MEMO TO J. KEITH KENNEDY FROM (SANITIZED)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M00005R000700060012-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 44
• Document Creation Date: December 27, 2016
• Document Release Date: November 13, 2012
• Sequence Number: 12
• Publication Date: June 15, 1988
• Content Type: MEMO

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OCA 2029-88
n)i
Office of Congressional Affairs
Telephone: [phone]
o\ 15 JUN 1988
TO: Mr. J. Keith Kennedy
Minority Staff Director
Ca mittee on Appropriations
Legislatiizr~ Division
Office of Congressional Affairs
Attache ent5
FORM OBSOLETE
2-86 533 PREVIOUS
EDITIONS.
O A/LEGj
Distribution
Original - Addressee
-1.OCA-Registry
1 - nSigner
(15 June 1988)
STAT
STAT
STAT
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA.
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES,
Plaintiff,
V.
UNITED STATES OF AMERICA, It al.,
Defendants.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, et al.,
Plaintiffs,
V.
STEVEN GARFINKEL, et al.,
Defendants.
AMERICAN FOREIGN SERVICE
ASSOCIATION, et al.,
Plaintiffs,
V.
STEVEN GARFINKEL, et al.,
Defendants.
Civil Action
No. 87-2284-OG
F
CI^ri;, U. C',tr':t Curt
Civil Action
No. 87-2412-OG
COUNSEL: For plaintiffs in C.A. 87-2284: Bruce Heppen,
National Federation of Federal Employees,
Washington, D.C.
For plaintiffs in C.A. 87-2412: Stuart Kirsch,
American Federation of Government Employees,
Atlanta, Georgia and Joseph Kennedy, Government
Accountability Project, Washington, D.C.
For plaintiffs in C.A. 88-0440: Patti Goldman,
Public Citizen Litigation Group, Washington, D.C.
For defendants: Robert Irvin, Department of
Justice, Washington, D.C.
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EcFr,cyflvE rjF" OF Y DEwt
?+s res~ ac. soma
115 1*
The Sororshte c>;o~.t LZ_e
United Stataa senate
"a"f ,pn? D.C. z05,313
Dear Sir. t eea.
The lidsin it ere! S c:-; ='w&atar that your COmmf ttee atrl ks
S*etiot+ 421. relating to national secutLt
a~=its. trce lyi. R. T : S
y OMPIOV" jdisclosur,a
th*
Appropriations bill f r. F y 1989. Treasury-Postal 8etcvice
ssation 623 iet ideni
Treasury-po g a?t 'cal to 6action 430 of
Sea fie the rY 11at
1966 ltsttAer Pproprlttions Act cattitti ir3 the ~'f
The F'Frtq~ra.~r.a:~rrs raOnttnutnq resolution (P.L. 100-202).
purports to forbid the U.S. rwernamt
Appropriated funds to implement or enforce certain ~.
with irederal orpi nyne~ that they from ua i nq
classified intareac.er.
tr which they 4a its a ccees attthe yt ?s,
?edesal eployaer-t . n9 tRs1
On may }27 a, 19038. iv% tiatinna2
Unftod Ferl,arstian Ot F {
. Z44
Court !or the ti st. r y ct o
f yCalu is theld that section tr rt
t"Y 29803 Treaau=~~-3~:.~.tb:: :~erv ice APpmpriatlo Act ~rfct624 e5 the lot
Conatttetion. The r lmir4t stated: lates the
*rho statute. i $w . 630' s
-"find" ?s t:i i'uift.3. obligations obligatarrsij Vts the ispa"d
his by his vwpr. sus constitutional powra and uoR
the RMOCut i s 3 z the =02 s of
therefore relations. Section 630 is
'...,nt_.t.t#ar}tl.? isIi is,
P - . st 'litl
3iaueti is both u
?h* president ?: tee
~s,erZ nconstity ~, and -un ite:~
F r&2 "e t tie ro-;s~lt-~:i i a t tot
estp3 as ~r ..1 j Jntar i f y assume politic) a, of hfg t. ,,st
-bti-n9ing accost. t r, the .ltIon 11 aCSt ALoMiti
to k**p tbo" seccre's. z;:j nondisclosure motets to s$ree
essent3~al saisp:~ar s ir. protecting the .nazi s are
"curtty.
*! move yV&-ur Lam= t -e ea strike Sect ton 62L,
10"TICAL s f'i"" 03' 4 SF ?
T1CA t s S Y t j p r NOMOSAKS -,tom
q CO ZS,
attt n ; ~vt tA~Z.C Ma Z= DEMIS MINI,
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EXECUTIVE OFFICE CF `~ PAESIDE!iT
~ PV C6 OF MANAOEM@',T %%0 BUC GE'
The Honorable John C. Stennis
Chairman, Committee on Appropriations
United States Senate
waahington, D.C. 20510
Dear Mr. Chairman:
The Administration requests that your Committee strike
Section 621, relating to national security employee nondisclosure
agreements, from H.R. 4775, the Treasury-Postal service
Appropriations sill for FY 1989.
Section 621 is identical to Section 630 of the rY 1888
Treasury-Postal Service Appropriations Act contained in the FY
1988 further appropriations continuing resolution (P.L. 100-202).
The provision purports to forbid the U.S. Government from using
appropriated funds to implement or enforce c_artain agreements
with Federal employees that they not disclose without authority
classified information to which they gain accoec during their
Federal employment.
On.May 27, 1988, in National Federation of Federal Employees
Y. United States, No. 87-22842284-OG, the United States District
Court for the District of Columbia held that Section 630 of the
.FY '1988 Treasury-postal Service Appropriations Act violates the
Constitution. The Court stated:
"The statute (Sec. 630) ilrpermissibly restricts the
President's power to fulfill obligations imposed upon
him by his express constitutional powers and the role of
the ExeCUtivs in foreign relations. Section 630 is,
therefore, unconstitutional." (slip op.. at 30)
Section 871 of H.R. 4775 is both unconstitutional and unwise.
The President Possesses the constitutional authority to require
Federal employees who voluntarily assume positions of high trust
bringinq access to the Nation's most sensitive secrets to agree
to keep those secrets. such nondisclosure agrwements ace
essential safeguards in protecting the national security.
We urge your Committee to strike Section 621.
James
Directo
IDENTICAL LETTERS SENT TO HONORABLE PETE DOMENICI,
HONORABLE MARK 0. HATFIELD, HONORABLE ROBERT DOLE,
AND HONORABLE DENNIS DICONCINI
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MEMORANDUM
On at least two fronts, plaintiffs in these con-
solidated cases) challenge the lawfulness and constitutionality
of various nondisclosure agreements drafted by the Executive
Branch to protect the secrecy of classified information. These
agreements are embodied in forms drafted by the Information
Security Oversight Office ("ISOO"), the Director of Central
Intelligence ("DCI"), and the Department of Defense ("DOD"). The
forms were prepared as part of a longstanding presidential scheme
for restricting unauthorized disclosure of national security
information. See Developments in the Law--The National Security
Interest and Civil Liberties, 85 Harv. L. Rev. 1130, 1193-94
(1972) (President has been protecting national security informa-
tion since World War I) [hereinafter National-Security and Civil
Liberties]. Revamped most recently in 1982, the scheme includes
The complicated procedural history of these cases began
on August 17, 1987, with the filing of National Federation of
Federal Employees v. United States, (NFFE), Civil Action No. 87-
2284 (D.D.C.), which attacked only one of the nondisclosure
agreements--Standard Form 189 ("SF 189")--now at issue. Two
weeks later, American Federation of Government Employees, AFL-CIO
v. Garfinkel, (AFGE), Civil Action No. 87-2412 (D.D.C. Sept. 1,
1987) was filed, duplicating some of the claims in 87-2284 and
adding an assault on Standard Form 4193 ("SF 4193"). After these
cases were consolidated, Order of Dec. 2, 1987, the Court granted
leave to several members of Congress to participate as amicus
curiae. For reasons that are evident from the following discus-
sion, these Representatives and Senators joined with the
bargaining representative of State Department employees to
challenge SF 189, SF 4193, and related forms on grounds separate
from those in the two existing cases. American Foreign Service
Association v. Garfinkel, (AFSA), Civil Action No. 88-0440
(D.D.C. filed Feb. 19, 1988). Following a status conference, all
three cases were consolidated. Order of Mar. 9, 1988.
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the execution of nondisclosure agreements to permit civil
remedies for the unauthorized disclosure of national security
information. see Exec. Order'No. 12,356, ? 5.2(b), 47 Fed. Reg.
14,874 (Apr. 2, 1982)'(hereinafter Exec. Order 12,356]; National
Security Decision Directive 84 ? 1 (Mar. 11, 1983) [hereinafter
NSDD 84] (Exhibit 1 to Defendants' Opposition to Plaintiffs'
Motion for Preliminary Injunction).
Troubled by the scope and anticipated impact of the
nondisclosure agreements drafted under the Presidential scheme,
plaintiffs urge the Court to enjoin implementation and enforce-
ment of the agreements and declare them unconstitutional.'
Specifically attacked by the several complaints are SF 189 and
SF 4193,21 and form DD 1847-1. With important differences, each
of these forms restricts the privilege of the signatory to
disclose classified or "classifiable" information. Two of the
forms also provide for prepublication review of manuscripts
containing, purporting to contain, or derived from classified
information. See SF 4193 q 4 (Exhibit 5 to Defendants' Opposi-
tion to Plaintiffs' Motion for Preliminary Injunction); DD 1847-1
q 4 (Jan. 1983).
J On March 18, 1988, SF 4193 was replaced by SF 4355..
The impact of this substitution on the disputes in this case is
contested. Defendants contend that the elimination of the term
"classifiable" from SF 4355 renders the forms consistent with
constitutional and statutory standards. Plaintiffs note,
however, that the form continues to impose a prepublication
review requirement that. allegedly stifles the free speech of SF
4355 signatories.
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Now pending for the Court's consideration are defen-
dants' motion to dismiss and plaintiffs' collective motions for
preliminary injunction and summary judgment.) Briefly,
defendants' motion vigorously questions plaintiffs' standing and
the constitutionality of congressional action that purports to
resolve the dispute over the nondisclosure agreements. Plain-
tiffs' motion for preliminary injunctive relief contends that the
congressional action unequivocally prohibits implementation and
enforcement of SF 189, SF 4193, and related forms, entitling
plaintiffs to injunctive relief. The complexity of these issues
and number of counsel arguing required severance of the underly-
ing constitutional questions regarding specific provisions of the
various agreements. Thus, argument on the motions was restricted
to the issues of plaintiffs' standing, the constitutionality of
the recent congressional action, and the motion for preliminary
injunctive relief.
J The convoluted procedural history of these cases has
technically left pending two other motions. Before AFSA made
this litigation a tripartite assault on nondisclosure agreements,
defendants had moved to dismiss the NFFE and AFGE actions.
Subsequent events rendered decision of those motions pointless,
and they are deemed superseded by the pending omnibus motion to
dismiss.
Upon joining the fray, AFSA filed a motion for
preliminary injunction which they have now converted to a motion
for summary judgment and permanent injunctive relief. See
Plaintiffs' Motion for Summary Judgment at 2-3. Nevertheless,
plaintiffs continued to represent to the Court that preliminary
injunctive relief would be welcome pending further examination of
the merits. The Court, therefore, has considered the propriety
of such a remedy. See infra ? V.
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I. NATIONAL SECURITY INFORMATION, NONDISCLOSURE
FORMS AND CONGRESSIONAL INTERVENTION
Long before nuclear weapons, satellites, and orbiting
laser defense systems, the President, pursuant to his Article II
powers, undertook to defend national security by limiting access
to and disclosure of sensitive information. See National
Security and Civil Liberties, 85 Harv. L. Rev. at 1199. After
World War II, President Truman laid the foundation for the
current system of classifying information possessed by the
Executive Branch. See Exec. Order No. 10290, 3 C.F.R. ? 790
(1949-1953 Comp.). Over the past forty years, the information
has diversified and the classification system has become more
essential and more complex. See Department of Navy v. Egan, 108
S. Ct. 818, 824 (1988).
In this context, NSDD 84, supplementing Exec. Order
12,356, mandates that all people with access to certain national
security information execute a nondisclosure agreement. Pursuant
to these Presidential directives, the ISOO drafted SF 189 and the
DCI adopted an existing document-SF 4193.i" SF 189 was
designated for use throughout the Executive Branch, while SF 4193
was intended for presentation to federal employees with access to
sensitive compartmentalized information ("SCI").I
J SF 189 was released for use by Executive Branch agencies
on September 9, 1983. The DCI's SF 4193 was prepared in 1981,
before the President signed NSDD 84.
Information regarding intelligence sources and methods,
especially the technological mechanisms for intelligence
gathering, is a particularly critical subcategory of classified
(continued...)
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A. Plaintiffs' Objections to the Nondisclosure Forms
Primary among plaintiffs' objections to SF 189, SF
4193, and related forms is the use of the term "classifiable" to
identify information the disclosure of which is restricted. See
SF 189 ? 1 (Exhibit 2 to Defendants' Opposition to Plaintiffs'
Motion for Preliminary Injunction); SF 4193 q 1 (Exhibit 5 to
Defendants' Opposition to Plaintiffs' Motion for Preliminary
Injunction). Though undefined in the forms, the term has on
several occasions been clarified by the ISOO. In its most recent
incarnation, the definition restricts "classifiable information"
to "[u]nmarked classified information, including oral communica-
tions" and."unclassified information that meets the standards for
classification and is in the process of a classification
determination." 52 Fed. Reg. 48,367 (Dec. 21, 1987) (adding 32
C.F.R. ? 2003.20(h)(1)) (emphasis in original). The ISOO
definition, expressly applicable only to SF 189, also narrows the
scope of liability for breach of the agreement to knowing or
negligent disclosure of classifiable information. .
Despite the recently particularized definition of
"classifiable," plaintiffs complain that the right of SF 189 and
V(...continued)
information. SCI is primarily comprised of such information.
See Declaration of William H. Webster Q 4 (Exhibit 4 to Defen-
dants' Opposition to Plaintiffs' Motion for Preliminary Injunc-
tion). The DCI protects this information by authority delegated
to it from the President and pursuant to statutory direction.
See 50 U.S.C. ? 403(d)(3) (1982) ("[DCI] shall be responsible for
protecting intelligence sources and methods from unauthorized
disclosure").
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SF 4193 signatories to speak freely and petition Congress is
unconstitutionally impaired. Further, they cite section 630 of
the Omnibus Continuing Resolution for Fiscal Year 1988, Pub. L.
No. 100-202 (Dec. 21, 1987) [hereinafter Continuing Resolution],
as proscribing the use of any nondisclosure form containing the
term "classifiable." Section 630 provides:
No funds appropriated in this resolution or
any other Act for fiscal year 1988 may be
used to implement or enforce the agreements
in Standard Forms 189 and 4193 of the
Government or any other nondisclosure policy,
form or agreement if such policy, form or
agreement:
(1) concerns information other than
that specifically marked as classified; or,
unmarked but known by the employee to be
classified; or, unclassified but known by the
employee to be in the process of a clas-
sification determination;
(2) contains the term "classifiable";
(3) directly or indirectly obstructs, by
requirement of prior written authorization,
limitation of authorized disclosure, or
otherwise, the rights of any individual to
petition or communicate with Members of
Congress in a secure manner as provided by
the rules and procedures of the Congress;
(4) interferes with the right of the
Congress to obtain executive branch informa-
tion in a secure manner as provided by the
rules and procedures of the Congress;
(5) imposes any obligations or invokes
any remedies inconsistent with statutory law.
Provided, That nothing in this section
shall affect the enforcement of those aspects
of such nondisclosure policy, form or
agreement that do not fall within subsections
(1)-(5) of this section.
Relying on this eleventh hour addition to the Continuing
Resolution, plaintiffs insist that declaratory and injunctive
relief precluding use of SF 189 and SF 4193 is appropriate and
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that the underlying constitutionality of the forms need not be
Equally distressing to plaintiffs is the prepublica-
tion review requirement imposed by SF 4193. Paragraph four of
that form demands the signer to:
agree to submit for security review by the
Department or Agency that last authorized
[the signer's) access to [SCI] all informa-
tion or materials, including works of
fiction, which contain or purport to contain
any SCI or description of activities that
produce or relate to SCI or that [the signer
has) reason to believe are derived from SCI,
that [the signer) contemplate[s] disclosing
to any person not authorized to have access
to SCI or that [the signer has] prepared for
public disclosure. . . .
Plaintiffs attack this provision as inimical to the First
Amendment rights of employees. The alleged constitutional flaw
is the breadth of the prepublication review imposed by this
paragraph. Plaintiffs contend that the language of the proscrip-
tion too broadly restricts the disclosure of information and,
therefore, chills constitutionally protected speech. Like their
objection to the term "classifiable," however, plaintiffs argue
that the constitutional questions are deferred by section 630.
See Continuing Resolution ? 630(3).
B. Defendants' Motion to Dismiss
Defendants have responded to all the complaints with
an omnibus motion to dismiss. The thrust of the motion is that
plaintiffs lack standing and fail to state a claim for which
relief may be granted. Given these contentions, the defendants
-8-
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agree with plaintiffs' argument that the constitutionality of the
forms is not properly before this Court.
The broad premise of defendants' standing argument is
that the plaintiffs have not alleged any injury-in-fact, an
essential element of the Article III "Case or Controversy"
requirement. A corollary of this contention is that plaintiffs
are asserting the legal rights of third parties which is
ordinarily barred by prudential principles of standing.
Defendants' motion addresses each of the three categories of
plaintiffs-individuals, unions, members of Congress-and
concludes that none specifies a cognizable injury upon which the
jurisdiction of this Court may be founded.!
In addition to this jurisdictional challenge, defen-
dants contend that plaintiffs fail to state.a claim upon which
relief can be granted. Defendants insist that the current
posture of SF 189 and SF 4193 precludes any justiciable complaint
that the forms are contrary to section 630 of the Continuing
Resolution or are unconstitutional. Given the existing defini-
tion of "classifiable" and the changes to SF 4193 made upon
J For essentially the same reasons, defendants argue that
the case is not ripe regarding plaintiffs' attempt to enjoin
enforcement of the forms. The complaints are allegedly incom-
plete because they fail to identify an instance of enforcement,
planned enforcement, or revocation of security clearance.
Moreover, the implementation issue is allegedly moot as to SF 189
because. the ISOO has suspended the use of that form. See Letter
from Steven Garfinkel, Director, ISOO.(Dec. 29, 1987) (Exhibit 8
to Plaintiffs' Motion for Preliminary Injunction).
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consideration of section 630,21 defendants argue that the
Executive has complied with section 630.. Alternatively,
defendants contest the power of Congress to interfere with the
President's execution of his responsibility to protect the
national security.
II. PLAINTIFFS' STANDING TO CHALLENGE EXECUTIVE
BRANCH POLICY REGARDING ENFORCEMENT AND IMPLEMEN-
TATION OF NONDISCLOSURE AGREEMENTS
In this two-pronged challenge to the Executive's use
of nondisclosure agreements, the question of standing must be
bifurcated accordingly. The first substantive challenge for the.
Court's consideration is section 630, the power of Congress to
enact such legislation, and the Executive's compliance with the
section. As to this issue, the plaintiffs urge that the
Executive has failed to abide by the spending restrictions of
section .630. This issue only indirectly implicates constitu-
tional rights personal to the plaintiffs or their members.
Instead, the directly conflicting forces are two branches of
government. The second attack on the agreements is founded on a
perceived conflict between plaintiffs' First Amendment rights
J In response to the concerns reflected in section 630,
the'DCI, through Lieutenant General Edward J. Heinz, Director of
the Intelligence Community Staff, supplemented SF 4193 with an
addendum to all such forms executed during fiscal year 1988.
The addendum provides:
The obligations imposed by this
Agreement shall be implemented and enforced
in a manner consistent with [section 630),
and other applicable law.
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and the Executive's interest in safeguarding classified informa-
tion. Inherently, this attack directly implicates the rights of
individuals and, therefore, invites a different standing
analysis.
Notwithstanding the melting pot pleading that has
resulted from consolidation of these cases, certain plaintiffs
realistically assert only one or the other of the challenges to
the Executive's action. Consequently, the plaintiffs' standing
as to each of these prongs must be discussed separately. The
standing of each of the three categories of plaintiffs is a
subissue in each discussion.
A. Article III and Prudential Limits on Standing
As a consequence of the constitutional requirement that
federal courts adjudicate only cases and controversies, U.S.
Const., Art. III, plaintiffs have always been required to
demonstrate their standing to challenge the actions contested by
their lawsuits. See Valley Forge Christian College v. Americans
United for Separation of Church and State, 454 U.S. 464, 471
(1982). Also protected by the "standing" requirement are
prudential concerns regarding accessibility to federal forums and
the intimacy between a plaintiff's purported interest, the
parties' dispute, and the redress sought. See Warth v. Seldin,
422 U.S. 490, 498 (1975).
To surmount the constitutional hurdle, a plaintiff
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at an irreducible minimum . . . "show that he
personally has suffered some actual or
threatened injury as a result of the
putatively illegal conduct.of the defendant,"
Gladstone. Realtors v. Village of Bellwood,
441 U.S. 91, 99 (1979), and that the injury
"fairly can be traced to the challenged
action" and "is likely to be redressed by a
favorable decision," Simon v. Eastern
Kentucky Welfare Rights Ora., 426 U.S. 26,
38, 41 (1976).
Valley Forge, 454 U.S. at 472 (footnote omitted). The battle
joined by the parties must be more than abstract debate waiting
to alight on a concrete foundation of facts. The plaintiff must
show injury-in-fact, id. at 473, but he need not delay his quest
for redress until the injury is complete.. "'If the injury is
certainly impending that is enough."' Babbitt v. United Farm
Workers National Union, 442 U.S. 289, 298 (quoting Pennsylvania
v. West Virginia, 262 U.S. 553, 593 (1923)). This concern is
particularly acute when, as in this case, the relationship
between Congress and the President is implicated. Valley Forge,
454 U.S. at 473-74.
Beyond these limits on judicial power, prudential
principles demand that a plaintiff act to vindicate his own
rights, not those of a third party. Warth, 422 U.S. at 499. The
impact of these principles on Article III constraints further
requires that the controversy be palpable to a distinct and
confined population group. The courts will not be embroiled in
ventilation of grievances widely shared-grievances better
resolved by Congress. Valley Forge, 454 U.S. at 474-75.
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B. Standing to Challenge the Executive's Implementation of
Section 630
Both the constraints of Article III and the ancillary
prudential concerns present formidable obstacles to plaintiffs'
attempt to enforce the spending restrictions of section 630. The
individual plaintiffs and labor unions apparently fear that
disregard for section 630-continued compelled execution of
nondisclosure agreements-will stifle disclosure of unclassified
governmental information.1 The right to be vouchsafed by
enforcement of section 630 is that possessed by every federal
employee to speak freely when compelling governmental interests
do not justify circumscription of that freedom.
The injury feared by the congressional plaintiffs is
one step further removed. As members of Congress, these
J A less specific premise upon which plaintiffs might
assert standing is their interest, as citizens, to ensure that
Congress' enactments are faithfully executed by the President.
As defendants note, such a premise is essentially that once
relied upon by taxpayers to challenge spending decisions of the
Executive Branch. See Schlesinger v. Reservists Committee to
Stop the War, 418 U.S. 208 (1974); Public Citizen, Inc. v. Simon,
539 F.2d 211, 217 (D.C. Cir. 1976). As in Public Citizen,
the fair implication of [this premise) is to
recognize taxpayer standing to attack any
executive action that draws on an outstanding
appropriation on the ground that the
purchases or services are not in accord with
the congressional intent in passing the
appropriation. This would place the
judiciary in the role of management overseer
of the Executive Branch. Such oversight is a
function of Congress.
539 F.2d at 217. Under the narrow doctrine of Flast v. Cohen,
392 U.S. 83 (1968), taxpayer suits are limited to cases alleging
specific constitutional proscriptions on taxing and appropriation
statutes. Public Citizen, 539 F.2d at 218.
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plaintiffs assert a right to receive all governmental information
under the security of congressional rules for protection of
confidential information. If the right of federal employees to
disclose information is restricted, the right of Congress to
receive it is proportionately limited.
1. Congressional Plaintiffs Have No Standing to
Challenge the Executive's Implementation of
Section 630
To the extent that the congressional plaintiffs assert
the rights of federal employees, their standing is suspect.
Without question, members of Congress enjoy no privilege in
federal court to defend the rights of third parties.) See
Warth, 422 U.S. at 499 (plaintiff must seek vindication of own
rights, not those of third parties); Harrington v. Bush, 553 F.2d
190, 204 (D.C. Cir. 1977) (no special standards for congressional
standing). Under narrowly prescribed circumstances, however,
congressional plaintiffs are welcome in federal court to reverse
a diminution in influence resulting from Executive action. See
Goldwater v. Carter, 617 F.2d 697, 702 (D.C. Cir. 1979).
To be cognizable for standing purposes, the
alleged diminution in congressional influence
must amount to a disenfranchisement, a
complete nullification or withdrawal of a
voting opportunity; and the plaintiff must
point to an objective standard in the
Constitution, statutes or congressional house
J This principle fatally infects any attempt by the
Congressional plaintiffs to challenge the nondisclosure forms as
contrary to the Constitution. None of these plaintiffs has been
required to sign such a form. Thus, they have suffered no
injury-in-fact upon which standing could be based.
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rules, by which disenfranchisement can be
shown.
id. (citing Harrington, 553 F.2d at 212). In contrast, "a
diminution in a legislator's effectiveness, subjectively judged
by him or her, resulting from Executive action withholding
information or failing to obey a statute enacted through the
legislator's vote, where the plaintiff-legislator still has power
to act through the legislative process to remedy the alleged
abuses," id., does not amount to an injury-in-fact sufficient to
confer standing.
In this case, the congressional plaintiffs allege only
that the Executive agencies have not complied with section 630
and, thereby, have stemmed the flow of information to Congress.
Under Goldwater, such a claim is clearly inadequate to confer
standing. Because the congressional plaintiffs may not employ
judicial processes to enforce their view of section 630 or to
challenge, on behalf of federal employees, the provisions of SF
189, SF 4193, and related forms, all claims asserted by them are
dismissed.
2. The Labor Union Plaintiffs Have Standing Under the
Administrative Procedure Act to Challenge
Interpretation and Implementation of Section 630
The labor union plaintiffs attack the implementation of
section 630 by the ISOO, DCI, and DOD on the ground that the
action taken by these agencies is arbitrary, capricious, and
otherwise not in accordance with the law. 5 U.S.C. ? 706 (1982).
The unions' allegations focus on harm to their members and not on
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any impairment of the unions' capacity to function as bargaining
representatives. Thus, their standing is contingent upon the
standing that individual members would have to press the claims
now asserted by the unions. Hunt v. Washington State Apple
Advertising Commission, 432 U.S. 333,343 (1977); see Warth, 422
U.S. at 511. Additionally, the unions must demonstrate that "the
interests [they) seek[) to protect are germane to the organiza-
tion[s'] purpose; and . . . neither the. claim asserted nor the
relief requested requires the participation of individual members
in the lawsuit." Hunt, 432 U.S. at 343.
The standing of individual union members turns on the
constitutional and prudential considerations already discussed
as well as statutory requirements under the Administrative
Procedure Act ("APA").10 5 U.S.C. ? 702 (1982). Section 702 of
the APA permits "[a] person suffering legal wrong because of
agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, . . . to
judicial relief thereof." This statutory gloss on standing
principles adds to the showing of injury-in-fact a requirement
that plaintiffs be "arguably within the zone of interests to be
protected or regulated" by section 630 of the Continuing Resolu-
tion. Association of Data Processing Service Organizations v.
Camp, 397 U.S. 150, 153 (1970); see Abourezk v. Reagan, 785 F.2d
1043, 1050 (D.C. Cir. 1986).
10 This analysis applies equally well to determine whether
individual members of the plaintiff unions would have standing in
their own right.
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The agency actions of which the unions complain are the
policies of the DCI, DOD, and ISOO regarding implementation and
enforcement of SF 189, SF 4193, and DD 1847-1 during fiscal year
1988. Following enactment of section 630, the ISOO instructed
all federal agencies to suspend implementation of SF 189 and to
void at the behest of the signatory any SF 189 executed after
December 22, 1987. The DCI, however, merely added a paragraph to
its SF 4193 which states that the agreement will be enforced in a
manner consistent with the requirements of section 630. Federal
employees with access to SCI are still required to sign this
amended version of the form.l1
Plaintiffs urge that section 630 requires that all SF
189 forms executed after December 22, 1987 be voided and that all
signatories of forms in this group be informed of this action.
They also insist that the ISOO be. compelled to direct all
administrative agencies that execution of SF 189 is not a
prerequisite to access to classified information, at least during
fiscal year 1988. Regarding SF 4193 and its progeny, the
plaintiffs make similar demands for relief, insisting that the
addendum to SF 4193 and the successor SF 4355 do not avoid the
proscriptions of section 630.
The complaints, which range from twenty-two paragraphs
with four counts to eighty-six paragraphs with thirteen counts,
successfully, though barely, establish a factual premise for the
11 On March 22, 1988, SF 4193 was discontinued and
replaced by 'SF 4355 which omits the term "classifiable informa-
tion" but continues the requirement of prepublication review.
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standing of the plaintiff unions. A generous, but fair reading
of each of the complaints reveals allegations that members of the
plaintiff unions have been required to sign SF 189 or SF 4193
since December 22, 1987. . See Pennell v. City of San Jose, .56
U.S.L.W. 4168., 4169 (Feb. 23, 1988) (district court considering
motion to dismiss based on pleadings must construe complaint in
light most favorable to plaintiffs). While mere execution of the
forms is not injury-in-fact, compulsory execution coupled with
the express and implied restrictions on speech constitutes such
injury-in-fact.
Contrary to defendants' argument, the allegation of
chilling effect is not per se an insufficient basis for standing.
More precisely, the question is whether the chill felt by
plaintiffs is wholly subjective in which case they have failed to
establish an injury-in-fact that the Court is empowered to
redress. See Laird v. Tatum, 408 U.S. 1, 13-14 (1972)
("[a]llegations of subjective 'chill' are not an adequate
substitute for a claim of specific present objective harm or a
threat of specific future harm"); United Presbyterian Church in
the U.S.A. v. Reagan, 738 F.2d 1375, 1378-79 (D.C. Cir. 1984)
(rejecting standing of group fearing surveillance of its
activities under particular Executive Order and anticipating
consequent chill of free. speech). Objectivity is lent to the
anticipated infringement of First Amendment rights when:
the challenged exercise of governmental power
[is] regulatory, proscriptive, or compulsory
in nature, and the complainant [is) either
presently or prospectively subject to the
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regulations, proscriptions, or compulsions
that he [is] challenging.
Laird, 408 U.S. at 11. The source of the plaintiffs' fear must
be more than their "knowledge that a governmental agency [is]
engaged in certain activities or . . . that, armed with the
fruits of those activities, the agency might in the future take
some other and additional action detrimental to that individual."
Id. (emphasis in original). Thus, objective, indirect impairment
of First Amendment rights may be injury-in-fact.
Although the complaints do not explicitly state that
any member of the plaintiff unions has been compelled to sign the
nondisclosure forms under threat of discharge or denial of
security clearance, the position of the unions as exclusive
bargaining agents and the language of the forms make clear that
these consequences would flow from refusal to execute or comply
with the forms. See Affidavit of Perry Shankle 9 5 (President of
AFSA states that members have told him that they are still being
required to execute SF 4193 but seek anonymity for fear of
reprisal). Thus, the chilling 'effect on First Amendment rights
of continued compulsory implementation and threatened enforcement
of the forms is sufficient injury-in-fact to confer standing.12
With this conclusion, the injury-in-fact prong of APA standing is
12 As noted previously, execution and threatened enforce-
ment-of SF 4193 continued, until March 22, 1988, with an addendum
purporting to render the form consistent with. section 630 of the
Continuing Resolution. While execution of SF 189 has been
suspended, the ISOO has expressed no intention to waive enforce-
ment of the form during fiscal year 1988. Consequently, it must
be assumed that enforcement is still threatened.
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satisfied. The requirements of section 702 of' the APA are
complete because it is obvious that federal employees subject to
the Executive's national security information policies comprise
the group to be protected by section 630 of the Continuing
Resolution.
3. The Standing of the Individual Plaintiffs
Of the three individual plaintiffs,13 none purports to
have been required to sign SF 189 since enactment of section 630
of the Continuing Resolution on December 22, 1987. Plaintiff
Douglas, however, signed SF 189 before that date and now
complains that the ISOO has failed to take appropriate steps to
apprise him, and others like him, that the SF 189 cannot be
enforced during fiscal year 1988. He contends that the apparent
intention of the ISOO to enforce the agreement in contravention
of section 630 dissuades him from exercising his constitutional
and statutory right to speak freely. See Affidavit of Steven
Garfinkel qq 2-4 (Exhibit 7 to Plaintiffs' Motion for Preliminary
Injunction). As discussed extensively in the preceding section,
an objective chill on First Amendment rights as a consequence of
13 Jim Stinchcomb, James Douglas, and Louis Brase are
plaintiffs in AFGE, No. 87-2412-OG. Stinchcomb alleges that he
has been instructed to sign SF 189 but has refused. As a
consequence he has allegedly been "threatened with security
clearance revocation and resultant loss of employment."
Complaint 1 4. Douglas has signed SF 189 but alleges that he did
so only after he was threatened with revocation of his security
clearance and discharge from his position with the Department of
Navy. Brase has signed SF 4193 under the same conditions, but
has refused to sign SF 189. Douglas and Brase executed their
agreements before December 22, 1987.
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an exercise of governmental power, compulsory in nature,
sufficiently states injury-in-fact to confer standing. Thus,
plaintiff Douglas has standing to challenge the ISOO's failure to
inform signatories to SF 189 that enforcement will not be
undertaken during fiscal year 1988.
The same conclusion must be reached regarding plaintiff
Brase's execution before December 22, 1987 of SF 4193. The DCI
has expressed its intention to continue enforcing previously
executed forms. See Affidavit of Lieutenant General Edward J.
Heinz q 4 (Exhibit 6 to Plaintiffs' Motion for Preliminary
Injunction) (only change to SF 4193 in light of section 630 is
addendum). Consequently, Brase performs his functions as a
Training Manager with the Air Force under the cloud of threatened
discharge or loss of security clearance for violation of the
agreement.
Plaintiff Stinchcomb, having refused to sign an SF 189,
can suffer no injury under the ISOO's present scheme. Since the
form will not be implemented during fiscal year 1988, Stinchcomb
cannot be threatened with discharge for refusing to execute the
form. Obviously, he cannot be the object of enforcement action
because he has not executed an SF 189. Stinchcomb lacks standing
to challenge the existing Executive policy regarding nondis-
closure agreements.
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4. Summary of Standing to Challenge the Executive's
Implementation and Enforcement of Nondisclosure
Agreements as Contrary to Section 630
.For all purposes, the congressional plaintiffs may be
dismissed from the AFSA case because they allege no injury-in-
fact upon which standing may be based. Limitations on their
access to information and diminution of their effectiveness as
members of Congress does not constitute injury redressable in the
federal. courts. Additionally, they have no standing to protect
the rights of third parties.
In contrast, the labor union plaintiffs have alleged,
with less than meticulous precision, a collection of facts which
in the aggregate constitutes injury-in-fact to some of their
individual members. Those union members who signed nondisclosure
agreements after December 22, 1987, have been compelled by
governmental power to take action that allegedly chills their
legitimate exercise of constitutional and statutory free speech
rights.
Of the three individual plaintiffs, two have standing
to challenge the Executive's interpretation of section 630.
Plaintiff Douglas has executed a SF 189, and the ISOO apparently
intends to take enforcement action against any violation of the
agreement. The same is true regarding plaintiff Brase's
execution of the DCI's SF 4193.
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III. PLAINTIFFS' STANDING TO CHALLENGE THE CONSTITU-
TIONALITY OF THE NONDISCLOSURE AGREEMENTS
As originally filed, the complaints in NFFE and AFGE
sought a declaration that SF 189, SF 4193, and related forms are
unconstitutional as overbroad and impermissibly restrictive of
First Amendment rights.14 In their motion to dismiss, the
defendants contest the standing of the individual and labor union
plaintiffs to challenge the constitutionality of the nondis-
closure forms. Defendants argue, as they did regarding the
section 630 claims, that neither the individuals nor the labor
unions have alleged an injury-in-fact upon which standing may be
founded. In defendants' view, only threatened or actual
discharge is sufficient to satisfy the constitutional requirement
of injury-in-fact.
This stringent view of standing is-without foundation.
As noted in sections II.A and II.B.2 of this opinion, injury need
not be consummated to establish standing. See Babbitt, 442 U.S.
at 298 ("certainly impending" injury is enough). Moreover, the
chilling effect of governmental action on exercise of First
Amendment rights may be sufficient injury-in-fact if the exertion
of governmental power is regulatory, proscriptive, or compulsory
in nature. See Laird, 408 U.S. at 11. The vitality of "chill"
as a premise for standing turns on the existence of objective
causes for the plaintiffs' reluctance to exercise First Amendment
14 Plaintiffs in AFSA challenge only the Executive's
interpretation of section 630 and implementation of nondisclosure
agreements under this provision of the Continuing Resolution.
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Rights. An entirely subjective chill is not injury-in-fact. The
action must have already been taken or threatened. Ld. at 13-14.
The "chill" alleged by plaintiffs arises entirely from
compelled execution of the nondisclosure agreements which
expressly and'impliedly threaten discharge or loss of,security
clearance. Execution of an agreement subjects the signatory to
civil and employment penalties for unauthorized disclosure of
classified or "classifiable" information. Despite the clarifica-
tion of the term "classifiable," plaintiffs reasonably contend
that the vagueness of the term precludes precise delineation of
information that may not be disseminated. Thus, the legitimate
exercise of First Amendment rights is potentially impaired. This
"chill" constitutes injury-in-fact.l5
The labor union plaintiffs have standing to represent
their members in this case because those members who have signed
the forms have standing in their own right to seek redress. As
already noted, protection of the members' interest is squarely
within the avowed purposes of the unions. Additionally, there is
no reason to require that individual members participate in the
suit. See Hunt, 432 U.S. at,343. .
15 The standing analysis is inextricably related to the
merits of plaintiffs' constitutional claims. By merely alleging
an injury-in-fact, plaintiffs do not necessarily succeed on the
merits of their claim. The overbreadth doctrine of the First
Amendment requires a careful examination of the government's
interest in restricting speech. Thus, plaintiffs' injury may be
sufficient to reserve a seat for them in the courtroom, but the
Court may decline to remedy the injury.
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All of the individual plaintiffs have standing because
they have signed or been directed to sign SF 189 or SF 4193.
The government's attempt, successful' or not, to compel execution
of the forms has plausibly had a chilling effect on the exercise
of First Amendment rights. Plaintiffs have sufficiently alleged
that execution of the forms is compelled by threats of discharge
or loss of security clearance. Moreover, plaintiffs Douglas and
Brase, who have executed SF 189 and SF 4193, respectively, suffer
the additional effects of the threat of enforcement of the forms.
IV. THE AUTHORITY OF CONGRESS TO RESTRICT PRESIDENTIAL
REGULATION OF ACCESS TO AND DISCLOSURE OF NATIONAL
SECURITY INFORMATION
Assuming that the Executive's actions since enactment
of section 630 do not comply with the requirements of that
legislation, the defendants argue that section 630 unconstitu-
tionally impinges on the President's discretion to regulate
access to and disclosure of national security information.l6
16 Without the benefit of extended discussion, the Court
notes that this assumption' is well-founded. Section 630
expressly bars the use of fiscal year 1988 funds to "implement or
enforce the agreements in Standard Forms 189 and 4193."
Nevertheless, the DCI continued to require execution of the form
until March 22, 1988 when SF 4355 was adopted. The addendum to
SF 4193, which purports to cleanse the agreement of provisions
offensive to section 630, plainly is not "true to the congres-
sional mandate from which it derives authority," Farmers Union
Central Exchange Inc. v. FERC, 734 F.2d 1486, 1499-1500 (D.C.
Cir. 1984), and is based on an "erroneous view of the law", as
Congress has written it. Prill v. NLRB, 755 F.2d 941, 947 (D.C.
Cir. '1985) (citing SEC v. Chenery Corp., 318 U.S. 80, 95.(1943)).
Thus, if section 630 embodies constitutionally permissible
congressional action, judicial review under the APA,.5 U.S.C.
? 706, of the DCI's action would :likely determine the action. to
be contrary to law.
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Traditionally, Executive Orders have been the mechanism for
establishing systems for ensuring the secrecy of sensitive
information. See, e.g., Exec. Order No. 10290, 3 C.F.R. ? 790
(1949-1953 Comp.); Exec. Order 12,356. The constitutional
premise for the President's oversight of national security
information is his role as Commander in Chief, U.S. Const., Art.
II, ? 2, and head of the Executive Branch. See Department of
Navy, 108 S. Ct. at 824. This role for the President is
sensible, in defendants' view, because national security
information is generated primarily by the Executive Branch to
assist the President in conducting foreign relations. See United
States v. Curtiss-Wright Corp., 299 U.S. 304, 319 (1936). Never
has the President's activity in this area been dependent upon
express legislative authorization. See Department of Navy, 108
S. Ct. at 824 (citing Cafeteria Workers v. McElroy, 367 U.S. 886,
890 (1961)); National Security and Civil Liberties, 85 Harv. L.
Rev. at 1198.
The defendants' position does not preclude congres-
sional activity relating to *national security information, and
they admit that categorical division of responsibility between
the Legislative and Executive Branches is not possible. See
United States v. American Telephone & Telegraph Co., 551 F.2d
384, 392-93 (D.C. Cir. 1976). Tradition and prudence, they
contend, in construing constitutional apportionment of authority
demand that Congress be excluded from restricting the means by
which the Executive protects national security information.
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Concurring in New York Times Co. v. United States, 403 U.S. 713
(1971), Justice Stewart discussed the critical importance of
secrecy to the effective discharge of the President's almost
plenary power over national defense and international relations.
He noted:
If the Constitution gives the Executive a
large degree of unshared power in the conduct
of foreign affairs and the maintenance of our
national defense, then under the Constitution
the Executive must have the largely unshared
duty to determine and preserve the degree of
internal security necessary to exercise that
power successfully. . [I)t is clear to me
that it is the constitutional duty of the
Executive-as a matter of sovereign preroga-
tive and not as a matter of law as the courts
know law-through the promulgation and
enforcement of executive regulations, to
protect the confidentiality necessary to
carry out its responsibilities in the fields
of international relations and national
defense.
This is not to say that Congress and the
courts have no role to play. Undoubtedly
Congress has the power to enact specific and
appropriate criminal laws to protect
government property and preserve government
secrets.
Id. at 729-30. Accepting this broad portrayal of Executive
power, defendants conclude that section 630 unconstitutionally
impairs the President's power to fulfill his plenary respon-
sibilities to ensure a sound national defense and represent the
interests of the United States in other nations.l7
17 Equally troubling to the. defendants is Congress'
alleged attempt by section 630 to impose substantive limitations
with a budgetary enactment. Section 630 is merely an appropria-
tions measure by which no substantive rights or causes of action
are created. By such a measure, Congress cannot accomplish that
(continued...)
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Plaintiffs' response is simply that defendants take an
overly broad view of the complaints and the effect of section
630. "[T]his case concerns discrete limits that Congress has
placed on. the extent to which such nondisclosure agreements can
limit congressional disclosures and can go beyond information
that is classified pursuant to executive order or in the process
of being so classified." Plaintiffs' Opposition to Defendants'
Motion to Dismiss at 11.
If by "discrete" plaintiffs mean identifiable or
enumerated, their characterization of this case and section 630
may be correct, but the fact that provisions of section 630 are
clearly stated does not immunize it from constitutional chal-
lenge. Given the constitutional and traditional role of the
Executive in assuring the nation's security. and gathering and
protecting the information essential to that security, section
630 demands some pronouncement of the permissible scope of
congressional intrusion upon these functions. Ordinarily
difficult, the task of drawing a line across which the political
branches may not tread is more troublesome in this context
because judicial consideration of this problem has been rare.
See United States v. American Telephone & Telegraph Co., 551 F.2d
17 (...continued)
which by direct legislative action would be beyond its constitu-
tional authority. Cf. United States v. Lovett, 328 U.S. 303, 316
(1946) (budgetary action designed to punish certain individuals
is Bill of Attainder just as if Congress had passed law declaring
individuals guilty of crime).
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384, 390 (D.C. Cir. 1976), on rehearing 567 F.2d 121, 126-27
(D.C. Cir. 1977).
Neither political branch is expressly charged by the
Constitution with regulating accumulation of or access to
national security information. American Telephone & Telegraph
Co., 567 F.2d at 128 (citing L. Henkin, Foreign Affairs and the
Constitution 16-17 (1972)). "The authority to protect such
information falls on the President as head of the Executive
Branch and as Commander in Chief." Department of Navy, 108 S.
Ct. at 824. Historically, the role of Congress in this arena has
been to facilitate secrecy with appropriate criminal and civil
sanctions. See New York Times, 403 U.S. at 730. Section 630
departs from history and threatens the balance struck by time and
constitutional implication between the pervasive importance of
strict protection of national security information and Congress'
institutional need for that information.
The sensitive and complicated role cast for the
President as this nation's emissary in foreign relations requires
that congressional intrusion upon the President's oversight of
national security information be more severely limited than might
be required in matters of purely domestic concern. See Curtiss-
Wright, 299 U.S. at 320. Section 630 cannot be construed as
consistent with this principle or with the President's recognized
authority. The statute does much more than protect Congress'
access to classified information-a goal readily achieved by
subpoena or perhaps cooperation. See American Telephone &
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Telegraph, 567 F.2d at 130-32. With a tug on the purse strings,
Section 630 establishes a precedent unrestrained by discernible
standards and intrudes dramatically upon Presidential authority.
Particularly offensive to the need for judicially
manageable standards are subsections (3) through (5) of section
630. The first of these prohibits obstruction by the Executive
of the right of any federal employee to communicate with Congress
under the rules of Congress for maintaining security. Subsection
(4) bars interference with "the right of the Congress to obtain
executive branch information" under similar rules for maintaining
.security. The last of these subsections bars any nondisclosure
agreement that imposes an obligation or provides a remedy
inconsistent with existing statutes. Read together, these
provisions of section 630 permit the President to ensure the
secrecy of national security information only by those means
authorized by Congress.
Wherever may be drawn the line between the political
branches in the area of regulating access to national security
information, section 630 surely falls within territory where it
is not welcome. The statute impermissibly restricts the
President's power to fulfill obligations imposed upon him by his
express constitutional powers and the role of the Executive in
foreign relations. Section 630 is, therefore, unconstitutional.
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V. PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AND
DISPOSITION OF THE AFSA CASE
Originally filed by plaintiffs in AFSA, the notion for,
preliminary injunction seeks equitable enforcement of the
proscriptions of section 630. Because the Court finds that
legislation to intrude beyond constitutional limitations into the
realm of the Executive, relief of any kind based on section 630
is necessarily unavailable. The consequence is not merely that
a preliminary injunction will not be entered.
The AFSA case is founded entirely on section 630 which,
in light of the Court's ruling, provides no basis for relief.
Without section 630 as a legal foundation for their claims, the
plaintiffs in that case state no claim upon which relief can be
granted. See District of Columbia v. Air Florida, Inc., 750 F.2d
1077, 1081 (D.C. Cir. 1984); Sacks v. Reynolds Securities, Inc.,
593 F.2d 1234, 1239 (D.C. Cir. 1978). Moreover, because the
Court was presented with and considered material extrinsic to the
pleadings and the parties had adequate opportunity to submit such
material, defendants' motion to dismiss will be treated as a
motion under Rule 56 for summary judgment. See Sacks, 593 F.2d
at 1239; Fed. R. Civ. P. 12(b). Accordingly, summary judgment
will be entered for defendants in American Foreign Service
Association v. Garfinkel, Civil Action No. 88-0440-OG (D.D.C.
filed Feb. 19, 1988). For the same reason, Count III of the
complaint in National Federation of Federal Employees v. United
States, Civil Action No. 87-2284-OG (D.D.C. filed Aug. 17, 1987)
and Count XIII of the complaint in American Federation of
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Government Employees v. Garfinkel, Civil Action No. 87-2412-OG
(D.D.C. filed Sep. 1, 1987) are dismissed.
VI. OTHER CLAIMS RAISED BY PLAINTIFFS IN NFFE AND AFGE
Apart from First Amendment overbreadth and vagueness
claims, plaintiffs in NFFE and AFGE offer a variety of constitu-
tional and statutory theories upon which SF 189, SF 4193, and
similar nondisclosure forms might be declared unlawful.
Defendants characterize some of the claims based on these
theories as frivolous and move to dismiss them as without basis
in the law. Additionally, defendants' motion provides occasion
for the Court to consider the legal sufficiency of all the
remaining claims. See Hudgins v. I.R.S., 620 F. Supp. 19, 20
(D.D.C. 1985) (dismissing under Rule 12(b)(6) sua sponte);
Martin-Trigona v. Acton Corp., 600 F. Supp. 1193, 1201 (D.D.C.
1984) (same).
A. Distinctions Between SF 189 and SF 189-A Do Not
Deprive Federal Employees of Equal Protection Under the
Law
SF 189-A, a variant of the ISOO's SF .189, is a
nondisclosure agreement presented for execution to government
contractors who may require access to classified information.
The variation of allegedly constitutional dimension is the
omission from SF 189-A of the term "classifiable." Because the
distinction is not inherently invidious, does not impinge on any
fundamental right, and does not create a suspect classification,
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the Court's scrutiny of the variation must be minimal. see
Schweiker v. Wilson, 450 U.S. 221, 230 (1981); San Antonio School
District v. Rodriquez, 411 U.S. 1, 29 (1973). At this level of
judicial review, the government's action need only be rationally
related to a legitimate objective. Dandridge v. Williams, 397
U.S. 471, 485 (1970).
Typically, the courts are summoned to examine the
rationality of a governmental classification when the legislature
addresses social or economic problems. See Schweiker, 450 U.S.
at 230; Dandridge, 397 U.S. at 485. Judicial deference to
legislative judgments in these areas recognizes that the
legislatures are "the appropriate representative body through
which the public makes democratic choices among alternative
solutions to social and economic problems." Schweiker, 450 U.S.
at 230. Restraint is equally appropriate because the courts
"lack both the expertise and the familiarity with local problems
so necessary to the making of wise decisions with respect to the
raising and disposition of public revenues." Rodriguez, 411 U.S.
at 41. The breadth of leeway afforded legislatures in these
areas is so substantial that "if any state of facts reasonably
can be conceived that would sustain [social or economic legisla-
tive action), the existence of that state of facts at the time
that the law was enacted must be assumed." Lindsley v. Natural
Carbonic Gas Co., 220 U.S. 61, 78-79 (1911) (quoted in Dandridge,
397 U.S. at 485).
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Just as Congress' institutional competence to make
economic and social policy justifies minimal scrutiny, the
acknowledged expertise of the President in protecting national
security information demands commensurate restraint by this
Court. The use of "classifiable" in SF 189, but not SF 189-A, is
legitimately explained by the primary access of federal employees
to information generated by the Executive branch from a variety
of intelligence sources. Contractors ordinarily will have access
to such information only after it has been filtered through
government employees with the expertise and authority to classify
documents. The protection of such documents is a legitimate goal
reasonably achieved by the expanded scope of SF 189, and the
Court is without competence to say that the Executive's judgment
is "patently arbitrary or irrational." United States Railroad
Retirement Board v. Fritz, 449 U.S. 166, 177 (1980). Accord-
ingly, the cited distinction between SF 189 and SF 189-A states
no claim under Equal Protection principles embodied in the Fifth
Amendment, and Count III of the AFGE complaint is dismissed.
B. There Is No Private Right of Action Under the Whistle-
Blower Protection Statute
Section 101(a) of the Civil Service Reform Act
("CSRA"), Pub. L. No. 95-454, 92 Stat. 1114 (1978), bars
personnel action against any federal employee in retaliation for
disclosure of information evidencing "a violation of any law,
rule, or regulation, or . . . mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
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danger to public health or safety." 5 U.S.C. ? 2302(b)(8)(A)
(1982). This protection against reprisal evaporates, however, if
the disclosure is "specifically prohibited by law [or] if [the]
information is . . . specifically required by Executive order to
be kept secret in the interest of national defense or the conduct
of foreign affairs." Id.
To enforce the protection against retaliatory personnel
action, the CSRA establishes an elaborate scheme which requires
investigation by the Office of Special .Counsel of the Merit
Systems Protection Board of any allegedly prohibited personnel
action. Id. ? 1206(c)(1)(A). The CSRA is entirely silent,
regarding judicial enforcement of the prohibitions against
reprisal. Considering these entirely consistent characteristics
of the CSRA, the court in Borrell v. United States International
Communications Agency, 682 F.2d 981, 987 (D.C. Cir.. 1982)
determined that section 101(a) creates no private right of action
to enforce in the district courts the prohibitions against
retaliation for whistle-blowing. The Court of Appeals affirmed a
district court ruling that subject matter jurisdiction is lacking
over any action founded on section 101(a). Id. at 988.
The Borrell decision is fatal to claims in NFFE and
AFGE that SF 189 and SF 4193 are unlawful because they create a
mechanism for retaliation against whistle-blowers in contraven-
tion of the CSRA. This Court lacks jurisdiction over any such
claim. Accordingly, Count I of the NFFE complaint and Count IV
of the AFGE complaint are dismissed.
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C. The Code of Ethics for Government Service Affords No
Legal Basis for Challenge df Nondisclosure Agreements
In 1980, Congress adopted a ten-point Code of Ethics to
be posted in all federal buildings. Pub. L. No. 96-303, ? 3, 94
Stat. 855 (uncodified). The ninth of these guidelines for
conduct of federal employees states that "[a]ny person in
Government service should . . . [e]xpose corruption wherever
discovered." (Emphasis added). By its terms, this Code of
Ethics is entirely advisory and imposes no affirmative legal
obligation on any government employee to investigate or disclose
corruption in government.
Count VI in the AFGE complaint asserts that SF 189 and
SF 4193 are unlawful because they are contrary to the Code. Such
an argument is patently frivolous and unnecessarily duplicative
of other legal theories in the complaint. Catch-all pleading of
this kind only serves to distract the Court's attention from
worthwhile claims. Accordingly, Count VI is dismissed.
D. Count VIII Omits an Essential Element of a Claim Under
Section 706(2)(C) of the APA
When asked to examine agency action, the reviewing
court may hold unlawful such action if it is "in excess of
statutory jurisdiction, authority, or limitations, or short of
statutory right." 5 U.S.C. ? 706(2)(C). Demanding such a
determination by this Court regarding SF 4193, plaintiffs argue
that the DCI promulgated the form on the basis of paragraph 1(b)
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of NSDD 84. That paragraph was allegedly withdrawn by the
President in 1984.
Assuming that plaintiffs correctly describe the status
of paragraph 1(b) of NSDD 84, they entirely omit an essential
element of review under section 706(2) (C) of the APA. NSDD 84 is
a presidential document' establishing guidelines for protection of
national security information. Certainly, plaintiffs must admit
that NSDD 84 is not a statute; yet this Court is empowered by
section 706(2)(C) only to verify that SF 4193 is within the scope
of the DCI's statutory authority. Because plaintiffs cite no
statute by which the SF 4193 should be measured, they fail to
state a claim, and Count VIII of the complaint in AFGE is
dismissed.
E. The Copyright Clause Does Not Preclude the Executive
from Requiring Federal Employees to Assign to the
Government the Proceeds of Any Unlawful Disclosure of
Government Information
No less frivolous is-'the claim made by plaintiffs in
AFGE that the Copyright Clause, U.S. Const., art. I, ? 8, cl. 8,
preempts any attempt by the President to require his employees to
assign to the government the proceeds of an unlawful disclosure
of government information. While making sense of this claim is a
formidable challenge, plaintiffs appear to argue that SF 189 and
SF 4193 create a property right that may only be created by
Congress. These forms, however, cannot be construed by even the
most liberal interpretation to create an exclusive right for
anyone in any writing. They do not give the government an
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exclusive right to any information; at most, they impose a
sanction by agreement for the unauthorized disclosure of
government information.
The legality of such an assignment of proceeds is
unequivocally established by Snepp v. United states, 444 U.S.
507, 515 (1980) (per curiam). As a condition of his employment
with the CIA, Snepp had signed an agreement assigning to the
government any proceeds of disclosure of any information relating
to the agency which disclosure was not submitted for prepublica-
tion review. Addressing Snepp's claim that the agreement was an
unconstitutional prior restraint on protected speech, the Supreme
Court declared that "the agreement [was] an 'entirely
appropriate' exercise of the CIA Director's statutory mandate to
'protec[t] intelligence sources and methods from unauthorized
disclosure."' Id. at 509 n.3 (quoting United States v. Snepp,
595 F.2d 926, 932 (4th Cir. 1979) and 50 U.S.C. ? 403(d)(3)).
Plaintiffs in AFGE have entirely ignored the force of this
authority which directly contradicts Count IX of their complaint.
Accordingly, that Count is dismissed.
F. Plaintiffs in AFGE State No Claim Under the Freedom of
Information Act
The Freedom of Information Act ("FOIA"), Pub. L. No.
89-554, 80 Stat. 383 (1966) (codified at 5 U.S.C. ? 552),
requires that government agencies "make available to the public"
a variety of information generated by them. The purpose of FOIA
is to permit access to governmental information the secrecy of
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which is unnecessary. See EPA v. Mink, 410 U.S. 73, 80 (1973).
Exceptions to the broad mandate for disclosure permit the
agencies to withhold as confidential certain narrowly defined
categories of information, including "matters that are
specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy and . . . are in fact properly
classified pursuant to such Executive order." 5 U.S.C.
? 552(b)(1).
Plaintiffs in AFGE reason that the Executive may not
require its employees to withhold information in contravention of
FOIA. While this may be true, plaintiffs are in no position to
make such an argument before this Court. Neither the union nor
the individual plaintiffs assert that they have sought informa-
tion from the Executive under FOIA. Instead, they are complain-
ing that SF 189 and SF 4193 preclude disclosure by them. Such a
claim is not within the ambit of FOIA which authorizes this Court
only to "enjoin the agency from withholding agency records and to
order the production of any agency records improperly withheld."
5 U.S.C. ? 552(a)(4)(B). Accordingly, plaintiffs fail to state a
claim under FOIA, and Count X of the complaint in AFGE is
dismissed.
G. Counts XI and XII of the AFGE Complaint Are Unintel-
ligible
After several careful readings of Counts XI and XII of
the AFGE complaint, the Court is unable to discern a singular
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legal theory upon which the plaintiffs might demand relief.
Count XI appears to allege some contractual basis for declaring
SF 189 and SF 4193 unlawful. The mere appearance of a claim,
however, is insufficient to permit plaintiffs to move forward;
they could prove no facts that would permit recovery on the
unintelligible legal theory in Count XI.
Count XII suffers from similar faults and more. Rather
than stating a discrete legal basis for declaring the nondis-
closure forms unenforceable, plaintiffs restate, in summary,
theories exposited elsewhere in their complaint. Perhaps, they
realize that such a summary is necessary to conclude an eighty-
seven paragraph complaint. Regardless, the Court is unable to
discern a distinct basis for relief in Count XII. See Fed. R.
Civ. P. 8(a). Therefore, it is dismissed.
VII. CONCLUSION
The accompanying order sets forth in detail the effect
of this opinion on the complaints in these consolidated cases.
In summary, various plaintiffs have standing to challenge the
Executive's interpretation and execution of section 630 of the
Continuing Resolution and the constitutionality of various
provisions of SF 189, SF 4193, and related forms. Nevertheless,
the Court finds section 630 unconstitutional and, therefore,
dismisses the AFSA case. For the same reason, counts in the NFFE
and AFGE cases are dismissed. In addition, numerous counts in
the AFGE complaint are dismissed for failure to state a claim.
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There remains essentially the plaintiffs' challenge of the
nondisclosure agreements on First and Fifth Amendment grounds.
United States District Judge
Oliver Gasch
Date: ex
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