UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia
Robinson, Chief Judge, Wald, Circuit Judge, and Swygert,* Senior Circuit Judge for the Seventh Circuit. Opinion for the Court filed by Circuit Judge Wald.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WALD
This is an expedited appeal brought by two senior level employees of the Office of Juvenile Justice and Delinquency Protection ("OJJDP" or "agency"). Appellants seek reversal of a district court order and opinion upholding agency restrictions on their ability to communicate with their counsel in another suit challenging an agency reduction in force .1 The district court ruled that OJJDP could bar appellants from disclosing to their counsel any agency documents or information gathered therein that "could be subject to the Privacy Act."2 It further ruled that appellants may be required to inform the agency of what information or documents have already been revealed to their counsel which "could be subject to the Privacy Act, or exempt from disclosure under the Freedom of Information Act" .3
Appellants contend that the restrictions are unconstitutionally and statutorily vague, are contrary to the whistle-blower provisions of the Civil Service Reform Act ,4 violate their first amendment rights, and interfere with their access to the courts. We conclude that the restrictions are invalid insofar as they broadly require appellants to disclose communications with counsel regarding any FOIA-exempt information. We do not express an opinion, however, on the legitimacy of the Privacy Act restrictions. Although appellants argue on appeal that the Privacy Act restrictions are invalid, it appears that they may only be contesting this aspect of the agency's directive because they believe they are under court order to comply with it. Since the restrictions pertaining to the Privacy Act raise especially difficult questions that would benefit from full consideration by the district court, we remand for further proceedings.5 I. BACKGROUND
Appellants Emily D. Martin and David D. West are employees of the OJJDP, holding GS-15 Senior Level Manager positions.6 On December 3, 1981, they, along with all other OJJDP employees, received a " Notification of Reduction in Force" from Robert F. Diegelman, Acting Director of the Office of Justice Assistance, Research and Statistics , informing them that "because of severe budget limitations and the resulting need for a major restructuring of the JSIA [Justice Systems Improvement Act of 1979, P.L. 96-157, 93 Stat. 1167] Agencies, it will be necessary to conduct a reduction in force between January and March 1982."7
Convinced that the proposed RIF would be illegal, a majority of OJJDP employees, including appellants, retained counsel to contest any such personnel action.8 Appellants then notified Charles A. Lauer, Acting Administrator of the OJJDP, of their decision to participate in an anticipated lawsuit attacking the legality of the RIF.9 On the following day, February 24, 1982, Lauer responded to appellants with a memorandum entitled "Lawsuit to be Filed Against Agency," which "inform[ed them] of the legal restrictions on such activities. . . ."10 The restrictions stated in relevant part:
3. You may not provide information or documents to the attorney representing these employees or to any other person assisting the employees or that attorney. In addition, there is a Department of Justice regulatory procedure governing the release of information involving litigation (See 28 C.F.R. § 16.21 et seq.). Employees are prohibited from releasing any information, producing any materials or disclosing any information in those materials except with the approval of the appropriate Department official which in this matter would be the Assistant Attorney-General of the Civil Division.
Any requests under the Freedom of Information Act should not be responded to until I have been informed of the nature of the request and the information that you propose to release in response to that request. I will then consult with the Office of General Counsel concerning the release of the information. This restriction is intended to allow the Federal Government to assert any exemptions that it may be entitled to under the Freedom of Information Act (5 C.F.R. § 735.206).
5. If you or your employees have already provided information or documents to the attorney, either directly or indirectly, I want a report concerning all oral information provided and a copy of all such documents delivered to me by February 26.
The memorandum concluded by warning that "immediate and appropriate disciplinary action [would be taken] to assure that the government's interests are protected."11 It was explained that "senior-level managers of the Department of Justice will not be permitted to take actions which violate DOJ regulations or impinge upon the ability of DOJ counsel to effectively defend the Government in litigation."12
On February 26th, the deadline for complying with paragraph 5 of the February 24th memorandum was extended to March 1, 1982 in order to allow appellants to consult with their attorney about the memorandum.13 On March 1st, appellants filed suit in the United States District Court against Lauer and the OJJDP, alleging that the restrictions in the February 24th memorandum "violate plaintiffs' constitutional right to unimpeded access to the courts; violate plaintiffs' First Amendment right to speak and communicate with their lawyer and with others; violate plaintiffs' First Amendment right to freely associate with others for the purpose of instituting legal action; violate plaintiffs' constitutional right to privacy in the lawyer-client relationship; and violate rights guaranteed to plaintiffs by the Civil Service Reform Act of 1978, 5 U.S.C. Secs. 2301 and 2302."14 Martin and West sought a temporary restraining order, as well as preliminary and permanent injunctive relief, but Judge Richey directed the parties to explore an informal resolution of the ...