UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, PETITIONER V. FEDERAL LABOR RELATIONS AUTHORITY, ET AL. No. 88-355 In the Supreme Court of the United States October Term, 1988 The Solicitor General, on behalf of the United States Department of Health and Human Services, Social Security Administration, petitions for a writ of certiorari to review the judgments of the United States Court of Appeals for the Fourth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit PARTIES TO THE PROCEEDINGS The petitioner is the Social Security Administration of the United States Department of Health and Human Services. The respondents are the Federal Labor Relations Authority and the American Federation of Government Employees, AFL-CIO, which intervened in the proceedings in the court of appeals and is a respondent under this Court's Rule 19.6. TABLE OF CONTENTS Question Presented Parties to the Proceedings Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-14a) is reported at 833 F.2d 1129. The opinions of the Federal Labor Relations Authority (App., infra, 15a-22a, 59a-66a, and 80a-87a) are reported at 24 F.L.R.A. 600, 24 F.L.R.A. 583, and 24 F.L.R.A. 543. The opinions of the administrative law judges (App., infra, 23a-58a, 67a-79a, and 88a-123a) are reported at 24 F.L.R.A. 606, 24 F.L.R.A. 590, and 24 F.L.R.A. 550. JURISDICTION The judgments of the court of appeals (App., infra, 124a-125a, 126a-127a, and 128a-129a) were entered on November 25, 1987. A petition for rehearing was denied on April 5, 1988 (App., infra, 130a-131a). On June 28, 1988, Chief Justice Rehnquist extended the time for filing a petition for a writ of certiorari to and including August 26, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether 5 U.S.C. 7114(b) and the Freedom of Information Act, 5 U.S.C. (& Supp. IV) 552, require a federal agency to disclose to a labor union the home addresses of agency employees who are within the bargaining unit represented by the union. STATEMENT These three cases, consolidated in the court of appeals, involve petitions for review of decisions of the Federal Labor Relations Authority (Authority) holding that federal agencies are required by the Federal Service Labor-Management Relations Statute (Civil Service Reform Act of 1978, Tit. VII) (Labor Statute), 5 U.S.C. (& Supp. IV) 7101 et seq. -- specifically 5 U.S.C. 7114(b)(4) -- to provide to unions the home addresses of federal employees who are within the "bargaining units" represented by the unions but are not necessarily union members. The court of appeals agreed with the Authority that the agencies must release the home addresses. The court's decision conflicts with the decision of the Eighth Circuit in Department of Agriculture v. FLRA, 836 F.2d 1139 (1988). 1. Section 7114(b)(4) requires a federal employer to release "data" only when they are "reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining," and only "to the extent not prohibited by law." When it first addressed the issue, the Authority held that this statute does not require federal employers to provide labor unions with the home addresses of employees that the unions represent. In its first set of decisions, holding that it is proper for federal employers to deny this information to unions, the Authority reasoned that release of the home addresses is "prohibited by law" within the meaning of 5 U.S.C. 7114(b)(4) unless the release comes within an exemption to the general prohibition in the Privacy Act of 1974, 5 U.S.C. (& Supp. IV) 552a, on release of personal information. The Authority further rejected the contention that the release of home addresses comes within the Privacy Act exception (5 U.S.C. 552a(b)(2)) for disclosures required by the Freedom of Information Act (FOIA), 5 U.S.C. (& Supp. IV) 552, on the ground that FOIA Exemption 6, 5 U.S.C. 552(b)(6), for "clearly unwarranted invasion(s) of personal privacy," applies. The Authority held that workers have strong privacy interests in their home addresses that outweigh the public interest in disclosure, particularly in light of the unions' reasonable alternative means of communication. E.g., Farmers Home Admin. Finance Office, 19 F.L.R.A. 195 (1985) (FmHA I). The unions petitioned for review in several cases. The Authority subsequently sought remand of those cases to consider the unions' claims that home addresses are disclosable under the "routine use" exemption of the Privacy Act, 5 U.S.C. 552a(b)(3). Three cases were remanded. See Farmers Home Admin. Finance Office, 23 F.L.R.A. 788, 789 (1986) (FmHA II) (citing remand orders), enforced in part and remanded in part sub nom. Department of Agriculture v. FLRA, 836 F.2d 1139 (8th Cir. 1988). The Second Circuit, however, denied remand and reversed the Authority. That court held that employees' privacy interests in their home addresses are minimal and are outweighed by the union's need. The court concluded that the alternatives to disclosure were not adequate. AFGE, Local 1760 v. FLRA, 786 F.2d 554, 556 (2d Cir. 1986). 2. On remand in the other cases, and in additional cases that have come before it, the Authority reversed itself and ruled in favor of the unions, relying in part on the decision of the Second Circuit in AFGE, Local 1760. The Authority treated FmHA II as the lead case. In FmHA II the Authority reiterated its holding that the "prohibited by law" proviso in 5 U.S.C. 7114(b)(4) requires application of the Privacy Act and FOIA. The Authority held, however, that disclosure of federal workers' names and home addresses is not prohibited by the Privacy Act on the ground that the information is not protected by FOIA Exemption 6. 23 F.L.R.A. at 792. In considering whether the privacy exemption of the FOIA bars disclosure of names and home addresses, the Authority reversed its prior analysis, which had relied in part on the Fourth Circuit's decision in AFGE, Local 1923 v. HHS, 712 F.2d 931 (1983). The Authority instead adopted the view of the Second Circuit that "'the privacy interest of the average employee in his address is not particularly compelling'" (23 F.L.R.A. at 793 (quoting AFGE, Local 1760 v. FLRA, 786 F.2d at 556)). The Authority recognized that some employees might object, but suggested that they could discard letters from the union and request deletion from the union's mailing list (ibid.). It concluded that the "public interest to be furthered by providing the Union with an efficient method to communicate with unit employees it must represent far outweighs the privacy interests of individual employees in their names and home addresses" (ibid.). The Authority also concluded that disclosure is authorized by another Privacy Act exemption, 5 U.S.C. 552a(b)(3), which permits disclosure for certain "routine use(s)." The routine use that the Authority found applicable was a notice published by the Office of Personnel Management (OPM) (49 Fed. Reg. 36956 (1984)), which provides for disclosure of certain information to labor organizations (23 F.L.R.A. at 793-794). Disagreeing with OPM's construction of its own routine use, the Authority considered the standard for disclosure under OPM's "routine use" notice to be essentially the same as the requirement in 5 U.S.C. 7114(b)(4), that the data sought by the union be "'necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining'" (23 F.L.R.A. at 794), a phrase the Authority considered broad enough to cover the unions' requests for employee home addresses. Finally, the Authority held that disclosure is required without regard to the particular need of the union or reasonable alternative means of communication. The Authority stated that the union need not specify any particular reason or need for the information, based on the Authority's view of "a union's statutory obligations involv(ing) a broad range of representational activities" (23 F.L.R.A. at 795). It also held that it "will not review the adequacy of altenative methods of communication on a case-by-case basis," and concluded that a list of names and home addresses is "necessary" under 5 U.S.C. 7114(b)(4) regardless of the availability of such alternatives (23 F.L.R.A. at 796). 3. In FmHA II and in many subsequent decisions relying on FmHA II, the federal agency employers have petitioned for review in the courts of appeals and the Authority has petitioned or cross-petitioned for enforcement. Four courts of appeals have reviewed the Authority's position that home addresses must be released. The Eighth Circuit, reviewing the decision in FmHA II itself, has rejected the Authority's position in part, holding that at least some employees have a sufficient privacy interest in their home addresses that release would constitute a clearly unwarranted invasion of personal privacy. Department of Agriculture v. FLRA, supra. In that case the court remanded the case to the Authority apparently for the purpose of developing a procedure for permitting employees to have the opportunity to opt out of the mandatory disclosure of their home addresses to the unions. The other three courts of appeals that have decided agency petitions for review have agreed with the Authority's construction of 5 U.S.C. 7114(b) and 5 U.S.C. 552(b)(6) and have enforced its orders. See Department of Navy v. FLRA, 840 F.2d 1131 (3d Cir. 1988); Department of the Air Force v. FLRA, 838 F.2d 229 (7th Cir. 1988); App., infra, 1a-14a. In addition, cases raising the same issue are pending in the District of Columbia Circuit. E.g., FLRA v. Department of the Treasury, No. 87-1107, and consolidated cases; FLRA v. Department of Health & Human Services, No. 87-1147, and consolidated cases. There are more than 250 cases currently pending in the D.C. Circuit that have been consolidated and stayed pending disposition by this Court of Department of Justice v. Reporters Comm. for Freedom of the Press, cert. granted, No. 87-1379 (Apr. 18, 1988). In light of the recent decisions of the Third, Fourth, and Seventh Circuits, and the earlier decision of the Second Circuit in AFGE, Local 1760 v. FLRA, supra, the Solicitor General has authorized the Authority to petition for a writ of certiorari to review the Eighth Circuit's decision in Department of Agriculture v. FLRA, supra, and we anticipate that the Authority will file such a petition on or before August 29, 1988. We also currently anticipate filing a cross-petition for a writ of certiorari in that case. The present petition for a writ of certiorari, and the petitions that we are simultaneously filing in Department of Navy v. FLRA, supra, and Department of the Air Force v. FLRA, supra, ask the Court to hold these three cases pending the disposition of any petition and cross-petition that may be filed in Department of Agriculture v. FLRA, supra. 4. The three consolidated cases that are the subject of this petition involve separate requests by the American Federation of Government Employees, AFL-CIO (AFGE or union), the authorized exclusive representative of many Social Security Administration (SSA) employees, for the names and home addresses of all employees in specified bargaining units (App., infra, 16a, 60a, 81a). /1/ The requests were made pursuant to 5 U.S.C. 7114(b)(4). The asserted general purpose of the requests was the union's desire to advise all employees of its activities by mail and to solicit employees' opinions concerning negotiations (App., infra, 3a). SSA denied the requests as either being prohibited by the Privacy Act or not relevant or necessary to the outcome of negotiations within the meaning of the Labor Statute, 5 U.S.C. 7114(b)(4)(B) (App., infra, 4a). The Authority issued essentially identical decisions requiring disclosure of the home addresses in the three cases (id. at 15a-22a, 59a-66a, and 80a-87a). The Authority stated that the decision in each case was controlled by FmHA II. The court of appeals enforced the Authority's orders (App., infra, 1a-14a). It rejected an argument by SSA that employee home addresses are not "data * * * necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining" within the meaning of 5 U.S.C. 7114(b)(4) (App., infra, 5a-10a). The court also held that disclosure of the home addresses is mandated by FOIA, and therefore mandated by 5 U.S.C. 7114(b)(4) as well. SSA argued that disclosure of home addresses "would constitute a clearly unwarranted invasion of personal privacy" (5 U.S.C. 552(b)(6)). The court of appeals, without itself balancing the privacy interests of employees against any purported public interest favoring disclosure, simply "defer(red) to the Authority's rulings" (App., infra, 14a). The court did so despite its own prior holding in AFGE, Local 1923 v. HHS, supra, that the employees' privacy interests predominate in the Exemption 6 balance. The court distinguished AFGE, Local 1923 on the ground that the FOIA balancing test is to be applied differently to a request under 5 U.S.C. 7114(b) than to a request under FOIA itself (App., infra, 14a). The court did not reach the "routine use" issue (id. at 10a n.6). REASONS FOR GRANTING THE PETITION As we have noted, the decision of the court of appeals conflicts with Department of Agriculture v. FLRA, 836 F.2d 1139 (8th Cir. 1988). The decision is also in tension with FOIA case law holding that no disclosure is appropriate in similar circumstances. E.g., Local 3, IBEW v. NLRB, 845 F.2d 1177 (2d Cir. 1988); Minnis v. Department of Agriculture, 737 F.2d 784 (9th Cir. 1984), cert. denied, 471 U.S. 1053 (1985); AFGE, Local 1923 v. HHS, 712 F.2d 931 (4th Cir. 1983). We also question the court of appeals' construction of the 5 U.S.C. 7114(b)(4) requirement that requested data be "necessary" to collective bargaining. Because we anticipate that the precise issues raised by this case will be the subject of a petition and a cross-petition for a writ of certiorari in the Department of Agriculture case, the judgments below should not be allowed to become final until the Court has had an opportunity to consider and dispose of that case. CONCLUSION The Court should hold the petition for a writ of certiorari and dispose of it in light of its disposition of any petitions that are filed to review the judgment of the Eighth Circuit in Department of Agriculture v. FLRA, 836 F.2d 1139 (1988). Respectfully submitted. CHARLES FRIED Solicitor General AUGUST 1988 /1/ In one case, the union requested the names and addresses of all bargaining unit employees in the SSA's field assessment offices in its Atlanta Region (App., infra, 81a). Names and office addresses were provided, but SSA denied the request for home addresses on the ground that their disclosure would violate the Privacy Act and Exemption 6 of FOIA (ibid.). The union filed an unfair labor practice charge against the agency with the Authority, and the Authority then filed a complaint against the agency (id. at 80a). The administrative law judge (ALJ) issued a recommended decision and order requiring disclosure of the employees' home addresses (id. at 88a-123a). In a second case, the President of AFGE Local 3369, the exclusive bargaining representative, requested the names and home addresses of all bargaining unit employees in SSA Field Operations, New York Region (App., infra, 60a). SSA refused to disclose home addresses, asserting that to do so would invade the employees' privacy, but it offerred to release a list of their names and work addresses (ibid.). The union filed an unfair labor practice charge against the agency with the Authority, and the Authority then filed a complaint against the agency (id. at 59a). The ALJ issued a decision concluding that the agency did not violate the Labor Statute by refusing to supply the employees' home addresses. The ALJ found that disclosure of work addresses provided a reasonable alternative means of communication that made disclosure of home addresses inappropriate. Id. at 67a-79a. In the third case, the Field Assessment Office Council of the AFGE requested the names and home addresses of federal workers in SSA's field assessment offices, which are located in ten regions and have approximately 40 satellite offices (App., infra, 16a, 27a). The agency denied the request, and an unfair labor practice charge and complaint filed by the Authority followed (id. at 15a). The ALJ issued a decision recommending that the agency be required to disclose the names and home addresses (id. at 23a-58a). APPENDIX