National Federation of Federal Emp. v. Greenberg

• Decision Date: 15 April 1992
• Docket Number: Civ. A. No. 91-2894 (HHG).
• Citation: 789 F. Supp. 430
• Parties: NATIONAL FEDERATION OF FEDERAL EMPLOYEES, et al., Plaintiffs, v. Major General Paul GREENBERG, et al., Defendants.
• Court: U.S. District Court — District of Columbia

789 F. Supp. 430

NATIONAL FEDERATION OF FEDERAL EMPLOYEES, et al., Plaintiffs, v. Major General Paul GREENBERG, et al., Defendants.

Civ. A. No. 91-2894 (HHG).

United States District Court, District of Columbia.

April 15, 1992.

COPYRIGHT MATERIAL OMITTED

H. Stephan Gordon, General Counsel, Joshua F. Bowers, Staff Atty., Nat. Federation of Federal Employees, Washington, D.C., for plaintiffs.

Sally M. Rider, Asst. U.S. Atty., Washington, D.C., for defendants.

OPINION

HAROLD H. GREENE, District Judge.

In this case civilian employees of the Department of Defense seek to enjoin the use by that Department of a questionnaire for the review of existing security clearances and the grant of new ones.¹ Plaintiffs claim that the questions are violative of their rights under the First and Fifth Amendments to the Constitution and their rights under the Privacy Act. These plaintiffs are (1) individuals employed at the United States Army Armament, Munitions, and Chemical Command in Rock Island, Illinois,² and (2) the National Federation of Federal Employees (hereinafter union), which represents such employees. The defendants are Secretary of Defense Richard Cheney and Major General Paul Greenberg, Commander of the Rock Island facility. The Court will grant the injunction sought by plaintiffs.

I Facts

Plaintiffs contend that certain parts of Defense Department Form DD 398-2, specifically questions 18, 19, 20 and 21, violate both the United States Constitution and the Privacy Act, 5 U.S.C. § 552a.

Briefly, question 18 requires the applicant for a new clearance or the retention of an existing clearance to disclose all arrests, including those in which the charges were dismissed, there was no conviction, or the arrest was expunged. Question 19 deals with the applicant's financial status and requires disclosure of any delinquency for debt, filing for bankruptcy, subjection to a tax lien, garnishment of wages, and any unpaid judgment. Question 20 demands information on any past or present drug activity or alcohol abuse as well as on any past or present treatment for any mental, emotional, or psychological problem. And question 21 mandates that the applicant disclose any affiliation with the Communist Party or any other Communist organization as well as all other organizational affiliations since the age of sixteen, with the exception only of labor unions, political organizations, and religious organizations.

Beyond that, each employee must authorize any accredited Department of Defense employee "to obtain any information relating to any activities from individuals, schools, residential management agents, employers, criminal justice agencies, financial or lending institutions, credit bureaus, consumer reporting agencies, retail business establishments, medical institutions, hospital or other repositories of medical records ... including but not limited to, any academic, residential, achievement, performance, attendance, personal history, disciplinary, criminal history record, arrest, conviction, medical, psychiatric/psychological, and financial and credit information."

The Court must weigh four factors in considering a motion for a preliminary injunction: (1) the likelihood that plaintiffs will succeed on the merits; (2) the threat of irreparable harm to plaintiffs if the injunction is not granted; (3) the possibility that defendants and others will suffer substantial harm in the event that injunctive relief is granted; and (4) the interest of the public. Population Institute v. McPherson, 797 F.2d 1062, 1078 (D.C.Cir.1986); Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977).

II Standing

Under the rubric of the issue of likelihood of success, the Department of Defense argues that plaintiffs lack standing to sue because they face no cognizable injury, and that for that reason they could not prevail on the merits. There is no merit to that argument.

A plaintiff lacks standing if the alleged injury is speculative or hypothetical. See Albuquerque Indian Rights v. Lujan, 930 F.2d 49 (D.C.Cir.1991). In addition, the complained of injury must fall within the "zone of interests" protected by statute or the Constitution. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471, 102 S.Ct. 752, 757-58, 70 L.Ed.2d 700 (1982). As explained below, the individual plaintiffs face direct interference with their constitutional and other legal rights, and they plainly have standing on that basis. Id. at 472, 102 S.Ct. at 758-59.

As for the union, it has associational standing under Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). That is so because the members whose interests NFFE seeks to represent would themselves have standing; the interests sought to be protected by the organization are germane to its organizational purpose; and the relief sought does not require the individual members to be parties to the suit. See International Union v. Brock, 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986).

The Court concludes that the plaintiffs have standing to sue.

III Arrest and Financial Questions

On the merits, the Court considers first the arrest question and that which demands information regarding the individuals' finances.

As a general matter, a government agency may maintain in its records "such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President." 5 U.S.C. § 552a(e)(1).

Question 18 of the questionnaire, as noted, requires applicants for employment and employees in place to list all prior arrests, including juvenile arrests, without regard to subsequent dismissal, exoneration, or expungement.³

Question 19 asks for broad financial disclosures with regard to such matters as garnishments and tax liens that may have been applied in the past, as well as past and present unpaid judgments and debt delinquencies.

The Department of Defense claims that all such information has a specific relationship to its legitimate activities and purposes. But the only relationship identified in the Department's papers is that the information would ensure that the access of each employee to classified information will be "consistent with the national interest,"⁴ without any elaboration.⁵ That broad and vague statement hardly demonstrates a "specific" relationship sufficient to overcome plaintiffs' specifically-pleaded constitutional and statutory rights.

This problem is aggravated by the fact that the questions are required to be answered without regard to the nature of the individual's position, and the further fact that some of the individuals required to complete the questionnaire do not even require a security clearance.⁶

The legitimacy of the relationship between the information sought and the government's appropriate interest depends, in some respects at least, upon the nature of the employee's job. To put it another way, while the Department may be entitled to some information with respect to some employees, it may not under our system of laws require all employees with security clearance or seeking such clearance (as well as some others) to provide replies to blanket inquiries such as those in questions 18 and 19.⁷ Presumably any question, no matter how far-fetched or offensive to privacy or other legal rights, might on a rare occasion lead to information of interest to security officials. However, in this nation with a Constitution at the apex of its legal and political system, such hypothetical and minimal security considerations are not permitted to trump the vested rights of citizens.

The Court anticipates that prior to a final decision of this case on the merits the Department will tailor the questions on a substantially refined basis and that it will demonstrate with greater specificity than it has done thus far the relationship between the information sought and the government interest as to the various categories of employees.

IV Mental Health and Drug Use

Question 20, which requires information about illegal drug use⁸ and any past or present mental, emotional, or psychological problems or treatment, raises several legal difficulties.

A. With regard to the mental health part of the question, plaintiffs advance contentions similar to those they make with respect to the arrest and financial disclosure questions. It is plain that, at a minimum, individuals — even those working for the Department of Defense — may not routinely be required, consistently with the Constitution and the Privacy Act, to reveal in detail past emotional or psychological problems, much less treatment for such problems. AFGE Railroad Retirement Council v. U.S. Railroad Retirement Board, 742 F.Supp. 450 (N.D.Ill. 1990); see generally, Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). Here again, while information on these topics may be of some value to the security officers of the Department of Defense, the requirement that thousands upon thousands of individuals must reveal the most intimate details of their lives under this rubric is so intrusive that on any balancing privacy considerations will prevail. As has justly been said, it is established that citizens are entitled to be free from government compulsion regarding private facts unless there are legitimate concerns overbearing this right to be left alone. Ramie v. City of Hedwig Village, 765 F.2d 490, 492 (5th Cir.1985).

B. The "drug" question suffers from all the defects discussed above and in addition it also raises substantial concerns under the Fifth Amendment,⁹ for the questionnaire itself explicitly states that the disclosed information may be disclosed to "federal, state, local, or foreign law enforcement authorities," including...