Bordell v. General Elec. Co., 88-CV-1155.

• Decision Date: 16 March 1990
• Docket Number: No. 88-CV-1155.,88-CV-1155.
• Citation: 732 F. Supp. 327
• Court: U.S. District Court — Northern District of New York
• Parties: 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, v. 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.

732 F. Supp. 327

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, v. 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.

No. 88-CV-1155.

United States District Court, N.D. New York.

March 16, 1990.

Thomas E. Carpenter, Government Accountability Project, Washington, D.C., and Peter Henner, Albany, N.Y., for plaintiffs.

Frederick J. Scullin, Jr., U.S. Atty., and William A. Pease, Asst. U.S. Atty., Syracuse, N.Y. (Felix V. Baxter, and Vincent M. Garvey, Civ. Div., Washington, D.C., of counsel), for Federal defendants.

Akin Gump Strauss Hauer & Feld, Washington, D.C. (Michael J. Madigan, W. Randolph Teslik and Lars H. Liebeler, Washington, D.C., and Susanne E. Hawkins, Schenectady, N.Y., of counsel), for defendant General Elec. Co.

MEMORANDUM-DECISION AND ORDER

McCURN, Chief Judge.

Introduction

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 AFLCIO ("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.

Background

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 "it 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:

"another 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 KAP-418 form.

(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. § 7211¹, and P.L. 100-440, Section 619 of the Treasury and Post Office Appropriations Act ("Section 619").² 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 operations.

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, "as 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 regulations.

(emphasis added)

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.

Discussion

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 controversy" 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 KAPL.

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.³ 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...