Stehney v. Perry , 101 F.3d 925 ( 1996 )

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
12-3-1996
Stehney v. Perry
Precedential or Non-Precedential:
Docket 96-5036
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996
Recommended Citation
"Stehney v. Perry" (1996). 1996 Decisions. Paper 4.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/4
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 96-5036
___________
ANN K. STEHNEY,
Appellant
v.
WILLIAM J. PERRY, Secretary of Defense;
J. MICHAEL McCONNELL, Director,
National Security Agency/Central Security Service;
LEE HANNA, Former Chief of Management Services,
National Security Agency/Central Security Service;
JEANNE ZIMMER, Chief of Management Services,
National Security Agency/Central Security Service;
THE INSTITUTE FOR DEFENSE ANALYSES,
CENTER FOR COMMUNICATIONS RESEARCH, a Delaware Corporation;
DAVID M. GOLDSCHMIDT, Director,
The Institute for Defense Analyses,
Center for Communications Research
_______________________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 94-cv-06306)
___________________
Argued August 8, 1996
Before: MANSMANN and SCIRICA, Circuit Judges
and DIAMOND, District Judge*
(Filed December 3, 1996)
*The Honorable Gustave Diamond, United States District Judge for
the Western District of Pennsylvania, sitting by designation.
STEPHEN Z. CHERTKOF, ESQUIRE (ARGUED)
Kator, Scott & Heller
1275 K Street, N.W.
Washington, D.C. 20005
FRANK ASKIN, ESQUIRE
Constitutional Litigation Clinic
Rutgers Law School
15 Washington Street
Newark, New Jersey 07102
Attorneys for Appellant
FREDDI LIPSTEIN, ESQUIRE (ARGUED)
BARBARA L. HERWIG, ESQUIRE
United States Department of Justice
Appellate Staff, Civil Division, Room 3343
10th & Pennsylvania Avenue, N.W.,
Washington, D.C. 20530-0001
Attorneys for the Federal Appellees
KEITH P. JONES, ESQUIRE (ARGUED)
Hill Wallack
202 Carnegie Center
Princeton, New Jersey 08543-5226
Attorney for Appellees,
The Institute for Defense Analyses
and David M. Goldschmidt
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.
The National Security Agency revoked Ann Stehney's
security clearance after she refused to submit to a polygraph
examination. As a result, the Institute for Defense Analyses
terminated her employment. Alleging constitutional and statutory
violations, Stehney sought a writ of mandamus and other
appropriate relief. The district court dismissed her suit under
Fed. R. Civ. P. 12(b)(1) and 12(b)(6) and Stehney now appeals.
I. Facts and Procedural History
Ann Stehney is a mathematician. In l982, she left a
tenured position at Wellesley College to work for the Institute
for Defense Analyses at the Center for Communications Research in
Princeton, New Jersey. The Institute is a private think tank
that conducts cryptological research -- the making and breaking
of secret codes -- as a contractor for the National Security
Agency, an agency within the Department of Defense that gathers
and protects intelligence information related to national
security. To conduct this research, Institute employees like
Stehney require access to classified information. Before
granting access, NSA conducts a thorough background investigation
of each person and makes "an overall common sense determination."
DCID 1/14, Annex A. The NSA background investigation includes a
review of personal history, criminal, financial and medical
records, and at least one interview. NSA must ensure that access
to classified information is "clearly consistent with the
national security," and "any doubt concerning a person's
continued eligibility must be resolved in favor of the national
security." NSA/CSS Reg. 122-06.
In 1982 NSA investigated Stehney and granted her a
security clearance. NSA is authorized by statute and regulations
to use polygraph examinations as part of its investigations, see29 U.S.C.
§ 2006(b) and DCID 1/14 Annex A, and since 1953 has
used polygraphs in all investigations of NSA employees. Dep't.
of Defense, The Accuracy and Utility of Polygraph Testing 11
(1984). But in 1982 when Stehney was hired by the Institute,
NSA did not ask her to take a polygraph examination because it
believed that requiring polygraph examinations might impede
recruitment by NSA contractors. Shortly after Stehney was hired,
the Department of Defense changed this policy and authorized use
of polygraph examinations for all persons with access to
classified information, including contractor employees.
In 1989, Stehney signed a Contractor Employee Advisory
Handout informing her that she was "subject to an aperiodic
review" of her security clearance, that review would be conducted
with the aid of a polygraph examination, and that "[f]ailure to
consent to an aperiodic polygraph examination may result in
denial of continued access" to classified information.
In 1992, NSA asked Stehney to submit to a polygraph
examination. Stehney refused because she believes polygraph
examinations are scientifically unsound and inherently
unreliable. NSA revoked Stehney's security clearance because she
refused to take the polygraph examination. Shortly thereafter,
the Institute terminated Stehney's employment because she no
longer possessed a security clearance.
After exhausting administrative remedies, Stehney filed
suit in the United States District Court for the District of New
Jersey against Secretary of Defense William J. Perry, two current
and one former NSA administrators, the Institute for Defense
Analyses, and its director David Goldschmidt. Stehney's
complaint alleged that: NSA failed to follow its binding agency
regulations during the security clearance revocation process
(Count 1); NSA deprived her of a constitutionally protected
interest without due process of law (Count 2); NSA's requirement
that she submit to a polygraph examination violated the Fourth
Amendment (Count 3); NSA's policy of exempting certain
mathematicians from the polygraph requirement denied her equal
protection under the law (Count 4); NSA's and the Institute's
policies requiring polygraph examinations violated New Jersey
employment law (Count 5); and the Institute's failure to assist
Stehney in securing an exemption from the polygraph requirement
in the same manner it assisted similarly situated male employees
violated New Jersey anti-discrimination law (Count 6). Stehney
sought a writ of mandamus and other appropriate relief to require
NSA to reinstate her clearance or reconsider its revocation and
to require the Institute to reinstate her employment.
The district court dismissed Count 1 under Fed. R. Civ.
P. 12(b)(1) because Stehney lacked standing, her suit was barred
by the political question doctrine and by sovereign immunity, and
because she had not met the requirements for a writ of mandamus
under 28 U.S.C. § 1361. The district court dismissed Stehney's
constitutional claims in Counts 2, 3, and 4 under Fed. R. Civ. P.
12(b)(6) for failure to state a claim for which relief can be
granted. The court dismissed Count 5 because her state law claim
was preempted by federal law and declined to exercise
supplemental jurisdiction over Count 6 because all federal claims
had been dismissed. Stehney v. Perry, 907 F. Supp. 806, (D.N.J.
1995). Stehney now appeals the dismissal of Counts 1, 2, 4, 5,
and 6.
II. Jurisdiction and Standard of Review
We have jurisdiction under 28 U.S.C. § 1291. Although
we typically review mandamus decisions for abuse of discretion,
we review non-discretionary elements de novo. See Arnold v. BLaST
Intermediate Unit 17, 843 F.2d 122 (3d Cir. 1988). The remaining
issues on appeal are subject to plenary review. Hutchins v.
I.R.S., 67 F.3d 40, 42 (3d Cir. 1995) (dismissal for standing
subject to plenary review); State of New Jersey v. United States,
91 F.3d 463, 466 (3d Cir. 1996) (dismissal of political question
and dismissal pursuant to Fed. R. Civ. P. 12(b)(6) subject to
plenary review); Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690,
694 (3d Cir. 1996) (dismissal for sovereign immunity subject to
plenary review); Coleman v. Kaye, 87 F.3d 1491, 1497 (3d Cir.
1996) (jurisdiction questions subject to plenary review); Susan
N. v. Wilson School Dist., 70 F.3d 751, 763 (3d Cir. 1995)
(dismissal for preemption subject to plenary review).
III. Threshold Issues
A. Standing
The district court dismissed Stehney's claim that NSA
failed to follow its regulations in revoking her security
clearance because it found that she lacked standing. Because
Stehney was no longer employed at the Institute, the district
court observed she no longer possessed the "need to know"
classified information, a prerequisite for security clearance.
Nor did the district court believe the Institute was under an
obligation to rehire Stehney even if her security clearance were
restored. In these circumstances, the district court concluded
her claim was based on speculation "about what a third-party
might do in hypothetical future circumstances," and therefore
insufficient to establish standing and to warrant an effective
remedy. Stehney, 907 F. Supp. 806, 815-16. We disagree.
In Greene v. McElroy, 360 U.S. 474 (1959), an employee
was dismissed from a private company because of the revocation of
his government security clearance. The Supreme Court found the
plaintiff had standing to challenge the security clearance
decision: "We note our agreement . . . that petitioner has
standing to bring this suit. . . . Respondents' actions, directed
at petitioner as an individual, caused substantial injuries, and
were they the subject of a suit between private persons, they
could be attacked as an invasion of a legally protected right to
be free from arbitrary interference in private contractual
relationships." Greene v. McElroy, 360 U.S. at 493 n.22
(citations omitted).
Greene is factually indistinguishable from this case.
Stehney too has suffered a substantial injury -- loss of her
employment. She too was fired because of the government's
allegedly arbitrary interference in her private contractual
relationship with the Institute. Of course, we recognize that
Greene was decided in 1959 and since then, the Supreme Court has
clarified the test for standing. We will look, therefore, at the
recently articulated standard.
The Supreme Court established a three-part test for
Article III standing in Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc., 454
U.S. 464 (1982): "Art. III requires the party who invokes the
court's authority to show that he personally has suffered some
actual or threatened injury as a result of the putatively illegal
conduct of the defendant, and that the injury fairly can be
traced to the challenged action and is likely to be redressed by
a favorable decision." Id. at 472 (internal quotations and
citations omitted). See also Allen v. Wright, 468 U.S. 737
(1984) (applying Valley Forge test); Schering Corp. v. Food and
Drug Admin., 51 F.3d 390, 395 (3d Cir.) (same), cert. denied, 116
S. Ct. 274 (1995).
The current standing test also includes non-
constitutional elements. As the Court noted: "Even when a case
falls within these constitutional boundaries, a plaintiff may
still lack standing under the prudential principles by which the
judiciary seeks to avoid deciding questions of broad social
import where no individual rights would be vindicated and to
limit access to the federal courts to those litigants best suited
to assert a particular claim." Gladstone, Realtors v. Village of
Bellwood, 441 U.S. 91, 99 (1979). These non-constitutional
prudential considerations "require that: (1) a litigant assert
his [or her] own legal interests rather than those of third
parties; (2) courts refrain from adjudicating abstract questions
of wide public significance which amount to generalized
grievances; and (3) a litigant demonstrate that her interests are
arguably within the zone of interests intended to be protected by
the statute, rule, or constitutional provision on which the claim
is based." Wheeler v. Travelers Ins. Co., 22 F.3d 534, 538 (3d
Cir. 1994) (internal citations and quotations omitted; citing and
quoting from Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804
(1985); Warth v. Seldin, 422 U.S. 490, 499-500 (1975); and Valley
Forge Christian College v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464, 475 (1982)).
Application of these standards demonstrates that
Stehney possesses standing. Stehney's loss of her security
clearance and job, an alleged result of NSA's revocation of her
security clearance in disregard of agency regulations and her
rights to due process and equal protection, constitutes
sufficient injury for standing purposes and can be traced to
defendants' conduct. See Greene v. McElroy, 360 U.S. 474, 493
n.22 (1959) (plaintiff who lost private sector job when
government revoked his security clearance has standing to bring
suit against government alleging due process violations in
revocation process; government's actions were "directed at"
plaintiff and "caused substantial injury"). Her injury is also
likely to be redressed by a favorable decision, because NSA would
undoubtedly conduct a new review of Stehney's clearance if
ordered to do so.
Stehney has also satisfied the non-Article III
prudential standing requirements. She is asserting her own
rights and not those of a third party. Violation of
constitutional and regulatory rights is not an "abstract" or
"generalized grievance." Finally, as the target of NSA
regulatory action, Stehney's interests fall within the zone of
interests protected by the constitutional and regulatory
provisions on which her case is based.
Moreover, the Supreme Court and lower federal courts
have on several occasions allowed private sector and government
employees to bring suit against the government for claims arising
from the security clearance process. See, e.g., Cafeteria and
Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S.
886 (1961); Dorfmont v. Brown, 913 F.2d 1399 (9th Cir. 1990),
cert. denied, 499 U.S. 905 (1991); Dubbs v. C.I.A., 866 F.2d 1114
(9th Cir. 1989); Chesna v. United States Dept. of Defense, 850 F.
Supp. 110 (D. Conn. 1994). Like these plaintiffs, Stehney
asserts NSA violated her constitutional rights and failed to
follow its own regulations in revoking her clearance. She is
entitled to an adjudication of her claims on the merits. For
these reasons, we hold that Stehney has standing.
B. Political Question Doctrine
Even if Stehney possessed standing, the district court
found her mandamus claim raised non-justiciable political
questions. Stehney, 907 F. Supp. at 816.
In Department of Navy v. Egan, 484 U.S. 518, 526-29
(1988), a civilian employee of the Navy was denied a security
clearance. The question presented was whether the Merits System
Protection Board, a body that reviews Civil Service employment
decisions, had statutory authority to review the substance of the
underlying decision to revoke the security clearance. The
Supreme Court held that it did not. "The grant of a security
clearance to a particular employee, a sensitive and inherently
discretionary judgment call, is committed by law to the
appropriate agency of the Executive Branch." Id. at 527. "The
President, after all, is the 'Commander in Chief of the Army and
Navy of the United States.' U.S. Const., Art. II, §2. His
authority to classify and control access to information bearing
on national security and to determine whether an individual is
sufficiently trustworthy to occupy a position in the Executive
Branch that will give that person access to such information
flows primarily from this constitutional investment of power in
the President and exists quite apart from any explicit
congressional grant. . . ." Id. at 529-30 (citations omitted).
The Court recognized that review of security clearance decisions
raises problems of institutional competence. "Certainly, it is
not reasonably possible for an outside nonexpert body to review
the substance of such a judgment and to decide whether the agency
should have been able to make the necessary affirmative
prediction with confidence. Nor can such a body determine what
constitutes an acceptable margin of error in assessing the
potential risk." Id. at 529.
While Egan held only that the Merits System Protection
Board lacked the competence and authority to review security
clearance decisions under its authorizing statute, the courts of
appeals have consistently held that under Egan, the federal
courts may not review security clearance decisions on the merits.
See Brazil v. U.S. Dept. of Navy, 66 F.3d 193, 197 (9th Cir.
1995) (no judicial review of merits of security clearance
decisions under Title VII), cert.denied, 116 S. Ct. 1317 (1996);
Becerra v. Dalton, 94 F.3d 145 (4th Cir. 1996) (same); Guillot v.
Garrett, 970 F.2d 1320, 1325 (4th Cir. 1992) (no judicial review
of the merits of security clearance decisions under the
Rehabilitation Act of 1973); Dorfmont v. Brown, 913 F.2d 1399
(9th Cir. 1990) (no judicial review of merits of security
clearance decisions); Jamil v. Secretary, Dept. of Defense, 910
F.2d 1203, 1206 (4th Cir. 1990) (same); Hill v. Department of Air
Force, 844 F.2d 1407, 1413 (10th Cir.) (same), cert. denied, 488
U.S. 825 (1988). These decisions are based on grounds of
institutional competence, separation of powers and deference to
the Executive on national security matters. Thus, the federal
courts may not "second guess" the lawful decision of an agency
like NSA to terminate a person's access to classified
information.
The district court held that Egan supported the
conclusion that there was "a textually demonstrable
constitutional commitment" of the issue of access to classified
information to the Executive Branch in Art. II of the United
States Constitution and that judicial review of these decisions
violated the separation of powers. On this basis, the court
declined to adjudicate Stehney's claims. Stehney, 907 F. Supp.
at 816-17 (citing Baker v. Carr, 369 U.S. 186, 217 (1962)). If
Stehney had asked for review of the merits of an executive branch
decision to grant or revoke a security clearance, we would agree.
But not all claims arising from security clearance revocations
violate separation of powers or involve political questions.
Since Egan, the Supreme Court and several courts of appeals have
held the federal courts have jurisdiction to review
constitutional claims arising from the clearance revocation
process. Webster v. Doe, 486 U.S. 592, 603-04 (1988); Dorfmont
v. Brown, 913 F.2d 1399, 1402 (9th Cir. 1990); Jamil v.
Secretary, Dept. of Defense, 910 F.2d 1203, 1209 (4th Cir. 1990);
Dubbs. v. C.I.A., 866 F.2d 1114, 1120 (9th Cir. 1989); National
Fed'n of Fed. Employees v. Greenberg, 983 F.2d 286, 289-90 (D.C.
Cir. 1993). The courts also have power to review whether an
agency followed its own regulations and procedures during the
revocation process. Service v. Dulles, 354 U.S. 363 (1957);
Sampson v. Murray, 415 U.S. 61 (1974); Doe v. Casey, 796 F.2d
1508 (D.C. Cir. 1986), aff'd in part and rev'd in part, Webster
v. Doe, 486 U.S. 592 (1988) ; Jamil v. Secretary, Dept. of
Defense, 910 F.2d 1203, 1208; Hill v. Department of Air Force,
844 F.2d 1407, 1412 (10th Cir. 1988); Drumheller v. Department of
Army, 49 F.3d 1566, 1570-73 (Fed. Cir. 1995). See also Webster v.
Doe, 486 U.S. 592, 602 n.7; Dubbs v. C.I.A., 866 F.2d 1114, 1121
n.9.
Stehney has not asked for a review of the merits of
NSA's revocation decision. Rather, she asserts NSA violated her
constitutional and regulatory rights in revoking her clearance.
Therefore, we cannot agree with the district court that the
political question doctrine precludes review of her claims.
Accordingly, to the extent that Stehney seeks review of whether
NSA complied with its own regulations or violated her
constitutional rights, we believe she presents a justiciable
claim.
C. Sovereign Immunity
The district court also found that the United States
had not consented to be sued for failure to follow Defense
Department or NSA security-clearance regulations and, therefore,
Stehney was barred from bringing suit by the doctrine of
sovereign immunity. Stehney, 907 F. Supp. at 819-20. But in
Service v. Dulles, 354 U.S. 363 (1957), the Supreme Court held
that the government could be sued for failure to follow its own
regulations. Similarly, in Webster v. Doe, 486 U.S. 592, 603-05
(1988), the court held that federal courts had jurisdiction over
constitutional claims brought by a CIA ex-employee discharged for
security reasons.
It is true that "[a]bsent a waiver, sovereign immunity
shields the Federal Government and its agencies from suit."
F.D.I.C. v. Meyer, 510 U.S. 471 (1994) (citing Loeffler v. Frank,
486 U.S. 549, 554 (1988) and Federal Housing Admin., Region No. 4
v. Burr, 309 U.S. 242, 244 (1940). But the Administrative
Procedure Act, 5 U.S.C. §§ 701-706, contains a waiver of
sovereign immunity applicable to this case. Section 702 provides
in part:
A person suffering legal wrong because of
agency action, or adversely affected or
aggrieved by an agency action within the
meaning of a relevant statute, is entitled to
judicial relief thereof. An action in a
court of the United States seeking relief
other than money damages and stating a claim
that an agency or an officer or employee
thereof acted or failed to act in an official
capacity or under color of legal authority
shall not be dismissed nor relief therein be
denied on the ground that it is against the
United States or that the United States is an
indispensable party. The United States may
be named as a defendant in any such action,
and a judgment or decree or decree may be
entered against the United States.
Stehney's claim in count 1 falls within the scope of § 702
because she seeks non-monetary relief -- a review of her access
to secured information -- for a legal wrong caused by agency
action. The district court disagreed because it believed that 5
U.S.C. § 701(a) renders § 702 inapplicable in this case. Section
701(a) provides:
This chapter applies, according to the
provisions thereof, except to the extent that
--
(1) statutes preclude judicial review; or
(2) agency action is committed to agency
discretion by law.
The district court held that under § 701(a)(1), a statute, 50
U.S.C. § 835, precluded judicial review. Stehney, 907 F. Supp.
at 820. It is true that § 835 shields NSA employment decisions,
including security clearance decisions affecting persons
"employed in, or detailed or assigned to" the NSA, from APA
challenge. Doe v. Cheney, 885 F.2d 898, 904 (D.C. Cir. 1989); 50
U.S.C. § 831. But Stehney was employed in the private sector by
an NSA contractor, and was not "employed in, or detailed or
assigned to" NSA. Thus, § 835 is not applicable. If Congress
intended to shield security clearance decisions affecting NSA
contractor employees from APA review, it would have used language
to that effect. See Pub.L. 100-180 § 1121 (d) (statute
authorizing Department of Defense to conduct polygraph
examinations as part of counter-intelligence program
distinguishes between a "person employed by or assigned or
detailed to the National Security Agency" and "an employee of a
contractor of the National Security Agency").
The district court also held that under § 701(a)(2),
NSA security clearance decisions are "committed to agency
discretion by law," and are not reviewable. Stehney, 907 F.
Supp. at 820. But whether or not security clearance decisions
are committed to NSA's discretion, the agency must still follow
its own regulations and may be sued for failure to do so.
Service v. Dulles, 354 U.S. 363, 371-73 (1957) (though statute
granted agency "absolute discretion" regarding employee discharge
decisions, agency must still comply with its own regulations, and
court has jurisdiction to consider claims that it did not do so;
claim not barred by sovereign immunity); Accardi v. Shaughnessy,
347 U.S. 260, 268 (1954) (though government board has discretion
to make deportation decisions, board must still follow its own
regulations governing exercise of its discretion; claim not
barred by sovereign immunity); Sampson v. Murray, 415 U.S. 61, 71
(1974) (citing with approval ruling of Service v. Dulles); Doe v.
Casey, 796 F.2d 1508, 1519 (D.C. Cir. 1986) (agency subject to
suit for failing to follow its own regulations), aff'd in part
and rev'd in part on other grounds, Webster, 486 U.S. 592 (1988);
Hondros v. United States Civil Serv. Comm'n, 720 F.2d 278, 293
(3d Cir. 1983) (§ 701(a)(2) does not prohibit judicial review of
agency compliance with statutes or regulations). See alsoWebster v. Doe,
486 U.S. 592, 602 n.7.
Nor does § 701(a)(2) preclude judicial review of
constitutional challenges to an agency's exercise of discretion.
Webster v. Doe, 486 U.S. 592 (1988); Hondros, 720 F.2d at 293.
In Webster v. Doe, the Supreme Court held that even if a statute
grants an agency absolute discretion precluding judicial review
of the merits of agency decisions, the federal courts may still
consider constitutional challenges arising from the exercise of
discretion, at least absent clear congressional intent to
preclude such review. The court noted that this "heightened
showing" is required "to avoid the 'serious constitutional
question' that would arise if a federal statute were construed to
deny any judicial forum for a colorable constitutional claim."
Webster, 486 U.S. at 603. Since there is no statute expressly
precluding judicial review of colorable constitutional claims
arising from NSA's security clearance procedure, sovereign
immunity does not preclude judicial review of Stehney's
constitutional claims. For these reasons, count 1 is not barred
by sovereign immunity.
IV. The Merits
Although Stehney has standing and her claims are not
barred by sovereign immunity or the political question doctrine,
we will affirm the dismissal of Stehney's claims on the merits.
A. Count 1: Denial of Mandamus Relief
The district court ruled that even if Stehney possessed
standing and her count 1 claim were not barred by the political
question or sovereign immunity doctrines, it could not grant an
injunction in the nature of mandamus under 28 U.S.C. § 1361. "It
is not disputed that the remedy of mandamus is a drastic one, to
be invoked only in extraordinary situations." Allied Chem. Corp.
v. Daiflon, Inc., 449 U.S. 33, 34 (1980).
Stehney could have challenged NSA's alleged violations
of her constitutional rights or NSA's failure to follow its own
regulations under the Administrative Procedure Act. See, e.g.,
Webster v. Doe, 486 U.S. 592, 603-04 (1988); Dubbs v. C.I.A., 866
F.2d 1114 (9th Cir. 1989); Mangino v. Department of Army, 818 F.
Supp. 1432, 1438 (D. Kan. 1993); 5 U.S.C. § 706(2). Since this
alternative was available to Stehney, grant of a writ of mandamus
would be improper.
B. Count 1: NSA's Compliance with Regulations
Even if Stehney had properly framed her claim that NSA
failed to comply with its own regulations as a suit under the
Administrative Procedure Act, we would affirm dismissal of count
1 under Fed. R. Civ. P. 12(b)(6) because she alleges no facts
constituting a failure to follow the regulations.
Stehney alleges, and we accept as true for the purposes
of this appeal, that NSA revoked her security clearance solely
because she refused to take a polygraph examination in violation
of two specific agency regulations: DCID 1/14 §§ 5 and 12. DCID
1/14 § 5 provides:
Criteria for security approval of an
individual on a need-to-know basis for access
to SCI follow:
a. The individual must be stable; trustworthy;
reliable; of excellent character, judgment,
and discretion; and of unquestioned loyalty
to the United States.
b. The individual requiring access to SCI must
also be a US citizen.
c. The individual's immediate family must also
be U.S. citizens. . . .
d. Members of the individual's immediate family
and any other persons to whom he or she is
bound by affection or obligation should
neither be subject to physical, mental, or
other forms of duress by a foreign power or
by persons who may be or have been engaged in
criminal activity, nor advocate the use of
force or violence to overthrow the Government
of the United States or the alteration of the
form of Government of the United States by
unconstitutional means.
Stehney asserts NSA failed to comply with § 5 because it revoked
her security clearance for failure to take a polygraph
examination, not because she failed to meet the criteria for
access to classified information enumerated in the regulation.
Stehney also contends NSA violated DCID 1/14 § 12,
which provides in part:
When all other information developed on an
individual is favorable, a minor investigative
requirement that has not been met should not
preclude favorable adjudication. . . . The
ultimate determination of whether the granting of
access is clearly consistent with the interests of
national security will be an overall common sense
determination based on all available information.
Stehney asserts that § 12 requires NSA to make determinations on
a "whole person" standard, which precludes NSA from revoking a
security clearance solely because one investigative requirement -
- submission to a polygraph examination -- was not met.
DCID 1/14 §§ 5 and 12 must be read in context with DCID
1/14 as a whole and in conjunction with other relevant Department
of Defense and NSA security clearance process and polygraph
regulations, which establish a detailed and coherent scheme for
regulating access to classified information. DCID 1/14 §§ 7(e)
and 8(d) authorize, and NSA/CSS Reg. No. 122-06 § VI(10)
requires, the use of polygraph examinations as part of the
security clearance background investigation process. DCID 1/14
Annex A provides, in part:
Failure to Cooperate: Failure to provide
required security forms, releases, and other
data or refusing to undergo required security
processing or medical or psychological
testing will normally result in a denial,
suspension, or revocation of access.
NSA/CSS Reg. No. 122-06 provides, in part:
Refusal to consent to, or unsatisfactory
completion or evaluation of any aspect of the
programs and procedures listed in Section VI,
when implemented as a requirement for
continued access, may result in adverse
personnel/administrative actions such as
denial of continued access to NSA/CSS
protected information and spaces, limitations
or denial of additional accesses and/or
security courier privileges, denials of
TDY/PCS assignment, and/or termination of
employment.
DoD Reg. 5210.48-R, Ch. 1(A)(5) states, in part:
Persons who refuse to take a polygraph
examination in connection with determining
their continued eligibility for access . . .
may be denied access, employment, assignment,
or detail. . . .
These regulations establish that DCID 1/14 §§ 5 and 12
notwithstanding, refusal to take a polygraph examination
constitutes sufficient grounds for revocation of a security
clearance. For these reasons, we cannot agree that NSA's actions
violated the agency's own regulations. Stehney has not stated a
claim in count 1 for which relief may be granted, and the count
was properly dismissed.
C. Count 2: Due Process
Stehney contends NSA deprived her of a constitutionally
protected interest without due process of law. Finding she had
no protected property or liberty interest, the district court
also ruled that in any event, Stehney had received all the
process that was due. Stehney, 907 F. Supp. 819-21.
In Department of Navy v. Egan, 484 U.S. 518 (1988), the
Supreme Court stated that "it should be obvious that no one has a
'right' to a security clearance." Id. at 528. Since that time,
every court of appeals which has addressed the issue has ruled
that a person has no constitutionally protected liberty or
property interest in a security clearance or a job requiring a
security clearance. Jones v. Department of Navy, 978 F.2d 1223,
1225-26 (Fed. Cir. 1992); Dorfmont v. Brown, 913 F.2d 1399, 1403-
04 (9th Cir. 1990); Jamil, 910 F.2d 1203 (4th Cir. 1990); Doe v.
Cheney, 885 F.2d 898, 909-10 (D.C. Cir. 1989); Hill v. Department
of Air Force, 844 F.2d 1407, 1411 (10th Cir. 1988).
But even if Stehney possessed a constitutionally
protected liberty or property interest, the procedure used to
revoke Stehney's security clearance was sufficient to satisfy due
process. At least for that reason, her due process count was
properly dismissed.
In her complaint, Stehney asserts NSA denied her due
process by failing to allow her to confront witnesses against
her; failing to provide her with information collected during her
1989 reinvestigation; and denying her the opportunity to present
live testimony at a hearing. When measured against her claim
that her security clearance was revoked solely because she failed
to submit to the polygraph examination, these allegations cannot
constitute a denial of due process. The right to confront live
witnesses, review information from prior investigations, or to
present live testimony would have not have improved the fairness
of the revocation process. Stehney received advanced notice of
her security clearance revocation and an opportunity to present
documents and arguments against revocation. She also received
three administrative appeals. Where a security clearance is
denied or revoked because the subject of a background
investigation refuses to comply with investigation procedures
required by agency regulation, no more process is mandated.
Therefore, count 2 was properly dismissed.
On appeal, Stehney asserts two other claims under the
rubric of due process. First, she alleges the clearance
revocation procedures followed by NSA were not authorized by
Congress or the President. Yet Stehney fails to identify
specific NSA procedures which she believes were not authorized.
Instead, her claim rests entirely on the assertion in her brief
that her case presents facts analogous those in Greene v.
McElroy, 360 U.S. 474 (1959).
In Greene, the Department of Defense revoked a security
clearance on the basis of confidential information without
providing the clearance holder an opportunity to confront the
accusing witnesses at a hearing. The Supreme Court held that
absent express authorization from the President or Congress the
Department could not rely on a summary procedure that provided
virtually no due process protections. Stehney asserts that
revocation of her security clearance without an evidentiary
hearing is equally invalid absent express Presidential or
Congressional approval. But this case is distinguishable from
Greene in critical respects. Stehney asserts she was denied a
clearance because she refuses to comply with a routine background
investigation procedure -- the polygraph examination -- that was
expressly authorized by Congress. See 29 U.S.C. § 2006(b)(2).
In these circumstances, NSA does not need express authorization
from Congress or the President to revoke a security clearance
without a hearing.
Stehney also contends NSA's use of a polygraph is a
"random and arbitrary process" equivalent to flipping a coin.
Although not stated explicitly, the thrust of her argument seems
to be that regulations requiring a polygraph test violate
substantive due process. But nothing in the record indicates
that this claim was raised in the district court. For this
reason, it is waived on appeal. Venuto v. Carella Byrne, Bain,
Gilfillan, Cecchi & Stewart, P.C., 11 F.3d 385, 393 (3d Cir.
1993); Frank v. Colt Industries, Inc., 910 F.2d 90, 100 (3d Cir.
1990).
Even though we do not decide this issue, we note that
if Stehney's position were to prevail, national security agencies
could easily be foreclosed from using polygraph examinations.
The government contends that polygraph examinations are a useful
investigatory tool not only because they assist in distinguishing
between truthful and deceptive persons, but because they induce
examinees to make more comprehensive disclosures that are useful
in an investigation. For this reason, use of polygraph
examinations for national security clearance investigations would
appear to possess a rational basis sufficient to withstand
substantive due process scrutiny. See Anderson v. City of
Philadelphia, 845 F.2d 1216 (3d Cir. 1988) (use of polygraph for
preemployment screening by city police does not violate equal
protection or substantive due process; in absence of scientific
consensus, reasonable administrators could conclude that
polygraph testing can distinguish between truthful and deceptive
persons with greater accuracy than chance, and it was rational
for administrators to conclude that use of polygraph examinations
results in fuller, more candid disclosure).
D. Count 4: Equal Protection
Stehney contends NSA's exemption of "world class
mathematicians" from its polygraph requirement, but not her,
violates her constitutional right to equal protection because
there is no rational basis for this distinction. The district
court dismissed this claim. Stehney, 907 F. Supp. 823-24. We
agree.
As we have noted, there is no fundamental right to a
security clearance. See Department of Navy v. Egan, 484 U.S.
518, 528 (1988) ("It should be obvious that no one has a "right"
to a security clearance.") Nor are "non-world class
mathematicians" a protected class for equal protection purposes.
NSA's policy "must be upheld against equal protection challenge
if there is any reasonably conceivable state of facts that could
provide a rational basis for the classification." F.C.C. v.
Beach Communications, Inc., 508 U.S. 307, 313 (1993). NSA
exempts a small number of internationally renown mathematicians
from its polygraph requirement to facilitate their recruitment
for temporary consulting positions. United States Government
memorandum, "Security Processing for IDA Professional Staff
Members and World Class Mathematicians", JA 46. As the district
court aptly observed:
In light of the recognized potential for
"lost talent when suitable individuals refuse
to participate in a polygraph examination",
see Redefining Security, A Report to the
Secretary of Defense and the Director of
Central Intelligence, Joint Security
Commission (February 28, 1994) . . . it is
hardly irrational to think that there may be
rare and singular circumstances where the
unique talents of an especially gifted
cryptologist expert may be so important to
the protection of national security -- and
needed so desperately and immediately -- that
the interest in procuring his or her services
outweighs the increase in security risks
occasioned by foregoing a polygraph on a one-
time basis.
There is a rational basis for NSA's classification. Stehney's
equal protection claim was properly dismissed.
Stehney also claims NSA's polygraph exemption for world
class mathematicians, though facially neutral, has an indirect
discriminatory effect on women. But a facially neutral policy
does not violate equal protection solely because of
disproportionate effects. Instead a plaintiff must allege that a
classification was adopted "`because of,' not merely `in spite
of' its adverse effects upon an identifiable group." Personnel
Adm'r. of Massachusetts v. Feeney, 442 U.S. 256, 271-72 (1979).
"Proof of . . . discriminatory intent or purpose is required to
show a violation of the equal protection clause." Village of
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S.
252, 265 (1977). Stehney did not allege that the facially
neutral exemption from the polygraph requirement was adopted with
the intent to discriminate against women, and so her claim was
properly dismissed.
E. Count 5: New Jersey Employment Law Violation
New Jersey law provides "a cause of action for wrongful
discharge when the discharge is contrary to a clear mandate of
public policy." Pierce v. Ortho Pharmaceutical Corp., 84 N.J.
58, 72, 417 A.2d 505, 512 (1980). Under New Jersey law, an
employer commits a misdemeanor if it requests an employee to take
a lie detector test as a condition of employment. Relying on
this statute as evidence of New Jersey's public policy, Stehney
contends she has a state law cause of action for wrongful
discharge against NSA and the Institute. The district court held
the New Jersey anti-polygraph statute was preempted by a federal
statute, the Employee Polygraph Protection Act (EPPA), 29 U.S.C.
§ 2001-2009. Stehney, 907 F. Supp. at 824-25. We agree.
In English v. General Electric Co., 496 U.S. 72 (1990),
the Supreme Court held state law may be preempted in three
circumstances:
First, Congress can define explicitly the
extent to which its enactments preempt state
law. . . . Second, in the absence of explicit
statutory language, state law is pre-empted
where it regulates conduct in a field that
Congress intended the Federal Government to
occupy exclusively. . . . Finally, state law
is pre-empted to the extent that it actually
conflicts with federal law. Thus, the Court
has found preemption where it is impossible
for a private party to comply with both state
and federal requirements, or where state law
stands as an obstacle to the accomplishment
of the full purposes and objectives of
Congress.
English, 496 U.S. at 78-79 (internal quotations and citations
omitted).
Application of these standards demonstrates the New
Jersey statute is preempted by federal law.
As a threshold matter, we note NSA was never Stehney's
employer. Furthermore, the Employee Polygraph Protection Act, 29
U.S.C. §§ 2001-2009, exempts NSA from coverage under the New
Jersey statute. Sections 2006 and 2009 of the Act provide that
states may not regulate or prohibit the federal government from
requiring employees of NSA contractors to take polygraph
examinations. Stehney was an employee of a contractor to NSA,
and falls within the scope of the Act's preemption provisions.
For that reason, the New Jersey polygraph statute is preempted to
the extent it may prohibit NSA from administering a polygraph
examination to a person in Stehney's position. No public policy
can flow from a preempted statute. Stehney therefore has no
state law action for wrongful discharge against NSA.
The preemption analysis with respect to the Institute
is different. The Institute was Stehney's employer and thus
falls within the scope of the New Jersey polygraph statute.
Moreover, the explicit language of 29 U.S.C. § 2006(b)(2)(A)(iii)
applies only to actions by the federal government, and does not
expressly preempt state regulation of private sector NSA
contractors. Nevertheless, it is clear that the New Jersey
statute is preempted when applied to private sector NSA
contractors, for it comprises "an obstacle to the accomplishment
of the full purposes and objectives" of federal law. Were the
courts to give effect to the New Jersey polygraph law in this
context, it would undermine the clear purpose and objective of 29
U.S.C. §§ 2006 and 2009 -- to shield use of polygraph
examinations by the federal government for national security
purposes from state regulation. It would also, incidentally,
prevent any New Jersey employer from serving as an NSA
contractor, an impermissible state interference with exclusive
federal responsibility in matters of national security.
F. Count 6: New Jersey Anti-Discrimination Law
After dismissing counts 1 through 5, the district court
declined to exercise supplemental jurisdiction over the remaining
state law claim pursuant to 28 U.S.C. § 1367. This decision is
committed to the discretion of the district court. Growth
Horizons, Inc. v. Delaware County, Pa., 983 F.2d 1277, 1284-85
(3d Cir. 1993). Because all federal claims were correctly
dismissed and the district court found that dismissal of the
remaining state claim would not be unfair to the litigants or
result in waste of judicial resources, we see no abuse of
discretion.
V. Conclusion
For the foregoing reasons, we will affirm the judgment
of the district court.