National Federation of Federal Employees v. Paul Greenberg, Major General, Commander, Headquarters, Army, Armament, Munitions & Chemical Command

Edwards’ Judge I concur respects opinion. OF FEDERATION

NATIONAL EMPLOYEES, FEDERAL

et al. General, Com- GREENBERG, Major

Paul Army, Arma- mander, Headquarters, Com-

ment, & Chemical Munitions al., Appellants.

mand, et 92-5216.

No. Appeals, Court States

United Circuit. Columbia

District 26, 1992.

Argued Oct. 29, 1993. Jan.

Decided

poses” by completing the Agen- “National cy Questionnaire,” formally designated DD Questionnaire Form 398-2. The informed employee each that “failure to furnish the requested result in our being complete your unable to investiga- tion, which could result in your being clearance, access, considered for entry into service, a uniformed or assignment to sen- Justice, Lipstein, Dept, Freddi sitive duties.” Wash- DC, argued appel- ington, the cause for the Department Four civilian Defense em- her on lants. With the briefs were Stuart ployees, representing a national union fed- Gen., Gerson, Atty. Jay M. Asst. B. Ste- eral workers and three of its local unions Marshall, phens, Atty., Edith Asst. brought challenging suit DD four of Form Atty., Herwig, Barbara L. Leonard 18,19, questions Questions 398-2’s 20 and — Margaret Hewing, Schaitman and S. Attor- parties 21. The have reached a settlement Justice, Rider, neys, Dept, Sally and M. Question on designed which had been Atty., Washington, Asst. U.S. DC. elicit employees’ organi- information about Bowers, Joshua F. National Federation remaining ques- zational affiliations. The DC, Employees, Washington, of Federal ar- tions are as follows. gued appellees. him on cause With requests employees to reveal Gordon, Stephan the brief was H. Gen. their history, criminal arrest without re- Counsel, Nat. Federation of Federal Em- gard charges to whether dropped were or Washington, ployees, DC. dismissed, acquittal, resulted or Martin, DC, Washington, argued Kate employee whether the juvenile was a at the the cause for amici curiae American Civil time of arrest. and Liberties Union Foundation American 19 asks about their Civil Liberties Union Foundation of the history, explana- credit and seeks detailed Capital her Nat. Area. With on the brief any petitions bankruptcy, gar- tions of Spitzer, B. D. Fitz- were Arthur Michael liens, wages, outstanding nishment of tax Diesenhaus, hugh and Jonathan L. Wash- judgments delinquent or debts. ington, DC. complete 20 solicits a mental EDWARDS, SENTELLE,

Before: and history. health and alcohol RANDOLPH, Judges. Circuit Employees asked disclose their use substances; any controlled their involve- Opinion by for the court filed Circuit manufacture, illegal produc- ment with the Judge RANDOLPH. tion, purchase drugs; or sale of such prescription drugs, or use of alco- abuse Concurring opinion by Judge filed Circuit resulting job hol in loss of their or their HARRY T. EDWARDS. arrest, treatment; discipline, any Concurring opinion by Judge filed Circuit mental, they treatment received for emo- SENTELLE. condition, psychological any tional counselling by of them health RANDOLPH, a mental Judge: Circuit professional. highly publicized In the wake of several scandals, spy Department Employees of Defense are instructed: “Answers to began reinvestigating employees questions through its civilian 22 are items NOT holding security years, clearances at the “secret” limited to the last or 15 Department requested pertain your Question- level. The these entire life.” The basis, employees, voluntary [pro- requests sign on a naire also each “[t]o background personnel vide authorizing information for release to ob- security investigative pur- complete background relating and evaluative tain records prudence matter of Yet as a privacy. disclosed activities raised nor neither claims jurisdiction, form. heard usually not be below addressed mo- granted court district Escondido, City appeal. See Fee forbidding injunction preliminary for a — -,-, “compelling from in We 19 or Questions to answers” the ban “usually” because hedge clude the in re- provided using information FLRA, v. EEOC overcome. See Fed’n National questions. sponse to these 19, 23-24, 106 S.Ct. Greenberg, 789 Employees Fed. curiam); (1986) (per Roosevelt (D.D.C.1992). F.Supp. Co., 958 & de Nemours v. E.I. DuPont rea One (D.C.Cir.1992). n.

I parties both doing is that so here son for ar- plaintiffs what between Differences the argued constitu fully briefed and have in the they alleged what appeal on gue Question 19. Contrast Rollins tionality of which the court; grounds the district EPA, (NJ) Inc. Servs. Environmental decision; and a placed its court district An (D.C.Cir.1991). 652 n. re- appellate brief plaintiffs' concession failed ob government that the than explanation more extensive quire a might One new claim. ject plaintiffs’ may properly be legal issues of what usual had waived plaintiffs although say that appeal. in this considered argu a constitutional right to mount their complaints original and amended their In against portion of drug use plaintiffs attacked complain. right thereby waived its that it violated ground Question 20 on 14, 17 n. Green, Carlson against privilege Amendment Fifth L.Ed.2d 15 n. decid- court The district self-incrimination. Capital Cities approach. suggests Cf. Amend- Fifth favor and ed in 691, 697, 104 Cable, Crisp, 467 Inc. ruling are thus by this raised ment issues for the one side put them to us. We appellate cases frame often Parties too moment. Still, we neglect. their combined through another (finances) is Question 19 briefed. as it been this case will take alleged complaint original The matter. constitution regarding legal issues Privacy violated the only that this fundamentally the Question 19 ality of As we read 552a. Act, 5 U.S.C. § regarding rest the issues as same plain ruling opinion, the court’s district to consid If we refused Questionnaire. Privacy solely on the favor rested tiffs’ plaintiffs open them, it would still er Plain at 433-34. F.Supp. Act. See again. complaint once their to amend second and their complaint amended tiffs’ same return us might then issue filed after complaint, both amended allowed court if the district form issued, alleged also injunction preliminary granting and issued order amendment court, In this violation. Privacy Act only a in permanent preliminary denying a Privacy chal Act "withdraw use. Question 19’s against junction Brief [Questionnaire].” lenge (ar Question 18 respect With might wonder 2 n. 1. at One Appellees and amended original rests), plaintiffs’ spend several Plaintiffs is left? what Privacy Act only a raised also complaints why the explaining in their brief pages decided. court claim, all district which is need for compelling no government has The second 433-34. F.Supp. at See by sought financial a constitutional complaint added amended overall part of their included This is 19. this, as we have privacy claim right they now argument only argument —the Ques regarding indicated, only issue is the press other than Al appeal. argue on de each of contention—that complaint was amended though the second right a prives them of only opinion, filed after the court issued its clearance as “a sensitive and inherently will treat the constitutional claim as one discretionary judgment we call” ultimately raised the court below. The case is here resting prediction on a about future behav- appeal injunction. ior, a preliminary Board, Court determined that least, theory, proceedings leading to a “outside, as an nonexpert body,” was not in permanent injunction decision aon are on- position second-guess Navy’s judg- going. Plaintiffs therefore have the advan- ment or to determine “what constitutes an tage appeal, of the familiar rule that on acceptable margin of error in assessing the prevailing party may support judgment potential 527, 528, 529, risk.” 484 U.S. at or decided any grounds urged its favor on 108 S.Ct. at 825. The See, e.g., United States below. takes Egan two steps further: since the — Williams, -,-, 112 may Board not review the merits of securi- 1735, 1738-41, (1992); S.Ct. 118 L.Ed.2d 352 denials, ty-clearance federal courts Williams, 471, Dandridge v. 397 U.S. 475 consider challenges constitutional to such 6, 1153, 6, n. 90 n. denials; 1156 government’s and since the securi- Williams, (1970); United States v. 491 951 ty-clearance judgments judicially are thus 1287, (D.C.Cir.1991). F.2d unreviewable, government’s so are the judgments about employ- what information argue The same rule entitles during ees must disclose security clearance constitutionality the mental health of investigations. portion of origi- 20. While their complaints nal and their amended contested A shortly case decided after Egan under- question only this Privacy grounds, on Act government’s cuts the proposition. first It they relinquished, which have now the dis- simply not the that all security- case enjoined Department trict court from clearance decisions are immune judi- asking partly for mental health information Doe, v. cial review. In Webster ground on the plain- that this would invade (1988), constitutionally protected tiffs’ privacy. brought an action under Administrative See F.Supp. at 434-35.1 Act, Procedure the Court ordered the dis- trict court to adjudicate a terminated em- II ployee’s colorable challenge constitutional We therefore have before us the to the CIA’s denial of his security clear- constitutionality ques of each of the three ance. 486 at 108 S.Ct. at However, tions described above. on the 2052-54. The dismisses Web- authority Department Navy v. Egan, ster v. of Doe on basis that Di- CIA of 98 L.Ed.2d 918 rector exercising statutory pow- there was firing maintains that security er rea- sons, district court should see passed 102(c) not have on of the Security National § Egan Act, them and neither 403(c), should we. held 50 U.S.C. whereas the De- § that the charter of Systems the Merit Pro Department’s Question- fense use of the tection empower Board did not the Board naire delegation rests on a of the Presi- Navy’s consider the of the validity denial dent’s constitutional power as Commander- security of a clearance to one employ II, of its section 2. See in-Chief under article Brown, ees. Describing granting v. security of a 1404- Dorfmont press appeal 1. Plaintiffs also on a constitutional the district court raised no constitu- privacy challenge drug portion 20; regarding part Question tional claim Although Question 20. this claim was not allegations entirely Privacy on the rested filing raised below until the second Act. The district court’s of this sub- discussion complaint, by amended was not decided ject merely describing consists of a footnote court, properly district we will treat it as question. F.Supp. alcohol at 434 n. 8. Ne- just us for the reasons stated in the text. vertheless, given regard for the reasons The remainder of 20 asks for infor- we will treat the constitutional regarding employee’s mation abuse of alco- challenge portion Question to this 20 as leading job, disciplinary hol of a loss properly were before us. action, arrest or for alcoholism. treatment challenge, a Fourth against concurring), J., Cir.1990) (Kozinski, (9th Department Justice testing of — random U.S.-, denied, cert. security clear top holding secret employees in Web The Court (1991): Krc, Agency States United ances. Info. dis any such mention Doe did ster simi (D.C.Cir.1990), 389, 398-99 F.2d is far significance tinction claim Krc’s rejected lar; reviewed we Presi conferred power evident. Agency Information States United assume, Constitution, we by the dent firing him by process of due him deprived generous 102(c)’s than § extensive is-more following without reasons Director CIA authority to grant also See procedures. Dorfmont proper “interests terminate 1402-04; Jamil Sec Brown, F.2d mattered if this Even States.” United F.2d Defense, Dep’t retary, challenging, cases Gays v. Tech High Cir.1990); (4th regard discretionary judgments grounds, Office, Clearance Sec. Indus. security clear Defense particular ing a Hill Cir.1990); (9th 563, 570-81 F.2d here. our concern ance, cases such Force, Air relate us issues before substantive denied, Cir.), cert. (10th 1411-12 used methods constitutionality cf. judg such on which gather 898, 909-10 F.2d Cheney, Doe To based. be will presumably ments just the of cases none (D.C.Cir.1989). tobe would this case Egan to cover stretch a to render refuse courts the did cited far-reaching, re untenable, and endorse govern the ground the on decision governmen of review judicial on strictions judicial from exempt were actions ment’s actions. tal review. ulti are government of questions All the confuses further government The means. and ends of mately pass upon authority to judicial with merits accomplishment its legitimate, may be end plain- of most argues it when them President, to the solely entrusted may be review subject to contentions tiffs’ scruti properly may judiciary still yet privacy “generalized they rest because is to objective in which manner nize 6. at Appellants for Reply Brief claims.” the President Suppose achieved. be constitu- specific lack That con unreviewable judicially and unlimited a may be claims their for foundation tional Exec which determine power to stitutional them rejecting for reason sufficient given ac be will employees Branch utive refusing reason not a it is But merits. would one No secrets. nation’s to the cess To hold oth- altogether. them consider could, therefore government suggest system a approve be would erwise Amendment, conduct Fourth despite sufficiency legal on the pass courts which warrants without searches random to de- in order arguments constitutional of em about uncovering information hope of their pass on they whether termine Still clearances. seeking security ployees would courts in which system a validity, such unconsti consider anyone would less adjudicating. of guise adjudicate im to be seizures and searches tutional constitution- wholly frivolous a Apart from govern review. judicial from mune advanced one an immaterial or claim al leeway to de considerable may have jurisdic- obtaining purpose of solely for the from needs what information termine of the merits must decide tion, court security clearances holding Hood, 327 U.S. (see Bell claim large aBut it. getting go about how (1946)), unless L.Ed. judicial rise gives of discretion measure mer- unrelated considerations re judicial immunity from deference, not unsuitable claim show Harmon claims. constitutional of view adjudication. (D.C.Cir.1989), 484, 491-92 F.2d Thornburgh, two to consider proceed therefore We 1056, 110 S.Ct. denied, 493 U.S. rt. ce support urged theories (1990), illustrates injunction. preliminary upheld, considered we there point: Murphy,

III Minnesota v. 427- 1136, 1142-43, 104 S.Ct. 79 L.Ed.2d 409 claims The narrower Kordel, United States v. privilege Fifth Amendment based on the 1, 7-10, 90 S.Ct. 25 L.Ed.2d 1 is directed at against self-incrimination and (1970). See also United States v. Halde portion asking employ man, (D.C.Cir.1976)(en 559 F.2d 94-96 illegal drug dealing. ees to disclose banc), denied, cert. The district court ruled that had a 53 L.Ed.2d 250 If a witness succeeding on probability substantial testify called to “makes disclosures instead challenge, prereq a claiming privilege, government preliminary in granting uisite to the ‘compelled’ has not him to incriminate him junction. Washington Metro. Area Tran Murphy, self.” Minnesota v. Tours, Inc., 559 Holiday sit Comm’n 427, 1142 (quoting S.Ct. at Garner v. (D.C.Cir.1977). The court’s States, 648, 654, United law, opinion opinion on this 1178, 1182, (1976)); Selec (City to which we owe no deference Las PIRG, Sys. v. tive Serv. Minnesota 931-32 Vegas Lujan, (D.C.Cir.1989)), possibly in rested on appar The reason is responses Ques criminating nature of ent: the Fifth Amendment does not forbid Questionnaire’s general asking questions employees pro warning that it does not forbid the “federal, vided be turned over to taking the answers. What is forbidden is state, local, foreign law enforcement compelling testify against an individual to indicates, if the record on its authorities so, “[ajnswers may himself. Even com records, conjunction face or in with other pelled regardless privilege of the if there is violation of law....” immunity from federal and state use of the Why this should have led the court compelled testimony or its fruits connec Department from enjoin to prosecution against tion with a criminal the Question propounding 20 is uncertain. person Broderick, testifying.” Gardner plaintiffs, There are four individual each of 88 S.Ct. 20 longtime civilian at an whom is a (1968). Army facility, the record contains the but only declarations of two of these individu individuals, govern Like other reports having als. Neither invoked his employees enjoy protection ment the of the privilege response Fifth Amendment to privilege against Yet self-incrimination. Question the 20. The other are government, private employers, the like Employees, National Federation of Federal employees needs to ensure that its 150,000 representing nearly a union federal performing faithfully their duties. The employees, presumably some of whom may employees fire therefore work for the Defense and hold refuse, on the basis of their Fifth who clearances, and three of the un privilege, Amendment to answer chapters. ion’s local There is no indication duties, concerning performance the of their in the record that union member re long employees’ the answers could so Question fused to answer 20 on the basis of against them in a criminal not be used privilege. the Fifth Amendment The Chief prosecution. Garrity Jersey, v. New 385 Army’s Adjudications Division of the Security Personnel Facil Central Clearance Broderick, 392 U.S. at Gardner ity reported in an that is un affidavit she 1916; Sani Uniformed any employee aware of who has asserted tation Men Ass’n v. Commissioner of privilege response to the National Sanitation, 280, 284-85, Questionnaire. Agency (1968). 1917, 1919-20, 20 L.Ed.2d 1089 For Amendment, Ordinarily, person purposes must invoke of the Fifth sanctions privilege gain advantage. firing to threat of or other economic order 292 The exten- of reclearance. denial in a pro sult” But compulsion. constitute De- Defense governing regulations only to sive extends privilege

tection re- operation security clearance partment’s em A prosecutions. criminal Depart- how the about nothing further incriminating himself veal be would ployee Fifth claim to a respond would Amend Fifth ment meaning of within pt. C.F.R. See privilege. used be Amendment answers his agen- requiring Order gener Executive See case. 154. criminal in a him against security pro- personnel Men Ass’n to establish Sanitation cies ally Uniformed Exec. subject. See Sanitation, on the is silent grams Commissioner of denied, (1949-1953 J.), 10,450, C.F.R. cert. Cir.1970) (Friendly, No. Order (2d submit- affidavit According Comp.). em- Army civilian government, by the ted Amendment Fifth invoking ployees thus challenge Plaintiffs’ case-by- aon evaluated would privilege Admitting obstacle. a severe encounters basis. case so least use drugs, at illegal use have of limitation therefore, statutes is said, that recent can be most incriminating. run, doubtless would invoking the some compelled? are answers But se- losing their up might wind of refus consequence depends on That not. might others while curity clearances Gardner, police ing to answer. answer failure An refused privilege, invoked officer thoroughness detract result, lost and, aas immunity waive investigation, security clearance The contractor job. his Lefkowitz many factors. among only one 316, 38 Turley, cir- different very case “[T]his same (1973), followed in the Garri- the Court cumstances ine statute, thereby became and, by course decisions, refusal where ty-Lefkowitz See contracting work. public ligible for waive interrogation and submit Cunningham, also Lefkowitz standing alone privilege, Fifth Amendment evidence, regard without Ques to answer declined one has no Here opportu- employment in loss resulted turns therefore Compulsion 20. v. Baxter the State.” with to nity contract in such do would what 318, 308, 96 S.Ct. U.S. 425 Palmigiano, in fact it on what case, than rather light (1976). In 1558, 810 L.Ed.2d 1551, 47 The thing more. One done. said be us, cannot the record of bur facial. 20 is Question attack Question with confronted employees heavy. shoulder must den an provide compelled invariably 20 are all, 20 in Question show They must de- is sufficient in itself This answer. appli possible its some, of just than rather mount attack facial feat privi Amendment Fifth violates cations some least In at question. against the — U.S.-, Sullivan, v. Rust lege. See not vio- 20 does Question applications, 233 1767, 114 L.Ed.2d 1759, -, S.Ct. privilege. Amendment Fifth late City v. Ass’n Club York State (1991); New 2225, the same 11, 108 1, point in York, considerations Other Newof employee example, an Take, United States 2233, direction. 745, disclosing 739, avoid Salerno, only to wishes who (1987). and state If the 2100, past. 2095, distant in the use bar would limitation statutes federal employee’s an consequences As would answer employee’s prosecution, response privilege invoking of privilege incriminatory and the be not indicates 20, Questionnaire See, e.g., invoked. successfully to answer employee’s failure an only that Litigation, Antitrust Folding Carton re Depart- “may result” Cir.1979). Question (7th 867, 872 security complete the being unable obviously would instances, 20, in such re- “could which investigation, reclearance the Fifth Amendment. Nor has described Stanley Georgia, run afoul of 394 U.S. 557, 1243, implicate (1969), the Fifth 89 S.Ct. 22 L.Ed.2d 542 would Connecticut, 479, and Amendment when the risk of self-incrimi Griswold v. 1678, appreciable” is 85 nation is not “real L.Ed.2d 510 as improbable protecting that no decisions instead “so reasonable the “individual interest avoiding personal suffer it to influence his con man would disclosure of matters.” 591, Walker, Roe, duct.” Brown Whalen 599-600, 40 L.Ed. 819 See also (1896) (citation omitted). See, e.g., Servs., Devine Nixon v. Administrator Gen. Goodstein, (D.C.Cir. 680 F.2d 2796- 1982) curiam). Question (per In Tavoulareas words, possibly Co., Washington could not be considered v. Post (D.C.Cir.1984), applied panel unconstitutional as of this court reasonably their an took who do not believe Whalen and Nixon to mean that “a subject litigant’s avoiding public them to criminal liabil interest in swers would disclo ity. private grounded also survive a Fifth sure of would information is challenge if De the Constitution itself....” Whether the partment responded panel’s “public as focus disclosure” would privilege by offering plaintiffs’ argument advance sertion about disclo directing immunity only government investigators sure court, upon pain losing pondering. his sitting answer worth en banc, panel’s clearance. That the Defense vacated the decision Ta- regulations spelling voulareas, prece- does not have out this and it therefore has no possible response (D.C.Cir. determinative. is not dential value. See 737 F.2d 1170 1984). incriminating compelled, When answers When we return to Whalen Amendment, force, Supreme of its general own look behind Court’s remark, above, prevents against quoted their use the individual in ambiguity. we find proceedings. Judge Friendly protec criminal As What “individual interests” receive Men, suggest said in 426 tion from disclosure? Plaintiffs Sanitation Uniformed Supreme avoiding F.2d at on remand from the the interest in humiliation em Court, immunity’ ‘use thus suffices to barrassment entailed in the disclosure “[i]f permit discharge public employee personal “personal of a information. What in who refuses to answer about his formation” and disclosure to whom? To self-incrimination, ground employer conduct on the or to the why scope we see no reason there must a world? one However defines conferring protection, provisions in statute it.” what are the the Constitution that are said to confer it? We therefore conclude that the district Zech, Dronenburg v. 741 F.2d 1388 Cf. thinking plaintiffs in court erred that had (D.C.Cir.1984). plain tell We cannot in probability succeeding shown a their nothing spe tiffs’ brief. It refers to more portion facial attack on cific than Constitution” as the foun “[t]he it 20. For the reasons mentioned right. dation for this constitutional And appears highly unlikely plaintiffs that government’s in what of the interests car prevail on could their rying responsibilities? its constitutional out theory. relief, Much to our this case does not IY require any survey of this un- extended remaining argument amend- Plaintiffs’ is that charted terrain. Plaintiffs’ second Questions 18, complaint presented only a facial chal- 19 and 20 of National ed Question- Agency Questionnaire lenge Agency a the National violate constitu- previous right privacy. Supreme tional naire.2 As mentioned sec- Court plaintiffs' go beyond scope inquiry The introduction to second amend- tions which 2. complaint ques- by NAQ of the United States ed states: "The includes allowed the Constitution completed, nothing detrimental will follow Library Association as American tion and (D.C.Cir. 1178, Barr, cooperate. employee’s 1188-89 refusal to detail, 1992), greater facial explains “[a] plain to that It is also us none course, is, of legislative Act challenge to a questions possibly be three consid- challenge to mount suc most difficult face, if ered unconstitutional on their even cessfully, challenger must estab since respond a employees were forced exists that set of circumstances lish no retaining security their clear- condition valid.” the Act would be under which Ques- complaint ances. Plaintiffs’ about 739, Salerno, United States 18, tion which seeks information about ar- 2100, 2095, 95 L.Ed.2d 107 S.Ct. rests, is that nonrelevant information — Sullivan, See also Rust Unaccountably, govern- elicited. 1759, 1767, -, -, 111 S.Ct. Davis, not even cite Paul v. does New York State Club 693, 713, York, 487 City Ass’n Newof (1976), holding in the clearest no possible right terms that quite straightforward applica If “some privacy is by violated disclosure “of constitutional, plain tions” of the law are an official act such as an arrest." Paul Reproduc therefore lose. tiffs Webster aside, that clear answers Servs., 490, 524, 109 tive Health highly pertinent may reveal informa- (1989) Consider, example, a person tion. hold- (O’Connor,J., concurring part ing clearance who had been ar- judgment). yet person rested but tried. Or take progressed As the case has thus history driving with a of recent arrests for far, appear to little chance have by who while intoxicated avoided conviction privacy theory. on their For prevailing attending program. a rehabilitation To thing, the record casts doubt on wheth one Jefferson, paraphrase gov- a man cannot being infor they er forced reveal the ern himself he cannot trusted with the mation, therefore doubt about whether are, in government of others. There other being privacy is invaded. Even on their Ques- words, possible applications valid plaintiffs’ theory, questions do not invade applications tion even con- Question privacy, answers do. But the Questions test. The same is true for naire itself informs that their debts, with and 20. Substantial the attend- “voluntary.” The compliance is conse employ- pressure ant financial exerted quences re employee’s refusing of an clearances, holding security on-going ees and, record, spond un are unclear are, anyone’s problems by mental health depend on indi Much will knowable. light, important “[p]re- elements of the particular vidual’s circumstances and the at judgment,” Egan, dictive remain unan determining involved example, calls swered. person whether a can be trusted main- Despite for arrest records. quar- tain Plaintiffs’ recalcitrance, the nation’s secrets. Questions like rel with 19 and might be to obtain the same informa able Question 18, objection ques- is that the sources. The same is true sweep broadly, they ask for sought Question tions too for some financial data it, Questionnaire past, informa- face information from distant 19. On the investigation bearing present if no suggests that can be tion with discernible regulations." general allegations; nothing applicable complaint's entirely The consists partic- allegations any plain- factual directed of the individual mentioned about any plaintiff. ular circumstances of individual complaint gravamen tiffs. is not "the The terminology complaint impersonal The uses in which had been admin- [the statute] manner employee” "employees” (e.g., or such as "an Kendrick, practice.” istered in Bowen ...”) requires employee "Question an rather 589, 601, 2562, 2570, 101 L.Ed.2d VI, "plaintiffs.” Count which claim, than term (1988). plaintiffs' privacy recites constitutional challenge, separately points in a facial write to stress several But performance. some in- may arguably be fact that there explain and to I where differ with the point; what applications is beside valid majority. any there are valid is whether matters First, addressing in the claims based on acknowl- the district court ones. Here the Fifth privilege against legitimate applica- existence of edged the self-incrimination, we do reach the tions, Department may be noting that “the whether the Government respect entitled to some information with National Fed’n employees.” lawfully employee fire an refuses some who Employees, Fed. F.Supp. at 434. to, question relating say, drug answer a recognizing that its in not court’s error was Garrity majority alcohol use. The cites rejection plaintiffs’ compelled conclusion Jersey, 616, New claim. (1967), the proposition L.Ed.2d 562 for point deserves mention. One further refuses, employee may be fired if he “on references contains several Plaintiffs’ brief privi- the basis of Fifth Amendment [his] In First Amendment to “overbreadth.” lege,” questions “concerning to answer ” only, cases, in First Amendment cases performance of duties.... In this [his] laws Supreme has struck down Court case, inquiries it is far from clear that (even applications having some valid employee’s drug about an or alcohol use court) on their face plaintiffs before always over the course of his “entire life” laws, stand, if could allowed because pertain performance to “the of his will constitutionally protected “inhibit duties,” especially alleged if the conduct parties.” City Council speech of third off-duty employee long and the has a was Vincent, Taxpayers Angeles v. Los history exemplary service with Gov- not, not, do and need ad- ernment. We generally New (1984). See job-relat- dress whether information is such Ferber, 747, 766-73, 102 York v. and, not, employee ed whether an 73 L.Ed.2d 1113 underlying statutory protections the overbreadth The concern chilling protected speech ab- against discharge refusing to answer doctrine — —is Salerno, 481 U.S. at sent here. See questions relating thereto. Martin, 2100; Schall 107 S.Ct. at Second, opinion majority as the makes n. 268 n. clear, compliance questionnaire with Lutz v. See also Furthermore, on the “voluntary.” at least York, Pa., 899 F.2d (3d City of us, impossible now it is record Cir.1990). Questionnaire asks about or how the Government finances, difficulties, know whether arrests, mental health use. These are not the release of infor- might compel and alcohol seek to and, speech activities within the freedom reluctant mation that an event, disclosing information about highly personal and give, because it is conceivably subjects deter these any meaningful way to securi- unrelated engaging plaintiffs or their members hardly insignificant that ty clearance. It is American See speech. any protected compli- employees are advised Ass’n, Library at 1190. surely “voluntary,” and this will ance is ****** bearing on Government actions have some neither of theories Because thereof) (and judicial assessments preliminary injunction, we va- support future. court’s order and remand cate the district Third, “ambiguity” in the core I find no proceedings. for further undergirding Supreme Court’s principle EDWARDS, Judge, Roe, T. Circuit HARRY decision Whalen concurring: which de- privacy right to scribes the constitutional judgment in of the court and

I concur the interest in protecting the “individual Judge Randolph’s opinion. I as in much of concerns, I foregoing the Apart mat- personal of disclosure avoiding (foot- concur. at 876 Id. at ...” ters. in is correct majority omitted). The note not warrant does case this concluding that concurring: SENTELLE, Judge, Circuit an individu- covering law the “survey” of a Court, and opinion in the concur I be cannot this privacy, to right al’s only point to (and briefly) separately write in itself is right the that mean to taken not be the Court I understand out what ques- in the join not do I therefore doubt. doing tous understand doing. I do not following what majority by the posed tions constitution- passing than any more that suggestion as a dubious viewI of information- method particular a ality of am- Whalen underlying point essential securi- national pursuit in the gathering biguous. of Defense. by the ty interests Davis, 424 read Paul Fourth, not I do recognize us to I say, understand That is 1155, 693, 96 S.Ct. displace the positioned that we does, to seemingly majority (1976), as area the decisionmaker Executive not violate does the Government say that of defense. if it “forces” privacy right to an loss) to job (on threat auto does not issue over an Jurisdiction arguably that personal expertise reveal judge a with matically imbue performance. job no relevance Par intricacies. all to address needed merely Supreme Court Paul, Rather, se national relating to ticularly matters pro- did not privacy right that held to substitute inclination judge’s curity, a “publicizing] State hibit experts qualified for that judgment his such as official act of an record [known] pernicious. can branch the Executive (em- at 1166 Id. at arrest.” Executive a gives the “If the Constitution that say did added). The Court phasis in the con power of unshared large degree per- disclosure compel State the maintenance affairs foreign duct of job-relat- matters —whether sonal defense, under the then national of our employ- continued a condition ed—as must have the Executive Constitution ment. duty to determine largely unshared accept vein, do not I similar security In a internal degree of preserve in “driving while example that majority’s power success necessary to exercise security ato clearly related toxicated” v. United Times Co. York New fully.” ex supports majority clearance. 728-29, States, 403 U.S. “if a proposition by citing ample J., (Powell, (1971) 2149, 29 L.Ed.2d cannot be he himself govern cannot man concurring). of others.” with trusted our constitutional say, while tois That epi than an more requires law case re- the clear with judges provides scheme security aof justify revocation gram narrowly-drawn adjudicate sponsibility I understanding, clearance; common it is offer does not questions, ques engage many people think, that the wis- assess independently us license in no job that off of activity tionable Depart- necessity of internal dom or See, performance. job way impairs judg- pass policies of Defense Dep’t States v. United Hoska e.g., congressional clear Without ment thereon. (“In (D.C.Cir.1982) 131, 138 Army, traditionally have authorization, courts cases, have courts security clearance most to encroach a reluctance demonstrated nexus rational upon insisted specifically of mili- area prerogative Executive of an withdrawal the denial between See, affairs. tary and national indi and the security clearance individual’s Wallace, Chappell e.g., infor protect classified ability to vidual’s (1983); Schlesin- event, agree that I do mation.”) Councilman, 420 U.S. ger v. be left must these matters relevance day. another Morgan, 413 U.S. Constitution, Gilligan v. are committed to the Ex- (1973); ecutive alone. Burns v. 2440, 2445, 37 L.Ed.2d 407 Wilson, 137, 142, 144, I do not understand our today decision Orloff abandon our tradition of deference to the 97 L.Ed. 1508 83, 93-94, Willoughby, regarding Executive matters national 534, 540, 97 L.Ed. 842 It is security and note determination of us, not for as it was not for the District trustworthiness is an “inexact science at Laird, best,” Adams v. Court, by infer justify our conclusions denied, cert. ences drawn either from world events— breakup such as the of the Soviet Union weighed by the District Court determin As I do not understand opin- the Court’s ing public component interest today ion to be inconsistent with these con- siderations, preliminary injunction prior agen I concur. —or is, cy policy, Depart periodic failure ment’s earlier to conduct

reinvestigations secret clearances. judicial peril run

Such bases for decisions

ously political judgments close to about which,

foreign policy, under Article II of

Case Details

Case Name: National Federation of Federal Employees v. Paul Greenberg, Major General, Commander, Headquarters, Army, Armament, Munitions & Chemical Command

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 29, 1993

Citation: 983 F.2d 286

Docket Number: 92-5216

Court Abbreviation: D.C. Cir.