American Federation of Government Employees, AFL-CIO v. Department of Housing & Urban Development

Decision Date15 July 1997
Docket NumberAFL-CIO,96-5141,Nos.96-5108,s.96-5108
Citation118 F.3d 786
Parties, 13 IER Cases 1 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,, et al., Appellees, v. DEPARTMENT OF HOUSING & URBAN DEVELOPMENT, et al., Appellants. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, , et al., Appellees, v. William J. PERRY, Secretary of Defense, et al., Appellants.
CourtU.S. Court of Appeals — District of Columbia Circuit

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 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:

a. 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?

b. 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:

a. 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?

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

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:

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

b. Have you ever had your wages garnished or anything repossessed?

c. Have you ever had a lien placed upon your property for failing...

To continue reading

Request your trial
35 cases
  • State v. Russo
    • United States
    • Connecticut Supreme Court
    • February 19, 2002
    ... ... a detective with the Hartford police department. The defendant's supervisor, Lieutenant David ... v. Seventh BRT Development Corp., 245 Conn. 1, 26, 717 A.2d 77 (1998). ''Our ... ''any individual, the state or federal government or any agency thereof or court pursuant to a ... State Employees' Review Board, 239 Conn. 638, 654, 687 A.2d 134 ... New York, supra, 712 F.2d 1561; see also American Federation of Government Employees, AFL-CIO v. pt. of Housing &Urban Development, 118 F.3d 786, 793 (D.C. Cir ... ...
  • Varo v. L. A. Cnty. Dist. Attorney's Office
    • United States
    • U.S. District Court — Central District of California
    • August 14, 2019
    ... ... seeks judicial notice of Plaintiffs Government Claims for Damages to Person or Property ... New York City Department of Social Services , 436 U.S. 658, 98 S.Ct ... Fed'n of Gov't Employees, AFL-CIO v. Dep't of Hous. & Urban Dev. , 118 ... that city negligently maintained public housing building and failed to discover plaintiff's ... ...
  • C.N. ex rel. J.N. v. Ridgewood Bd. of Educ.
    • United States
    • U.S. District Court — District of New Jersey
    • June 3, 2004
    ... ... " and any contrary actions by employees could not be characterized as the policy of the ... the officer at the time, a reasonable government official would have known that his conduct ... at 1138. See also American Fed'n of Gov't Employees v. Department of Housing and Urban Dev., 118 F.3d 786, 793 (D.C.Cir.1997) (stating ... In National Federation of Federal Employees v. Greenberg, 983 F.2d 286 ... ...
  • People v. Gonzales
    • United States
    • California Court of Appeals Court of Appeals
    • April 27, 2011
    ... ... committed to the custody of the Department of Mental Health (DMH) for an indeterminate term ... his impaired mental and intellectual development, defendant was housed at the San Andreas Regional ... to create a zone of privacy which government may not force him to surrender to his detriment ... the medical records of a company's employees to facilitate an investigation of health hazards ... ) 941 F.2d 1539, 1543 [same]; but see American Federation of Government Employees, AFL-CIO v. partment of Housing & Urban Development (D.C.Cir.1997) 118 F.3d 786, ... ...
  • Request a trial to view additional results
3 books & journal articles
  • Lex-praxis of Education Informational Privacy for Public Schoolchildren
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 84, 2021
    • Invalid date
    ...to acknowledge a constitutional right to informational privacy. See Am. Fed'n of Gov't Employees v. Dept. of Housing and Urban Dev., 118 F.3d 786, 793 (D.C. Cir. 1997). 6. Whalen, 429 U.S. at 605--06. Similarly, former President Richard M. Nixon was unsuccessful in challenging the President......
  • Privacy as intellectual property?
    • United States
    • Stanford Law Review Vol. 52 No. 5, May 2000
    • May 1, 2000
    ...personal data in prescription drug records). (99.) See, e.g., American Fed. Of Gov't Employees, AFL-CIO v. Dep't of Hous. and Urban Dev., 118 F.3d 786, 791 (D.C. Cir. 1997) (expressing "grave doubts as to the existence of a constitutional right of privacy in the nondisclosure of personal in......
  • Workplace Privacy, Autonomy, and Dignity in Colorado: Part I
    • United States
    • Colorado Bar Association Colorado Lawyer No. 27-11, November 1998
    • Invalid date
    ...individualized suspicion requirement). 51. 429 U.S. 589 (1977). 52. Id. at 598-99, 605. But cf. A.F.G.E. AFL/CIO v. Dept. of H.V.D., 118 F.3d 786, 791-93 (D.C. Cir. 1997) skepticism that the U.S. Constitution protects any personal information from unwarranted disclosure). 53. 433 U.S. 425 (......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT