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) 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 That paragraph was allegedly withdrawn by the President in 1984.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 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, 62 L. Ed. 2d 704, 100 S. Ct. 763 (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 prepublication 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 which is unnecessary. See EPA v. Mink, 410 U.S. 73, 80, 35 L. Ed. 2d 119, 93 S. Ct. 827 (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 information from the Executive under FOIA. Instead, they are complaining 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 Unintelligible
After several careful readings of Counts XI and XII of the AFGE complaint, the Court is unable to discern a singular 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 nondisclosure 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.
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. There remains essentially the plaintiffs' challenge of the nondisclosure agreements on First and Fifth Amendment grounds.
Date: May 27, 1988