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AMERICAN FOREIGN SERVICE ASSOCIATION ET AL. v. GARFINKEL

decided: April 18, 1989.

AMERICAN FOREIGN SERVICE ASSOCIATION ET AL
v.
GARFINKEL, DIRECTOR, INFORMATION SECURITY OVERSIGHT OFFICE ET AL.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.

Author: Per Curiam

[ 490 U.S. Page 155]

 As a condition of obtaining access to classified information, employees in the Executive Branch are required to sign "nondisclosure agreements" that detail the employees' obligation of confidentiality and provide for penalties in the event of unauthorized disclosure. Two such nondisclosure forms are at issue in this case. One, Standard Form 189, was devised by the Director of the Information Security Oversight Office (DISOO) (now appellee Garfinkel); the other, Form 4193, was created by the Director of Central Intelligence (DCI) (now appellee Webster). Both of these forms forbade employees to reveal classified or "classifiable" information to persons not authorized to receive such information, App. 15, 19, and made clear that employees who disclosed information in violation of these agreements could lose their security clearances, their jobs, or both. Id., at 16, 21. Neither form defined the term "classifiable." The DISOO eventually promulgated a regulation that defined the term "classifiable" in Form 189 to include only unmarked classified information or unclassified information that was "in the process of a classification determination." Under this regulation, moreover, an employee would violate the nondisclosure agreement by disclosing unclassified information only if that employee "knows, or reasonably should know, that such information is in the process of a classification determination and requires interim protection." 52 Fed. Reg. 48367 (1987). For those employees who signed Form 4193, however, the DCI did not attempt to define "classifiable." More than half of the Federal Government's

[ 490 U.S. Page 156]

     civilian and military employees have signed either Form 189 or 4193. Brief for Appellants 5.

Section 630 of the Continuing Resolution for Fiscal Year 1988, Pub. L. 100-202, 101 Stat. 1329-432, enacted by Congress in 1987, prohibited the expenditure of funds in fiscal year 1988 for the implementation or enforcement of Form 189, Form 4193, or any other form that violated one of its five subsections.*fn* In response to this statute, appellee Garfinkel ordered agencies to cease using Form 189, but several agencies nevertheless required approximately 43,000 employees to sign the form after § 630 was enacted. Brief for Appellants 10. The DCI, in contrast, continued to require employees to sign Form 4193, but attached a paragraph to the form stating that the nondisclosure agreement would

[ 490 U.S. Page 157]

     "be implemented and enforced in a manner consistent with" the statute of which § 630 was a part. App. 26-27. Three months after § 630 became law, the DCI replaced Form 4193 with Form 4355, which eliminated the term "classifiable." National Federation of Federal Employees v. United States, 688 F. Supp. 671, 680, n. 11 (DC 1988).

Appellant American Foreign Service Association (AFSA) and several Members of Congress brought the present lawsuit challenging appellees' use of Forms 189 and 4193 on the ground that they violated § 630. They sought declaratory and injunctive relief that would (1) bar appellees from requiring employees to execute or sign Form 4193 during fiscal year 1988; (2) compel appellees to treat any Form 4193 agreement signed after December 22, 1987 (the effective date of § 630), as void; and (3) direct appellees to notify all employees who signed Form 189 or 4193 after December 22, 1987, that these agreements were void and that the terms of such forms signed before that date could not be enforced in fiscal year 1988. App. 10. This lawsuit was consolidated with two other cases, brought by the National Federation of Federal Employees and the American Federation of Government Employees, which sought to enjoin the use of Forms 189 and 4193 because, among other things, they violated § 630 and because the term "classifiable" was so vague and overbroad that it inhibited employees' speech in violation of the First Amendment.

The District Court for the District of Columbia concluded that appellant AFSA had standing to challenge the nondisclosure forms on behalf of its members, but that the Members of Congress lacked standing to challenge the use of the forms. 688 F. Supp., at 678-682. The court then assumed that "the Executive's actions since enactment of section 630 do not comply with the requirements of that legislation," id., at 683, and n. 16, because the DCI had continued to require employees to sign Form 4193 for three months after enactment of § 630 despite § 630's specific prohibition on the use of that

[ 490 U.S. Page 158]

     form. Acknowledging that, during that time, the DCI had added a paragraph to Form 4193 stating that the agreement would be enforced in a manner consistent with § 630, the District Court nevertheless concluded that this action was not "'true to the congressional mandate from which it derives authority,'" id., at 683-684, n. 16, quoting Farmers Union Central Exchange, Inc. v. FERC, 236 U.S. App. D.C. 203, 217, 734 F.2d 1486, 1500 (1984), and that review of the Executive's action under the Administrative Procedure Act, 5 U. S. C. § 706, "likely" would show that the Executive's action was contrary to law, 688 F. Supp., at 684, n. 16. Having thus skirted the statutory question whether the Executive Branch's implementation of Forms 189 and 4193 violated § 630, the court proceeded to address appellees' argument that the lawsuit should be dismissed because § 630 was an unconstitutional interference with the President's authority to protect the national security. Concluding that § 630 "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," id., at 685, the court entered summary judgment in favor of appellees.

Appellants took a direct appeal from the District Court's judgment pursuant to 28 U. S. C. § 1252, and we noted probable jurisdiction, 488 U.S. 923 (1988). In spite of the importance of the constitutional question whether § 630 impermissibly intrudes upon the Executive's authority to regulate the disclosure of national security information -- indeed, partly because of it -- we remand this case to the District Court without expressing an opinion on that issue.

Events occurring since the District Court issued its ruling place this case in a light far different from the one in which that court considered it. Since issuing the decision that we now review, the District Court has ruled on the constitutional challenge presented by the cases with ...


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