National Federation of Federal Employees v. Paul Greenberg, Major General, Commander, Headquarters, Army, Armament, Munitions & Chemical Command ( 1993 )

HARRY T. EDWARDS, Circuit Judge,

concurring:

I concur in the judgment of the court and in much of Judge Randolph’s opinion. I write separately to stress several points and to explain where I differ with the majority.

First, in addressing the claims based on the Fifth Amendment privilege against self-incrimination, we do not reach the question whether the Government may lawfully fire an employee who refuses to answer a question relating to, say, drug or alcohol use. The majority cites Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), for the proposition that an employee may be fired if he refuses, “on the basis of [his] Fifth Amendment privilege,” to answer questions “concerning the performance of [his] duties.... ” In this case, it is far from clear that inquiries about an employee’s drug or alcohol use over the course of his “entire life” always will pertain to “the performance of his duties,” especially if the alleged conduct was off-duty and the employee has a long history of exemplary service with the Government. We do not, and need not, address whether such information is job-related and, if not, whether an employee has constitutional or statutory protections against discharge for refusing to answer questions relating thereto.

Second, as the majority opinion makes clear, compliance with the questionnaire is “voluntary.” Furthermore, at least on the record now before us, it is impossible to know whether or how the Government might seek to compel the release of information that an employee may be reluctant to give, because it is highly personal and unrelated in any meaningful way to security clearance. It is hardly insignificant that employees are advised that their compliance is “voluntary,” and this surely will have some bearing on Government actions (and judicial assessments thereof) in the future.

Third, I find no “ambiguity” in the core principle undergirding the Supreme Court’s decision in Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), which describes the constitutional right to privacy as protecting the “individual interest in avoiding disclosure of personal matters. ...” Id. at 599, 97 S.Ct. at 876 (footnote omitted). The majority is correct in concluding that this case does not warrant a “survey” of the law covering an individual’s right to privacy, but this cannot be taken to mean that the right itself is in doubt. I therefore do not join in the questions posed by the majority following what I view as a dubious suggestion that the essential point underlying Whalen is ambiguous.

Fourth, I do not read Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), as the majority seemingly does, to say that the Government does not violate an employee’s right to privacy if it “forces” the employee (on threat of job loss) to reveal personal information that arguably has no relevance to job performance. Rather, in Paul, the Supreme Court merely held that the right of privacy did not prohibit the State from “publicizing] a [known] record of an official act such as an arrest.” Id. at 713, 96 S.Ct. at 1166 (emphasis added). The Court did not say that the State could compel disclosure of personal matters — whether or not job-related — as a condition of continued employment.

In a similar vein, I do not accept the majority’s example that “driving while intoxicated” is clearly related to a security clearance. The majority supports this example by citing the proposition that “if a man cannot govern himself he cannot be trusted with the government of others.” The case law requires more than an epigram to justify revocation of a security clearance; it is common understanding, I think, that many people engage in questionable activity off of the job that in no way impairs their job performance. See, e.g., Hoska v. United States Dep’t of the Army, 677 F.2d 131, 138 (D.C.Cir.1982) (“In most security clearance cases, courts have specifically insisted upon a rational nexus between the denial or withdrawal of an individual’s security clearance and the individual’s ability to protect classified information.”) In any event, I do agree that the relevance of these matters must be left for another day.

Apart from the foregoing concerns, I concur.