« PreviousContinue »
Plaintiff, a holder of a security clearance, employed by Lockheed Missiles and Space Company of Sunnyvale, California, seeks to enjoin the defendants, Secretary of Defense Robert S. McNamara and other Defense Department officials, from suspending plaintiff's secret security clearance pursuant to the provisions of Section V. B. of Department of Defense Directive
1/ 5220.6, effective January 6, 1967. Both parties move for
1/ "In the course of an investigation, interrogation, examination, or hearing, the applicant may be requested to answer relevant questions, or to authorize others to release relevant information about himself. The applicant is expected to give full, frank, and truthful answers to such questions, and to authorize others to furnish relevant information. The applicant may elect on constitutional or other grounds not to comply. However, such a wilful failure or refusal to furnish or to authorize the furnishing of relevant and material information may prevent the Department of Defense from reaching the affirmative finding required by reference (a) in which event any security clearance then in effect shall be suspended by the Assistant Secretary of Defense (Administration), or his designee, and the further processing of his case discontinued.' Section V. B. of Department of Defense Directive 5220.6.
summary judgment and agree that there is no dispute as to the material facts. A minute order was entered on February 2, 1968, granting plaintiff's motion and denying defendants' motion.
The facts will not be fully repeated in this memorandum; instead, the Court adopts the statement of facts filed by defendants herein, augmented by the admitted allegations of the complaint and supplement to complaint filed herein, and such facts as do not appear in this memorandum are incorporated by
Plaintiff has been employed by Lockheed Aircraft Corporation and its subsidiary, Lockheed Missiles and Space Company, since 1960. Since June of 1966, he has been employed in the capacity of a computer programmer. Since 1956, with a brief exception not material here, plaintiff has held a security clearance at
the access level of "Secret".
On or about October 13, 1967, plaintiff's security clearance was "suspended" under Section V. B. of Department of Defense Directive 5220.6 (hereinafter cited as Section V. B.). Further proceedings with respect thereto were discontinued because of plaintiff's earlier refusal to answer questions which he felt were irrelevant, immaterial or incompetent, or all of these, at a Defense Department interview held on June 30, 1967, in San Francisco, California. Almost immediately thereafter, plaintiff was informed by his employer. that solely because of the suspension
of his clearance he could no longer be employed by Lockheed but would be placed on "prolonged leave of absence" without pay until
such time as his clearance status was settled.
On November 16, 1967, this Court issued a Temporary Rescraining Order enjoining defendants from continuing the suspension of plaintiff's security clearance under Section V. B.; and at the hearing on the application for the Restraining Order and on
subsequent occasions, the parties consented to extensions of the Restraining Order until February 4, 1968.
The crux of this case is the validity of Section V. B. and the procedures contained therein under which plaintiff's
First, security clearance was to be suspended. / Plaintiff asserts that this section is invalid because it is not expressly authorized by Congress or the President. Secondly, plaintiff asserts that if Section V. B. is authorized, it deprives plaintiff of a security clearance without Due Process of law.
Plaintiff relies on Greene v. McElroy, 360 U.S. 474 (1959),
in support of his argument that Section V. B. is invalid for
lack of specific authorization. In Greene v. McElroy, supra, the Supreme Court defined the issue before it in that case as 'whether the Department of Defense has been authorized to create an industrial security clearance program under which affected persons may lose their jobs and may be restrained in following their chose professions on the basis of fact determinations concerning their fitness for clearance made in proceedings in which they are denied the traditional procedural safeguards of confrontation and cross-examination," (Id., at 508.)
This Court believes that the teaching of Greene is that
an agency of the federal government cannot, without affording the traditional forms of fair procedure, take administrative
action which effectively deprives an individual of his means of
livelihood on loyalty or security grounds unless, at the least,
Congress (or the President, if he is the source of the power) has
expressly authorized the lesser procedure.
See Garrot v. United
States, 340 F.2d 615, 618 (Ct. ci. 1965).
At the outset, defendants attempt to distinguish Greene by asserting that the suspension here is not a final revocation
because plaintiff has it within his power to reopen the proceedings
at any time he chooses to ansa: the questions which he declined to answer at his interview. Accordingly, defendants argue that Greene does not require specific authorization by the President or Congress for the Department of Defense to have included in Directive 5220.6 "normally accepted administrative practices" which permit suspension of a security clearance without a hearing and related procedural rights when the suspension does not amount to a "final" revocation.
In formulating the Greene test, the Supreme Court stressed the effect on the individual's livelihood of the challenged administrative action. Greene v. McElroy, supra, at 500, 502, 506-7, 508; Garrott v. United States, 340 F.2d 615, 619 (Ct. ci. 1965). Here, it is undisputed that under Section V. B., once a security clearance has been suspended, there is no further administrative or judicial remedy to challenge the suspension. Further processing of the case is discontinued. Defendants argue that the suspension remains in effect and further processing is discontinued only for as long as plaintiff refuses to answer the propounded questions. The Court is of the opinion, however, that this remedy is illusory. In effect, it requires plaintiff to submit to procedures which he believes are unauthorized and unconstitutional, thus rendering moot his objections to the procedures, in order to obtain a hearing with the procedural safeguards
21 of Sections 3, 4 and 5 of Executive Order 10865. In these
2/ Executive Order 10865 (25 Fed. Reg. 1583), entitled "Safeguarding Classified Information Within Industry", sets up comprehensive procedures to provide the "maximum possible safeguards" to protect the interests of a holder of a security clearance. It was issued in 1960 by President Eisenhower after Greene v. McElroy. It will be discussed in more detail elsewhere in this memorandum.
circumstances, the Court believes that this "suspension" which has entailed a discontinuance of the processing of plaintiff's clearance, has the same final effect on plaintiff's livelihood that the Supreme Court was concerned about in Greene. Moreover, although plaintiff's employer was informed by the defendants that the suspension of plaintiff's security clearance was intended to prevent utilization of plaintiff upon any nonclassified work that may be available to plaintiff, defendants admit that plaintiff was informed by authorized agents of Lockheed that solely because of the suspension of his clearance he could no longer be employed by Lockheed and that he would be placed on "prolonged leave of absence" without pay until such time as his clearance status was settle d. In light of these facts, the Court feels that plaintiff has suffered a serious deprivation of his "right to hold specific private employment and to follow a chosen profession (which come) within the 'liberty' and 'property' concepts of the Fifth Amendment." Greene v. McElroy, supra, 360 U.S. 474, at 492. This Court is of the opinion that to hold otherwise would be honoring unduly the semantic difference between "final revocation" and "suspension", and would be disregarding the effect on plaintiff's livelihood so strongly emphasized in the Greene case.
The Court must next inquire whether the governmental action that was taken here deprived plaintiff of traditional forms of fair procedure which are associated with procedural Due Process. The salient facts can be briefly summarized. Plaintiff was notified that "the Screening Board (of the Department of Defense) has some new information that might affect . (his) continued eligibility for a clearance", and that the Screening