed in open or in public places; acts performed with minors or animals; acts involving inducement, force, coercion, or violence; prostitution; sexual harassment; self-mutilation; spouse swapping or group sex orgies; adultery that is recent, frequent and likely to continue and has adverse effect in the work place; conduct determined to be criminal in the locale in which it occurred; and deviant or perverted sexual behavior which may indicate a mental or personality disorder (e.g., transsexualism, transvestism, exhibitionism, incest, child molestation, voyeurism, bestiality, or sodomy). 32 C.F.R. pt. 154, app. H. The disqualifying factors also include whether such conduct has been recent; whether it increases the applicant's vulnerability to blackmail, coercion or pressure; and whether the applicant is likely to repeat the conduct in the future. Id. Mitigating factors include whether the conduct occurred on an isolated basis, the age of the applicant at the time of the act, whether the applicant has completed professional therapy, and whether the sexual misconduct can no longer form the basis for vulnerability to blackmail, coercion or pressure. Id.
"Participation in 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." Id. para. 4-11, at 4-5, 4-6. At a minimum the investigators are instructed to determine the following:
While DIS will expand an investigation with a heterosexual if circumstances warrant, it is undisputed that for both Secret and Top Secret clearances, DISCO refers all homosexual applicants to DISCR for an expanded investigation and adjudication. However, the DIS 20-1-M states that
Id., para. 5-27, at 5-25.
The plaintiffs brought this action in district court claiming
Third Amended Complaint, at 14.
The suit proceeded as a class action in the district court with three individually named plaintiffs: Timothy Dooling, Joel Crawford and Robert Weston.
Plaintiff Dooling is a homosexual who applied for a Secret industrial clearance on May 2, 1983. On March 22, 1984, DISCO issued a memorandum recommending that Dooling be considered ineligible for a security clearance and forwarded the case to DISCR. DISCR eventually granted Dooling a Secret clearance in May 1984.
Plaintiff Crawford is a homosexual who applied for Secret clearance in December 1981. After DISCO recommended that Crawford be considered ineligible for a Secret clearance, DISCR denied Crawford's application for a Secret clearance based on evidence of past drug abuse.
Plaintiff Weston, a homosexual, has a Secret clearance and in 1984 submitted an application for Top Secret clearance as required for his job at Lockheed Missiles & Space Co. Lockheed never forwarded his application to the DoD because his application revealed he belonged to a gay organization.
The plaintiffs sought an order: declaring unconstitutional and enjoining the DISCO policy of refusing to grant Secret clearances to gay people who have participated in homosexual activity within the past fifteen years and requiring that applications of gay people be forwarded to DISCR for adjudication; declaring unconstitutional and enjoining the DIS practice of subjecting gay applicants to in-depth and time-consuming investigations (required by DIS Manual for Personnel Security Investigations); declaring unconstitutional the five reasons DISCO used to recommend denial of plaintiff Dooling's clearance; and declaring unconstitutional DISCR's processing of plaintiff Crawford's application subsequent to the filing of this lawsuit.
The plaintiffs and the DoD each moved for summary judgment and upon considering the cross-motions, the district court denied the DoD's motion for summary judgment and granted the plaintiffs' motion.
The DoD then filed a motion for reconsideration and a motion for a stay pending appeal. The motion for reconsideration was based on new evidence from several sources indicating that hostile intelligence agencies target persons who are especially vulnerable, and that among others, persons who are homosexuals are considered vulnerable by these agencies. The district
Standard of Review
The grant of summary judgment is reviewed de novo. No GWEN Alliance of Lane County, Inc. v. Aldridge,
"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center,
In Bolling v. Sharpe,
Id. (footnote omitted).
It is thus clear that there is an equal protection component of the Due Process Clause of the Fifth Amendment which applies to the federal government. See id. See also United States v. Sperry Corp., ___ U.S. ___, 110 S.Ct. 387, 396, 107 L.Ed.2d 290 (1989) (discussing "the equal protection component of the Due Process Clause" in reviewing the constitutionality of a federal statute); Immigration & Naturalization Serv. v. Pangilinan,
In this case, the plaintiffs challenge the validity of the DoD Security Clearance Regulations under the equal protection component of the Fifth Amendment; specifically, that the DoD security clearance regulations discriminate against gay people. In considering such Fifth Amendment claims, the Supreme Court has held:
Wiesenfeld, 420 U.S. at 638 n. 2, 95 S.Ct. at 1228 n. 2 (quotations and citations omitted).
It is well established that there are three standards we may apply in reviewing the plaintiffs' equal protection challenge to the DoD Security Clearance Regulations: strict scrutiny, heightened scrutiny, and rational basis review. See Cleburne, 473 U.S. at 440-41, 105 S.Ct. at 3254-55. The plaintiffs assert that homosexuality should be added to the list of suspect or quasi-suspect classifications requiring strict or heightened scrutiny. We disagree and hold that the district court erred in applying heightened scrutiny to the regulations at issue and that the proper standard is rational basis review. Accord Ben-Shalom v. Marsh,
The Supreme Court has ruled that homosexual activity is not a fundamental right protected by substantive due process and that the proper standard of review under the Fifth Amendment is rational basis review. Bowers v. Hardwick,
Id. at 195, 106 S.Ct. at 2846.
There has been a repudiation of much of the substantive gloss that the Court has placed on the Due Process Clauses of the Fifth and Fourteenth Amendments. See id. at 194-95, 106 S.Ct. at 2846. If for federal analysis we must reach equal protection of the Fourteenth Amendment by the Due Process Clause of the Fifth Amendment, see Bolling, 347 U.S. at 499, 74 S.Ct. at 694, and if there is no fundamental right to engage in homosexual sodomy under the Due Process Clause of the Fifth Amendment, see Hardwick, 478 U.S. at 194, 106 S.Ct. at 2846, it would be incongruous to expand the reach of equal protection to find a fundamental right of homosexual conduct under the equal protection component of the Due Process Clause of the Fifth Amendment. See Bolling, 347 U.S. at 500, 74 S.Ct. at 694.
Other circuits are in accord and have held that although the Court in Hardwick analyzed the constitutionality of the sodomy statute on a due process rather than equal protection basis, by the Hardwick majority holding that the Constitution confers no fundamental right upon homosexuals to engage in sodomy, and because homosexual conduct can thus be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes. See Ben-Shalom, 881 F.2d at 464-65; Woodward, 871 F.2d at 1076; Padula, 822 F.2d at 103.
We understood Hatheway's claim to be an equal protection argument, but did not reach the question whether homosexuals were a suspect or quasi-suspect class. Id. at 1382 n. 6. However, we noted that "heightened scrutiny is independently required where a classification penalizes the exercise of a fundamental right," id. at 1382 n. 6 (citation omitted), and we applied an intermediate level of review based upon "the similarity of the interests at stake" in Hatheway and an earlier Fifth Amendment substantive due process case, Beller v. Middendorf,
Beller has since been overruled by Hardwick. Because Beller is no longer good law, Hatheway's holding that homosexual conduct is a protected fundamental right for equal protection purposes is no longer valid.
There is further support for our holding that homosexuals are not a suspect or quasi-suspect class as specifically applied to the plaintiffs' challenge to the DoD Security Clearance Regulations.
Cleburne, 473 U.S. at 440-41, 105 S.Ct. at 3254 (quotation omitted).
It is apparent that while the Supreme Court has identified that legislative classifications based on race, alienage, or national origin are subject to strict scrutiny and that classifications based upon gender or illegitimacy call for a heightened standard, the Court has never held homosexuality to a heightened standard of review.
To be a "suspect" or "quasi-suspect" class, homosexuals must 1) have suffered a history of discrimination; 2) exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and 3) show that they are a minority or politically powerless, or alternatively show that the statutory classification at issue burdens a fundamental right. Bowen v. Gilliard,
While we do agree that homosexuals have suffered a history of discrimination, we do not believe that they meet the other criteria. Homosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender, or alienage, which define already existing suspect and quasi-suspect classes. Accord Woodward, 871 F.2d at 1076. The behavior or conduct
Moreover, legislatures have addressed and continue to address the discrimination suffered by homosexuals on account of their sexual orientation through the passage of anti-discrimination legislation.
Our review compels us to agree with the other circuits that have ruled on this issue and to hold that homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny under the equal protection component of the Due Process Clause of the Fifth Amendment.
Because the district court erred in granting the plaintiffs' motion for summary judgment by applying heightened scrutiny in its equal protection analysis, we now review the plaintiffs' and defendants' cross-motions for summary judgment applying rational basis scrutiny.
Cross-Motions for Summary Judgment
Great Hawaiian Fin. Corp. v. Aiu,
If the burden of persuasion at trial would be on the nonmoving party, the party moving for summary judgment may satisfy its burden of production under Rule 56 by submitting affirmative evidence that negates an essential element of the nonmoving party's claim or by demonstrating to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim. Celotex Corp. v. Catrett,
We view the materials on file in the light most favorable to the nonmoving party. Ashton v. Cory,
The plaintiffs first point to the inability of the DoD to find any evidence tending to show that homosexual applicants for clearances have "succumbed to blackmail," "failed to safeguard classified information," or that as a class are a "worse security risk" than heterosexual applicants. Plaintiffs' Brief Supporting Motion for Summary Judgment at 3.
Under a rational basis review as promulgated by the Supreme Court in Cleburne, the DoD is not required to conclusively establish that homosexuals have transmitted classified information for its policy of subjecting homosexual applicants to expanded investigations to be constitutional. The DoD need only show a rational basis for its policy and that its policy is rationally related to the legitimate governmental interest of protecting classified material for it to be constitutional. Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254.
Next, the plaintiffs suggest that other "governmental evidence" conclusively demonstrates that homosexuals do not pose a security risk. Relying on the April 1985 hearings before the Senate Permanent Subcommittee on Investigations, the plaintiffs point out that of forty espionage cases, only two involved homosexuals, neither of which involved a blackmail attempt. Plaintiffs' Brief Supporting Motion for Summary Judgment at 6.
The report the plaintiffs refer to consists of unclassified summaries of a limited number of espionage cases involving individuals who have been convicted of compromising United States classified information. Federal Government Security Programs, 1985: Hearings Before the Permanent Subcomm. on Investigations of the Senate Comm. on Governmental Affairs, 99th Cong., 1st Sess. 99-166 (1985) (DIA report). Although these case studies involve actual circumstances where DoD and DoD-related classified information was compromised, the report is not a study of all the significant espionage cases involving homosexuals. Moreover, one of the reported cases points out that homosexuals are targeted by the KGB:
Id. at 916.
The plaintiffs' next contention is that their "factual study," illustrating that only two of the nineteen homosexual applicants for security clearance subjected to the expanded investigations were denied security clearances, conclusively establishes that homosexuals who limit their sexual activity to consenting adults in private are a good security risk. Plaintiffs' Brief Supporting Motion for Summary Judgment at 6-7. This contention is meritless. The plaintiffs' "factual study" of nineteen applications is not a large enough sample of homosexual applicants for security clearances to be able to draw such a broad conclusion. Even if the plaintiffs' contention had merit, it would take an expanded investigation of all homosexual applicants to determine which ones limit their sexual activities to consenting adults.
The plaintiffs' last contention is that the DoD "is more concerned with punishing homosexual clearance applicants than with treating them rationally regarding blackmail." Plaintiffs' Brief Supporting Motion for Summary Judgment at 9. In support, the plaintiffs rely on the deposition of Richard
The plaintiffs' conclusion is without merit. A review of the deposition reveals that one of the conferences attended by Mr. Olinger concerned a specific espionage case and the other conference involved a discussion of statistical matters on processing security clearances. Deposition of Robert Olinger at 34 and 47. Given the limited agenda of these two conferences, it is apparent that the security risk of homosexuals would not be discussed.
We are convinced the DoD has met its burden of persuasion under Celotex by demonstrating that its investigatory policies and procedures for homosexuals are rationally related to permissible ends, and that the plaintiffs have failed to submit affirmative evidence to negate DoD's evidence. The DoD's justification for their policy of subjecting homosexual applicants to expanded investigations involves a two-step analyses: First, the DoD sought to establish that counterintelligence agencies target homosexuals; and, second, because homosexuals are targeted, the DoD subjects a homosexual applicant to an expanded investigation to determine if the applicant is susceptible to coercion or blackmail or otherwise vulnerable to counterintelligence efforts.
To establish that homosexuals are targeted by counterintelligence agencies, the DoD presented the following evidence. John Donnelly, Assistant Deputy Under Secretary of Defense for Counterintelligence and Security, who is directly responsible for ensuring that the Department's personnel security program remains responsive to the threats posed by hostile intelligence agencies, concluded that the recruitment of individuals by hostile intelligence agencies often involves the "exploitation of what those agencies consider to be human weaknesses, indiscretions and vices," and that with great consistency sexuality is considered a "potentially exploitable vulnerability." He states that hostile intelligence agencies attempt to segregate those with alcohol or drug problems, financial problems, a known disregard for security, and/or those who can be exploited sexually; and that although blackmail may sometimes be used after the person is already compromised, "generally the initial efforts of exploitation centers around enticing the targeted individual with money, sexual favors, treatment for alcoholism, etc." While he notes that this does not mean that hostile intelligence agencies always seek out homosexuals as targets, they usually spot individuals with the desired access and then assess them in order to determine the most effective approach. John Donnelly's Declaration in Support of DoD's Motion for New Trial (Reconsideration) at 3.
Major Francis R. Short, USMC, Judge Advocate in the United States Marine Corps, who served as assistant trial counsel in the court-martial of Sergeant Clayton J. Lonetree, a marine convicted of espionage, stated that at the trial of Sergeant Lonetree, the court accepted Mr. John Barron of Annandale, Virginia as an expert
Mr. Barron's testimony addressed the area of homosexuality on two occasions. While discussing the characteristics the
Major Short Declaration at 1-2 (emphasis added). Barron also specifically cited an example of just such an entrapment operation, in which the KGB entrapped a Canadian ambassador to the Soviet Union through the exploitation of a homosexual relationship. The DoD also relies on Barron's book, KGB: The Secret Work of Soviet Secret Agents (1974), which states that "the KGB is not primarily interested in homosexuals because of their presumed susceptibility to blackmail. In its judgment, homosexuality often is accompanied by personality disorders that make the victim potentially unstable and vulnerable to adroit manipulation." Id. at 280.
The DoD also presented extracts of sworn statements of Sergeant Lonetree, provided by Lonetree to Special Agents of the Naval Investigative Service, relating one meeting with his Soviet control Sasha (later identified as Aleksei Yefimou, an officer of the KGB), where Sasha specifically inquired as to homosexuals:
Statement of Sgt. Lonetree, Dec. 29, 1986 (emphasis added). On at least one other occasion, "Sasha also wanted to know what marines had problems with alcohol or drugs or those who were homosexual." Statement of Sgt. Lonetree, Dec. 28, 1986, attachment to Major Short Declaration (emphasis added).
Finally, the DoD relies on both plaintiff Dooling's admission that on one occasion someone attempted to blackmail him because of his sexual orientation, and Richard E. Fay, who described the 1979 Madsen espionage case involving the compromise of classified information by a homosexual. Dooling's Declaration in Support of Plaintiffs' Reply Brief on Motion to Certify Class; Fay Declaration in Support of DoD's Motion for Summary Judgment.
The DoD has determined what groups are targeted by hostile intelligence efforts. If an applicant falls within a targeted group — like homosexuals — the DoD subjects the applicant to an expanded investigation. The expanded investigation determines whether the applicant is susceptible to coercion or otherwise vulnerable to hostile intelligence efforts. See Padula, 822 F.2d at 104 ("criminalization of homosexual conduct coupled with the general public opprobrium toward homosexuality, [subjects] even `open' homosexuals, to the risk of possible blackmail to protect their partners, if not themselves"); and McKeand v. Laird,
Special deference must be given by the court to the Executive Branch when adjudicating matters involving their decisions on protecting classified information:
Department of Navy v. Egan,
No one has the "right" to a security clearance. Id. 108 S.Ct. at 824. We recognize that "[t]he attempt to define not only
Since the DoD has met its initial burden of production, by negating an essential element of the plaintiffs' claim, the burden of production shifted to the plaintiffs to "produce evidentiary materials that demonstrate the existence of a `genuine issue' for trial." Celotex, 477 U.S. at 331, 106 S.Ct. at 2557 (Brennan, J., dissenting). Thus, it was up to the plaintiffs to meet the issue that the expanded investigations were not, in fact, rationally related to national security concerns.
We conclude that the plaintiffs' affidavits do not raise genuine issues as to any fact material to the alleged constitutional violation, but merely raise an issue as to the alleged irrationality of the KGB's opinion on homosexual behavior. The plaintiffs' evidence is not material to the DoD's basis for expanded investigations of homosexual applicants — that homosexuals are targeted by counterintelligence agencies. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510 (only disputes over the outcome of the suit under the governing law will properly preclude entry of summary judgment).
For example, the plaintiffs rely on a resolution of the American Psychological Association which states that homosexuality "implies no impairment in judgment, stability, reliability or general social or vocational capabilities." Resolution of American Psychological Association (January 1975). According to the plaintiffs, the "KGB's obsolete opinions on homosexual behavior" should be rejected in favor of adopting the position of the American Psychological Association. However, the counterintelligence agencies' reasons for targeting homosexuals — even if based on continuing ignorance or prejudice — are irrelevant. Cf. Beller, 632 F.2d at 811.
The Preliminary Joint Staff Study on Protection of National Secrets (October 25, 1985) relied upon by the plaintiffs also fails to raise a genuine issue for trial. The paper outlines an alternative approach to the current national security procedures and does not discuss the current operations of hostile intelligence efforts.
Accordingly, the district court erred in denying the DoD's motion for summary judgment.
The plaintiffs next challenge "the five `reasons' used by DISCO to decline to grant DOOLING and other class members, a clearance — including his membership in HIGH TECH GAYS (Complaint, para. 11) —
Third Amended Complaint, para. 11-12, 17, at 7-12.
The above allegations refer to a March 22, 1984, letter from G.M. Crane, the Director of DISCO, to DISCR regarding plaintiff Dooling's application for a Secret clearance. The letter provides, in pertinent part:
Based upon our equal protection analysis above, DISCO's recommendation of denial of Dooling's application and its referral to DISCR for an expanded investigation and adjudication was in accordance with the regulations and did not violate constitutional guarantees. His disclosures regarding his visits to gay bathhouses, his membership in a homosexual organization, his homosexual activities with casual acquaintances, his intention to inform his employer as to his homosexuality, and his intention to continue his homosexual lifestyle in the future were sufficient to justify the referral of the application to DISCR for an expanded investigation. His membership in a homosexual organization was simply one of the many facets of the criteria being considered as part of Dooling's homosexual activities. Therefore, the plaintiffs' claim that consideration of these five criteria is unconstitutional must fail.
The district court erred in finding that "DISCO's use of mere membership in a `gay organization' to refuse to grant a clearance violates plaintiffs' first amendment rights," that "defendants simply use membership in a `gay organization' to require
The plaintiffs did not allege in their complaint or their motion papers, nor does this record show, that any gay person has been denied a security clearance or has been subjected to an expanded investigation based solely upon membership in a gay organization. The plaintiffs have not shown membership in a gay organization to be a distinct, separate, abstract ground for denying security clearances. Therefore, there is no case or controversy involving a First Amendment constitutional violation before the district court, and we will not create one now.
The plaintiffs next challenge DISCR's processing of plaintiff Crawford's application subsequent to the filing of this lawsuit as unconstitutional. Plaintiffs' Brief Supporting Motion for Summary Judgment at 2. The plaintiffs specifically alleged:
Third Amended Complaint, para. 11.1, at 8-9.
The above allegations refer to a June 16, 1983, letter from E. Eric Holt, the Director of DISCO, to DISCR regarding plaintiff Crawford's application for a Secret clearance. The letter provides, in pertinent part:
Based upon our equal protection analysis above, DISCO's recommendation of denial of Crawford's application, and its referral to DISCR for an expanded investigation and adjudication, was in accordance with the regulations and did not violate constitutional guarantees. His admissions as to his weekly participation in promiscuous homosexual acts and his current receipt of treatment for his "ongoing" schizophreniform disorder were sufficient to justify the referral of the application to DISCR for an
We reverse the part of the district court's order granting summary judgment to the plaintiffs, vacate the part denying summary judgment to the DoD, and remand to the District Court for the entry of summary judgment in favor of the DoD, and for reversal of the district court's award of attorneys' fees to the plaintiffs.
REVERSED IN PART, VACATED IN PART, and REMANDED.
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