Appeal from the United States District Court for the District of New Jersey, D.C. Civil No. 74-559.
Van Dusen, Gibbons and Hunter, Circuit Judges.
This is an appeal from an order of the district court "that plaintiff's complaint be dismissed with prejudice for lack of federal subject matter jurisdiction." The complaint was filed on April 17, 1974 by appellant McKenna, a resident of Jersey City, New Jersey, against appellees Fargo and Gibney, the Director of Public Safety and Chief of the Fire Department, respectively of that city. It alleges jurisdiction under 28 U.S.C. § 1343. Relying on 42 U.S.C. § 1983 and 28 U.S.C. § 2201 it seeks declaratory and injunctive relief to prevent the city from requiring that McKenna, as a precondition to his appointment to the Fire Department, take a psychological examination alleged to be a serious infringement of fundamental rights guaranteed by the United States Constitution.
Duly verified, the complaint charges that the psychological examination includes personal interviews in which questions are asked about the applicant's family, his social, religious, sexual and political beliefs, his physical functions, including bowel and bladder habits, and matters concerning personal hygiene. The complaint alleges, moreover, that subjecting McKenna to this intrusive testing
"deprive[s] plaintiff of his fundamental rights of freedom of expression and association under the First Amendment of the United States Constitution, (a) by chilling plaintiff's desire to freely express himself both during the testing periods and during his everyday affairs; and (b) by deterring plaintiff from associating with other parties who may be considered 'abnormal psychological types' by the defendants and the testing administrators."
The complaint further alleges that the testing deprives McKenna of his fundamental right to privacy safeguarded by the Constitution by requiring that he divulge information about his political, religious, social, economic, family and sexual beliefs and behavior which are within the realm of personal and marital sanctity, as a precondition to employment with the Fire Department. Finally, the complaint alleges that McKenna submitted to one set of tests for an earlier civil service list for the Fire Department but was not appointed before that list expired.
On April 17, 1974, the date the complaint was filed, a district court judge issued an order directing the defendants to show cause on April 22, 1974 why a preliminary injunction should not issue ordering them to withdraw all directions, orders, or commands to plaintiff to submit to psychological retesting as a precondition to appointment to the Fire Department. Because the district court had not issued a temporary restraining order, and the psychological test was scheduled for April 18, 1974, McKenna submitted to the exam on that date. On April 22, 1974 the defendants submitted the affidavit of Harry H. Western, Deputy Chief of the Fire Department which established that the tests complained of had been required of applicants since 1966, and alleged:
"Since approximately one and one-half years had passed since the last of the applicants from the previous list had undergone processing, I administratively determined that all applicants from all previous lists should resubmit to processing before employment."
The affidavit did not attempt to justify the scope of questioning involved in the psychological testing. No answer or motion was filed.
At the hearing on the return day, McKenna's attorney made an opening statement in which he acknowledged that the court could not grant relief with respect to McKenna's submission to the test on April 18th. He urged however that the retention of the results of the exam in computer data banks and the danger to constitutional rights through their dissemination required the granting of injunctive relief.*fn1 The district court at this point heard a seven sentence response from the attorney for the defendants, and then ruled from the bench:
"THE COURT: Gentlemen, I think the Courts of the State of New Jersey are better equipped to handle matters such as this. I don't think we have any ...