750 F.2d 89 (D.C. Cir. 1984), 83-1510, Clark v. Library of Congress

Docket Nº:83-1510.
Citation:750 F.2d 89
Party Name:Harry Kenneth CLARK, Appellant v. LIBRARY OF CONGRESS, et al.
Case Date:December 11, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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750 F.2d 89 (D.C. Cir. 1984)

Harry Kenneth CLARK, Appellant



No. 83-1510.

United States Court of Appeals, District of Columbia Circuit

December 11, 1984

Argued April 27, 1984.

As Amended Dec. 24, 1984.

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Appeal from the United States District Court for the District of Columbia (Civil Action No. 80-00554).

Clifford B. Hendler, Washington, D.C., with whom Arthur F. Mathews and Arthur B. Spitzer, Washington, D.C., were on brief, for appellant.

John Williams Polk, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on brief, for appellees.

Before ROBINSON, Chief Judge, WALD, Circuit Judge, and PALMIERI, [*] Senior District Judge.

Opinion for the Court filed by Senior District Judge PALMIERI.

PALMIERI, Senior District Judge.

Harry Kenneth Clark appeals from a final judgment entered in the District Court for the District of Columbia after a non-jury trial dismissing his complaint against the Library of Congress ("Library") and Daniel J. Boorstin, the Librarian of Congress. This case involves issues regarding Clark's right to freedom of belief and association guaranteed by the first amendment and a related claim that Clark's employment status with the Library was adversely affected. For the reasons discussed below, we reverse.


Clark was a reshelver of books at the Library between 1973 and 1979. Clark's position was classified by the Library as non-sensitive to any security interests. His duties were to shelve, circulate, and retrieve periodical publications available to the public. The parties stipulated that Clark had no access to classified material and that he had no supervisory or policymaking

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responsibilities. Clark had an excellent work record at the Library.

From January, 1973, through September, 1976, Clark attended college part-time and worked full-time at the Library. In September, 1976, Clark transferred to a part-time position at the Library in order to attend college full-time. While in college, Clark attended several meetings of the Young Socialist Alliance ("YSA"), a lawful political group affiliated with the Socialist Workers Party ("SWP"), another lawful political group, and his name was added to the mailing list of the YSA. "[T]he SWP does not advocate the use of violence. It seeks instead to achieve social change through the political process, and its members regularly run for public office." Brown v. Socialist Workers '74 Campaign Committee (Ohio), 459 U.S. 87, 88, 103 S.Ct. 416, 418, 74 L.Ed.2d 250 (1982). Accord, Scythes v. Webb, 307 F.2d 905, 909 (7th Cir.1962).

In 1975, several informers reported Clark's YSA activities to the Federal Bureau of Investigation ("FBI"). In January, 1976, the FBI notified the Civil Service Commission of these activities, and the Commission in turn informed the Library's Personnel Security Office.

In June, 1976, the Library, in writing, requested the FBI to conduct a five-part investigation into Clark's political beliefs and activities. The Library also asked the FBI to develop any other information that might "reflect adversely on his suitability for continued Federal employment." 1 Testimony by Library personnel showed that the Library expected Clark to be subjected by the FBI to a "full field investigation," and such an investigation was in fact carried out. During the course of this investigation, the FBI interviewed eight of Clark's co-workers, including his supervisors, at the Library. This inquiry was not limited to Clark's political beliefs. Among other questions, the FBI asked about his activities while on vacation, about his involvement with religious groups, and whether Clark was a homosexual. The FBI also interviewed four of Clark's co-workers on earlier jobs. Two of Clark's former teachers were interviewed, along with three of his former neighbors in New York and four of his or his family's neighbors in Washington, D.C. The FBI also investigated Clark's high school and college records and sought information about his parents, siblings, and grandmother. In addition, the FBI checked the records of the Minneapolis, St. Paul and District of Columbia Police Departments, the Hennepin County, Minnesota, Sheriff's Office, the Ramsey County, Minnesota, Sheriff's Office, the District of Columbia Bureau of Motor Vehicles, and the Civil Service Commission Bureau of Personnel Investigation. The FBI also investigated Clark's credit record. None of these checks provided any information to suggest that Clark was a security risk or otherwise unsuitable for federal employment.

Clark was aware of the investigation while it was going on and was acutely embarrassed by it. Moreover, as a result of the investigation Clark's family and friends specifically advised Clark to cease his political activities. The uncontradicted testimony established that Clark suffered mental anguish and was chilled in the exercise of his first amendment rights as a result of the investigation.

The FBI's report was forwarded to the Civil Service Commission and then to the Library. The Library concluded that no

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further investigative or adjudicative action needed to be taken with respect to Clark on this matter.

Clark graduated from college in May, 1977, and thereupon sought to return to work full-time at the Library. Over the next two years, Clark applied for forty low-level, non-sensitive positions at the Library. The Library stipulated that he was qualified for at least 17 of these positions. However, Clark was selected for none of these positions. In January, 1979, Clark left the Library, in part because of his failure to be promoted and in part because his knees began to bother him. Through Freedom of Information Act requests, Clark obtained the FBI files on the investigation of him and thereupon instituted this action.

Clark made two claims at trial. First, he claimed that given his low-level, non-sensitive, non-policymaking position, the full field investigation violated his first amendment rights of speech and association and invaded his privacy. Clark's second claim was for employment discrimination--Clark claimed that his failure to obtain any of the forty relatively low-level positions for which he applied during 1977 through 1979 was the result of his political beliefs and associations and the investigation into those beliefs and associations. For relief, Clark sought compensatory and punitive damages, an injunction against any Library requests for further investigations if he resumed work there, correction of his personnel records, and reinstatement in a position he would have occupied had his constitutional rights not been violated.


Clark claims that in view of his non-sensitive, non-policymaking position, the full field investigation carried out on him was unwarranted and violated his first amendment rights of speech and association and invaded his privacy. The district court declined to decide whether Clark's constitutional rights were violated by the investigation. Rather, the court simply assumed, on the basis of two cases decided in contexts very different from the instant case, that the Library had a right to make some investigation into Clark's employment suitability. Given this premise, the district court held, without citing any authority, that only the FBI and not the Library was responsible if the investigation was unreasonably intrusive or inhibiting. 2

Before turning to the substance of Clark's claims, we must address the Library's argument that Clark's claim is barred under the Supreme Court's decision in Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). The Library relies upon Laird for the proposition that Clark suffered no direct injury to his first amendment rights and hence has no standing to challenge the lawfulness of the investigation carried out on him.

Laird involved a challenge to the "very existence" of an Army data-gathering system designed to collect information relating to civil disorders in the early 1970's. Id. at 13, 92 S.Ct. at 2325. The plaintiffs in Laird claimed that they were chilled in the exercise of their first amendment rights "not by any specific action of the Army against them, [but] only [by] the existence and operation of the intelligence gathering and distributing system." Id. at 3, 92 S.Ct. at 2320 (quoting Tatum v. Laird, 444 F.2d 947, 953 (D.C.Cir.1971)). The Supreme Court stated the issue in Laird as being "whether the jurisdiction of a federal court may be invoked by a complainant who alleges that the exercise of his first amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity that is alleged to be broader in scope than is reasonably necessary for the accomplishment of a valid government purpose." Id. 408 U.S. at 10, 92 S.Ct. at 2324 (emphasis added). Under the circumstances in Laird, the Court reached a "narrow conclusion,"

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namely, "that on this record the respondents have not presented a case for resolution by the courts." Id. at 15, 92 S.Ct. at 2326.

In arriving at that conclusion, the Court emphasized that the plaintiffs had challenged the mere existence of the information-gathering system, and not any specific action taken against them. "[T]heir claim, simply stated, is that they disagree with the judgments made by the Executive Branch with respect to the type and amount of information the Army needs and that the very existence of the Army's data-gathering system produces a constitutionally impermissible chilling effect upon the exercise of their first amendment rights."...

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