The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Plaintiff Danny Stillman, a former employee of Los Alamos National Laboratory ("LANL"), wrote a book about China's nuclear weapons program. As a condition of his employment at LANL and as a condition of various affiliations Stillman maintained with the United States government after his retirement from LANL, Stillman signed several nondisclosure agreements that required him to submit materials to the government for prepublication review to determine whether such materials contain classified information. Stillman now challenges the classification determinations made by the Central Intelligence Agency ("CIA"), Defense Intelligence Agency ("DIA"), and Department of Defense ("DoD") regarding his manuscript. Stillman claims that these agencies have imposed unconstitutional prior restraints on the publication of his manuscript in violation of the First Amendment. In his complaint, Stillman also asserted a claim under the Administrative Procedures Act ("APA") challenging the delay in reviewing his manuscript.
Pending before the Court is defendants' motion to dismiss Stillman's APA claim and defendants' motion for summary judgment as to Stillman's First Amendment Claims. After careful consideration of the motions, responses and replies thereto, the applicable law, in camera submissions, and the entire record, defendants' motion to dismiss and motion for summary judgment are granted and judgment shall be entered in favor of defendants and against the plaintiff.
Stillman served as an employee at LANL*fn1 from 1965 to 1993. Declaration of Anna Parks ("Parks Decl.") ¶ 4, Ex. A to Defs.' Mot. for Summ. J. For many of those years, he managed intelligence programs at LANL. Id.; Declaration of Danny B. Stillman ("Stillman Decl.") ¶ 2, Ex. A to Pl.'s Opp'n. After his official retirement in October 1993, Stillman worked from February 1994 to September 1995 as a LANL Laboratory Associate, which is a casual appointment. Parks Decl. ¶ 4. Stillman received compensation for this position. Id. After his retirement, Stillman also served as a guest scientist affiliated with the Nonproliferation and International Security Division of LANL. Id. ¶ 5. He signed six different guest scientist agreements between 1995 and 2001. Id.; Second Declaration of Danny B. Stillman ("Second Stillman Decl.") ¶ 2, Ex. B to Pl.'s Opp'n. According to Stillman, he did not receive compensation from LANL for his work as a guest scientist. Second Stillman Decl. ¶ 3. Finally, Stillman also served as a contract employee with LANL and its subcontractor Galaxy Computer Services, Inc. at various times since 1995. Parks Decl. ¶ 6.
Throughout his employment at and affiliation with LANL, Stillman was granted security clearances. See Declaration of Sharon E. Klafke ("Klafke Decl.") ¶ 3. As a condition of obtaining and maintaining these security clearances, Stillman signed nondisclosure agreements by which he agreed not to divulge any classified information to which he had access and to submit any materials which may contain classified material to the government for review prior to publication. See Secrecy Agreements and Sensitive Compartmented Information Nondisclosure Agreements signed by Stillman, Ex. C to Defs.' Mot. for Summ J.
During his employment and affiliation with LANL and while maintaining security clearances, Stillman made nine separate trips to China between 1990 and 1999. Stillman Decl. ¶ 5; Fifth Declaration of Danny B. Stillman ("Fifth Stillman Decl.") ¶ 3. In China, Stillman visited nuclear weapons facilities and test sites and engaged in extensive discussions with Chinese scientists, government officials, and nuclear weapons designers. Stillman Decl. ¶ 5. Stillman's first three trips to China occurred when he was still a full-time employee at LANL. Id. ¶ 6. The fourth through ninth trips occurred after Stillman's retirement. Fifth Stillman Decl. ¶ 3. However, Stillman admits that an agency of the United States government voluntarily reimbursed him for his airfare to and from China for the fourth through sixth trips. Stillman Decl. ¶ 7. Stillman also admits voluntarily meeting with and providing a trip report to a representative of a United States government agency after each of his nine trips to China. Id. ¶ 9.
Based on his experiences in China, Stillman wrote a book entitled Inside China's Nuclear Weapons Program. Id. ¶ 10. He submitted his manuscript to DIA and DOE for prepublication review in January 2000. Id. ¶ 12. In October 2000, Stillman was informed that the DOE, DoD, and CIA did not want any part of his manuscript published. In June 2001, Stillman filed a lawsuit against DOE, DoD, DIA, and CIA, challenging their classification decision. Id. ¶ 18. Soon after Stillman filed the lawsuit, the government released the majority of the manuscript for publication. Id. However, the government claims that twenty-three passages still remain classified and, therefore, should not be published. Defs.' Mot. for Summ. J. at 8.
Defendants move to dismiss Stillman's APA claim and move for summary judgment on his First Amendment claims. For the reasons discussed below, the Court grants defendants' motion to dismiss and grants defendants' motion for summary judgment.
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) presents a threshold challenge to the Court's jurisdiction. Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). The Court may resolve a Rule 12(b)(1) motion based solely on the complaint, or if necessary, may look beyond the allegations of the complaint to affidavits and other extrinsic information to determine the existence of jurisdiction. See id. at 908; Herbert v. Nat'l Acad. of Sci., 974 F.2d 192, 197 (D.C. Cir. 1992). The Court must accept as true all the factual allegations contained in the complaint, but the plaintiff bears the burden of proving jurisdiction by a preponderance of the evidence. Bennett v. Ridge, 321 F. Supp. 2d 49, 51-52 (D.D.C. 2004).
Summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by ...