Finley v. Hampton

• Decision Date: 22 December 1972
• Docket Number: No. 71-1063.,71-1063.
• Citation: 473 F.2d 180
• Parties: Peter J. FINLEY, Appellant, v. Robert E. HAMPTON et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

473 F.2d 180 (1972)

Peter J. FINLEY, Appellant, v. Robert E. HAMPTON et al.

No. 71-1063.

United States Court of Appeals, District of Columbia Circuit.

Argued April 24, 1972.

Decided December 22, 1972.

COPYRIGHT MATERIAL OMITTED

Mr. John F. Graybeal, Washington, D. C., for appellant.

Mrs. Lee Berger Anderson, Atty., Dept. of Justice, with whom Mr. Robert L. Keuch, Atty., Dept. of Justice, was on the brief, for appellees.

Before WRIGHT, LEVENTHAL and ROBB, Circuit Judges.

LEVENTHAL, Circuit Judge:

Appellant Finley brought an action against appellees—the members of the Civil Service Commission (CSC) and George Romney, Secretary of the Department of Housing and Urban Development (HUD)—seeking certain declaratory relief and, inter alia, expungement of a portion of the investigative files of the Commission and HUD. The District Court granted the appellees' motion for summary judgment and dismissed the complaint.

I. Facts; and District Court Proceedings

Mr. Finley was employed on October 25, 1965, by the Federal Housing Administration (FHA), now a part of HUD. His position, Employee Relations Specialist, Employee Relations and Security Section, Personnel Division, was not then classed as security "sensitive," but on November 22, 1965, the head of FHA designated it "sensitive." For three years previous to his employment by FHA, Finley had been employed at McGuire Air Force Base in New Jersey, in a position designated "sensitive," and held an Air Force security clearance at the level "secret." However, § 3(b) of Executive Order (Ex.O.) 10450 (April 27, 1953), as amended,¹ requires that "any position so designated as sensitive shall be filled or occupied only by a person with respect to whom a full field investigation has been conducted," and it made every agency head responsible for establishing a program to insure that employment and retention of any civilian employee be "clearly consistent with the interests of the national security." The FHA accordingly requested the CSC to conduct a full-field investigation (FFI). This was completed in late March 1966, and the CSC furnished the investigative report to HUD.

A few days later, Finley's supervisor² approached him, stating he had the results of the FFI and wished to discuss them with Finley. This superior informed Finley that the FFI had uncovered witnesses who reported that two of his associates had "homosexual mannerisms." In Finley's account, this conversation came after his work load fell off, and he was paid "just to sit there" without any work. Finley described the encounter as follows:

He said to me, "the investigation report reveals that two of your friends have homosexual mannerisms." I asked the supervisor to explain his remarks, but he only said to me, "We know the kind of person you are. Come on now, confess, who are these people?" Then he began to berate me. Things worsened after this incident.

The Government does not contradict Finley's account of the confrontation, but refers to it as an opportunity provided to him pursuant to Instruction 62 of the Federal Personnel Manual:

A person being considered for a sensitive position should have, whenever appropriate, an opportunity to explain or refute derogatory security information developed in an investigation before being rejected or nonselected on security grounds. Otherwise, persons may be unjustly rejected or nonselected on security grounds because of mistaken identity or because certain mitigating circumstances were not known to the prospective employing agency.

The record shows that, subsequent to the meeting with his superior, Finley filed a statement under oath with respect to the witness' disclosures; but it does not set forth the content of that statement.

On June 15, 1966, some 2½ months after completion of the FFI, the FHA Commissioner "requested that the sensitive designation be removed" from Finley's position.³ The next day, FHA's Personnel Security Officer "determined that Finley is granted clearance for a non-sensitive position."⁴

Shortly thereafter, Finley commenced a series of unavailing efforts, personally and through counsel, to discover the exact nature and sources of the information on the mannerisms of his friends. These efforts included correspondence with Congressmen and Senators and, in the Executive Branch, with the President and with various officials in FHA, HUD and the Civil Service Commission. He also sought unsuccessfully for relief through the FHA grievance appeal process. He was denied an appeal on the ground that he had not suffered pay or grade impairment, suspension or removal, and hence was not the subject of "adverse action" for purposes of the grievance appeal process, see 5 C.F.R. § 772.-301.

Finley's complaint prayed (a) an order directing HUD and the CSC to expunge the (allegedly) derogatory material from his files (HUD personnel file and CSC investigative file); (b) a declaration that he was eligible for a "secret" clearance insofar as such (allegedly) derogatory information is concerned; or (c) an order directing defendants to grant a hearing at which he could cross-examine those who supplied the information on his friends' mannerisms. On appeal he has limited himself to a claim for expungement.

The District Judge, while agreeing that the information given by unnamed witnesses pertaining to the mannerisms of Finley's friends could not lawfully be made the basis for adverse action,⁵ granted summary judgment dismissing the complaint on the ground that Finley could not base a claim merely on the existence in the investigative file of comments received during the full-field investigation; and since Finley had not suffered a grade or pay impairment⁶—and indeed has received several promotions since the incident with his superior—the court concluded he had not suffered injury from any action taken by the Government.⁷

II. Applicable Legal Doctrine

We agree with the District Court that plaintiff has not shown any cognizable legal injury.

Dismissal of plaintiff's case is responsive to the

"established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action. . . ."

See Laird v. Tatum, 408 U.S. 1, 13, 92 S.Ct. 2318, 2325, 33 L.Ed.2d 154 (1972), dismissing a claim that plaintiffs' First Amendment rights were violated by the maintenance of an Army data-gathering system, which plaintiffs challenged as involving the surveillance of lawful civilian political activity. There is constraint upon the courts both from the constitutional requirement of a justiciable case or controversy⁸ and from the limitations appropriate to the exercise of a court's equitable powers.⁹ It is particularly apposite in circumstances, like the present case, where the present injury, if any, is ephemeral in nature and the prospect of future harm is remote and speculative.

We take up, seriatim, the various bases that Finley advances for the maintenance of his lawsuit.

1. Finley contends that the gathering and retention of information concerning his acquaintances and their mannerisms has a "chilling effect" upon the exercise of his right to freedom of association.¹⁰ "Allegations of a subjective `chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm. . . ." Laird v. Tatum, supra, at 13-14, 92 S.Ct. at 2325. See also, United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947) (cited with approval in Laird v. Tatum); Davis v. Ichord, 143 U.S.App. D.C. 183, 442 F.2d 1207 (1970). Thus, to present a justiciable controversy, it must be shown that the asserted inhibition upon the exercise of constitutional rights arises in the context of an extant or imminently threatened governmental sanction.¹¹ And the question remains whether Finley has done so.

2. Finley may be unhappy about the presence in his file of adverse and perhaps untrue comments by persons interviewed, even though he cannot establish concretely the possible consequences of these comments. But the court cannot strike such material from his file, or take any action, in the absence of a real threat of injury in the form of a Government action or a finding on the basis of such material.¹² There is no allegation that the data were unlawfully acquired. When the plaintiff sought federal employment he impliedly consented that Government investigators interview others concerning him.

3. Given the existence in the investigative file of the comments of the persons interviewed, the disclosure to Finley did not constitute either legal harm or a basis for judicial intervention. If anything, such disclosure to an employee is an advantage, giving him the benefit of knowing what is in his file, for good or ill, enabling him to adduce such matters as he considers pertinent in rebuttal, and putting him on the alert to discern adverse action in the future. This may be subject to a psychological offset of unease and concern, but the law cannot assume that a Government employee would rather be an ostrich.

4. Finley alleges he suffered injury when his position was declassified upon completion of the FFI. The fact remains, however, that he was not separated from employment or demoted. Indeed, he was thereafter promoted on at least two occasions.¹³

Finley does not contend that either his original position at HUD or any subsequent HUD position, including that held when the complaint was filed (Deputy Chief, Career Development and Training Branch, Personnel Division of the Federal Housing Administration), were in fact "sensitive". When the appropriate Government official reconsidered whether a security classification and clearance was appropriate and decided that the position was not security sensitive, the Government had no need to evaluate the information...