The opinion of the court was delivered by: GREENE
Plaintiff AFGE represents current employees of HUD who, through their employment, may access HUD databases classified by the agency as "sensitive."
The defendant Office of Personnel Management ("OPM"), an executive agency of the United States charged with administering various laws, rules and regulations pertaining to federal government employment, has issued a questionnaire designated as the Standard Form 85P ("SF85P") as well as a so-called release form. This release form authorizes federal agents to obtain virtually all public and private information about the individuals who sign the release.
If an employee refuses to submit a completed SF85P and release form he may be removed, reassigned, or demoted.
Plaintiffs challenge three provisions of the SF85P and the release:
(1) Question 21 which demands information about drug use and drug activities;
(2) Question 22 which demands information about the employee's financial history;
and (3) the release form.
The government argues that neither the individually named plaintiffs nor AFGE have standing to bring this suit.
A. Standing of Individual Plaintiffs
The individual plaintiffs are said to lack standing because they have not suffered injury in fact. See Albuquerque Indian Rights v. Lujan, 289 U.S. App. D.C. 164, 930 F.2d 49, 54 (D.C. Cir. 1991). The injury which plaintiffs claim to have suffered is that they are being forced to reveal inherently personal information. The government contends that plaintiffs are not compelled to complete the SF85P, and thus there is no injury.
As a practical matter, completion of the questionnaire and the release form is directly required of HUD employees whose jobs require access to databases deemed "sensitive" by HUD. HUD has communicated to individual plaintiffs that they would not be able to access databases necessary for their work unless and until they submitted a completed SF85P and release form. The government itself repeatedly characterizes the SF85P as a "requirement." See, e.g., Defendants' Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Summary Judgment p. 9. In addition, as indicated, HUD may remove, demote, or reassign any employee who fails to submit the completed form. Cf. Webster v. Department of the Army, 911 F.2d 679, 684-85 (Fed. Cir. 1990), cert. denied, 502 U.S. 861, 116 L. Ed. 2d 143, 112 S. Ct. 181 (1991) (refusal or willful failure to follow direct order of supervision may be grounds for discipline, including removal). It would be a divorce from reality to hold that there is no compulsion here.
The Court concludes that the jeopardy to the careers of the individual plaintiffs from their failure to comply with the government's demands gives them standing.
B. Standing of AFGE Union
AFGE asserts its claims in its representational capacity. A union may represent its ...