dissenting:
Having been a member of the panel of this court in Newell v. Ignatius, 132 U. S.App.D.C. 252, 407 F.2d 715 (1969), I must respectfully dissent. In Newell an enlisted man on active duty in the United States Naval Reserve brought suit to have expunged from his naval records statements “impugning his loyalty or security status.” 132 U.S.App.D.C. at 253, 407 F.2d at 716. After dismissal of his action by the District Court, in this court he argued that since he was soon to leave the Navy, these references in his military record might adversely affect his opportunities in the civilian job market. The Navy admitted that the statements were in his Navy file, but stated further: “Seaman Newell’s loyalty is not questioned. * * * [T]here is no basis to allege that Seaman Newell is a security risk.” 132 U.S.App.D.C. at 254, 407 F.2d at 717.
On the basis of that record, and approaching the matter pragmatically, this court made the following ruling:
“From this statement of the Navy Department and from the representation of the Government at argument, we conclude that the Navy is fully prepared and willing, if indeed it has not already done so, to take all necessary actions to expunge all references which in any way allude to ‘disloyalty’ or ‘security.’ We therefore -accept the Government’s representation that these steps will be consummated forthwith if that has not already been done; Government counsel will promptly confirm these representations by appropriate communication to this court.
“So ordered.”
Ibid. In due course the Government counsel confirmed that all the objectionable references had been physically expunged from Newell’s military record.
In Newell appellant initially sought, not only expungement of the adverse references in his file, but also a court *190order invalidating his disenrollment from the Naval Reserve Officer Candidate Program. As here with respect to appellant’s failure to obtain security-clearance, the Navy in Newell assured the court that the adverse information in the file was unrelated to Newell’s dis-enrollment from the Program. Nevertheless, the court ordered the Navy to expunge the adverse information from Newell’s record. I think we should do the same thing here.
With the Newell1 precedent before them, why appellees here refuse to expunge the silly (except to silly people) statements2 in suit from appellant’s record is a mystery to me, unless, of coursé, appellees intend to use them again against appellant in the event he is ever considered again for a job requiring security clearance. If this is the reason for the apparent bureaucratic intransigence, and the Government’s brief on appeal clearly so indicates,3 then the harm to appellant is obvious and continuing. The questioned statements not only denied him a security clearance at the inception of this litigation ;4 they preclude the reasonable possibility that he will ever even be considered for a job requiring security clearance as long as he is in Government service. Thus appellant’s case' is significantly stronger than that of the ' employee of the Government contractor in Greene v. McElroy, 360 U.S. 474, 79 S. Ct. 1400, 3 L.Ed.2d 1377 (1959).5 Ap*191pellant here is a career Government employee, whereas Greene was a private employee working on a Government contract. At the very least, as in Greene, appellant is entitled to an appropriate hearing. The nearest he came to a hearing here was a confrontation with his supervisor who berated him: “We know the kind of person you are. Come on now, confess, who are these people?”
Expunging the objectionable statements here will not, as the Government suggests, open all the dossiers being kept on Government employees to inspection by the Government employees concerned, and thus stimulate an avalanche of lawsuits designed to have objectionable file information expunged. The objectionable material in appellant’s file surfaced because it resulted in his being denied security clearance. Appellant did not even know of the information until he in effect was charged by his supervisor with being a homosexual.
I respectfully dissent.
. The Government attempts to distinguish Newell, stating in its brief, p. 21, that this “court ordered the Navy to expunge baseless references to appellant’s loyalty from naval records” because “there was no showing that the naval record was required to be ‘maintained in confidence.’ ” The question of maintaining Newell’s naval records in confidence was not an issue in the case. Moreover, anyone who has been around government any length of time knows how “confidential” derogatory personnel records are, particularly where the employee is in effect charged with being a homosexual.
. The statements were to the effect that two of appellant’s friends “have homosexual mannerisms.”
. The Government argues that the gathering of the type of information in suit is specifically authorized. Its Brief at p. 11 states:
“ * * * The information consists of statements of persons who were of the opinion that some of plaintiff’s associates appeared to them to have mannerisms which are often those associated with persons who are homosexual' or who appear to be homosexual. Of course, this information is clearly relevant to the investigative criteria of Section 8 (a) (1) (iii) of Executive Order 10450, to wit: ‘Any . . . infamous immoral or notoriously disgraceful conduct ... or sexual perversion.’ ”
The Government also argues that the information must be maintained for future use. At pp. 16-17 the Government brief reads:
“Thus, we see that Section 9(c) of Executive Order 10450 requires the physical retention of the investigative material concerning plaintiff. The interest of the government in preserving such information is apparent. * * * If a future clearance were sought there would be delay, and also the investigation might be thwarted by reason of the fact that persons interviewed concerning him previously were no longer available, and persons having information favorable [or unfavorable] to him might not be available.”
(Emphasis in original.)
. The Government piously argues that the homosexual information in his file was not responsible for denying appellant security clearance. According to its brief, pp. 14-15, it appears that after considering the information it was decided by the Secretary that appellant’s job did not require security clearance after all. An inference, perhaps nearer to the truth, would be that the Secretary did not have either the nerve or the stomach to fire him on the basis of this information so he redesignated appellant’s job as nonsensitive.
. The Court in Greene did not rest its decision on constitutional grounds. It held that the Secretary had no authority from the President or Congress to deny Greene security clearance which cost him his job “in a proceeding in which he was not afforded the safeguards of confrontation and crossexamination.” 360 U.S. at 508, 79 S.Ct. at 1420. Even the substantial due process accorded Green was insufficient. Here appellant had no hearing; *191he was not told who his accusers were or even which of his friends were allegedly homosexual. He was merely told by his supervisor, acting, we are advised by the Government, not as his supervisor but as “Chief of the Employee Relations and Security Section — Deputy Personnel Security Officer,” that he should confess and name hi§~homosexual friends.