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AMERICAN FOREIGN SERV. ASSN. v. GARFINKEL

March 1, 1990

AMERICAN FOREIGN SERVICE ASSOCIATION, Plaintiff,
v.
STEVEN GARFINKEL, et al., Defendants



The opinion of the court was delivered by: GASCH

 OLIVER GASCH, UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 This case involves the validity of the confidentiality agreement forms that many of the Executive Branch employees are required to sign. The case was remanded to this Court by the Supreme Court. The case has been greatly simplified since it was last before this Court. Now -- at least at this point -- only one of the former plaintiffs is proceeding on one specific legal theory. Before the Court is the plaintiff's motion for a preliminary injunction, as well as the government's motion to dismiss. The question in these motions is one of statutory construction.

 The Court concludes that the plaintiff has failed to allege facts that state a claim upon which relief can be granted. Thus, the Court dismisses the plaintiff's complaint and does not rule on plaintiff's motion for a preliminary injunction.

 FACTS

 This case was originally before this Court in 1988. It was then a broad challenge by a number of plaintiffs to the Executive Branch's failure to comply with a statute, the Continuing Resolution for Fiscal Year 1988, § 630 ("630"), Pub.L. No. 100-202, 101 Stat. 1329-432 (1987), by continuing to use two nondisclosure agreement forms -- Standard Forms 189 and 4193 -- which were then being utilized.

 This Court held that § 630 was unconstitutional as a violation of the separation of powers doctrine. See National Federation of Federal Employees v. United States, 688 F. Supp. 671, 683-85 (D.D.C. 1988) ("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."). This Court's decision was appealed directly to the Supreme Court. In light of a number of changed circumstances in the dispute *fn1" , the Supreme Court remanded the case to the District Court. See American Foreign Service Association v. Garfinkel, 490 U.S. 153, 109 S. Ct. 1693, 104 L. Ed. 2d 139 (1989) (per curiam).

 The Supreme Court admonished the District Court that it should avoid unnecessary constitutional rulings and "should not pronounce upon the relative constitutional authority of Congress and the Executive Branch unless it finds it imperative to do so." Id. 109 S. Ct. at 1698. The Supreme Court stated that

 
on remand, the District Court should decide first whether the controversy is sufficiently live and concrete to be adjudicated and whether it is an appropriate case for equitable relief, and then decide whether the statute and forms are susceptible of a reconciling interpretation; if they are not, the court may turn to the constitutional question. . . .
 
. . . .

 Id.

 This Court granted the plaintiff's motion to amend its complaint on January 3, 1990. This amended complaint significantly narrows the issues originally before the Court. The new complaint reflects the fact that the old statute has expired and has been replaced by a similar one, the Treasury, Postal Service and General Government Appropriations Act of 1990 § 618, Pub.L. No. 101-136, 103 Stat. 783, 820 (1989) ("§ 618"). Also, the forms now in use by the government have been changed. The new forms are called Standard Forms 312 ("SF 312") and 4355. These new forms no longer use the term "classifiable".

 At the heart of this dispute is the particular language of § 618, which was signed into law by President Bush on November 3, 1989. *fn2" ...


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