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PHONG HUYNH v. CARLUCCI

February 11, 1988

Phong T. Huynh and Vien U. Huynh, individually and on behalf of others similarly situated, Plaintiffs
v.
Frank C. Carlucci, Secretary, Department of Defense, Defendant



The opinion of the court was delivered by: HOGAN

 Thomas F. Hogan, United States District Judge.

 Findings of Fact

 Preliminary Matters

 1. Plaintiffs, two naturalized United States citizens of Vietnamese national origin employed by the Department of Defense ("DoD"), filed this action challenging the constitutionality of a provision (the "Regulation") of the new comprehensive DoD Personnel Security Program (the "Security Program") that denies security clearance to recently-naturalized citizens from 29 countries. 52 Fed. Reg. 11,227 (to be codified at 32 C.F.R. § 154, et seq.). On December 24, 1987, plaintiffs moved for a preliminary injunction against enforcement of the Regulation. A hearing on this motion was held before the Court on February 3, 1988.

 2. Based on the undisputed facts described below, this Court grants plaintiffs' motion for a preliminary injunction against enforcement of the Regulation against the two named plaintiffs.

 3. Plaintiffs' pending motions for class certification and to add a third named plaintiff will be decided after the defendant has had an opportunity to respond.

 4. This Court has jurisdiction over the subject matter of this action pursuant to Section 1331 of Title 28 of the United States Code. Venue is properly laid in the District of Columbia.

 5. Plaintiffs are siblings currently employed at the DoD's Naval Surface Warfare Center ("NSWC") in Dahlgren, Virginia. NSWC is engaged in weapons research.

 6. Plaintiff Phong Huynh is an electrical engineer in the Digital Systems Branch, Command Support Systems Division of the Electronic Systems Department. (12/23/87 Phong Huynh Aff. para. 7.)

 7. Plaintiff Vien U. Huynh, a recent college graduate with a bachelor's degree in computer science, began her NSWC employment as a computer scientist in the Tactical Computer Systems Branch, Command Support Systems Division of the Electronics Systems Department at NSWC. (12/23 Vien Huynh Aff. para. 6.) On August 31, 1987, Ms. Huynh was assigned to NSWC's Public Works Department, where security clearance is not required for her to do computer-related work. (12/23/87 Vien Huynh Aff. para. 11.) Ms. Huynh began working in the Public Works Department on September 8, 1987. (12/23/87 Vien Huynh Aff. para. 11.)

 8. The Huynhs are natives of South Vietnam who escaped communist rule there in 1978, immigrated to the United States in 1979 and became United States citizens in 1985. (12/23/87 Phong Huynh Aff. paras. 2, 3, 4; 12/23/87 Vien Huynh Aff. paras. 2, 3.)

 9. Defendant Frank C. Carlucci is Secretary of Defense. As such, he is responsible for the continued enforcement of the Regulation being challenged by plaintiffs.

 The Regulation

 10. The Defense Department's new Personnel Security Program became effective as of January 2, 1987. Among other things, the Security Program created policies and procedures governing personnel "security clearance" for classified defense-related information.

 11. The Security Program applies to "DoD civilian personnel, members of the Armed Forces, excluding the Coast Guard in peacetime, contractor personnel and other personnel who are affiliated with the Department of Defense . . . ." 32 C.F.R. § 154.2(b).

 12. Under the Security Program, security clearance is granted to a United States citizen if he or she satisfies a "personnel security standard" requiring that

 32 C.F.R. § 154.6(b).

 13. Under the new Security Program and its predecessor programs, persons affiliated with the Defense Department could receive one of three levels of clearance, which, in descending order of restrictiveness, are "TOP SECRET," "SECRET" and "CONFIDENTIAL." 32 C.F.R. § 154.16(b). Prior to receiving "final" security clearance, a DoD employee may for a period of time receive "interim" clearance.

 14. Under the Regulation, however, certain naturalized United States citizens are denied security clearance even if they satisfy the aforementioned "personal security standards." The Regulation denies security clearance to naturalized citizens whose "country of origin has been determined to have interests adverse to the United States . . . or who have resided in such countries [sic] for a significant period of their life." 32 C.F.R. § 154.16(c).

 15. Pursuant to the Regulation, DoD has promulgated a list of 29 such countries or areas. 32 C.F.R. § 154, Appendix G. One of the nations on the list is plaintiffs' country of origin, South Vietnam.

 16. Although the People's Republic of China does not appear on this list, defendant has admitted that DoD has been secretly applying the Regulation to naturalized United States citizens from that nation. (1/19/88 Donnelly Dec. para. 10.)

 17. Naturalized citizens from one of the 29 explicitly-proscribed countries or areas and from the People's Republic of China are precluded from ...


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