Weaver v. United States Information Agency

Opinion for the Court filed by Circuit Judge WILLIAMS.

Dissenting opinion filed by Circuit Judge WALD.

STEPHEN F. WILLIAMS, Circuit Judge:

Employees of the State Department, the United States Information Agency (“USIA”), and the Agency for International Development (“AID”) are. required to submit all speaking, writing, and teaching material on matters of “official concern” to their employers for review prior to publication. 3 Foreign Affairs Manual (“FAM”) § 628.2. Material of “official concern” is broadly defined to include any material related to the employee’s agency or U.S. foreign policy, as well as any material that “reasonably may be expected to affect the foreign relations of the United States.” Id. Appellant Carolyn Weaver, a part-time employee of the Voice of America (“VOA”), a unit of USIA, published an article in the Columbia Journalism Review in 1988 without submitting it for prepublication review. The article, “When the Voice of America ignores its charter — An insider reports on a pattern of abuses,” attacked VOA over a range of issues, from allegations that it communicated “coded signals” to Solidarity activists (by playing a song from a Rod Stewart album) to more conventional assertions of politicization. She and USIA agree that the article contained material of “official concern.” An agency official read her an oral admonishment for her failure to honor the prepublication review requirement.

Even before receiving the admonishment, Weaver filed suit challenging the review procedure on First Amendment grounds and seeking declaratory and injunctive relief. That claim remains as Count I of her amended (post-admonishment) complaint. Count II attacks the oral admonishment. Count III in part repeats Count II’s demand for relief from the oral admonishment, and, together with Count IV, seeks documents and fee waivers under the Freedom of Information Act. Weaver evidently secured at least some of her FOIA objectives and does not here pursue any unfulfilled ones. The district court granted the government’s motion for summary judgment on Weaver’s remaining claims, finding that the review requirement did not impermissibly infringe her free speech rights. Weaver v. Wick, No. 88-1790 (D.D.C. Nov. 18, 1994).

The threshold issue on appeal is whether Weaver’s failure to exhaust her administrative remedies for the oral admonishment deprives the court of jurisdiction. We find that it does as to Counts II and III of the complaint, and thus we affirm the dismissal of those counts without reaching their merits. Count I, however, stands independently of the oral admonishment as a general First Amendment challenge to the prepublication review scheme, and therefore it raises no exhaustion problem. On the merits of Count I, we find that the review requirement, which we interpret narrowly to avoid constitutional difficulties, does not violate the First Amendment.

I. Exhaustion Requirement

A. Availability of Administrative Remedies.

Non-judicial remedies for adverse personnel decisions by government employers stem from two sources: the Civil Service Reform Act (“CSRA”) of 1978, Pub.L. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.), and provisions of collective bargaining agreements affording grievance rights to covered employees (the latter strongly bolstered by the CSRA itself). See Suzal v. Director, USIA 32 F.3d 574, 578-82 (D.C.Cir.1994). In this case only the CSRA’s direct remedies are relevant; the collective bargaining agreement covering Weaver and other members of the bargaining unit of Local 1812 of the American Federation of Government Employees expressly exempts “admonishments” from the category of personnel actions giving rise to grievance rights. Negotiated Labor-Management Agreement Between United States Information Agency and American Federation of Government Employees, Local 1812, Art. XXIII, § 2(b).

The CSRA provides remedies for any “prohibited personnel practice.” Such practices include “tak[ing] or fail[ing] to take any ... personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 [of title 5].” 5 U.S.C. §§ 2302(a)(1) & (b)(ll). Among the merit system principles in § 2301 is the requirement that all employees be treated “with proper regard for their privacy and constitutional rights.” Id. § 2301(b)(2). So it is a “prohibited personnel practice” to take a personnel action that unconstitutionally burdens an employee’s speech. Suzal, 32 F.3d at 580; Spagnola v. Mathis, 859 F.2d 223, 225 & n. 3 (D.C.Cir.1988).

It also appears that an admonishment is a “personnel action” (and thus the sort of act that can qualify as a “prohibited personnel practice”) as the term has been interpreted by the Merit Systems Protection Board (“MSPB”), the administrative body charged with implementing the CSRA. The statute defines “personnel action” to include “an action under chapter 75 of this title [governing dismissals, suspensions, grade or pay reductions, and furloughs] or other disciplinary or corrective action.” 5 U.S.C. § 2302(a)(2)(iii) (emphasis added). The MSPB at one time applied the principle of ejusdem generis to read “other disciplinary or corrective action” as limited to acts “in the nature of a Chapter 75 action,” i.e., acts of a similar type and seriousness. Caddell v. Dep’t of Justice, 52 M.S.P.R. 529, 532-33 (1992). Now, however, it views admonishments as “personnel actions” and apparently does not distinguish between oral and written ones. Cochran v. Dep’t of Veterans, 67 M.S.P.R. 167, 174 (1995) (letter of admonishment); Gonzales v. Dep’t of Hous. & Urban Dev., 64 M.S.P.R. 314, 319 (1994) (“an official reprimand”). The MSPB’s interpretation is entitled to deference. Lovshin v. Dep’t of the Navy, 767 F.2d 826, 840 (Fed.Cir.1985). Thus, if the review requirement giving rise to Weaver’s oral admonishment is unconstitutional, as she says, then the admonishment is a “prohibited personnel practice.”

Because the oral admonishment is not one of the relatively drastic personnel actions that entitle the affected employee to appeal to the MSPB, compare 5 U.S.C. §§ 4303(e), 7513(d) (permitting appeal in the case of dismissal and other serious actions), Weaver’s remedy under the CSRA consists of the right to file a complaint with the Office of Special Counsel (“OSC”). Id. § 1214(a)(1)(A). If the OSC finds “reasonable grounds” to believe that a prohibited personnel practice has occurred, it must report its determination to the agency involved and the MSPB. Id. § 1214(b)(2)(B). If the agency fails to correct the practice within a reasonable period of time, then OSC may— but need not — seek corrective action by the MSPB. Id. § 1214(b)(2)(C). The OSC is required to act on allegations of prohibited personnel practices within 240 days, with an exception for situations in which the person making the allegation agrees to an extension of time. Id. § 1214(b)(2)(A).

Although the CSRA gives the OSC discretion whether to seek corrective action, our circuit’s law affords employees in Weaver’s position a right to federal court review of their constitutional claims at the end of the line. See, e.g., Spagnola, 859 F.2d at 229-30; Griffith v. FLRA 842 F.2d 487, 494-95 (D.C.Cir.1988); cf. Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 2053-54, 100 L.Ed.2d 632 (1988) (general presumption of reviewability for constitutional challenges). But cf. Saul v. United States, 928 F.2d 829, 843 & n. 27 (9th Cir.1991) (holding unreviewable a constitutional claim intertwined with a CSRA claim, and noting the departure of this circuit from other circuits’ rulings on the issue); Pinar v. Dole, 747 F.2d 899, 909-12 (4th Cir.1984) (similar). But first the plaintiff must exhaust available administrative remedies. Steadman v. Governor, United States Soldiers’ & Airmen’s Home, 918 F.2d 963, 967 (D.C.Cir.1990). Weaver, in declining to challenge her oral admonishment with the OSC, indisputably failed to satisfy this requirement. The question is the effect of that failure as to each of the counts in her complaint.

B. Failure To Exhaust.

Under the CSRA, exhaustion of administrative remedies is a jurisdictional prerequisite to suit. Id. at 966-68; cf. United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988) (holding that the CSRA, in failing to provide explicitly for administrative or judicial remedies for certain decisions affecting nonpreferenee excepted service employees, implicitly bars judicial remedies). The exhaustion requirement clearly applies to Weaver’s claim for relief from the oral admonishment (which as we have seen is remediable under the CSRA), and thus Counts II and III of her complaint must be dismissed for want of jurisdiction. The exhaustion requirement generally applies as well to claims arising directly under the Constitution (such as Weaver’s claim for declaratory and injunctive relief from the prepublication review requirement) when such claims are “ ‘premised on the same facts’ ” as the plaintiffs CSRA claims and “the CSRA remedy ‘would have been fully effective in remedying the constitutional violation.’ ” Steadman, 918 F.2d at 967 (quoting Andrade v. Lauer, 729 F.2d 1475, 1493 (D.C.Cir.1984)). Here, Weaver’s constitutional claim is intertwined with her CSRA claim in the most absolute manner imaginable: it is its sole basis.

But Weaver disputes the effectiveness of the CSRA remedy, saying that only a court can provide an injunction against enforcement of the prepublication review requirement. In requiring that the CSRA remedy be effective, however, we do not think Stead-man and Andrade intended so high a standard, for under that standard the CSRA remedy would be inadequate whenever the plaintiff sought injunctive relief. Further, Weaver’s view that the inability to grant injunctive relief is material assumes that the government would continue to enforce the review requirement even after an unreversed administrative finding that the requirement was unconstitutional.¹ Weaver also points to the uncertainties in the CSRA remedy — the possible delays and the dependence on a favorable exercise by the OSC of its discretion whether to take the case to the MSPB. But the delays seem no more than the normal concomitant of an exhaustion requirement — perhaps less, in view of the statute’s deadline for OSC action. Although the OSC discretion adds an element of uncertainty that is distinct from the ordinary vicissitudes of agency proceedings, Congress evidently thought it adequate in view of the relatively minor character of the wrongs whose redress it left to OSC discretion, perhaps fearing that a universal right of appeal to the MSPB would cause trivial claims to delay and crowd out more serious ones. In any event, in this circuit there is, as we have seen, the opportunity for judicial relief at the end of the tunnel.

Although Weaver has not established that the CSRA remedy would be ineffective, she is nevertheless entitled to pursue her nonCSRA claim for declaratory and injunctive relief without having exhausted her administrative remedies for the oral admonishment. This is so because, in contrast to the situation contemplated in Steadman, the count of her complaint seeking declaratory and injunctive relief stands independently of the admonishment; indeed it is virtually identical to the original complaint she filed before the oral admonishment had occurred. Thus, if we simply affirmed the dismissal of the amended complaint on exhaustion grounds, Weaver would be free to — and almost certainly would — promptly refile her complaint shorn of references to her refusal to observe the review requirement and the resulting admonishment. As in United States v. Nat’l Treasury Employees Union, — U.S. -, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) (“NTEU”), and Sanjour v. EPA, 56 F.3d 85 (D.C.Cir.1995) (en banc), the district court would have jurisdiction over such a suit, framed as a simple pre-enforcement attack on a regulation restricting employee speech. This feature of Weaver’s challenge distinguishes it from the ordinary case of a failure to exhaust CSRA remedies, in which the employee would have no claim that she could file directly in federal court if isolated from her claims for relief from a personnel action against her. We see no reason for disabling Weaver from pursuing in federal court a constitutional claim that under First Amendment principles is as final, ripe and free from exhaustion difficulties as it need be, and that she has standing to pursue, merely because she has also experienced a personnel action related to that claim.² Accordingly, we affirm the dismissal of Counts II and III of the complaint on exhaustion grounds and proceed to the merits of Count I.

II. Constitutionality of the Review Requirement

A. The Meaning of the Regulation.

The central provision of the prepublieation review scheme is § 628.2:

a____ All speaking, writing, and teaching materials which may reasonably be interpreted as relating to the current responsibilities, programs, or operations of any employee’s agency or to current U.S. foreign policies, or which reasonably may be expected to affect the foreign relations of the United States are of official concern and shall be submitted ... for clearance by the employee’s agency, whether the employee is acting officially or privately, b. No employee shall publish any material of official concern under paragraph a until it has been cleared. The purpose of this clearance requirement is to substitute the agency’s institutional judgment for the employee’s judgment when the question involved concerns either the release or accuracy of information concerning the employee’s agency’s responsibilities or what conclusions should be drawn from such information----

e. Clearance will not be granted until all classified material and all material of official concern under paragraph a which is inaccurate, inconsistent with current foreign policy, or can reasonably be expected to affect adversely U.S. foreign relations, ivas been deleted from the proposed speaking, writing, or teaching material....

3 FAM § 628.2 (contained in 3 FAM Appendix A to Subchapter 4100).³

The meaning of this provision is, as we shall see, not entirely clear. It contains two direct commands; first, paragraph “a” provides that material of official concern “shall be submitted ... for clearance by the employee’s agency,” and second, paragraph “b” specifies that “[n]o employee shall publish any material of official concern ... until it has been cleared.” Thus, § 628.2 plainly requires (at a minimum) that employees undergo a clearance process, during which the agency reviews and passes upon material of official concern, before they publish such material. Weaver violated this requirement by refusing to submit her material for prepublication review.

The government argues that the regulation goes no further; once employees have undergone review to alert the agency to any problems in their material, § 628.2 has done its work. The regulation does not, the government says, authorize any form of punishment for publication of material disapproved by the agency, so long as it was submitted for review beforehand. Thus, on the government’s view, the paragraph “b” requirement that no employee publish material of official concern “until it has been cleared” is a requirement that no employee publish such material until completion of the review process. The government fails to explain how paragraph “c”, specifying conditions under which “clearance will not be granted,” fits with its procedural interpretation of the regulation, but the two provisions can be reconciled by viewing paragraph “c” as establishing an implied safe harbor for publication of material approved by the agency under the listed criteria. Any authority the agency has to punish (or seek to enjoin) publication of disapproved material must then stem from some other source, such as the statutory prohibition on disclosure of classified information. See 18 U.S.C. § 798, infra note 5.

If, contrary to the government’s proposed interpretation, the regulation were read to authorize punishment for publication of material disapproved under the criteria of paragraph “c” — inaccuracy, inconsistency with current foreign policy, or significant potential to affect U.S. foreign relations in an adverse manner — then the regulation would raise serious constitutional issues. For example, it is doubtful that the agency could, consistent with Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), penalize publications devoid of non-public information, by employees with non-sensitive responsibilities (e.g., a driver, a payroll accountant), writing in a context where their statements could not possibly be viewed as representing the agency or the United States, simply because the publication took a view “inconsistent with current foreign policy.” Of course the hypothetical seems unlikely to represent a material share of enforcement activity under the regulation, and perhaps the breadth of § 628.2 might be found “reasonably necessary to protect” various government interests. NTEU, — U.S. at -, 115 S.Ct. at 1017. But even then insistence on advance approval would raise a further question, as before-the-fact condemnation of speech raises special concerns such as undue delay — the review itself plus time needed for a speaker to secure judicial relief — and stifling of expression that in hindsight would have been viewed as harmless or not worth the enforcement effort. See Freedman v. Maryland, 380 U.S. 51, 59, 85 S.Ct. 734, 739, 13 L.Ed.2d 649 (1965) (noting deterrent effect of delay); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559, 95 S.Ct. 1239, 1246-47, 43 L.Ed.2d 448 (1975) (arguing that a requirement of advance approval may shift the de facto border of the permissible).

These possibilities of constitutional infirmity suggest that we should adopt the government’s interpretation if we find it to be consistent with the language of § 628.2. “A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.” United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 659, 60 L.Ed. 1061 (1916); see also Rust v. Sullivan 500 U.S. 173, 191, 111 S.Ct. 1759, 1771, 114 L.Ed.2d 233 (1991) (recognizing the applicability of the canon to regulations as well as statutes). This rule is subject, of course, to the proviso that the interpretation adopted must be a plausible one. Rust, 500 U.S. at 191, 111 S.Ct. at 1771.

While § 628.2 has unambiguous requirements related to the review process (material “shall be submitted” for clearance), it lacks such requirements concerning the publication of unapproved material (e.g., “no employee is permitted to publish any material disapproved by the agency”). Further, as a source of substantive criteria § 628.2 is at best obscure, at worst internally contradictory. While the “purpose” clause of paragraph “b” hones in on the accuracy of information about the employing agency’s “responsibilities,” paragraph “c” is addressed to consistency with current foreign policy and effect on U.S. foreign relations. If one tried to reconcile the two by reading “responsibilities” in paragraph “b” as some sort of shorthand for the policy issues highlighted in paragraph “c,” one would encounter paragraph “a,” which refers to both, presumably on the premise that they are different from each other.

To be sure, the government’s interpretation of the regulation also has significant drawbacks. To begin, it requires that the term “cleared” in § 628.2b be given a different meaning from the term “clearance” in § 628.2c. While “cleared” in § 628.2b means “been through the review process” according to the government, “clearance” in § 628.2c cannot mean only that. For paragraph “c” specifies that “clearance will not be granted” until certain substantive conditions are met, and the only possible meaning of “clearance” in that context is “agency approval.”

Normally, the same word appearing in different portions of a single provision or act is taken to have the same meaning in each appearance. Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 608-09, 76 L.Ed. 1204 (1932). Like all rules of statutory construction, however, this one is defeasible. Identical words may have different meanings where “the subject-matter to which the words refer is not the same in the several places where they are used, or the conditions are different, or the scope of the legislative power exercised in one case is broader than that exercised in another.” Id. In Atlantic Cleaners the Court held that the phrase “trade or commerce” had a different meaning in § 1 of the Sherman Act than in § 3 because of the difference between Congress’s power to regulate interstate commerce (the basis for § 1) and its plenary power to legislate for the District of Columbia (the basis for § 3). Likewise, in Dewsnup v. Timm, 502 U.S. 410, 417-20, 112 S.Ct. 773, 778-80, 116 L.Ed.2d 903 (1992), the Court gave the term “allowed secured claim” a different meaning in two subsections of the same bankruptcy provision, based on a difference in context and a reluctance to infer that Congress had altered a settled rule of pre-Code bankruptcy law. In the case of § 628.2, the uncertainty over the government’s constitutional power to authorize punishment for publication of material disapproved by the agency, together with the obscurities produced by interpreting the regulation to authorize such punishment, provide a basis for adopting differing interpretations of “cleared” and “clearance” in §§ 628.2b and 628.2c.

A further difficulty with the government’s interpretation is the tension between the proposed reading of “cleared” in paragraph “b” and the statement of purpose immediately following the term. A mere requirement to submit to a review process seems to fall considerably short of “substituting the agency’s institutional judgment for the employee’s” on the matters specified in paragraph “b”. The review process does, however, assure that the agency’s judgment can be expressed to the employee. Even if the employee disregards the judgment, she is at least fully on notice. There are, in addition, collateral advantages explored more fully in the constitutional evaluation of § 628.2 as a purely procedural constraint. See pp. 1441-1442 below.

On the positive side, the procedural view of § 628.2 seems the most practical of the possible readings. We have no indication that the review process is in fact a lengthy one, and where review is constrained by publication or engagement deadlines, it seems improbable that the agency would want to place employees in breach of agency rules for publication of material that is, on close study, completely free of statements actually jeopardizing legitimate government interests. So far as appears, an agency may constitutionally discipline employees within the constraints of Pickeñng without any advance statement of criteria, on the basis of its general authority to punish behavior that disrupts its functions. Cf. Waters v. Churchill, — U.S.-, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (public hospital employee discharged for performance deemed unsatisfactory because of statements made). Thus the government’s interpretation does not on its face disable it from penalizing employees for any speech that substantively exceeds what is protected under Pickeñng.

Above all, the procedural interpretation is what the government itself has put forward in this litigation — and what it must adhere to in the future, at least unless it clearly announces an alternative reading. See General Electric Co. v. EPA, 53 F.3d 1324, 1329 (D.C.Cir.1995) (due process requires that an agency give parties “fair notice” of its regulatory interpretations before depriving them of property pursuant to those interpretations); cf. Kale v. Obuchowski, 985 F.2d 360, 361-62 (7th Cir.1993) (describing and applying doctrine of judicial estoppel, according to which a party who prevails in earlier litigation by asserting some proposition may not seek to prevail in a later case by asserting its opposite). But cf. United Mine Workers of Am. 1974 Pension v. Pittston Co., 984 F.2d 469, 477 (D.C.Cir.1993) (noting that this circuit has “not previously embraced” judicial estoppel). Weaver has brought a suit complaining of First Amendment burdens that the government claims simply don’t exist. If the government is willing to disclaim any non-procedural force in § 628.2, we see no reason to insist that it has such force.

It is true that the government’s procedural interpretation of the regulation was advanced only in this litigation, and that VOA had in fact adopted an alternative interpretation in an internal directive. See VOA Directive D-1731A at 6 (Nov. 24, 1986) (stating that employees must obtain “specific advance approval” before publishing material of official concern and that “[ajpproval will not be granted” unless the criteria in § 628.2c are satisfied) (emphasis added). However, neither of the two reasons we have previously identified for cautious treatment of agency positions advanced by counsel in litigation applies here. See FLRA v. Dep’t of Treasury, 884 F.2d 1446, 1455-56 (D.C.Cir.1989).

First, there is no significant concern that judicial reliance on the interpretation of counsel (the United States Attorney) will have a significant lock-in effect on the relevant agencies, sticking them with an interpretation that they had not themselves espoused. See id. at 1455. Any of these agencies — the State Department, USIA, and AID — could easily promulgate an interpretation of § 628.2 different from that offered by counsel (or indeed could promulgate a different rule altogether). Because the regulation governs agency personnel, the controlling agencies may amend or alter their interpretations of it without advance notice and comment rulemaking procedures. See 5 U.S.C. § 553(a)(2). We note, however, that, until such an express interpretation or amendment occurs, the interpretation proposed by counsel will be binding on all of the defendants here — the State Department and USIA as well as VOA. Compare Dissent at 1448 n.8.

The second reason for hesitance about positions advanced in litigation — that they may reflect a short-circuiting of statutory decision processes or may contradict authoritative agency interpretation or practice, see id. at 1455-56; see also Church of Scientology of Cal. v. IRS, 792 F.2d 153, 165 (D.C.Cir.1986) (en banc) (Silberman, J., concurring) — also does not apply. The VOA Directive — -which clearly does not bind USIA apart from its VOA division and thus cannot be said to represent an “agency” view — is not such an authoritative interpretation, and there is no hint in the record that one exists.

So far as the application of § 628.2 is concerned, the record is almost completely barren. According to a 1988 affidavit from the acting director of the staff of VOA’s Office of External Affairs, which administers § 628 for the VOA, there was at that time no instance in the institutional memory of the office (stretching back about five years) in which a VOA employee had refused to make changes requested by the agency. Affidavit of Robert T. Coonrod at 2 (July 8, 1988). Of course, that may only show the regulation’s in terrorem effects — employees may have made changes out of fear of punishment — but it is also fully consistent with agency counsel’s proposed interpretation.

The record does reveal one application of § 628.2, and that instance is in complete conformity with the government’s view of the regulation. Although exhaustion requirements prevent our adjudication of Weaver’s oral admonishment claim, the admonishment is available as evidence of the agency’s behavior under the regulation. The admonishment — of which she was given a written copy — chastises her only for having published her article “without proper clearance procedures” (emphasis added), referring to § 628.2b. It makes no mention of substantive violations, though it seems highly improbable that the agency regards Weaver’s analysis of the playing of Rod Stewart songs, etc., as satisfying all the criteria in § 628.2 that seem to speak to substance — accuracy (in both raw facts and conclusions), and conformity with the VOA’s responsibilities and current U.S. foreign policy.

Accordingly, in light of the constitutional difficulties entailed by reading § 628.2 more broadly than suggested by the government, we adopt its interpretation. We are, quite simply, reluctant to find burdens on speech that the government eschews any intention to impose. Our dissenting colleague would find such burdens (and appears to view our adherence to an interpretation limiting the impact on employees as somehow “fundamentally unfair” to employees), apparently because the regulation as written “chill[s] free speech from employees who have in the past and may in the future reasonably believe [it] requires them to make changes in their manuscripts to gain ‘clearance.’ ” Dissent at 1448 (emphasis in original). We have two responses to this view. First, to the extent it addresses employees who do not learn of judicial decisions involving their First Amendment rights (and thus may perceive § 628.2 to require more than submission to the prepublication review process), the problem would exist even if we found § 628.2 unconstitutional. For even when a regulation is found invalid, the government is not required (so far as we know) to issue a formal retraction of the objectionable provision or a new, cleansed edition of its regulations. Cf. Exec. Order No. 12,836, 58 Fed. Reg. 7045 (1993) (revoking requirement that unionized contractors on federal projects post notices informing workers of their First Amendment rights under Communications Workers of Am. v. Beck, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988)).

Second, the canon favoring construction to avoid constitutional difficulties will generally run the risk that there will be inadequately informed subjects of the regulation, for the interpretation adopted will be generally other than the most obvious one — indeed, may be quite non-obvious. See, e.g., Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 455, 462-63, 466, 109 S.Ct. 2558, 2567, 2570-71, 2572-73, 105 L.Ed.2d 377 (1989) (rejecting “plain-meaning” rule to avoid constitutional difficulties). Yet the Supreme Court has applied the canon in the First Amendment context — indeed, in cases involving employees’ First Amendment rights. See International Ass’n of Machinists v. Street, 367 U.S. 740, 749-50, 81 S.Ct. 1784, 1789-90, 6 L.Ed.2d 1141 (1961). Our application of the constitutional avoidance canon to § 628.2 is unexceptional. Having adopted the government’s proposed interpretation of the regulation, we now proceed to the merits of the First Amendment claim.

B. First Amendment Analysis.

Restraints on the speech of government employees on “matters of public concern” are governed by a balancing test; they are permissible where the government interest in “ ‘promoting the efficiency of the public services it performs through its employees’ ” outweighs the interests of prospective speakers and their audiences in free dissemination of the speakers’ views. NTEU, — U.S. at - - -, 115 S.Ct. at 1012-14 (quoting Pickering, 391 U.S. at 568, 88 S.Ct. at 1735). Where a restraint is accomplished through a generally applicable statute or regulation, as opposed to a particularized disciplinary action, we must also make sure that the regulation’s sweep is “reasonably necessary to protect the efficiency of the public service.” NTEU, — U.S. at -, 115 S.Ct. at 1017.

It is unclear how (if at all) the Pickering balance differs where the regulation of employee speech involves some form of prior restraint, such as the present pre-publication review procedure. The few cases in which the question has arisen concern actual prohibition of speech, not merely pre-publication review, and the test in these eases has not been uniform. In two cases, Snepp v. United States, 444 U.S. 507, 100 S.Ct. 763, 62 L.Ed.2d 704 (1980), and Zook v. Brown, 865 F.2d 887 (7th Cir.1989), the courts essentially applied Pickering. In Snepp the Court considered a provision forbidding publication of CIA-related material by any current or former CIA employee unless the agency determined in advance that the material did not contain any classified information. 444 U.S. at 507-08, 100 S.Ct. at 764-65. The Court seemed to view the provision as obviously constitutional; its brief analysis noted that because Snepp was an employee of the CIA, the agency was entitled to “act[ ] to protect substantial government interests by imposing reasonable restrictions” on his speech. Id. at 509 n. 3, 100 S.Ct. at 766 n. 3 (citing U.S. Civil Service Comm’n v. Letter Carriers, 413 U.S. 548, 565, 93 S.Ct. 2880, 2890, 37 L.Ed.2d 796 (1973)); see Letter Carriers, 413 U.S. at 564-67, 93 S.Ct. at 2890-91 (stating and applying Pickering formulation). Likewise, in Zook, the court emphatically rejected the employee’s attempt to analogize prior restrictions on his speech to the sort of classic prior restraint that under Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931), carries a heavy presumption of constitutional invalidity. 886 F.2d at 890-91. Instead the court applied Pickering balancing and upheld a requirement of prior written approval for commercial endorsements by law enforcement officers. Id. at 891-92.

A second type of test first appeared in the Supreme Court’s decision in Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980), which involved a service member’s challenge to Air Force regulations requiring prior approval for on-base circulation of petitions. The Court seemed to apply a version of the “intermediate scrutiny” test set forth in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); it upheld the regulations, which applied to employees and non-employees alike, on finding that they “protect a substantial Government interest unrelated to the suppression of expression,” and “restrict no more speech than is reasonably necessary to protect the substantial governmental interest.” Brown, 444 U.S. at 354, 355, 100 S.Ct. at 599, 600; see also United States v. Marchetti, 466 F.2d 1309, 1315-17 (4th Cir.1972) (upholding a scheme of prepublication review and bans on CIA employee’s disclosure of classified information on the ground that the government’s interest in secrecy was substantial and the challenged scheme a reasonable means for protecting it). Our decision in McGehee v. Casey, 718 F.2d 1137 (D.C.Cir.1983), involving a challenge to a scheme similar to that in Marchetti, contains strands of both Pickering balancing and the Brown test; we emphasized that McGehee’s status as an employee was “critical to our first amendment analysis” under Pickering and its progeny, and we also invoked and applied the two-part test set out in Brown. Id. at 1141-43. Cf. Alderman v. Philadelphia Hous. Auth., 496 F.2d 164, 168-70, 173-74 (3d Cir.1974) (striking down a temporary ban on all employee speech on specified matters, having used both the language of Pickering and a test derived from non-employment eases, requiring “compelling proof ” that the restriction is “essential to a vital government interest”).

Even Brown itself did not completely ignore the special authority of the government as employer. Responding to the employee’s effort to distinguish Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (upholding restrictions on speech on military bases against challenge by non-military personnel), on the ground that Spock and his associates were “civilians who had no specific right to enter a military base,” the Court answered that the distinction cut the other way. The government, it said, has the authority to “subject its employees to such special restrictions on free expression as are reasonably necessary to promote effective government.” Brown, 444 U.S. at 356 n. 13, 100 S.Ct. at 601 n. 13 (citing Letter Carriers, 413 U.S. at 565, 93 S.Ct. at 2890-91). Thus, while the Court plainly regarded the Air Force regulations as sustainable under an O’Brien-type test, it at least implicitly suggested an alternative mode of analysis — the Pickering balance, with the detriments of prior restraints simply among the factors to be considered. There is certainly no logical reason to think that the existence of some element of prior restraint should remove a restriction on employee speech from the usual Pickering approach. The importance of the employment context — implying a substantially voluntary assumption of special burdens in exchange for special opportunities, as well as the complex and subtle interests peculiar to any employer’s needs in making effective use of its workforce — seems to us to dominate the special concerns about prior restraints. This is especially so because Pickering can readily count those concerns in the course of the balance.

Applying the test of Pickering and NTEU, we find that 3 FAM § 628.2 clearly passes muster. As we have said, the regulation— interpreted narrowly to avoid constitutional difficulties — requires only that employees submit to a process of prepublication review. No speech is forbidden. (The dissent’s statement that the government is claiming a need to exercise “total control over all public speech of its employees in the foreign policy arena,” see Dissent at 1452 (emphasis added), might be true of the regulation as the dissent would construe it, but not of the interpretation adopted by us. Compare Dissent at 1449 (apparently proposing to assess the constitutionality of § 628.2 under the majority’s reading of it).) The primary burden on employees from the regulation is simply the delay associated with submitting to the review process prior to publication. If the prior review were extensive, of course, it might delay constitutionally protected speech to a time when its only relevance was to historians, see, e.g., FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 228, 110 S.Ct. 596, 606, 107 L.Ed.2d 603 (1990), but Weaver has not alleged that the review under § 628.2 is lengthy.

Weaver argues, however, that the review process imposes burdens beyond delay because the government, though lacking the authority to prohibit publication of unapproved material, may informally pressure employees to make the desired changes. But if publication without the change could be punished after the fact under Pickering, then presumably the employee is not made worse off by having advance notice of the government’s view. If, on the other hand, publication of the unaltered material cannot constitutionally be punished, then the employee has nothing to fear by going ahead. The risk that tighter standards will be applied in the advance review process than would actually be applied in penalty proceedings after publication is present only in a fairly dilute form, since non-approval means only that the agency has not welcomed the material into its safe harbor. All in all, then, the delay and discouragement effects here seem a considerably milder deterrent to speech than NTEZPs ban on honoraria or the limitation on reimbursement of expenses in Sanjov,r.

Our dissenting colleague says that the review process is harmful because it “alert[s] the authorities to [an] offensive publication.” Dissent at 1454. But that advance alert is necessary for the legitimate functions of the regulation (discussed below); so far as ability to punish the employee after publication is concerned, agencies seem likely to have many other ways of learning of their employees’ publications on matters of official concern, especially ones that they find objectionable. Our colleague also argues that a reviewing official who has taken a rejeetionist stance in the review process will likely persist, making ultimate punishment (on a basis independent of § 628.2) more probable. Id. at 1454-1455. We think any such increase in probability likely to be modest. Because the review process is not lengthy and takes place without the luxury of full consideration of all relevant factors, see p. 13 above, it is presumably understood as preliminary. Such processes are normally thought not to create a serious risk of prejudice in a later, “final” decision. Cf. Withrow v. Larkin, 421 U.S. 35, 55, 95 S.Ct. 1456, 1468-69, 43 L.Ed.2d 712 (1975) (board’s role as investigator and initiator of license revocation proceeding does not bar it from adjudicating the revocation).

As to the interests supporting the requirement of prepublication review, the government identifies several ways in which it promotes efficiency in the performance of public duties. First, the process permits the government to take corrective action before the unauthorized disclosure of classified information occurs. Affidavit of Deputy Secretary of State George B. High at 1 (July 7, 1988). The Supreme Court has ranked the government’s interest in protecting classified information as a compelling one. Snepp, 444 U.S. at 509 n. 3, 100 S.Ct. at 766 n. 3; see also McGehee, 718 F.2d at 1143. While 3 FAM § 628.2 applies to personnel without direct access to classified information, High’s affidavit points out that even employees without such direct access may inadvertently, and even unknowingly, come into contact with classified information. Cf. Snepp, 444 U.S. at 512, 100 S.Ct. at 766-67 (employee relying on own judgment as to what is harmful to U.S. interests may overlook factors that agency’s broader perspective enables it to identify).

The government also identifies other interests in support of the review requirement— as indeed it must in light of the regulation’s explicit focus on such considerations as the conclusions to be drawn from information and the consistency of the employee’s material with current foreign policy. See 3 FAM § 628.2b & c.⁴ As High’s affidavit says, the review process enables the agency to “take corrective action before publication of statements ... which would insult or embarrass foreign governments or foreign leaders, adversely affecting the United States’ relations with such government or leader,” and to “assure that statements attributed to a [covered] employee do not confuse or mislead ... foreign governments regarding the substance of U.S. foreign policy as articulated by the President and the Secretary of State.” High affidavit at 2. The government’s assertion of these goals is quite consistent with its position that § 628.2 expresses no substantive veto power, for the early warning alone enables the government to contact foreign powers and assuage their concerns about U.S. policy. We do not at all say (nor do we think) that “hyperbole about vague and speculative damage to our foreign interests” can “justify abridgement of our citizens’ freedoms.” Dissent at 1455-1456 (emphasis added). We are concerned here with employees, whose job-related speech may be restrained in ways that would be “plainly unconstitutional if applied to the public at large.” NTEU, — U.S. at -, 115 S.Ct. at 1012. And we do not see quite such a huge gap as is espied by the dissent between the interests of the State Department, USIA and AID in accomplishing their mission efficiently (a legitimate basis for restricting employees’ speech) and the foreign policy interests of the United States. Compare Dissent at 1450-1452.

We now consider whether § 628.2 is “reasonably necessary to protect the efficiency of the public service,” NTEU, — U.S. -, 115 S.Ct. at 1017, an aspect of the Pickering balance addressing the fitness of the restraint to the stated goals. First, the advance nature of the review is at a minimum “reasonably necessary” to protect the government’s interests. As to classified information, advance review is plainly essential to preventing dissemination of the information.⁵ And as to other sensitive material, only review before publication enables the government to take preemptive rather than merely reactive steps in response. Cf. Snepp, 444 U.S. at 513 n. 8, 100 S.Ct. at 767 n. 8.

As to the duration of the review process, we have already noted that Weaver makes no claim of long delays. Of course even a short waiting period might in some cases affect the relevance of information of immediate or pressing interest, but we do not think those who have secured formal roles explicating and advancing U.S. foreign policy — or even those who have found employment in an agency charged with that role — have a transcendent interest in instant publication of statements made on agency-related matters. The delay associated with prepublication review at VOA appears likely to be greatest when perceived problems in the material necessitate consultation with the USIA’s Office of Public Liaison, which in turn may consult appropriate experts. Coonrod Affidavit at 2. That may take more time than would one-stop review, but Weaver offers no reason to think that the overall process would take longer than “reasonably necessary.” In any event, the Coonrod affidavit notes that consultation with the Office of Public Liaison had not been necessary in Coonrod’s tenure at VOA, which the affidavit indicates had been at least two years at the time of the affidavit.

It is true that § 628.2 contains no specific limit on the duration of the review process — a feature that is typically fatal outside the employment context. See FW/PBS, 493 U.S. at 226, 110 S.Ct. at 605 (“[A] prior restraint that fails to place limits on the time within which the decisionmaker must issue the license is impermissible.”) (citing cases).⁶ But as we have seen, courts have uniformly assessed prior restraints in the setting of government employment by standards less demanding than those used for traditional prior restraints. We have found no case holding that a review process — or indeed any form of prior restraint, even one including substantive prohibition of speech — in the context of an employment relationship is constitutionally invalid for want of a specific deadline on action. Thus we reject the idea that prior review in the employment context must proceed under a pre-set time limit.

Finally, there is nothing unreasonable in the application of § 628.2 to all agency employees — even ones without direct access to classified information or sensitive foreign policy developments — because of the risk of unintended leakage of classified or other sensitive information. Indeed, the review process may be particularly important in precisely such cases, as unintended recipients of information are especially likely to have no idea that their material may harbor damaging disclosures. We do not say that the government’s interests absolutely necessitate the precise contours of the review process in the ease of each and every employee “from the secretary pool on up to director,” see Dissent at 1452, but merely that the review scheme restricts no more speech than is “reasonably necessary” to achieve the government’s interests, see NTEU, — U.S. at -, 115 S.Ct. at 1017.

Accordingly, we find the prepublication review scheme valid under Pickering and NTEU. We affirm the dismissal of Counts II and III of Weaver’s complaint on exhaustion grounds and affirm the dismissal of Count I on the merits.

So ordered.

1 . Review of MSPB decisions at the behest of the government is available under 5 U.S.C. § 7703(d) if the Director of the Office of Personnel Management determines that the MSPB "erred in interpreting a civil service law, rule or regulation affecting personnel management” and that the decision will have a "substantial impact on a civil service law, rule, regulation, or policy directive.” When this court had jurisdiction over appeals from MSPB decisions (prior to creation of the Federal Circuit), we entertained OPM petitions for review of MSPB constitutional determinations under the then-current version of § 7703(d), which stated the same conditions for availability of appeal. See, e.g., Devine v. Good-stein, 680 F.2d 243 (D.C.Cir.1982). The Federal Circuit has also entertained such petitions, as reported in unpublished dispositions, see, e.g., King v. Walsh, 1995 WL 470749 (Fed.Cir.1995), but our research has disclosed no reported cases on the issue.

2 . We recognize that separate adjudication of Count I might, through issue and claim preclusion doctrines, affect the viability of Weaver’s quest for relief from the oral admonishment. But Weaver has signalled reasonably clearly that she has no objection to taking such risks. First, her reply brief identifies as the "gravamen” of her case the general challenge to the review requirement, as distinguished from the challenge to the particular personnel action taken against her. Reply Brief at 11. Second, after oral argument the National Treasury Employees Union ("NTEU"), as amicus on Weaver’s side, filed a supplemental brief stating that Weaver was "not really looking for” a "reversal" of the oral admonishment (indeed, as NTEU points out, it is unclear how such a reversal could be accomplished), but rather was seeking a general invalidation of the review scheme. Supplemental Brief of NTEU as Amicus Curiae at 7. This brief, purporting to voice Weaver’s preference, was served on Weaver’s counsel — -who had cooperated with amicus at least to the extent of ceding amicus half his oral argument time — and elicited no response from Weaver.

3 . Section 628 appears in an appendix because revised material that will take its place has not yet been “cleared for issuance.” United States Department of State, Foreign Affairs Manual, Transmittal Letter PER-304 (November 8, 1995). Until that time, § 628 is "the current version in force.” Id. Counsel for the government has informed us that “there has been no indication that the changes [in § 628] are imminent,” and also that "as far as can be determined, the changes contemplated are not major.” Because § 628 remains in force, its constitutionality is not moot.

4 . While the government thus acknowledges that the review scheme is in one sense broader than the provisions upheld in Snepp, McGehee, and Marchetti, it is also in a significant sense narrower than those provisions, which clearly intended substantive application and, in the case of McGehee, were in fact so applied. For this reason, the Marchetti court’s dictum that the restraint there could not be sustained with respect to “information which is unclassified or officially disclosed,” 466 F.2d at 1313, is not pertinent.

5 . Disclosure of classified information is a criminal offense punishable by up to ten years’ imprisonment and a $10,000 fine. 18 U.S.C. § 798. An agency confronted with a recalcitrant employee who refused to eliminate classified information might wish to seek an injunction against publication of the offending section of the employee’s material. Cf. Marchetti, 466 F.2d at 1316-17 (permitting injunction against publication of material determined by the CIA to contain classified information on the ground that criminal sanctions for disclosure might not always deter such behavior and that, in light of the serious harm that would follow from disclosure, "more positive assurance” is warranted).

6 . The record indicates that USIA imposes a 30-day limit on prepublication review, see United States Information Agency, Announcement No. 38, at 2 (Feb. 5, 1988), but does not indicate whether a similar time limit applies to State Department and AID employees.