Amicus Curiae Brief — American Foreign Service Assn. v. Garfinkel

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No. 87-2127 pec 29 1908

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IN THE en

Supreme Court of the United States

OCTOBER TERM, 1988

AMERICAN FOREIGN SERVICE ASSOCIATION, et al.,

Appellants,

STEVEN GARFINKEL, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF OF AMICI CURIAE

THE GOVERNMENT ACCOUNTABILITY PROJECT

AND THE FUND FOR CONSTITUTIONAL

GOVERNMENT IN SUPPORT OF APPELLANTS

Joseph B. Kennedy

(Counsel of Record)

Thomas M. Devine

Donald G. Aplin

Government Accountability Project

25 E Street, Suite 700 _

Washington, D.C. 20001

(202) 347-0460

And on Behalf of

Fund for Constitutional Government

121 Constitution Avenue, N.E.

Washington, D.C. 20002

CASILLAS PRESS, INC. — 1717 K STREET, N.W., WASHINGTON DC 20036 — 223-1220

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................. ee. il

INTEREST OF AMICI CURIAE ............................. l

SUMMARY OF ARGUMENT ............................... 3

er ne ee ue id Koeaeduneeoencec 6

I]. WHISTLEBLOWERS ARE ESSENTIAL TO THE

FORMATION OF PUBLIC POLICY ..................... 6

Il. THE DECISION BELOW CASTS A CONSTITUTIONAL

CLOUD OVER THE BODY OF STATUTORY LAW

PROTECTING FREEDOM TO DISCLOSE

MISMANAGEMENT AND MALFEASANCE ............. 10

Ill. AN UNFORSEEN CONSEQUENCE OF THE

DECISION BELOW MAY REINSTATE JURISDICTION

OVER CONSTITUTIONAL TORT SUITS ............... 14

StS W GN oe eeE ah sd Sine RRG RR DED EKER STOR Cas 15

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TABLE OF AUTHORITIES

Cases: Page

American Foreign Service Association v. Garfinkel,

G58 F. Supp. G71 @.D.C. WED... iccccccscesuceueee 11

Bivens v. Six Unknown Narcotics Agents,

GB U.S. SEB CRUE) .ncccccccccescvcseuscesenn 14

Brown & Root v. Donovan,

rar 8 Ff fee ee 2

Bush v. Lucas,

GRB UB. FEB GRD oso nccccecsccceuessne 6, 9, 14, 15

Butz v. Economou,

GBB UD. GRO CUBED owe ccscccccvepecueeueeee 14

Carlson v. Green,

G68 US. BO CORD nov cvccdccceceuncecnee 14, 15

Davis v. Passman,

EB UD. TD CBG OD noc ccccccccsecccenusceue al 14

Frazer v. M.S.P.B.,

Gia F236 169 @.C. Cir. BERD... cnccccccceesesde 2

Givhan v. Western Line Consolidated School District,

GO US. GBD GPE 2. cccccccccecescecuenunee 2,3

Harlow v. Fitzgerald,

Gar US. FER GRD oc cccccccccacsscoucseneeee 2

Kansas Gas & Electric v. Brock,

es @ Ff: fe 2 |= 2

Martin v. Lauer,

GSS F.26 36 @.C. Cir. IGERD .. .. cc cccccccsceueuaseeenee 2

(inl)

Page

National Federation of Federal Employees v. U.S./

American Federation of Government Employees et al. v.

Garfinkel et al.,

fee, eee, wows (D.C. Cir. 1968) ...................6.... 2-3

Nixon v. Fitzgerald,

ee cess ce waa ccseccccccccessccccs 2

Spagnola v. Mathis,

I ID ooo cc csc ccc cece scccccce 2

Statutes:

> U.om. secuem a0, Zo0e and 7701 ................ ‘Soca 2

Ere ee eee 7, 11

| ated whe s 3, 3, 13

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Ne cs ccc eee cnscccceecscces 12

Neen as ssc e cc ccescessccsess 1]

DCs cece dcseccncevccsseeess 12

Ne ccc ces ecccccccncccess 12

Nene Cees u ss cecccsecsccevecccscees 11

EE SSIS TTEEEET ETE 12

EN SIE SPSOTT TET TEEEET TEE 11

sess sev escccccccecsccss 12

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Page

49 U.S.C. Section 2305 .... 0... ccc cece cece eee 12

P.L. No. 95-454, 92 Stat. 111 (1978) ........0.00.0000... passim

P.L. No. 100-202, 101 Stat. 1329

SOO GD GID ov vccccccrcciccccccsssccceccevecusi passim

P.L. No. 100-456, Section 846 (1988) ................0.000005. 7

Legislative Materials:

133 Cong. Rec. H11999 (daily ed. Dec. 21, 1987) ............. 10

134 Cong. Rec. $15336 (daily ed. Oct. 7, 1988) ................ 7

134 Cong. Rec. H9322 (daily ed. Oct. 3, 1988) ................. 9

134 Cong. Rec. H10637 (daily ed. Oct. 20, 1988) ............... 7

S.508, 100th Cong. 2d sess. (1988) .......00000 00000000 2

Executive Order #1142 (Nov. 26, 1909)

Reprinted in 48 Cong. Rec. 5223 (1912) ...........00000..... 8

Civil Service Reform Act, Report of House Comm. on

Post Office and Civil Service,

HR Rep. No. 95-1403 (1978) ... 2.00000... cee eee ee, )

Civil Service Reform Act, Report of Senate Comm. on

Govt. Affairs, SR Rep. No. 95-969 (1978) ................ 9, 13

Classified Information Nondisclosure Agreements: Hearings

Before the Subcomm. on Human Resources of the House

Comm. on Post Office and Civil Service, 100th Cong.

Be ly GE 0:6.00064550556000nseddrduseediadssuskes 8

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Legislation Needed to Curb Secrecy Agreements: Report

by the House Comm. on Govt. Operations, 100th Cong.

er Eo 3-06 cc keh n4be nee CiateedGveseeeeaens

Memorandum to Hon. Charles Grassley from the American

Law Div., Cong. Research Service, Library of Cong.

gg Sey SE eee ea Se ee

The Whitleblowers: A Report on Federal Employees Who

Disclose Acts of Government Waste, Abuse, and Corrup-

tion, prepared for the Senate Comm. on Govt. Affairs,

ee I CE cc cc cedunesusecetkacnvens

Other Authorities:

Devine and Aplin, Abuse of Authority: The Office of the

Special Counsel and Whistleblower Protection,

4 Antioch Law Journal 5 (Summer 1986) ..............

Devine and Aplin, Whistleblower Prutection — The Gap

Between the Law and Reality, 31 Howard Law

ET vor ccaca bs ceeaGce CoN EAsS Ceaa ei REN

Federalist, ed. Jacob E. Cooke (1961) ..................

Levy, Onginal Intent and the Framers’ Constitution (1988)

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

87-2127

AMERICAN FOREIGN SERVICE ASSOCIATION, et al.,

Appellants,

STEVEN GARFINKEL, et ai.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF OF AMICI CURIAE

THE GOVERNMENT ACCOUNTABILITY PROJECT

AND THE FUND FOR CONSTITUTIONAL

GOVERNMENT IN SUPPORT OF APPELLANTS

INTEREST OF AMICI

The Government Accountability Project (GAP) is a non-

profit, non-partisan, public interest group formed in 1975 to

help restore and maintain confidence in the federal system by

making public officials accountable for their activities. In pur-

suit of these goals, GAP works to broaden public understand-

ing of the role of the federal employee in preventing govern-

ment waste, fraud, and abuse of authority.

GAP is especially concerned with civil servants who suffer

retaliation for having spoken out about government wrong-

doing. Through public education, legislative efforts and selec-

tive legal action, GAP strives to protect the First Amendment

right of all federal employees to offer reasonable criticism with-

out fear of retribution.

To further these goals GAP offers assistance to the courts

in cases concerning the remedies available to federal em-

ployees under the Constitution, laws and treaties of the United

States. GAP has filed several Amicus Curiae briefs before this

and other federal courts. See, e.g., Givhan v. Western Line

Consolidated School District, 439 U.S. 410 (1979); Nixon v.

Fitzgerald, 457 U.S. 731 (1982); Harlow v. Fitzgerald, 457

U.S. 800 (1982); Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir.

1988); Frazier v. M.S.P.B., 672 F.2d 150 (D.C. Cir. 1982);

Martin v. Lauer, 686 F.2d 24 (D.C. Cir. 1982); Brown & Root

v. Donovan, 747 F.2d 1029 (5th Cir. 1984); Kansas Gas and

Electric Company v. Brock, 780 F.2d 1505 (10th cir. 1985).

GAP has particularly concentrated on monitoring the im-

plementation of the ‘‘whistleblower’’ protections of the Civil

Service Reform Act of 1978 (CSRA), 5 U.S.C. Sections 2301,

2302 and 7701. See e.g., Devine and Aplin, Abuse of Authon-

ty: The Office of the Special Counsel and Whistleblower Protec-

tion, 4 Antioch Law Journal 5 (Summer 1986); Devine and

Aplin, Whistleblower Protection — The Gap between the Law

and Reality, 31 Howard Law Journal 2 (1988). Since 1980 GAP

has testified regularly in annual congressional oversight hear-

ings on implementation of ‘‘whistleblower’’ protections in the

CSRA and advocated stronger protections for federal em-

ployees through the Whistleblower Protection Act of 1988,

S. 508, 100th Cong. 2d Sess.

GAP continues to represent clients in the former companion

cases to this action, National Federation of Federal Employees

v. U.S. and American Federation of Government Employees,

et al. v. Steven Garfinkel, currently on appeal at the D.C. Cir-

cuit Court of Appeals (Nos. 88-5402, 88-5404).

The Fund for Constitutional Government (FCG) is a non-

profit public charity dedicated to fostering constitutional re-

sponsibility in the conduct of elected and appointed officials.

Representatives of FCG testified before Congress on the

Civil Service Reform Act before its adoption. FCG has also

testified at congressional oversight hearings on implementa-

tion of the CSRA. FCG and GAP joined in an a amicus cunae

brief to this court in Givhan v. Western Line Consolidated

School District, 439 U.S. 410 (1979).

Amict’s efforts on behalf of federal ‘‘whistleblowers’’ are

made in furtherance of the belief that professional and dedicated

civil servants who are free to exercise their First Amendment

rights are essential to an effective and responsible democracy.

SUMMARY OF ARGUMENT

Recent breakdowns in government accountability have in-

tensified the longstanding congressional commitment to chal-

lenge secret government through strengthened protection for

whistleblowers — those employees who disclose government

illegality or other significant misconduct. In theory and in fact,

their disclosures have proven to be the unique, invaluable life-

blood for effective congressional oversight of Executive Branch

activity. Congress has recognized the necessity of maintain-

ing a free flow of information from whistleblowers since its

1912 passage of the Lloyd-Lafollette Act, 5 U.S.C. Section

7211, outlawing a ‘“‘gag rule’’ strikingly similar to the non-

disclosure agreements for which Section 630 cut off funding.

There has been a consistent, bipartisan reaffirmation of the

Lloyd-Lafollette Act anti-gag principles, highlighted by whistle-

blower protections in the Civil Service Reform Act of 1978

and the Whistleblower Protection Act of 1988. The legislative

history of the latter bill echoed the appropriations restrictions

in Section 630 against nondisclosure agreements.

The District Court’s decision purports to reject the constitu-

tionality of a law claimed to create unprecedented restrictions

on the President’s duty to protect sensitive information. That

premise is inaccurate. Section 630 merely incorporates the

provisions of fundamental parent statutes representing the law

of free communication established by Congress over the last

75 years, including the Civil Service Reform Act of 1978. By

invalidating Section 630, the District Court inadvertently re-

versed this Court’s doctrine of deferring to Congress as the

proper branch to establish the remedies for national security

violations.

The District Court’s claim for the Executive of a plenary

authority and responsibility to protect sensitive government

information reveals a serious misunderstanding of the doctrine

of separation of powers. History teaches that the original in-

tent of the Framers was that the doctrine of separation con-

templated a system of separate branches with shared, not

mutually exclusive, powers. Federalist, ed. Jacob E. Cooke

(1961), Nos. 47-48, especially at p. 332. As Professor Levy

has noted:

If much contemporary constitutional law is about

rights, the reason is that as government gets larger,

more complex, more powerful, and more intrusive,

the need to stay Caesar’s hand increases. If govern-

ment exists to protect the individual, as the pream-

ble of the Declaration of Independence suggests, and

as the provisions of the Constitution suggest as

strongly, then the Court must fortify our rights

. . . The burden of proof should always be on the

government to show that rights claimed must be

denied lest legitimate ends go unfulfilled because no

alternative means are possible and the needs of the

government are compelling.

Original Intent and the Framers’ Constitution, Levy (1988),

p. 392. The District Court’s application of a ‘minimal scrutiny”’

standard, 688 F. Supp. at 686-87, failed to include in the matrix

of policy considerations the authority and responsibility Con-

gress shares with the Executive for balancing the protection

of the nation’s secrets against the public’s right to know and

the individual’s nght to freedom of expression and communica-

tion If the decision below is upheld, the well-developed body

of statutory law protecting freedom of information will be jeo-

pardized.

Significantly, prior to this litigation appellees had strenuously

sought to reassure Congress that the Executive's non-disclos-

ure agreements would not supersede the civil service laws

that protect disclosures of mismanagement and malfeasance.

The decision below also casts a constitutional shadow over

at least 12 other anti-fraud or environmental whistleblower

protection statutes whose broad mandates do not recognize

the District Court’s limitation on the power of Congress to

regulate the flow of information involving public health and

safety.

In the absence of congressional authority to outlaw the use

of nondisclosure agreements to foreclose the flow of such in-

formation the activity protected by these statutes will be ef-

fectively neutralized. In the case of the whistleblower provi-

sion of the Civil Service Reform Act, the nondisclosure agree-

ments are tantamount to administrative repeal of the statutory

boundary for protected conduct.

—

In all cases the statutes would be emasculated by the chill-

ing effect of a pre-clearance requirement for almost any un-

marked or unclassified information a conscientious employee

seeks to disclose. The only way an employee can be certain

of compliance with the Executive’s nondisclosure agreements

is to ask his or her boss whether the unmarked information

is classified. That would automatically eliminate any prospect

of making a confidential whistleblower disclosure and chill, if

not freeze, the flow of information vital to informed congres-

sional and public oversight of waste, fraud, abuse or misman-

agement.

The prior review and authorization requirement would in-

stitutionalize an advance warning alert for targets of disclosures

involving official wrongdoing. At a minimum, the targeted in-

dividual or agency could compromise the integrity of an in-

vestigation by actions such as occurred in the Iran-Contra case.

An unforseen consequence of the decision below may be

reinstatement of jurisdiction over constitutional tort suits. That

could occur if the Bush v. Lucas, 462 U.S. 388 (1983) doc-

trine of deference to statutorily-created administrative reme-

dies for whistleblowers is preempted by the separation of

powers doctrine. The vitality of the Bush doctrine depends

upon effective alternate remedies for whistleblowers under

the CSRA.

ARGUMENT

I. WHISTLEBLOWERS ARE ESSENTIAL TO THE

FORMATION OF PUBLIC POLICY.

A primary lesson of the 1980’s is the threat our nation faces

from secret government. The tragedy of the Challenger disas-

ter, the disillusionment of long-term, widespread Pentagon

procurement fraud and the lawlessness of the Iran-Contra

scandal might all have been prevented if federal civil servants

were confident they had the freedom to ‘‘commit the truth.’’

The defense procurement scandal festered, as Senator

Grassley observed, until it was exposed by a former federal

employee. 134 Cong. Rec. $15336 (daily ed. Oct. 7, 1988).

This year Congress demonstrated a major commitment to

strengthen freedom to expose wrongdoing in the Executive

Branch by unanimously passing the Whistleblower Protection

Act of 1988, td. at S15328 (subsequently pocket-vetoed); the

Major Fraud Act of 1988, 134 Cong. Rec. H10637 (daily ed.

Oct. 20, 1988) and the Military Whistleblower Protection Act.

Pub. L. No. 100-456, section 846, 100th Cong., 2d Sess.

(1988).

The accelerating congressional mandate to improve protec-

tions for ‘‘whistleblowers’’ — defined under civil service law

at 5 U.S.C. section 2302(b)(8) as those employees who dis-

close violatios of law, abuse of authority, mismanagement,

gross waste or substantial and specific danger to public health

or safety — is grounded in sound public policy. Government

experts who are free to testify truthfully at public fora are

essential tools of government accountabiliy.

In practice, whistleblowers have been the Achilles heel of

secret government. When not muzzled, they have exposed

quality control breakdowns in production of military equipment

upon which our troops’ lives depend; multi-billion dollar cost

overruns for the C5-A transport and other military purchases

such as the world’s most expensive coffee pots, nuts, bolts,

armrests and toilet seats; a life-threatening breakdown in

federal inspection of meat sold to the public and the military;

public health threats from unsafe nuclear power and weapons

plants; national security threats from security breakdowns at

nuclear weapons sites; and similar public policy debacles in-

volving information whose exposure would have been barred

by nondisclosure agreements such as Standard Form (SF) 189.

See generally The Whistleblowers: A Report on Federal Em-

ployees Who Disclose Acts of Government Waste, Abuse and Cor-

ruption Prepared for the Senate Comm. on Governmental Af-

fairs, 95th Cong., 2d Sess. (1978) (‘‘Leahy Report’’); Classt-

fied Information Nondisclosure Agreements: Hearings before

the Subcomm. on Human Resources of the House Comm. on

Post Office and Civil Service, 100th Cong., 1st Sess. 1987

(‘‘1987 Hearings’’).

Since passage of the Lloyd-Lafollette Act in 1912 Congress

has recognized the indispensable necessity of maintaining a

free flow of information from Executive Branch employees.

5 U.S.C. section 7211. That statute passed in response to

a ‘‘gag rule’ issued by President Taft, forbade federal em-

ployees from communicating with Congress, except through

and with the consent of department heads. This restraint on

expression was strikingly similar to SF 189. Executive Order

#1142 of November 26, 1909, reprinted in 48 Cong. Rec. 5223

(1912).

Twenty seven years later Congress again emphasized its

reliance on a free flow of information from the Executive to

the Legislative branches when it enacted the Civil Service

Reform Act of 1978, Pub. L. 95-454, 92 STAT. 111 (codified

as amended in scattered sections of 5 U.S.C.). The founda-

tion for CSRA statutory whistleblower protections, the Leahy

Report, explained:

Federal employees are often the source of informa-

tion about agency operations suppressed by their

superiors. Since they are much closer to the actual

working conditions than top agency officials, they

have testified before Congress, spoken to reporters,

and informed the public. Mid-level employees pro-

9

vide much of the information Congress needs to eva-

luate programs, budgets, and overall agency perfor-

mance.

Leahy Report, supra, at 40. See also HR Rep. No. 95-1403,

at 386-87 (1978). As emphasized in the CSRA legislative

history, ‘‘Protecting employees who disclose government il-

legality, waste and corruption is a major step toward a more

effective civil service. In the vast federal bureaucracy, it is

not difficult to conceal wrongdoing provided that no one sum-

mons the courage to disclose the truth.’’ S. Rep. No. 95-969,

at 8 (1978). In reviewing the CSRA legisltive history, this

Court observed in Bush v. Lucas, ‘‘There is a remarkable

similarity between comments made in Congress in 1912, when

the Lloyd-Lafollette Act was passed, and in 1978 when the

Civil Service Reform Act was enacted.’’ 462 U.S. at n.37.

If there was any doubt about the congressional premise that

nondisclosure agreements are incompatible with civil service

law, it was dispelled in the Joint Explanatory Statement for

the Whistleblower Protection Act of 1988:

It is obvious, but worth noting, that no Executive

order, regulation or contract can extinguish the rights

provided under section 2302 of title 5. Employees

have been required to sign security agreements as

a condition for gaining access to classified informa-

tion which seem to suggest that the signers of such

agreements could be punished for disclosures pro-

tected by 5 U.S.C. 2302(b)(8). Insofar as these

agreements seem to limit the ability of whistle-

blowers to exercise rights provided under Chapters

12 and 23 of title 5, the security agreements are not

valid.

134 Cong. Rec. H9322 (daily ed. Oct. 3, 1988).

10

If. THE DECISION BELOW CASTS A CONSTITU-

TIONAL CLOUD OVER THE BODY OF STATU-

TORY LAW PROTECTING FREEDOM TO DIS-

CLOSE MISMANAGEMENT AND MALFEASANCE.

The significance of this case goes far beyond the appropria-

tions rider that section 630 represents. If the decision below

is upheld and its holdings applied in other contexts, it may

seriously undermine the Constitutional and statutory protec-

tions accorded federal employees’ communications with Con-

gress that have evolved over the last 75 years.

Congress clearly intended Section 630 as an interim measure

against vague oOverinclusive nondisclosure agreements. As

Representative Brooks explained on the House floor prior to

its passage,

Needless to say, the administration’s use of these

secrecy pledges, represents a sharp attack on free

speech under the first amendment and the whistle-

blower protections of various civil service laws. It

is imperative, therefore, that Congress review this

policy and legislate adjustments to preserve a pro-

per balance between national security considerations

and free speech in our Republic.

133 Cong. Rec. H11999 (daily ed. Dec. 21, 1987).

Pnor to this litigation, appellee Garfinkel did not dispute the

supremacy of statutory protections in conflict with the non-

disclosure agreements. To the contrary, in congressional testi-

mony he attempted to reassure Congress that SF 189 did not

supersede the CSRA whistleblower provision, 1987 Hearings,

supra, at 81, a policy he subsequently formalized. 53 Fed. Reg.

at 38,279 (32 C.F.R. section 2003.20 (g)).

Congress took appellee Garfinkel at his word by specifical-

ly implementing through Section 630 his generalized principles.

ll

The District Court swept this delicate compromise aside.

Ironically, the provisions which the District Court found most

constitutionally objectionable are those drawn directly from

the Lloyd-Lafollette Act and the CSRA whistleblower shield,

5 U.S.C. section 2302(b)(8). If upheld, the decision below may

cast a chilling shadow over the constitutionality of numerous

others.

The provisions that the district court found to be ‘‘[plJar-

ticularly offensive’’ are subsections (3) through (5) of section

630.’ 688 F. Supp. at 685. Subsections (3) and (4), however,

restate the statutory protection for communicating with Con-

gess in place since 1912 under the Lloyd-Lafollette Act. 5

U.S.C. section 7211. Subsection 5 merely paraphrases the

boundary for unrestricted disclosures under the CSRA whistle-

blower provision — protection of significant dissent unless the

disclosure is specifically prohibited by statute or executive

order. !

The decision below casts a shadow over other statutes

whose broad protections do not recognize the District Court's

mandate of absolute discretion for the Executive Branch to

restrict the flow of sensitive information. To illustrate, the

False Claims Reform Act of 1986 has a whistleblower protec-

tion clause for those who act ‘‘in furtherance of’’ investiga-

tions and litigation that seek to recover fraudulent payments.

31 U.S.C. section 3730. The Major Fraud Act of 1988 has

a similar provision. 18 U.S.C. 1031 (g).?

\The Military Whistleblower Protection Act, supra, adopts the same

boundary for protected disclosures and reaffirms Congress’ nght to receive

information even from service members.

2Similar uncertainty would pervade the status of ten environmental

whistleblower provisions administered through the Department of Labor

to protect those who assist in enforcing corresponding organic statutes.

These endangered statutes include the Clean Air Act, 42 U.S.C. section

7622; Energy Reorganization Act, 42 U.S.C. section 5851; Occupational

12

SF 189 particularly impinges upon the narrower disclosure

channel in the CSRA for classified information. Under the

CSRA, an employee has an unqualified right to make disclos-

ures of classified information to an agency Inspector General

or the Office of the Special Counsel of the Merit Systems Pro-

tection Board. The nondisclosure agreements prohibited by

Section 630 ignore this statutory channel for national security

whistleblowers. Under SF 189 the employee first must sub-

mit the information for prior review and authorization, only

after the employee’s agency agrees the Inspector General or

Special Counsel has a ‘‘need to know’’ may a confidential or

classified disclosure be made. The same is true of proposed

disclosures to Congress.

In evaluating the propriety of SF 189, the American Law

Division of the Library of Congress put this issue in perspec-

tive.

In a practical sense, to the extent that the secrecy

agreement because of its apparent breadth and

vagueness of terms chills or discourages the dis-

closure of any information which evidences waste,

fraud, corruption or illegality in government, that ef-

fect or result would be in contrast to and in deroga-

tion of the intended result of the whistleblowing

statute.

Memorandum to Honorable Charles Grassley from the American

Law Division, Congresstonal Research Service, Library of Con-

gress, at 7 (July 28, 1987).

Safety and Health Act, 29 U.S.C. section 660(c); Safe Containers for In-

ternational Cargo Act, 46 U.S.C. section 1506; Safe Drinking Water Act,

42 U.S.C. section 300-j-9; Solid Waste Disposal Act, 42 U.S.C. section

6971; Superfund Act, 42 U.S.C. section 9610; Surface Mining Control and

Reclamation Act, 29 U.S.C. section 1293; Surface Transportation Act,

49 U.S.C. section 2305; and Water Pollution Control Act, 33 U.S.C. sec-

tion 1367.

13

That is precisely the impact the nondisclosure agreements

will have if the decision below is upheld. The almost limitless

scope of information that is classifiable, combined with the lack

of any required notice of its status, means that virtually any

information can be suppressed. Legislation Needed to Curb

Secrecy Agreements: Report by the House Comm. on Gov. Ops.,

100th Cong., 2d Sess. 9-10 (1988) (‘‘Secrecy Report’’).

The prior authorization requirement of the nondisclosure

agreements precludes Congress’ ability to protect confiden-

tial communications. The House Government Operations Com-

mittee explained,

Without the classification markings on unclassified

information, however, an employee cannot be sure

that the nondisclosure agreements’ restrictions apply

to that material. Consequently, they must check with

their superiors, alerting them to the disclosure. This

invites a chilling effect. As Congresswoman Boxer

noted at the [committee’s prior] hearings , ‘‘I am

concerned that this will force would-be whitleblowers

to have to ask their superiors about classification

determinations. This will stop them.”’

Id., at 10 n.35. As the legislative history of the CSRA noted,

‘*Protection of the complainant’s identity is essential not only

to prevent retaliation against the employee, but to assure a

free flow of information to the Special Counsel.’’ S. Rep.

95-969, at 33 (1978).

Congress’ inability to prohibit the prior authorization require-

ment means agencies will have a total veto power over dis-

closures. We recognize the need to discourage irresponsible

leaks, but the deterrent adopted by the Executive exceeds

the need for administrative control. Congress is best suited

to draw this line. As Senator Grassley explained in the Secrecy

Report, supra at 10 n.36, “‘If the employee is not certain if

14

information might some day be classified, he or she must ask

a supervisor. As a result, the potential whistleblower would

be identified, and the supervisor could block disclosure of the

information, even if it was not classified and had never been

intended to be classified, but was simply embarrassing to the

Administration.’’

The net effect of invalidating Section 630 is to strip Con-

gess of the ability to defend its statutory free speech protec-

tions.

Ill. ANUNFORSEEN CONSEQUENCE OF THE DECI-

SION BELOW MAY REINSTATE JURISDICTION

FOR CONSTITUTIONAL TORT SUITS.

An unforseen consequence of upholding the decision below

may be to reinstate jurisdiction over constitutional tort suits

under Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388

(1971).

If the protection afforded disclosures of information by the

CSRA is jeoparized in whole or in part by affirmance of the

District Court’s rationale in this case — i.e., a wall of separa-

tion exists between the Executive and Congress over pro-

tection of the nation’s secrets — then the carefully fashioned

CSRA remedy for constitutional torts countenanced by this

Court’s decision in Bush v. Lucas, supra, may have to be

revisited.

To accept the District Court’s separation of powers articula-

tion denigrates the doctrine and the Court’s longstanding

recognition that Congress is ultimately the appropriate body

to create remedies, especially for federal civil servants.

Carlson v. Green, 446 U.S. at 19-20; 27-28; Davis v. Passman,

442 U.S. 228, 242, 245, 246-47 (1979); Butz v. Economou,

432 U.S. 478, 504 (1978).

15

The premise of Bush v. Lucas is the supremacy of the

legislative will in matters affecting remedies for prohibited per-

sonnel practies. If that premise is undermined by affirmance

of the District Court’s separation of powers justification, rein-

statement of the Bivens remedy may be mandated by this

Court’s decision in Carlson v. Green, 446 U.S. 14 (1980). Cer-

tainly, if the Constitution preempts the whistleblower’s statu-

tory (CSRA/MSPB) remedy for retaliatory personnel action,

the courts would be hard pressed not to recognize the tradi-

tional judicial remedy.

CONCLUSION

If upheld, the decision below will open a Pandora’s box of

unacceptable consequences — creating a black hole that threat-

ens to swallow the statutory protections and remedies afforded

civil service whistleblowers. For these reasons, amici urge

reversal of the District Court’s decision.

Respectfully submitted,

Joseph B. Kennedy

(Counsel of Record)

Thomas M. Devine

Donald G. Aplin

Government Accountability Project

25 E Street, Suite 700

Washington, D.C. 20001

(202) 347-0460

And on Behalf of

Fund for Constitutional Government

121 Constitution Avenue, N.E.

Washington, D.C. 20002