United States District Court, Northern District of New York
March 16, 1990
FRANK BORDELL, DOUGLAS ALLEN, BUSINESS AGENT LOCAL 301AE, INTERNATIONAL UNION OF ELECTRICIANS, ELECTRICAL, SALARIED MACHINISTS & FURNITURE WORKERS, AFL-CIO AND LOCAL 301AE, INTERNATIONAL UNION OF ELECTRICIANS, ELECTRICAL, SALARIED MACHINISTS & FURNITURE WORKERS, AFL-CIO, PLAINTIFFS,
GENERAL ELECTRIC COMPANY, A.E. KAKRETZ, MANAGER, GENERAL ELECTRIC CO., UNITED STATES DEPARTMENT OF ENERGY AND HONORABLE JOHN HERRINGTON, SECRETARY, U.S. DEPARTMENT OF ENERGY, DEFENDANTS.
The opinion of the court was delivered by: McCURN, Chief Judge.
MEMORANDUM-DECISION AND ORDER
This is an action by current and former employees of the
General Electric Co., Inc., employed at the Knolls Atomic Power
Laboratory ("KAPL") in Niskayuna, New York, and Local 301AE,
International Union of Electricians, Electrical, Salaried
Machinist and Furniture Workers of the AFL-CIO ("IUE"), seeking
declaratory and injunctive relief. Plaintiffs challenge a
newsletter issued by the defendants which the plaintiffs allege
is an unconstitutional infringement of their First Amendment
rights to free speech and association. Plaintiffs further
allege that the newsletter violates 5 U.S.C. § 7211, which
protects employees' right to petition Congress, and Public Law
100-440, Section 619 of the Treasury, Postal Service and
General Appropriations Act of 1989. Plaintiffs seek declaratory
judgment and injunctive relief preventing defendants from
enforcing the directive against any current or former employees
and requiring defendants to give notice to employees that the
directive is rescinded. Defendants, the General Electric Co.,
Inc. ("GE"); A.E. Kakretz, general manager of KAPL; the
Department of Energy ("DOE"); and John S. Herrington, the
Secretary of Energy, have moved for dismissal pursuant to
Fed.R.Civ.P. 12, or in the alternative, for summary judgment
pursuant to Fed.R.Civ.P. 56. Plaintiffs have cross-moved for
summary judgment pursuant to Fed.R.Civ.P. 56.
Plaintiffs Frank Bordell and Robert Stater are former
employees at KAPL, and plaintiff Douglas Allen is a current
employee. The three are members of plaintiff IUE. The defendant
GE performs research and development work pertaining to the
United States Naval Nuclear Propulsion Program at the KAPL,
under a government defense contract with the DOE.
The federal government owns the land, buildings, machinery
and equipment at the KAPL site, and provides funding for the GE
workforce there. GE is responsible for the security of the
plant, which includes classification and control of information
and documents, security checks on personnel, and supervised
access into and out of the plant.
GE periodically issues newsletters to employees pertaining to
security procedures and policies at the plant. On September 15,
1988, GE circulated a "Security Newsletter" titled "`No
Comment' Policy for Classified/Sensitive Information." The
newsletter warned employees not to discuss classified and
"sensitive unclassified" information outside of the plant, even
if such information had entered the public domain through
another avenue, such as a news report. In addition, the
newsletter stated that "[i]t is best to avoid any discussion of
[Naval Nuclear Propulsion] Program work," and recommended that
questions regarding such discussions could be directed to the
KAPL classification officer. The newsletter also stated that:
"[a]nother important security aspect of the
Naval Nuclear Propulsion Program is that all
public releases of information concerning program
work (i.e. technical meetings, forums, etc.) must
be reviewed and approved prior to release.
The letter stated further that:
while employed at KAPL, if you are required to
make statements about Program work to the public,
formal approval must be obtained by use of a
(emphasis in original)
Finally, the letter informed KAPL employees that unauthorized
release of information could jeopardize their jobs and result
in fines of up to $100,000 and up to life imprisonment.
The plaintiffs commenced this action on November 4, 1988,
alleging that the newsletter was an impermissible restraint on
free speech, that the term "sensitive unclassified information"
contained in the newsletter is unconstitutionally vague, that
it imposes a prior restraint violative of the First Amendment,
and that it violates 5 U.S.C. § 7211*fn1, and P.L. 100-440,
Section 619 of the Treasury and Post Office Appropriations Act
("Section 619").*fn2 Specifically, the plaintiffs allege that
the newsletter would inhibit their efforts to disclose health
and safety threats to workers and the public created by KAPL's
GE subsequently issued another newsletter in July 1989, the
stated purpose of which was to "[supplement] the September 15th
edition and [elaborate] on the previous guidance." The second
newsletter is much more detailed than the first, and enumerates
a number of the statutory and regulatory restrictions on the
release of classified and sensitive unclassified government
information. It states that, "[a]s is the case with all
Security Newsletters, this Newsletter must be read in the
context of the applicable statutes and regulations referred to
below." The July 1989 newsletter also notes that:
it is the policy of the Departments of Energy
and the Navy and of the General Electric Company
that the systems for controlling dissemination of
classified and otherwise militarily sensitive
information are not to be used to prevent proper
reporting of matters involving compliance with
health, safety, or environmental standards or
The defendants argue that the newsletters do nothing to alter
the rights and restrictions contained in the federal statutes
and regulations governing the release and protection of
classified and sensitive unclassified military information. In
their motion to dismiss the complaint or for summary judgment,
defendants contend that the plaintiffs lack standing to sue,
and that the plaintiffs have not presented a ripe "case or
controversy" for review by the court, in that the "chill" on
protected speech alleged by plaintiffs does not state a
sufficient prospective injury, and that the second newsletter
has made plaintiffs' claims moot.
Plaintiffs do not dispute that the compelling governmental
interest in national security applies to the Naval Nuclear
Propulsion Program work performed at KAPL. Nor do plaintiffs
contest the validity or applicability of the various federal
statutes and regulations governing release of classified and
sensitive unclassified information. Plaintiffs argue, however,
that the September 15, 1988, newsletter imposes restrictions on
the release of information not covered by the regulations,
under threat of firing, fines and imprisonment, and thus places
an impermissible prior restraint and chill on speech protected
by the First Amendment. Plaintiffs state in their complaint
that they "simply seek the unfettered ability to communicate
unclassified information on environmental and public safety
abuses at the KAPL facility." Complaint, para. 28.
A newsletter or policy directive may be challenged on First
Amendment grounds, but a justiciable Article III "case or
may exist only insofar as the directive places restrictions on
speech beyond those contained in valid statutes and
regulations. National Student Ass'n v. Hershey, 412 F.2d 1103
(D.C. Cir. 1969); cf. United Public Workers v. Mitchell,
330 U.S. 75, 91, 67 S.Ct. 556, 565, 91 L.Ed. 754 (1947). Therefore,
the analysis of plaintiffs' claims must begin with the statutes
and regulations pertaining to disclosure of information at
As a part of the government defense industry, performing
research and development work in the Naval Nuclear Propulsion
Program ("NNPP"), the KAPL facility and its employees are
subject to various constraints on the dissemination of
information in the interest of national security.*fn3 The
Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq., as
amended, provides for the classification of restricted data,
i.e., all data concerning (1) design, manufacture, or
utilization of nuclear weapons; (2) the production of special
nuclear material; and (3) the use of special nuclear material
in the production of energy.
Executive Order No. 12356, 47 Fed.Reg. 14874 (April 2, 1982),
prescribes a uniform system for classifying, declassifying and
safeguarding national security information. It encompasses the
activities of employees, contractors, and licensees or grantees
of an agency. The order, among other things, (1) directs that
agencies should establish controls to ensure that classified
information is treated in a way that will ensure adequate
protection and prevent access by unauthorized persons; (2)
prohibits dissemination of classified information outside the
executive branch absent conditions that will ensure it will be
given the protection afforded it in the executive branch; and
(3) provides sanctions for the improper disclosure of
classified information to unauthorized persons.
There are also restrictions on the disclosure of "sensitive
unclassified" information, which falls into two categories: (1)
Naval Nuclear Propulsion Information ("NNPI"), and (2)
Unclassified Controlled Nuclear Information ("UCNI"). NNPI,
defined and protected under 10 U.S.C. § 130, includes
information on shipboard and prototype naval nuclear propulsion
plants, technical requirements pertaining to how those plants
are designed, analyzed, and operated, and standards and
practices that apply to nuclear powered ships and Navy support
facilities. While the definitions of NNPI contained in the
statutes and regulations do not identify specific exemptions,
information on personnel records, occupational radiation
exposure, documents connected with laboratory administrative
and housekeeping services, and information about occupational
safety, health and environmental conditions are not protected.
UCNI, protected under the Atomic Energy Act, is information
relating to nuclear energy defense programs, including (1) the
design of production or utilization facilities; and (2)
security measures for the protection of production or
utilization facilities and of nuclear material. 42 U.S.C. § 2168.
Specific exemptions from protected UCNI are listed in 10
C.F.R. 1017, and include radiation exposure data, and health,
safety and environmental information.
In sum, the second newsletter informs employees that their
rights to disclose information regarding activities at KAPL are
defined by the applicable statutes and regulations, which
permit the dissemination of information regarding health and
safety issues. Plaintiffs do not challenge the validity of the
regulations. This presents the question whether plaintiffs'
claims have become moot upon the issuance of the second
As previously stated, the constitutional validity of a
newsletter or policy directive, such as the one that is the
subject of this dispute, may be challenged only to the extent
that it creates restrictions not already imposed by valid
statutes and regulations. See Hershey, 412 F.2d at 1116-17.
However, those portions of a directive which arguably impose
restrictions on speech beyond the scope of such statutes
and regulations may be subject to attack on First Amendment
grounds. Id. at 1119.
As the Supreme Court has stated:
The federal courts established pursuant to Article
III of the Constitution do not render advisory
opinions. For adjudication of constitutional
issues, "concrete legal issues, presented in
actual cases, not abstractions," are requisite. .
. . The difference between an abstract question
and a "controversy" contemplated by the
Declaratory Judgment Act is necessarily one of
degree, and it would be difficult, if it would be
possible, to fashion a precise test for
determining in every case whether there is such a
controversy. Basically, the question in each case
is whether the facts alleged, under all the
circumstances, show that there is a substantial
controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to
warrant the issuance of a declaratory judgment.
Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22
L.Ed.2d 113 (1969) (quoting Maryland Casualty Co. v. Pacific
Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed.
826 (1941)). Accordingly, "[a] genuine threat must be
demonstrated if a case or controversy, within the meaning of
Art. III of the Constitution and the Declaratory Judgment Act,
may be said to exist." Ellis v. Dyson, 421 U.S. 426, 434, 95
S.Ct. 1691, 1696, 44 L.Ed.2d 274 (1975). Such threat must be
shown to exist at the time of the court's review, and not
simply on the date the action is initiated. See, e.g., Roe v.
Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147
(1973); United States v. Munsingwear, Inc., 340 U.S. 36, 71
S.Ct. 104, 95 L.Ed. 36 (1950).
There are portions of the first newsletter — those which
state that official approval is required for release of any
information related to the Naval Nuclear Propulsion Program —
that apparently extend beyond the scope of the applicable
statutes and regulations. These could conceivably have resulted
in a "chilling effect" sufficient to confer standing on the
plaintiffs and to support a claim of a First Amendment
violation.*fn4 However, the second newsletter plainly states,
as defendants' counsel stated at oral argument, that the rights
of employees are governed by the existing statutes and
regulations pertaining to the dissemination of NNPP
information. It is clear that any constitutional infirmity
infecting the first newsletter has been cured by the second.
Plaintiffs seek "the unfettered ability to communicate
unclassified information on environmental and public safety
abuses at the KAPL facility." That is what they have, except as
limited by unchallenged federal statutes and regulations. Thus,
there is no extant justiciable case or controversy presented by
the plaintiffs' First Amendment claims over which the court
could exercise jurisdiction.
Plaintiffs also claim that the first newsletter violated
5 U.S.C. § 7211 and Public Law 100-440, Section 619 of the
Treasury, Postal Service and General Appropriations Act of
1989. As previously stated, 5 U.S.C. § 7211 prohibits
interference with the right of "employees" to petition
Congress. Defendants argue correctly that plaintiffs are not
covered by Section 7211, since it applies only to federal
employees, and not to employees of government contractors.
The term "employee" as it applies in Title 5 of the United
States Code is defined in 5 U.S.C. § 2105. Section 2105 states:
(a) For the purpose of this title, "employee,"
except as otherwise provided by this section or
when specifically modified, means an officer and
an individual who is —
(1) appointed in the civil service by one of the
following acting in an official capacity —
(A) the President;
(B) a Member or Members of Congress, or the
(C) a member of a uniformed service;
(D) an individual who is an employee under
(E) the head of a Government controlled
(F) an adjutant general designated by the
Secretary concerned under section 709(c) of
(2) engaged in the performance of a Federal
function under authority of law or an Executive
(3) subject to the supervision of an authority
named by paragraph (1) of this section, or the
Judicial Conference of the United States, while
engaged in the performance of the duties of his
Workers who have not been "appointed" according to the
provisions of subsection (1) are not "employees" within the
meaning of Title 5 of the United States Code. See Horner v.
Acosta, 803 F.2d 687
(Fed. Cir. 1986). This includes government
contractor employees such as those in the instant case. Id. at
693-94. Since the definition of "employee" is not specifically
modified by 5 U.S.C. § 7211, the statutory definition in
Section 2105 applies.
Plaintiffs argue that the legislative history of Section 7211
indicates that it was Congress' intent that the statute should
also apply to employees of federal contractors. However, it is
well-settled that in determining the scope of a statute, the
court looks first to the language of the statute. If the
statutory language is unambiguous, in the absence of "a clearly
expressed legislative intent to the contrary, that language
must ordinarily be regarded as conclusive." United States v.
Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d
246 (1981) (quoting Consumer Product Safety Comm'n v. GTE
Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64
L.Ed.2d 766 (1980)). The language of Section 7211 is not
ambiguous, nor do the plaintiffs assert that it is. Defendants'
arguments that the legislative history of Section 7211
indicates that it was intended to apply to federal employees
only are equally as compelling as plaintiffs' arguments to the
contrary. Thus, the court relies on the language of the statute
for the definition of "employee," particularly in light of the
statement by several courts that the elements of Section 2105
are to be strictly applied. See, e.g., Horner, 803 F.2d at 691,
McCarley v. Merit Systems Protection Board, 757 F.2d 278, 280
(Fed. Cir. 1985). The provisions of Section 7211 are not
applicable to the plaintiffs.
The plaintiffs' claim under Section 619 must also be
dismissed. Section 619 provides, in pertinent part:
No funds appropriated in this or any other Act
for fiscal year 1989 may be used to implement or
enforce the agreements in Standard Forms 189 and
4193 of the Government or any other nondisclosure
policy, form or agreement, if such policy, form or
(1) concerns information other than that
specifically marked as classified; or unmarked but
known by the employee to be classified; or
unclassified but known by the employee to be in
the process of a classification determination. . . .
It is not necessary to delve into the merits of plaintiffs'
claim under Section 619. Section 619 governs expenditures made
only in the fiscal year beginning October 1, 1989. Plaintiffs
complain of expenditures made to publish a newsletter on
September 15, 1988. Although plaintiffs argue that a statute
with identical language was in effect in 1988, and that
defendants' actions constitute "ongoing enforcement,"
appropriation measures are only operative for the period
specified by the statute. See
National Ass'n of Regional Councils v. Costle, 564 F.2d 583,
586-87 (D.C. Cir. 1977).
Plaintiffs' claim that the September 15, 1988, newsletter
violates their First Amendment rights is dismissed for lack of
subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1).
Plaintiffs' claims that defendants violated 5 U.S.C. § 7211 and
Section 619 are dismissed for failure to state a claim upon
which relief may be granted, pursuant to Fed.R.Civ.P. 12(b)(6).
The plaintiffs' cross-motion for summary judgment is denied.
IT IS SO ORDERED.