American Foreign Svc. Ass’n v. Garfinkel, 490 U.S. 153 (1989)

American Foreign Service Association v. Garfinkel

No. 87-2127

Argued March 20, 1989
Decided April 18, 1989
490 U.S. 153

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

Syllabus

Standard Form 189, devised by appellee Director of the Information Security Oversight Office (DISOO), and Form 4193, created by appellee Director of Central Intelligence (DCI), forbade certain Executive Branch employees to reveal classified or "classifiable" information to persons not authorized to receive such information, making clear that, if they did so, they could lose their security clearances, their jobs, or both. The DISOO, but not the DCI, defined the term "classifiable." Although § 630 of the Continuing Resolution for fiscal year 1988 prohibited the expenditure of that year’s funds for the implementation or enforcement of, inter alia, the forms, both forms continued to be used. Appellant American Foreign Service Association and others filed suit in the District Court challenging the use of the forms on the ground that they violated § 630, and seeking declaratory and injunctive relief that would, among other things, direct appellees to notify all employees who signed either form after the effective date of § 630 that the agreements were void and that their terms could not be enforced during fiscal year 1988. The lawsuit was consolidated with other suits seeking to enjoin the forms’ use on the ground, inter alia, that the term "classifiable" was so vague and overbroad that it inhibited employees’ speech in violation of the First Amendment. The District Court assumed that the Executive Branch’s actions since § 630’s enactment did not comply with the section’s requirements, but granted summary judgment in favor of appellees on the ground that § 630 was an unconstitutional interference with the President’s authority to protect the national security. While the court’s judgment was pending review in this Court, the District Court ruled on the constitutional challenge in the cases consolidated with appellants’ suit. It concluded that the term "classifiable" is unconstitutionally vague, but that the DISOO’s definition would remedy the vagueness. It also ordered appellees to notify employees either that this definition was in force or that no penalties would be imposed for the disclosure of "classifiable" information. Thereafter, appellees deleted the word "classifiable" from the forms, replacing it with th154

DISOO’s definition, and gave individualized notice of this change to current employees.

Held:

1. The controversy is moot as to current employees who have been notified that the term "classifiable" no longer controls their disclosure of information. P. 159.

2. The case is remanded to the District Court for it to address in the first instance: (1) with respect to appellants’ request for individualized notice to former employees, whether individualized notice is required by § 630 and whether appellants’ complaint can be read to request such notice for former employees; (2) with respect to appellants’ argument that the DISOO’s definition of "classified" does not comply with § 630, whether appellants should be allowed to amend their complaint to take into account this new definition; and (3) with respect to appellants’ argument that the forms do not comply with the § 630 provisions dealing with disclosure of classified information to Congress, whether this part of the case is ripe for decision, since no instance in which an employee has sought to disclose information to Congress and was prohibited from doing so has been brought to this Court’s attention. Pp. 159-161.

3. 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. Only if they are not should the court turn to the constitutional question whether § 630 impermissibly intruded upon the Executive Branch’s authority over national security information. Pp. 161-162.

688 F.Supp. 671, vacated and remanded.