Opinion
2:06-cv-2649-GEB-GGH.
November 7, 2007
ORDER
Defendants move to amend the Rule 16 Scheduling Order so that they can seek leave to join as Defendants the Central Valley Chapter of 7th Step Foundation, Inc., Bart Blackburn, James Doe, Ronald Roe, and George D. Turner ("Central Valley Parties"). Plaintiff and Defendants cross move for summary judgment on all claims and Plaintiff seeks a permanent injunction. Oral argument on the summary judgment motions was held on July 23, 2007.
All references to "Rules" are to the Federal Rules of Civil Procedure.
BACKGROUND
On November 21, 2006, the United States filed this action on behalf of the Office of Personnel Management ("OPM") asserting federal law (specifically, 5 U.S.C. § 9101) requires Defendants to disclose an individual's complete criminal history record information ("CHRI") to OPM and its contract investigators conducting background investigations for employment, contracting and security clearance purposes. (Pl.'s Compl. at 1, 2.) Defendants counter that permanent state court injunctions ("the injunctions") forbid Defendants from disclosing all of the requested information, arguing that the injunctions prohibit Defendants from releasing any record of an arrest that is later deemed a "detention" under state law, any record of an arrest when the arrestee subsequently completed a diversion program under state law, or any record of an arrest which did not result in a conviction. Second, Defendants argue that disclosure of these records is prohibited by federal law and violates the arrestee's right to privacy in the United States Constitution and the California Constitution. Finally, Defendants argue that § 9101 does not authorize disclosure of CHRI to contract (as opposed to OPM) investigators. (Defs.' Answer ¶¶ 40-42.)OPM is a federal agency authorized to conduct background investigations for the Federal Government. (Decl. of Kathy Dillaman in Supp. of Pl.'s Mot. for Summ. J. ("Dillaman Decl.") ¶ 3.) In 2006, OPM performed 1.8 million background investigations. (Id. ¶ 5.) As a result of the large number of investigations that must be completed, OPM uses private contractors to perform 75 percent of them. (Id. ¶ 4.) These contract investigators must obtain an appropriate OPM clearance, complete OPM approved training, and comply with security requirements specifying how records are stored and handled. (Decl. of Joyce Tincher-Harris in Supp. of Pl.'s Mot. for Summ. J. ("Tincher-Harris Decl.") ¶¶ 9, 11.) Before OPM conducts a background investigation, the applicant signs a release form stating that the applicant authorizes representatives of OPM to obtain the applicant's CHRI. (Decl. of John Czajkowski in Supp. of Pl.'s Mot. for Summ. J. ("Czajkowski Decl.") ¶ 4.)
In April 2006, Defendant California Department of Justice ("CA DOJ") sent OPM a letter explaining that California law only allows disclosure of CHRI to public officials and prevents CA DOJ from disclosing any CHRI to OPM's private contractor investigators. (Pl's. Compl. Ex. 1.) This letter also states that California law only allows the disclosure of arrests "that have resulted in convictions and arrests [that are] pending adjudication." (Id.) Defendants, therefore, adopted the policy that discloses only incomplete CHRI ("summary CHRI") to OPM staff, and have refused to disclose any CHRI to OPM's private contract investigators. (Czajkowski Decl. ¶¶ 8, 11.) OPM declares Defendants' refusal to provide complete CHRI to their contract investigators has caused significant delays in the background investigative process. (Id. ¶ 10.)
DISCUSSION
I. Motion to Amend the Rule 16 Scheduling Order
Defendants seek amendment of the provision in this action's Rule 16 Scheduling Order which provides that "[n]o further . . . joinder of parties or amendments to pleadings is permitted, except with leave of Court, good cause having been shown." (Order, Mar. 7, 2007, at 1.) If their motion to amend is granted, they also seek leave under Rule 20 (permissive joinder of parties) to join the Central Valley Parties as Defendants. (Defs.' Mot. to Amend at 1-2.)
Defendants assert good cause exists to amend the Rule 16 Scheduling Order because they could not reasonably foresee the necessity of joining the Central Valley Parties when they filed a Joint Status Report on February 26, 2007. (Defs.' Mot. to Amend at 5:24-25.) Defendants assert that it did not "bec[o]me apparent to Defendants that the Central Valley [Parties] might seek to still enforce the injunctions in state court" until May 2007, when the Central Valley Parties stated that they would "insist upon compliance with the injunctions" irrespective of the ruling ultimately issued in this action. (Defs.' Mot. to Amend at 6:9-12; Decl. of Hiren Patel in Supp. of Defs.' Mot. to Amend ("Patel Decl.") ¶¶ 3-4.)
Plaintiff counters that good cause does not exist because the injunctions have been in place since 1985 and Defendants have known about the injunctions since the commencement of this action. (Pl.'s Opp'n to Mot. to Amend at 2:23-25.) Defendants rejoin, even though they knew about the injunctions, they only became aware joinder was necessary once the Central Valley Parties indicated they would seek to enforce those injunctions. (Defs.' Reply in Supp. of Mot. to Amend at 2:26-28.)
To amend the provision in the Rule 16 Scheduling Order prescribing "[n]o further . . . joinder of parties or amendments to pleadings is permitted," Defendants "must first show `good cause' for [the] amendment under Rule 16(b)." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). Rule 16(b)'s "good cause" standard focuses on the diligence of the party seeking the amendment. Id. at 608-09. "If that party was not diligent, the inquiry should end." Id. at 609. A diligence inquiry under this standard is whether the movants discharged their obligation "to collaborate with the district court ab initio in fashioning" a workable Rule 16 Scheduling Order for the case which would not have to be amended. In re San Juan Dupont Plaza Hotel Fire Litig., 111 F.3d 220, 229 (1st Cir. 1997); Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999).
If Defendants were aware, or should have reasonably been aware, when they submitted their Joint Status Report, of circumstances that could lead to a request to join parties, they should have asked that said joinder be allowed under the more liberal joinder standard in Rule 20 or that amendment to the pleadings be allowed under the more liberal amendment standard in Rule 15.
Parties anticipating possible amendments . . . have an `unflagging obligation' to alert the Rule 16 scheduling judge of the . . . timing of such anticipated amendments in their status reports so that the judge can consider whether such amendments may properly be sought solely under the Rule 15(a) standard, and whether structuring discovery pertinent to the parties' decision whether to amend is feasible. See Veranda Beach [Club Ltd. P'ship v. W. Sur. Co.], 936 F.2d [1364,] 1371 [(1st Cir. 1991)]; 3 Moore's Federal Practice at § 16.36[3][c] ("Addressing these matters assertively early in the pretrial period . . . [is] essential to coherent case development planning, and can avoid the delays and the wasteful repetition of discovery events that are often occasioned by amendments made later in the pretrial period.").Jackson v. Laureate, Inc., 186 F.R.D. at 608. Under such circumstances, failure to make this request in their Joint Status Report would constitute, at a minimum, "carelessness [which is not] compatible with a finding of diligence and offers no reason for a grant of relief." Id. (quoting Johnson, 975 F.2d at 609).
The Deputy Attorney Generals essentially are acting as permanent corporate counsel for the State of California and actually stand in the shoes of the Attorney General. See People v. Birch Sec. Co., 86 Cal. App. 2d 703, 707 (1948). Defendants stated as their second affirmative defense in their answer, filed January 10, 2007, that "Defendants are bound by a permanent injunction forbidding disclosure, for purposes of evaluating applications for employment or licensing, of arrests that were deemed `detentions,' or which resulted in a successful diversion or for which there is no disposition." (Defs.' Answer ¶ 40.) Therefore, Defendants' argument that they were unaware until May 2007 that the injunctions could be enforced is baseless given this affirmative defense. It is evident that Defendants were aware of the details of the injunctions, to which they assert they are bound, even before this federal action was filed, and their contrary assertions are belied by the record. Since Defendants have failed to show that good cause justifies the amendment they seek, their motion to amend is denied.
Defendants' argument that joinder of the Central Valley Parties is warranted to prevent contradictory rulings against Defendants is also unavailing. (Defs.' Mot. to Amend at 2:13-23.) Preventing contradictory rulings is not a proper basis for a Rule 20 motion. Even if the Central Valley Parties are necessary to prevent inconsistent obligations under Rule 19(a)(2)(ii), the Advisory Committee Notes to the 1966 Amendment state that a plaintiff's "undue delay in making the motion can properly be counted against him as a reason for denying the motion." The Court declines to act sua sponte under Rule 19 since the Central Valley Parties' interests have not been shown to be threatened and no party has made a timely motion for joinder under Rule 19. Further, the Central Valley Parties are not necessary parties under Rule 19(a)(2)(i) because their interests are "adequately represented by existing parties to the suit." Wash. v. Daley, 173 F.3d 1158, 1167-68 (9th Cir. 1999).
II. Motions for Summary Judgment
A. Requirement for Complete CHRI
Plaintiff seeks summary judgment on its claim that Defendants' policy of denying OPM information regarding nonconviction arrests or arrests later reclassified as detentions, and the state laws upon which this policy is based, are preempted by federal law prescribed in Chapter 91 of the United States Code, Access to Criminal History Records for National Security, codified at 5 U.S.C. § 9101 ("Chapter 91"). Plaintiff argues "[f]ederal law expressly requires states to provide full and complete CHRI to OPM investigators, and any state law to the contrary is preempted by federal law. . . ." (Pl.'s Mot. for Summ. J. at 20:18-19.) Plaintiff requests that Defendants be
permanently enjoined from refusing to comply with any such request by OPM staff and/or contract background investigators for CHRI made pursuant to 5 U.S.C. § 9101 [; and that] Defendants [be] permanently enjoined from directing or encouraging any California criminal justice agency from refusing to fully comply with such request for CHRI by OPM staff and/or contract background investigators made pursuant to 5 U.S.C. § 9101.
(Pl.'s Proposed Order at 3:6-11.)
Defendants rejoin that their policy is not preempted because Chapter 91 does not require disclosure of arrests later classified as detentions under California Penal Code sections 849(c), 849.5 and 11115, and that Chapter 91 is limited by the arrestee's right to privacy guaranteed by the California Constitution and the United States Constitution. (Defs.' Mot. for Summ. J. at 4-5, 11:23-12:20, 8:22-9:3; Tr. of Oral Argument at 10.) Defendants also argue that California Labor Code section 432.7 bars employers from asking for nonconviction arrest information. (Defs.' Mot. for Summ. J. 4:24-5:4.)
In determining whether a federal statute preempts state law, our sole task is to ascertain the intent of Congress. . . . We must begin with the presumption that Congress did not intend to preempt state law. . . . If we have any doubt about congressional intent, we are to err on the side of caution, finding no preemption, "for the state is powerless to remove the ill effects of our decision, while the national government, which has the ultimate power, remains free to remove the burden."Malabed v. N. Slope Borough, 335 F.3d 864, 869 (9th Cir. 2003) (quoting Beveridge v. Lewis, 939 F.2d 859, 863 (9th Cir. 1991)) (other internal citations omitted). "Congressional intent to preempt state law must be clear and manifest." Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1150 (9th Cir. 2000).
"Preemption may be found if, on the face of the federal statute, Congress expressly stated an intent to preempt a state law." N.J. State Chamber of Commerce v. Hughey, 774 F.2d 587, 592 (3d Cir. 1985) (citing Fidelity Fed. Sav. Loan Ass'n v. de la Cuesta, 458 U.S. 141, 152-53 (1982)). Congress prescribes in 5 U.S.C. § 9101(b)(4) that Chapter 91 "shall apply notwithstanding any other provision of law or regulation of any State or of any locality within a State or any other law of the United States." This clause clearly expresses Congress's intent that Chapter 91 preempt any contrary state law. When, as here,
we are presented with the task of interpreting a statutory provision that expressly pre-empts state law[,] we must . . . identify the domain expressly preempted . . . by that language. Although our analysis of the scope of the pre-emption statute must begin with its text, . . . our interpretation of that language does not occur in a contextual vacuum. [Rather,] our analysis of the scope of the statute's pre-emption is guided by . . . [an] understanding of congressional purpose. . . . Congress' intent, of course, primarily is discerned from the language of the pre-emption statute and the "statutory framework" surrounding it. . . . Also relevant, however, is the "structure and purpose of the statute as a whole," . . . as revealed not only in the text, but through the reviewing court's reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme
to enable the Federal Government to access criminal history records for national security and other sensitive purposes.Medtronic, Inc. v. Lohr, 518 U.S. 470, 484-86 (1996).
The text of Chapter 91 makes it pellucid that Congress, in the text of the statute and in the regulatory scheme, intended Chapter 91 to supersede and be the supreme definition of what constitutes CHRI. Chapter 91's regulatory scheme prescribes:
Upon request by the head of a covered agency, criminal justice agencies shall make available [CHRI] regarding individuals under investigation by that covered agency for the purpose of determining eligibility for any of the following: (A) Access to classified information. (B) Assignment to or retention in sensitive national security duties. (C) Acceptance or retention in the armed forces. (D) Appointment, retention, or assignment to a position of public trust or a critical or sensitive position while either employed by the Government or performing a Government contract.
5 U.S.C. § 9101(b)(1). "The term [CHRI] means information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notions of arrests, indictments, information, or other formal criminal charges, and any disposition arising therefrom, sentencing, correction supervision, and release." Id. § 9101(a)(2). Section 9101(a)(2)'s definition of CHRI is unambiguous.
OPM is a "covered agency" within the meaning of Chapter 91. 5 U.S.C. § 9101(a)(6)(D).
OPM is a "covered agency" within the meaning of Chapter 91. 5 U.S.C. § 9101(a)(6)(D).
Accordingly, the California policy of providing only "summary CHRI" to OPM violates Chapter 91's command to provide complete CHRI as defined in § 9101(a)(2). Therefore, California laws are expressly preempted to the extent that, when a request is made for complete CHRI pursuant to the authority of OPM under Chapter 91, they purport to prohibit release of complete CHRI to OPM. "This situation presents the quintessential case of the Supremacy Clause in action." Forest Park II v. Hadley, 336 F.3d 724, 732 (8th Cir. 2003) (citing U.S. Const. art. VI, cl. 2).
An arrest that has later been reclassified under California law as something other than an arrest constitutes a "disposition arising therefrom" and therefore falls squarely within § 9101(a)(2)'s meaning of CHRI.
Defendants' argument that they are bound by the injunctions forbidding the release of complete CHRI is misplaced. First, the injunctions issued before Chapter 91 was enacted in December of 1985 and therefore they do not address this prescribed federal law. Second, even if this ruling conflicts with the state injunctions, Defendants' remedy would be to seek to have those injunctions vacated. See Brunzell Constr. Co. v. Harrah's Club, 253 Cal. App. 2d 764, 772 (1976) (noting that the court has inherent power to vacate or modify its injunction when the "the law has been changed, modified or extended, or where the ends of justice would be served. . . ."); Holmes v. Cal. Nat'l Guard, 90 Cal. App. 4th 297, 319 (2001) ("[T]he trial court's ruling is open to possible misinterpretation in ways which could lead its injunctions to encroach on areas clearly preempted by federal law. In order to avoid such potentially serious pitfalls of misinterpretation, we therefore hold that the language and scope of the trial court's rulings must be explicitly limited" to conform with federal law.).
Further, Defendants have not shown that Chapter 91 is unconstitutional based on Defendants' argument that it violates an arrestee's federal constitutional right to privacy. "While the Supreme Court has expressed uncertainty regarding the precise bounds of the constitutional `zone of privacy'" it has recognized that an individual has an "interest in avoiding disclosure of personal matters." In re Crawford v. United States Tr., 194 F.3d 954, 958 (9th Cir. 1999). This interest is "sometimes referred to as the right of `informational privacy.'" Id. The right to informational privacy, "is not absolute; rather, it is a conditional right which may be infringed upon a showing of proper governmental interest." Id. at 959 (quoting Doe v. Attorney Gen., 941 F.2d 780, 796 (9th Cir. 1991)). A "delicate task of weighing competing interests [is involved when] determin[ing] whether the government may properly [seek] private information" concerning an applicant for federal employment. Id. (internal quotations omitted). "[T]he government has the burden of showing that its use of the information would advance a legitimate state interest and that its actions are narrowly tailored to meet the legitimate interest." Id. (internal quotations omitted). Relevant factors in this analysis include:
Defendants also make a conclusory argument that the California constitutional right to privacy prevents disclosure of complete CHRI under Chapter 91; however, that argument is unsupported and woefully inadequate to counter the express preemption provision prescribing that California law prohibiting compliance with Chapter 91 is preempted.
the type of record requested, the information it does or might contain, the potential for harm in any subsequent nonconsensual disclosure, the injury from disclosure to the relationship in which the record was generated, the adequacy of safeguards to prevent unauthorized disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access.Id. (quoting Doe v. Attorney Gen., 941 F.2d at 796).
Here, the government has a legitimate interest in determining the suitability of individuals seeking access to classified information and employment in sensitive national security positions. Arrest records advance that interest because "arrest-related information tends to reveal behavior and sometimes patterns of behavior," and "may indicate involvement in criminal or dishonest activities." (Czajkowski Decl. ¶ 11.) Chapter 91 is narrowly tailored to meet the government's interest in that it limits the types of government jobs that require CHRI for background checks, and it requires an agency to receive written consent for the release of CHRI from an individual under investigation. 5 U.S.C. § 9101(b)(1)(A)-(D), (c). Further, adequate safeguards are in place to prevent unauthorized disclosure of CHRI. Federal employees and contract investigators must themselves be cleared for access to CHRI and numerous security standards govern how CHRI is stored and handled. (Tincher-Harris Decl. ¶¶ 9, 11.) Finally, Chapter 91 is, of course, an express statutory mandate from Congress that CHRI be made available.
These factors outweigh the potential harm an individual might face if his or her CHRI was disclosed subsequently, such as "denial of schooling, employment and professional licensing opportunities." (Defs.' Mot. for Summ. J. at 10:20-23.) Accordingly, the United States Constitution does not limit the preemptive effect of Chapter 91.
B. OPM's Contract Investigators
Plaintiff also seeks summary judgment on its claim that Defendants must disclose CHRI to OPM's contract background investigators, arguing that "[b]oth express preemption and conflict preemption apply in this matter, rendering defendants' policy and practice of denying full and complete CHRI to OPM . . . contract investigators preempted by federal law. . . ." (Pl.'s Mot. for Summ. J. at 18:11-13.) Defendants rejoin that California Penal Code sections 11105(c)(4) and 13300(c)(4) prescribe that CHRI may only be released to public officers, and that "§ 9101 does not require the disclosure of this information to OPM's private contractors." (Defs.' Mot. for Summ. J. at 12:23-25.)
1. Express Preemption
Chapter 91 provides that "[u]pon request by the head of a covered agency, criminal justice agencies shall make available [CHRI]." 5 U.S.C. § 9101(b)(1). Defendants do not dispute that requests for CHRI are being made by the head of OPM. Defendants argue, however, that Chapter 91 does not require disclosure of CHRI to contract investigators. (Defs.' Mot. for Summ. J. at 12:23-25.)
To decide this issue, Congress's intent is discerned.Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Servs., Inc., 448 F.3d 1092 (9th Cir. 2006). The legislative history of Chapter 91 evinces that Congress intended to authorize private contract investigators to have access to CHRI. Congress enacted Chapter 91 after the Subcommittee on Investigations of the Senate Committee on Governmental Affairs held four days of hearings on "Federal Government Security Clearance Programs." See Pub.L. 99-169, Title VII, § 801(a), Dec. 4, 1985, 99 Stat. 1008;see also Federal Government Security Clearance Programs Hearings Before the Permanent Subcomm. on Investigations of the Senate Comm. on Governmental Affairs, 99th Cong. (1985) ("1985 Hearings"). During the hearings, Congress clearly considered and approved that many background investigations under Chapter 91 would be conducted by contract investigators. Congress was informed at the 1985 Hearings that the Department of State employed contract investigators, and that OPM was also planning to employ contract investigators. 1985 Hearings at 198, 202, 255-57, 284, 287-90, 967. The OPM Director at the time testified:
[M]ost importantly in a major change [of] policy, we have been moving to a concept of a corps of permanent investigators consisting of OPM employees supplemented by an expanding contractor relationship with outside investigators, many of them previous OPM investigat[ors]. This measure is the only way we can meet the recurring surges and declines in work load without significant disruptions. . . . I have commenced solicitation of proposals from private contractors to perform part of the investigations and transcription workload.Id. at 198, 256.
Senators also expressed approval of the cost savings that resulted from contracting out background investigations. Senator Nunn observed "we heard testimony yesterday that the State Department had contracted out their investigative services at a cost of approximately $900 per personnel case." Id. at 287-88. The Senate Committee also generated the following written question for OPM: "Should other civilian agencies contract out [their background investigations] like the State Department to get the same quality [of] work cheaper and faster than with OPM?"Id. at 681. The Committee's final report on the 1985 Hearings,Federal Government Security Clearance Investigations, noted that
[t]o meet uneven demand, the Office of Personnel Management and the Department of State have instituted plans of contracting with experienced outside investigators who can be called upon during surge periods, thus delivering adequate investigative products without unnecessarily expanding the federal workforce. All agencies responsible for conducting personnel security investigations should examine the feasibility of, and consider following this procedure during surge periods.
132 Cong. Rec. S199-01 ¶ 20.
Congress enacted Chapter 91 partially in reaction to state and local governments' frequent refusal to make CHRI available. 1985 Hearings at 3, 9, 188, 270-73, 419, 446. Congress knew that contract investigators were conducting background investigations and would continue to do so in the future. Therefore, Congress intended that CHRI be made available to contract, as well as government, investigators upon request by the head of a covered agency. If Congress had intended otherwise, it could have easily specified in § 9101(b)(1) to whom criminal justice agencies shall make CHRI available. California laws that deny contract investigators access to CHRI are therefore preempted by Congress's express intent that Chapter 91 be the supreme law in the United States and that it "shall apply notwithstanding any other provision of law. . . ." 5 U.S.C. § 9101(b)(4). "[T]he principal problem with these statutes [is that] they fly in the face of the Constitution's Supremacy Clause." Forest Park II v. Hadley, 336 F.3d at 732.
2. Conflict Preemption
"Even if there were no express pre-emption in this case," the state laws at issue would be preempted because they conflict with federal regulations. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142 (1990) (applying both express preemption and conflict preemption). Plaintiff argues that Defendants are also required to make CHRI available to OPM contract investigators because California law authorizing the release of CHRI only to "public officers" conflicts with the Federal Acquisition Regulations ("FAR") 48 C.F.R. § 1.000 et seq. and is therefore preempted. (Pl.'s Mot. for Summ. J. at 27:14-19.) Defendants rejoin that California law does not conflict with the FAR because it allows CHRI to be released to OPM officials who can conduct background investigations on their own. (Defs.' Mot. for Summ. J. at 13:12-17.)
The FAR prescribe that "[u]nless specifically prohibited by another provision of law, authority and responsibility to contract for authorized supplies and services are vested in the agency head. The agency head may establish contracting activities and delegate broad authority to manage the agency's contracting functions to heads of such contracting activities." 48 C.F.R § 1.601. The FAR include several other provisions requiring OPM to determine that contractors are "responsible" and "otherwise qualified and eligible." Id. §§ 9.103(b), 9.104, 9.104-1(d). Pursuant to these sections of the FAR, the Director of OPM has established acquisition plans for background investigation contracts and has established necessary contractor qualifications and contract terms. (Decl. of Linda Springer in Supp. of Pl.'s Mot. for Summ. J. ¶¶ 5-7; Tincher-Harris Decl. ¶¶ 9-10.)
The enforcement of a state law may be preempted "when compliance with both state and federal law is impossible, . . . or when state law `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'"Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 698-99 (1984) (citing Fl. Lime Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963) quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). "[S]tate statutes may not interfere with the implementation of a federal program by a federal agency. Federal law is supreme." Forest Park II v. Hadley, 336 F.3d at 732. Valid "[f]ederal regulations have no less pre-emptive effect than federal statutes." Fidelity Fed. Sav. Loan Ass'n, 458 U.S. at 153.
Defendants do not challenge the validity of 48 C.F.R. § 1.601, the validity of which was implicitly recognized by the Fourth Circuit in United States v. Virginia, 139 F.3d 984, 986 (4th Cir. 1998).
The California laws Defendants argue are at issue here improperly attempt to "second guess" OPM's determination of contractor responsibility by refusing to make CHRI available to contract investigators and insisting that only government officials are qualified to handle such information. United States v. Virginia, 139 F.3d 984, 988 (1998) (holding that a Virginia regulatory scheme which required the Federal Bureau of Investigations ("FBI") to register its contract background investigators "frustrate[d] the objectives of the [FRA] by allowing the state to `second-guess' the FBI's responsibility determination and by giving the state licensing board `a virtual power of review over the federal determination of "responsibility."'"); Leslie Miller, Inc. v. Arkansas, 352 U.S. 187, 188-190 (1956) (holding that the Armed Services Procurement Act, which also requires government agencies to award contracts to a "responsible bidder," preempted an Arkansas law requiring government contractors to be licensed by a state board because "[s]ubjecting a federal contractor to Arkansas contractor license requirements would give the State's licensing board a virtual power of review over the federal determination of `responsibility' and would thus frustrate the expressed federal policy of selecting the lowest responsible bidder.").
The California DOJ asserted in its April 2006 letter to OPM that because "the [California Penal Code] does not make any provision for contract employees to obtain state or local summary criminal history information, OPM's contract investigators are not authorized to receive or have access to California state or local summary criminal history information." (Pl's. Compl. Ex. 1.) California DOJ's assertion that OPM's contractors must be authorized by the state to receive CHRI "runs afoul of the Supreme Court's holding that federal contractors cannot be required to satisfy state `qualifications in addition to those that the [Federal] Government has pronounced sufficient.'" United States v. Virginia, 139 F.3d at 990 (quoting Leslie Miller, Inc., 352 U.S. at 190). Accordingly, California laws that deny contract investigators access to CHRI are preempted by the FAR.
C. Permanent Injunction
Accordingly, pursuant to the Supremacy Clause of the United States Constitution (Article VI, Clause 2), the following permanent injunction enters against each Defendant forthwith:
Defendants shall immediately upon request made under 5 U.S.C. § 9101 by OPM and/or any of its contract background investigators, provide full and complete CHRI to OPM and/or its contract background investigators, which shall include any arrest, including an arrest that is, or has been, subsequently reclassified as something other than an arrest under California law. Further, Defendants are enjoined from refusing to comply with any such request. Defendants are also enjoined from directing or encouraging any California criminal justice agency to refuse full compliance with any request for CHRI made under 5 U.S.C. § 9101 by OPM and/or its contract background investigators. To the extent Defendants have in the past made any such communication, Defendants shall rescind and withdraw that communication from any such California criminal justice agency.
CONCLUSION
For the stated reasons, Defendants' motion to amend the Rule 16 Scheduling Order is denied, Defendants' motion for summary judgment is denied, Plaintiff's motion for summary judgment is granted, and the above stated permanent injunction enters against each Defendant. The Clerk of the Court shall enter judgment in favor of Plaintiff and close this action.
IT IS SO ORDERED.