*2 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 *4 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 *5 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,
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,
I.R.S.,
1996) (jurisdiction questions subject to plenary review); Susan
N. v. Wilson School Dist.,
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,
In Greene v. McElroy,
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,
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,
Application of these standards demonstrates that
*7
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,
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,
B. Political Question Doctrine
Even if Stehney possessed standing, the district court
found her mandamus claim raised non-justiciable political
questions. Stehney,
In Department of Navy v. Egan,
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,
1995) (no judicial review of merits of security clearance
decisions under Title VII), cert.denied,
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,
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,
Secretary, Dept. of Defense,
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,
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,
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 *10 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,
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,
Nor does § 701(a)(2) preclude judicial review of
constitutional challenges to an agency's exercise of discretion.
Webster v. Doe,
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,
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.,
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,
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 *13 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,
In Department of Navy v. Egan,
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,
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
*15
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.,
1993); Frank v. Colt Industries, Inc.,
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,
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,
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.,
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 *16 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,
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,
In English v. General Electric Co.,
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 *17 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,
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.,
V. Conclusion
For the foregoing reasons, we will affirm the judgment *18 of the district court.