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AFGE v. UNITED STATES RRB

June 28, 1990

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, RAILROAD RETIREMENT BOARD COUNCIL, AFL-CIO, JACQUELINE BROOK, JANE ELLIS, JULIA PELT, and ROBERT PIECH, Plaintiffs,
v.
UNITED STATES RAILROAD RETIREMENT BOARD and THE UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, Defendants



The opinion of the court was delivered by: DUFF

 BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 Plaintiffs are government employees and groups representing government employees who do not want to fill out a government questionnaire (known as SF86). The government, specifically the United States Railroad Retirement Board (the Board) wants to make completion of the questionnaire a condition of employment. Plaintiffs are seeking a preliminary injunction to prevent the Board from requiring them to respond to at least some of the questions on SF86.

 Plaintiffs raise several objections to the questionnaire. They claim that a question asking them to disclose their membership in any non-political or non-religious organizations violates their First Amendment right of association, that the statement on the form that "we may . . . give some of the information to Federal State and local agencies checking on law violations or for other lawful purposes" violates plaintiffs' Fifth Amendment privilege against self-incrimination, and that several of the questions, including those seeking information about plaintiffs' finances, and use of drugs and alcohol, violate plaintiffs' constitutional right to privacy. Finally, plaintiffs maintain that the Board's requirement that they complete SF86 is a violation of the Privacy Act, 5 U.S.C. § 552a. The parties have filed cross motions for summary judgment. This court will address each of their arguments in turn.

 I. Organizational Affiliations

 Question 13, of SF86, asks the employee to:

 
b. List any foreign-based political or business organizations of which you have been a member, official, employee, or active participant at any time.

 Plaintiffs argue that both parts of question 13 infringe their First Amendment right of association. Plaintiffs fear that should they indicate membership in some organization of which the Board disapproves, they will be disqualified from consideration for jobs with the Board. The Board, on the other hand, maintains that it is seeking the information not to disqualify particular applicants, but simply as another source of information about the applicant's character and fitness for a position with the Board.

 In general, the First Amendment has been construed to prohibit public employers from inhibiting employees' interest in free expression where, on balance, the employees' interest exceeds whatever legitimate interest of the public employer which is served by the challenged practice. See Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968); Rutan v. Republican Party of Illinois, 868 F.2d 943, 948 (7th Cir. 1989) (aff'd in pertinent part, 497 U.S. 62, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990), available on LEXIS, 1990 U.S. LEXIS 3298). On the other hand, a public employer's work rules which are legitimately related to the effective functioning of the workplace, and are "not aimed at particular parties, groups, or points of view" are permissible under the First Amendment. See Civil Service Commission v. Nat'l Assoc. of Letter Carriers, 413 U.S. 548, 564, 37 L. Ed. 2d 796, 93 S. Ct. 2880 (1973); Rutan, 868 F.2d at 948; Bart v. Telford, 677 F.2d 622, 624-25 (7th Cir. 1982).

 The Constitution, particularly the First Amendment, protects "freedom of association." That means that an individual's right to choose "to enter into and maintain certain intimate human relationships" (a "fundamental element of personal liberty"), as well as the "right to associate for the purpose of engaging in those activities protected by the First Amendment -- speech, assembly, petition for the redress of grievances, and the exercise of religion" are protected. Roberts v. United States Jaycees, 468 U.S. 609, 617-618, 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984).

 More specifically, the Court has held that to compel the disclosure of group memberships can "seriously infringe on privacy of association and belief guaranteed by the First Amendment." Buckley v. Valeo, 424 U.S. 1, 64, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976). Therefore, it is justified only when the interests of the state survive close scrutiny and there is "a 'relevant correlation' or 'substantial relation' between the governmental interest and the information required to be disclosed." Id. (Footnotes omitted). Neither the parties nor this court has found any cases reported in this circuit which presents facts similar to those presented in this case. The Third Circuit, however, applying the principles enunciated above, has considered a nearly identical question.

 In Fraternal Order of Police, Lodge 5 v. Philadelphia, 812 F.2d 105 (3d Cir. 1987), the Third Circuit held that the city of Philadelphia was not entitled to ask police officers applying for positions on a special police force to "list all [offices and directorships] in any entity or association whether for profit or not for profit, held by you, your spouse, or your minor dependent children . . . ." Id. at 118-119. The city attempted to justify the question by arguing, as does the Board here, that the purpose of the question was, among other things, "to provide a positive source of information concerning the extent of an applicant's community, civic and fraternal involvement." Id. The court rejected that argument, stating that "if the question is really intended to 'provide a positive source' to support the application . . . it can be made optional." Id. at 119.

 Mr. Lafferty's explanations are simply not enough to put question 13 into compliance with the First Amendment. If the Board intends to use the question only to gather positive information about the applicant, then it can make the question optional. Furthermore, the fact that OPM no longer interprets the question to inquire into an applicant's membership in political advocacy groups, such as the National Rifle Association or Planned Parenthood, does nothing to inform the people completing the questionnaire that such groups are not part of the inquiry. In any case, the Board has not demonstrated to this court that its need for an additional source of information about an individual's "moral character" has a relevant, much less substantial, relation to its interest in finding whether a particular individual is suitable for a position working on the Board's computer system.

 Because this court has determined that question 13 violates plaintiffs' First Amendment rights, it need not consider whether the question would also violate plaintiffs' privacy rights, or whether it violates 5 U.S.C. § 552 a(e)(7), which provides that an agency shall "maintain no record describing how ...


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