UNITED STATES OF AMERICA v. SALVATION ARMY SOUTHERN TERRITORY et al

Filing 9

MEMORANDUM AND OPINION re 1 . Signed by Magistrate Judge John M. Facciola on 6/12/13. (SP, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,

:
:
Petitioner,
:
:
v.
:
:
THE SALVATION ARMY SOUTHERN :
TERRITORY AND THE SALVATION :
ARMY,
:
:
Respondents.
:

Misc. Action No. 13-341 (ABJ/JMF)

MEMORANDUM OPINION
This case was referred to me by Judge Amy Jackson for full case management. Currently
pending and ready for resolution is the United States of America’s Petition to Enforce Subpoena
Issued by the United States Department of Housing and Urban Development [#1]. For the
reasons described below, the petition will be granted, subject to certain conditions.
BACKGROUND
In 2012, the U.S. Department of Housing and Urban Development (“HUD”) initiated an
investigation of the Salvation Army, based on an administrative complaint alleging that the
Salvation Army “discriminated against pregnant women because of their familial status and sex
and men because of their sex in violation of the Fair Housing Act.” [#1] at 3. In particular, the
administrative complaint charges that a particular transitional housing program run by the
Salvation Army, the Turning Point Center for Women and Children, terminated certain women
from the program once they became pregnant. Id.
The Turning Point Center for Women and Children is a “transitional living facility” that
“helps its participants break the cycle of chronic homelessness and joblessness.” Memorandum
of Law in Opposition to the United States’ Petition to Enforce Subpoena [#7] at 3. Like all

Salvation Army programs, the Turning Point Center follows the Salvation Army’s “Policy and
Guidelines on Confidentiality and the Protection of Personal Privacy.” Id. at 4. The Salvation
Army acknowledges that it terminated four women from the Turning Point Center program once
they became pregnant, as “pregnancy is a grounds for dismissal from the program as a matter of
program policy.” Id. at 7.
As part of HUD’s authority to investigate housing discrimination, conferred by Title VIII
of the Civil Rights Act of 1968 and the Fair Housing Amendments Act of 1988, HUD issued
subpoenas to the Salvation Army seeking information relevant to its investigation. [#1] at 3. In
that subpoena, HUD requested copies of resident files for the women terminated from the
housing program. Id. The Salvation Army provided the resident files, but redacted all personal
identifying information, claiming that its national confidentiality policy “precluded it from
disclosing the identities of program participants without consent of the residents, or a court order
compelling such disclosure.” Id. The Salvation Army did make some effort to contact the
women at issue to obtain their consent, but this was unsuccessful. Id. at 4.
On August 30, 2012, HUD served the Salvation Army with the subpoena at issue here.
Id. The Salvation Army responded once again that complying with the subpoena would violate
the Salvation Army’s internal policies regarding confidentiality and the privacy of program
participants. Id. at 5. HUD then filed the instant action, seeking enforcement of the subpoena.
LEGAL STANDARD
It is well established that the court’s role in a proceeding to enforce an administrative
proceeding is “a strictly limited one.” FTC v. Texaco, 555 F.2d 862, 871-72 (D.C. Cir. 1977).
Under Supreme Court precedent, “so long as the investigation [is] for a lawfully authorized
purpose, the documents sought [are] relevant to the inquiry, and the demand [is] reasonable,” the

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subpoena should be enforced. Id. at 872 (citing Oklahoma Press Publ’g Co. v. Walling, 327 U.S.
186, 216 (1946)); see also United States v. Morton Salt Co., 338 U.S. 632, 652 (1950) (“[I]t is
sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and
the information sought is reasonably relevant.”).
ANALYSIS
The Salvation Army objects to HUD’s petition on three grounds: 1) that HUD is already
in possession of the documents it seeks; 2) that the personal identifying information of the
women who were terminated from the Turning Point Center is not relevant to HUD’s
investigation; and 3) that an independent review is necessary here because the subpoena
implicates First Amendment concerns. [#7] at 6-9.
I.

HUD is Not Already in Possession of the Documents it Seeks
The Salvation Army’s first argument is without merit. HUD concedes that it has received

the resident files for the women in question, but indicates that all identifying information was
redacted. HUD is seeking the un-redacted versions of those files. Thus, HUD is not seeking to
compel production of documents already in its possession.
II.

The Personal Identifying Information is Relevant to HUD’s Investigation
The Salvation Army’s second argument is equally unpersuasive. HUD asserts that the

identification of the women is “relevant and necessary” for its investigation because those
women may have information about the Salvation Army’s policies, or may know other
individuals who were “victims of these allegedly discriminatory housing practices.”
Memorandum of Points and Authorities in Support of Petition to Enforce Subpoena Issued by the
United States Department of Housing and Urban Development [#1] at 12. HUD elaborated on
this in its reply brief, noting that the identities of the women would allow HUD to:

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(1) inform the women of their fair housing rights, including that they may be
aggrieved persons under the Fair Housing Act entitled to remedies for any
violation; (2) interview them in order to locate other witnesses and victims of the
alleged discrimination; (3) interview them as to The Salvation Army’s policies
and practices; (4) ascertain whether and, if so, to what extent the women were
injured by The Salvation Army’s policies and practices; and (5) if they were
injured . . . assess their individual damages.
Reply Memorandum in Further Support of Petition to Enforce Subpoena Issued by the United
States Department of Housing and Urban Development [#8] at 4.
Although the Salvation Army has already conceded that it has a practice of terminating
women from the Turning Point Center if they become pregnant, HUD has identified numerous
other ways in which the identities of the women would be useful to its investigation.
HUD’s rationales, noted above, are not “plainly incompetent or irrelevant to any lawful
purpose [of the Agency].” FTC v. Bisaro, 757 F. Supp. 2d 1, 6 (D.D.C. 2010). It is not for this
Court to direct the scope or direction of an agency’s investigation, so long the information
requested is reasonably relevant to an investigation that falls within the agency’s purview.
III.

The Salvation Army’s Right to Freedom of Association Under the First Amendment
is Not Grounds for Non-Disclosure
Finally, the Salvation Army encourages this Court to conduct an “independent review” of

the HUD subpoena using “more exacting scrutiny” because ordering disclosure of the identities
of the women at issue would “implicate[] [F]irst [A]mendment concerns.” [#7] at 8. In support
of its argument, the Salvation Army points to Salvation Army v. Department of Community
Affairs of New Jersey, 919 F.2d 183 (3d Cir. 1990).
In Salvation Army, the court of appeals held that the Salvation Army might have a valid
First Amendment interest in keeping the identities of “beneficiaries” of a residential adult
rehabilitation center confidential. Id. at 201. In particular, the court held that “forced disclosure
may chill individuals from associating” with the Salvation Army and participating in its
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programs. Id. The court was also careful to note, however, that the state may have a compelling
interest in obtaining the identities of current program participants. Id. Ultimately, the court
remanded the case to the district court to hear evidence on 1) whether disclosure of the
participants’ identities would, in fact, discourage continued participation; and 2) whether the
reporting requirement set by the state was narrowly tailored to a compelling state interest. Id.
While the members of the Salvation Army have a First Amendment right to associate
with each other to advance political, theological or social concerns, and its confidentiality policy
was established to specifically protect the privacy of individuals already enrolled in its programs,
as well as to encourage new members, it would be difficult for the Salvation Army to show that
prospective female members would be deterred from joining because of the governmental action
proposed in this case. The logic would have to be as follows: a potential participant would elect
not to enroll in the Turning Point Center if she knew that 1) if she got pregnant she would be
terminated from the program; 2) if she was terminated from the program, the government might
investigate whether that termination violated the Fair Housing Act; and 3) if the government
conducted that investigation, her personal identifying information would be revealed.
Such a speculative, fanciful, and logically attenuated chain of supposed consequences
cannot defeat a governmental investigation into whether the rights of the expelled women were
violated. Indeed, under that logic, the Salvation Army could avoid full investigation for
violations of the civil rights laws because of an internal policy that prohibits the disclosure of the
names of the very persons whose rights the Salvation Army may itself have violated. This is
quite different than the situation at play in the Third Circuit case cited by the respondents, where
the state sought identifying information for individuals currently enrolled in the Salvation Army
program.

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Furthermore, even if the Salvation Army were able to make out a convincing argument
that the subpoena impinges on its First Amendment right of free association, there is a
compelling governmental interest in eliminating housing discrimination on the basis of familial
status and gender. HUD has met its burden of showing that the identities of the women are
necessary to fully investigate the impact of the Salvation Army’s policies on the pregnant women
the Salvation Army discharged from the Turning Point Center.
Finally, the Salvation Army’s privacy concerns are especially misplaced here, where
HUD offered “to treat the identities of the four women as confidential during the course of the
investigation” in several specific ways: “(1) have Respondents designate with a stamp the word
‘confidential’ on any document, information or material identifying the participants if such
document, information or material is of a private sensitive or personal nature and Respondents
have a good-faith basis in fact and law for so designating the material; (2) hold in strict
confidence and keep securely information or material designated as ‘confidential’; (3) limit
access to necessary HUD personnel to all documents, information or materials stamped
‘confidential’ as well as to written or oral summaries or accounts thereof; (4) only make the
number of copies of confidential information or material reasonably necessary to conduct the
investigation; and (5) endeavor to pursue a stipulated protective order regarding the exchange of
confidential information if a Charge of Discrimination is issued in this matter, and no party elects
to have the case heard in federal court.” [#8] at 11-12. I believe these conditions are adequate to
address any legitimate privacy concerns, and I will order that they be followed once the
Salvation Army complies with the subpoena.

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CONCLUSION
HUD has met its burden of proving 1) that its investigation is for a lawfully authorized
purpose; 2) that the information requested is relevant to its inquiry; and 3) that the demand is
reasonable. The three arguments proffered by the Salvation Army opposition to HUD’s motion
are not persuasive.
An Order accompanies this Memorandum Opinion.
Digitally signed by John M. Facciola
DN: c=US, st=DC, l=Washington,
email=[e-mail]
rts.gov, o=United States District
Court for the District of Columbia,
cn=John M. Facciola
Date: 2013.06.12 15:33:26 -04'00'

____________________________________
JOHN M. FACCIOLA
UNITED STATES MAGISTRATE JUDGE

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