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

July 28, 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



The opinion of the court was delivered by: GASCH

 OLIVER GASCH, UNITED STATES DISTRICT JUDGE

 In lengthy complaints, plaintiffs in these consolidated cases *fn1" allege numerous violations of the Constitution and statutes by reason of a federal government program that requires federal employees to sign agreements in which the employees pledge not to disclose classified information without authorization. The plaintiffs are two labor unions that represent many federal employees and three individuals who have signed or been directed to sign one of these agreements. In a memorandum and order filed May 27, 1988, 688 F. Supp. 671, the Court substantially pared the complaints, leaving claims under the First and Fifth Amendments to the Constitution, the Administrative Procedure Act, 5 U.S.C. §§ 701-706, and 5 U.S.C. § 7211, which guarantees to federal employees the right to petition Congress.

 Before the Court are defendants' Motion to Dismiss, plaintiffs' Motion for Summary Judgment, and plaintiff Brase's further Motion for Summary Judgment. Because the Court has considered evidence extrinsic to the pleadings and the parties have had adequate opportunity to make such submissions, the defendants' Motion to Dismiss will be treated as a Motion for Summary Judgment. See Sacks v. Reynolds Securities, Inc., 193 U.S. App. D.C. 80, 593 F.2d 1234, 1239 (D.C.Cir. 1978); Fed.R.Civ.P. 12(b). The Court's action on these motions will resolve all of plaintiffs' remaining claims.

 I. BACKGROUND

 In August and September of 1987, plaintiffs filed these cases to enjoin implementation and enforcement of the provisions of federal government Standard Forms 189 ("SF 189") and 4193 ("SF 4193") and Department of Defense form DD 1847-1. With important differences, these forms contain an agreement that imposes civil sanctions on the federal employee signatory for making unauthorized disclosures of certain government information. The SF 189 is used generally throughout the Executive Branch and is administered by the Information Security Oversight Office ("ISOO"). Exhibit 3 to Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction. The Director of Central Intelligence ("DCI") uses the SF 4193 for employees who have access to Sensitive Compartmented Information ("SCI"). *fn2" Exhibit 5 to Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction. The DD 1847-1 is essentially the same as the SF 4193 and is presented to the same type of employees. Exhibit 4 to Defendants' Motion to Dismiss (filed Dec. 15, 1987).

 In all, three provisions of the forms are the subject of these constitutional and statutory challenges. First, each of the forms uses the term "classifiable" to describe the type of information that implicates the obligations imposed by the forms. The SF 189, for example, states:

 
As used in this Agreement, classified information is information that is either classified or classifiable under the standards of Executive Order 12356, or under any other Executive order or statute that prohibits the unauthorized disclosure of information in the interest of national security.

 SF 189 para. 1 (emphasis added). Also common to the forms is paragraph three which suggests that "indirect unauthorized disclosure" of classified information is a violation of the federal employee's obligation to protect such information. Finally, the SF 4193 and DD 1847-1 contain a prepublication review provision:

 
In consideration of being granted access to Sensitive Compartmented Information and of being assigned or retained in a position of special confidence and trust requiring access to Sensitive Compartmented Information, I hereby agree to submit for security review by the Department or Agency that last authorized my access to such information, all information or materials, including works of fiction, which contain or purport to contain any Sensitive Compartmented Information or description of activities that produce or relate to Sensitive Compartmented Information or that I have reason to believe are derived from Sensitive Compartmented Information, that I contemplate disclosing to any person not authorized to have access to Sensitive Compartmented Information or that I have prepared for public disclosure.

 DD 1847-1 para. 4.

 Since the plaintiffs' initial assault on these provisions, some changes have been made to the forms. In response to complaints that "classifiable" is unconstitutionally vague and overbroad, the ISOO made several attempts to refine the definition. The most recent definition declares:

 
As used in paragraph 1 of SF 189, the term "classifiable information" refers to two categories of information only: (a) Unmarked classified information, including oral communications; and (b) 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) (emphasis in original) (amending 32 C.F.R. § 2003.20(h)(1)(i)). *fn3" Shortly after this supposed improvement, the implementation and enforcement of the forms were suspended entirely in response to section 630 of the Omnibus Continuing Resolution for Fiscal Year 1988, Pub.L. No. 100-202 (Dec. 22, 1987). *fn4" Most recently, the ISOO announced its intention to supersede SF 189 with an agreement that omits the phrases "classifiable" and "indirect unauthorized disclosure." *fn5" Letter from Steven Garfinkel to Representative Jack Brooks (June 16, 1988) (filed July 1, 1988).

 The SF 4193 has undergone a less dramatic evolution. On March 18, 1988, the form was replaced with SF 4355 which eliminates reference to classifiable" information. The prepublication review requirement and the phrase "indirect unauthorized disclosure" remain in the form. Neither the DCI nor the DOD has suggested that the form will undergo further modification.

 Although these changes redound to the benefit of future signatories to the nondisclosure agreements, plaintiffs continue to assert their constitutional and statutory claims for those employees who signed the forms as they were originally drafted. Of course, plaintiffs continue to assert these claims as to the remaining portions of the amended forms that they consider offensive.

 II. DISCUSSION

 Of the four theories with which plaintiffs attack the nondisclosure agreements, the two that are premised on constitutional rights demand careful scrutiny by the Court. Additionally, these theories supersede plaintiffs' claim under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), because any violation of a constitutional right is necessarily "contrary to law." Because the premises of the APA claim are the alleged violations of the First and Fifth Amendment, resolution of the constitutional issues will be dispositive of the APA claim. Additionally, the relief appropriate, if plaintiffs prevail on their constitutional claims, would be the same under the APA. Finally, whether the nondisclosure agreements violate the statutorily guaranteed right of federal employees to communicate with Congress is a question the Court need not address. None of the plaintiffs claims that any obligation created by the agreements has been invoked to bar their communication with Congress.

 A. The Constitutional Principles Applicable To The Nondisclosure Agreements

 At the heart of this case is a constitutionally inherent conflict between the obligation of the Executive to safeguard national security information and the rights of citizens to speak freely and be guided by reasonably clear and narrow statutory proscriptions on the free speech right. Reconciliation of these competing interests is made more difficult in this case by the dual role of plaintiffs as citizens and members of the Executive Branch. See United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 564, 37 L. Ed. 2d 796, 93 S. Ct. 2880 (1973). Executive employees unquestionably have an obligation to preserve the secrecy of national security information, see Department of Navy v. Egan, 484 U.S. 518, 108 S. Ct. 818, 824, 98 L. Ed. 2d 918 (1988) (security clearance premised on trustworthiness of employee to protect sensitive information); Snepp v. United States, 444 U.S. 507, 510-11 & n. 6, 62 L. Ed. 2d 704, 100 S. Ct. 763 (1980) (per curiam) (employee with access to "secret" information enters special trust relationship with government); 5 U.S.C. § 7532 (Executive employee may be suspended if "necessary or advisable in the interests of national security"), and the President has broad discretion to ensure that his employees are faithful to this obligation. See Egan, 108 S. Ct. at 824-25; CIA v. Sims, 471 U.S. 159, 170, 85 L. Ed. 2d 173, 105 S. Ct. 1881 (1985); Cole v. Young, 351 U.S. 536, 546, 100 L. Ed. 1396, 76 S. Ct. 861 (1956) (summary suspension of employee in "sensitive" position justifiable); U.S. v. Curtiss-Wright Corp., 299 U.S. 304, 320, 81 L. Ed. 255, 57 S. Ct. 216 (1936) (secrecy "may be highly necessary" and "premature disclosure . . . productive of harmful results"); 50 U.S.C. § 403(d)(3) (CIA entrusted to protect intelligence sources and methods). Supplementing this discretion are the government's

 
interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of ...

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