118 F.3d 786 (D.C. Cir. 1997), 96-5108, American Federation of Government Employees, AFL-CIO v. Department of Housing & Urban Development

Docket Nº:96-5108, 96-5141.
Citation:118 F.3d 786
Party Name:AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,AFL-CIO, et al., Appellees, v. DEPARTMENT OF HOUSING & URBAN DEVELOPMENT, et al., Appellants. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., Appellees, v. William J. PERRY, Secretary of Defense, et al., Appellants.
Case Date:July 15, 1997
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 786

118 F.3d 786 (D.C. Cir. 1997)

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,AFL-CIO, et al., Appellees,

v.

DEPARTMENT OF HOUSING & URBAN DEVELOPMENT, et al., Appellants.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et

al., Appellees,

v.

William J. PERRY, Secretary of Defense, et al., Appellants.

Nos.96-5108, 96-5141.

United States Court of Appeals, District of Columbia Circuit

July 15, 1997

Argued Feb. 25, 1997.

Page 787

[326 U.S.App.D.C. 186] Appeals from the United States District Court for the District of Columbia (No. 92cv01779) (No. 92cv02184).

Edith S. Marshall, Assistant U.S. Attorney, argued the cause for appellants in case no. 96-5108, with whom Frank W. Hunger, Assistant Attorney General, Stephen W. Preston, Deputy Assistant Attorney General, Eric H. Holder, Jr., U.S. Attorney, R. Craig Lawrence, Assistant U.S. Attorney, Leonard Schaitman, Attorney, and Freddi Lipstein, Senior Counsel, U.S. Department of Justice, were on the briefs.

Kevin M. Grile, Assistant General Counsel, American Federation of Government Employees, AFL-CIO, argued the cause for appellees, with whom Mark D. Roth, General Counsel, and Charles A. Hobbie, Deputy General Counsel, were on the brief.

Gregory O'Duden, Elaine Kaplan and Barbara A. Atkin were on the brief for amicus curiae National Treasury Employees Union in case no. 96-5108.

Freddy Lipstein, Senior Counsel, U.S. Department of Justice, argued the cause for appellants in case no. 96-5141, with whom frank W. Hunger, Assistant Attorney General, Stephen W. Preston, Deputy Assistant General, Eric H. Holder, Jr., U.S. Attorney, R. Craig Lawrence and Edith S. Marshall, Assistant U.S. Attorneys, and Leonard Schaitman, Attorney, U.S. Department of Justice, were on the briefs.

Stuart A. Kirsch, Assistant General Counsel, American Federation of Government Employees, AFL-CIO, argued the cause for appellees, with whom Mark D. Roth, General Counsel, was on the brief.

Gregory O'Duden, Elaine Kaplan and Barbara A. Atkin were on the brief for amicus curiae National Treasury Employees Union in case no. 96-5141.

Before GINSBURG, SENTELLE and RANDOLPH, Circuit Judges.

SENTELLE, Circuit Judge:

In companion cases, the Department of Housing and Urban Development ("HUD") and the Department of Defense ("DOD") challenge orders of the district court enjoining

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[326 U.S.App.D.C. 187] the agencies from requiring designated employees to answer questionnaires concerning, among other things, illegal drug use and financial history. Because the two cases present the same issue as a matter of constitutional law, we will address them with one opinion. The district court held that certain questions posed by HUD and DOD violate the employees' constitutional right to keep private information with which the government does not have a legitimate concern. While we have grave doubts that such a right exists, we hold that, even assuming a constitutional right to nondisclosure of personal information, the questions would be permissible. We reverse.

I. HUD BACKGROUND

Regulations promulgated by the Office of Personnel Management ("OPM") require that agencies evaluate the risk level of every competitive service position in terms of the potential for adverse impact from the misconduct of an employee in that position. 5 C.F.R. § 731.302(a). Employees may be subjected to background investigations, the scope of which is dictated by the risk level. Id. In this case, HUD determined that approximately 2,500 employees would potentially be investigated using the Standard Form 85P, Questionnaire for Public Trust Positions. ("SF 85P"). A public trust position is one "involving policymaking, major program responsibility, law enforcement duties, or other duties demanding the highest degree of public trust; and positions involving access to or operation or control of unclassified confidential or financial records, with a relatively high risk for causing grave damage or realizing a significant personal gain." 61 Fed.Reg. 398.

Information elicited by the SF 85P is used to determine whether the person is suitable for employment or, in the case of incumbent employees, is suitable for continued employment, in a public trust position. 5 C.F.R. §§ 731.301, 731.302. Failure to provide the requested information may result in removal from federal employment. A challenge to the SF 85P was brought by individual incumbent employees at HUD and by the American Federation of Government Employees ("AFGE") on behalf of its members. The individual plaintiffs, all of whom are long-term employees, were determined to be in "public trust positions" because of their access to a computer database known as the Line of Credit Control System ("LOCCS") which controls $10 billion in annual disbursements. The individual plaintiffs each have "review" privileges under LOCCS, meaning that they can approve and reject vouchers, alter data, and approve payments under certain circumstances. HUD determined that employees with access to LOCCS were properly designated public trust employees because federal funds could be lost or redirected by the employees' misconduct and because the privacy interests of program beneficiaries could be compromised.

The plaintiffs sought to enjoin HUD from subjecting current HUD employees to periodic reinvestigation using the SF 85P. In particular, the plaintiffs challenged three items on the form. Question 21 on the SF 85P asks:

  1. In the last year, have you illegally used any controlled substance, for example, marijuana, cocaine, crack cocaine, hashish, narcotics (opium, morphine, codeine, heroin, etc.), amphetamines, depressants (barbiturates, methaqualone, tranquilizers, etc.), hallucinogenics (LSD, PCP, etc.) or prescription drugs?

  2. In the last 7 years, have you been involved in the illegal purchase, manufacture, trafficking, production, transfer, shipping, receiving, or sale of any narcotic, depressant, stimulant, hallucinogen, or cannabis, for your own intended profit or that of another?

    Question 22 requires employees to reveal certain personal financial information. It reads as follows:

  3. In the last 7 years, have you, or a company over which you exercised some control, filed for bankruptcy, been declared bankrupt, been subject to a tax lien, or had legal judgment rendered against you for a debt?

  4. Are you now over 180 days delinquent on any loan or financial obligation?

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    [326 U.S.App.D.C. 188] Finally, the form requires the employee to sign a release that states:

    I authorize any investigator, special agent, or other duly accredited representative of the authorized Federal agency conducting my background investigation, to obtain any information relating to my activities from individuals, schools, residential management agents, employers, criminal justice agencies, credit bureaus, consumer reporting agencies, collection agencies, retail business establishments, or other sources of information. This information may include, but is not limited to, my academic, residential, achievement, performance, attendance, disciplinary, employment history, criminal history record information, and financial and credit information. I authorize the Federal agency conducting my investigation to disclose the record of my background investigation to the requesting agency for the purpose of making a determination of suitability or eligibility for a security clearance.

    The employees and the AFGE challenged the questions on both constitutional and statutory grounds. The government responded by moving to dismiss or in the alternative for summary judgment. Plaintiffs also moved for summary judgment. Granting the plaintiffs' motion, the district court held that "[t]he Constitution protects a citizen's privacy interest, inter alia, with respect to personal information with which the government does not have a legitimate concern." According to the district court, courts are required to "balance the individuals' interests in nondisclosure against the government's interest in obtaining the information." Accordingly, the district court concluded that the government had not presented an adequate justification for compelling disclosure of the drug use or financial history, or for compelling the plaintiffs to sign the release form. This appeal followed.

    II. DOD BACKGROUND

    DOD regulations stipulate that a person is eligible for access to classified information or for placement in a position deemed to be "sensitive" only if "based on all available information, the person's loyalty, reliability, and trustworthiness are such that entrusting the person with classified information or assigning the person to sensitive duties is clearly consistent with the interests of national security." 32 C.F.R. § 154.6(b). Incumbent employees may be subject to reinvestigation to examine their fitness for continued employment. To evaluate a person's fitness for employment in a position with access to classified information or in a position designated "critical sensitive," DOD has used questionnaires known as the DD Form 398 and the DD Form 398-2 ("DD Forms") which have recently been superseded by the Standard Form 86 ("SF 86"). Failure to provide requested information might result in the denial of security clearance and/or removal from a sensitive position.

    Individual employees and the AFGE brought suit alleging that the DD Forms violate the employees' constitutional right to privacy, their fifth amendment right against selfincrimination, and the Privacy Act, 5 U.S.C. § 552a. The individual plaintiffs, all incumbent civilian employees of DOD, include a cement finisher at Robins Air Force Base, a sheet metal worker at Robins, and an administrative contracting officer.

    The challenged items on the DD forms include a question regarding financial history which asks:

  5. Have you ever filed a petition under any chapter of the bankruptcy code (to include Chapter 13)?

  6. Have you...

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