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

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…

(dissenting) :

McKeand, an engineer for a major defense contractor, held a “secret” security clearance from 1960 to 1967. At his employer’s request, he applied to the Department of Defense for a “top secret” security clearance in 1967. The Department of Defense, during its investigation of MeKeand’s application, discovered letters which indicated that Mc-Keand was a homosexual. Also, Mc-Keand submitted a written statement which reviewed his infrequent homosexual activity during the last three decades.

The Department of Defense informed McKeand that his security clearance would be revoked. Department of Defense administrative hearings upheld this revocation decision. McKeand’s action in district court ended in summary judgment in favor of the Department of Defense. McKeand now appeals that decision to this court.

This court must decide whether the Department of Defense’s decision to deny McKeand a security clearance at any level is supported by substantial evidence on the record studied in its entirety. The majority, despite its reservations, applies this standard as stated in Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 (1951):

I cannot agree…

490 F.2d 1262 9 Fair Empl.Prac.Cas. 1396 , 6 Empl. Prac. Dec. P 8896 Robert Wallace McKEAND, Petitioner-Appellant, v. Melvin LAIRD, Secretary of Defense, et al., Respondents-Appellees. No. 71-2169. United States Court of Appeals, Ninth Circuit. Oct. 9, 1973 Rehearing Denied Jan. 30, 1974. Burton Marks (argued), Beverly Hills, Cal., for petitioner-appellant. James R. Dooley, Asst. U.S. Atty. (argued), Robert L. Meyer, U.S. Atty., Frederick M. Brosio, Jr., Asst. U.S. Atty., Los Angeles, Cal., for respondents-appellees. Before MERRILL and WALLACE, Circuit Judges, and PECKHAM, * district judge. WALLACE, Circuit Judge: 1 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 McKeand'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.' McKeand's administrative appeal was unsuccessful. The security…