Peter J. FINLEY, Appellant, v. Robert E. HAMPTON et al.
No. 71-1063
Unitеd States Court of Appeals, District of Columbia Circuit.
Argued April 24, 1972. Decided Dec. 22, 1972.
The case is remanded, in accordancе with what we deem to be sound procedure,8 to the District Court with instructions to enter a new order granting appellee‘s petition within a reasonable time to be specified by the District Court, unless within that time the Government arranges for a new consideration, under its regulations, on a basis that is shorn of the errors identified in this opinion.
Remanded.
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 а 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
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:
[H]e 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 “requеsted 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
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
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 “establishеd 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.
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 conсerning 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
The record before us contains a statement of HUD‘s Deputy Assistant Secrеtary for Administration: “There is no record in said folder [plaintiff‘s official personnel folder] or file [investigative file] of any ‘adverse action’ having been recommended, suggested or proposed with respect to plaintiff.”14
We have considered the suggestion that, even though Finley cannot directly invoke the procedure provided by statute (
Confronted with such a claim, the courts must focus on the effect of a sеcurity clearance, or its denial in a concrete context, and not abstractly. The critical importance of this approach is underscored by a comparison of Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959) with Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Both of these cases involved civilian employees of defense contractors who were dismissed after loyalty investigations resulted in adverse findings. In Greene, the Court interpreted the relevant Executive Order so as to prohibit the revocation of a security clearance in the absence of an adequate hearing procedure; while the decision is technically one of statutory construction, the Court strongly intimated that a contrary result would run afoul of the due process clause, 360 U.S. at 496-497, 507-508, 79 S.Ct. 1400. In Cafeteria Workers, on the other hand, the Court held that the Constitution did not preclude denial of a security clearance, which summarily barred an employee from access to a naval installation, without benefit of either notice or a hearing. As the Court saw it, the distinction between the two cases lay in the impact that the denial of a security clearance had on the respective employees’ ability to earn a livelihood. Greene had been an aeronautical engineer. Following his discharge, he had been effectively barred from employment in any sphere of the aero-space industry and was forced to eke out a living—at greatly reduced salary—as an architectural draftsman. Mrs. Brawner, whose exclusion from the Naval Gun Factory premises was upheld in Cafeteria Workers, was a short-order cook. Her employment at a defense installation had been merely in-
Finley has made no showing that the declassification action had any impact upon him. He has suffered no loss of pay, seniority, grade, or like tangible benefit. He makes no claim that access to classified documents is now or ever was required by the nature of his position in HUD. The positions he has held and now holds at HUD, both originally and after two promotions, are of middle-level responsibility in the civil service. No claim has been made that the lack of a security clearance in any way hampers or restricts him in the discharge of these responsibilities.
5. This brings us to the possibility that the information contained in Finley‘s security file may be used at some future date to foreclose his opportunities. Implicit in this argument are two premises, and to prevail the appellant must establish both of them.
He must first show threatenеd injury—at least that some official might be inclined to take action merely on the basis of the comments that led to this lawsuit. District Judge Hart dismissed this as a substantial possibility:
The information as related is pure silly, just silly. Why anybody would pay attention to it all . . . I don‘t know.
While Judge Hart‘s observation is sound as far as it goes, the fact that officials should not take action on the basis of such information does not mean that they will not, and it is to gain such assurance that plaintiff seeks judicial relief. Middle-level bureaucrats may react to this kind of information out of an excess of timidity. Even higher level officers declined to dismiss the comments of the informants as valueless.15 However, they did not go so far as to say that the information was a reasоnable predicate for any personnel action. And we have no basis, other than pure speculation, to conclude that material like the “mannerisms” statements, unsupported by additional and significant material, would actually be made the basis of an adverse personnel decision by a Government official.
More significantly, we have no basis other than speculation to discern the possible shape of future circumstances that would bring about an actual threat of prejudicial action to Finley‘s detriment. There is no evidence or tender that the ability to obtain a security clearance has or is likely to have any practical value to a man in Finley‘s position. The Government asserts that HUD is in the process of declassifying positions for which a “sensitive” designation is no longer necessary or appropriate. For all that appears, Finley‘s natural course of advancement in HUD, in accordance with his capabilities, may lie wholly outside the realm of classified jobs. Finley does not allege that he is now in fact seeking or planning to seek a classified position. The prospect of Finley‘s suffering harm by being refused nomination to a sensitive position is, therefore, doubly remote.
This is not a case where the threat to the Government employee has been made concrete by a denial of a security clearance, or by some finding dоubting his loyalty. That is a cardinal point in the case before us, and one which distinguishes Newell v. Ignatius, 132 U.
When this court, by order of February 25, 1969, granted appellant‘s motion to dismiss the appeal, the court noted that defendants had expunged from the Navy‘s records the disenrollment order, “and have also expunged the Navy‘s files which stated or implied that any of the beliefs, associates, and opinions of appellant Newell referred to in said disenrollment order suggested doubt as to his loyalty to the United States.” Finding that this expungement protected Newell “from any adverse effect of the said documents on his civilian employment opportunities,” the court dismissed the appeal as moot.18
Finley‘s file does not contain any determination or assertiоn by Government personnel concerning plaintiff or his fitness to continue in federal employ; it merely records what others had said to Government investigators. The information has never been given a hallmark of significance. In Newell, on the other
We summarize our appraisal of Finley‘s case by beginning with the axiom that any rights of a Government employee or applicant must be founded on a Congressional statute, expressly or by fair implication, Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959), or a constitutional imperative. Congress has given substantial procedural protection to Government employees who are separated or demoted, and this protection extends to adverse personnel actions taken on security grounds, see
Affirmed.
J. SKELLY WRIGHT, Circuit Judge, dissenting:
Having been a member of the panel of this court in Newell v. Ignatius, 132 U.S.App.D.C. 252, 407 F.2d 715 (1969), I must respectfully dissent. In Newell an enlisted man on active duty in the United States Naval Reserve brought suit to have expunged from his naval records statements “impugning his loyalty or security status.” 132 U.S.App.D.C. at 253, 407 F.2d at 716. After dismissal of his action by the District Court, in this court he argued that since he was soon to leave the Navy, these references in his military record might adversely affect his opportunities in the civilian job market. The Navy admitted that the statements were in his Navy file, but stated further: “Seaman Newell‘s loyalty is not questioned. . . . [T]here is no basis to allege that Seaman Newell is a security risk.” 132 U.S.App.D.C. at 254, 407 F.2d at 717.
On the basis of that record, and approaching the matter pragmatically, this court made thе following ruling:
“From this statement of the Navy Department and from the representation of the Government at argument, we conclude that the Navy is fully prepared and willing, if indeed it has not already done so, to take all necessary actions to expunge all references which in any way allude to ‘disloyalty’ or ‘security.’ We therefore accept the Government‘s representation that these steps will be consummated forthwith if that has not already been done; Government counsel will promptly confirm these representations by appropriate communication to this court.
“So ordered.”
Ibid. In due course the Government counsel confirmed that all the objectionable references had been physically expunged from Newell‘s military record.
In Newell appellant initially sought, not only expungement of the adverse references in his file, but also a court
With the Newell1 precedent before them, why appellees here refuse to expunge the silly (except to silly peoplе) statements2 in suit from appellant‘s record is a mystery to me, unless, of course, appellees intend to use them again against appellant in the event he is ever considered again for a job requiring security clearance. If this is the reason for the apparent bureaucratic intransigence, and the Government‘s brief on appeal clearly so indicates,3 then the harm to appellant is obvious and continuing. The questioned statements not only denied him a security clearance at the inception of this litigation;4 they preclude the reasonable possibility that he will ever even be considered for a job requiring security clearance as long as he is in Government serviсe. Thus appellant‘s case is significantly stronger than that of the employee of the Government contractor in Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959).5 Appellant here is a career Government employee, whereas Greene was a private employee working on a Government contract. At the very least, as in Greene, appellant is entitled to an appropriate hearing. The nearest he came to a hearing here was a confrontation with his supervisor who berated him: “We know the kind of person you are. Come on now, confess, who are these people?”
Expunging the objectionable statements here will not, as the Government suggests, open all the dossiers being kept on Government emрloyees to inspection by the Government employees concerned, and thus stimulate an avalanche of lawsuits designed to have objectionable file information expunged. The objectionable material in appellant‘s file surfaced because it resulted in his being denied security clearance. Appellant did not even know of the information until he in effect was charged by his supervisor with being a homosexual.
I respectfully dissent.
UNITED STATES of America, Appellant, v. James GLENN, a/k/a James M. Green.
No. 71-1865.
United States Court of Appeals, District of Columbia Circuit.
Dec. 22, 1972.
Rehearing Denied Jan. 30, 1973.
Notes
The Government also argues that the information must be maintained for future use. At pp. 16-17 the Government brief reads:“* * * The information consists of statements of persons who were of the opinion that some of plaintiff‘s associates appeared to them to have mannerisms which are often those associated with persons who are homosexual or who appear to be homosexual. Of course, this information is clearly relevant to the investigative criteria of Section 8(a)(1)(iii) of
Executive Order 10450 , to wit: ‘Any . . . infamous . . . immoral or notoriously disgraceful conduct . . . or sexual perversion.‘”
(Emphasis in original.)“Thus, we see that Section 9(c) of
Executive Order 10450 requires the physical retention of the investigative material concerning plaintiff. The interest of the government in preserving such information is apparent. . . . If a future clearance were sought there would be delay, and also the investigatiоn might be thwarted by reason of the fact that persons interviewed concerning him previously were no longer available, and persons having information favorable [or unfavorable] to him might not be available.”