ROBERT M. GATES, ACTING DIRECTOR OF CENTRAL INTELLIGENCE, PETITIONER v. JOHN DOE No. 86-1294 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit The Solicitor General, on behalf of Robert M. Gates, Acting Director of Central Intelligence, petitons for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. TABLE OF CONTENTS Opinions below Jurisdiction Statutory provisions involved Question presented Statement: A. Background B. The proceedings below Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App. 1a-55a) is reported at 796 F.2d 1508. The opinion of the district court (App. 59a-78a) is reported at 601 F. Supp. 581. JURISDICTION The judgment of the court of appeals (App. 79a-80a) was entered on August 1, 1986. A petition for rehearing was denied on October 9, 1986 (App. 81a). On December 31, 1986, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including February 6, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED 1. Section 102(c) of the National Security Act of 1947, 50 U.S.C. 403(c), provides as follows: Notwithstanding the provisions of section 7501 of title 5, or the provisions of any other law, the Director of Central Intelligence may, in his discretion, terminate the employment of any officer or employee of the Agency whenever he shall deem such termination necessary or advisable in the interests of the United States, but such termination shall not affect the right of such officer or employee to seek or accept employment in any other department or agency of the Government if declared eligible for such employment by the Director of the Office of Personnel Management. 2. The Administrative Procedure Act, 5 U.S.C. 701, provides, in pertinent part, as follows: (a) This chapter applies, according to the provisions thereof, except to the extent that -- (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law. QUESTION PRESENTED Whether the decision of the Director of Central Intelligence to discharge an officer or employee of the Central Intelligence Agency pursuant to the Director's authority under Section 102(c) of the National Security Act of 1947, 50 U.S.C. 403(c), is judicially reviewable under the Administrative Procedure Act, 5 U.S.C. (& Supp. III) 701-706. STATEMENT A. Background This case stems from a decision by the Director of Central Intelligence to discharge an employee, respondent John Doe, /1/ after his nine-year career with the Central Intelligency Agency (CIA or Agency). /2/ Respondent began work as a clerk-typist, but he was eventually promoted, after training, to a covert position as an electronics technician. Periodic fitness reports consistently rated respondent as an excellent or an outstanding employee, and the CIA had not expressed dissatisfaction with respondent's work or loyalty. App. 3a. On January 28, 1982, respondent voluntarily informed an Agency security officer that he was a homosexual. As a result, the CIA placed respondent on paid administrative leave beginning on February 2, 1982, pending an investigation. On February 12 and 17, respondent was interviewed at length by a polygraph officer about his homosexuality and his risk to security. The officer later informed respondent that his test responses were truthful, including his statement that he had not had sexual relations with foreign nationals and that he had not disclosed classified information to any sexual partners. App. 3a-4a. The polygraph officer prepared a factual report based on the interviews. Respondent was allowed to review the report, and he prepared a supplement. On April 14, a CIA security officer informed respondent that the Agency's Office of Security had determined that the circumstances of his homosexuality posed a security threat, but refused to elaborate. Respondent maintained that he had received conflicting explanations about the Agency's policy towards homosexuals. Two security officers had told respondent that his homosexual activities violated Agency regulations, but the CIA then-Deputy General Counsel told respondent's attorney that homosexuality was a security concern that did not inevitably result in dismissal. Rather, according to the then-Deputy General Counsel, the Agency considered this a security concern that would be evaluated on a case-by-case basis. App. 4a. On April 14, respondent was asked to resign, but he refused. The Officer of Security ultimately recommended to the Director that respondent be dismissed. Respondent's counsel submitted a letter requesting that respondent be retained, but respondent's attorney later received a letter from the then-Deputy General Counsel stating that the Director had reviewed respondent's case and concluded that it was "'necessary and advisable in the interests of the United States'" to dismiss respondent from the Agency (App. 5a(quoting C.A. App. 31)). Respondent was told that the agency would give a positive recommendation to any prospective employer. Respondent was also informed that if he applied for a job requiring a security clearance, the Agency would inform the prospective employer that he had been dismissed because his homosexuality posed a security threat. A member of the General Counsel's staff also informed respondent that he was required to inform the Agency if he applied for a job requiring a security clearance. App. 5a-6a. B. The Proceedings Below 1. Respondent brought suit against petitioner in the United States District Court for the District of Columbia. Respondent alleged that the CIA had dismissed him because of his homosexuality and that his discharge violated the First, Fourth, Fifth, and Ninth Amendments; the Administrative Procedure Act (APA), 5 U.S.C. (Supp. III) 702; 28 U.S.C. 1361; and Section 102(c) of the National Security Act of 1947, 50 U.S.C. 403(c) (C.A. App. 46). Respondent sought a declaratory judgment that his dismissal was unlawful and an injunction requiring the CIA to reinstate him to his former position (id. at 54). In the alternative, he sought reinstatement to administrative leave, reconsideration of his security suitability for employment with the Agency, and a variety of procedural rights, such as a statement of the reasons for any future dismissal and an opportunity to contest any adverse final determination (ibid.). Respondent filed a motion for summary judgment, which the district court granted in part (App. 59a-78a). The court ruled that respondent had been unlawfully discharged, because the CIA did not follow its own regulations in dismissing him (id. at 70a-74a). The court also denied petitioner's motion to dismiss respondent's complaint on the ground that Section 102(c) of the National Security Act of 1947, 50 U.S.C. 403(c), precluded judicial review of petitioner's decision under the APA, 5 U.S.C. (& Supp. III) 701-706 (App. 74a-77a). The court did not address respondent's substantive constitutuional claims, given its ruling in his favor on procedural grounds (id. at 77a). 2. a. By a divided vote, the court of appeals vacated the district court's judgment and remanded the case for further proceedings (App. 1a-33a). At the outset, the court ruled that Section 102(c) of the National Security Act of 1947 did not "preclude judicial review" under Section 10(a)(1) of the APA, recodified as 5 U.S.C. 701(a)(1), of the Director's decision to dismiss an employee (App. 9a-14a). It found that nothing in the text or legislative history of Section 102(c) expressly precludes judicial review, and noted "most importantly" that Section 102(c) provides a standard governing the Director's decision and the courts' review -- i.e., whether dismissal is "necessary or advisable in the interests of the United States" (App. 12a). The court found that no statutory "framework" or "scheme" would be disrupted by judicial review of the Director's decision to dismiss a CIA employee (ibid.), and concluded that, while Congress had intended to impose a different and more relaxed standard of review than the one governing most federal employees, /3/ Congress did not intend to bar review altogether (id. at 13a). The court also held that Section 102(c) did not "commi(t) to agency discretion" under Section 10 (a)(2) of the APA, recodified as 5 U.S.C. 701(a)(2), the decision whether to dismiss a CIA employee (App. 15a-19a). The court explained that the statutory standard did not offer "absolutely no guidance" as to how the Director may exercise his discretion, and undoubtedly prohibited discharge for an invalid reason, such as race or hair color (id. at 16a). In addition, the court ruled that, while the courts could not second guess the wisdom of the Director's decisions, the courts could and must "satisfy (themselves)" that the Director's decisions bear "some relationship to the interests of the United States" to ensure that the Director did not base his decision on an impermissible factor (id. at 17a (emphasis in original)). The court then turned to the merits of respondent's claims. It first determined that the Agency did not violate its regulations in dismissing respondent (App. 19a-23a). The court then held, noting that the language of Section 102(c) left "the decision to terminate largely to the expertise and judgment of the Director" (App. 24a), that its review should be under an arbitrary and capricious standard. Looking to the actions taken in this case (id. at 23a-32a), the court stated that there were three possible explanations for the Director's decision: First, the Director may have intended to invoke Section 102(c) without giving any reasons at all for discharging respondent. Second, the Director may have intended to discharge respondent as part of a ban against the employment of all homosexuals. And third, the Director may have discharged respondent because his homosexuality presented a security risk (App. 25a). While the court found two of these explanations did not justify further judicial review, /4/ it found that the second possible explanation -- that respondent was discharged because of a CIA policy barring the employment of all homosexuals -- would give rise to an arguable claim that respondent's discharge was unlawful (id. at 27a). /5/ The court did not decide which scenario had in fact occurred, however, but instead remanded the case to the district court for further proceedings (id. at 32a). /6/ b. Judge Buckley dissented from the majority's ruling that the Director's decision to dismiss a CIA remployee was subject to review under the APA (App. 34a-55a). /7/ Looking to both the language and the legislative history, he found a clear intention to preclude review under Section 10(a)(1) of the APA (App. 35a-45a). When Section 102(c) was enacted, federal personnel actions were not subject to judicial review (App. 39a-40a). Accordingly, the fact that Section 102(c) imposed a different substantive standard for removal (substituting the language "necessary or advisable in the interests of the United States" for "such cause as will promote the efficiency of (the) service") did not suggest that Congress contemplated judical review of the Director's decisions (App. 40a). This was particularly true. Judge Buckley explained, since the opening clause of Section 102(c) -- "(n)otwithstanding the provisions of (the Lloyd-LaFollette Act), or the provision of any other law" -- also deprived CIA employees of all procedural protections in the administrative process (such as notice of the charges and an opportunity to respond) that were available to other federal employees (App. 40a-41a). Accordingly, Congress could not have intended to allow CIA employees to obtain through judicial review procedures they were denied in the administrative process (id. at 41a). Judge Buckley further pointed out (App. 41a-43a) that the majority misread the statute as imposing an objective requirement applicable by a court, when, in fact, it authorized action "whenever (the Director of Central Intelligenc) shall deem such termination necessary or advisable in the interests of the United States" (emphasis added). Thus, properly construed, Section 102(c) requires only that the Director be satisfied as to the necessity or advisability of the action. In addition, Judge Buckley found that the statutory objectives of Section 102(c) and the nature of the administrative action involved strongly militated in favor of precluding judicial review (App. 43a-46a). Congress's obvious purpose in exempting the Director of the CIA from normal civil service requirements, he concluded, was to allow him "unimpeded" control over personnel as a "natural and necessary function of the extraordinary sensitivity that surrounds every aspect of our national security operations" (id. at 43a-44a). For similar reasons, Judge Buckley found that Section 102(c) committed to the Director's discretion under 5 U.S.C. 701(a)(2) the decision whether to dismiss a CIA officer or employee (App. 46a-52a). "One obvious purpose" of Section 102(c) "is to allow the Director to act upon unsubstantiated impressions 'when he shall deem' it in the national interest to do so" (App. 47a). That judgment, Judge Buckley concluded, was one that the courts are ill-equipped to second guess. Finally, Judge Buckley also took issue (App. 52a-54a) with the suggestion that the Director's judgment would be subject to scrutiny for arguable constitutional violations, because judicial review even in those circumstances might undercut the Director's ability to carry out his sensitive duties according to his fuller knowledge of the "'harsh realities of the present day'" (id. at 53a, quoting CIA v. Sims, 471 US. 159, 174 (1985)). The only role for a court, he said, was to determine whether the Director acted within the bounds of his statutory authority, and the Director's statement that he "'determined that the termination of Mr. Doe's employment was necessary and advisable in the interests of the United States'" satisfied that requirement (App. 54a-55a). c. The court of appeals rejected the Director's suggestion for rehearing en banc by a 5-5 vote. Judges Bork, Starr, Silberman, Buckley, and Williams would have reheard the case en banc (App. 83a). REASONS FOR GRANTING THE PETITION This case presents a question of exceptional public importance regarding the ability of the Director of Central Intelligence to maintain the confidentiality of the Agency's personnel policies and actions. Crucial to the effective operation of any intelligence agency is the ability to protect the secrecy and integrity of the intelligence process, including the reasons for the dismissal of officers or employees in positions of unique trust and confidence whose continued employment its director believes to be detrimental to the security interests he is responsible for safeguarding. As this Court acknowledged in CIA v. Sims, 471 (U.S. 159, 170 (1985), without such protection a service like the CIA "would be virtually impotent." For that reason, Congress gave the Director "broad power to protect the secrecy and integrity of the intelligence process" (ibid.) by granting him the authority under Section 102(d)(3) of the National Security Act of 1947, 50 U.S.C. 403(d)(3), to "protect() intelligence sources and methods from unauthorized disclosure." The question here involves a subject inseparably linked to the one at issue in Sims. The ability to decide what officers and employees of the CIA may have access to confidential information is an essential facet of the ability to protect intelligence sources and methods from unauthorized disclosure. To ensure that the Director could make such personnel decisions without divulging the Agency's decisionmaking processes or policies and other types of confidential or sensitive information in adversary proceedings, Congress enacted Section 102(c) of the National Security Act of 1947, 50 U.S.C. 403(c). That provision vested in the Director the authority to dismiss summarily an officer or employee of the CIA and excepted removal decisions from judicial review under the APA. Section 102(c) of the National Security Act of 1947, like Section 102(d)(3), was therefore intended to enable the Director to preserve the confidentiality and integrity of the CIA's intelligence functions. The court of appeals' ruling that the Director's decisions may nonetheless be reviewed under the APA will subvert Congress's statutory scheme. By opening up to judicial (and therefore public) scrutiny /8/ the reasons why an officer or employee must be discharged, the court of appeals' ruling will seriously undermine the Director's ability to safeguard intelligence sources, methods, and personnel from unauthorized revelation. In causing the disclosure of internal decisionmaking processes and policies that the Director has been entrusted by Congress to keep confidential, the decision below will also seriously hamper the CIA's ability to perform its statutory responsibility to "shepherd and analyze a 'mass of information' in order to safeguard national security in the postwar world." Sims, 471 U.S. at 170. Review by this Court is therefore clearly warranted. 1. The question whether Section 102(c) precludes judicial review under the APA is entirely a matter of statutory construction. /9/ That question must be resolved by looking to "its express language, the structure of the statutory scheme, ihs objectives, its legislative history, and the nature of the administrative action invoked." Block v. Community Nutrition Institute, 467 U.S. 340, 345 (1984); see also Bowen v. Michigan Academy of Family Physicians, No. 85-225 (June 9, 1986), slip op. 5; Lindahl v. OPM, 470 U.S. 768, 779 (1985); Morris v. Gressette, 432 U.S. 491, 501 (1977). Here, those factors strongly militate in favor of the conclusion that the Director has the unreviewable authority to discharge an officer or employee of the CIA. a. The text of Section 102(c) itself shows that the Director's decisions are unreviewable. In sweeping terms, that provision expressly invests the Director with "discretion" to dismiss "any" officer or employee "whenever he shall deem such termination necessary or advisable in the interests of the United States." The scope of that provision shows that the Director's authority to remove an officer or employee of the CIA is plenary. See Ludecke v. Watkins, 335 U.S. 160, 165 (1948); Brown v. Lane, 232 U.S. 598, 601 (1914); Service v. Dulles, 235 F.2d 215, 218 (D.C. Cir. 1956), rev'd on other grounds, 354 U.S. 363 (1957). /10/ That authority is stated as an explicit exception to "the provisions of" the Lloyd-LaFollette Act, 5 U.S.C. (1940 ed.) 652 (subsequently replaced by the Civil Service Reform Act of 1978, 5 U.S.C. 7501 et seq.), the then-existing version of the federal civil service laws, "or the provisions of any other law." At the time that Section 102(c) was adopted, it was firmly settled that a discharged federal employee could not obtain judicial review of his removal unless a statute expressly provided for review. /11/ The Lloyd-LaFollette Act was the primary statute protecting federal employees, /12/ and it offered certain protections, including removal only "for such cause as will promote the efficiency of (the) service" (5 U.S.C. (1940 ed.)652), and the rights to a written statement of reasons for removal, notice and a copy of any charges, and an opportunity to examine witnesses at a hearing within the discretion of the removal officer. Section 102(c) made clear that the Director's authority to dismiss a CIA employee was not limited by the Lloyd-LaFollette Act, and thus denied Agency employees the limited rights available to other federal employees in the administrative process. Congress therefore could not have intended to allow CIA employees to obtain those rights through judicial review of the Director's decisions. When read as a whole (see Philbrook v. Glodgett, 421 U.S. 707, 713 (1975)), Section 102(c) emphatically shows that Congress intended to "preclud(e) judicial review" of the Director's decision to dismiss an officer or employee of the CIA. b. While the legislative history of the National Security Act of 1947, does not specifically address the meaning of Section 102(c), /13/ the structure of the statutory scheme, its objectives, and the nature of the agency action involved (Block v. Community Nutrition Institute, 467 U.S. at 349) offer a "'persuasive reason to believe'" (Morris v. Gressette, 432 U.S. at 501, quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967)) that Congress intended to preclude judicial review of the Director's decisions. The National Security Act of 1947 was adopted shortly after World War II to remedy shortcomings in American intelligence before Pearl Harbor and during the war. See, e.g., S. Rep. 239, 80th Cong., 1st Sess. 2 (1947): H.R. Rep. 961, 80th Cong., 1st Sess. 3-4 (1947); CIA v. Sims, 471 U.S. 159, 170 (1985). In creating the CIA, Congress was acutely aware of the importance of secrecy to the ability to undertake intelligence activities. /14/ To ensure that the Agency could maintain the secrecy of the intelligence it acquired, Congress vested in the Director the responsibility "for protecting intelligence sources and methods from unauthorized disclosure" (50 U.S.C. 403(d)(3), which gave the Director "broad power to protect the secrecy and integrity of the intelligence process" (Sims, 471 U.S. at 170). Shortly thereafter, in the Central Intelligence Agency Act of 1949, ch. 227, Section 7, 63 Stat. 211, Congress exempted the CIA from any federal law requiring the publication of "the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency" (50 U.S.C. 403g), in order to protect what Congress knew to be "the confidential nature of the Agency's functions" (H.R. Rep. 160, 81st Cong., 1st Sess. 7 (1949); see S. Rep. 106, 81st Cong., 1st Sess. 7 (1949)). Without protection for the secrecy and integrity of the intelligence process, as this Court recognized in CIA v. Sims, 471 U.S. at 170, the CIA "would be virtually impotent." Its officers and employees have access to classified information, the identities of other personnel in the CIA or in the intelligence services of friendly nations and American citizens or foreign nationals willing to share information with the Agency, the methods used to gather intelligence, and specific intelligence operations. The unauthorized disclosure of this information, innocently or otherwise, can not cause severe, irreparable injury to the CIA's ability to perform its statutory duties and to other countries whose interests are allied with ours, but also can imperil the persons who perform the Agency's functions. See Sims, 471 U.S. at 171-172; Haig v. Agee, 453 U.S. 280, 283-286 & nn.1-7, 308 & n.59 (1981); Snepp v. United States, 444 U.S. 507, 512-513 & nn.7-8 (1980). To prevent those harms and to allow the CIA to function effectively, Congress gave the Director authority in 50 U.S.C. 403(d)(3) and 403g, to maintain the confidentiality of the Agency's intelligence-gathering operations. Section 102(c) must be read aginst that background. At bottom, it permits the Director to make personnel decisions that enable the CIA to protect intelligence sources and methods. /15/ Congress's intent was to grant the Director plenary authority to make personnel decisions in a manner consistent with the Agency's mission "to shepherd and analyze a 'mass of information' * * * to safeguard national security in the postwar world" (Sims, 471 U.S. at 170). For "reasons * * * too obvious to call for enlarged discussion" (ibid.), the ability to determine who shall have access to classified intelligence by virtue of employment with the CIA is an essential component of the responsibility to protect intelligence sources and methods. Other statutes grant the Secretary of Defense similar authority summarily to discharge an officer or employee of the National Security Agency, 50 U.S.C. 833(a), /16/ and the Defense Intelligence Agency, 10 U.S.C. (Supp. III) 1604 (e)(1). /17/ Congress granted the Secretary that authority to enable him to regulate employees' access to sensitive information. /18/ In so doing, Congress relied on the similar authority granted to the Director of Central Intelligence by Section 102(c) of the National Security Act of 1947. /19/ Accordingly, Section 102(c) should be construed in a manner consistent with the structure of the "statutory scheme" and objectives of these closely related provisions (Block v. Community Nutrition Institute, 467 U.S. at 345). Achievement of these clear statutory objectives is imperiled by the majority decision below that, once an employee offers "a basis for suspicion that (he was) terminated * * * for an impermissible reason" (App. 26a), a court must "satisfy (itself) that the termination has some relationship to the interests of the United States" (id. at 17a (emphasis in original)). Such questions cannot be resolved without the disclosure of sensitive information that Congress did not want publicly revealed. Cf. Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139, 146-147 (1981) (quoting Totten v. United States 92 U.S. 105, 107 (1875)) ("we have held that 'public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated'"). It may require discussion of aspects of the employee's performance which are themselves matters of security concern. Finally, disclosure of the CIA's personnel practices themselves may allow our adversaries to defeat intelligence gathering operations by infiltration or other means. 2. The majority below also erred in ruling (App. 16a-19a) that the Director's decision to discharge a CIA officer or employee was not "committed to agency discretion by law" under the APA by Section 102(c) of the National Security Act of 1947. The language of Section 102(c) in this regard could not be clearer. It authorized the Director "in his discretion" to dismiss any officer or employee "whenever he shall deem such termination necessary or advisable in the interests of the United States" (emphasis added). The most natural reading of that provision is that the Director has the absolute discretion to decide whether an employee should be retained or dismissed. Se Ludecke v. Watkins, 335 U.S. at 165; Brown v. Lane, 232 U.S. at 601; Service v. Dulles, 235 F.2d at 218; compare Falkowski v. EEOC, 764 F.2d 907, 911 (D.C. Cir. 1985), cert. denied, No. 85-1894 (June 30, 1986) (Attorney General has unreviewable discretion to decide whether to provide counsel to government employees in private litigation pursuant to his authority to attend to "the interests of the United States" under 28 U.S.C. (Supp. III) 517. Section 102(c) of the National Security Act of 1947 therefore fits squarely within the APA exception for agency action committed to agency discretion by law. The reasons given in Sims why the courts -- with "little or no background in the delicate business of intelligence gathering" (471 U.S. at 176) -- are ill-equipped to review the Director's judgments whether to reveal intelligence sources and methods are equally applicable here. See ibid. ("a court's decision whether an intelligence source will be harmed if his identity is revealed will often require complex political, historical, and psychological judgments"); cf. Heckler v. Chaney, 470 U.S. 821, 831-832 (1985). Moreover, fully to understand the Director's decisions would require a court to "be familiar with 'the whole picture'" (Sims, 471 U.S. at 179), and disclosure of the necessary information would compromise the very interests that 50 U.S.C. 403(d)(3) and 403g were adopted to protect. Accordingly, as Judge Buckley summarized (App. 47a (emphasis in originial)), "the operative requirement (in Section 102(c)) is that Director believe that the termination safeguards the interests of the United States and not (as the majority suggests) that it do so in fact." 3. The court of appeals was troubled by the prospect of adopting a construction of Section 102(c) of the National Security Act of 1947 that would foreclose judicial review under the APA of respondent's constitutional claims (App. 14a n.27, 16a-17a & n.33, 18a & n.35, 24a; id. at 33a (Ginsburg, J., concurring)). This court has often noted that a serious constitutional question would be presented by a statute that barred a party from asserting a constitutional challenge to governmental action. For that reason, when possible the Court has construed a statute in a manner that does not foreclose a party from raising a constitutional claim. E.g., Bowen v. Michigan Academy of Family Physicians, slip op. 14 n.12; Johnson v. Robison, 415 U.S. 361, 366-367 (1974). At the same time, the Court has also made clear that a statute may not be interpreted in a manner tantamount to judicial amendment simply to avoid confronting a constitutional question. A constitutional issue can be avoided only when it is "fairly possible" to interpret a statute in another manner. E.g., CFTC v. Schor, No. 85-621 (July 7, 1986), slip op. 6; Heckler v. Mathews, 465 U.S. 728, 742-743 (1984); Crowell v. Benson, 285 U.S. 22, 62 (1932). Such an interpretation is not possible here. The text of Section 102(c), which was adopted a year after the enactment of the APA, does not distinguish between constitutional and nonconstitutional claims. The purpose of Section 102(c) is also indifferent to the various types of claims that can be presented. Disclosure of the facts and rationale underlying the Director's actions will damage the CIA's intelligence functions regardless of the ground on which the Director's decision is challenged. Section 102(c) therefore cannot fairly be construed as being limited to nonconstitutional challenges to the Director's exercise of his authority. So read, Section 102(c) is a constitutional exercise of Congress's authority to protect the nation's security. The government has a surpassing interest in protecting from public disclosure the Director's personnel decisions, which necessarily relate to the national security. As the Court explained in Haig v. Agee, 453 U.S. at 307, "(i)t is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation," and "(m)easures to protect the secrecy of our Government's foreign intelligence operations plainly serve these interests." See also Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964); Cole v. Young, 351 U.S. 536, 546 (1956). The Court has also acknowledged, with particular reference to the CIA, that "(t)he Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service." Snepp, 444 U.S. at 509 n.3; see also Sims, 471 U.S. at 175; Agee, 453 U.S. at 307; compare Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948). Given "the harsh realities of the present day" (Sims, 471 U.S. at 174) Congress's authority to protect the CIA's intelligence functions is at its apogee. To achieve that goal, Congress may invoke its broad power to define and regulate the jurisdiction of the lower federal courts. /20/ Section 102(c) is also narrowly limited to employment voluntarily undertaken with the CIA. Its last clause states that dismissal from the CIA does not itself bar a former employee from obtaining other federal employment. See 10 U.S.C. (Supp. III) 1604 (e)(2); 50 U.S.C. 833(b) (to the same effect). Cf. Snepp, 444 U.S. at 509 n.3 (requiring Agency employees to submit to prepublication review was "an 'entirely appropriate' exercise of the CIA Director's statutory mandate" to protect intelligence sources and methods). Given these considerations, Section 102(c) may validly be applied to foreclose judicial review of even constitutional claims under the APA. /21/ 4. As Judge Buckley explained (App. 41a-43a, 54a-55a), the majority opinion below cannot be reconciled with several earlier decisions of the District of Columbia Circuit. In Service v. Dulles, involving a virtually identical grant of authority to the Secretary of State, /22/ the court ruled that the judicial "'function is limited to determining whether any procedural requirement of the statute was violated in (an employee's) discharge'" (235 F.2d at 218). Once a court concluded, however, that the Secretary had met the "'one procedural requirement'" imposed by the statute -- i.e., that the Secretary determine that it was "in the interests of the United States" to dismiss an employee -- judicial review came to an end (ibid.). /23/ The majority opinion in this case made no attempt to square its holding with the decision in Service. See also Scher v. Weeks, 231 F.2d 494 (D.C. Cir.), cert. denied, 351 U.S. 973 (1956) (concluding that Section 304 of the Act of July 10, 1952, ch. 65, 66 Stat. 567, which authorized the Secretary of Commerce to dismiss an employee "whenever he shall deem such termination necessary or advisable in the best interests of the United States," was satisfied and was constitutional). Similarly, in Torpats v. McCone, 300 F.2d 914 (D.C. Cir.), cert. denied, 371 U.S. 886 (1962), which also involved Section 102(c) of the National Security Act of 1947, plaintiff alleged that the Director's decision exceeded his statutory authority. The court did not require the Director to explain why he deemed it "in the interests of the United States" to discharge the employee and simply concluded that the Director had acted within his statutory authority (300 F.2d at 915). /24/ The opinion of the court below is also inconsistent with decisions of the Court of Claims, which have been adopted as precedent by the Federal Circuit. /25/ See Baker v. United States, 224 Ct. Cl. 760 (1980), cert. denied, 450 U.S. 1040 (1981). In Baker, several CIA employees were discharged as part of a reduction in force under a regulation implementing Section 102(c). They brought suit alleging, inter alia, dismissal for reasons other than "the interests of the United States" and contrary to the Verterans' Preference Act of 1944, 5 U.S.C. 3502. The Court of Claims held that they had failed to state a claim because Section 102(c) "'gave the Director of the Central Intelligence Agency the absolute right to terminate any employee whenever he deemed it necessary or advisable.'" 224 Ct. Cl. at 762 (quoting Rhodes v. United States, 156 Ct. Cl. 31, 36, cert. denied, 371 U.S. 821 (1962) (holding that a former CIA employee could not challenge his dismissal on the ground that it violated the Verterans' Preference Act of 1944)). /26/ This conflict between the court below and Federal Circuit precedent has important practical consequences. Former CIA employees seeking monetary relief, such as back pay, must litigate their claims in the Federal Circuit. /27/ By contrast, CIA employees, like respondent, /28/ seeking non-monetary relief, such as reinstatement, may litigate their claims in the District of Columbia Circuit. Accordingly, review by this Court is necessary to resolve this conflict of particular significance. 5. As Congress has indicated by relying on the "precedent" of Section 102(c) of the National Security Act of 1947 to adopt similar statutes for the National Security Agency and the Defense Intelligence Agency, the Director of Central Intelligence must have the authority to act swiftly to dismiss from the CIA officers or employees whom the Director determines should no longer be privy to the confidential information that the Director is sworn to protect. The Director cannot be required to disregard the reality that some employees may be susceptible to blackmail or to other forms of influence or control by unfriendly foreign governments, or that the disclosure of the reasons underlying his decisions can have serious and irreparable repercussions for our intelligence services. Moreover, review by this Court is needed at the present time because the court of appeals' decision "would force the Director now or in the future to risk the public airing of agency policies and concerns as well as the particular information upon which a specific termination decision is based" (App. 50a (Buckley, J., dissenting)). Indeed, the ill effects of the court of appeals' ruling will be felt both immediately and recurrently. The immediate effect will be an inappropriate and seriously intrusive inquiry into the CIA's employment policies and practices. The decision whether to disclose that information, however, is precisely the type of matter that Congress has left to the Director. Indeed, in a particular case the Director may need to create the impression that his decision rested solely on one factor (such as inefficiency) to avoid publicizing the far more sensitive basis for an employee's dismissal (such as a breach of security). The court of appeals' decision also creates the risk that the Director will be forced to reveal confidential information in future cases once "a plaintiff offers a basis for suspicion that the Director terminated (his) employment for an impermissible reason" (App. 26a). By holding that the Director's decisions may be reviewed under the APA, the court of appeals has created the risk that our intelligence process will be seriously damaged in this or in future cases. Review by this Court at this time is clearly warranted. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General DONALD B. Ayer Deputy Solicitor General PAUL J. JARKIN, JR. Assistant to the Solicitor General BARBARA L. HERWIG BARBARA C. BIDDLE Attorneys DAVID P. DOHERTY General Counsel R. BRUCE BURKE Associate General Counsel Central Intelligence Agency FEBRUARY 1987 /1/ Respondent has at all times proceeded under a pseudonym because his status as a CIA employee cannot be publicly acknowledged. /2/ The facts are discussed in the opinions of the courts below. At this stage of the case, the facts are undisputed. The Agency did not contest respondent's factual assertions. Instead, the Agency stated only that respondent's assertions were not material insofar as they were inconsistent with the Agency's own statement of material facts not in dispute (C.A. App. 42). /3/ The court noted the reference in Section 102(c) to the more rigorous statutory provisions allowing termination of most federal employees "only for such cause as will promote the efficiency of the service" (5 U.S.C. 7513(a)) (App. 13a). /4/ Although the court found it "unlikely" that respondent was discharged for reasons having nothing to do with his homosexuality (App. 25a), it ruled that, if the district court found that to be true and "the Director intended to invoke section 102(c) without reasons in this case," respondent could not challenge the Director's decision to dismiss him (App. 26a). The court stated further that if the district court found respondent to have been dismissed because his homosexuality posed a security risk, respondent would have an arguable claim that the Agency had unlawfully deprived him of a liberty interest in past or future employment by damaging his reputation. Such action would require that he receive an opportunity "to refute the charges and 'clear his name'" (App. 31a (footnote omitted)). In that event, however, respondent's claims would also fail, because the Agency had provided him with a meaningful opportunity to contest any allegation that his homosexuality posed a security risk (id. at 31a-32a). /5/ If the district court found that to be true, the court explained, respondent would have an "arguable" constitutional claim, because Bowers v. Hardwick, No. 85-140 (June 30, 1986), and Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984), did not address discrimination on the basis of homosexual orientation, rather than homosexual conduct (App. 27a (emphasis in original)). In any event, the Director would have to justify why such a policy was "'necessary or advisable in the interests of the United States'" (ibid.). /6/ Judge Ginburg joined the majority opinion but also wrote a brief separate concurrence (App. 33a). /7/ Judge Buckley concurred in the majority's rulings that the CIA did not violate its own regulations in discharging respondent and that respondent had not been deprived of a liberty interest without due process (App. 34a). /8/ It is unclear from the decision of the court of appeals how frequently the Director's decisions are likely to be subject to judicial re-evaluation. By its own terms, though, the decision allows such review at least when the plaintiff brings forth some "concrete evidence" that his termination raises an "arguable infringement of constitutional rights" or "the possibility that the Director has acted in excess of statutory authority," that is, other than as 'necessary or advisable in the interests of the United States" (App. 24a, 26a (emphasis in original)). /9/ In his amended complaint, respondent also sought relief under 28 U.S.C. 1361 and alleged jurisdiction under 28 U.S.C. 1331 (C.A. App. 46). Although we believe that neither statute provides a basis for judicial review of the Director's decision to dismiss a CIA employee, neither the district court nor the court of appeals addressed these provisions. /10/ In Udecke v. Watkins, the President promulgated a regulation pursuant to his authority under the Alien Enemies Act of 1798, ch. 58, 1 Stat. 570 et seq., directing the removal from the United States of all alien enemies "'who shall be deemed by the Attorney General to be dangerous to the public peace and safety of the United States.'" 335 U.S. at 163 (citation omitted). The Court explained that "removal was contingent not upon a finding that in fact an alien was Dangerous,'" because (t)he President was careful to call for the removal of aliens deemed by the Attorney General to be dangerous.'" Id. at 165. In Brown v. Lane, a statute authorized the Secretary of the Interior to remove from an Indian tribal council "'any member or members thereof for good cause, to be by him determined.'" 232 U.S. at 599 (citation omitted). This court concluded that the statute "plainly vested the Secretary of the Interior with the power and discretion to remove" a person from the council without the need to offer notice or a hearing. Id. at 601. Service v. Dulles involved a statute virtually identical to Section 102(c). The court of appeals held that it granted the Secretary of State complete discretion to remove a State Department employee once the Secretary concluded that removal was in the interests of the United States. 235 F.2d at 218. See page 25 & note 22, infra. /11/ E.g., Keim v. United States, 177 U.S. 290, 293-294 (1900) (review unavailable in an action for damages); White v. Berry, 171 U.S. 366, 377-378 (1898) (review unavailable in an action for reinstatement); see United States v. Testan, 424 U.S. 392, 406 (1976); Sampson v. Murray, 415 U.S. 61, 69-71 (1974); see generally In re Hennen, 38 U.S. (13 Pet.) 230, 259-260) (1839). /12/ The Veterans' Preference Act of 1944, 5 U.S.C. (1946 ed.) 863, protected veterans in federal employment by extending the Lloyd-LaFollett Act's substantive and procedural protections in several different ways. See Bush v. Lucas, 462 U.S. 367, 385 n.25 (1983). The Director's authority would not have been limited by that statute, however, because Section 102(c) of the National Security Act of 1947 excepted "the provisions of any other law" in addition to the Lloyd-LaFollette Act. /13/ In 1983, however, as part of an intelligence appropriations act Congress authorized the Director to set minimum and maximum age limits for an original appointment to an operational position within the Agency. 50 U.S.C (Supp. III) 403f(f). In so doing, Congress stated that the language in that amendment "is similar to the language conferring special termination authority upon the Director under subsection 102(c) of the National Security Act of 1947 (50 U.S.C. 403(c)). The courts have uniformly held that such language confers upon the Director authority to be exercised in his exclusive discretion, and that the exercise of such authority is not subject to review, judicially or otherwise." S. Rep. 98-77, 98th Cong., 1st Sess. 6-7 (1983). /14/ The Committees of both Houses went into executive session to consider the proposed legislation. Sims, 471 U.S. at 171 n.15, 172. (The executive session of the House Hearings were declassified only in 1982.) The witnesses who testified before Congress also brought home the importance of confidentiality. High-ranking intelligence officials advised Congress of the perils facing intelligence sources whose identities were revealed. National Security Act of 1947: Hearing on H.R. 2319 Before the Comm. on Expenditures in the Executive Departments, 80th Cong., 1st Sess. 10-11 (1947) (statement of General Vandenberg) (hereinafter cited as Secret House Hearings); id. at 20 (statement of Allen W. Dulles); id. at 59 (statement of Rear Adm. Inglis). In addition, Congress was informed of the risks both from using nongovernment personnel to gather intelligence and from the infiltration of our intelligence networks by foreign agents, or by their supporters. Id. at 10-11 (statement of General Vandenberg); id. at 50 (statement of Col. Grombach). Significantly, one expert recommended that a member of the armed forces be appointed as Director of the Agency during its early years of operation, because that would overcome the initial reluctance of the military to share intelligence with civilians, who could not be court-martialed for improperly divulging information. Id. at 8-9 (colloquy between Reps. Dorn and Hoffman and General Vandenberg). /15/ See Snepp, 444 U.S. at 512 ("The continued availability of * * * (intelligence) sources depends upon the CIA's ability to guarantee the security of information that might compromise them and even endanger the(ir) personal safety."). /16/ 50 U.S.C. 833(a) provides as follows: Notwithstanding sections 7512 and 7532 of title 5, or any other provision of law, the Secretary (of Defense) may terminate the employment of any officer or employee of the (National Security) Agency whenever he considers that action to be in the interest of the United States, and he determines that the procedures prescribed in other provisions of law that authorize the termination of the employment of that officer or employee cannot be invoked consistently with the national security. Such a determination is final. /17/ 10 U.S.C. (Spp. III) 1604(e)(1) provides as follows: Notwithstanding any other provision of law, the Secretary of Defense may, during fiscal years 1985 and 1986, terminate the employment of any civilian officer or employee of the Defense Intelligence Agency whenever he considers that action to be in the interests of the United States and he determines that the procedures prescribed in other provisions of law that authorize the termination of the employment of such officer or employee cannot be invoked in a manner consistent with the national security. The decisions of the Secretary under this paragraph are final and may not be appealed or reviewed outside the Department of Defense. The Secretary of Defense shall promptly notify the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate whenever this termination authority is exercised. Section 502 of the Intelligence Authorization Act for Fiscal Year 1987, Pub. L. No. 99-569 (Oct. 27, 1986), extended the Secretary's summary dismissal authority under 10 U.S.C. (Supp. III) 1604(e)(1) to fiscal years 1986 and 1987. H.R. Conf. Rep. 99-952, 99th Cong., 2d Sess. 24 (1986); H.R. Rep. 99-960, 99th Cong., 2d Sess. Pt.1, at 20-21 (1986); S.Rep. 99-307, 99th Cong., 2d Sess.7-8 (1986). Section 504 of that Act also granted the Secretary the same summary dismissal authority for fiscal year 1987 over "any civilian intelligence officer or employee of a military department." H.R. Rep. 99-790, Pt. 1, supra, at 25. /18/ For 50 U.S.C. 833(a), see S. Rep. 926, 88th Cong., 2d Sess. (1964) ("'This grant of authority recognizes the principle that the responsibility for control of those persons who are to have access to highly classified information should be accompanied by commensurate authority to terminate their employment when their retention and continued access to extremely sensitive information is not clearly consistent with the national security.'"); H.R. Rep. 108, 88th Cong., 1st Sess. 4 (1963) (same); ibid. ("The section enables the Secretary to terminate employment, when necessary, without jeopardizing the integrity and security of Agency activities through compliance with prolonged adversary proceedings."); id. at 5 (the Secretary's decision to invoke these procedures "shall be final and the basis for the determination will not be subject to review in any administrative or judicial proceeding"); H.R. Rep. 2120, 87th Cong., 2d Sess. 3, 4 (1962) (same statements as in above cited Senate and House Reports). For 10 U.S.C. (Supp. III) 1604(e)(1), see S. Rep. 98-481, 98th Cong., 2d Sess. 8 (1984) (noting that "the protection of highly classified information is of paramount importance)" and that "(t)he ability to meet security requirements and minimize the risk of compromise of dedicated intelligence personnel must be an important feature of the personnel management system"). /19/ See S. Rep. 926, supra, at 2 ("It is not novel for Congress to legislate the power of summary dismissal. In fact, Congress granted this same power to the Director of the Central Intelligence Agency in the National Security Act of 1947."); H.R. Rep. 108, supra, at 4 ("Moreover, statutory precedent exists. Similar authority to that granted in the bill has been vested by the Congress in the Director of Central Intelligence in section 102(c) of the National Security Act of 1947. The activities of the National Security Agency undoubtedly require equivalent protection from disclosure or compromise."); H.R. Rep. 2120, supra, at 4 (same); S. Rep. 98-481, supra, at 8-9 ("CIA management can exercise broad discretion for termination of employees, * * * Like CIA, NSA * * * has special termination authority peculiar to its needs. The Defense Intelligency Agency should be able to operate its personnel management system on an equal footing with its two sister intelligence agencies."). /20/ E.g., U.S. Const. Art. III, Section 1; South Carolina v. Regan, 465 U.S. 367, 395-396 (1984) (O'Connor, J., concurring in the judgment); Lockerty v. Phillips, 319 U.S. 182, 187-189 (1943); Sheldon v. Sill, 49 U.S. (8 How.) 441, 448-449 (1850); see Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868); cf. Ludecke v. Watkins, supra (upholding the President's unreviewable power under the Alien Enemies Act of 1798, ch. 58, 1 Stat. 570 et seq., to detain and deport potentially dangerous aliens during time of war). Significantly, the Constitution itself provides for suspension of the writ of habeas corpus when "in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. Art. I, Section 9. Cl.2. /21/ Although we have not presented it as a separate question, we disagree with the majority below that respondent could state an "arguable" constitutional claim if he were dismissed pursuant to a CIA personnel policy barring the employment of all homosexuals (App. 27a (emphasis in original)). The majority below conceded that this Court's decision in Bowers v. Hardwick, supra, and the District of Columbia Circuit's own earlier decision in Dronenburg v. Zech, supra, make clear that "homosexual conduct is not constitutionally protected" (App. 27a (emphasis in originial)). Respondent stated in his amended complaint, however, that he "has engaged in homosexual activities since 1976" (C.A. App. 47). Judge Buckley was therefore correct in concluding (App. 52a-54a) that the majority's effort to find an arguable constitutional violation was strained. /22/ The Department of State Appropriations Act of 1952, ch. 533, Section 103, 65 Stat. 581 (expired at the close of fiscal year 1952). That statute provided, in pertinent part, that "(n)otwithstanding the provisions of (the Lloyd-LaFollette Act), or the provisions of any other law, the Secretary of State may, in his absolute discretion, * * * terminate the employment of any officer or employee of the Department of State or of the Foreign Service of the United States whenever he shall deem such termination necessary or advisable in the interests of the United States." See App. 41a-42a; Service v. Dulles, 235 F.2d at 216 n.1. /23/ This Court subsequently reviewed the Secretary's decision to determine whether he had followed the State Department's discretionary regulations. 354 U.S. at 372-382. In this case, the court of appeals specifically held that the Director did not fail to comply with the Agency's own regulations. App. 19a-23a. /24/ The majority in the court below sought to distinguish Torpats on the ground tha- the court there did not refuse to review the Director's decision to dismiss a CIA employee and instead ruled that the Director had acted within his statutory authority (App. 14a n.26, 18a-19a). In light of the District of Columbia Circuit's earlier decisions in Service v. Dulles and Scher v. Weeks, however, the best reading of the decision in Torpats v. McCone, supra, is that the court concluded that the Director had the plenary authority under Section 102(c) to discharge CIA employees. /25/ South Corp. v. United States, 690 F.2d 1368, 1370 (Fed. Cir. 1982 (en banc). /26/ To be sure, the plaintiffs in Baker did not allege that their dismissal was unconstitutional, and the Court of Claims did not therefore address that claim. Nonetheless, unlike the court below, the Court of Claims recognized that the Director has plenary authority under Section 102(c) to dismiss an employee, and did not require the Director to explain why the plaintiffs' discharge was "in the interests of the United States," even though the plaintiffs alleged that the Director had exceeded his authority. /27/ A claim for back pay in excess of $10,000 must be brought in the Claims Court (28 U.S.C. 1346(a)(2), 1491), and an appeal of the judgment is to the Federal Circuit (28 U.S.C. 1295(a)(1)). A back pay claim seeking $10,000 or less may be brought in the Claims Court or in district court, but any appeal is to the Federal Circuit (28 U.S.C. 1295 (a)(1); 28 U.S.C. 1295(a)(2)). /28/ Respondent sought back pay in his original complaint, but he omitted a claim for back pay in his amended complaint (see App. 60a n.2). Respondent has therefore waived any back pay claim in this case.