9 Fair empl.prac.cas. 1396, 6 Empl. Prac. Dec. P 8896 Robert Wallace McKeand v. Melvin Laird, Secretary of Defense

490 F.2d 1262

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 30, 1974
• Docket: 71-2169
• Status: Published

Opinions

WALLACE, Circuit Judge:

McKeand, an electronics engineer and an admitted homosexual, had been employed by a government contractor and was granted a secret security clearance in 1960. In 1967, his employer requested that MeKeand’s clearance be raised to top secret. Subsequent to an administrative investigation and hearing, primarily involving alleged homosexual activity, the hearing examiner concluded that “it is not clearly consistent with the national interest to grant Applicant [McKeand] security clearance at any level.” MeKeand’s administrative appeal was unsuccessful. The security clearance denial was challenged by McKeand in the district court. Summary judgment was entered against him from which he appeals. We affirm.

By Executive Order, the Secretary of Defense was directed to prescribe regulations which would safeguard classified information in companies such as McKeand’s employer. Access was to be allowed “only upon a finding that it is clearly consistent with the national interest to do so.” Exec. Order No. 10865, 25 Fed.Reg. 1583 (1960), as amended, 3 C.F.R. 83, 84 (1973). See Adams v. Laird, 136 U.S.App.D.C. 388, 420 F.2d 230, 238-39 (1969), cert denied, 397 U.S. 1039, 90 S.Ct. 1360, 25 L.Ed.2d 650 (1970); Clifford v. Shoultz, 413 F.2d 868 (9th Cir.), cert, denied, 396 U.S. 962, 90 S.Ct. 426, 24 L.Ed.2d 426 (1969). Here a contrary finding was made, the basis of which is clearly dis-positive of this appeal.

We are aware of the division of opinion as to whether a person can lose his or her security clearance on the sole basis of private homosexual activity. See, e. g., the majority and the dissent in Adams, swpra. But here, the hearing examiner not only found McKeand was a homosexual, but, in addition, made specific findings of fact clearly describing why his homosexuality posed a threat of divulgenee of classified material. The examiner found that “it is apparent from the record of the hearing that he fears disclosure; he is thus a target for coercion or pressure which may be likely to cause action contrary to the national interest.” This constitutes a rational nexus — in addition to the fact of homosexuality — between McKeand’s conduct and the government’s denial of his security clearance.

Judicial review of factual determinations by agencies is limited to whether, considering the record as a whole, there is substantial evidence supporting the findings. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L. Ed. 456 (1951). Assuming, without holding, that this test should be applied,¹ the district court correctly found it was met.²

The examiner having found and relied on such a rational nexus, and the findings being supported by substantial evidence in the record, it is unnecessary for us to decide whether a finding of homosexuality alone would be sufficient to uphold the denial of a security clearance.

The other issues raised are without merit.

Affirmed.

1 . The government suggests that a lesser test might be applied and refers to 5 U.S.C. § 554(a)(4). See McBride v. Roland, 248 F. Supp. 459, 465 (S.D.N.Y.1965), aff’d 369 F.2d 65 (2d Cir. 1966), vacated on other grounds, 390 U.S. 411, 88 S.Ct. 1111, 19 L.Ed.2d 1271 (1968).

2 . The district court held that “[t]he record contains substantial evidence, if such is required, to support the findings of the Appeal Board and the final determination of that Board . . . .” In that record, there is evidence that McKeand feared disclosure of his homosexual activities. For example, the hearing examiner found that, during an interview with Special Agents of the Office of Special Investigations of the United States Air Force, McKeand “stated that rather than have an exposure of his background in conjunction with his security clearance, he planned to terminate his employment .... The OSI agents reported to their Headquarters that they were terminating their investigation because security clearance for the Applicant would no longer be required.” When it was discovered that he did not terminate his employment, the investigation was reinstated.

The dissent contends that this is insufficient to show McKeand’s fear of disclosure, reasoning that such fear was not significant or he would not have initiated this action. But the question is not his state of mind when he filed his complaint — but at the time the clearance was denied.