National Federation of Federal Employees v. Greenberg, No. 92-5216

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtRANDOLPH; HARRY T. EDWARDS; SENTELLE
Parties, 61 USLW 2478, 8 IER Cases 396 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, et al. v. Paul GREENBERG, Major General, Commander, Headquarters, Army, Armament, Munitions & Chemical Command, et al., Appellants.
Docket NumberNo. 92-5216
Decision Date29 January 1993

Page 286

983 F.2d 286
299 U.S.App.D.C. 261, 61 USLW 2478, 8
IER Cases 396
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, et al.
v.
Paul GREENBERG, Major General, Commander, Headquarters,
Army, Armament, Munitions & Chemical Command, et
al., Appellants.
No. 92-5216.
United States Court of Appeals,
District of Columbia Circuit.
Argued Oct. 26, 1992.
Decided Jan. 29, 1993.

Page 287

[299 U.S.App.D.C. 262] Appeal from the United States District Court for the District of Columbia.

Freddi Lipstein, Dept. of Justice, Washington, DC, argued the cause for the appellants. With her on the briefs were Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Edith Marshall, Asst. U.S. Atty., Barbara L. Herwig, Leonard Schaitman and Margaret S. Hewing, Attorneys, Dept. of Justice, and Sally M. Rider, Asst. U.S. Atty., Washington, DC.

Joshua F. Bowers, National Federation of Federal Employees, Washington, DC, argued the cause for appellees. With him on the brief was H. Stephan Gordon, Gen. Counsel, Nat. Federation of Federal Employees, Washington, DC.

Kate Martin, Washington, DC, argued the cause for amici curiae American Civil Liberties Union Foundation and American Civil Liberties Union Foundation of the Nat. Capital Area. With her on the brief were Arthur B. Spitzer, D. Michael Fitzhugh and Jonathan L. Diesenhaus, Washington, DC.

Before: EDWARDS, SENTELLE, and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

Concurring opinion filed by Circuit Judge HARRY T. EDWARDS.

Concurring opinion filed by Circuit Judge SENTELLE.

RANDOLPH, Circuit Judge:

In the wake of several highly publicized spy scandals, the Department of Defense began reinvestigating its civilian employees holding security clearances at the "secret" level. The Department requested these employees, on a voluntary basis, "[t]o [p]rovide background information for personnel security investigative and evaluative purposes" by completing the "National Agency Questionnaire," formally designated DD Form 398-2. The Questionnaire informed each employee that "failure to furnish the requested information may result in our being unable to complete your investigation, which could result in your not being considered for clearance, access, entry into a uniformed service, or assignment to sensitive duties."

Four civilian Defense Department employees, a national union representing federal workers and three of its local unions brought suit challenging four of DD Form 398-2's questions--Questions 18, 19, 20 and 21. The parties have reached a settlement on Question 21, which had been designed to elicit information about employees' organizational affiliations. The remaining questions are as follows.

Question 18 requests employees to reveal their criminal arrest history, without regard to whether charges were dropped or dismissed, resulted in an acquittal, or whether the employee was a juvenile at the time of arrest.

Question 19 asks employees about their credit history, and seeks detailed explanations of any petitions for bankruptcy, garnishment of wages, tax liens, outstanding judgments or delinquent debts.

Question 20 solicits a complete mental health and drug and alcohol use history. Employees are asked to disclose their use of any controlled substances; their involvement with the illegal manufacture, production, purchase or sale of such drugs; their abuse of prescription drugs, or use of alcohol resulting in loss of their job or their discipline, arrest, or treatment; and any treatment they received for a mental, emotional or psychological condition, and any counselling of them by a mental health professional.

Employees are instructed: "Answers to questions in items 18 through 22 are NOT limited to the last 5, 10, or 15 years, but pertain to your entire life." The Questionnaire also requests each employee to sign a release authorizing the Department to obtain complete background records relating

Page 288

[299 U.S.App.D.C. 263] to any of the activities disclosed on the form.

The district court granted plaintiffs' motion for a preliminary injunction forbidding the Defense Department from "compelling answers" to Questions 18, 19 or 20, and from using information provided in response to these questions. National Fed'n of Fed. Employees v. Greenberg, 789 F.Supp. 430, 440 (D.D.C.1992).

I

Differences between what plaintiffs argue on appeal and what they alleged in the district court; the grounds on which the district court placed its decision; and a concession in plaintiffs' appellate brief require a more extensive explanation than usual of what legal issues may properly be considered in this appeal.

In their original and amended complaints plaintiffs attacked the drug use portion of Question 20 on the ground that it violated the Fifth Amendment privilege against self-incrimination. The district court decided in plaintiffs' favor and the Fifth Amendment issues raised by this ruling are thus before us. We put them to one side for the moment.

Question 19 (finances) is another matter. The original complaint alleged only that this question violated the Privacy Act, 5 U.S.C. § 552a. As we read the district court's opinion, the ruling in plaintiffs' favor rested solely on the Privacy Act. See 789 F.Supp. at 433-34. Plaintiffs' amended complaint and their second amended complaint, both filed after the preliminary injunction issued, also alleged only a Privacy Act violation. In this court, plaintiffs "withdraw the Privacy Act challenge to the [Questionnaire]." Brief for Appellees at 2 n. 1. One might wonder what is left? Plaintiffs spend several pages in their brief explaining why the government has no compelling need for the financial information sought by Question 19. This is included as part of their overall argument--the only argument they now press other than their Fifth Amendment contention--that each of the questions deprives them of a constitutional right to privacy. Yet as a matter of prudence if not jurisdiction, claims neither raised nor addressed below usually may not be heard on appeal. See Yee v. City of Escondido, --- U.S. ----, ---- - ----, 112 S.Ct. 1522, 1531-34, 118 L.Ed.2d 153 (1992). We include the hedge "usually" because the ban may be overcome. See EEOC v. FLRA, 476 U.S. 19, 23-24, 106 S.Ct. 1678, 1681, 90 L.Ed.2d 19 (1986) (per curiam); Roosevelt v. E.I. DuPont de Nemours & Co., 958 F.2d 416, 419 n. 5 (D.C.Cir.1992). One reason for doing so here is that both parties have fully briefed and argued the constitutionality of Question 19. Contrast Rollins Environmental Servs. (NJ) Inc. v. EPA, 937 F.2d 649, 652 n. 2 (D.C.Cir.1991). Another is that the government failed to object to plaintiffs' new claim. One might say that although plaintiffs had waived their right to mount a constitutional argument against Question 19, the government thereby waived its right to complain. Carlson v. Green, 446 U.S. 14, 17 n. 2, 100 S.Ct. 1468, 1470 n. 2, 64 L.Ed.2d 15 (1980), suggests this approach. Cf. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 697, 104 S.Ct. 2694, 2699, 81 L.Ed.2d 580 (1984). Parties too often frame appellate cases through their combined neglect. Still, we will take this case as it has been briefed. The legal issues regarding the constitutionality of Question 19 are fundamentally the same as the issues regarding the rest of the Questionnaire. If we refused to consider them, it would still be open to plaintiffs to amend their complaint once again. The issue might then return to us in the same form if the district court allowed the amendment and issued an order granting or denying a preliminary or permanent injunction against Question 19's use.

With respect to Question 18 (arrests), plaintiffs' original and amended complaints also raised only a Privacy Act claim, which is all the district court decided. See 789 F.Supp. at 433-34. The second amended complaint added a constitutional right of privacy claim and this, as we have indicated, is the only issue regarding Question 18 plaintiffs argue on appeal. Although the second amended complaint was

Page 289

[299 U.S.App.D.C. 264] filed only after the court issued its opinion, we will treat the constitutional claim as one raised in the court below. The case is here on appeal from a preliminary injunction. In theory, at least, proceedings leading to a decision on a permanent injunction are ongoing. Plaintiffs therefore have the advantage of the familiar rule that on appeal, the prevailing party may support a judgment in its favor on any grounds urged or decided below. See, e.g., United States v. Williams, --- U.S. ----, ---- - ----, 112 S.Ct. 1735, 1738-41, 118 L.Ed.2d 352 (1992); Dandridge v. Williams, 397 U.S. 471, 475 n. 6, 90 S.Ct. 1153, 1156 n. 6, 25 L.Ed.2d 491 (1970); United States v. Williams, 951 F.2d 1287, 1290 (D.C.Cir.1991).

The same rule entitles plaintiffs to argue the constitutionality of the mental health portion of Question 20. While their original and their amended complaints contested this question only on Privacy Act grounds, which they have now relinquished, the district court enjoined the Department from asking for mental health information partly on the ground that this would invade plaintiffs' constitutionally protected privacy. See 789 F.Supp. at 434-35. 1

II

We therefore have before us the constitutionality of each of the three questions described above. However, on the authority of Department of Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), the government maintains that the district court should not have passed on them and neither should we. Egan held that the charter of the Merit Systems Protection Board did not empower the Board to consider the validity of the Navy's denial of a security clearance to one of its employees. Describing the granting of a security clearance as "a sensitive and inherently discretionary judgment call" ultimately resting on a prediction about future behavior, the Court determined...

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54 practice notes
  • In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig., Misc. Action No. 15–1394 (ABJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 19, 2017
    ...Fed'n of Gov't Emps. v. Dep't of Hous. & Urban Dev. , 118 F.3d 786, 795 (D.C. Cir. 1997) ; Nat'l Fed'n of Fed. Emps. v. Greenberg , 983 F.2d 286, 294–95 (D.C. Cir. 1993) ; United Steelworkers of Am., AFL–CIO–CLC v. Marshall , 647 F.2d 1189, 1240–41 (D.C. Cir. 1980). Indeed, the Court ex......
  • Stillman v. Department of Defense, Civ. No. 01-1342 (EGS) [23-1] (D. D.C. 6/7/2002), Civ. No. 01-1342 (EGS) [23-1].
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 7, 2002
    ...review, holding that: "It is simply not the case that all security-clearance decisions are immune from judicial review." 983 F.2d 286, 289 (D.C. Cir. 1993). Greenberg involved a constitutional challenge to the methods employed by the DOD in conducting security clearance investigat......
  • Stillman v. Department of Defense, No. CIV. 01-1342(EGS).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 10, 2002
    ...holding that: "It is simply Page 210 not the case that all security-clearance decisions are immune from judicial review." 983 F.2d 286, 289 (D.C.Cir.1993). Greenberg involved a constitutional challenge to the methods employed by the DOD in conducting security clearance investigati......
  • C.N. ex rel. J.N. v. Ridgewood Bd. of Educ., Civil Action No. 00-1072 (JLL).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • June 3, 2004
    ...can be found when the information was procured voluntarily from students. In National Federation of Federal Employees v. Greenberg, 983 F.2d 286 (D.C.Cir.1993), the court rejected the privacy claim by government employees who were challenging the Department of Defense's use of security clea......
  • Request a trial to view additional results
54 cases
  • In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig., Misc. Action No. 15–1394 (ABJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 19, 2017
    ...Fed'n of Gov't Emps. v. Dep't of Hous. & Urban Dev. , 118 F.3d 786, 795 (D.C. Cir. 1997) ; Nat'l Fed'n of Fed. Emps. v. Greenberg , 983 F.2d 286, 294–95 (D.C. Cir. 1993) ; United Steelworkers of Am., AFL–CIO–CLC v. Marshall , 647 F.2d 1189, 1240–41 (D.C. Cir. 1980). Indeed, the Court ex......
  • Stillman v. Department of Defense, Civ. No. 01-1342 (EGS) [23-1] (D. D.C. 6/7/2002), Civ. No. 01-1342 (EGS) [23-1].
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 7, 2002
    ...review, holding that: "It is simply not the case that all security-clearance decisions are immune from judicial review." 983 F.2d 286, 289 (D.C. Cir. 1993). Greenberg involved a constitutional challenge to the methods employed by the DOD in conducting security clearance investigat......
  • Stillman v. Department of Defense, No. CIV. 01-1342(EGS).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 10, 2002
    ...holding that: "It is simply Page 210 not the case that all security-clearance decisions are immune from judicial review." 983 F.2d 286, 289 (D.C.Cir.1993). Greenberg involved a constitutional challenge to the methods employed by the DOD in conducting security clearance investigati......
  • C.N. ex rel. J.N. v. Ridgewood Bd. of Educ., Civil Action No. 00-1072 (JLL).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • June 3, 2004
    ...can be found when the information was procured voluntarily from students. In National Federation of Federal Employees v. Greenberg, 983 F.2d 286 (D.C.Cir.1993), the court rejected the privacy claim by government employees who were challenging the Department of Defense's use of security clea......
  • Request a trial to view additional results

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