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NATIONAL FEDN. OF FED. EMPLES. v. UNITED STATES

May 27, 1988

National Federation Of Federal Employees, Plaintiff,
v.
United States of America, et 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



The opinion of the court was delivered by: GASCH

 Honorable Oliver Gasch, Senior Judge, United States District Court for the District of Columbia

 On at least two fronts, plaintiffs in these consolidated cases *fn1" 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 information since World War I) [hereinafter National Security and Civil Liberties ]. Revamped most recently in 1982, the scheme includes 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 para. 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 enforcement of the agreements and declare them unconstitutional. Specifically attacked by the several complaints are SF 189 and SF 4193, *fn2" 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 para. 4 (Exhibit 5 to Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction); DD 1847-1 para. 4 (Jan. 1983).

 Now pending for the Court's consideration are defendants' motion to dismiss and plaintiffs' collective motions for preliminary injunction and summary judgment. *fn3" Briefly, defendants' motion vigorously questions plaintiffs' standing and the constitutionality of congressional action that purports to resolve the dispute over the nondisclosure agreements. Plaintiffs' 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 underlying 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.

 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, 484 U.S. 518, 108 S. Ct. 818, 824, 98 L. Ed. 2d 918 (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. *fn4" 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"). *fn5"

 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 para. 1 (Exhibit 2 to Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction); SF 4193 para. 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 "unmarked classified information, including oral communications" 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. Id.

 Despite the recently particularized definition of "classifiable," plaintiffs complain that the right of SF 189 and 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 classification 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 information 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.

 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 that the underlying constitutionality of the forms need not be addressed.

 Equally distressing to plaintiffs is the prepublication 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 information 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 proscription 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 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. *fn6"

 In addition to this jurisdictional challenge, defendants 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 definition of "classifiable" and the changes to SF 4193 made upon consideration of section 630, *fn7" 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.

 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 constitutional 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 and the Executive's interest in safeguarding classified information. 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, 70 L. Ed. 2d 700, 102 S. Ct. 752 (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, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975).

 To surmount the constitutional hurdle, a plaintiff must:

 
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, [60 L. Ed. 2d 66, 99 S. Ct. 1601] (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. ...

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