GAYER v. SCHLESINGER

For Order Amending Concurring Opinion. See 494 F.2d 1135.

FAHY, Senior Circuit Judge:

These three appeals have been consolidated for hearing and disposition by this court. Each is an appeal by Defense Department officials from a judgment of the District Court setting aside action unfavorable to appellees which was taken by appellants under the Industrial Personnel Security Clearance Program of the Department of Defense. The program is administered by the Industrial Security Clearance Review Office (ISCRO) of the Department. In No. 72-1820, Wentworth v. Schlesinger et al., and No. 71-1935, Ulrich v. Schlesinger et al., we affirm on one of the grounds assigned by the District Court, without prejudice, however, to further proceedings respecting security clearance of appellees consistent with our opinions. In No. 71-1934, Gayer v. Schlesinger et al., we hold the case should be remanded to the administrative level to afford an opportunity to appellee, if so advised, to reopen the departmental proceedings as we shall explain, failing which the decision of the District Court setting aside the suspension of his security clearance shall be reversed.

No. 72-1820 — Wentworth v. Schlesinger, et al.

This case originated under an Executive Order of President Eisenhower promulgated February 24, 1960,1 implemented by a Defense Department Directive of December 17, 1966.2 The security clearance program thus established was considered by this court in Adams v. Laird, 136 U.S.App.D.C. 388, 420 F.2d 230 (1969), cert. denied, 397 U.S. 1039, 90 S.Ct. 1360, 25 L.Ed.2d 650 (1970), and there outlined. It had been formulated in light of the decision of the Supreme Court in Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), which invalidated as unauthorized by either Executive Order or legislation the security program then before the Court. The present program prescribes standards to govern access to classified information of employees in industry in connection with the employer's obligations with respect to bidding on, or the negotiation, award, performance, or termination of contracts with the Defense Department. The basic standard for giving such security clearance is "a finding that to do so is clearly consistent with the national interest."3 Among many details of the program is a list of criteria enumerated in the Directive to aid in determining whether clearance should be granted to an individual employee.4 The determination is to be made on the basis of an evidentiary hearing by a Hearing Examiner, whose determination is reviewable by an Appeals Board.5 The ultimate action is required to be that of a designated Presidentially appointed official of the Department. In this case the Deputy Secretary of Defense was this designee.6

I

At the time this matter involving Mr. Wentworth arose he had been granted security clearance for the position he held with a defense contractor. A question arose as to whether his clearance should be continued when in 1966 it came to the attention of ISCRO that he may have engaged in certain homosexual activity with a high school senior in 1964. An investigation and a hearing ensued. The examiner determined that under Criteria P and S7 appellee's clearance should be revoked. On appeal to it an Appeals Board remanded the matter for a supplementary hearing.8

At the conclusion of the second hearing the Examiner again concluded that "it is not clearly consistent with the national interest to grant security to the Applicant at any level." The Examiner found on the basis of appellee's past homosexual activity and his intention to continue such activity, that he was engaging in both criminal conduct and sexual perversion under Criterion P.9

The Examiner also concluded that appellee was liable to coercion and influence, Criterion S, notwithstanding the public disclosures he had made regarding his homosexuality. The basis for this finding was Mr. Wentworth's denial of having engaged in homosexual activities with the high school senior, including its less discreet aspects,10 and the fact that homosexuals as a class are amenable to blackmail.11 The Appeals Board, having considered "the complete record," affirmed the decision of the Examiner as to all factual allegations and conclusions.12 On the basis of these determinations Mr. Wentworth's clearance was revoked.

Suit to set aside the revocation was filed in the District Court. The court granted summary judgment in Mr. Wentworth's favor on the basis of the administratative record and further evidence adduced before the court. Wentworth v. Laird, 348 F.Supp. 1153 (D. D.C.1972). The order of the court set aside the revocation, with the right of defendant officials, the appellants, to "continue to review plaintiff's [appellee's] eligibility for continuation of his security clearance, subject to the limitations set forth in" the court's Memorandum opinion. The court held that Mr. Wentworth had not received a fair and impartial hearing for the following briefly outlined reasons:

Plaintiff"s sexual life-style as an admitted on-going homosexual was deemed by the ISCRO without more to be an adequate basis for the withdrawal of his security clearance; no other evidence was presented as reason to believe Mr. Wentworth was susceptible "to coercion, influence of pressure which may be likely to cause action contrary to the national interest," Criterion S, upon which the agency placed reliance for revoking the clearance; and in the context of the case his admitted homosexuality alone did not furnish reasonable justification for its conclusion. In this connection the court outlined appellee's action in publicizing his homosexuality. Reliance was also placed by the court upon the absence of any indication in Mr. Wentworth's record of any dereliction with respect to security.

In addition to the foregoing the court held that Mr. Wentworth, over his objection, "was required to respond to a shocking array of questions concerning the most intimate details of his sex life," with no nexus shown to exist between the information sought and his ability to protect classified information. Thus, the court held the questions flagrantly violated appellee's First Amendment right to privacy, tainting the fairness of the entire administrative proceedings.

On this appeal by the departmental officials we note preliminarily that appellee has raised no question as to the validity of the basic standard for security clearance, namely, a finding that such clearance is clearly consistent with the national interest. Moreover, the appeal is not concerned with procedural problems other than those we shall discuss.

II

Appellee contends that the program is pervaded with bias and monolithic procedures that deprived him of a fair and impartial administrative determination. He rests this position in part on a claim of ex parte contacts in violation of section 5(c) of the Administrative Procedure Act, 5 U.S.C. § 554(d) (1970), between Mr. Scanlon, the Director of ISCRO, and both the Hearing Examiner and the Appeals Board. This claim is based on evidence which the District Court allowed appellee to adduce dehors the administrative record in an exploration of the operations of ISCRO, with special reference to implications affecting homosexuals. Appellants urge that such a collateral attack on the integrity of administrative proceedings is permissible only when the administrative record reveals a prima facie case of misconduct, citing Singer Sewing Machine Co. v. NLRB, 329 F.2d 200 (4th Cir. 1964). We need not decide this controversy. In the first place we find no lack of fair procedure in those terms of the program itself which are involved in this case, formulated under the general authority of the Executive Order. They satisfy the requirements of Greene v. McElroy, supra. In the second place, for reasons to be explained, Mr. Wentworth will be given by this court the right to a reconsideration of his eligibility for security clearance. Such reconsideration must be entirely clear of any interference by the Director with the deciding officials in their consideration of the merits of the case. We think this is not only required by Greene v. McElroy, supra, but also is the intendment of the Executive Order.13

Moreover, in view of the history of the case, the proceedings on reconsideration, should they occur, must be left to a different Hearing Examiner and a different Appeals Board, and any part of the record previously made which might appropriately be utilized in further proceedings shall not include the answers to the questions which go beyond what we hold in Part V of this opinion to be appropriate. We set forth these guides for the future without impugning to any degree the rectitude and good faith of the officials who participated in the previous determinations, but to relieve them of the difficulty of ridding themselves of prior positions taken, in part, on a record which was erroneously prepared in part, and, also, to relieve appellee of the possible effect of their prior participation.

III

We are unable to agree with the District Court that the revocation was based upon the concession of appellee that he was leading an on-going homosexual life, without more. The court held that aside from appellee's admitted homosexuality, and his affirmation of intending to continue such a sexual life, "no evidence was presented of `[a]ny facts and 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,'" as found by appellants. 348 F.Supp. at 1155, quoting Criterion S. In this same connection, it is contended by appellee that there is a "per se" rule within the agency which in its operation leads to denial of clearance to any employee who is an active on-going homosexual, a rule which renders invalid denial of clearance to such an applicant. As we understand this contention in the context of this case, it is that Mr. Wentworth was not accorded a determination related only to himself but was the victim of a rule which gave no consideration to the merits of his own case in terms of the national interest. The contention resorts in significant part to evidence adduced at appellee's exploration in the District Court, to which we have referred, of the manner in which the program is administered, principally evidence supplied on appellee's examination of Mr. Scanlon. He denied the existence of such a "per se" rule, though he could not recall a case of a known on-going homosexual to whom clearance had been granted.14

While we appreciate the significance of Mr. Scanlon's admission, which was weighed by the District Court alongside Mr. Wentworth's own record of performance under security clearance, we cannot say that the record permits the court to conclude that the ISCRO was applying a per se rule without any consideration of appellee's individual case. Furthermore, the Board's remand for a supplementary hearing, even though appellee had admitted to being a homosexual, indicates that the determinations were not the result of a per se rule denying clearance to homosexuals.

IV

Appellee also contends that the revocation was not justified because a nexus, or a sufficient rational connection, between appellee's homosexual activity and his ability to safeguard classified information was not shown to exist in the ISCRO's decisions. The conclusion that retention of his clearance was not clearly consistent with the national interest was made in light of determinations with respect to Criteria P and S. Under the former Criterion, the determinations attach "criminal" and "sexual perversion" attributes to appellee's homosexual activity. The Examiner found, and it is not disputed, that such conduct by appellee, which he admittedly engaged in and intends to continue so to do, violates the criminal laws of the State in which appellee resides and that of every other state except Illinois.15 Appellee does contest, however, on the basis of the expert testimony presented at the hearing in his behalf that homosexual conduct is a form of "sexual perversion." Contrary to the opinion of these experts, we think it clear that "sexual perversion" referred to in Criterion P must be construed as intended to include homosexual activity within its meaning. This court has implicitly so held in Adams v. Laird, supra, 136 U.S. App.D.C. at 391, n. 1, 420 F.2d at 233, n. 1. Similarly, the Supreme Court in Boutilier v. Immigration and Naturalization Service, 387 U.S. 118, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967)16 held that an alien, who at the time of his entry into the United States was a homosexual, was excludable under section 212(a) (4) of the Immigration and Nationality Act of 195217 as one "afflicted with [a] psychopathic personality," a term Congress clearly intended to include homosexuals: "We, therefore, conclude that the Congress used the phrase `psychopathic personality' not in the clinical sense, but to effectuate its purpose to exclude from entry all homosexuals and other sex perverts." 387 U.S. at 122, 87 S.Ct. at 1566. We put aside, as unnecessary to a disposition of this case, whether or not a determination under Criterion P alone would support denial of clearance if so decreed under the program.

With respect to the determinations made that appellee was susceptible to coercion, influence and pressure, Criterion S, although the District Court concluded that no nexus between appellee's homosexual activities and such susceptibility was established, we do not rule out as a matter of law, as appellee would have us do, any consideration of homosexual conduct as irrelevant to a determination with respect to security clearance under Criterion S, under other Criteria of the Directive, or if rationally accorded consideration for other reasons by those primarily responsible in the matter.18 In a different but not unrelated context, a rational connection or nexus was found to exist between homosexual conduct and the efficiency of service in public employment. In Dew v. Halaby, 115 U.S.App.D.C. 171, 317 F.2d 582 (1963), petition for cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L. Ed.2d 550 (1964),19 this court, after a detailed analysis of the rational connection between homosexual conduct and consideration of the efficiency of the service, upheld the discharge of a veteran holding a civil service position as an air traffic controller because of pre-employment homosexual activity and marijuana smoking. The serious dispute grew out of the fact that the conduct occurred prior to his employment. Reliance by the court upon such conduct drew a strong dissent, and the authority of this decision may be questioned by the fact that the writ of certiorari was dismissed when the agency rescinded its action.20 In Scott v. Macy, 131 U.S. App.D.C. 93, 402 F.2d 644 (1968), this court reversed a decision of the Civil Service Commission adverse to the applicant for lack of procedural due process, a failure to specify the grounds for the determination. 131 U.S.App.D.C. at 97, 402 F.2d at 648. In his dissent, Burger, J., now Chief Justice, found no procedural error and reached the merits, stating:

131 U.S.App.D.C. at 101, 402 F.2d at 652.

In Norton v. Macy, supra, although the court repudiated the authority of the Civil Service Commission to preclude judicial determination whether the homosexual conduct had some ascertainable deleterious effect upon public employment by characterizing it as "immoral" or "indecent," the opinion nevertheless concludes an employee's homosexual conduct may affect the efficiency of the service:

This court in Adams v. Laird, supra, affirmed the revocation of clearance to an applicant because of his homosexual activity. The court, in upholding the sufficiency of the standard as applied to a homosexual, stated:

136 U.S.App.D.C. at 397, 420 F.2d at 239. We note, however, that in Adams the applicant did not attempt to disprove the existence of a nexus but rather to prevent a finding that he had engaged in the alleged homosexual acts. 136 U. S.App.D.C. at 398, n. 8, 420 F.2d at 240, n. 8.22

With respect to the sufficiency of proof of a nexus between the conduct involved and security clearance, Adams does not require, as we construe it, objective or direct evidence:

136 U.S.App.D.C. at 397, 420 F.2d at 239. Nor is it necessary to prove he has used it improperly. What is required is that every application for clearance must be considered in its particular factual setting. 32 C.F.R. § 155.4(e). In Mr. Wentworth's case, this includes the favorable aspects of his life, and in connection with Criterion S such circumstances as the extent of public knowledge of his sexual life, and the absence of any record of unfaithfulness to duty.23 As in other decisions of importance the bearing of particular conduct upon an issue to be decided must be left to a rational appraisal based on relevant facts. The determination in these cases of security clearance is a judgmental one based on "over-all common sense,"24 and is to be explained in such manner that a reviewing court may be able to discern whether there is a rational connection between the facts relied upon and the conclusions drawn. Judicial acceptance of the determination, and its underlying rationale, calls for consideration of an individual's entitlement to the use of his skills and talents25 to the full extent compatible with a finding that such use is clearly consistent with the national interest. Some deference must be accorded by the courts to the conclusion of the authorities charged with responsibility under the Executive Order and Directive. The degree of this deference must be the result of a nice but not-easily-definable weighing of the ingredients of which the particular case is comprised.

V

We now come to the reason we affirm the decision of the District Court setting aside the revocation of appellee's security clearance. We agree with the court with respect to the "shocking array of questions," a wide-ranging fishing expedition which, aside from the limitation contained in the Executive Order on unreasonable encroachments upon individual interests, infra, is indicative in this case of an ill-defined approach to the problem which has not been justified. We also agree with the provision in the court's order that appellants may continue to review appellee's eligibility for clearance, but we hold that this right is now to be exercised consistently with this opinion rather than subject to the opinion of the District Court other than with respect to the questions asked of Mr. Wentworth.

We find it unnecessary to rest upon the First Amendment in holding the questions went too far. To require answers exceeded the authority of appellants under their basic charter, Executive Order No. 10865, which states:

The questions asked of appellee offended this limitation.27 In so holding we do not preclude appellants, however, from seeking information from an applicant as to whether he has led and intends to lead a homosexual life, and other relevant information respecting particular conduct; but information as to his sexual life must be only that which is reasonably necessary to make a determination with respect to any criteria being invoked:

Scott v. Macy, supra, 131 U.S.App.D.C. at 97, 402 F.2d at 648.

In the present case, Mr. Wentworth admitted that he was an active homosexual, thereby disclosing sufficient information with respect to the "sexual perversion" and probably also the "criminal ... conduct" factors of Criterion P. Whatever further information is sought with respect to other criteria, including Criterion S, it must not only be relevant but no more intrusive of the applicant's privacy than is reasonably necessary. Moreover, in approving as we do the right of appellants to proceed so as to enable the responsible officials to be relevantly and materially informed, reasonable latitude must be accorded the applicant as to the specificity of his answers to permissible questions — some reasonable imprecision where precision is not essential. Moreover, the identity of sex partners is not to be insisted upon, unless in a particular case some special reason can be held to justify it.

Our position that the questions posed to Mr. Wentworth were not authorized by the Executive Order — that they went too far — gains some support from the government itself: in Gayer v. Laird, 332 F.Supp. 169 (D.D.C.1971), answers to questions similar to those posed to Mr. Wentworth were not deemed essential. Furthermore, we have no present basis for holding that more than the general information sought in Gayer should be sought with respect to Mr. Wentworth's homosexual activity. In so holding, however, we do not preclude development of any special circumstances of which appellants may be informed in the individual case, the development of which may afford a more accurate framework of the applicant's homosexual life.

In sum, the program is entitled to develop the kind of deviant sexual life the applicant lives, with such subsidiary and special circumstances in a particular case as may reasonably be deemed helpful in appraising the application under criteria related to giving security clearance which is "clearly consistent with the national interest"; but a homosexual applicant is not required to suffer the severe invasion of personality and the indignities incident to the detailed inquisition required of Mr. Wentworth. A rounded exposition of the situation, of its scope, duration, recency, likelihood of continuance, and associations involved, does not so require.

CONCLUSION

Mr. Wentworth did not stand on his objection to the questions which we hold were impermissible. He answered them. He should not have been required to do so, because, even if relevant, they went beyond the authority of appellants under the Executive Order — relevance is not co-extensive with competence in the law of evidence.

The determinations, respectively, of the Hearing Examiner and Appeals Board rested in part upon the answers given. The Appeals Board's determination is explicit in that regard: it rests upon the "complete record." That of the Hearing Examiner is implicitly to the same effect. Since the data thus elicited should not have been available, but was considered to the detriment of appellee, we cannot say no prejudice resulted.

The question remains as to what now is to be done. There may be more than one answer, but we have concluded that although Mr. Wentworth's security clearance was erroneously revoked for the reason we have accepted, appellants may, if so advised, initiate new proceedings to be conducted consistently with our opinion. In the meantime if it is desired to alter the existing status of the matter pending such proceedings this court would consider any application to that end which might be made.

No. 71-1934 — Gayer v. Schlesinger, et al.

No. 71-1935 — Ulrich v. Schlesinger, et al.

Both Mr. Gayer and Mr. Ulrich had been granted security clearance for employment in defense industry. In the course of his employment each was separately investigated under the security program described in Wentworth. The cause of the investigation was information indicating each was leading the life of a homosexual. Appellant officials and those acting for them, in the course of the investigations, submitted to Mr. Gayer and Mr. Ulrich a series of questions designed to develop details of their respective homosexual lives, if in fact either was leading such a life. Each refused to respond to the questions, but advised the investigators that he was in fact leading an active homosexual life and intended to continue to do so. Their refusals to respond to the questions submitted were on the ground that the details sought invaded their protected privacy and answers were not needed in order to enable appellants to make an affirmative finding favorable to security clearance in each case. Because of their refusals the security clearance of each was suspended for willful failure to provide information essential to a well-informed determination with respect to continued clearance, a reason based on section V-B of the Directive, set forth in pertinent part in the margin.28 Further processing of each case was discontinued.

Their respective suits in the District Court followed as a result of which in each case the court concluded:29

In setting aside the suspension of appellees' security clearance for the above reasons the court authorized appellants to "continue to review" appellees' "eligibility for continuation of security clearance in accordance with their established procedures so long as they proceed on the basis of information which excludes the type of detail they have sought to elicit ..."30 from appellees through the questions they were requested to answer.

We understand the District Court's ruling to be that in the case of an admitted homosexual suspension for refusal to answer questions pertaining to the applicant's homosexual activities is not justified unless a rational connection, or nexus, between the condition and "his ability to effectively protect classified information" is shown to exist; absent such a nexus neither inquiry into the privacy of the applicant's sex life nor an adverse determination with respect to security clearance is permissible.

Suspension of clearance in the cases of Gayer and Ulrich did not occur on the basis of their acknowledged homosexual lives, without more. Rather, the suspensions were based on the inability of appellants to continue clearance without the applicants first disclosing additional information pertaining to the details of their homosexual activities sought by the authorities. As we have explained in Wentworth, determination of the nexus problem — to be resolved in the first instance by appellants — may await further development beyond the fact that the applicant is leading an active homosexual life and intends to continue to do so.

While we think that some of the information sought by the authorities went beyond the boundaries permissible under the Executive Order, we do not exclude further inquiry which is relevant and is no more intrusive of an applicant's privacy than is reasonably necessary for a rational judgment to be reached with respect to security clearance. Accordingly, suspension of clearance is permissible where an applicant refuses to disclose such information which he can supply, although he is under no legal obligation to do so. The situation is analogous in its legal aspects, though not in its factual context, to Blumenthal v. F. C. C., 115 U.S.App.D.C. 305, 308, 318 F.2d 276, 279, cert. denied, 373 U.S. 951, 83 S.Ct. 1679, 10 L.Ed.2d 706 (1963), in which we said:

See, Orloff v. Willoughby, 345 U.S. 83, 89-91, 73 S.Ct. 534, 97 L.Ed. 842 (1953); see also, Law Students Research Council v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971); United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957), and Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951).

In the case of Mr. Gayer, the refusal to furnish any responses to the questions, as they were modified by the Screening Board,31 which we hold in Wentworth were within the scope of appellants' authority, we think was not justified. True, as we have held in Wentworth, some latitude is permissible as to the precision of answers, but we think failure of Mr. Gayer to direct any answers to the questions other than an acknowledgement of his homosexual life, is fatal to his challenge to the suspension of his clearance. We accordingly shall require his case to be remanded to the administrative level to afford him an opportunity to respond as we have indicated may be required. Should he do so the administrative proceedings may go forward to a conclusion. Failing within a reasonable time, to be fixed by appellants, to avail himself of this opportunity, suspension of his security clearance we think must be sustained.

In the case of Mr. Ulrich, in view of the excessive scope of the information sought, by questions similar to those propounded to Mr. Wentworth, which we have held exceeded the authority of appellants, he cannot reasonably be charged with the obligation to have answered, even to the degree we hold should be done by Mr. Gayer. The appropriate action therefore is to affirm the District Court in revoking Mr. Ulrich's suspension, but without prejudice to further proceedings under the clearance program with respect to him within the confines of our Wentworth opinion.32

Appropriate orders will be entered.

LEVENTHAL, Circuit Judge (concurring):*

I join in Judge Fahy's opinion as the opinion of the court. It identifies key problems. My addition here relates to matters not discussed by Judge Fahy which I think may be pertinent.

The Government agreed that it was not relying on homosexuality as a reason per se, in and of itself, for denying the clearance requested.1 The applicant's own public revelation avoids the usual blackmail threat, of disclosure of homosexuality, ordinarily relied upon as a reason for such denial. That does not necessarily end the inquiry, but it suffices to establish that if the agency seeks to justify further inquiry into the details of what would ordinarily be considered the private sexual life of the applicant, as a matter required by the public interest, it must identify with particularity the relevance of such further inquiry with respect to applicable criteria.

The need for clarity of analysis is underscored, for example, by what seems to be the Government's claim of a need to explore the details of appellees' conduct, apparently whether it was limited to e. g., frottage, or whether it included the "criminal conduct" of sodomy or fellatio,2 which violates D.C.Code § 22-3502. We were advised by appellants' counsel, at oral argument earlier this year, that eight months previous, in a test litigation,3 the police denied "that they enforce D.C.Code § 22-3502 in such a manner that consenting adults who commit homosexual acts of sodomy in private are subject to search or arrest" and the Corporation Counsel stipulated with plaintiffs that the D.C.Code § 22-3502 "does not apply, and cannot be applied, to private consensual sexual acts involving adults (persons age 16 and over)...."4

The United States Attorney apparently takes a different position as to D.C. Code § 22-3502, but this court should certainly have been advised that the statement in the Government brief was the subject of what must at a minimum be recognized as a difference of approach. In United States v. Richard E. Griffith, Superior Court Criminal No. 53440-72, Chief Judge Greene wrote an opinion on March 19, 1973 (101 Wash. L.Rep. No. 80, p. 763), which reviewed the effort of the United States Attorney to establish a different position from that followed by the police and agreed to by the Corporation Counsel, and held, citing rulings of the Superior Court and other courts, that the sodomy statute, D.C.Code § 22-3502, was limited to instances where there was no voluntary consent.5

The foregoing puts a dent into the assumption of Government counsel that homosexual conduct "usually" results in criminal conduct. There remains the question whether, to what extent, and under what conditions, activities that are not illegal may be a valid springboard for inquiry into aspects of the person's life that are generally assumed to be private in order to ascertain whether such activities include instances of criminal conduct. Questioning in the zone that is normally private should certainly not be pursued in the absence of ascertainable and justified criteria.

ROBB, Circuit Judge (concurring in part, dissenting in part):

I concur in Judge Fahy's conclusion that there may be a rational connection between an employee's homosexual conduct and the efficiency of the service, and that homosexual activity may be considered in determining eligibility for security clearance. I agree that the government may seek "information from an applicant as to whether he has led and intends to lead a homosexual life, and other relevant information respecting particular conduct ... the development of which may afford a more accurate framework of the applicant's homosexual life." (pp. 751, 752). As Judge Fahy well says, the government "is entitled to develop the kind of deviant sexual life the applicant lives, with such subsidiary and special circumstances in a particular case as may reasonably be deemed helpful", (p. 752) so as to elicit a "rounded exposition of the situation, of its scope, duration, recency, likelihood of continuance [and] associations involved". (P. 752). I also agree that the inquiry should be no more extensive than reasonably necessary. Finally, I concur in the opinion that the questions directed to Mr. Gayer were permissible. These questions were:

II.

III.

The questions put to Mr. Ulrich followed the pattern of the Gayer questionnaire, but the questions were sharpened by referring in a check list to certain specific types of homosexual acts. In addition, Mr. Ulrich was asked whether any such acts had been performed in public, whether his homosexual partners were strangers or persons with whom he lived or maintained a permanent relationship, and the number of persons with whom he had engaged in such acts. The identity of his sex partners was not demanded.

Without saying which of the questions put to Mr. Ulrich are found to be impermissible the court's opinion concludes that "some of the information sought by the authorities went beyond the boundaries permissible under the Executive Order". (P. 754). I cannot accept this conclusion. In my opinion the questions were reasonably designed to develop the kind of deviant sexual life that Mr. Ulrich lived and proposed to continue. If the questions put to Mr. Gayer were proper, and the court agrees that they were, then I think the Ulrich interrogatories were also proper.

The questioning of Mr. Wentworth occurred in the course of a hearing before a trial examiner. In his opening statement at the hearing, counsel for Mr. Wentworth said:

In this context government counsel undertook to develop for the record the nature and extent of Mr. Wentworth's homosexual activity, again following the general pattern of the Gayer questionnaire and the questions put to Mr. Ulrich. The information elicited was summarized by the Examiner as follows:

The "Statement of Reasons" or charge served upon Mr. Wentworth alleged that "For approximately three months within the period 1962 to 1965, you engaged in numerous perverted acts of a homosexual nature with one John ___." (J.A. 35).

On two grounds I think the questioning of Mr. Wentworth was permissible.

(1) At the hearing the witness John ___ testified that for several months in 1964, when he was an eighteen-year old high school student, he maintained a homosexual relationship with Mr. Wentworth. He described their homosexual acts in minute and vivid detail. This testimony came on both direct and cross examination, all without objection. Many of the questions now found obnoxious were put to John on cross examination by Mr. Wentworth's counsel. On the other hand, Mr. Wentworth in his testimony denied that he had engaged in any homosexual acts with John. In this situation I think it was permissible for government counsel, on cross examination of Mr. Wentworth, to put questions that reflected or followed the pattern of the specific and detailed allegations made by John. Since John had testified that he and Mr. Wentworth had engaged in certain specific types of homosexual acts it was reasonable for government counsel to ask Mr. Wentworth whether he had engaged in such activity with anyone.

(2) In a security hearing for a man holding a Secret clearance* and boasting of his homosexuality I cannot say that the information disclosed about Mr. Wentworth was irrelevant or that the effort to develop the facts on cross examination was an unreasonable or unwarranted encroachment on Mr. Wentworth's privacy. Since homosexuality was relevant to eligibility for clearance, it was important to determine the exact meaning of the term homosexual as Mr. Wentworth applied it to himself. Were his homosexual activities carried on discreetly in private, limited to one partner, or were they open, promiscuous and aggressive? Were they infrequent and sporadic, or otherwise? In short, what kind of a homosexual was he? He could not foreclose interrogation on this issue by stipulating in general terms that he was a homosexual.

I agree that some of the questions put to Mr. Wentworth were unpleasant and indelicate. They would not have been acceptable in a drawing room, but having announced to the world that he was proud to be a homosexual Mr. Wentworth should not have been offended or shocked by questions seeking to determine precisely what he meant by his description of himself. And as I have said, similar questions had been put to the witness John by Mr. Wentworth's counsel.

I would reverse all three judgments.