Gay Agent
Without comment, the Court refused to hear an appeal filed by a gay man who worked for the Central Intelligence Agency for nine years before the agency learned of his homosexuality and dismissed him in 1982.
The man, identified in Court papers as John Doe because he served in an undercover position, argued that he had a constitutional right to continued employment as long as he complied with all security regulations. He said he had breached no regulations, had not compromised any classified information, and that as an openly gay man, was not liable to blackmail. He challenged a "blanket ban" by the C.I.A. on employing homosexuals.
The man had earlier lost his case before the United States Court of Appeals for the District of Columbia Circuit, which ruled earlier this year that the C.I.A. did not appear to have a general policy of that sort, but rather had dismissed him based on an "individualized determination that his own case represented a threat to the national security mission of the Agency."
Justice Ruth Bader Ginsburg did not vote in the case, Doe v. Woolsey, No. 92-2025, presumably because she served on the appeals court when the case was there.
October 13, 1993, New York Times, Supreme Court Roundup; Justices to Rule on Challenges by Career Criminals, by Linda Greenhouse,
The Supreme Court agreed today to decide whether Federal defendants who face sentencing as career criminals can challenge the validity of the earlier state court convictions that subject them to stiff Federal minimum sentences.
Under the Armed Career Criminal Act, a person with three previous convictions for violent felonies or serious drug offenses must receive a sentence of at least 15 years, with a maximum of life in prison, if subsequently convicted of owning or transporting a gun.
The law, aimed at violent multiple offenders, is one of the most potent in the growing Federal arsenal of laws that carry mandatory minimum sentences.
The lower Federal courts disagree on an important aspect of the law: whether the previous convictions that are the basis for the mandatory sentence can be subject to constitutional challenge long after the convictions had become final and sentence had been served.
Was Counsel Effective?
In the appeal the Court accepted today, the lower courts ruled that a Maryland man could not try to make the case that previous convictions for robbery and burglary were invalid. The man contended that the earlier state court convictions should not be used as the basis for a Federal mandatory minimum sentence because he had not had effective counsel and had not been fully informed of the consequences of his guilty plea.
The Federal District Court in Maryland and the United States Court of Appeals for the Fourth Circuit, in Richmond, held in this case that the defendant, Darren J. Custis, could challenge the earlier convictions only if he had had no legal representation at all in the state proceedings.
Other Federal courts have permitted challenges on broader grounds, including inadequate legal representation and an invalid guilty plea. The Justice Department, while telling the Justices that the lower courts in the Custis case were correct, supported the appeal on the ground that only the Supreme Court could resolve the confusion.
Without evidence of the earlier state convictions that Mr. Custis argues were constitutionally flawed, he faced a sentence of about three years under the Federal sentencing guidelines for his new Federal convictions on charges of cocaine and gun possession. Once placed in the armed career criminal category, however, he was sentenced to just under 20 years.
The Armed Career Criminal Act is only one of several Federal laws that carry mandatory minimum sentences. One frequently used Federal narcotics law that provides for enhanced sentences for multiple offenders explicitly permits defendants to challenge the validity of the earlier convictions. By contrast, the Armed Career Criminal Act is silent on the question.
The Court's decision in this case, Custis v. United States, No. 93-5209, could also have important implications for the Federal sentencing guidelines. Across the spectrum of criminal sentences, the guidelines provide longer sentences for people with previous criminal convictions.
As in the case of the Armed Career Criminal Act, the Federal courts disagree over whether those earlier convictions are subject to challenge at the new sentencing hearing. A ruling by the Supreme Court in the Custis case that defendants have a constitutional right to bring such challenges would apply in the sentencing-guidelines context as well.
There were these other developments at the Court today:
Railroad Stress
The Court agreed to decide whether railroad workers can sue their employers, in this case Conrail, for emotional as well as physical injuries.
The case, Consolidated Rail Corporation v. Gottshall, No. 92-1956, will resolve a longstanding ambiguity under an 85-year-old Federal law, the Federal Employers Liability Act. The law allows railroad workers to go to Federal court to sue railroads for negligence.
While some Federal courts have limited the scope of the law to negligence that results in physical injury, the United States Court of Appeals for the Third Circuit in this case said that the law also applied "when it is reasonably foreseeable that extended exposure to dangerous and stressful working conditions" will cause serious emotional distress.
The appeals court, which is based in Philadelphia, applied its test in favor of railroad workers in two cases. In one, a member of a track repair crew suffered a nervous breakdown when he witnessed the death of a fellow worker on a 97-degree day; the crew was ordered back to work while the body was covered and left to await the arrival of the coroner. The Third Circuit permitted that case to go to trial, which has not yet taken place.
In the second case, a dispatcher in a supervisory position suffered a breakdown after being required to work 15-hour days for 13 straight days in midst of a staff reduction. The Third Circuit upheld a jury award of $386,500.
In its Supreme Court appeal, Conrail is arguing that the Third Circuit's standard opens the door to liability for a railroad whenever workers have a physical manifestation of stress.
Gay Agent
Without comment, the Court refused to hear an appeal filed by a gay man who worked for the Central Intelligence Agency for nine years before the agency learned of his homosexuality and dismissed him in 1982.
The man, identified in Court papers as John Doe because he served in an undercover position, argued that he had a constitutional right to continued employment as long as he complied with all security regulations. He said he had breached no regulations, had not compromised any classified information, and that as an openly gay man, was not liable to blackmail. He challenged a "blanket ban" by the C.I.A. on employing homosexuals.
The man had earlier lost his case before the United States Court of Appeals for the District of Columbia Circuit, which ruled earlier this year that the C.I.A. did not appear to have a general policy of that sort, but rather had dismissed him based on an "individualized determination that his own case represented a threat to the national security mission of the Agency."
Justice Ruth Bader Ginsburg did not vote in the case, Doe v. Woolsey, No. 92-2025, presumably because she served on the appeals court when the case was there.
Bounty Hunters
The Court asked for the Clinton Administration's views on whether to hear a case brought by a Canadian woman whose husband was kidnapped by Florida bounty hunters from a Toronto street 12 years ago and brought to Florida to stand trial on a land fraud charge. The bounty hunters, who were later prosecuted in Canada, had been hired by a Florida bail bond company after the man, Sidney Jaffe, had fled the state and forfeited a $137,500 bond.
Ruth Jaffe, Mr. Jaffe's wife, sued the bail bond company in the Canadian courts and won a $2.5 million judgment against it, which the Florida courts have refused to enforce. The Government of Canada joined Mrs. Jaffe's appeal, Jaffe v. Snow, No. 93-241, urging the Court to hear the case and order Florida to honor the Canadian judgment. In its brief, the Canadian Government called the abduction of Mr. Jaffe "a blatant infringement of Canadian territorial sovereignty" that violated the extradition treaty with the United States and international law.
________________________________________________________________________
John Doe v. Robert M. Gates, Director of Central Intelligence
981 F.2d 1316
60 Empl. Prac. Dec. P 41,949, 299 U.S.App.D.C. 114,
61 USLW 2446
John DOE
v.
Robert M. GATES, Director of Central Intelligence, Appellant.
No. 91-5249.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 26, 1992.
Decided Jan. 12, 1993.
Rehearing Denied March 23, 1993.
Appeal from the United States District Court for the District of Columbia No. 82-02016.
___________________________________________________
486 U.S. 592 (1988)
WEBSTER, DIRECTOR OF CENTRAL INTELLIGENCE
v.
DOE
No. 86-1294.
Supreme Court of United States.
Argued January 12, 1988
Decided June 15, 1988
___________________________________________________
796 F.2d 1508
41 Fair Empl.Prac.Cas. 618,
40 Empl. Prac. Dec. P 36,296, 254 U.S.App.D.C. 282,
55 USLW 2093
John DOE
v.
William J. CASEY, Director, C.I.A., Appellant.
No. 85-5291.
United States Court of Appeals, District of Columbia Circuit.
Argued March 13, 1986.
Decided Aug. 1, 1986.
_______________________________________________________________________________
John Doe v. Robert M. Gates, Director of Central Intelligence
981 F.2d 1316
60 Empl. Prac. Dec. P 41,949, 299 U.S.App.D.C. 114,
61 USLW 2446
John DOE
v.
Robert M. GATES, Director of Central Intelligence, Appellant.
No. 91-5249.
United States Court of Appeals,
District of Columbia Circuit.
Argued Oct. 26, 1992.
Decided Jan. 12, 1993.
Rehearing Denied March 23, 1993.
Appeal from the United States District Court for the District of Columbia No. 82-02016.
Robert M. Loeb, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Barbara L. Herwig, Atty., Dept. of Justice, and R. Bruce Burke, Atty., C.I.A., Washington, DC, were on the brief, for appellant.
Steven F. Reich, with whom Mark H. Lynch, Washington, DC, was on the brief, for appellee.
William H. Allen, DC, also entered an appearance, for appellee.
Before EDWARDS, SENTELLE, and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Opinion concurring in part and concurring in the judgment filed by Circuit Judge HARRY T. EDWARDS.
Opinion concurring in part and concurring in the judgment filed by Circuit Judge RANDOLPH.
SENTELLE, Circuit Judge:
1
This is a law suit by a Central Intelligence Agency ("CIA") employee claiming that his constitutional rights were violated when he was terminated for reasons related to his homosexual activity. On remand from the Supreme Court and this Court, the District Court concluded that the agent's equal protection claim was not supported on the record, but that he had a property interest in continued employment warranting due process protection not afforded in the Agency's termination procedures. Based on these conclusions, the Court granted summary judgment in favor of the plaintiff. Because we agree with the first conclusion but not the second, we reverse the grant of summary judgment.I.
2
Because many of the facts are laid out by us in our prior opinion, Doe v. Casey, 796 F.2d 1508 (D.C.Cir.1986), cert. denied, 487 U.S. 1223, 108 S.Ct. 2883108S.Ct.2883108S.Ct.2883, 101 L.Ed.2d 917101L.Ed.2d917101L.Ed.2d917 (1988), as well as by the Supreme Court, Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047108S.Ct.2047108S.Ct.2047108S.Ct.2047108S.Ct.2047108S.Ct.2047, 100 L.Ed.2d 632100L.Ed.2d632100L.Ed.2d632100L.Ed.2d632100L.Ed.2d632100L.Ed.2d632 (1988), we will revisit and augment them only as necessary to provide foundation for discussion of the particular issues addressed herein.
3
The CIA hired John Doe in 1973 as a clerk-typist, and seven years later promoted him to an undercover position. In periodic fitness reports, the Agency consistently rated him as a strong or outstanding employee. Though Doe began engaging in homosexual activities in 1976, he did not inform the CIA of his sexual orientation until January 28, 1982. Shortly thereafter, he was placed on paid administrative leave, and has continued to collect his salary through the course of this litigation.
4
In May of 1982, the Director of Central Intelligence discharged Doe, pursuant to § 102(c) of the National Security Act of 1947, 50 U.S.C. § 403(c) (1982). That section provides that 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." A letter to Doe's counsel from the Deputy General Counsel for the CIA stated that the Director had reached his decision on the basis of a review of the facts in Doe's case, and included a memorandum containing the Office of Security's evaluation of the security significance of those facts.
5
Doe brought this action against the Director in District Court, seeking injunctive and declaratory relief. Alleging that his discharge was prompted by his admission of homosexuality, Doe asserted that the Director violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 706 (1982), because the decision to fire him was arbitrary, capricious, an abuse of discretion, and had been reached without adhering to procedures required by law and by CIA regulations. In addition, Doe claimed that his discharge violated his constitutional rights to "fundamental fairness," privacy, and equal protection, and deprived him of property and liberty without due process.
6
The District Court did not reach Doe's constitutional claims, but held that the CIA had violated Doe's procedural rights under the APA by dismissing him without the due process protections afforded by the agency's own regulations. Doe v. Casey, 601 F.Supp. 581 (D.D.C.1985). On appeal, this Court held that § 102(c)--which permits the Director in his discretion to fire any employee when he deems discharge necessary or advisable in the interests of the United States--did not preclude judicial review of Doe's termination. Doe v. Casey, 796 F.2d 1508, 1513-19 (D.C.Cir.1986). However, we reversed the District Court's holding that Doe's discharge had violated CIA regulations, noting that the regulations clearly intended to protect the discretion granted the Director by § 102(c) of the National Security Act. 796 F.2d at 1519-20.
7
We concluded that the viability of Doe's remaining claims depended on the Director's intent in invoking § 102(c). If the Director intentionally had invoked § 102(c) without reasons, "there are no grounds to reverse the Director's decision ... and, correspondingly, no bases for requiring the Director to explain his exercise of discretion." 796 F.2d at 1522. However, we held that if the Director had dismissed Doe under § 102(c) because of a CIA blanket policy against hiring homosexuals, then the CIA would have to explain how the policy conforms to the statutory mandate that the policy be "necessary or advisable in the interests of the United States." Id. Finally, if the Director acted pursuant to § 102(c) because Doe's homosexuality presented a specific security risk, we noted that Doe's procedural right not to be deprived of his liberty interest in his reputation without due process might be implicated, id. at 1522-24, but held that the CIA had already provided sufficient due process to satisfy the Fifth Amendment through its informal notice and opportunity to respond. Id.
8
The Supreme Court granted the government's petition for certiorari on the question whether any judicial review under the APA existed of the Director's decision to terminate an employee under § 102(c). Webster v. Doe, 482 U.S. 913, 107 S.Ct. 3182107S.Ct.3182, 96 L.Ed.2d 67196L.Ed.2d671 (1987). In a cross-petition, Doe sought review of whether this Court had erred in holding that he was not entitled to any explanation of the Director's decision to discharge him. The Supreme Court denied his petition. Doe v. Webster, 487 U.S. 1223, 108 S.Ct. 2883108S.Ct.2883108S.Ct.2883, 101 L.Ed.2d 917101L.Ed.2d917101L.Ed.2d917 (1988).
9
On the government's petition, the Supreme Court held that " § 102(c) indicate[s] that Congress meant to commit individual employee discharges to the Director's discretion," and that any judicial review under the APA was therefore precluded. Webster v. Doe, 486 U.S. 592, 601, 108 S.Ct. 2047108S.Ct.2047108S.Ct.2047108S.Ct.2047108S.Ct.2047108S.Ct.2047, 2052, 100 L.Ed.2d 632100L.Ed.2d632100L.Ed.2d632100L.Ed.2d632100L.Ed.2d632100L.Ed.2d632 (1988). Nonetheless, the Supreme Court ruled that "colorable constitutional claim[s]" arising out of a discharge were not similarly immune from judicial review. Id. at 604-05, 108 S.Ct. at 2054. The Court remanded the case, charging the District Court to "address [Doe's] constitutional claims and the propriety of the equitable remedies sought." Id. at 605, 108 S.Ct. at 2054.
10
On remand, the parties filed cross-motions for summary judgment. The District Court held that although Doe had failed to state a colorable equal protection claim, Doe v. Webster, 769 F.Supp. 1, 2-3 (1991), he had a Fifth Amendment property interest in continued employment at the CIA based upon an "agency-fostered understanding." Id. at 3-5. The District Court based its finding of an agency-fostered understanding on two sources. First, it pointed to a CIA booklet on Agency policy prepared for incoming personnel which stated both that the Agency has the authority to discharge any employee "who, in the judgment of the Director, has failed to carry out his duties responsibly and effectively," and that "[e]xcept for the continuing responsibility to avoid disclosure of information affecting national security, Agency employees are under no formal restrictions beyond those governing the conduct of Federal workers as a whole." Id. at 5. In addition, the District Court relied on Doe's affidavit, in which he averred that unidentified CIA employees told him, at the beginning of his employment at the CIA, that "once his probationary period was completed, he would continue to be employed as long as his services were needed, his work was well done, he complied with security regulations, and protected classified information from unauthorized disclosure." Id.
11
The District Court therefore entered summary judgment in favor of Doe, concluding that the CIA had deprived Doe of his job--in which he had a constitutionally cognizable property interest--without affording him adequate process, requiring "[a]t a minimum" notice and the opportunity for a hearing. Id. The government appealed.II.
12
The Supreme Court has long held that the constitutional guarantee of due process extends to protect property interests, broadly defined as the "interests that a person has already acquired in specific benefits." Board of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 270192S.Ct.2701, 2708, 33 L.Ed.2d 54833L.Ed.2d548 (1972). Property interests in employment are not themselves constitutionally created; rather, they are derived from independent sources, such as statutes, regulations, ordinances, or "existing rules or understandings ... that secure certain benefits and that support claims of entitlement to those benefits." Id. at 577, 92 S.Ct. at 2709; Perry v. Sindermann, 408 U.S. 593, 601-02, 92 S.Ct. 269492S.Ct.2694, 2699-2700, 33 L.Ed.2d 57033L.Ed.2d570 (1972). The rules and understandings on which an employee bases his Fifth Amendment claims, however, must create an "objectively reasonable expectation" of continued employment. Hall v. Ford, 856 F.2d 255, 266 (D.C.Cir.1988).
13
Here, § 102(c) of the National Security Act of 1947 "exhibits ... extraordinary deference to the Director in his decision to terminate individual employees." Webster v. Doe, 486 U.S. 592, 601, 108 S.Ct. 2047108S.Ct.2047108S.Ct.2047108S.Ct.2047108S.Ct.2047108S.Ct.2047, 2052, 100 L.Ed.2d 632100L.Ed.2d632100L.Ed.2d632100L.Ed.2d632100L.Ed.2d632100L.Ed.2d632 (1988). Indeed, the Act expressly confers upon the Director the "discretion [to] 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." 50 U.S.C. § 403(c) (punctuation omitted). Nor do the regulations and policies of the CIA contradict the statutory grant of discretion to the Director. See CIA Reg. HR 20-27 (1978); see also Doe v. Casey, 796 F.2d 1508, 1519-20 (D.C.Cir.1986) ("We cannot imagine how the CIA could have more plainly expressed its intent to protect the discretion granted it by section 102(c)."), aff'd in part, rev'd in part, 486 U.S. 592, 108 S.Ct. 2047108S.Ct.2047108S.Ct.2047108S.Ct.2047108S.Ct.2047108S.Ct.2047, 100 L.Ed.2d 632100L.Ed.2d632100L.Ed.2d632100L.Ed.2d632100L.Ed.2d632100L.Ed.2d632 (1988).
14
The District Court held that although the National Security Act does not provide Doe with a property interest in his employment, the Agency handbook and statements allegedly made to Doe at the outset of his employment raised "agency fostered understandings" endowing Doe with a cognizable property interest. 769 F.Supp. at 5. We disagree.
15
Although such provisions and statements may in some contexts be sufficient to confer a "legitimate claim of entitlement" as defined in Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709, see, e.g., Ashton v. Civiletti, 613F.2d 923, 928-30 (D.C.Cir.1979), this is not such a case. Understandings which in other circumstances might suggest the existence of a property right cannot do so when they are at odds with "the intent of the legislature regarding the employment entitlements that can be conferred." Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983); see also Batterton v. Texas Gen. Land Office, 783 F.2d 1220, 1223-24 (5th Cir.), cert. denied, 479 U.S. 914, 107 S.Ct. 316107S.Ct.316, 93 L.Ed.2d 28993L.Ed.2d289 (1986); Bollow v. Federal Reserve Bank, 650 F.2d 1093, 1099 (9th Cir.1981), cert. denied, 455 U.S. 948, 102 S.Ct. 1449102S.Ct.1449, 71 L.Ed.2d 66271L.Ed.2d662 (1982); Baden v. Koch, 638 F.2d486, 490-91 (2d Cir.1980). The law is clear that if a statute relegates termination decisions to the discretion of the Director, no property entitlement exists, see Chilingririan v. Boris, 882 F.2d 200, 205 (6th Cir.1989); Windsor v. The Tennessean, 719 F.2d 155, 159 (6th Cir.1983), cert. denied, 469 U.S. 826, 105 S.Ct. 105105S.Ct.105, 83 L.Ed.2d 5083L.Ed.2d50 (1984), and any employee's statements to the contrary have no binding force. See Bollow, 650 F.2d at 1100; Baden, 638 F.2d at 493. "[M]utual understandings and customs [can] not create a property interest for purposes of due process when they are contrary to the express provisions of regulations and statutes." Id. at 492; see also Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 447-48 (2d Cir.1980); Stone v. Philbrook, 528 F.2d 1084, 1092-94 (2d Cir.1975); Fiorentino v. United States, 607 F.2d 963, 967, 221 Ct.Cl. 545221Ct.Cl.545 (1979) ("We find nothing in the Supreme Court or D.C. Circuit decisions to suggest that ... 'agency fostered policies and understandings' could override ... the limitations of express statutes or regulations having the force of statutes...."), cert. denied, 444 U.S.1083, 100 S.Ct. 1039100S.Ct.1039, 62 L.Ed.2d 76862L.Ed.2d768 (1980). Therefore, when government employees offer assurances that conflict with federal law, they do not speak for the United States. See OPM v. Richmond, 496 U.S. 414, 424-26, 110 S.Ct. 2465110S.Ct.2465, 2471-72, 110 L.Ed.2d 387110L.Ed.2d387 (1990); Federal Crop Ins. Corp. v. Merrill,332 U.S. 380, 384, 68 S.Ct. 168S.Ct.168S.Ct.1, 3, 92 L.Ed. 10 (1947).
16
Whether Doe actually knew of the existence of § 102(c) is irrelevant. Federal employees are chargeable with knowledge of governing regulations or statutes, and "it is well established that anyone who deals with the government assumes the risk that the agent acting in the government's behalf has exceeded the bounds of his authority." Bollow v. Federal Reserve Bank of San Francisco, 650 F.2d 1093, 1100 (9th Cir.1981); see also Federal Crop Ins. Corp., 332 U.S. 380, 384-85, 68 S.Ct. 168S.Ct.168S.Ct.1, 3, 92 L.Ed. 10; Lavin v. Marsh, 644 F.2d 1378, 1383 (9th Cir.1981) (quoting Schuster v. Comm'r, 312 F.2d 311, 317 (9th Cir.1962) ("Congress's legislative authority should not be readily subordinated to the action of a wayward or unknowledgeable administrative official.")). Thus, Doe's reliance on alleged statements by other employees and general provisions in the Agency handbook does not constitute a reasonable "legitimate expectation of continued employment," Hall v. Ford, 856 F.2d at 265-66, as required by law.1
17
Because we reject the District Court's conclusion that Doe had a cognizable property interest in continued employment, we must reverse the District Court's grant of summary judgment based on its holding that the termination violated such an interest.III.
18
Doe also asserts a claim that his termination violated the constitutional guarantee of equal protection. He argues that:
19
The evidence to be introduced at the trial of this action will show either that: (1) the CIA had a policy barring the employment of known homosexuals; or (2) Doe was terminated based on individualized consideration of his homosexuality. Either way, Doe has a colorable equal protection claim under the lowest level of judicial scrutiny.
20
Appellant's Br. at 37. We disagree.
21
The CIA argues at the outset that this issue is not properly before us. In the Agency's view, Doe forfeited his right to assert this argument when he failed to file a cross-appeal from the decision of the District Court. The Agency's position ignores the relative roles of the two courts at this stage. It is not the memorandum of the District Court accepting the CIA's argument on the equal protection argument and rejecting Doe's that is before us for review. Rather, we review the District Court's order granting summary judgment in favor of Doe and denying summary judgment to the CIA. Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778104S.Ct.2778, 2781, 81 L.Ed.2d 69481L.Ed.2d694 (1984) ("[T]his Court reviews judgments, not opinions...."); see also Black v. Cutter Laboratories, 351 U.S. 292, 297, 76 S.Ct. 82476S.Ct.824, 827, 100 L.Ed. 1188 (1956); J.E. Riley Investment Co. v. Commissioner,, 11 U.S. 55, 59, 61 S.Ct. 9561S.Ct.95, 97, 85 L.Ed. 36 (1940) ("Where the decision below is correct it must be affirmed by the appellate court though the lower tribunal gave a wrong reason for its action."); McClung v. Silliman, 19 U.S. 598, 603 (6 Wheat.), 5 L.Ed. 340 (1821) ("The question before an appellate Court is, was the judgment correct, not the ground on which the judgment professes to proceed.").
22
In reviewing summary judgment decisions, we decide de novo the same question that was before the District Court. That is, we must determine whether there is on the record "no genuine issue as to any material fact." Fed.R.Civ.Proc. Rule 56(c). If so, then we determine whether "the moving party is entitled to a judgment as a matter of law." Id. Therefore, with the full record before us as it was before the District Court, we may make that determination on grounds which differ from those upon which the District Court relied. Cf. SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 45463S.Ct.454, 459, 87 L.Ed. 626 (1943) ("[I]n reviewing the decision of a lower court, it must be affirmed if the result is correct 'although the lower court relied upon a wrong ground or gave a wrong reason' ") (citing Helvering v. Gowran,302 U.S. 238, 245, 58 S.Ct. 15458S.Ct.154, 157, 82 L.Ed. 224 (1937)). See also Lum Wan v. Esperdy, 321 F.2d 123, 125-26 (2nd Cir.1963). Cf. California Bankers Ass'n v. Shultz, 416 U.S. 21, 71, 94 S.Ct. 149494S.Ct.1494, 1522, 39 L.Ed.2d 81239L.Ed.2d812 (1974) (noting that "[plaintiffs] are free to urge in this Court reasons for affirming the judgment of the District Court which may not have been relied on by the District Court."). That being the case, while it might have assisted the efficient path of appellate review had appellee filed a cross-appeal, it is not necessary that he do so in order for him to argue that the District Court's decision in denying summary judgment to the agency was correct, albeit for a different reason.
23
Although we find the equal protection argument to be properly before us, we do not find it meritorious. Assuming without deciding that a blanket Agency policy against the employment of homosexuals would violate equal protection rights under the Fifth Amendment to the Constitution, the District Court nonetheless properly allowed summary judgment dismissing Doe's equal protection claim.2 The record before the District Court, and derivatively this Court, supports the conclusion that the agency is entitled to summary judgment on the claim. Under Celotex Corp. v. Catrett,477 U.S. 317, 106 S.Ct. 2548106S.Ct.2548, 91 L.Ed.2d 26591L.Ed.2d265 (1986), summary judgment may be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Id. at 322, 106 S.Ct. at 2552. By that standard, there remains no material issue of fact relevant to the allegations undergirding Doe's equal protection claim. Plainly, the agency will prevail at the summary judgment stage if the evidence discloses no harm to Doe as a result of such policy as he alleges; that is, if Doe's employment was terminated on a basis unrelated to the policy or because no such policy exists in the first place.
24
Obviously, if no such policy exists, that is, if there is no material issue of fact as to whether the CIA has a blanket policy against homosexuals, no further inquiry is needed. Appellant has pointed us to no evidence, nor have we found any independently, to support the existence of such a policy. Doe did claim in his original affidavit that "a CIA security officer on January 29, 1982 ... told [him] that [his] homosexual activities had violated CIA regulations," and that "on February 2, 1982, another CIA official who, [Doe] believe[d] was the deputy director of the Office of Security, also told [Doe] that [his] homosexual activities had violated CIA regulations." Doe Affidavit of August 23, 1982, p 13. He has at no point claimed that either officer or any other CIA employee told him that all homosexual activities, as opposed to his clandestine and deliberately concealed activity, were violations of any blanket policy. If this constitutes evidence of a blanket policy at all, it would seem to be evidence within the contemplation of Anderson v. Liberty Lobby, Inc., 477U.S. 242, 248, 106 S.Ct. 2505106S.Ct.2505106S.Ct.2505106S.Ct.2505, 2510, 91 L.Ed.2d 20291L.Ed.2d20291L.Ed.2d20291L.Ed.2d202 (1986). The Supreme Court in that case noted that in the context of summary judgment, "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. at 2511 (citations omitted). The single vague paragraph of Doe's affidavit cannot be deemed more than "colorable." Particularly is this so given the period of time Doe has had to accumulate any further evidence to survive the summary judgment motion.
25
Otherwise viewed, as the Supreme Court instructed us in Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106 S.Ct. 1348106S.Ct.1348, 89 L.Ed.2d 53889L.Ed.2d538 (1986), the nonmoving party "must come forward with 'specific facts showing that there is a genuine issue for trial.' " Id. at 587, 106 S.Ct. at 1356 (citations omitted) (emphasis in original). As we interpreted that doctrine in Bias v. Advantage Int'l, Inc., 905 F.2d 1558 (D.C.Cir.1990), once the movant has supported a summary judgment motion by evidence of particular events, the court may properly look to the nonmovant for rebuttal evidence either "from persons familiar with the particular events," or expect the nonmovant to "otherwise cast more than metaphysical doubt on the credibility of the testimony." Id. at 1561. Here the movant CIA has come forward with abundant evidence of the nonexistence of any such blanket policy. The unspecific paragraph in Doe's original affidavit offers no evidence from anyone having knowledge of such a blanket policy that such a policy exists. For him to cast more than metaphysical doubt, he should at least have provided some direct evidence of someone having knowledge of that policy asserting it to exist, especially given the time available to him. Absent that, he has cast no more than "metaphysical doubt." Where the moving party in summary judgment is not the party with the burden of proof,
26
the moving party's duty to "support" its motion is discharged by its "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." ... Thus, where the non-moving party shoulders the burden of proof at trial, the movant's burden is met by a sufficient " 'showing' ... that there is an absence of evidence to support the nonmoving party's case."
27
Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1032 (D.C.Cir.1988) (quoting Celotex, 477 U.S. at 325, 106 S.Ct. at 2553, and Fed.R.Civ.P. 56(c)). This is the case here. A plaintiff suing for an alleged breach of his constitutional rights has an obvious burden of proving the existence of those facts which make out the breach. Here, Doe has pointed to no evidence to show such a breach. Appellant's bare assertion that the evidence at trial would show such a policy is without effect. Once the moving party has discharged its duty under Celotex and Rule 56, then the non-movant, having the burden at trial, needs to respond with a showing of "affirmative evidence." Frito-Lay, Inc., 863 F.2d at 1034 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 256-57, 106 S.Ct. 2505106S.Ct.2505106S.Ct.2505106S.Ct.2505, 2514,91 L.Ed.2d 20291L.Ed.2d20291L.Ed.2d20291L.Ed.2d202 (1986)). In Frito-Lay, appellant's counsel had asserted to the District Court that he possessed "a whole transcript of sworn testimony in [an] administrative hearing" and that the testimony "create[d] a disputed fact on" the pivotal issue in the case. 863 F.2d at 1036. We rejected appellant's claim, noting that appellant had not introduced the testimony into the District Court's record at summary judgment, and that we could not speculate "on what would have been the result had appellant done so." Id. The same reasoning prevails here. Appellant claims to have evidence, but none was presented before the District Court. The District Court therefore rightly concluded on summary judgment that there was no evidentiary support for an issue as to the existence of the blanket policy, and correctly granted summary judgment in favor of the Agency on that point.
28
Additionally, even if there were an issue as to such a policy, Doe could not recover unless he could establish that his termination resulted from that policy. Again, the record before the courts supports the District Court's conclusion that the "CIA's reason for the discharge was that Doe's homosexual conduct was a threat to national security." Doe v. Webster, 769 F.Supp. at 3. In other words, Doe's termination resulted not from a blanket policy but from the CIA's individualized determination that his own case represented a threat to the national security mission of the Agency. The record establishes that the CIA had a legitimate concern about Doe's trustworthiness, in light of the fact that he hid information about his involvement in homosexual activity despite suspecting or knowing that the Agency considered such involvement to be a matter of security significance. Resp. Br. at 4. Doe came forward voluntarily only because of his perception that his financial interests would be threatened by continued concealment.3 Further, Doe's oft-expressed concern for the "privacy" of his partners has led the Agency to conclude that he might well be susceptible to threats of exposure directed against his past, present, or future homosexual partners.
29
As the CIA put it in one sanitized exhibit in the record, "the Subject has demonstrated that he cannot be trusted by this Agency. For more than five years, even while holding positions which gave him access to sensitive classified information, he hid his involvement in homosexual activity although he knew it was a matter of security significance." Doe points to nothing that would suggest that these reasons are pretextual.
30
We therefore conclude that enough undisputed evidence exists in the record both to support summary judgment for the CIA on the equal protection claim, and to support the District Court's conclusion that "the discharge is rationally related to the legitimate government security interest in collecting foreign intelligence and protecting the nation's secrets." Doe v. Webster, 769 F.Supp. at 3. See also Padula v. Webster, 822 F.2d 97, 104 (D.C.Cir.1987) ("It is not irrational for the [FBI] to conclude that the criminalization of homosexual conduct coupled with the general public opprobrium toward homosexuality exposes ... even 'open' homosexuals to the risk of possible blackmail to protect their partners, if not themselves") (punctuation omitted). The District Court properly granted judgment for the CIA.IV.
31
Section 102(c) of the National Security Act of 1947 places termination decisions solely within the discretion of the Director of the Central Intelligence Agency. In light of this fact, John Doe could have derived no expectation of continued employment from "agency-fostered understandings" that would have vested in him a property right protected under the Fifth Amendment. He likewise has failed to demonstrate any issues of material fact that would allow his equal protection claim to withstand the government's motion for summary judgment. We therefore reverse the District Court's holding with respect to Doe's property claim, and affirm the dismissal of his equal protection claim.
32
It is so ordered.
33
HARRY T. EDWARDS, Circuit Judge, concurring in part and concurring in the judgment.
34
I concur in the opinion insofar as it disposes of Doe's due process claim. As to Doe's equal protection claim, I concur only in the judgment. I write separately to make clear my view that there is no evidence in the record that reasonably supports a claim that the Central Intelligence Agency ("CIA") has a blanket policy against homosexuals. Doe's equal protection claim should be dismissed on that ground alone. The CIA unequivocally has asserted that it has no such blanket policy, and Government counsel repeated this assertion during oral argument before this court. There is absolutely nothing in the record that plausibly suggests otherwise.
35
Doe points to no evidence that contradicts the Government's position that the CIA discharged him after an individualized assessment of the circumstances of his case, rather than pursuant to a blanket ban. The record plainly does not support a contention that Doe was dismissed because of the mere fact of his homosexuality. Furthermore, Doe has pointed to nothing in the record that might reasonably be viewed to suggest that he suffered disparate treatment in his disciplinary assessment by virtue of his homosexuality. In short, Doe has asserted nothing that might prompt consideration of an equal protection claim.
36
RANDOLPH, Circuit Judge, concurring in part and concurring in the judgment:
37
I join the court's opinion to the extent it rejects Doe's due process claim. With respect to Doe's equal protection claim, I join only the portion of the opinion holding that Doe's termination resulted "from an individualized determination that his case represented a threat to the national security mission of the agency."
38
The court's alternative reason for rejecting Doe's equal protection claim--that Doe failed to present any "evidence" showing that the CIA had a blanket policy against homosexuals--is, to my mind, mistaken. The two statements contained in Doe's affidavit--two CIA officials said his homosexuality violated CIA regulations--surely qualify as evidence. Both constitute admissions by a party-opponent. See Fed.R.Evid. 801(d)(2). Are the statements evidence of a blanket CIA policy against homosexuals? My colleagues think not. But at the summary judgment stage the court must (1) believe the evidence of the nonmoving party; and (2) draw all justifiable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505106S.Ct.2505106S.Ct.2505106S.Ct.2505, 2513, 91 L.Ed.2d 20291L.Ed.2d20291L.Ed.2d20291L.Ed.2d202 (1986). The reference to "regulations" in the statements Doe recites should therefore be taken to mean internal policy guidelines. Given the general nature of the remarks of the CIA officials, it is logical to infer that they were aimed at homosexuality itself, not just Doe's activities. This is precisely how Chief Justice Rehnquist, in his opinion for the Court in Webster v. Doe, 486 U.S. 592, 602, 108 S.Ct. 2047108S.Ct.2047108S.Ct.2047108S.Ct.2047108S.Ct.2047108S.Ct.2047, 2053, 100 L.Ed.2d 632100L.Ed.2d632100L.Ed.2d632100L.Ed.2d632100L.Ed.2d632100L.Ed.2d632 (1988), read Doe's affidavit. The two statements in the affidavit, the Chief Justice wrote, support Doe's claim that a "pervasive discrimination policy exists in the CIA's employment practices regarding all homosexuals." 486 U.S. at 602, 108 S.Ct. at 2053. If the Supreme Court's opinion in this regard is not the law of the case, it is something sufficiently similar to warrant our respect.
39
The problem here is not that Doe presented "no evidence," but that he may not have presented enough. As the nonmoving party having the burden of proof at trial, Doe had to counter the CIA's summary judgment motion with sufficient evidence to enable a jury to return a verdict for him. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. The test is basically the same as that governing motions for directed verdicts or judgments n.o.v.--"if, under the governing law, there can be but one reasonable conclusion as to the verdict. If reasonable minds could differ as to the import of the evidence, however, a verdict should not be directed." Anderson, 477 U.S. at 250-51, 106 S.Ct. at 2511 (citation omitted). The statements in Doe's affidavit probably fall short, but there may be more to consider. Doe also relied upon evidence reported in Dubbs v. CIA, 866 F.2d 1114 (9th Cir.1989). See Memorandum of Points and Authorities in Support of Plaintiff's Cross-Motion for Partial Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment, at 21-22 (June 25, 1990). Dubbs held that the plaintiff there had presented sufficient evidence to survive summary judgment on her claim that she had been denied a security clearance in 1981 pursuant to a CIA anti-homosexual policy. The court of appeals cited a March 1981 letter to the plaintiff from the Director of Security for the CIA and the "testimony" of a former CIA Security Director.
40
The events recounted in Dubbs took place nearly at the same time as the events in Doe's case. Can Doe rely on the evidence recounted in the Dubbs opinion? Rule 56(c), Fed.R.Civ.P., provides that district courts should base their evaluation of material facts claimed to be in dispute on "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any." The recitation of evidence in a judicial opinion is not within any of these categories. But courts routinely consider "any material that would be admissible or usable at trial." 10A C. WRIGHT, A. MILLER & M. KANE, FEDERAL PRACTICE & PROCEDURE § 2721, at 40 (2d ed. 1983), and, according to some authorities, courts considering a motion for summary judgment may appropriately take judicial notice of the record of "other cases involving the same subject matter." Id. § 2723, at 67. If we followed this approach (the issue is unresolved in this circuit), the statements set forth in Dubbs would have to be considered. Properly authenticated, these statements would be admissible in Doe's trial on the issue of the existence of a CIA blanket policy. The court of appeals in Dubbs held that the statements alone were enough to get to a jury on the blanket policy issue (see 866 F.2d at 1119). The Dubbs evidence plus the evidence in Doe's affidavit would surely be enough to get the blanket question to the jury in Doe's case, assuming--as I do, but only arguendo--that discrimination on the basis of homosexuality violates the Constitution.
41
But these questions regarding the sufficiency of Doe's affidavit and what material may be taken into account on motions for summary judgment (and the constitutionality of the alleged CIA policy) are unnecessary to decide in this case. As the majority opinion holds, Doe was fired, not because of any blanket CIA policy, but for decidedly individualized reasons. That disposes of his equal protection claim. I would rest the judgment on that alone.
1 We do not address the question whether the Director by a general exercise of his discretion could insert in Agency handbooks some language sufficient to create a property interest, if that discretion were exercised in a manner consistent with the intent of the statute. The general language in the present record indicates no such intent or action by the Director here
2 "The equal protection component of the [F]ourteenth [A]mendment is binding upon the federal government as part of the [F]ifth [A]mendment's due process clause." Padula v. Webster, 822 F.2d 97, 101 n. 5 (D.C.Cir.1987)
3 The pecuniary interest referenced in the evidence before the District Court apparently refers to Doe's fear that if his homosexuality were involuntarily discovered, he would be terminated and might lose benefits which he might be in a better position to protect through voluntary disclosure
_____________________________________________________________________________
486 U.S. 592 (1988)
WEBSTER, DIRECTOR OF CENTRAL INTELLIGENCE
v.
DOE
No. 86-1294.
Supreme Court of United States.
Argued January 12, 1988
Decided June 15, 1988
41 Fair Empl.Prac.Cas. 618,
40 Empl. Prac. Dec. P 36,296, 254 U.S.App.D.C. 282,
55 USLW 2093
John DOE
v.
William J. CASEY, Director, C.I.A., Appellant.
No. 85-5291.
United States Court of Appeals,
District of Columbia Circuit.
Argued March 13, 1986.
Decided Aug. 1, 1986.
Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-02016).
Barbara C. Biddle, Atty., Dept. of Justice, with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Barbara L. Herwig, Atty., Dept. of Justice, Washington, D.C., were on the brief for appellant.
Mark H. Lynch, with whom Susan W. Shaffer, Washington, D.C., was on the brief for appellee.
Before EDWARDS, GINSBURG and BUCKLEY, Circuit Judges.
Opinion for the Court filed by HARRY T. EDWARDS, Circuit Judge.
Concurring opinion filed by GINSBURG, Circuit Judge.
Opinion concurring in part and dissenting in part filed by BUCKLEY, Circuit Judge.
HARRY T. EDWARDS, Circuit Judge:
1
The Central Intelligence Agency ("CIA") appeals from a District Court order requiring the CIA to reinstate a former undercover employee to administrative leave status. The undercover employee--appellee John Doe--was terminated from CIA employment after he informed the CIA of his homosexuality. Doe's employment was terminated by the Director of Central Intelligence ("Director"), acting under section 102(c) of the National Security Act of 1947, which provides that the Director may, in his discretion, terminate the employment of any CIA employee "whenever he shall deem such termination necessary or advisable in the interests of the United States."1
2
Doe commenced this action in District Court, seeking reinstatement to his old position, or, in the alternative, reinstatement to administrative leave status and a reconsideration of the CIA's decision to terminate his employment. He alleges that he was terminated without adequate procedural protections in violation of CIA regulations, the Administrative Procedure Act ("APA"), and the due process clause of the Fifth Amendment. The District Court ordered Doe reinstated to administrative leave status and directed the CIA to reconsider Doe's termination using procedures that would provide Doe with a meaningful statement of the CIA's reasons and an opportunity to respond.
3
On appeal, the Government argues principally that the CIA's decision to terminate Doe's employment under section 102(c) is not subject to judicial review. Although section 102(c) gives the Director of Central Intelligence broad discretion, we conclude that judicial review is neither precluded by statute nor foreclosed by the absence of judicially manageable standards. We reverse the judgment of the District Court, however, because the court failed to accord sufficient deference to the judgment of the head of the agency. Given the sensitive nature of decisions by the Director of Central Intelligence concerning removal of employees under section 102(c), we hold that an employee must present some concrete evidence of an impermissible basis for his or her termination before a court may require the CIA to explain the reason for that termination. No such evidence was presented by Doe in this case. Nonetheless, because the record is unclear on certain critical points, we remand for further proceedings.
I. BACKGROUND
4
The plaintiff, John Doe,2 had a nine-year career with the CIA. Although he began that career as a clerk-typist, he was eventually promoted, after agency training, to a covert position as an electronics technician. Periodic fitness reports consistently rated Doe as either an excellent or an outstanding employee, and the CIA expressed no dissatisfaction with either Doe's work or his loyalty.
5
On January 28, 1982, Doe voluntarily informed a CIA security officer that he was a homosexual. As a result, the CIA placed Doe on administrative leave on February 2, 1982, pending an investigation of his homosexuality. Under this status, Doe did not report for work, but the CIA continued to pay his salary. On February 12 and 17, Doe was interviewed at length by a polygraph officer about his sexual orientation and possible security violations. After these interviews, which lasted a total of ten hours, the officer told Doe that the polygraph indicated that he had truthfully answered all questions. His answers included statements that he had not had sexual relations with any foreign nationals and had not disclosed classified information to any sexual partners.
6
The polygraph officer prepared a five-page factual report based on the two days of interviews. Doe reviewed this factual report on March 23, 1982, and, in addition, Doe prepared a two-page addendum. On April 14, 1982, a CIA security officer informed Doe that the CIA's Office of Security had determined that the circumstances of his homosexuality posed a security threat, but refused to explain why Doe's homosexuality posed such a danger. Throughout the previous two months of investigation, Doe had received conflicting explanations about the CIA's policy toward homosexuals. While two CIA security officers told Doe that his homosexual activities violated CIA regulations, the Deputy General Counsel of the CIA told Doe's counsel that homosexuality was a security concern that did not inevitably result in termination. Instead, according to the Deputy General Counsel, the CIA considers homosexuality on a case-by-case basis.
7
Doe was asked to resign on April 14, but refused to do so. The Office of Security then recommended to the Director of Central Intelligence that the CIA terminate Doe's employment. On April 20, Doe's counsel delivered a detailed letter to the Director concerning Doe's case, but the CIA made no response.
8
On May 12, 1982, a security officer informed Doe that the Director had terminated his employment effective May 7, 1982. Doe's counsel later received a letter from the Deputy General Counsel of the CIA dated May 11, 1982, confirming Doe's termination:
9
The Director has reviewed the facts of your client's case, your client's memorandum commenting upon those facts, the Office of Security's evaluation of the security significance of those facts, and the statement submitted by you in your client's behalf.
10
After careful consideration of this matter, the Director has deemed it necessary and advisable in the interests of the United States to terminate your client's employment with this Agency pursuant to section 102(c) of the National Security act [sic] of 1947, as amended.3
11
Doe was never told why he was considered a security risk and never had access to the Office of Security evaluations. The Director's decision to terminate Doe's employment was made pursuant to section 102(c) of the National Security Act, which provides:
12
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.4
13
CIA officials told Doe that the agency would give a positive recommendation on his behalf to any prospective employer; Doe also was advised that if he applied for a job that required a security clearance, the CIA would inform the prospective employer that it had determined that Doe presented a security threat "because of his homosexuality." Moreover, a member of the General Counsel's staff told Doe that he is obliged to inform the CIA whenever he applies for a job that requires a security clearance.
14
Doe then commenced this action in District Court. His complaint alleged that the CIA's decision to fire him because of his homosexuality violated both procedural and substantive protections to which he was entitled by law. To remedy the substantive violations, Doe sought outright reinstatement to his old position with the CIA. For violation of procedural protections, on the other hand, Doe sought a new determination by the Director under fair procedures.5Doe filed a motion for partial summary judgment on the procedural claims, which were alleged violations of CIA regulations, the APA and the due process clause of the Fifth Amendment. The District Court granted Doe summary judgment on the violations alleged with respect to the CIA regulations and the APA, but declined to reach the constitutional issues. The trial court ordered Doe reinstated to administrative leave status and directed the CIA to reconsider his case using procedures that would provide Doe with a meaningful statement of the CIA's reasons for the termination and with an opportunity to respond.
15
This appeal followed.
II. ANALYSIS
A. Preclusion of Review
16
On appeal, the CIA has contended that its decision to terminate Doe's employment is not reviewable under the APA. We conclude that section 102(c) obviously requires that we give deference to the judgment of the Director of Central Intelligence; however, we cannot countenance the CIA's unprecedented attempt to preclude judicial review when it is absolutely clear that the Director's discretion is expressly limited by the terms of the statute that has been cited by the CIA to support the Director's exercise of authority.
17
Under section 701(a) of the APA,6 agency actions are judicially reviewable
18
except to the extent that--(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.
19
In the decades of litigation over the scope of these two grounds for preclusion, the Supreme Court and this court have emphasized in the strongest terms that preclusion is the rare exception and certainly not the norm. Section 701 "creates a strong presumption of reviewability that can be rebutted only by a clear showing that judicial review would be inappropriate."7 As the Supreme Court most recently explained:
20
We ordinarily presume that Congress intends the executive to obey its statutory commands and, accordingly, that it expects the courts to grant relief when an executive violates such a command.8
21
The presumption of reviewability is firmly rooted even in pre-APA administrative law,9 and is clearly reflected in the legislative history of the APA.10 The compelling reasons for this presumption are well known, and recently have been reiterated in an article by Professor Sunstein:
22
The presumption of reviewability under the APA is based on a set of considerations, loosely captured in the notion of the rule of law, that relate to the perceived need to constrain the exercise of discretionary power by administrative agencies. Judicial review serves important goals in promoting fidelity to statutory requirements and, where those requirements are ambiguous or vague, in increasing the likelihood that the regulatory process will be a reasonable exercise of discretion instead of a bow in the direction of powerful private groups.11
23
In light of the prevailing case law, there is little doubt that, in seeking to overcome the strong presumption of judicial review, the CIA shoulders a very heavy burden. We will address in turn each of the two possible grounds for the preclusion of review.
1. Preclusion by Statute
24
The first question we consider is whether Congress expressed an intention to preclude review of the Director's decision to terminate the employment of a CIA employee under section 102(c). Fortunately, the Supreme Court has elaborated several principles to guide our inquiry.
25
First, there must be a showing of "clear and convincing evidence" of a congressional intent to negate review before courts may legitimately restrict access to judicial review.12 Although the "clear and convincing evidence" standard is not a rigid evidentiary test,13 a court should not refuse to review agency action if there is substantial doubt that Congress intended to preclude review.14 Rather, at the very least, such an intent to preclude review must be "fairly discernible" in the detail of the legislative scheme.15
26
Second, the Supreme Court has never found a congressional intent to preclude review when the statute at issue specifies a standard that at least purports to limit agency discretion. In Southern Railway Co. v. Seaboard Allied Milling Corp.,16 for example, the Court held that the Interstate Commerce Commission's decision not to suspend and investigate a proposed rate increase was not subject to judicial review primarily because the statute was silent on what factors should guide the Commission's decision. When, however, as in Citizens to Preserve Overton Park, Inc. v. Volpe,17 the statute on its face provides a standard limiting agency discretion, the Court "easily" rejects the argument that review is precluded by statute.
27
Simply stated, when agency authority is defined or limited pursuant to a substantive standard, this is highly probative evidence that Congress did not intend to preclude judicial review. Indeed, if the chosen standard is judicially manageable, it is difficult to imagine stronger evidence of an intent not to preclude judicial review. It may be, of course, that the standard chosen by Congress is such that it offers no meaningful basis upon which to judge the agency's exercise of discretion. In such a circumstance, however, the wiser policy is to treat the agency action as "committed to agency discretion" and hence precluded from review by section 701(a)(2). Thus, when Congress has chosen a standard, the preclusion analysis for section 701(a)(2) rather than section 701(a)(1) is appropriate.18
28
Third, the structure of a statutory scheme sometimes may support a finding that Congress intended to preclude judicial review; however, the Supreme Court has accepted arguments based on structure only in a very limited category of cases involving uniquely complex or otherwise delicately balanced statutory schemes. The best example of this is seen in Block v. Community Nutrition Institute,19 where the Supreme Court relied heavily on the omission of an express provision for participation by consumers in the development of milk-market orders as evidence of an intent to preclude consumers from seeking judicial review only because the statute included specific and detailed provisions for the participation of milk handlers and producers.20 Moreover, the Court took care to emphasize the complexity of the statutory scheme.21 Similarly, in Morris v. Gressette,22 the Court held that the Attorney General's failure to object to a change in voting procedure was precluded from review by the Voting Rights Act of 1965. Central to the Court's decision, however, was the delicate balance between Congress' decision to authorize the Attorney General to impose the "extraordinary remedy" of postponing the effect of state legislation and Congress' desire to prevent undue delay.23 3] In other cases involving less complicated or delicate statutory frameworks, nearly identical arguments based on the "statutory framework" have been unavailing.24
29
Under our reading of the extant case law, it is abundantly clear that the CIA has failed to carry its burden to establish clear and convincing evidence of a congressional intent to preclude judicial review in section 102(c). The language of the statute itself cannot be fairly read to preclude judicial review, and legislative history is silent on the issue. Most importantly, section 102(c) provides a standard--the termination must be "necessary or advisable in the interests of the United States." As discussed above, Congress' decision to cabin the Director's discretion by the use of this standard is compelling evidence of its intent not to preclude judicial review. Congress could have left section 102(c) terminations unambiguously to the Director's absolute discretion; this, however, Congress chose not to do. Finally, arguments based on the statutory "framework" simply have no force where, as here, there is a single statutory provision unaccompanied by any "scheme" or "framework."
30
The specific arguments made by the CIA are easily rejected. The CIA contends that the statutory language--"notwithstanding the provisions of section 7501 of title 5, or the provisions of any other law"--removes the basis for any and all judicial review. This argument is, at best, strained. Section 102(c) does not prevent the application of all law; instead, it merely replaces one set of standards--the more rigorous efficiency standards normally applied to the termination of federal employees25--with a new, more relaxed standard: that the termination be "necessary or advisable in the interests of the United States." The obvious result is that the Director of Central Intelligence has far more discretion in personnel matters than other federal agencies. This relaxation in standard, however, in no way manifests a congressional intent to preclude review altogether.
31
The CIA additionally maintains that the sensitive nature of its work requires that judicial review be precluded. Our inquiry, however, is limited to what Congress intended, not what the CIA finds preferable. Congress could have explicitly precluded judicial review; it did not do so. Or, Congress could have written section 102(c) narrowly to state that "the Director may, in his sole discretion, terminate the employment of any officer or employee of the Agency" (omitting any reference to "necessary or advisable in the interests of the United States"); it did not so limit the language of the statute.
32
Moreover, the CIA is unable to offer any contemporaneous legislative history suggesting that Congress intended to preclude judicial review. The CIA merely points to a Senate Report, written decades after the enactment of section 102(c), which incorrectly states that courts have interpreted section 102(c) as giving unlimited discretion to the Director.26 This Report, however, is simply not relevant to congressional intent in 1947.27
33
The CIA has simply failed to overcome the presumption of reviewability. Neither the statute nor legislative history offer even a hint of a congressional intent to preclude review.
2. Committed to Agency Discretion
34
Our next task is to determine whether the standard offered by section 102(c)--that terminations be "necessary or advisable in the interests of the United States"--commits the decisionmaking to the Director's judgment absolutely. As with the section 701(a)(1) exception, the section 701(a)(2) exception for action committed to agency discretion by law is a "narrow" exception,28 and we operate under a presumption of reviewability.29 Indeed, even the Government concedes that this presumption of reviewability applies. It simply asserts that that presumption is sufficiently rebutted in this case.
35
In order for the "committed to agency discretion" exception to preclude judicial review altogether, the Government must establish that "the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion."30 There must, in other words, simply be "no law to apply."31 The fact that a statute gives an agency broad discretion
36
does not render the agency's decisions completely nonreviewable under the "committed to agency discretion by law" exception unless the statutory scheme, taken together with other relevant materials, provides absolutely no guidance as to how that discretion is to be exercised.32
37
In the instant case, we surely cannot find that section 102(c) offers "absolutely no guidance" as to how the Director of Central Intelligence is to exercise his or her discretion to terminate CIA employees. Obviously, courts must give great deference to the judgment of the Director as to what is "necessary or advisable in the interests of the United States," but the Director's exercise of discretion is still subject to judicial review. Without doubt, for example, the Director could not terminate Black employees simply because they are Black, female employees simply because they are female, or even blonde employees simply because they are blonde.33 Indeed, Government counsel conceded at oral argument that the agency was not prepared to say that constitutional claims, or even claims that the Director acted in excess of his or her statutory authority, are precluded from review.
38
Additionally, section 102(c) requires that an employee be terminated only if the termination advances the interests of the United States. Although the court cannot second-guess the Director's decision that the termination of an employee is advisable in the interests of the United States, we must at least satisfy ourselves that the termination has some relationship to the interests of the United States. Thus, section 102(c) terminations cannot be a result of the mere whim of the Director. Otherwise, the words of section 102(c) would become nothing more than a magical incantation immunizing wholly irrational, vindictive or even blatantly unconstitutional action. Assuredly, therefore, the Director's discretion is not absolute.
39
In similar circumstances, other courts have refused to preclude review. In Barlow v. Collins,34 for example, the Supreme Court held that even a statute authorizing the Secretary of Agriculture "to prescribe such regulations as he may deem proper" did not preclude judicial review. In a justly celebrated decision by the late Judge Friendly, the Second Circuit held that the decision of the Immigration and Naturalization Service not to exercise its discretion to suspend an alien's deportation was subject to arbitrary and capricious review even though the statute in question itself offered no standards for the exercise of that discretion.35 Even in a recent case challenging the Government's selective enforcement of a law--an action arguably subject to a presumption of nonreviewability--the Supreme Court did not refuse to review for First and Fifth Amendment violations.36 Finally, this court in Torpats v. McCone37 addressed the very statute at issue in this case and--rather than refuse review--upheld the termination of a CIA employee as "within the authority conferred upon [the Director] by Congress."38
40
We conclude therefore that there is "law to apply." The statute gives broad discretion to the Director, but that discretion is simply not absolute.
41
B. The Alleged Breach of the CIA Regulations
42
On the merits, Doe first claims that a CIA Headquarters regulation imposes independent limitations on the Director's discretion to terminate employees pursuant to section 102(c). Generally, an agency must follow its own regulations, and judicial review is available for claims that agency regulations have been violated.39 At issue here is whether the particular CIA regulation cited by appellee indeed limits the CIA's discretion.
43
We conclude that the CIA regulation does not so limit the Director's discretion. The regulation lists ten circumstances in which employees may be separated from the CIA, the last of which is almost identical to section 102(c):
44
OTHER TERMINATION IN THE INTERESTS OF THE AGENCY. In addition to paragraphs a through i, employees may be terminated if the Director of Central Intelligence determines it necessary and advisable in the interest of the Agency or for other reasons contributing to the efficiency of the Agency.40
45
The regulation also lists procedures that "[n]ormally" will govern separations from the CIA, but cautions that these procedures need not be followed for terminations made pursuant to section 102(c):
46
[Procedures] should be followed insofar as practicable, but there may be circumstances of a case that make these procedures impractical or undesirable, and the case should be handled in a manner conforming to the circumstances. Moreover, to meet the responsibilities placed upon the Agency and pursuant to statutory authority, any employee may be separated immediately and without regard to any suggested procedural steps when the Director of Central Intelligence considers it necessary or advisable in the interests of the United States.41
47
This disclaimer is reiterated later in the regulation:
48
In some other cases, the following modified procedures apply:
49
....
50
(c) Pursuant to statutory authority, the Director of Central Intelligence may separate an employee directly when necessary or advisable in the interests of the United States.42
51
We cannot imagine how the CIA could have more plainly expressed its intent to protect the discretion granted it by section 102(c). Doe's arguments to the contrary are simply without merit. The District Court ruled that the exception for terminations necessary or advisable in the interests of the United States applies only when urgency prevents the application of procedural protections:
52
While section 27m provides that an employee "may be separated immediately and without regard to any suggested procedural steps when the Director ... considers it necessary or advisable in the interest [sic] of the United States" the immediacy and urgency of Doe's employment status is belied by the fact that his voluntary disclosures were made in January 1982, but it was not until five months later--May 1982, that the Director decided to fire him.43
53
This reasoning cannot stand, however, because "immediacy" is not a requirement that must be satisfied before the procedures otherwise provided by the regulations become inapplicable. Rather, if a termination is "necessary or advisable in the interests of the United States," the termination can be made "without regard to any suggested procedural steps" and, in addition, the termination "may" be immediate. The immediate separation discussed in the regulation is an optional course of action available to the Director that he or she need not exercise.
54
The cases cited by Doe and the District Court are equally inapposite. In Ashton v. Civiletti,44 an FBI Handbook informed agency employees that they could "assume that [their] position[s] [are] secure, if [they] continue to do satisfactory work;" and the FBI Handbook contained no exceptions for particular types of terminations as found in the CIA regulations. The court in Ashton did, however, emphasize that--like the CIA--the FBI distinguished between probationary and nonprobationary employees:
55
In the absence of any special definition [of probation], appellant could only be expected to comprehend it in its normal meaning--that he was required to serve an initial proving period in which his performance could be tested and, if his employer was dissatisfied, in which he could be fired without ceremony. A probationary period, of course, would be unnecessary if the employer could dismiss a non-probationary employee at any time and for any reason.45
56
Although the CIA also has a "probationary period," it--unlike the FBI--does give "probation" a "special definition" in its regulation. A termination during this period has its own set of procedures and standards.46 This same regulation, however, explicitly exempts terminations that are "necessary or advisable in the interests of the United States" from any procedural requirements.
57
Similarly, Matlovich v. Secretary of the Air Force47 is not applicable. In that case, this court ordered the Air Force to explain the termination of a homosexual Air Force airman. The court noted, however, that unlike the CIA, the "Air Force regulation expressly contemplates that exceptions can be made to the general policy of separating homosexuals;"48 it was because the regulation expressly contemplated such exceptions that we concluded that the Air Force must provide a reasoned explanation for not making such an exception in an individual case.49 The CIA regulation quite simply includes no such explicit exception.
58
We conclude, therefore, that the CIA regulation provides no independent source of procedural or substantive protections. Doe must look to section 102(c) itself or to the Constitution.
C. Termination of Doe's Employment
59
The APA provides the appropriate standard for our review of Doe's termination pursuant to section 102(c). We must uphold the Director's decision unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."50 At the outset it is critical that we emphasize the broad discretion granted the Director of Central Intelligence by section 102(c). The Director is responsible for one of the most sensitive agencies in the federal government; the keen interest of foreign intelligence agencies in the inner workings of the CIA is obvious. Congress accordingly recognized the need for the Director to have broad power to terminate CIA personnel for even the slightest security risk. The necessity for judicial deference to the judgments of the Director is further highlighted by the difficult nature of the decisions the Director must make. Judgments about the security of the CIA require an expertise unique to those in the intelligence community. As the Supreme Court recently noted in CIA v. Sims,51 "[t]he decisions of the Director, who must of course be familiar with 'the whole picture,' as judges are not, are worthy of great deference given the magnitude of the national security interests and potential risks at stake."52 Moreover, our review must be circumspect because "[i]t is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency."53
60
We conclude, therefore, that although judicial review of the Director's judgments is not precluded, we must apply the arbitrary and capricious standard in the context of this statute which leaves the decision to terminate CIA employment largely to the expertise and judgment of the Director. As a practical matter, therefore, our main concerns will be the arguable infringement of constitutional rights and the possibility that the Director has acted in excess of statutory authority, rather than the wisdom of the termination itself.54
61
Unfortunately, there is great confusion as to precisely what the Director intended to do in this case. We see three possible explanations for the Director's action:
62
(1) The Director may have intended to invoke section 102(c) without giving any reasons at all for the termination of Doe's employment;
63
(2) The Director may have intended to terminate Doe as part of a ban against the employment of all homosexuals; or
64
(3) The Director may have dismissed Doe because Doe's homosexuality presented a security risk.
65
As we discuss below, the resolution of this case depends critically on which of these explanations is applicable. Because of the confusion surrounding the Director's reasoning, we must remand the case to the District Court for further proceedings.
66
1. Invocation of Section 102(c) Without Giving Reasons
67
It may be--albeit unlikely--that the Director terminated Doe's employment for reasons wholly unrelated to Doe's homosexuality. We strongly doubt that this is the case because the CIA displayed no concern about Doe's employment until it was made aware of Doe's homosexuality; and, as we read the record, the clear focus of the CIA's inquiry before the Director decided to terminate Doe's employment was Doe's homosexuality. Because the record is unclear on this point, however, we leave the task of deciding whether the Director fired Doe for other unstated reasons to the District Court.
68
If the Director intends to invoke section 102(c) without giving any reasons at all, a plaintiff must point to something concrete in the record suggesting that section 102(c) is being used as a sham before a court requires the Director to explain his decision to fire the employee. The plaintiff must, for example, point to evidence of an impermissible basis--such as sex, race, hair color, etc.--for the termination. Given the sensitive nature of the CIA's mission, and the risk that merely explaining why information must be withheld "can convey valuable information to a foreign intelligence agency,"55 we cannot permit a "witchhunt" aimed at discovering the reasons for the invocation of section 102(c). Quite simply, we could endanger national security interests if we were to require the CIA to explain each and every decision to terminate the employment of an employee.
69
We must operate under a presumption that the CIA is acting lawfully and in good faith in any invocation of section 102(c), unless the plaintiff gives adequate reason to believe otherwise. Only if a plaintiff offers a basis for suspicion that the Director terminated the plaintiff's employment for an impermissible reason will we require the Director to justify his or her decision. In the instant case, Doe has not even alleged concrete evidence of an impermissible ground unrelated to his homosexuality for the invocation of section 102(c). Thus, we hold that if the Director intended to invoke section 102(c) without reasons in this case, there are no grounds to reverse the Director's decision to terminate Doe's employment and, correspondingly, no bases for requiring the Director to explain his exercise of discretion under section 102(c).
2. Bar Against All Homosexuals
70
Alternatively, the Director may have intended to terminate Doe's employment as part of a CIA policy barring the employment of all homosexuals. The record is somewhat confusing on this point. Doe was not immediately discharged by the CIA; instead, he underwent extensive polygraph examination. This suggests that his mere status as a homosexual was not the reason for his later discharge. Furthermore, Doe's counsel was informed by officials in the CIA General Counsel's Office that decisions to terminate homosexuals would be made on a case-by-case basis. On the other hand, however, Doe was told by several security officers that homosexuality violated CIA rules. Thus, it is unclear to us whether Doe's termination reflects a policy of terminating the employment of all homosexuals. We will leave this issue for resolution by the District Court.
71
If the District Court concludes that the CIA intended to bar all homosexuals, there is an arguable claim that can be litigated. Although this circuit's decision in Dronenburg v. Zech,56 and the Supreme Court's recent decision in Bowers v. Hardwick,57 hold that homosexual conduct is not constitutionally protected, they did not reach the difficult issue of whether an agency of the federal government can discriminate against individuals merely because of sexual orientation. At the very least, the CIA would have to justify why such a ban on the employment of all homosexuals was "necessary or advisable in the interests of the United States."
72
3. Termination Because of Doe's Homosexuality
73
Finally, the Director may have dismissed Doe because Doe's homosexuality presented a security risk. Although we do not believe that this would present any colorable substantive constitutional claim, if this were the case Doe may have a claim that the CIA deprived him of his liberty interest in reputation without due process.
74
In Board of Regents v. Roth,58 the Supreme Court concluded that a government employee's liberty interests are impaired when the government makes a charge against the employee that damages "his standing and associations in the community" or "impose[s] on him a stigma or other disability that foreclose[s] his freedom to take advantage of other employment opportunities."59 An injury to reputation alone, however, is not sufficient to give rise to a colorable liberty interest claim. Instead, a court analyzing a claim of a deprivation of a liberty interest must satisfy itself that a plaintiff has met two requirements. First, the government must have altered the "status" of the employee in some tangible way by, for example, discharging the employee, foreclosing the employee's future employment opportunities, or reducing the employee's rank or pay.60 Second, this change in "status" must be accompanied by injury to the employee's good name, reputation, honor or integrity, or by the imposition of a similar stigma.61
75
There is little question that the first requirement--a change in status--is satisfied in this case. The loss of government employment is the paradigmatic "status change" in liberty-interest jurisprudence.62 Satisfaction of the second requirement is more problematic. In order for Doe to assert the deprivation of a liberty interest, he must establish that the CIA has stigmatized him and that the stigma "has hampered future employment prospects" or injured his good name.63 If the CIA had merely declined to give Doe a security clearance for unspecified reasons, we doubt whether the second requirement would be satisfied. In Molerio v. FBI,64 we held that the decision of the FBI not to hire an applicant because of security clearance problems did not violate the applicant's due process rights:
76
To receive a "top secret" clearance is assuredly a badge of loyalty; but to be denied it on unspecified grounds in no way implies disloyalty or any other repugnant characteristic--as is shown by the evidence in this case that the mere fact that one has relatives in a hostile country may be considered a basis for denial.65
77
Doe, however, was not denied a security clearance "on unspecified grounds." Instead, the CIA will inform Doe's future employers that he presents a security risk because of his homosexuality. Because Doe himself does not view homosexuality as stigmatizing--and indeed, admits that he is a homosexual--he would have no liberty interest claim if all homosexuals were banned from CIA employment.66 If, on the other hand, the CIA terminated Doe because his homosexuality presented a unique security risk not necessarily presented by all other homosexuals, we must conclude that the statement is sufficiently stigmatizing to give rise to a colorable liberty interest claim. If the CIA alleges that something unique about Doe's sexual conduct makes him undesirable for sensitive government work, the inevitable result is that Doe is foreclosed from employment in the field in which he has been especially trained. As a practical matter, Doe will be unable to obtain employment whenever a security clearance is required.67
78
Even if the CIA deprived Doe of his liberty interest in his reputation, however, our inquiry is not at an end. The due process clause requires that the CIA not deprive Doe of his liberty interest without due process of law. We must therefore determine whether Doe received the process he was due. Doe was entitled to an opportunity to refute the charges and "clear his name."68 The sole purpose of this "name-clearing hearing" is to do just that--give the employee an opportunity to clear his or her name. This name-clearing hearing need not be formal; the fundamental requirement is that Doe have an opportunity to be heard in a meaningful manner.69 As the Seventh Circuit explained,
79
In its essence, a hearing demands that the person have the right to support his allegations by argument, however brief, and if necessary, by proof, however informal.70
80
We conclude that Doe was given a meaningful opportunity to contest any allegation that his homosexuality presented a security risk--indeed, a meaningful opportunity that Doe and his counsel vigorously pursued. Doe had notice that the CIA was seriously concerned about his homosexuality. The CIA furthermore permitted Doe to examine the polygraph officer's report, and to submit lengthy written arguments on his behalf. Finally, Doe makes no allegation that either the Office of Security or the Director of Central Intelligence were biased.71 In the context of a very sensitive agency such as the CIA, we cannot say that the Constitution requires more.72
III. CONCLUSION
81
Section 102(c) terminations are subject to judicial review. Because the statute leaves the decision of whether an individual's employment should be terminated as "necessary or advisable in the interests of the United States" largely to the discretion of the Director of Central Intelligence, however, judicial review must be deferential. The District Court erred by showing insufficient deference to the judgment of the Director. However, because the record is unclear on certain critical points that may have a bearing on Doe's claims for relief, we remand this case for further proceedings consistent with this opinion.
82
So ordered.
GINSBURG, Circuit Judge, concurring:
83
The careful reader of the opinions in this case will find that the two sides part company widely only at the last step of the way. First, both sides agree that the "wisdom" of the Director's employment termination decisions is not for courts to judge. Majority Opinion at 1522; see id. at 1521-22 (court presumes Director "is acting lawfully and in good faith" unless plaintiff "point[s] to evidence of an impermissible basis--such as sex, race, hair color, etc.--for the termination"). Second, both sides also agree that there is, indeed, a "role" for the court to play. See Partial Dissent at 1533-34. The dissent, although more reservedly than the majority, recognizes that the court's review legitimately extends to the question whether "the Director has acted in excess of statutory authority." Majority Opinion at 1521; see Partial Dissent at 1533 (acknowledging the court's legitimate function, when its review authority is invoked, "to ensure that the Director acted within the bounds of his statutory authority").
84
The majority, but apparently not the dissent, regards it as the province of the court to entertain arguable claims of constitutional rights. See Majority Opinion at 1521, 1522. While both sides would review to keep the Director within the bounds of ordinary legislation, the dissent, it seems, would not necessarily extend court review to the Director's compliance with the nation's highest law. I find the dissent's stopping point curious, and not persuasively explained. Whether a court may review at all, and how it should rule if it does review, of course, are discrete questions. Cf. Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160 39 L.Ed.2d 389 (1974) (statute precluding judicial review of Veterans' Administration decisions did not bar court consideration of constitutional claims--Court went on to decide merits against plaintiff).
85
BUCKLEY, Circuit Judge, concurring in part and dissenting in part:
86
I concur in sections II(B) and II(C)(3) of the majority opinion, which hold (a) that CIA regulations provide no procedural or substantive rights beyond those granted under section 102(c) of the National Security Act of 1947, 50 U.S.C. Sec. 403(c) (1982); and (b) that as Doe has been accorded all the process that is his due, he has not been deprived of a liberty interest without due process of law. Nevertheless, because the majority ignores the obvious legislative intent in section 102(c) to shield the Director's employee termination decisions from judicial review, I must dissent from the balance of the opinion.
87
As the majority notes, there exists a strong presumption that agency actions are reviewable. See, e.g., Block v. Community Nutrition Inst., 467 U.S. 340, 349, 104 S.Ct. 2450 2456 81 L.Ed.2d 270 (1984). Judicial review is unavailable, however,
88
to the extent that--(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.
89
Administrative Procedure Act, 5 U.S.C. Sec. 701(a) (1982). Disregarding Supreme Court case law and this court's own precedent, the majority overstates both the conclusiveness of the presumption of reviewability and the difficulty of establishing the section 701(a) exceptions. Furthermore, by ignoring the plain meaning and objectives of section 102(c), the majority manages to avoid what should be the obvious conclusion that that statute both precludes judicial review within the meaning of section 701(a)(1) and commits termination decisions to the nonreviewable discretion of the Director of the CIA ("Director") within the meaning of section 701(a)(2).
I. STATUTORY PRECLUSION
A. The Standard for Finding Preclusion
90
To support its holding that judicial review of a section 102(c) termination decision is not precluded by statute, the majority relies on cases such as Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851 1857 44 L.Ed.2d 377 (1975), Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814 820 28 L.Ed.2d 136 (1971), and Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507 1510 18 L.Ed.2d 681 (1967), which speak of a "strong presumption" of reviewability, overcome only by "clear and convincing evidence" of congressional intent to preclude review. Since issuing these opinions, however, the Supreme Court has made significant refinements in its preclusion analysis which, in its reliance on the older precedents, the majority has failed to apply.
91
In Block v. Community Nutrition Inst., 467 U.S. 340, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984), the Supreme Court reversed this court's holding that an agency action was subject to judicial review. In finding judicial review unavailable, the Court articulated three refinements of its earlier analysis. First, the Court emphasized that the presumption of reviewability is rebuttable:
92
The presumption favoring judicial review of administrative action is just that--a presumption. This presumption, like all presumptions used in interpreting statutes, may be overcome by ... reliable indicator[s] of congressional intent.
93
Id. at 349, 104 S.Ct. at 2456. Second, the Court indicated some permissible sources from which to infer such intent:
94
Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.
95
Id. at 345, 104 S.Ct. at 2454. Finally, the Court described the evidentiary standard to be applied in determining the existence of a congressional intent to preclude review:
96
In the context of preclusion analysis, the "clear and convincing evidence" standard is not a rigid evidentiary test but a useful remainder to courts that, where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling.
97
Id. at 351, 104 S.Ct. at 2457. This presumption is overcome, however,
98
whenever the congressional intent to preclude judicial review is fairly discernible in the statutory scheme.
99
Id. (citations omitted).
100
Subsequent Supreme Court cases have reaffirmed the Block analysis. See Lindahl v. Office of Personnel Management,470 U.S. 768, 105 S.Ct. 1620 1627 84 L.Ed.2d 674 (1985) ("[T]he 'clear and convincing evidence' standard has never turned on a talismanic test." Rather, preclusion may be found in a statute's "express language, ... the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved."); Bowen v. Michigan Academy of Family Physicians, --- U.S. ----, 106 S.Ct. 2133 2137 90 L.Ed.2d 623 (1986).
101
Thus, although the Director's termination of Doe pursuant to section 102(c) is presumptively reviewable, this presumption is rebutted if the congressional intent to preclude review is "fairly discernible" from the face of the statute, the statutory scheme, the statute's objectives, the legislative history, or from the nature of the administrative action here involved. The demonstration of this congressional intent must be "clear and convincing," but not in a strict evidentiary sense; rather, the presumption comes into play "where substantial doubt" about that intent exists. In essence, the teaching of Block and subsequent cases is that the courts should not be hostile to congressional preclusion of judicial review of particular administrative actions, but should conduct an objective assessment of all relevant sources in order to determine what it is that Congress in fact intended.
B. The Standard Applied By The Majority
102
Notwithstanding the straightforward inquiry into congressional intent espoused in Block, the majority extracts three principles from Supreme Court precedent that serve to accentuate the difficulty of establishing preclusion.
103
The majority first requires that congressional intent to preclude judicial review be established by "clear and convincing evidence." (Majority Opinion at 1514). While conceding Block's holding that this is "not a rigid evidentiary test," the majority nevertheless manages to add a little starch to that case's holding. The majority cites Block in support of the proposition that the congressional intent to preclude review must "at the very least, ... be 'fairly discernible' in the detail of the legislative scheme." Id. at 1515 (emphasis added). In fact, in Block, the Supreme Court went no further than to hold that a sufficiently "clear and convincing" showing is made "whenever the congressional intent to preclude judicial review is 'fairly discernible in the statutory scheme,' " 467 U.S. at 351, 104 S.Ct. at 2457 (emphasis added).
104
The majority's second principle states that "when the statute at issue specifies a standard that at least purports to limit agency discretion ..., this is highly probative evidence that Congress did not intend to preclude judicial review." (Majority Opinion at 1515). In support of this proposition, the majority cites Southern Ry. v. Seaboard Allied Milling Corp., 442 U.S. 444, 455-56, 94 S.Ct. 2388 2394-95 60 L.Ed.2d 1017 (1979), in which the Supreme Court held an Interstate Commerce Commission decision nonreviewable, relying in part on the fact that the statute authorizing the decision "is silent on what factors should guide the Commission's decision." The problem here is that while a lack of statutory standards may well support an inference of nonreviewability, this hardly supports the inverse proposition that the presence of standards implies reviewability. Not all standards, after all, demand, or are capable of, judicial application.
105
As its third principle, the majority asserts that congressional intent to preclude judicial review may be inferred from the statutory scheme "only in a very limited category of cases involving uniquely complex or otherwise delicately balanced statutory schemes." (Majority Opinion at 1515). While it is true that in Block the Supreme Court relied on the details of the complex statutory scheme to infer a congressional intent to preclude review, 467 U.S. at 349, 104 S.Ct. at 2456, the Court has never intimated that a simpler statutory scheme would not support the same inference. In any case, the majority's insistence on complexity or delicacy of balance simply obscures the fact that the statutory scheme is but one of several elements identified by the Court in Block from which congressional intent might be inferred.
106
Having defined its own restrictive standards for finding statutory preclusion, the majority has little difficulty in ignoring the clear indications that Congress intended section 102(c) decisions to be nonreviewable.
107
C. Indicators of Congressional Intent to Preclude Review Of Section 102(c) Termination Decisions
1. The Statutory Language
108
On its face, section 102(c) clearly indicates a congressional intent to prohibit judicial review. The relevant portion of section 102(c) provides:
109
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.
110
As demonstrated below, the "notwithstanding" clause provides "clear and convincing" evidence of the congressional intention to prohibit judicial review.
111
Section 102(c) was enacted at a time when federal personnel actions were not subject to judicial review. United States v. Testan, 424 U.S. 392, 406, 96 S.Ct. 948 957 47 L.Ed.2d 114 (1976). Congress, however, had adopted the Lloyd-LaFollette Act granting federal employees limited employment and procedural protections. 5 U.S.C. Sec. 652 (1964), ch. 389, Sec. 6, 37 Stat. 539, 555 (1912); recodified as 5 U.S.C. Sec. 7501, Act of Sept. 6, 1966, Pub.L. No. 89-554, 80 Stat. 378, 527-28 (1966); subsequently replaced by 5 U.S.C. Sec. 7501 et seq. (1980), Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111, 1134 et seq. (1978). Under that Act, a federal employee could be removed only "for such cause as will promote the efficiency of [the] service," and he was granted the right to receive written notice of any charges against him, to file a written answer to those charges, and to receive a prompt written decision in response to that answer. Any further procedures, such as examination of witnesses, trial, or hearing were available only at the discretion of the agency official seeking the employee's removal. With the adoption of section 102(c), CIA employees were stripped of even these limited rights and became subject to summary termination without a statement of reasons or opportunity to protest.
112
The majority nevertheless ignores section 102(c)'s elimination of the procedural protections of the Lloyd-LaFollette Act and focuses instead on the substantive provision prohibiting the dismissal of an employee "except for such cause as will promote the efficiency of the service." As a result, the majority is able to dismiss the elimination of Lloyd-LaFollette protections as "merely replac[ing] one set of standards--the more rigorous efficiency standards ...--with a new, more relaxed standard: that the termination be 'necessary or advisable in the interests of the United States.' " (Majority Opinion at 1516). Thus, argues the majority, the resulting expansion in the Director's discretion does not imply a preclusion of judicial review. Id.
113
The essential flaw in the majority's reasoning is its failure to recognize that the Director's termination decisions are insulated by section 102(c) from the procedural as well as the substantive provisions of the Lloyd-LaFollette Act. Thus, it finds itself in the untenable position of insisting that terminated CIA employees retain the right to judicial review even though Congress has stripped them of the minimal procedural rights of a statement of charges and a chance to respond.
114
The majority's holding that section 102(c) does not preclude judicial review relies significantly on its conclusion that the section "provides a standard" that constrains the Director's discretion. As discussed in section II(A) below, the majority arrives at this conclusion by misreading section 102(c) to require that the discharge of a particular employee actually be in the national interest. All that the statute prescribes, however, is that the Director deem it to be. Thus, the majority fails to draw the necessary distinction between judicial confirmation of the Director's purpose in terminating an employee (he deems it in the national interest) and a review of the correctness of the belief on which he acts. While a court may satisfy itself as to the former, it may not inquire into the latter. This clear distinction is underscored in Service v. Dulles, 235 F.2d 215 (D.C.Cir.1956), which deals with Department of State Appropriations Act, 1952, ch. 533, Sec. 103, 65 Stat. 575, 581 (1951) (expired at the close of fiscal year 1952), a statute essentially identical to section 102(c), to wit:
115
Notwithstanding 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.
116
Id. at 216 n. 1. In construing the statute, this court cited with approval the following excerpt from the district court's "well-expressed" opinion:
117
This Court cannot, of course, review the correctness of the former Secretary of State's determination. Its function is limited to determining whether any procedural requirement of the statute was violated in plaintiff's discharge.
118
Under [Sec. 103 of the Appropriations Act] there was one procedural requirement: that the Secretary of State must determine in his discretion that the termination of plaintiff's employment was necessary or advisable in the interests of the United States.
119
Id. at 218. The court found that this requirement had been satisfied, as evidenced by an affidavit by the Secretary of State stating he had discharged the employee in the exercise of the authority vested in him, inter alia, by section 103 of Public Law 188, and it affirmed the lower court's grant of summary judgment for the government.
120
The Supreme Court subsequently reversed, Service v. Dulles, 354 U.S. 363, 388, 77 S.Ct. 1152 1165 1 L.Ed.2d 1403 (1956), but only because the Secretary had not complied with his own departmental regulations which imposed more exacting procedures for termination than were required by statute. The Court specifically noted that under the statute "the Secretary was not obligated to impose upon himself these more rigorous substantive and procedural standards." 354 U.S. at 388, 77 S.Ct. at 1165. Thus, this court's holding in Service clearly applies to section 102(c), and dictates a finding of statutory preclusion as to any inquiry beyond the Director's satisfaction of the "procedural requirement" that he deems the termination to be in the national interest.
121
2. Further Indications of Congressional Intent to Preclude Review
122
In Block, the Supreme Court held that the congressional intent to preclude judicial review within the meaning of section 701(a)(1) could be ascertained not only from the express language of the statute, but also from the statutory objectives and the nature of the administrative action involved. 467 U.S. at 345, 104 S.Ct. at 2454. In the instant case, these factors clearly confirm a congressional intent to preclude review.
123
Section 102(c) authorizes the Director to terminate an employee whenever he deems such action in the interests of the United States, unencumbered by the requirements of the Lloyd-LaFollette Act. Absent this authorization, the Director could only terminate an employee "for such cause as will promote the efficiency of [the] service," and would be required to give such an employee a written copy of the charges against him and an opportunity to answer those charges. The obvious purpose of section 102(c) is to allow the Director to terminate employees unimpeded by these substantive and procedural requirements. Subjecting the Director's decisions to judicial scrutiny flies in the face of this clear legislative purpose.
124
This conclusion is supported by the nature of the administrative action involved. The summary dismissal authority granted to the Director by the National Security Act of 1947 is a natural and necessary function of the extraordinary sensitivity that surrounds every aspect of our national security operations. The abiding concern for the ability of sensitive agencies to maintain absolute control over personnel is reflected in a 1964 Senate committee report commenting on the proposed grant to the Secretary of Defense of "summary power ... to terminate the employment of any employee" of the National Security Agency upon a determination that the exercise of this power was "in the interests of the United States." Citing the fact that identical authority had earlier been granted the Director of the CIA, the report explained:
125
The responsibilities assigned to the National Security Agency are so great, and the consequences of error so devastating, that authority to deviate from [proposed procedures providing federal employees with the benefit of conventional procedural protections] should be granted to this agency.
126
S.Rep. No. 926, 88th Cong., 2d Sess., 2 (1964), U.S.Code Cong. & Admin.News 1964, pp. 2114, 2115. It is of course true, as the majority points out, that a Congress has no authority to interpret the meaning of statutes enacted by its predecessors. The passage I have quoted, however, sheds light on the nature of the national security concerns with which successive Congresses have been called upon to deal.
127
No agency is more sensitive, and few so important to our national safety, as the CIA. As the Supreme Court has pointed out, its effectiveness has been "thought by every President since Franklin D. Roosevelt to be essential to the security of the United States and--in a sense--the free world." Snepp v. United States, 444 U.S. 507, 512 n. 7, 100 S.Ct. 763 767 n. 7, 62 L.Ed.2d 704 (1980). To safeguard the agency's effectiveness, Congress has given "the Director of Central Intelligence broad power to protect the secrecy and integrity of the intelligence process. The reasons are too obvious to call for enlarged discussion; without such protections the agency would be virtually impotent." CIA v. Sims,471 U.S. 159, 105 S.Ct. 1881 1888 85 L.Ed.2d 173 (1985). Judicial intrusion into the CIA's personnel actions can threaten to expose the agency's inner processes and compromise its integrity.[T]he very nature of the intelligence apparatus of any country is to try to find out the concerns of others; bits and pieces of data may aid in piecing together bits of other information even when the individual piece is not of obvious importance in itself.... [W]hat may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context.... It is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency.... And it is the responsibility of the Director of Central Intelligence, not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agency's intelligence gathering process.
128
Id. at 1892-94 (citations omitted). These imperative needs explain why Congress, in 1947, provided the Director with summary power to terminate employees as to whom he had any question while, at the same time, stripping those employees of the only protections they then enjoyed under federal law.
129
In sum, the explicit language of section 102(c), the clear statutory objectives, and the nature of the administrative action here involved all lead to the inescapable conclusion that Congress intended to preclude judicial review of the Director's exercise of his authority under that section.
II. COMMITMENT TO AGENCY DISCRETION
130
Even absent these clear and convincing indications of congressional intent, the court should nevertheless hold the Director's decision shielded from judicial review because section 102(c) commits this decision to the Director's discretion within the meaning of section 701(a)(2). The majority avoids this conclusion first by reading non-existent constraints into the section 102(c) grant of termination authority, and then by ignoring this court's precedents sanctioning a less restrictive standard for finding a commitment to agency discretion.
131
A. The Majority's Overstatement of the Constraints Section 102(c) Imposes on the Director's Exercise of Discretion
132
In order to support its holding that section 701(a)(2) does not prohibit judicial review of the Director's exercise of authority under section 102(c), the majority overstates the constraints the latter imposes on the Director's discretion.
133
In the first place, the majority misstates section 102(c) by asserting that it establishes a standard requiring "that terminations be 'necessary or advisable in the interests of the United States.' " (Majority Opinion at 1517). From this misreading, the majority concludes that "section 102(c) requires that an employee be terminated only if the termination advances the interests of the United States." (Majority Opinion at 1518) (emphasis in the original). Thus, the door is opened to at least limited scrutiny into the merits of the Director's decision. The statute, however, does not read that way. Far from requiring that a particular termination in fact advance the national interest, section 102(c) goes no further than to authorize the Director "in his discretion" to terminate any employee "whenever he shall deem such termination necessary or advisable in the interests of the United States." (emphasis added). Thus the operative requirement is that the Director believe that the termination safeguards the interests of the United States and not (as the majority suggests) that it do so in fact.
134
Moreover, the statutory language cannot be read to authorize a court to inquire into the reasons for the Director's decision to terminate an employee because that decision is delegated to his discretion alone. As this court held in Service v. Dulles, supra, the judicial function is limited to a determination that the statute's "procedural requirements" have been met; namely, that the decision to terminate was in fact based on the Director's assessment of the national interest. Beyond that, we cannot inquire.
135
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. This represents, of course, an unusually broad delegation of authority. It was, however, the judgment of Congress that the Director should have that latitude, and it is not for this court to second-guess that judgment.
136
B. The Majority's Failure to Apply this Court's Precedents Regarding the Standard for Finding Commitment to Agency Discretion Within the Meaning of Section 701(a)(2)
137
Based on its finding that section 102(c) establishes a standard that constrains the Director's exercise of his discretion in terminating employees, the majority holds that the Director's decisions are judicially reviewable. This holding is premised on the notion that the "committed to agency discretion" exception applies only when "a court would have no meaningful standard" to apply (Majority Opinion at 1517); this notion, however, applies too narrow a reading of the Supreme Court's interpretation of section 701(a)(2), and directly contravenes this court's own precedents.
138
In support of the proposition that section 701(a)(2) applies only where there is "no law to apply" (Majority Opinion at 14), the majority cites Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 410, 91 S.Ct. at 821, and Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649 1655 84 L.Ed.2d 714 (1985). In those cases, however, the Supreme Court held only that section 701(a)(2) "is a very narrow exception" and that it is "applicable in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply," or so drawn that "a court would have no meaningful standard against which to judge the agency's exercise of discretion." Nowhere does the Court state that this exception applies only in those cases.
139
The majority simply ignores this court's cases holding that section 701(a)(2) is evoked not only by the absence of applicable standards, but also by certain pragmatic considerations. In Natural Resources Defense Council, Inc. v. SEC,606 F.2d 1031, 1043-44 (D.C.Cir.1979), this court held that the application of section 701(a)(2)
140
necessarily turns on pragmatic considerations as to whether an agency determination is the proper subject of judicial review.... In making this determination, we ... evaluate the relevance of three particularly important factors: the need for judicial supervision to safeguard the interests of the plaintiffs; the impact of review on the effectiveness of the agency in carrying out its congressionally assigned role; and the appropriateness of the issues raised for judicial review.... Finally, we inquire whether the considerations in favor of nonreviewability thus identified are sufficiently compelling to rebut the strong presumption of judicial review.
141
Accord, Local 1219, AFGE v. Donovan, 683 F.2d 511, 515 (D.C.Cir.1982) (Section 701(a)(2) "shields from review only those matters for which a 'fair appraisal of the legislative scheme, including a weighing of practical and policy implications of reviewability, persuasively indicates that judicial review should be circumscribed.' " (citation omitted)).
142
An assessment of the "pragmatic considerations" in the instant case, including "the impact of review on the effectiveness of the agency in carrying out its congressionally assigned role," clearly weighs against judicial review of the Director's section 102(c) decisions.
143
As the Supreme Court observed when dealing with a different section of the National Security Act of 1947:
144
The decisions of the Director, who must of course be familiar with "the whole picture," as judges are not, are worthy of great deference given the magnitude of the national security interests and potential risks at stake. It is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency.
145
CIA v. Sims, 105 S.Ct. at 1893. Here, of course, we are dealing not with a question of deference but of judicial competence. To intrude however deferentially into the Director's most sensitive personnel decisions entails the inevitable risk of unwittingly compromising national intelligence operations through the forced disclosure of information whose possible significance a court is not capable of assessing.
146
Whether or not such a danger exists in this particular case, the majority would establish a precedent that 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. This would tend to compromise the CIA's vital, congressionally-mandated functions. These pragmatic considerations "are sufficiently compelling to rebut the strong presumption of judicial review." Natural Resources Defense Council, 606 F.2d at 1044.*
147
Even accepting, for the sake of argument, the majority's narrow position that section 701(a)(2) applies only when there is "no law to apply," judicial review is nevertheless precluded. Section 102(c) represents one of those "very narrow exceptions" where "there is no law to apply." It is in fact drawn in such a manner that "a court would have no meaningful standard against which to judge" the Director's exercise of his statutory discretion. It bears repeating that the operative standard here is not whether the termination of a particular employee serves the national interest (as the majority maintains), but whether the Director believes it does. In the murky world in which the CIA must operate, one deals as often as not with intuitions as well as with provable facts, and a judge's perception of the national interest could be light years away from that of the Director called upon to make the critical judgments in the discharge of his special responsibilities. Given the nature of the discretion the Director is required to exercise, where is the law to be applied, where the meaningful standard against which any judge can take the measure of his performance?
148
It is noteworthy that in not a single case cited by the majority in support of judicial review of the exercise of agency discretion did the challenged decision involve considerations of national security: e.g., Citizens to Preserve Overton Park (highway planning); Robbins v. Reagan, 780 F.2d 37 (D.C.Cir.1985) (shelter for the homeless); Local 1219, AFGE v. Donovan, 683 F.2d 511 (D.C.Cir.1982) (settlement agreement between the Department of Labor and a federal employees' union resolving charges of unfair election procedures); WWHT, Inc. v. FCC, 656 F.2d 807 (D.C.Cir.1981) (FCC denial of rulemaking petition); Adams v. Richardson, 480 F.2d 1159 (D.C.Cir.1973) (en banc) (school desegregation); State of Fla. v. United States Dep't of Interior, 768 F.2d 1248 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1186 89 L.Ed.2d 302 (1986) (Government acquisition of land to be held in trust for Indian tribe); Wong Wing Hang v. INS, 360F.2d 715 (2d Cir.1966) (denial of application for suspension of deportation). Nor does a single case relied upon by the majority involve a situation where judicial review could pose the threat of disrupting "the effectiveness of the agency in carrying out its congressionally assigned role."
149
Because judicial review would tend to be sufficiently disruptive of the CIA's mission to rebut the presumption of reviewability, and because section 102(c) imposes no substantive constraints on the Director's exercise of his discretion and provides no meaningful standard for a court to apply, the Director's action is committed to his discretion within the meaning of section 701(a)(2) and is not subject to review.
III. ARGUABLE CONSTITUTIONAL RIGHTS
150
Having decided that section 102(c) does not preclude judicial inquiry into the Director's rationale for terminating an employee, the majority proceeds to explore alternative explanations for the Director's action in search of one that might constitute an "arguable infringement of constitutional rights" (Majority Opinion at 1521) (emphasis in the original). It found one (at least to its own satisfaction) in the possibility that the termination of Doe might have been "part of a ban against the employment of all homosexuals." See Majority Opinion at 1522-1523. While the majority concedes that the Supreme Court in Bowers v. Harwick, --- U.S. ----, 106 S.Ct. 2841 92 L.Ed.2d 140 (1986), and this court in Dronenburg v. Zech, 741 F.2d 1388 (D.C.Cir.1984), have held that homosexual conduct is not constitutionally protected, it argues that these courts did not reach "the difficult issue of whether an agency of the federal government can discriminate against individuals merely because of sexual orientation " (Majority Opinion at 1522) (emphasis in the original).
151
Accordingly, the majority remands the case with instructions to the district court (as I understand them) to determine whether the CIA has a policy of terminating the employment of all homosexuals. Presumably, if such a policy were found, the issue would then arise whether homosexual orientation, as opposed to homosexual conduct, is constitutionally protected. (Majority Opinion at 1522-1523).
152
At this point it is well to remind ourselves of what the Supreme Court described, in Sims, as "the harsh realities of the present day." 105 S.Ct. at 1891. In few areas of our national life can a single mistake lead to such calamitous consequences as in our national security services; in few areas are those in responsibility under such a heavy obligation to avoid the slightest identifiable risk. As one who shares the belief that the Constitution is not a suicide pact, I cannot agree that an intelligence agency is even arguably precluded from adopting a policy banning the employment of members of any class which the Director might deem to be more susceptible to blackmail than the average. Nor may we assume (as the majority apparently does) that every constitutional inquiry will suffice to override a congressional decision to preclude judicial review for reasons of national security. Be that as it may, neither that issue nor the majority's hypothetical is before us, and the plain meaning of section 102(c) precludes the kind of judicial fishing expedition on which the majority proposes to dispatch the district court.
IV. REMAINING JUDICIAL ROLE
153
Judicial review of the Director's section 102(c) decision to terminate Doe's employment is unavailable under either section 701(a)(1) or section 701(a)(2). The only legitimate role remaining for this court is to ensure that the Director acted within the bounds of his statutory authority, i.e., that his decision to terminate Doe's employment was in fact based upon his appraisal that "such termination [was] necessary or advisable in the interests of the United States." This is precisely the role to which this court limited itself in finding that the Director had acted within his authority in Torpats v. McCone, 300 F.2d 914 (D.C.Cir.), cert. denied, 371 U.S. 886, 83 S.Ct. 182 9 L.Ed.2d 121 (1962). See also Service v. Dulles, 235 F.2d 215 (D.C.Cir.1956).
154
In the instant case, as in Torpats, the record contains the Director's sworn statement that "[a]fter careful consideration of the matter, [the Director] determined that the termination of Mr. Doe's employment was necessary and advisable in the interests of the United States." This statement suffices to require our holding "that the Director acted within the authority conferred upon him by Congress...." 300 F.2d at 915.
155
As this comprises the extent of the legitimate inquiry, this case should be remanded to the district court with instructions to dismiss.
1
50 U.S.C. Sec. 403(c) (1982)
2
John Doe is proceeding under a pseudonym only because his status as a CIA employee cannot be publicly acknowledged, not because of any embarrassment about his homosexuality
3
Joint Appendix ("J.A.") 31
4
50 U.S.C. Sec. 403(c) (1982)
5
Doe principally seeks an explanation of precisely why his employment was terminated
6
5 U.S.C. Sec. 701(a) (1982)
7
Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031, 1043 (D.C.Cir.1979); see also Dunlop v. Bachowski, 421U.S. 560, 567, 95 S.Ct. 1851 1857 44 L.Ed.2d 377 (1975); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814 820 28 L.Ed.2d 136 (1971); Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507 1510 18 L.Ed.2d 681 (1967); WWHT, Inc. v. FCC, 656 F.2d 807, 815 (D.C.Cir.1981)
8
Bowen v. Michigan Academy of Family Physicians, --- U.S. ----, 106 S.Ct. 2133, 2140-41, 90 L.Ed.2d 623 (1986)
9
5 K. DAVIS, ADMINISTRATIVE LAW TREATISE Sec. 28.4 (2d ed. 1984)
10
See H.R. REP. NO. 1980, 79th Cong., 2d Sess. 41 (1946) ("To preclude judicial review under this bill a statute, if not specific in withholding such review, must upon its face give clear and convincing evidence of an intent to withhold it.")
11
Sunstein, Reviewing Agency Inaction After Heckler v. Chaney, 52 U.CHI.L.REV. 653, 655 (1985)
12
See Lindahl v. Office of Personnel Management, 470 U.S. 768, 105 S.Ct. 1620 1627 84 L.Ed.2d 674 (1985); Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851 1857 44 L.Ed.2d 377 (1975); Citizens to Preserve Overton Park, Inc. v. Volpe,401 U.S. 402, 410, 91 S.Ct. 814 820 28 L.Ed.2d 136 (1971); Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967); WWHT, Inc. v. FCC, 656 F.2d 807, 809 (D.C.Cir.1981). As discussed previously, this "clear and convincing evidence" standard is based on clear congressional intent. See H.R.REP. NO. 1980, supra note 10, at 41
13
Block v. Community Nutrition Institution, 467 U.S. 340, 351, 104 S.Ct. 2450, 2457, 81 L.Ed.2d 270 (1984)
14
Id
15
Id. (quoting Data Processing Service v. Camp, 397 U.S. 150, 157, 90 S.Ct. 827 831 25 L.Ed.2d 184 (1970))
16
442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979)
17
401 U.S. 402, 410, 91 S.Ct. 814 820 28 L.Ed.2d 136 (1971)
18
As Justice Rehnquist noted in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649 1655 84 L.Ed.2d 714 (1985), section 701(a)(2)'s preclusion of review when a decision is "committed to agency discretion" would be unnecessary unless there are circumstances in which "Congress has not affirmatively precluded review," but has chosen a standard such that "a court would have no meaningful standard against which to judge the agency's exercise of discretion."
19
467 U.S. 340, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984)
20
Id. at 346-47, 104 S.Ct. at 2454-55
21
See, e.g., id. at 347, 348 & 352, 104 S.Ct. at 2455, 2456, 2458. A similar logic was used to find preclusion in Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979). Congress provided mandatory language in the statute when it wished to provide judicial review. Therefore, its use of permissive language without any standard was strong evidence of an intent to preclude review
22
432 U.S. 491, 97 S.Ct. 2411 53 L.Ed.2d 506 (1977)
23
Id. at 504
24
See, e.g., Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851 1857 44 L.Ed.2d 377 (1975); Local 1219, AFGE v. Donovan, 683 F.2d 511, 516-18 & n. 16 (D.C.Cir.1982) (permissive statutory language alone does not suggest a congressional intent to preclude review)
25
Section 102(c) specifically references only one portion of the United States Code--5 U.S.C. Sec. 7501 (1982). This is an unambiguous reference to the statutory protections offered most federal employees. See 5 U.S.C. Secs. 7501-14 (1982) (providing standards and procedure for adverse actions against federal employees). Under these provisions a federal employee may be dismissed "only for such cause as will promote the efficiency of the service." 5 U.S.C. Sec. 7513(a) (1982)
26
See S.REP. NO. 77, 98th Cong., 1st Sess. 6-7 (1983), cited in Reply Brief for Appellant at 9. It is manifestly untrue that all courts have interpreted section 102(c) as precluding review. Indeed, this circuit in Torpats v. McCone, 300 F.2d 914, 915 (D.C.Cir.), cert. denied, 371 U.S. 886, 83 S.Ct. 182 9 L.Ed.2d 121 (1962), upheld a termination of a CIA employee as "within the authority conferred [on the Director] by Congress" and did not refuse review
27
One final CIA argument deserves only a short comment. The CIA argues that the statute's language, "[n]otwithstanding ... any other law," explicitly prevents the application of the APA. Although we agree that the APA is a "law," we find it plain that it is not the type of law to which the statute refers. The "law[s]" to which section 102(c) refers are those that would otherwise limit the Director's discretion to terminate CIA employees. The APA does not itself limit the Director's discretion. Instead, APA review merely ensures that the Director does not exceed the authority granted by section 102(c) and that the Director does not violate other limits--such as the Constitution--on his or her discretion
28
Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 1659, 84 L.Ed.2d 714 (1985); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814 820 28 L.Ed.2d 136 (1971); Adams v. Richardson, 480 F.2d 1159, 1161 (D.C.Cir.1973) (en banc)
29
Robbins v. Reagan, 780 F.2d 37, 45 (D.C.Cir.1985). While Heckler v. Chaney, 105 S.Ct. at 1656, applied a presumption of nonreviewability to agency enforcement discretion, even the Government admits that no such presumption is applicable in the instant case. This case concerns agency action that involves coercive power over a federal employee and in an area traditionally subject to judicial scrutiny. See Heckler v. Chaney, 105 S.Ct. at 1656 (contrasting an agency's decision not to act with agency action such as that involved in the instant case); Robbins, 780 F.2d at 45 (limiting Heckler's presumption of nonreviewability to enforcement decisions)
30
Heckler v. Chaney, 105 S.Ct. at 1655; see State of Florida v. United States Dep't of the Interior, 768 F.2d 1248, 1255 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1186 89 L.Ed.2d 302 (1986)
31
Citizens to Preserve Overton Park, Inc., 401 U.S. at 410, 91 S.Ct. at 820 (quoting S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945))
32
Robbins, 780 F.2d at 45; see also Local 1219, AFGE v. Donovan, 683 F.2d 511, 515 (D.C.Cir.1982)
33
Even in cases in which courts have held actions "committed to agency discretion by law," some review is still available to ensure that the agency has not violated other constitutional or statutory commands. See Hondros v. United States Civil Service Comm'n, 720 F.2d 278, 293 (3d Cir.1983) ("even those actions 'committed to agency discretion by law' are reviewable on grounds that the agency lacked jurisdiction, that the agency's decision was occasioned by 'impermissible influences,' or that the decision violates any constitutional, statutory, or regulatory command"); WWHT, Inc. v. FCC, 656 F.2d at 815 n. 15 ("In no event would a finding of non-reviewability on the ground that an action is committed to agency discretion preclude judicial review when constitutional violations have been alleged."); Sunstein, supra note 11, at 658 ("[I]f a plaintiff claims that an agency has taken constitutionally impermissible factors into account, there is always 'law to apply'--no matter what the governing statute may say. Similarly, if the plaintiff alleges that the agency's conduct has been based on factors that are irrelevant under the governing statute, there is always law to apply, even if the agency has especially broad discretion in weighing those factors that are statutorily relevant.")
34
397 U.S. 159, 166, 90 S.Ct. 832 837 25 L.Ed.2d 192 (1970)
35
Wong Wing Hang v. INS, 360 F.2d 715 (2d Cir.1966). Judge Friendly explained the possible grounds for a finding of an abuse of discretion:
Without essaying comprehensive definition, we think the denial of suspension to an eligible alien would be an abuse of discretion if it were made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as an invidious discrimination against a particular race or group, or, in Judge Learned Hand's words, on other "considerations that Congress would not have intended to make relevant."
Id. at 719 (quoting United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2d Cir.1950)). Clearly these same factors would also constitute an abuse of discretion in the context of section 102(c) terminations.
36
See Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524 1531 84 L.Ed.2d 547 (1985) (challenging selective prosecution of draft registration law violators)
37
300 F.2d 914 (D.C.Cir.), cert. denied, 371 U.S. 886, 83 S.Ct. 182 9 L.Ed.2d 121 (1962)
38
Id. at 915
39
See Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152 1 L.Ed.2d 1403 (1957)
40
CIA Regulation HR 20-27(j), reprinted in J.A. 35
41
Id. 20-27m (emphasis added)
42
Id. 20-27m(8)
43
Doe v. Casey, 601 F.Supp. 581, 587 n. 4 (D.D.C.1985)
44
613 F.2d 923 (D.C.Cir.1980)
45
Id. at 929
46
See CIA Regulation HR 20-27(a); 20-27m(8)(b) ("In the case of separation during the trial period, the procedures of paragraph a are to be followed."), supra note 40
47
591 F.2d 852 (D.C.Cir.1978)
48
Id. at 855
49
Id. at 859
50
5 U.S.C. Sec. 706(2)(A) (1982)
51
471 U.S. 159, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985)
52
Id. at 1893
53
Id
54
In cases involving challenges to agency failures to institute rulemaking we have similarly declined to find a preclusion of review, but have exercised only a narrow scope of review. See WWHT, Inc. v. FCC, 656 F.2d 807, 809 (D.C.Cir.1981) ("[W]e hold that, except where there is evidence of a 'clear and convincing legislative intent to negate review,' ... an agency's denial of a rulemaking petition is subject to judicial review. However, we believe that the decision to institute rulemaking is one that is largely committed to the discretion of the agency, and that the scope of review of such a determination must, of necessity, be very narrow.") (quoting Natural Resources Defense Council, Inc. v. SEC, 606 F.2d1031, 1043 (D.C.Cir.1979))
55
Sims, 105 S.Ct. at 1893
56
741 F.2d 1388 (D.C.Cir.1984)
57
--- U.S. ----, 106 S.Ct. 2841 92 L.Ed.2d 140 (1986)
58
408 U.S. 564 (1972)
59
Id. at 573
60
See Paul v. Davis, 424 U.S. 693, 711, 96 S.Ct. 1155 1165 47 L.Ed.2d 405 (1976); Mosrie v. Barry, 718 F.2d 1151, 1161 (D.C.Cir.1983). For purposes of a liberty interest claim, it is not relevant that the public employee's job did not constitute a property interest. See Doe v. United States Dep't of Justice, 753 F.2d 1092, 1106-07 (D.C.Cir.1985).61 Doe v. United States Dep't of Justice, 753 F.2d at 1105
62
See, e.g., id. at 1106-08; Mosrie, 718 F.2d at 1161-62
63
Doe v. United States Dep't of Justice, 753 F.2d at 1111
64
749 F.2d 815 (D.C.Cir.1984)
65
Id. at 824 (emphasis added)
66
See Beller v. Middendorf, 632 F.2d 788, 806 (9th Cir.1980) (when "real stigma imposed by the Navy's action ... is the charge of homosexuality," which plaintiffs admit, there is no deprivation of liberty), cert. denied, 452 U.S. 905, 101 S.Ct. 3030 69 L.Ed.2d 405 (1981)
67
While it may be true that other agencies and private employers will make their own determination of Doe's security risk, as a practical matter, we find it inconceivable that other agencies would second-guess such a determination by the CIA. At the very least, the potential foreclosure of economic opportunities is as great as that found to violate liberty interests in recent cases in this circuit. See, e.g., Doe v. United States Dep't of Justice, 753 F.2d at 1112-13 & n. 24 (information in employee's file indicating that employee was terminated for unprofessional conduct and dishonesty gives rise to liberty claim); Old Dominion Dairy Products, Inc. v. Secretary of Defense, 631 F.2d 953, 962-66 (D.C.Cir.1980) ("lack of integrity" charge that was communicated to other government agencies gave rise to liberty interest claim); see also White v. Thomas, 660 F.2d 680, 684-85 (5th Cir.1981) (charge that employee lied on his employment application gave rise to liberty interest due process claim), cert. denied, 455 U.S. 1027, 102 S.Ct. 1731 72 L.Ed.2d 148 (1982)
68
Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct. 882 883 51 L.Ed.2d 92 (1977)
69
Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893 901 47 L.Ed.2d 18 (1976)
70
Endicott v. Huddleston, 644 F.2d 1208, 1216 (7th Cir.1980)
71
See, e.g., Staton v. Mayes, 552 F.2d 908, 913-14 (10th Cir.) (finding potential due process violation because of biased decisionmaker), cert. denied, 434 U.S. 907, 98 S.Ct. 309 54 L.Ed.2d 195 (1977)
72
Similar informal procedures have been upheld. See, e.g., Campbell v. Pierce County, 741 F.2d 1342, 1345-46 (11th Cir.1984) (rejecting liberty interest due process claim when plaintiff had notice and the opportunity to rebut claims of insubordination and mishandling of funds), cert. denied, --- U.S. ----, 105 S.Ct. 1754 84 L.Ed.2d 818 (1985); Endicott, 644 F.2d at 1216 (rejecting requirement that government call witnesses whom the employee's counsel could cross-examine)
*
In support of its position that such pragmatic concerns need not be considered, and that the presence of a judicially manageable standard is the only issue relevant to the applicability of section 701(a)(2), the majority cites two cases from this court, Adams v. Richardson, 480 F.2d 1159 (D.C.Cir.1973) (en banc), and Robbins v. Reagan, 780 F.2d 37(D.C.Cir.1985). These cases, however, are both distinguishable. Neither case involved an agency with a sensitive, national security-related mission, and in neither did judicial review pose the threat of disrupting "the effectiveness of the agency in carrying out its congressionally assigned role." Natural Resources Defense Council, 606 F.2d at 1044. In fact, in both cases the court emphasized that its scrutiny would not interfere with agency functioning. 480 F.2d at 1162; 780 F.2d at 47
The majority also cites Local 1219, AFGE v. Donovan, but far from supporting the majority's narrow reading of section 701(a)(2), that case directs the court to weigh the "practical and policy implications of reviewability." 683 F.2d at 515.
Supreme Court of United States.
Argued January 12, 1988
Decided June 15, 1988
- CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
*594 Solicitor General Fried argued the cause for petitioner. With him on the briefs were Assistant Attorney General Willard, Deputy Solicitor General Ayer, Paul J. Larkin, Jr., Barbara L. Herwig, Barbara C. Biddle, David P. Doherty, and R. Bruce Burke.
Mark H. Lynch argued the cause for respondent. With him on the brief were William H. Allen, Elliott Schulder, John A. Powell, Helen Hershkoff, and Steven R. Shapiro.[*]
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Section 102(c) of the National Security Act of 1947, 61 Stat. 498, as amended, provides that:
"[T]he 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 . . . ." 50 U. S. C. § 403(c).
In this case we decide whether, and to what extent, the termination decisions of the Director under § 102(c) are judicially reviewable.
I
Respondent John Doe was first employed by the Central Intelligence Agency (CIA or Agency) in 1973 as a clerk-typist. He received periodic fitness reports that consistently rated him as an excellent or outstanding employee. By 1977, respondent had been promoted to a position as a covert electronics technician.
*595 In January 1982, respondent voluntarily informed a CIA security officer that he was a homosexual. Almost immediately, the Agency placed respondent on paid administrative leave pending an investigation of his sexual orientation and conduct. On February 12 and again on February 17, respondent was extensively questioned by a polygraph officer concerning his homosexuality and possible security violations. Respondent denied having sexual relations with any foreign nationals and maintained that he had not disclosed classified information to any of his sexual partners. After these interviews, the officer told respondent that the polygraph tests indicated that he had truthfully answered all questions. The polygraph officer then prepared a five-page summary of his interviews with respondent, to which respondent was allowed to attach a two-page addendum.
On April 14, 1982, a CIA security agent informed respondent that the Agency's Office of Security had determined that respondent's homosexuality posed a threat to security, but declined to explain the nature of the danger. Respondent was then asked to resign. When he refused to do so, the Office of Security recommended to the CIA Director (petitioner's predecessor) that respondent be dismissed. After reviewing respondent's records and the evaluations of his subordinates, the Director "deemed it necessary and advisable in the interests of the United States to terminate [respondent's] employment with this Agency pursuant to section 102(c) of the National Security Act . . . ."[1]Respondent was also advised that, while the CIA would give him a positive recommendation in any future job search, if he applied for a job requiring a security clearance the Agency would inform the prospective employer that it had concluded that respondent's homosexuality presented a security threat.
Respondent then filed an action against petitioner in the United States District Court for the District of Columbia. *596Respondent's amended complaint asserted a variety of statutory and constitutional claims against the Director.[2]Respondent alleged that the Director's decision to terminate his employment violated the Administrative Procedure Act (APA), 5 U. S. C. § 706, because it was arbitrary and capricious, represented an abuse of discretion, and was reached without observing the procedures required by law and CIA regulations.[3] He also complained that the Director's termination of his employment deprived him of constitutionally protected rights to property, liberty, and privacy in violation of the First, Fourth, Fifth, and Ninth Amendments. Finally, he asserted that his dismissal transgressed the procedural due process and equal protection of the laws guaranteed by the Fifth Amendment. Respondent requested a declaratory judgment that the Director had violated the APA and the Constitution, and asked the District Court for an injunction ordering petitioner to reinstate him to the position he held with the CIA prior to his dismissal. As an alternative remedy, he suggested that he be returned to paid administrative leave and that petitioner be ordered to reevaluate respondent's employment termination and provide a statement *597 of the reasons for any adverse final determination. Respondent sought no monetary damages in his amended complaint.
Petitioner moved to dismiss respondent's amended complaint on the ground that § 102(c) of the National Security Act (NSA) precludes judicial review of the Director's termination decisions under the provisions of the APA set forth in 5 U. S. C. §§ 701, 702, and 706 (1982 ed., Supp. IV). Section 702 provides judicial review to any "person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." The section further instructs that "[a]n action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party." The scope of judicial review under § 702, however, is circumscribed by § 706, see n. 3, supra, and its availability at all is predicated on satisfying the requirements of § 701, which provides:
"(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."
The District Court denied petitioner's motion to dismiss, and granted respondent's motion for partial summary judgment. The court determined that the APA provided judicial review of petitioner's termination decisions made under § 102(c) of the NSA, and found that respondent had been unlawfully discharged because the CIA had not followed the procedures described in its own regulations. The District Court declined, however, to address respondent's constitutional claims. Respondent was ordered reinstated to administrative *598 leave status, and the Agency was instructed to reconsider his case using procedures that would supply him with the reasons supporting any termination decision and provide him with an opportunity to respond.
A divided panel of the Court of Appeals for the District of Columbia Circuit vacated the District Court's judgment and remanded the case for further proceedings. The Court of Appeals first decided that judicial review under the APA of the Agency's decision to terminate respondent was not precluded by §§ 701(a)(1) or (a)(2). Turning to the merits, the Court of Appeals found that, while an agency must normally follow its own regulations, the CIA regulations cited by respondent do not limit the Director's discretion in making termination decisions. Moreover, the regulations themselves state that, with respect to terminations pursuant to § 102(c), the Director need not follow standard discharge procedures, but may direct that an employee "be separated immediately and without regard to any suggested procedural steps."[4] The majority thus concluded that the CIA regulations provide no independent source of procedural or substantive protection.
The Court of Appeals went on to hold that respondent must demonstrate that the Director's action was an arbitrary and capricious exercise of his power to discharge employees under § 102(c).[5] Because the record below was unclear on certain points critical to respondent's claim for relief, the Court of Appeals remanded the case to District Court for a determination of the reason for the Director's termination of respondent.[6] We granted certiorari to decide the question *599 whether the Director's decision to discharge a CIA employee under § 102(c) of the NSA is judicially reviewable under the APA.
II
The APA's comprehensive provisions, set forth in 5 U. S. C. §§ 701-706 (1982 ed. and Supp. IV), allow any person "adversely affected or aggrieved" by agency action to obtain judicial review thereof, so long as the decision challenged represents a "final agency action for which there is no other adequate remedy in a court." Typically, a litigant will contest an action (or failure to act) by an agency on the ground that the agency has neglected to follow the statutory directives of Congress. Section 701(a), however, limits application of the entire APA to situations in which judicial review is not precluded by statute, see § 701(a)(1), and the agency action is not committed to agency discretion by law, see § 701(a)(2).
In Citizens to Preserve Overton Park, Inc. v. Volpe401 U. S. 402401U. S.402 (1971), this Court explained the distinction between §§ 701(a)(1) and (a)(2). Subsection (a)(1) is concerned with whether Congress expressed an intent to prohibit judicial review; subsection (a)(2) applies "in those rare instances where `statutes are drawn in such broad terms that in a given case there is no law to apply.' " 401 U. S., at 410 (citing S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)).
We further explained what it means for an action to be "committed to agency discretion by law" in Heckler v. Chaney470 U. S. 821470U. S.821 (1985). Heckler required the Court to determine whether the Food and Drug Administration's decision not to undertake an enforcement proceeding against the use of certain drugs in administering the death penalty was subject to judicial review. We noted that, under § 701(a) (2), even when Congress has not affirmatively precluded judicial *600 oversight, "review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." 470 U. S., at 830. Since the statute conferring power on the Food and Drug Administration to prohibit the unlawful misbranding or misuse of drugs provided no substantive standards on which a court could base its review, we found that enforcement actions were committed to the complete discretion of the FDA to decide when and how they should be pursued.
Both Overton Park and Heckler emphasized that § 701 (a)(2) requires careful examination of the statute on which the claim of agency illegality is based (the Federal-Aid Highway Act of 1968 in Overton Park and the Federal Food, Drug, and Cosmetic Act in Heckler). In the present case, respondent's claims against the CIA arise from the Director's asserted violation of § 102(c) of the NSA. As an initial matter, it should be noted that § 102(c) allows termination of an Agency employee whenever the Director "shall deem such termination necessary or advisable in the interests of the United States" (emphasis added), not simply when the dismissal is necessary or advisable to those interests. This standard fairly exudes deference to the Director, and appears to us to foreclose the application of any meaningful judicial standard of review. Short of permitting cross-examination of the Director concerning his views of the Nation's security and whether the discharged employee was inimical to those interests, we see no basis on which a reviewing court could properly assess an Agency termination decision. The language of § 102(c) thus strongly suggests that its implementation was "committed to agency discretion by law."
So too does the overall structure of the NSA. Passed shortly after the close of the Second World War, the NSA created the CIA and gave its Director the responsibility "for protecting intelligence sources and methods from unauthorized disclosure." See 50 U. S. C. § 403(d)(3); S. Rep. No. 239, 80th Cong., 1st Sess., 2 (1947); H. R. Rep. No. 961, *601 80th Cong., 1st Sess., 3-4 (1947). Section 102(c) is an integral part of that statute, because the Agency's efficacy, and the Nation's security, depend in large measure on the reliability and trustworthiness of the Agency's employees. As we recognized in Snepp v. United States444 U. S. 507444U. S.507, 510 (1980), employment with the CIA entails a high degree of trust that is perhaps unmatched in Government service.
This overriding need for ensuring integrity in the Agency led us to uphold the Director's use of § 102(d)(3) of the NSA to withhold the identities of protected intelligence sources in CIA v. Sims471 U. S. 159471U. S.159 (1985). In denying respondent's Freedom of Information Act requests in Sims to produce certain CIA records, we stated that "[t]he plain meaning of the statutory language, as well as the legislative history of the National Security Act, . . . indicates that Congress vested in the Director of Central Intelligence very broad authority to protect all sources of intelligence information from disclosure." Id., at 168-169. Section 102(c), that portion of the NSA under consideration in the present case, is part and parcel of the entire Act, and likewise exhibits the Act's extraordinary deference to the Director in his decision to terminate individual employees.
We thus find that the language and structure of § 102(c) indicate that Congress meant to commit individual employee discharges to the Director's discretion, and that § 701(a)(2) accordingly precludes judicial review of these decisions under the APA. We reverse the Court of Appeals to the extent that it found such terminations reviewable by the courts.
III
In addition to his claim that the Director failed to abide by the statutory dictates of § 102(c), respondent also alleged a number of constitutional violations in his amended complaint. Respondent charged that petitioner's termination of his employment deprived him of property and liberty interests under the Due Process Clause of the Fifth Amendment,*602 denied him equal protection of the laws, and unjustifiably burdened his right to privacy. Respondent asserts that he is entitled, under the APA, to judicial consideration of these claimed violations.[7]
We share the confusion of the Court of Appeals as to the precise nature of respondent's constitutional claims. It is difficult, if not impossible, to ascertain from the amended complaint whether respondent contends that his termination, based on his homosexuality, is constitutionally impermissible, or whether he asserts that a more pervasive discrimination policy exists in the CIA's employment practices regarding all homosexuals. This ambiguity in the amended complaint is no doubt attributable in part to the inconsistent explanations respondent received from the Agency itself regarding his termination. Prior to his discharge, respondent had been told by two CIA security officers that his homosexual activities themselves violated CIA regulations. In contrast, the Deputy General Counsel of the CIA later informed respondent that homosexuality was merely a security concern that did not inevitably result in termination, but instead was evaluated on a case-by-case basis.
*603 Petitioner maintains that, no matter what the nature of respondent's constitutional claims, judicial review is precluded by the language and intent of § 102(c). In petitioner's view, all Agency employment termination decisions, even those based on policies normally repugnant to the Constitution, are given over to the absolute discretion of the Director, and are hence unreviewable under the APA. We do not think § 102(c) may be read to exclude review of constitutional claims. We emphasized in Johnson v. Robison415 U. S. 361415U. S.361 (1974), that where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear. Id., at 373-374. InWeinberger v. Salfi422 U. S. 749422U. S.749 (1975), we reaffirmed that view. We require this heightened showing in part to avoid the "serious constitutional question" that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim. See Bowen v. Michigan Academy of Family Physicians476 U. S. 667476U. S.667, 681, n. 12 (1986).
Our review of § 102(c) convinces us that it cannot bear the preclusive weight petitioner would have it support. As detailed above, the section does commit employment termination decisions to the Director's discretion, and precludes challenges to these decisions based upon the statutory language of § 102(c). A discharged employee thus cannot complain that his termination was not "necessary or advisable in the interests of the United States," since that assessment is the Director's alone. Subsections (a)(1) and (a)(2) of § 701, however, remove from judicial review only those determinations specifically identified by Congress or "committed to agency discretion by law." Nothing in § 102(c) persuades us that Congress meant to preclude consideration of colorable constitutional claims arising out of the actions of the Director pursuant to that section; we believe that a constitutional claim based on an individual discharge may be reviewed by *604 the District Court.[8] We agree with the Court of Appeals that there must be further proceedings in the District Court on this issue.
Petitioner complains that judicial review even of constitutional claims will entail extensive "rummaging around" in the Agency's affairs to the detriment of national security. See Tr. of Oral Arg. 8-13. But petitioner acknowledges that Title VII claims attacking the hiring and promotion policies of the Agency are routinely entertained in federal court, see Reply Brief for Petitioner 13-14; Tr. of Oral Arg. 9, and the inquiry and discovery associated with those proceedings would seem to involve some of the same sort of rummaging. Furthermore, the District Court has the latitude to control any discovery process which may be instituted so as to balance respondent's need for access to proof which would support a colorable constitutional claim against the extraordinary needs of the CIA for confidentiality and the protection of its methods, sources, and mission. See Kerr v. United States District Court426 U. S. 394426U. S.394, 405 (1976); United States v. Reynolds345 U. S. 1345U. S.1 (1953).
Petitioner also contends that even if respondent has raised a colorable constitutional claim arising out of his discharge, Congress in the interest of national security may deny the courts the authority to decide the claim and to order respondent's reinstatement if the claim is upheld. For the reasons previously stated, we do not think Congress meant to impose such restrictions when it enacted § 102(c) of the NSA. Even without such prohibitory legislation from Congress, of course, traditional equitable principles requiring the balancing of public and private interests control the grant of declaratory *605 or injunctive relief in the federal courts. Weinberger v. Romero-Barcelo456 U. S. 305456U. S.305 (1982); Hecht Co. v. Bowles321 U. S. 321321U. S.321, 329-330 (1944). On remand, the District Court should thus address respondent's constitutional claims and the propriety of the equitable remedies sought.
The judgment of the Court of Appeals is affirmed in part, reversed in part, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE KENNEDY took no part in the consideration or decision of this case.
JUSTICE O'CONNOR, concurring in part and dissenting in part.
I agree that the Administrative Procedure Act (APA) does not authorize judicial review of the employment decisions referred to in § 102(c) of the National Security Act of 1947. Because § 102(c) does not provide a meaningful standard for judicial review, such decisions are clearly "committed to agency discretion by law" within the meaning of the provision of the APA set forth in 5 U. S. C. § 701(a)(2). I do not understand the Court to say that the exception in § 701(a)(2) is necessarily or fully defined by reference to statutes "drawn in such broad terms that in a given case there is no law to apply." See Citizens to Preserve Overton Park, Inc. v. Volpe401 U. S. 402401U. S.402, 410 (1971), quoted ante,at 599. Accordingly, I join Parts I and II of the Court's opinion.
I disagree, however, with the Court's conclusion that a constitutional claim challenging the validity of an employment decision covered by § 102(c) may nonetheless be brought in a federal district court. Whatever may be the exact scope of Congress' power to close the lower federal courts to constitutional claims in other contexts, I have no doubt about its authority to do so here. The functions performed by the Central Intelligence Agency and the Director of Central Intelligence lie at the core of "the very delicate, plenary and *606 exclusive power of the President as the sole organ of the federal government in the field of international relations." United States v. Curtiss-Wright Export Corp299 U. S. 304299U. S.304, 320 (1936). The authority of the Director of Central Intelligence to control access to sensitive national security information by discharging employees deemed to be untrustworthy flows primarily from this constitutional power of the President, and Congress may surely provide that the inferior federal courts are not used to infringe on the President's constitutional authority. See, e. g., Department of Navy v. Egan484 U. S. 518484U. S.518, 526-530 (1988); Totten v. United States92 U. S. 10592U. S.105 (1876). Section 102(c) plainly indicates that Congress has done exactly that, and the Court points to nothing in the structure, purpose, or legislative history of the National Security Act that would suggest a different conclusion. Accordingly, I respectfully dissent from the Court's decision to allow this lawsuit to go forward.
JUSTICE SCALIA, dissenting.
I agree with the Court's apparent holding in Part II of its opinion, ante, at 600 and 601, that the Director's decision to terminate a CIA employee is "committed to agency discretion by law" within the meaning of 5 U. S. C. § 701(a)(2). But because I do not see how a decision can, either practically or legally, be both unreviewable and yet reviewable for constitutional defect, I regard Part III of the opinion as essentially undoing Part II. I therefore respectfully dissent from the judgment of the Court.
I
Before proceeding to address Part III of the Court's opinion, which I think to be in error, I must discuss one significant element of the analysis in Part II. Though I subscribe to most of that analysis, I disagree with the Court's description of what is required to come within subsection (a)(2) of § 701, which provides that judicial review is unavailable "to the extent that . . . agency action is committed to agency discretion *607 by law."[*] The Court's discussion, ante, at 599-600, suggests that the Court of Appeals below was correct in holding that this provision is triggered only when there is "no law to apply." See Doe v. Casey, 254 U. S. App. D. C. 282, 291-293, 796 F. 2d. 1508, 1517-1519 (1986). But see id., at 305-307, 796 F. 2d, at 1531-1533 (Buckley, J., dissenting). Our precedents amply show that "commit[ment] to agency discretion by law" includes, but is not limited to, situations in which there is "no law to apply."
The Court relies for its "no law to apply" formulation upon our discussion in Heckler v. Chaney470 U. S. 821470U. S.821(1985) — which, however, did not apply that as the sole criterion of § 701(a)(2)'s applicability, but to the contrary discussed the subject action's "general unsuitability" for review, and adverted to "tradition, case law, and sound reasoning." 470 U. S., at 831. Moreover, the only supporting authority for the "no law to apply" test cited in Chaneywas our observation in Citizens to Preserve Overton Park, Inc. v. Volpe401 U. S. 402401U. S.402 (1971), that "[t]he legislative history of the Administrative Procedure Act indicates that [§ 701(a)(2)] is applicable in those rare instances where `statutes are drawn in such broad terms that in a given case there is no law to apply.' S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)," id., at 410. Perhaps Overton Park discussed only the "no law to apply" factor because that was the only basis for nonreviewability *608 that was even arguably applicable. It surely could not have believed that factor to be exclusive, for that would contradict the very legislative history, both cited and quoted in the opinion, from which it had been derived, which read in full: "The basic exception of matters committed to agency discretion would apply even if not stated at the outset [of the judicial review Chapter]. If, for example, statutes are drawn in such broad terms that in a given case there is no law to apply, courts of course have no statutory question to review." S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945) (emphasis added).
The "no law to apply" test can account for the nonreviewability of certain issues, but falls far short of explaining the full scope of the areas from which the courts are excluded. For the fact is that there is no governmental decision that is not subject to a fair number of legal constraints precise enough to be susceptible of judicial application — beginning with the fundamental constraint that the decision must be taken in order to further a public purpose rather than a purely private interest; yet there are many governmental decisions that are not at all subject to judicial review. A United States Attorney's decision to prosecute, for example, will not be reviewed on the claim that it was prompted by personal animosity. Thus, "no law to apply" provides much less than the full answer to whether § 701(a)(2) applies.
The key to understanding the "committed to agency discretion by law" provision of § 701(a)(2) lies in contrasting it with the "statutes preclude judicial review" provision of § 701(a)(1). Why "statutes" for preclusion, but the much more general term "law" for commission to agency discretion? The answer is, as we implied in Chaney, that the latter was intended to refer to "the `common law' of judicial review of agency action," 470 U. S., at 832 — a body of jurisprudence that had marked out, with more or less precision, certain issues and certain areas that were beyond the range of judicial review. That jurisprudence included principles *609 ranging from the "political question" doctrine, to sovereign immunity (including doctrines determining when a suit against an officer would be deemed to be a suit against the sovereign), to official immunity, to prudential limitations upon the courts' equitable powers, to what can be described no more precisely than a traditional respect for the functions of the other branches reflected in the statement inMarbury v. Madison, 1 Cranch 137, 170-171 (1803), that "[w]here the head of a department acts in a case, in which executive discretion is to be exercised; in which he is the mere organ of executive will; it is again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation." See, e. g., Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp333 U. S. 103333U. S.103, 110-114 (1948); Switchmen v. National Mediation Board320 U. S. 297320U. S.297, 301-306 (1943); United States v. George S. Bush & Co310 U. S. 371310U. S.371, 379-380 (1940); Reaves v. Ainsworth219 U. S. 296219U. S.296, 306 (1911); Confiscation Cases, 7 Wall. 454, 457-459 (1869); Martin v. Mott, 12 Wheat. 19, 29-30 (1827). Only if all that "common law" were embraced within § 701 (a)(2) could it have been true that, as was generally understood, "[t]he intended result of [§ 701(a)] is to restate the existing law as to the area of reviewable agency action." Attorney General's Manual on the Administrative Procedure Act 94 (1947). Because that is the meaning of the provision, we have continued to take into account for purposes of determining reviewability, post-APA as before, not only the text and structure of the statute under which the agency acts, but such factors as whether the decision involves "a sensitive and inherently discretionary judgment call,"Department of Navy v. Egan484 U. S. 518484U. S.518, 527 (1988), whether it is the sort of decision that has traditionally been nonreviewable, ICC v. Locomotive Engineers482 U. S. 270482U. S.270, 282 (1987); Chaney, supra, at 832, and whether review would have "disruptive practical consequences," see Southern R. Co. v. Seaboard Allied Milling Corp442 U. S. 444442U. S.444, 457 (1979). This explains *610 the seeming contradiction between § 701(a)(2)'s disallowance of review to the extent that action is "committed to agency discretion," and § 706's injunction that a court shall set aside agency action that constitutes "an abuse of discretion." Since, in the former provision, "committed to agency discretion by law" means "of the sort that is traditionally unreviewable," it operates to keep certain categories of agency action out of the courts; but when agency action is appropriately in the courts, abuse of discretion is of course grounds for reversal.
All this law, shaped over the course of centuries and still developing in its application to new contexts, cannot possibly be contained within the phrase "no law to apply." It is not surprising, then, that although the Court recites the test it does not really apply it. Like other opinions relying upon it, this one essentially announces the test, declares victory and moves on. It is not really true " `that a court would have no meaningful standard against which to judge the agency's exercise of discretion,' " ante, at 600, quoting Chaney, 470 U. S., at 830. The standard set forth in § 102(c) of the National Security Act of 1947, 50 U. S. C. § 403(c), "necessary or advisable in the interests of the United States," at least excludes dismissal out of personal vindictiveness, or because the Director wants to give the job to his cousin. Why, on the Court's theory, is respondent not entitled to assert the presence of such excesses, under the "abuse of discretion" standard of § 706?
If and when this Court does come to consider the reviewability of a dismissal such as the present one on the ground that it violated the agency's regulations — a question the Court avoids today, see ante, at 602, n. 7 — the difference between the "no law to apply" test and what I consider the correct test will be crucial. Perhaps a dismissal in violation of the regulations can be reviewed, but not simply because the regulations provide a standard that makes review possible. Thus, I agree with the Court's holding in Part II of its opinion *611 (though, as will soon appear, that holding seems to be undone by its holding in Part III), but on different reasoning.
II
Before taking the reader through the terrain of the Court's holding that respondent may assert constitutional claims in this suit, I would like to try to clear some of the underbrush, consisting primarily of the Court's ominous warning that "[a] `serious constitutional question'. . . would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim." Ante, at 603, quoting from Bowen v. Michigan Academy of Family Physicians476 U. S. 667476U. S.667, 681, n. 12 (1986).
The first response to the Court's grave doubt about the constitutionality of denying all judicial review to a "colorable constitutional claim" is that the denial of all judicial review is not at issue here, but merely the denial of review in United States district courts. As to that, the law is, and has long been, clear. Article III, § 2, of the Constitution extends the judicial power to "all Cases . . . arising under this Constitution." But Article III, § 1, provides that the judicial power shall be vested "in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish" (emphasis added). We long ago held that the power not to create any lower federal courts at all includes the power to invest them with less than all of the judicial power.
"The Constitution has defined the limits of the judicial power of the United States, but has not prescribed how much of it shall be exercised by the Circuit Court; consequently, the statute which does prescribe the limits of their jurisdiction, cannot be in conflict with the Constitution, unless it confers powers not enumerated therein." Sheldon v. Sill, 8 How.441, 449 (1850).
Thus, if there is any truth to the proposition that judicial cognizance of constitutional claims cannot be eliminated, it*612 is, at most, that they cannot be eliminated from state courts, and from this Court's appellate jurisdiction over cases from state courts (or cases from federal courts, should there be any) involving such claims. Narrowly viewed, therefore, there is no shadow of a constitutional doubt that we are free to hold that the present suit, whether based on constitutional grounds or not, will not lie.
It can fairly be argued, however, that our interpretation of § 701(a)(2) indirectly implicates the constitutional question whether state courts can be deprived of jurisdiction, because if they cannot, then interpreting § 701(a)(2) to exclude relief here would impute to Congress the peculiar intent to let state courts review Federal Government action that it is unwilling to let federal district courts review — or, alternatively, the peculiar intent to let federal district courts review, upon removal from state courts pursuant to 28 U. S. C. § 1442(a)(1), claims that it is unwilling to let federal district courts review in original actions. I turn, then, to the substance of the Court's warning that judicial review of all "colorable constitutional claims" arising out of the respondent's dismissal may well be constitutionally required. What could possibly be the basis for this fear? Surely not some general principle that all constitutional violations must be remediable in the courts. The very text of the Constitution refutes that principle, since it provides that "[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members," Art. I, § 5, and that "for any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place," Art. I, § 6. Claims concerning constitutional violations committed in these contexts — for example, the rather grave constitutional claim that an election has been stolen — cannot be addressed to the courts. See, e. g., Morgan v. United States, 255 U. S. App. D. C. 231, 801 F. 2d 445801F. 2d445 (1986). Even apart from the strict text of the Constitution, we have found some constitutional claims to be beyond judicial review because they involve *613 "political questions." See, e. g., Coleman v. Miller307 U. S. 433307U. S.433, 443-446 (1939); Ohio ex rel. Bryant v. Akron Metropolitan Park District281 U. S. 74281U. S.74, 79-80 (1930). The doctrine of sovereign immunity — not repealed by the Constitution, but to the contrary at least partly reaffirmed as to the States by the Eleventh Amendment — is a monument to the principle that some constitutional claims can go unheard. No one would suggest that, if Congress had not passed the Tucker Act, 28 U. S. C. § 1491(a)(1), the courts would be able to order disbursements from the Treasury to pay for property taken under lawful authority (and subsequently destroyed) without just compensation. See Schillinger v. United States155 U. S. 163155U. S.163, 166-169 (1894). And finally, the doctrine of equitable discretion, which permits a court to refuse relief, even where no relief at law is available, when that would unduly impair the public interest, does not stand aside simply because the basis for the relief is a constitutional claim. In sum, it is simply untenable that there must be a judicial remedy for every constitutional violation. Members of Congress and the supervising officers of the Executive Branch take the same oath to uphold the Constitution that we do, and sometimes they are left to perform that oath unreviewed, as we always are.
Perhaps, then, the Court means to appeal to a more limited principle, that although there may be areas where judicial review of a constitutional claim will be denied, the scope of those areas is fixed by the Constitution and judicial tradition, and cannot be affected by Congress, through the enactment of a statute such as § 102(c). That would be a rather counterintuitive principle, especially since Congress has in reality been the principal determiner of the scope of review, for constitutional claims as well as all other claims, through its waiver of the pre-existing doctrine of sovereign immunity. On the merits of the point, however: It seems to me clear that courts would not entertain, for example, an action for backpay by a dismissed Secretary of State claiming that the *614 reason he lost his Government job was that the President did not like his religious views — surely a colorable violation of the First Amendment. I am confident we would hold that the President's choice of his Secretary of State is a "political question." But what about a similar suit by the Deputy Secretary of State? Or one of the Under Secretaries? Or an Assistant Secretary? Or the head of the European Desk? Is there really a constitutional line that falls at some immutable point between one and another of these offices at which the principle of unreviewability cuts in, and which cannot be altered by congressional prescription? I think not. I think Congress can prescribe, at least within broad limits, that for certain jobs the dismissal decision will be unreviewable — that is, will be "committed to agency discretion by law."
Once it is acknowledged, as I think it must be, (1) that not all constitutional claims require a judicial remedy, and (2) that the identification of those that do not can, even if only within narrow limits, be determined by Congress, then it is clear that the "serious constitutional question" feared by the Court is an illusion. Indeed, it seems to me that if one is in a mood to worry about serious constitutional questions the one to worry about is not whether Congress can, by enacting § 102(c), give the President, through his Director of Central Intelligence, unreviewable discretion in firing the agents that he employs to gather military and foreign affairs intelligence, but rather whether Congress could constitutionally permit the courts to review all such decisions if it wanted to. We have acknowledged that the courts cannot intervene when there is "a textually demonstratable constitutional commitment of the issue to a coordinate political department." Baker v. Carr369 U. S. 186369U. S.186, 217 (1962). We have recognized "the insistence (evident from the number of Clauses devoted to the subject) with which the Constitution confers authority over the Army, Navy, and militia upon the political branches." United States v. Stanley483 U. S. 669483U. S.669, 682 (1987). We have also recognized "the very delicate, plenary *615 and exclusive power of the President as the sole organ of the federal government in the field of international relations — a power which does not require as a basis for its exercise an act of Congress." United States v. Curtiss-Wright Export Corp299 U. S. 304299U. S.304, 320 (1936). And finally, we have acknowledged that "[i]t is impossible for a government wisely to make critical decisions about foreign policy and national defense without the benefit of dependable foreign intelligence." Snepp v. United States444 U. S. 507444U. S.507, 512, n. 7 (1980) (per curiam). We have thus recognized that the "authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant."Department of Navy v. Egan, 484 U. S., at 527 (emphasis added).
I think it entirely beyond doubt that if Congress intended, by the APA in 5 U. S. C. § 701(a)(2), to exclude judicial review of the President's decision (through the Director of Central Intelligence) to dismiss an officer of the Central Intelligence Agency, that disposition would be constitutionally permissible.
III
I turn, then, to whether that executive action is, within the meaning of § 701(a)(2), "committed to agency discretion by law." My discussion of this point can be brief, because the answer is compellingly obvious. Section 102(c) of the National Security Act of 1947, 61 Stat. 498, states:
"Notwithstanding . . . 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 *616 United States . . . ." 50 U. S. C. § 403(c) (emphasis added).
Further, as the Court declares, § 102(c) is an "integral part" of the National Security Act, which throughout exhibits "extraordinary deference to the Director." Ante, at 601. Given this statutory text, and given (as discussed above) that the area to which the text pertains is one of predominant executive authority and of traditional judicial abstention, it is difficult to conceive of a statutory scheme that more clearly reflects that "commit[ment] to agency discretion by law" to which § 701(a)(2) refers.
It is baffling to observe that the Court seems to agree with the foregoing assessment, holding that "the language and structure of § 102(c) indicate that Congress meant to commit individual employee discharges to the Director's discretion." Ibid. Nevertheless, without explanation the Court reaches the conclusion that "a constitutional claim based on an individual discharge may be reviewed by the District Court." Ante, at 603-604. It seems to me the Court is attempting the impossible feat of having its cake and eating it too. The opinion states that "[a] discharged employee . . . cannot complain that his termination was not `necessary or advisable in the interests of the United States,' since that assessment is the Director's alone." Ante, at 603 (emphasis added). But two sentences later it says that "[n]othing in § 102(c) persuades us that Congress meant to preclude consideration of colorable constitutional claims arising out of the actions of the Director pursuant to that section." Which are we to believe? If the former, the case should be at an end. If the § 102(c) assessment is really "the Director's alone," the only conceivable basis for review of respondent's dismissal (which is what this case is about) would be that the dismissal was not really the result of a § 102(c) assessment by the Director. But respondent has never contended that, nor could he. Not only was his counsel formally advised, by letter of May 11, 1982, that "the Director has deemed it necessary and *617 advisable in the interests of the United States to terminate your client's employment with this Agency pursuant to section 102(c)," App. 37, but the petitioner filed with the court an affidavit by the Director, dated September 17, 1982, stating that "[a]fter careful consideration of the matter, I determined that the termination of Mr. Doe's employment was necessary and advisable in the interests of the United States and, exercising my discretion under the authority granted by section 102(c) . . . I terminated Mr. Doe's employment." Id., at 56. Even if the basis for the Director's assessment was the respondent's homosexuality, and even if the connection between that and the interests of the United States is an irrational and hence an unconstitutional one, if that assessment is really "the Director's alone" there is nothing more to litigate about. I cannot imagine what the Court expects the "further proceedings in the District Court" which it commands,ante, at 604, to consist of, unless perhaps an academic seminar on the relationship of homosexuality to security risk. For even were the District Court persuaded that no such relationship exists, "that assessment is the Director's alone."
Since the Court's disposition contradicts its fair assurances, I must assume that the § 102(c) judgment is no longer "the Director's alone," but rather only "the Director's alone except to the extent it is colorably claimed that his judgment is unconstitutional." I turn, then, to the question of where this exception comes from. As discussed at length earlier, the Constitution assuredly does not require it. Nor does the text of the statute. True, it only gives the Director absolute discretion to dismiss "[n]otwithstanding . . . the provisions of any other law" (emphasis added). But one would hardly have expected it to say "[n]otwithstanding the provisions of any other law or of the Constitution." What the provision directly addresses is the authority to dismiss, not the authority of the courts to review the dismissal. And the Director does not have the authority to dismiss in violation of the Constitution, nor could Congress give it to him. The implication *618 of nonreviewability in this text, its manifestation that the action is meant to be "committed to agency discretion," is no weaker with regard to constitutional claims than nonconstitutional claims, unless one accepts the unacceptable proposition that the only basis for such committal is "no law to apply."
Perhaps, then, a constitutional right is by its nature so much more important to the claimant than a statutory right that a statute which plainly excludes the latter should not be read to exclude the former unless it says so. That principle has never been announced — and with good reason, because its premise is not true. An individual's contention that the Government has reneged upon a $100,000 debt owing under a contract is much more important to him — both financially and, I suspect, in the sense of injustice that he feels — than the same individual's claim that a particular federal licensing provision requiring a $100 license denies him equal protection of the laws, or that a particular state tax violates the Commerce Clause. A citizen would much rather have his statutory entitlement correctly acknowledged after a constitutionally inadequate hearing, than have it incorrectly denied after a proceeding that fulfills all the requirements of the Due Process Clause. The only respect in which a constitutional claim is necessarily more significant than any other kind of claim is that, regardless of how trivial its real-life importance may be in the case at hand, it can be asserted against the action of the legislature itself, whereas a nonconstitutional claim (no matter how significant) cannot. That is an important distinction, and one relevant to the constitutional analysis that I conducted above. But it has no relevance to the question whether, as between executive violations of statute and executive violations of the Constitution — both of which are equally unlawful, and neither of which can be said, a priori, to be more harmful or more unfair to the plaintiff — one or the other category should be favored by a presumption against exclusion of judicial review.
*619 Even if we were to assume, however, contrary to all reason, that every constitutional claim is ipso facto more worthy, and every statutory claim less worthy, of judicial review, there would be no basis for writing that preference into a statute that makes no distinction between the two. We have rejected such judicial rewriting of legislation even in the more appealing situation where particular applications of a statute are not merely less desirable but in fact raise "grave constitutional doubts." That, we have said, only permits us to adopt one rather than another permissible reading of the statute, but not, by altering its terms, "to ignore the legislative will in order to avoid constitutional adjudication." Commodity Futures Trading Comm'n v. Schor478 U. S. 833478U. S.833, 841 (1986). There is no more textual basis for reading this statute as barring only nonconstitutional claims than there is to read it as barring only claims with a monetary worth of less than $1 million. Neither of the two decisions cited by the Court to sustain its power to read in a limitation for constitutional claims remotely supports that proposition. In Johnson v. Robison415 U. S. 361415U. S.361 (1974), we considered a statute precluding judicial review of " `the decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration.' " Id., at 367 (quoting 38 U. S. C. § 211(a)). We concluded that this statute did not bar judicial review of a challenge to the constitutionality of the statute itself, since that was a challenge not to a decision of the Administrator but to a decision of Congress. Our holding was based upon the text, and not upon some judicial power to read in a "constitutional claims" exception. And in Weinberger v. Salfi422 U. S. 749422U. S.749 (1975), we held that 42 U. S. C. § 405(h), a statute depriving district courts of federal-question jurisdiction over "any claim arising under" Title II of the Social Security Act, did embrace even constitutional challenges, since its language was "quite different" from that at issue in Johnson, and "extend[ed] to any `action' seeking `to recover on any [Social Security] claim' — *620 irrespective of whether resort to judicial processes is necessitated by . . . allegedly unconstitutional statutory restrictions." 422 U. S., at 762. In Salfi, to be sure, another statutory provision was available that would enable judicial review of the constitutional claim, but as just observed, that distinction does not justify drawing a line that has no basis in the statute. Commodity Futures Trading Comm'n v. Schor, supra.
The Court seeks to downplay the harm produced by today's decision by observing that "petitioner acknowledges that Title VII claims attacking the hiring and promotion policies of the Agency are routinely entertained in federal court."Ante, at 604, citing Reply Brief for Petitioner 13-14; Tr. of Oral Arg. 9. Assuming that those suits are statutorily authorized, I am willing to accept the Director's assertion that, while suits regarding hiring or promotion are tolerable, a suit regarding dismissal is not. Like the Court, I have no basis of knowledge on which I could deny that — especially since it is obvious that if the Director thinks that a particular hiring or promotion suit is genuinely contrary to the interests of the United States he can simply make the hiring or grant the promotion, and then dismiss the prospective litigant under § 102(c).
The harm done by today's decision is that, contrary to what Congress knows is preferable, it brings a significant decision-making process of our intelligence services into a forum where it does not belong. Neither the Constitution, nor our laws, nor common sense gives an individual a right to come into court to litigate the reasons for his dismissal as an intelligence agent. It is of course not just valid constitutional claims that today's decision makes the basis for judicial review of the Director's action, but all colorable constitutional claims, whether meritorious or not. And in determining whether what is colorable is in fact meritorious, a court will necessarily have to review the entire decision. If the Director denies, for example, respondent's contention in the present *621 case that he was dismissed because he was a homosexual, how can a court possibly resolve the dispute without knowing what other good, intelligence-related reasons there might have been? I do not see how any "latitude to control any discovery process," ante, at 604, could justify the refusal to permit such an inquiry, at least in camera. Presumably the court would be expected to evaluate whether the agent really did fail in this or that secret mission. The documents needed will make interesting reading for district judges (and perhaps others) throughout the country. Of course the Agency can seek to protect itself, ultimately, by an authorized assertion of executive privilege, United States v. Nixon418 U. S. 683418U. S.683(1974), but that is a power to be invoked only in extremis, and any scheme of judicial review of which it is a central feature is extreme. I would, in any event, not like to be the agent who has to explain to the intelligence services of other nations, with which we sometimes cooperate, that they need have no worry that the secret information they give us will be subjected to the notoriously broad discovery powers of our courts, because, although we have to litigate the dismissal of our spies, we have available a protection of somewhat uncertain scope known as executive privilege, which the President can invoke if he is willing to take the political damage that it often entails.
Today's result, however, will have ramifications far beyond creation of the world's only secret intelligence agency that must litigate the dismissal of its agents. If constitutional claims can be raised in this highly sensitive context, it is hard to imagine where they cannot. The assumption that there are any executive decisions that cannot be hauled into the courts may no longer be valid. Also obsolete may be the assumption that we are capable of preserving a sensible common law of judicial review.
I respectfully dissent.
NOTES
[*] Randall Glenn Wick, Susan D. McGreivy, Matthew Coles, and Mary C. Dunlap filed a brief for the National Organization of Gay and Lesbian Scientists and Technical Professionals et al. as amici curiae urging affirmance.
Jeffrey F. Liss, Laura A. Foggan, and Nan D. Hunter filed a brief for the Employment Law Center et al. as amici curiae.
[1] See May 11, 1982, Letter from Deputy General Counsel of CIA to respondent's counsel, App. 37.
[2] See Amended Complaint, id., at 5, 12-13.
[3] Title 5 U. S. C. § 706 provides in pertinent part:
"Scope of review
"To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall —
(1) compel agency action unlawfully withheld or unreasonably delayed; and
"(2) hold unlawful and set aside agency action, findings, and conclusions found to be —
"(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
"(B) contrary to constitutional right, power, privilege, or immunity;
"(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
"(D) without observance of procedure required by law."
[4] Doe v. Casey, 254 U. S. App. D. C. 282, 293, and n. 41, 796 F. 2d 1508796F. 2d1508796F. 2d1508, 1519, and n. 41 (1986) (citing CIA Regulation HR 20-27m).
[5] This "arbitrary and capricious" standard is derived from § 706(2)(A), see n. 3, supra.
[6] The dissenting judge argued that Congress intended to preclude such review in creating § 102(c), and that the decision to discharge an employee was committed by that section to Agency discretion. He concluded that neither the statutory nor constitutional claims arising from a § 102(c) discharge are judicially reviewable under the APA.
[7] We understand that petitioner concedes that the Agency's failure to follow its own regulations can be challenged under the APA as a violation of § 102(c). See Reply Brief for Appellant in No. 85-5291 (CADC), p. 18 (Doe v. Casey, 254 U. S. App. D. C. 282, 796 F. 2d 1508796F. 2d1508796F. 2d1508 (1986)); see also Service v. Dulles354 U. S. 363354U. S.363 (1957) (recognizing the right of federal courts to review an agency's actions to ensure that its own regulations have been followed); Sampson v. Murray415 U. S. 61415U. S.61, 71 (1974) (stating that `federal courts do have authority to review the claim of a discharged governmental employee that the agency effectuating the discharge has not followed administrative regulations"). The Court of Appeals, however, found that the CIA's own regulations plainly protect the discretion granted the Director by § 102(c), and that the regulations "provid[e] no independent source of procedural or substantive protections." Doe v. Casey, supra, at 294, 796 F. 2d, at 1520. Thus, since petitioner prevailed on this ground below and does not seek further review of the question here, we do not reach that issue.
[8] Petitioner asserts, see Brief for Petitioner 27-28, n. 23, that respondent fails to present a colorable constitutional claim when he asserts that there is a general CIA policy against employing homosexuals. Petitioner relies on our decision in Bowers v. Hardwick478 U. S. 186478U. S.186 (1986), to support this view. This question was not presented in the petition for certiorari, and we decline to consider it at this stage of the litigation.
[*] Technically, this provision merely precludes judicial review under the judicial review provisions of the Administrative Procedure Act (APA), that is, under Chapter 7 of Title 5 of the United States Code. However, at least with respect to all entities that come within the Chapter's definition of "agency," see 5 U. S. C. § 701(b), if review is not available under the APA it is not available at all. Chapter 7 (originally enacted as § 10 of the APA) is an umbrella statute governing judicial review of all federal agency action. While a right to judicial review of agency action may be created by a separate statutory or constitutional provision, once created it becomes subject to the judicial review provisions of the APA unless specifically excluded, see 5 U. S. C. § 559. To my knowledge, no specific exclusion exists.
________________________________________________________________________________
41 Fair Empl.Prac.Cas. 618,
40 Empl. Prac. Dec. P 36,296, 254 U.S.App.D.C. 282,
55 USLW 2093
John DOE
v.
William J. CASEY, Director, C.I.A., Appellant.
No. 85-5291.
United States Court of Appeals,
District of Columbia Circuit.
Argued March 13, 1986.
Decided Aug. 1, 1986.
Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-02016).
Barbara C. Biddle, Atty., Dept. of Justice, with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Barbara L. Herwig, Atty., Dept. of Justice, Washington, D.C., were on the brief for appellant.
Mark H. Lynch, with whom Susan W. Shaffer, Washington, D.C., was on the brief for appellee.
Before EDWARDS, GINSBURG and BUCKLEY, Circuit Judges.
Opinion for the Court filed by HARRY T. EDWARDS, Circuit Judge.
Concurring opinion filed by GINSBURG, Circuit Judge.
Opinion concurring in part and dissenting in part filed by BUCKLEY, Circuit Judge.
HARRY T. EDWARDS, Circuit Judge:
1
The Central Intelligence Agency ("CIA") appeals from a District Court order requiring the CIA to reinstate a former undercover employee to administrative leave status. The undercover employee--appellee John Doe--was terminated from CIA employment after he informed the CIA of his homosexuality. Doe's employment was terminated by the Director of Central Intelligence ("Director"), acting under section 102(c) of the National Security Act of 1947, which provides that the Director may, in his discretion, terminate the employment of any CIA employee "whenever he shall deem such termination necessary or advisable in the interests of the United States."1
2
Doe commenced this action in District Court, seeking reinstatement to his old position, or, in the alternative, reinstatement to administrative leave status and a reconsideration of the CIA's decision to terminate his employment. He alleges that he was terminated without adequate procedural protections in violation of CIA regulations, the Administrative Procedure Act ("APA"), and the due process clause of the Fifth Amendment. The District Court ordered Doe reinstated to administrative leave status and directed the CIA to reconsider Doe's termination using procedures that would provide Doe with a meaningful statement of the CIA's reasons and an opportunity to respond.
3
On appeal, the Government argues principally that the CIA's decision to terminate Doe's employment under section 102(c) is not subject to judicial review. Although section 102(c) gives the Director of Central Intelligence broad discretion, we conclude that judicial review is neither precluded by statute nor foreclosed by the absence of judicially manageable standards. We reverse the judgment of the District Court, however, because the court failed to accord sufficient deference to the judgment of the head of the agency. Given the sensitive nature of decisions by the Director of Central Intelligence concerning removal of employees under section 102(c), we hold that an employee must present some concrete evidence of an impermissible basis for his or her termination before a court may require the CIA to explain the reason for that termination. No such evidence was presented by Doe in this case. Nonetheless, because the record is unclear on certain critical points, we remand for further proceedings.
I. BACKGROUND
4
The plaintiff, John Doe,2 had a nine-year career with the CIA. Although he began that career as a clerk-typist, he was eventually promoted, after agency training, to a covert position as an electronics technician. Periodic fitness reports consistently rated Doe as either an excellent or an outstanding employee, and the CIA expressed no dissatisfaction with either Doe's work or his loyalty.
5
On January 28, 1982, Doe voluntarily informed a CIA security officer that he was a homosexual. As a result, the CIA placed Doe on administrative leave on February 2, 1982, pending an investigation of his homosexuality. Under this status, Doe did not report for work, but the CIA continued to pay his salary. On February 12 and 17, Doe was interviewed at length by a polygraph officer about his sexual orientation and possible security violations. After these interviews, which lasted a total of ten hours, the officer told Doe that the polygraph indicated that he had truthfully answered all questions. His answers included statements that he had not had sexual relations with any foreign nationals and had not disclosed classified information to any sexual partners.
6
The polygraph officer prepared a five-page factual report based on the two days of interviews. Doe reviewed this factual report on March 23, 1982, and, in addition, Doe prepared a two-page addendum. On April 14, 1982, a CIA security officer informed Doe that the CIA's Office of Security had determined that the circumstances of his homosexuality posed a security threat, but refused to explain why Doe's homosexuality posed such a danger. Throughout the previous two months of investigation, Doe had received conflicting explanations about the CIA's policy toward homosexuals. While two CIA security officers told Doe that his homosexual activities violated CIA regulations, the Deputy General Counsel of the CIA told Doe's counsel that homosexuality was a security concern that did not inevitably result in termination. Instead, according to the Deputy General Counsel, the CIA considers homosexuality on a case-by-case basis.
7
Doe was asked to resign on April 14, but refused to do so. The Office of Security then recommended to the Director of Central Intelligence that the CIA terminate Doe's employment. On April 20, Doe's counsel delivered a detailed letter to the Director concerning Doe's case, but the CIA made no response.
8
On May 12, 1982, a security officer informed Doe that the Director had terminated his employment effective May 7, 1982. Doe's counsel later received a letter from the Deputy General Counsel of the CIA dated May 11, 1982, confirming Doe's termination:
9
The Director has reviewed the facts of your client's case, your client's memorandum commenting upon those facts, the Office of Security's evaluation of the security significance of those facts, and the statement submitted by you in your client's behalf.
10
After careful consideration of this matter, the Director has deemed it necessary and advisable in the interests of the United States to terminate your client's employment with this Agency pursuant to section 102(c) of the National Security act [sic] of 1947, as amended.3
11
Doe was never told why he was considered a security risk and never had access to the Office of Security evaluations. The Director's decision to terminate Doe's employment was made pursuant to section 102(c) of the National Security Act, which provides:
12
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.4
13
CIA officials told Doe that the agency would give a positive recommendation on his behalf to any prospective employer; Doe also was advised that if he applied for a job that required a security clearance, the CIA would inform the prospective employer that it had determined that Doe presented a security threat "because of his homosexuality." Moreover, a member of the General Counsel's staff told Doe that he is obliged to inform the CIA whenever he applies for a job that requires a security clearance.
14
Doe then commenced this action in District Court. His complaint alleged that the CIA's decision to fire him because of his homosexuality violated both procedural and substantive protections to which he was entitled by law. To remedy the substantive violations, Doe sought outright reinstatement to his old position with the CIA. For violation of procedural protections, on the other hand, Doe sought a new determination by the Director under fair procedures.5Doe filed a motion for partial summary judgment on the procedural claims, which were alleged violations of CIA regulations, the APA and the due process clause of the Fifth Amendment. The District Court granted Doe summary judgment on the violations alleged with respect to the CIA regulations and the APA, but declined to reach the constitutional issues. The trial court ordered Doe reinstated to administrative leave status and directed the CIA to reconsider his case using procedures that would provide Doe with a meaningful statement of the CIA's reasons for the termination and with an opportunity to respond.
15
This appeal followed.
II. ANALYSIS
A. Preclusion of Review
16
On appeal, the CIA has contended that its decision to terminate Doe's employment is not reviewable under the APA. We conclude that section 102(c) obviously requires that we give deference to the judgment of the Director of Central Intelligence; however, we cannot countenance the CIA's unprecedented attempt to preclude judicial review when it is absolutely clear that the Director's discretion is expressly limited by the terms of the statute that has been cited by the CIA to support the Director's exercise of authority.
17
Under section 701(a) of the APA,6 agency actions are judicially reviewable
18
except to the extent that--(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.
19
In the decades of litigation over the scope of these two grounds for preclusion, the Supreme Court and this court have emphasized in the strongest terms that preclusion is the rare exception and certainly not the norm. Section 701 "creates a strong presumption of reviewability that can be rebutted only by a clear showing that judicial review would be inappropriate."7 As the Supreme Court most recently explained:
20
We ordinarily presume that Congress intends the executive to obey its statutory commands and, accordingly, that it expects the courts to grant relief when an executive violates such a command.8
21
The presumption of reviewability is firmly rooted even in pre-APA administrative law,9 and is clearly reflected in the legislative history of the APA.10 The compelling reasons for this presumption are well known, and recently have been reiterated in an article by Professor Sunstein:
22
The presumption of reviewability under the APA is based on a set of considerations, loosely captured in the notion of the rule of law, that relate to the perceived need to constrain the exercise of discretionary power by administrative agencies. Judicial review serves important goals in promoting fidelity to statutory requirements and, where those requirements are ambiguous or vague, in increasing the likelihood that the regulatory process will be a reasonable exercise of discretion instead of a bow in the direction of powerful private groups.11
23
In light of the prevailing case law, there is little doubt that, in seeking to overcome the strong presumption of judicial review, the CIA shoulders a very heavy burden. We will address in turn each of the two possible grounds for the preclusion of review.
1. Preclusion by Statute
24
The first question we consider is whether Congress expressed an intention to preclude review of the Director's decision to terminate the employment of a CIA employee under section 102(c). Fortunately, the Supreme Court has elaborated several principles to guide our inquiry.
25
First, there must be a showing of "clear and convincing evidence" of a congressional intent to negate review before courts may legitimately restrict access to judicial review.12 Although the "clear and convincing evidence" standard is not a rigid evidentiary test,13 a court should not refuse to review agency action if there is substantial doubt that Congress intended to preclude review.14 Rather, at the very least, such an intent to preclude review must be "fairly discernible" in the detail of the legislative scheme.15
26
Second, the Supreme Court has never found a congressional intent to preclude review when the statute at issue specifies a standard that at least purports to limit agency discretion. In Southern Railway Co. v. Seaboard Allied Milling Corp.,16 for example, the Court held that the Interstate Commerce Commission's decision not to suspend and investigate a proposed rate increase was not subject to judicial review primarily because the statute was silent on what factors should guide the Commission's decision. When, however, as in Citizens to Preserve Overton Park, Inc. v. Volpe,17 the statute on its face provides a standard limiting agency discretion, the Court "easily" rejects the argument that review is precluded by statute.
27
Simply stated, when agency authority is defined or limited pursuant to a substantive standard, this is highly probative evidence that Congress did not intend to preclude judicial review. Indeed, if the chosen standard is judicially manageable, it is difficult to imagine stronger evidence of an intent not to preclude judicial review. It may be, of course, that the standard chosen by Congress is such that it offers no meaningful basis upon which to judge the agency's exercise of discretion. In such a circumstance, however, the wiser policy is to treat the agency action as "committed to agency discretion" and hence precluded from review by section 701(a)(2). Thus, when Congress has chosen a standard, the preclusion analysis for section 701(a)(2) rather than section 701(a)(1) is appropriate.18
28
Third, the structure of a statutory scheme sometimes may support a finding that Congress intended to preclude judicial review; however, the Supreme Court has accepted arguments based on structure only in a very limited category of cases involving uniquely complex or otherwise delicately balanced statutory schemes. The best example of this is seen in Block v. Community Nutrition Institute,19 where the Supreme Court relied heavily on the omission of an express provision for participation by consumers in the development of milk-market orders as evidence of an intent to preclude consumers from seeking judicial review only because the statute included specific and detailed provisions for the participation of milk handlers and producers.20 Moreover, the Court took care to emphasize the complexity of the statutory scheme.21 Similarly, in Morris v. Gressette,22 the Court held that the Attorney General's failure to object to a change in voting procedure was precluded from review by the Voting Rights Act of 1965. Central to the Court's decision, however, was the delicate balance between Congress' decision to authorize the Attorney General to impose the "extraordinary remedy" of postponing the effect of state legislation and Congress' desire to prevent undue delay.23 3] In other cases involving less complicated or delicate statutory frameworks, nearly identical arguments based on the "statutory framework" have been unavailing.24
29
Under our reading of the extant case law, it is abundantly clear that the CIA has failed to carry its burden to establish clear and convincing evidence of a congressional intent to preclude judicial review in section 102(c). The language of the statute itself cannot be fairly read to preclude judicial review, and legislative history is silent on the issue. Most importantly, section 102(c) provides a standard--the termination must be "necessary or advisable in the interests of the United States." As discussed above, Congress' decision to cabin the Director's discretion by the use of this standard is compelling evidence of its intent not to preclude judicial review. Congress could have left section 102(c) terminations unambiguously to the Director's absolute discretion; this, however, Congress chose not to do. Finally, arguments based on the statutory "framework" simply have no force where, as here, there is a single statutory provision unaccompanied by any "scheme" or "framework."
30
The specific arguments made by the CIA are easily rejected. The CIA contends that the statutory language--"notwithstanding the provisions of section 7501 of title 5, or the provisions of any other law"--removes the basis for any and all judicial review. This argument is, at best, strained. Section 102(c) does not prevent the application of all law; instead, it merely replaces one set of standards--the more rigorous efficiency standards normally applied to the termination of federal employees25--with a new, more relaxed standard: that the termination be "necessary or advisable in the interests of the United States." The obvious result is that the Director of Central Intelligence has far more discretion in personnel matters than other federal agencies. This relaxation in standard, however, in no way manifests a congressional intent to preclude review altogether.
31
The CIA additionally maintains that the sensitive nature of its work requires that judicial review be precluded. Our inquiry, however, is limited to what Congress intended, not what the CIA finds preferable. Congress could have explicitly precluded judicial review; it did not do so. Or, Congress could have written section 102(c) narrowly to state that "the Director may, in his sole discretion, terminate the employment of any officer or employee of the Agency" (omitting any reference to "necessary or advisable in the interests of the United States"); it did not so limit the language of the statute.
32
Moreover, the CIA is unable to offer any contemporaneous legislative history suggesting that Congress intended to preclude judicial review. The CIA merely points to a Senate Report, written decades after the enactment of section 102(c), which incorrectly states that courts have interpreted section 102(c) as giving unlimited discretion to the Director.26 This Report, however, is simply not relevant to congressional intent in 1947.27
33
The CIA has simply failed to overcome the presumption of reviewability. Neither the statute nor legislative history offer even a hint of a congressional intent to preclude review.
2. Committed to Agency Discretion
34
Our next task is to determine whether the standard offered by section 102(c)--that terminations be "necessary or advisable in the interests of the United States"--commits the decisionmaking to the Director's judgment absolutely. As with the section 701(a)(1) exception, the section 701(a)(2) exception for action committed to agency discretion by law is a "narrow" exception,28 and we operate under a presumption of reviewability.29 Indeed, even the Government concedes that this presumption of reviewability applies. It simply asserts that that presumption is sufficiently rebutted in this case.
35
In order for the "committed to agency discretion" exception to preclude judicial review altogether, the Government must establish that "the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion."30 There must, in other words, simply be "no law to apply."31 The fact that a statute gives an agency broad discretion
36
does not render the agency's decisions completely nonreviewable under the "committed to agency discretion by law" exception unless the statutory scheme, taken together with other relevant materials, provides absolutely no guidance as to how that discretion is to be exercised.32
37
In the instant case, we surely cannot find that section 102(c) offers "absolutely no guidance" as to how the Director of Central Intelligence is to exercise his or her discretion to terminate CIA employees. Obviously, courts must give great deference to the judgment of the Director as to what is "necessary or advisable in the interests of the United States," but the Director's exercise of discretion is still subject to judicial review. Without doubt, for example, the Director could not terminate Black employees simply because they are Black, female employees simply because they are female, or even blonde employees simply because they are blonde.33 Indeed, Government counsel conceded at oral argument that the agency was not prepared to say that constitutional claims, or even claims that the Director acted in excess of his or her statutory authority, are precluded from review.
38
Additionally, section 102(c) requires that an employee be terminated only if the termination advances the interests of the United States. Although the court cannot second-guess the Director's decision that the termination of an employee is advisable in the interests of the United States, we must at least satisfy ourselves that the termination has some relationship to the interests of the United States. Thus, section 102(c) terminations cannot be a result of the mere whim of the Director. Otherwise, the words of section 102(c) would become nothing more than a magical incantation immunizing wholly irrational, vindictive or even blatantly unconstitutional action. Assuredly, therefore, the Director's discretion is not absolute.
39
In similar circumstances, other courts have refused to preclude review. In Barlow v. Collins,34 for example, the Supreme Court held that even a statute authorizing the Secretary of Agriculture "to prescribe such regulations as he may deem proper" did not preclude judicial review. In a justly celebrated decision by the late Judge Friendly, the Second Circuit held that the decision of the Immigration and Naturalization Service not to exercise its discretion to suspend an alien's deportation was subject to arbitrary and capricious review even though the statute in question itself offered no standards for the exercise of that discretion.35 Even in a recent case challenging the Government's selective enforcement of a law--an action arguably subject to a presumption of nonreviewability--the Supreme Court did not refuse to review for First and Fifth Amendment violations.36 Finally, this court in Torpats v. McCone37 addressed the very statute at issue in this case and--rather than refuse review--upheld the termination of a CIA employee as "within the authority conferred upon [the Director] by Congress."38
40
We conclude therefore that there is "law to apply." The statute gives broad discretion to the Director, but that discretion is simply not absolute.
41
B. The Alleged Breach of the CIA Regulations
42
On the merits, Doe first claims that a CIA Headquarters regulation imposes independent limitations on the Director's discretion to terminate employees pursuant to section 102(c). Generally, an agency must follow its own regulations, and judicial review is available for claims that agency regulations have been violated.39 At issue here is whether the particular CIA regulation cited by appellee indeed limits the CIA's discretion.
43
We conclude that the CIA regulation does not so limit the Director's discretion. The regulation lists ten circumstances in which employees may be separated from the CIA, the last of which is almost identical to section 102(c):
44
OTHER TERMINATION IN THE INTERESTS OF THE AGENCY. In addition to paragraphs a through i, employees may be terminated if the Director of Central Intelligence determines it necessary and advisable in the interest of the Agency or for other reasons contributing to the efficiency of the Agency.40
45
The regulation also lists procedures that "[n]ormally" will govern separations from the CIA, but cautions that these procedures need not be followed for terminations made pursuant to section 102(c):
46
[Procedures] should be followed insofar as practicable, but there may be circumstances of a case that make these procedures impractical or undesirable, and the case should be handled in a manner conforming to the circumstances. Moreover, to meet the responsibilities placed upon the Agency and pursuant to statutory authority, any employee may be separated immediately and without regard to any suggested procedural steps when the Director of Central Intelligence considers it necessary or advisable in the interests of the United States.41
47
This disclaimer is reiterated later in the regulation:
48
In some other cases, the following modified procedures apply:
49
....
50
(c) Pursuant to statutory authority, the Director of Central Intelligence may separate an employee directly when necessary or advisable in the interests of the United States.42
51
We cannot imagine how the CIA could have more plainly expressed its intent to protect the discretion granted it by section 102(c). Doe's arguments to the contrary are simply without merit. The District Court ruled that the exception for terminations necessary or advisable in the interests of the United States applies only when urgency prevents the application of procedural protections:
52
While section 27m provides that an employee "may be separated immediately and without regard to any suggested procedural steps when the Director ... considers it necessary or advisable in the interest [sic] of the United States" the immediacy and urgency of Doe's employment status is belied by the fact that his voluntary disclosures were made in January 1982, but it was not until five months later--May 1982, that the Director decided to fire him.43
53
This reasoning cannot stand, however, because "immediacy" is not a requirement that must be satisfied before the procedures otherwise provided by the regulations become inapplicable. Rather, if a termination is "necessary or advisable in the interests of the United States," the termination can be made "without regard to any suggested procedural steps" and, in addition, the termination "may" be immediate. The immediate separation discussed in the regulation is an optional course of action available to the Director that he or she need not exercise.
54
The cases cited by Doe and the District Court are equally inapposite. In Ashton v. Civiletti,44 an FBI Handbook informed agency employees that they could "assume that [their] position[s] [are] secure, if [they] continue to do satisfactory work;" and the FBI Handbook contained no exceptions for particular types of terminations as found in the CIA regulations. The court in Ashton did, however, emphasize that--like the CIA--the FBI distinguished between probationary and nonprobationary employees:
55
In the absence of any special definition [of probation], appellant could only be expected to comprehend it in its normal meaning--that he was required to serve an initial proving period in which his performance could be tested and, if his employer was dissatisfied, in which he could be fired without ceremony. A probationary period, of course, would be unnecessary if the employer could dismiss a non-probationary employee at any time and for any reason.45
56
Although the CIA also has a "probationary period," it--unlike the FBI--does give "probation" a "special definition" in its regulation. A termination during this period has its own set of procedures and standards.46 This same regulation, however, explicitly exempts terminations that are "necessary or advisable in the interests of the United States" from any procedural requirements.
57
Similarly, Matlovich v. Secretary of the Air Force47 is not applicable. In that case, this court ordered the Air Force to explain the termination of a homosexual Air Force airman. The court noted, however, that unlike the CIA, the "Air Force regulation expressly contemplates that exceptions can be made to the general policy of separating homosexuals;"48 it was because the regulation expressly contemplated such exceptions that we concluded that the Air Force must provide a reasoned explanation for not making such an exception in an individual case.49 The CIA regulation quite simply includes no such explicit exception.
58
We conclude, therefore, that the CIA regulation provides no independent source of procedural or substantive protections. Doe must look to section 102(c) itself or to the Constitution.
C. Termination of Doe's Employment
59
The APA provides the appropriate standard for our review of Doe's termination pursuant to section 102(c). We must uphold the Director's decision unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."50 At the outset it is critical that we emphasize the broad discretion granted the Director of Central Intelligence by section 102(c). The Director is responsible for one of the most sensitive agencies in the federal government; the keen interest of foreign intelligence agencies in the inner workings of the CIA is obvious. Congress accordingly recognized the need for the Director to have broad power to terminate CIA personnel for even the slightest security risk. The necessity for judicial deference to the judgments of the Director is further highlighted by the difficult nature of the decisions the Director must make. Judgments about the security of the CIA require an expertise unique to those in the intelligence community. As the Supreme Court recently noted in CIA v. Sims,51 "[t]he decisions of the Director, who must of course be familiar with 'the whole picture,' as judges are not, are worthy of great deference given the magnitude of the national security interests and potential risks at stake."52 Moreover, our review must be circumspect because "[i]t is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency."53
60
We conclude, therefore, that although judicial review of the Director's judgments is not precluded, we must apply the arbitrary and capricious standard in the context of this statute which leaves the decision to terminate CIA employment largely to the expertise and judgment of the Director. As a practical matter, therefore, our main concerns will be the arguable infringement of constitutional rights and the possibility that the Director has acted in excess of statutory authority, rather than the wisdom of the termination itself.54
61
Unfortunately, there is great confusion as to precisely what the Director intended to do in this case. We see three possible explanations for the Director's action:
62
(1) The Director may have intended to invoke section 102(c) without giving any reasons at all for the termination of Doe's employment;
63
(2) The Director may have intended to terminate Doe as part of a ban against the employment of all homosexuals; or
64
(3) The Director may have dismissed Doe because Doe's homosexuality presented a security risk.
65
As we discuss below, the resolution of this case depends critically on which of these explanations is applicable. Because of the confusion surrounding the Director's reasoning, we must remand the case to the District Court for further proceedings.
66
1. Invocation of Section 102(c) Without Giving Reasons
67
It may be--albeit unlikely--that the Director terminated Doe's employment for reasons wholly unrelated to Doe's homosexuality. We strongly doubt that this is the case because the CIA displayed no concern about Doe's employment until it was made aware of Doe's homosexuality; and, as we read the record, the clear focus of the CIA's inquiry before the Director decided to terminate Doe's employment was Doe's homosexuality. Because the record is unclear on this point, however, we leave the task of deciding whether the Director fired Doe for other unstated reasons to the District Court.
68
If the Director intends to invoke section 102(c) without giving any reasons at all, a plaintiff must point to something concrete in the record suggesting that section 102(c) is being used as a sham before a court requires the Director to explain his decision to fire the employee. The plaintiff must, for example, point to evidence of an impermissible basis--such as sex, race, hair color, etc.--for the termination. Given the sensitive nature of the CIA's mission, and the risk that merely explaining why information must be withheld "can convey valuable information to a foreign intelligence agency,"55 we cannot permit a "witchhunt" aimed at discovering the reasons for the invocation of section 102(c). Quite simply, we could endanger national security interests if we were to require the CIA to explain each and every decision to terminate the employment of an employee.
69
We must operate under a presumption that the CIA is acting lawfully and in good faith in any invocation of section 102(c), unless the plaintiff gives adequate reason to believe otherwise. Only if a plaintiff offers a basis for suspicion that the Director terminated the plaintiff's employment for an impermissible reason will we require the Director to justify his or her decision. In the instant case, Doe has not even alleged concrete evidence of an impermissible ground unrelated to his homosexuality for the invocation of section 102(c). Thus, we hold that if the Director intended to invoke section 102(c) without reasons in this case, there are no grounds to reverse the Director's decision to terminate Doe's employment and, correspondingly, no bases for requiring the Director to explain his exercise of discretion under section 102(c).
2. Bar Against All Homosexuals
70
Alternatively, the Director may have intended to terminate Doe's employment as part of a CIA policy barring the employment of all homosexuals. The record is somewhat confusing on this point. Doe was not immediately discharged by the CIA; instead, he underwent extensive polygraph examination. This suggests that his mere status as a homosexual was not the reason for his later discharge. Furthermore, Doe's counsel was informed by officials in the CIA General Counsel's Office that decisions to terminate homosexuals would be made on a case-by-case basis. On the other hand, however, Doe was told by several security officers that homosexuality violated CIA rules. Thus, it is unclear to us whether Doe's termination reflects a policy of terminating the employment of all homosexuals. We will leave this issue for resolution by the District Court.
71
If the District Court concludes that the CIA intended to bar all homosexuals, there is an arguable claim that can be litigated. Although this circuit's decision in Dronenburg v. Zech,56 and the Supreme Court's recent decision in Bowers v. Hardwick,57 hold that homosexual conduct is not constitutionally protected, they did not reach the difficult issue of whether an agency of the federal government can discriminate against individuals merely because of sexual orientation. At the very least, the CIA would have to justify why such a ban on the employment of all homosexuals was "necessary or advisable in the interests of the United States."
72
3. Termination Because of Doe's Homosexuality
73
Finally, the Director may have dismissed Doe because Doe's homosexuality presented a security risk. Although we do not believe that this would present any colorable substantive constitutional claim, if this were the case Doe may have a claim that the CIA deprived him of his liberty interest in reputation without due process.
74
In Board of Regents v. Roth,58 the Supreme Court concluded that a government employee's liberty interests are impaired when the government makes a charge against the employee that damages "his standing and associations in the community" or "impose[s] on him a stigma or other disability that foreclose[s] his freedom to take advantage of other employment opportunities."59 An injury to reputation alone, however, is not sufficient to give rise to a colorable liberty interest claim. Instead, a court analyzing a claim of a deprivation of a liberty interest must satisfy itself that a plaintiff has met two requirements. First, the government must have altered the "status" of the employee in some tangible way by, for example, discharging the employee, foreclosing the employee's future employment opportunities, or reducing the employee's rank or pay.60 Second, this change in "status" must be accompanied by injury to the employee's good name, reputation, honor or integrity, or by the imposition of a similar stigma.61
75
There is little question that the first requirement--a change in status--is satisfied in this case. The loss of government employment is the paradigmatic "status change" in liberty-interest jurisprudence.62 Satisfaction of the second requirement is more problematic. In order for Doe to assert the deprivation of a liberty interest, he must establish that the CIA has stigmatized him and that the stigma "has hampered future employment prospects" or injured his good name.63 If the CIA had merely declined to give Doe a security clearance for unspecified reasons, we doubt whether the second requirement would be satisfied. In Molerio v. FBI,64 we held that the decision of the FBI not to hire an applicant because of security clearance problems did not violate the applicant's due process rights:
76
To receive a "top secret" clearance is assuredly a badge of loyalty; but to be denied it on unspecified grounds in no way implies disloyalty or any other repugnant characteristic--as is shown by the evidence in this case that the mere fact that one has relatives in a hostile country may be considered a basis for denial.65
77
Doe, however, was not denied a security clearance "on unspecified grounds." Instead, the CIA will inform Doe's future employers that he presents a security risk because of his homosexuality. Because Doe himself does not view homosexuality as stigmatizing--and indeed, admits that he is a homosexual--he would have no liberty interest claim if all homosexuals were banned from CIA employment.66 If, on the other hand, the CIA terminated Doe because his homosexuality presented a unique security risk not necessarily presented by all other homosexuals, we must conclude that the statement is sufficiently stigmatizing to give rise to a colorable liberty interest claim. If the CIA alleges that something unique about Doe's sexual conduct makes him undesirable for sensitive government work, the inevitable result is that Doe is foreclosed from employment in the field in which he has been especially trained. As a practical matter, Doe will be unable to obtain employment whenever a security clearance is required.67
78
Even if the CIA deprived Doe of his liberty interest in his reputation, however, our inquiry is not at an end. The due process clause requires that the CIA not deprive Doe of his liberty interest without due process of law. We must therefore determine whether Doe received the process he was due. Doe was entitled to an opportunity to refute the charges and "clear his name."68 The sole purpose of this "name-clearing hearing" is to do just that--give the employee an opportunity to clear his or her name. This name-clearing hearing need not be formal; the fundamental requirement is that Doe have an opportunity to be heard in a meaningful manner.69 As the Seventh Circuit explained,
79
In its essence, a hearing demands that the person have the right to support his allegations by argument, however brief, and if necessary, by proof, however informal.70
80
We conclude that Doe was given a meaningful opportunity to contest any allegation that his homosexuality presented a security risk--indeed, a meaningful opportunity that Doe and his counsel vigorously pursued. Doe had notice that the CIA was seriously concerned about his homosexuality. The CIA furthermore permitted Doe to examine the polygraph officer's report, and to submit lengthy written arguments on his behalf. Finally, Doe makes no allegation that either the Office of Security or the Director of Central Intelligence were biased.71 In the context of a very sensitive agency such as the CIA, we cannot say that the Constitution requires more.72
III. CONCLUSION
81
Section 102(c) terminations are subject to judicial review. Because the statute leaves the decision of whether an individual's employment should be terminated as "necessary or advisable in the interests of the United States" largely to the discretion of the Director of Central Intelligence, however, judicial review must be deferential. The District Court erred by showing insufficient deference to the judgment of the Director. However, because the record is unclear on certain critical points that may have a bearing on Doe's claims for relief, we remand this case for further proceedings consistent with this opinion.
82
So ordered.
GINSBURG, Circuit Judge, concurring:
83
The careful reader of the opinions in this case will find that the two sides part company widely only at the last step of the way. First, both sides agree that the "wisdom" of the Director's employment termination decisions is not for courts to judge. Majority Opinion at 1522; see id. at 1521-22 (court presumes Director "is acting lawfully and in good faith" unless plaintiff "point[s] to evidence of an impermissible basis--such as sex, race, hair color, etc.--for the termination"). Second, both sides also agree that there is, indeed, a "role" for the court to play. See Partial Dissent at 1533-34. The dissent, although more reservedly than the majority, recognizes that the court's review legitimately extends to the question whether "the Director has acted in excess of statutory authority." Majority Opinion at 1521; see Partial Dissent at 1533 (acknowledging the court's legitimate function, when its review authority is invoked, "to ensure that the Director acted within the bounds of his statutory authority").
84
The majority, but apparently not the dissent, regards it as the province of the court to entertain arguable claims of constitutional rights. See Majority Opinion at 1521, 1522. While both sides would review to keep the Director within the bounds of ordinary legislation, the dissent, it seems, would not necessarily extend court review to the Director's compliance with the nation's highest law. I find the dissent's stopping point curious, and not persuasively explained. Whether a court may review at all, and how it should rule if it does review, of course, are discrete questions. Cf. Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160 39 L.Ed.2d 389 (1974) (statute precluding judicial review of Veterans' Administration decisions did not bar court consideration of constitutional claims--Court went on to decide merits against plaintiff).
85
BUCKLEY, Circuit Judge, concurring in part and dissenting in part:
86
I concur in sections II(B) and II(C)(3) of the majority opinion, which hold (a) that CIA regulations provide no procedural or substantive rights beyond those granted under section 102(c) of the National Security Act of 1947, 50 U.S.C. Sec. 403(c) (1982); and (b) that as Doe has been accorded all the process that is his due, he has not been deprived of a liberty interest without due process of law. Nevertheless, because the majority ignores the obvious legislative intent in section 102(c) to shield the Director's employee termination decisions from judicial review, I must dissent from the balance of the opinion.
87
As the majority notes, there exists a strong presumption that agency actions are reviewable. See, e.g., Block v. Community Nutrition Inst., 467 U.S. 340, 349, 104 S.Ct. 2450 2456 81 L.Ed.2d 270 (1984). Judicial review is unavailable, however,
88
to the extent that--(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.
89
Administrative Procedure Act, 5 U.S.C. Sec. 701(a) (1982). Disregarding Supreme Court case law and this court's own precedent, the majority overstates both the conclusiveness of the presumption of reviewability and the difficulty of establishing the section 701(a) exceptions. Furthermore, by ignoring the plain meaning and objectives of section 102(c), the majority manages to avoid what should be the obvious conclusion that that statute both precludes judicial review within the meaning of section 701(a)(1) and commits termination decisions to the nonreviewable discretion of the Director of the CIA ("Director") within the meaning of section 701(a)(2).
I. STATUTORY PRECLUSION
A. The Standard for Finding Preclusion
90
To support its holding that judicial review of a section 102(c) termination decision is not precluded by statute, the majority relies on cases such as Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851 1857 44 L.Ed.2d 377 (1975), Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814 820 28 L.Ed.2d 136 (1971), and Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507 1510 18 L.Ed.2d 681 (1967), which speak of a "strong presumption" of reviewability, overcome only by "clear and convincing evidence" of congressional intent to preclude review. Since issuing these opinions, however, the Supreme Court has made significant refinements in its preclusion analysis which, in its reliance on the older precedents, the majority has failed to apply.
91
In Block v. Community Nutrition Inst., 467 U.S. 340, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984), the Supreme Court reversed this court's holding that an agency action was subject to judicial review. In finding judicial review unavailable, the Court articulated three refinements of its earlier analysis. First, the Court emphasized that the presumption of reviewability is rebuttable:
92
The presumption favoring judicial review of administrative action is just that--a presumption. This presumption, like all presumptions used in interpreting statutes, may be overcome by ... reliable indicator[s] of congressional intent.
93
Id. at 349, 104 S.Ct. at 2456. Second, the Court indicated some permissible sources from which to infer such intent:
94
Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.
95
Id. at 345, 104 S.Ct. at 2454. Finally, the Court described the evidentiary standard to be applied in determining the existence of a congressional intent to preclude review:
96
In the context of preclusion analysis, the "clear and convincing evidence" standard is not a rigid evidentiary test but a useful remainder to courts that, where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling.
97
Id. at 351, 104 S.Ct. at 2457. This presumption is overcome, however,
98
whenever the congressional intent to preclude judicial review is fairly discernible in the statutory scheme.
99
Id. (citations omitted).
100
Subsequent Supreme Court cases have reaffirmed the Block analysis. See Lindahl v. Office of Personnel Management,470 U.S. 768, 105 S.Ct. 1620 1627 84 L.Ed.2d 674 (1985) ("[T]he 'clear and convincing evidence' standard has never turned on a talismanic test." Rather, preclusion may be found in a statute's "express language, ... the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved."); Bowen v. Michigan Academy of Family Physicians, --- U.S. ----, 106 S.Ct. 2133 2137 90 L.Ed.2d 623 (1986).
101
Thus, although the Director's termination of Doe pursuant to section 102(c) is presumptively reviewable, this presumption is rebutted if the congressional intent to preclude review is "fairly discernible" from the face of the statute, the statutory scheme, the statute's objectives, the legislative history, or from the nature of the administrative action here involved. The demonstration of this congressional intent must be "clear and convincing," but not in a strict evidentiary sense; rather, the presumption comes into play "where substantial doubt" about that intent exists. In essence, the teaching of Block and subsequent cases is that the courts should not be hostile to congressional preclusion of judicial review of particular administrative actions, but should conduct an objective assessment of all relevant sources in order to determine what it is that Congress in fact intended.
B. The Standard Applied By The Majority
102
Notwithstanding the straightforward inquiry into congressional intent espoused in Block, the majority extracts three principles from Supreme Court precedent that serve to accentuate the difficulty of establishing preclusion.
103
The majority first requires that congressional intent to preclude judicial review be established by "clear and convincing evidence." (Majority Opinion at 1514). While conceding Block's holding that this is "not a rigid evidentiary test," the majority nevertheless manages to add a little starch to that case's holding. The majority cites Block in support of the proposition that the congressional intent to preclude review must "at the very least, ... be 'fairly discernible' in the detail of the legislative scheme." Id. at 1515 (emphasis added). In fact, in Block, the Supreme Court went no further than to hold that a sufficiently "clear and convincing" showing is made "whenever the congressional intent to preclude judicial review is 'fairly discernible in the statutory scheme,' " 467 U.S. at 351, 104 S.Ct. at 2457 (emphasis added).
104
The majority's second principle states that "when the statute at issue specifies a standard that at least purports to limit agency discretion ..., this is highly probative evidence that Congress did not intend to preclude judicial review." (Majority Opinion at 1515). In support of this proposition, the majority cites Southern Ry. v. Seaboard Allied Milling Corp., 442 U.S. 444, 455-56, 94 S.Ct. 2388 2394-95 60 L.Ed.2d 1017 (1979), in which the Supreme Court held an Interstate Commerce Commission decision nonreviewable, relying in part on the fact that the statute authorizing the decision "is silent on what factors should guide the Commission's decision." The problem here is that while a lack of statutory standards may well support an inference of nonreviewability, this hardly supports the inverse proposition that the presence of standards implies reviewability. Not all standards, after all, demand, or are capable of, judicial application.
105
As its third principle, the majority asserts that congressional intent to preclude judicial review may be inferred from the statutory scheme "only in a very limited category of cases involving uniquely complex or otherwise delicately balanced statutory schemes." (Majority Opinion at 1515). While it is true that in Block the Supreme Court relied on the details of the complex statutory scheme to infer a congressional intent to preclude review, 467 U.S. at 349, 104 S.Ct. at 2456, the Court has never intimated that a simpler statutory scheme would not support the same inference. In any case, the majority's insistence on complexity or delicacy of balance simply obscures the fact that the statutory scheme is but one of several elements identified by the Court in Block from which congressional intent might be inferred.
106
Having defined its own restrictive standards for finding statutory preclusion, the majority has little difficulty in ignoring the clear indications that Congress intended section 102(c) decisions to be nonreviewable.
107
C. Indicators of Congressional Intent to Preclude Review Of Section 102(c) Termination Decisions
1. The Statutory Language
108
On its face, section 102(c) clearly indicates a congressional intent to prohibit judicial review. The relevant portion of section 102(c) provides:
109
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.
110
As demonstrated below, the "notwithstanding" clause provides "clear and convincing" evidence of the congressional intention to prohibit judicial review.
111
Section 102(c) was enacted at a time when federal personnel actions were not subject to judicial review. United States v. Testan, 424 U.S. 392, 406, 96 S.Ct. 948 957 47 L.Ed.2d 114 (1976). Congress, however, had adopted the Lloyd-LaFollette Act granting federal employees limited employment and procedural protections. 5 U.S.C. Sec. 652 (1964), ch. 389, Sec. 6, 37 Stat. 539, 555 (1912); recodified as 5 U.S.C. Sec. 7501, Act of Sept. 6, 1966, Pub.L. No. 89-554, 80 Stat. 378, 527-28 (1966); subsequently replaced by 5 U.S.C. Sec. 7501 et seq. (1980), Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111, 1134 et seq. (1978). Under that Act, a federal employee could be removed only "for such cause as will promote the efficiency of [the] service," and he was granted the right to receive written notice of any charges against him, to file a written answer to those charges, and to receive a prompt written decision in response to that answer. Any further procedures, such as examination of witnesses, trial, or hearing were available only at the discretion of the agency official seeking the employee's removal. With the adoption of section 102(c), CIA employees were stripped of even these limited rights and became subject to summary termination without a statement of reasons or opportunity to protest.
112
The majority nevertheless ignores section 102(c)'s elimination of the procedural protections of the Lloyd-LaFollette Act and focuses instead on the substantive provision prohibiting the dismissal of an employee "except for such cause as will promote the efficiency of the service." As a result, the majority is able to dismiss the elimination of Lloyd-LaFollette protections as "merely replac[ing] one set of standards--the more rigorous efficiency standards ...--with a new, more relaxed standard: that the termination be 'necessary or advisable in the interests of the United States.' " (Majority Opinion at 1516). Thus, argues the majority, the resulting expansion in the Director's discretion does not imply a preclusion of judicial review. Id.
113
The essential flaw in the majority's reasoning is its failure to recognize that the Director's termination decisions are insulated by section 102(c) from the procedural as well as the substantive provisions of the Lloyd-LaFollette Act. Thus, it finds itself in the untenable position of insisting that terminated CIA employees retain the right to judicial review even though Congress has stripped them of the minimal procedural rights of a statement of charges and a chance to respond.
114
The majority's holding that section 102(c) does not preclude judicial review relies significantly on its conclusion that the section "provides a standard" that constrains the Director's discretion. As discussed in section II(A) below, the majority arrives at this conclusion by misreading section 102(c) to require that the discharge of a particular employee actually be in the national interest. All that the statute prescribes, however, is that the Director deem it to be. Thus, the majority fails to draw the necessary distinction between judicial confirmation of the Director's purpose in terminating an employee (he deems it in the national interest) and a review of the correctness of the belief on which he acts. While a court may satisfy itself as to the former, it may not inquire into the latter. This clear distinction is underscored in Service v. Dulles, 235 F.2d 215 (D.C.Cir.1956), which deals with Department of State Appropriations Act, 1952, ch. 533, Sec. 103, 65 Stat. 575, 581 (1951) (expired at the close of fiscal year 1952), a statute essentially identical to section 102(c), to wit:
115
Notwithstanding 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.
116
Id. at 216 n. 1. In construing the statute, this court cited with approval the following excerpt from the district court's "well-expressed" opinion:
117
This Court cannot, of course, review the correctness of the former Secretary of State's determination. Its function is limited to determining whether any procedural requirement of the statute was violated in plaintiff's discharge.
118
Under [Sec. 103 of the Appropriations Act] there was one procedural requirement: that the Secretary of State must determine in his discretion that the termination of plaintiff's employment was necessary or advisable in the interests of the United States.
119
Id. at 218. The court found that this requirement had been satisfied, as evidenced by an affidavit by the Secretary of State stating he had discharged the employee in the exercise of the authority vested in him, inter alia, by section 103 of Public Law 188, and it affirmed the lower court's grant of summary judgment for the government.
120
The Supreme Court subsequently reversed, Service v. Dulles, 354 U.S. 363, 388, 77 S.Ct. 1152 1165 1 L.Ed.2d 1403 (1956), but only because the Secretary had not complied with his own departmental regulations which imposed more exacting procedures for termination than were required by statute. The Court specifically noted that under the statute "the Secretary was not obligated to impose upon himself these more rigorous substantive and procedural standards." 354 U.S. at 388, 77 S.Ct. at 1165. Thus, this court's holding in Service clearly applies to section 102(c), and dictates a finding of statutory preclusion as to any inquiry beyond the Director's satisfaction of the "procedural requirement" that he deems the termination to be in the national interest.
121
2. Further Indications of Congressional Intent to Preclude Review
122
In Block, the Supreme Court held that the congressional intent to preclude judicial review within the meaning of section 701(a)(1) could be ascertained not only from the express language of the statute, but also from the statutory objectives and the nature of the administrative action involved. 467 U.S. at 345, 104 S.Ct. at 2454. In the instant case, these factors clearly confirm a congressional intent to preclude review.
123
Section 102(c) authorizes the Director to terminate an employee whenever he deems such action in the interests of the United States, unencumbered by the requirements of the Lloyd-LaFollette Act. Absent this authorization, the Director could only terminate an employee "for such cause as will promote the efficiency of [the] service," and would be required to give such an employee a written copy of the charges against him and an opportunity to answer those charges. The obvious purpose of section 102(c) is to allow the Director to terminate employees unimpeded by these substantive and procedural requirements. Subjecting the Director's decisions to judicial scrutiny flies in the face of this clear legislative purpose.
124
This conclusion is supported by the nature of the administrative action involved. The summary dismissal authority granted to the Director by the National Security Act of 1947 is a natural and necessary function of the extraordinary sensitivity that surrounds every aspect of our national security operations. The abiding concern for the ability of sensitive agencies to maintain absolute control over personnel is reflected in a 1964 Senate committee report commenting on the proposed grant to the Secretary of Defense of "summary power ... to terminate the employment of any employee" of the National Security Agency upon a determination that the exercise of this power was "in the interests of the United States." Citing the fact that identical authority had earlier been granted the Director of the CIA, the report explained:
125
The responsibilities assigned to the National Security Agency are so great, and the consequences of error so devastating, that authority to deviate from [proposed procedures providing federal employees with the benefit of conventional procedural protections] should be granted to this agency.
126
S.Rep. No. 926, 88th Cong., 2d Sess., 2 (1964), U.S.Code Cong. & Admin.News 1964, pp. 2114, 2115. It is of course true, as the majority points out, that a Congress has no authority to interpret the meaning of statutes enacted by its predecessors. The passage I have quoted, however, sheds light on the nature of the national security concerns with which successive Congresses have been called upon to deal.
127
No agency is more sensitive, and few so important to our national safety, as the CIA. As the Supreme Court has pointed out, its effectiveness has been "thought by every President since Franklin D. Roosevelt to be essential to the security of the United States and--in a sense--the free world." Snepp v. United States, 444 U.S. 507, 512 n. 7, 100 S.Ct. 763 767 n. 7, 62 L.Ed.2d 704 (1980). To safeguard the agency's effectiveness, Congress has given "the Director of Central Intelligence broad power to protect the secrecy and integrity of the intelligence process. The reasons are too obvious to call for enlarged discussion; without such protections the agency would be virtually impotent." CIA v. Sims,471 U.S. 159, 105 S.Ct. 1881 1888 85 L.Ed.2d 173 (1985). Judicial intrusion into the CIA's personnel actions can threaten to expose the agency's inner processes and compromise its integrity.[T]he very nature of the intelligence apparatus of any country is to try to find out the concerns of others; bits and pieces of data may aid in piecing together bits of other information even when the individual piece is not of obvious importance in itself.... [W]hat may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context.... It is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency.... And it is the responsibility of the Director of Central Intelligence, not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agency's intelligence gathering process.
128
Id. at 1892-94 (citations omitted). These imperative needs explain why Congress, in 1947, provided the Director with summary power to terminate employees as to whom he had any question while, at the same time, stripping those employees of the only protections they then enjoyed under federal law.
129
In sum, the explicit language of section 102(c), the clear statutory objectives, and the nature of the administrative action here involved all lead to the inescapable conclusion that Congress intended to preclude judicial review of the Director's exercise of his authority under that section.
II. COMMITMENT TO AGENCY DISCRETION
130
Even absent these clear and convincing indications of congressional intent, the court should nevertheless hold the Director's decision shielded from judicial review because section 102(c) commits this decision to the Director's discretion within the meaning of section 701(a)(2). The majority avoids this conclusion first by reading non-existent constraints into the section 102(c) grant of termination authority, and then by ignoring this court's precedents sanctioning a less restrictive standard for finding a commitment to agency discretion.
131
A. The Majority's Overstatement of the Constraints Section 102(c) Imposes on the Director's Exercise of Discretion
132
In order to support its holding that section 701(a)(2) does not prohibit judicial review of the Director's exercise of authority under section 102(c), the majority overstates the constraints the latter imposes on the Director's discretion.
133
In the first place, the majority misstates section 102(c) by asserting that it establishes a standard requiring "that terminations be 'necessary or advisable in the interests of the United States.' " (Majority Opinion at 1517). From this misreading, the majority concludes that "section 102(c) requires that an employee be terminated only if the termination advances the interests of the United States." (Majority Opinion at 1518) (emphasis in the original). Thus, the door is opened to at least limited scrutiny into the merits of the Director's decision. The statute, however, does not read that way. Far from requiring that a particular termination in fact advance the national interest, section 102(c) goes no further than to authorize the Director "in his discretion" to terminate any employee "whenever he shall deem such termination necessary or advisable in the interests of the United States." (emphasis added). Thus the operative requirement is that the Director believe that the termination safeguards the interests of the United States and not (as the majority suggests) that it do so in fact.
134
Moreover, the statutory language cannot be read to authorize a court to inquire into the reasons for the Director's decision to terminate an employee because that decision is delegated to his discretion alone. As this court held in Service v. Dulles, supra, the judicial function is limited to a determination that the statute's "procedural requirements" have been met; namely, that the decision to terminate was in fact based on the Director's assessment of the national interest. Beyond that, we cannot inquire.
135
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. This represents, of course, an unusually broad delegation of authority. It was, however, the judgment of Congress that the Director should have that latitude, and it is not for this court to second-guess that judgment.
136
B. The Majority's Failure to Apply this Court's Precedents Regarding the Standard for Finding Commitment to Agency Discretion Within the Meaning of Section 701(a)(2)
137
Based on its finding that section 102(c) establishes a standard that constrains the Director's exercise of his discretion in terminating employees, the majority holds that the Director's decisions are judicially reviewable. This holding is premised on the notion that the "committed to agency discretion" exception applies only when "a court would have no meaningful standard" to apply (Majority Opinion at 1517); this notion, however, applies too narrow a reading of the Supreme Court's interpretation of section 701(a)(2), and directly contravenes this court's own precedents.
138
In support of the proposition that section 701(a)(2) applies only where there is "no law to apply" (Majority Opinion at 14), the majority cites Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 410, 91 S.Ct. at 821, and Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649 1655 84 L.Ed.2d 714 (1985). In those cases, however, the Supreme Court held only that section 701(a)(2) "is a very narrow exception" and that it is "applicable in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply," or so drawn that "a court would have no meaningful standard against which to judge the agency's exercise of discretion." Nowhere does the Court state that this exception applies only in those cases.
139
The majority simply ignores this court's cases holding that section 701(a)(2) is evoked not only by the absence of applicable standards, but also by certain pragmatic considerations. In Natural Resources Defense Council, Inc. v. SEC,606 F.2d 1031, 1043-44 (D.C.Cir.1979), this court held that the application of section 701(a)(2)
140
necessarily turns on pragmatic considerations as to whether an agency determination is the proper subject of judicial review.... In making this determination, we ... evaluate the relevance of three particularly important factors: the need for judicial supervision to safeguard the interests of the plaintiffs; the impact of review on the effectiveness of the agency in carrying out its congressionally assigned role; and the appropriateness of the issues raised for judicial review.... Finally, we inquire whether the considerations in favor of nonreviewability thus identified are sufficiently compelling to rebut the strong presumption of judicial review.
141
Accord, Local 1219, AFGE v. Donovan, 683 F.2d 511, 515 (D.C.Cir.1982) (Section 701(a)(2) "shields from review only those matters for which a 'fair appraisal of the legislative scheme, including a weighing of practical and policy implications of reviewability, persuasively indicates that judicial review should be circumscribed.' " (citation omitted)).
142
An assessment of the "pragmatic considerations" in the instant case, including "the impact of review on the effectiveness of the agency in carrying out its congressionally assigned role," clearly weighs against judicial review of the Director's section 102(c) decisions.
143
As the Supreme Court observed when dealing with a different section of the National Security Act of 1947:
144
The decisions of the Director, who must of course be familiar with "the whole picture," as judges are not, are worthy of great deference given the magnitude of the national security interests and potential risks at stake. It is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency.
145
CIA v. Sims, 105 S.Ct. at 1893. Here, of course, we are dealing not with a question of deference but of judicial competence. To intrude however deferentially into the Director's most sensitive personnel decisions entails the inevitable risk of unwittingly compromising national intelligence operations through the forced disclosure of information whose possible significance a court is not capable of assessing.
146
Whether or not such a danger exists in this particular case, the majority would establish a precedent that 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. This would tend to compromise the CIA's vital, congressionally-mandated functions. These pragmatic considerations "are sufficiently compelling to rebut the strong presumption of judicial review." Natural Resources Defense Council, 606 F.2d at 1044.*
147
Even accepting, for the sake of argument, the majority's narrow position that section 701(a)(2) applies only when there is "no law to apply," judicial review is nevertheless precluded. Section 102(c) represents one of those "very narrow exceptions" where "there is no law to apply." It is in fact drawn in such a manner that "a court would have no meaningful standard against which to judge" the Director's exercise of his statutory discretion. It bears repeating that the operative standard here is not whether the termination of a particular employee serves the national interest (as the majority maintains), but whether the Director believes it does. In the murky world in which the CIA must operate, one deals as often as not with intuitions as well as with provable facts, and a judge's perception of the national interest could be light years away from that of the Director called upon to make the critical judgments in the discharge of his special responsibilities. Given the nature of the discretion the Director is required to exercise, where is the law to be applied, where the meaningful standard against which any judge can take the measure of his performance?
148
It is noteworthy that in not a single case cited by the majority in support of judicial review of the exercise of agency discretion did the challenged decision involve considerations of national security: e.g., Citizens to Preserve Overton Park (highway planning); Robbins v. Reagan, 780 F.2d 37 (D.C.Cir.1985) (shelter for the homeless); Local 1219, AFGE v. Donovan, 683 F.2d 511 (D.C.Cir.1982) (settlement agreement between the Department of Labor and a federal employees' union resolving charges of unfair election procedures); WWHT, Inc. v. FCC, 656 F.2d 807 (D.C.Cir.1981) (FCC denial of rulemaking petition); Adams v. Richardson, 480 F.2d 1159 (D.C.Cir.1973) (en banc) (school desegregation); State of Fla. v. United States Dep't of Interior, 768 F.2d 1248 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1186 89 L.Ed.2d 302 (1986) (Government acquisition of land to be held in trust for Indian tribe); Wong Wing Hang v. INS, 360F.2d 715 (2d Cir.1966) (denial of application for suspension of deportation). Nor does a single case relied upon by the majority involve a situation where judicial review could pose the threat of disrupting "the effectiveness of the agency in carrying out its congressionally assigned role."
149
Because judicial review would tend to be sufficiently disruptive of the CIA's mission to rebut the presumption of reviewability, and because section 102(c) imposes no substantive constraints on the Director's exercise of his discretion and provides no meaningful standard for a court to apply, the Director's action is committed to his discretion within the meaning of section 701(a)(2) and is not subject to review.
III. ARGUABLE CONSTITUTIONAL RIGHTS
150
Having decided that section 102(c) does not preclude judicial inquiry into the Director's rationale for terminating an employee, the majority proceeds to explore alternative explanations for the Director's action in search of one that might constitute an "arguable infringement of constitutional rights" (Majority Opinion at 1521) (emphasis in the original). It found one (at least to its own satisfaction) in the possibility that the termination of Doe might have been "part of a ban against the employment of all homosexuals." See Majority Opinion at 1522-1523. While the majority concedes that the Supreme Court in Bowers v. Harwick, --- U.S. ----, 106 S.Ct. 2841 92 L.Ed.2d 140 (1986), and this court in Dronenburg v. Zech, 741 F.2d 1388 (D.C.Cir.1984), have held that homosexual conduct is not constitutionally protected, it argues that these courts did not reach "the difficult issue of whether an agency of the federal government can discriminate against individuals merely because of sexual orientation " (Majority Opinion at 1522) (emphasis in the original).
151
Accordingly, the majority remands the case with instructions to the district court (as I understand them) to determine whether the CIA has a policy of terminating the employment of all homosexuals. Presumably, if such a policy were found, the issue would then arise whether homosexual orientation, as opposed to homosexual conduct, is constitutionally protected. (Majority Opinion at 1522-1523).
152
At this point it is well to remind ourselves of what the Supreme Court described, in Sims, as "the harsh realities of the present day." 105 S.Ct. at 1891. In few areas of our national life can a single mistake lead to such calamitous consequences as in our national security services; in few areas are those in responsibility under such a heavy obligation to avoid the slightest identifiable risk. As one who shares the belief that the Constitution is not a suicide pact, I cannot agree that an intelligence agency is even arguably precluded from adopting a policy banning the employment of members of any class which the Director might deem to be more susceptible to blackmail than the average. Nor may we assume (as the majority apparently does) that every constitutional inquiry will suffice to override a congressional decision to preclude judicial review for reasons of national security. Be that as it may, neither that issue nor the majority's hypothetical is before us, and the plain meaning of section 102(c) precludes the kind of judicial fishing expedition on which the majority proposes to dispatch the district court.
IV. REMAINING JUDICIAL ROLE
153
Judicial review of the Director's section 102(c) decision to terminate Doe's employment is unavailable under either section 701(a)(1) or section 701(a)(2). The only legitimate role remaining for this court is to ensure that the Director acted within the bounds of his statutory authority, i.e., that his decision to terminate Doe's employment was in fact based upon his appraisal that "such termination [was] necessary or advisable in the interests of the United States." This is precisely the role to which this court limited itself in finding that the Director had acted within his authority in Torpats v. McCone, 300 F.2d 914 (D.C.Cir.), cert. denied, 371 U.S. 886, 83 S.Ct. 182 9 L.Ed.2d 121 (1962). See also Service v. Dulles, 235 F.2d 215 (D.C.Cir.1956).
154
In the instant case, as in Torpats, the record contains the Director's sworn statement that "[a]fter careful consideration of the matter, [the Director] determined that the termination of Mr. Doe's employment was necessary and advisable in the interests of the United States." This statement suffices to require our holding "that the Director acted within the authority conferred upon him by Congress...." 300 F.2d at 915.
155
As this comprises the extent of the legitimate inquiry, this case should be remanded to the district court with instructions to dismiss.
1
50 U.S.C. Sec. 403(c) (1982)
2
John Doe is proceeding under a pseudonym only because his status as a CIA employee cannot be publicly acknowledged, not because of any embarrassment about his homosexuality
3
Joint Appendix ("J.A.") 31
4
50 U.S.C. Sec. 403(c) (1982)
5
Doe principally seeks an explanation of precisely why his employment was terminated
6
5 U.S.C. Sec. 701(a) (1982)
7
Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031, 1043 (D.C.Cir.1979); see also Dunlop v. Bachowski, 421U.S. 560, 567, 95 S.Ct. 1851 1857 44 L.Ed.2d 377 (1975); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814 820 28 L.Ed.2d 136 (1971); Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507 1510 18 L.Ed.2d 681 (1967); WWHT, Inc. v. FCC, 656 F.2d 807, 815 (D.C.Cir.1981)
8
Bowen v. Michigan Academy of Family Physicians, --- U.S. ----, 106 S.Ct. 2133, 2140-41, 90 L.Ed.2d 623 (1986)
9
5 K. DAVIS, ADMINISTRATIVE LAW TREATISE Sec. 28.4 (2d ed. 1984)
10
See H.R. REP. NO. 1980, 79th Cong., 2d Sess. 41 (1946) ("To preclude judicial review under this bill a statute, if not specific in withholding such review, must upon its face give clear and convincing evidence of an intent to withhold it.")
11
Sunstein, Reviewing Agency Inaction After Heckler v. Chaney, 52 U.CHI.L.REV. 653, 655 (1985)
12
See Lindahl v. Office of Personnel Management, 470 U.S. 768, 105 S.Ct. 1620 1627 84 L.Ed.2d 674 (1985); Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851 1857 44 L.Ed.2d 377 (1975); Citizens to Preserve Overton Park, Inc. v. Volpe,401 U.S. 402, 410, 91 S.Ct. 814 820 28 L.Ed.2d 136 (1971); Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967); WWHT, Inc. v. FCC, 656 F.2d 807, 809 (D.C.Cir.1981). As discussed previously, this "clear and convincing evidence" standard is based on clear congressional intent. See H.R.REP. NO. 1980, supra note 10, at 41
13
Block v. Community Nutrition Institution, 467 U.S. 340, 351, 104 S.Ct. 2450, 2457, 81 L.Ed.2d 270 (1984)
14
Id
15
Id. (quoting Data Processing Service v. Camp, 397 U.S. 150, 157, 90 S.Ct. 827 831 25 L.Ed.2d 184 (1970))
16
442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979)
17
401 U.S. 402, 410, 91 S.Ct. 814 820 28 L.Ed.2d 136 (1971)
18
As Justice Rehnquist noted in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649 1655 84 L.Ed.2d 714 (1985), section 701(a)(2)'s preclusion of review when a decision is "committed to agency discretion" would be unnecessary unless there are circumstances in which "Congress has not affirmatively precluded review," but has chosen a standard such that "a court would have no meaningful standard against which to judge the agency's exercise of discretion."
19
467 U.S. 340, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984)
20
Id. at 346-47, 104 S.Ct. at 2454-55
21
See, e.g., id. at 347, 348 & 352, 104 S.Ct. at 2455, 2456, 2458. A similar logic was used to find preclusion in Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979). Congress provided mandatory language in the statute when it wished to provide judicial review. Therefore, its use of permissive language without any standard was strong evidence of an intent to preclude review
22
432 U.S. 491, 97 S.Ct. 2411 53 L.Ed.2d 506 (1977)
23
Id. at 504
24
See, e.g., Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851 1857 44 L.Ed.2d 377 (1975); Local 1219, AFGE v. Donovan, 683 F.2d 511, 516-18 & n. 16 (D.C.Cir.1982) (permissive statutory language alone does not suggest a congressional intent to preclude review)
25
Section 102(c) specifically references only one portion of the United States Code--5 U.S.C. Sec. 7501 (1982). This is an unambiguous reference to the statutory protections offered most federal employees. See 5 U.S.C. Secs. 7501-14 (1982) (providing standards and procedure for adverse actions against federal employees). Under these provisions a federal employee may be dismissed "only for such cause as will promote the efficiency of the service." 5 U.S.C. Sec. 7513(a) (1982)
26
See S.REP. NO. 77, 98th Cong., 1st Sess. 6-7 (1983), cited in Reply Brief for Appellant at 9. It is manifestly untrue that all courts have interpreted section 102(c) as precluding review. Indeed, this circuit in Torpats v. McCone, 300 F.2d 914, 915 (D.C.Cir.), cert. denied, 371 U.S. 886, 83 S.Ct. 182 9 L.Ed.2d 121 (1962), upheld a termination of a CIA employee as "within the authority conferred [on the Director] by Congress" and did not refuse review
27
One final CIA argument deserves only a short comment. The CIA argues that the statute's language, "[n]otwithstanding ... any other law," explicitly prevents the application of the APA. Although we agree that the APA is a "law," we find it plain that it is not the type of law to which the statute refers. The "law[s]" to which section 102(c) refers are those that would otherwise limit the Director's discretion to terminate CIA employees. The APA does not itself limit the Director's discretion. Instead, APA review merely ensures that the Director does not exceed the authority granted by section 102(c) and that the Director does not violate other limits--such as the Constitution--on his or her discretion
28
Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 1659, 84 L.Ed.2d 714 (1985); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814 820 28 L.Ed.2d 136 (1971); Adams v. Richardson, 480 F.2d 1159, 1161 (D.C.Cir.1973) (en banc)
29
Robbins v. Reagan, 780 F.2d 37, 45 (D.C.Cir.1985). While Heckler v. Chaney, 105 S.Ct. at 1656, applied a presumption of nonreviewability to agency enforcement discretion, even the Government admits that no such presumption is applicable in the instant case. This case concerns agency action that involves coercive power over a federal employee and in an area traditionally subject to judicial scrutiny. See Heckler v. Chaney, 105 S.Ct. at 1656 (contrasting an agency's decision not to act with agency action such as that involved in the instant case); Robbins, 780 F.2d at 45 (limiting Heckler's presumption of nonreviewability to enforcement decisions)
30
Heckler v. Chaney, 105 S.Ct. at 1655; see State of Florida v. United States Dep't of the Interior, 768 F.2d 1248, 1255 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1186 89 L.Ed.2d 302 (1986)
31
Citizens to Preserve Overton Park, Inc., 401 U.S. at 410, 91 S.Ct. at 820 (quoting S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945))
32
Robbins, 780 F.2d at 45; see also Local 1219, AFGE v. Donovan, 683 F.2d 511, 515 (D.C.Cir.1982)
33
Even in cases in which courts have held actions "committed to agency discretion by law," some review is still available to ensure that the agency has not violated other constitutional or statutory commands. See Hondros v. United States Civil Service Comm'n, 720 F.2d 278, 293 (3d Cir.1983) ("even those actions 'committed to agency discretion by law' are reviewable on grounds that the agency lacked jurisdiction, that the agency's decision was occasioned by 'impermissible influences,' or that the decision violates any constitutional, statutory, or regulatory command"); WWHT, Inc. v. FCC, 656 F.2d at 815 n. 15 ("In no event would a finding of non-reviewability on the ground that an action is committed to agency discretion preclude judicial review when constitutional violations have been alleged."); Sunstein, supra note 11, at 658 ("[I]f a plaintiff claims that an agency has taken constitutionally impermissible factors into account, there is always 'law to apply'--no matter what the governing statute may say. Similarly, if the plaintiff alleges that the agency's conduct has been based on factors that are irrelevant under the governing statute, there is always law to apply, even if the agency has especially broad discretion in weighing those factors that are statutorily relevant.")
34
397 U.S. 159, 166, 90 S.Ct. 832 837 25 L.Ed.2d 192 (1970)
35
Wong Wing Hang v. INS, 360 F.2d 715 (2d Cir.1966). Judge Friendly explained the possible grounds for a finding of an abuse of discretion:
Without essaying comprehensive definition, we think the denial of suspension to an eligible alien would be an abuse of discretion if it were made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as an invidious discrimination against a particular race or group, or, in Judge Learned Hand's words, on other "considerations that Congress would not have intended to make relevant."
Id. at 719 (quoting United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2d Cir.1950)). Clearly these same factors would also constitute an abuse of discretion in the context of section 102(c) terminations.
36
See Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524 1531 84 L.Ed.2d 547 (1985) (challenging selective prosecution of draft registration law violators)
37
300 F.2d 914 (D.C.Cir.), cert. denied, 371 U.S. 886, 83 S.Ct. 182 9 L.Ed.2d 121 (1962)
38
Id. at 915
39
See Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152 1 L.Ed.2d 1403 (1957)
40
CIA Regulation HR 20-27(j), reprinted in J.A. 35
41
Id. 20-27m (emphasis added)
42
Id. 20-27m(8)
43
Doe v. Casey, 601 F.Supp. 581, 587 n. 4 (D.D.C.1985)
44
613 F.2d 923 (D.C.Cir.1980)
45
Id. at 929
46
See CIA Regulation HR 20-27(a); 20-27m(8)(b) ("In the case of separation during the trial period, the procedures of paragraph a are to be followed."), supra note 40
47
591 F.2d 852 (D.C.Cir.1978)
48
Id. at 855
49
Id. at 859
50
5 U.S.C. Sec. 706(2)(A) (1982)
51
471 U.S. 159, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985)
52
Id. at 1893
53
Id
54
In cases involving challenges to agency failures to institute rulemaking we have similarly declined to find a preclusion of review, but have exercised only a narrow scope of review. See WWHT, Inc. v. FCC, 656 F.2d 807, 809 (D.C.Cir.1981) ("[W]e hold that, except where there is evidence of a 'clear and convincing legislative intent to negate review,' ... an agency's denial of a rulemaking petition is subject to judicial review. However, we believe that the decision to institute rulemaking is one that is largely committed to the discretion of the agency, and that the scope of review of such a determination must, of necessity, be very narrow.") (quoting Natural Resources Defense Council, Inc. v. SEC, 606 F.2d1031, 1043 (D.C.Cir.1979))
55
Sims, 105 S.Ct. at 1893
56
741 F.2d 1388 (D.C.Cir.1984)
57
--- U.S. ----, 106 S.Ct. 2841 92 L.Ed.2d 140 (1986)
58
408 U.S. 564 (1972)
59
Id. at 573
60
See Paul v. Davis, 424 U.S. 693, 711, 96 S.Ct. 1155 1165 47 L.Ed.2d 405 (1976); Mosrie v. Barry, 718 F.2d 1151, 1161 (D.C.Cir.1983). For purposes of a liberty interest claim, it is not relevant that the public employee's job did not constitute a property interest. See Doe v. United States Dep't of Justice, 753 F.2d 1092, 1106-07 (D.C.Cir.1985).61 Doe v. United States Dep't of Justice, 753 F.2d at 1105
62
See, e.g., id. at 1106-08; Mosrie, 718 F.2d at 1161-62
63
Doe v. United States Dep't of Justice, 753 F.2d at 1111
64
749 F.2d 815 (D.C.Cir.1984)
65
Id. at 824 (emphasis added)
66
See Beller v. Middendorf, 632 F.2d 788, 806 (9th Cir.1980) (when "real stigma imposed by the Navy's action ... is the charge of homosexuality," which plaintiffs admit, there is no deprivation of liberty), cert. denied, 452 U.S. 905, 101 S.Ct. 3030 69 L.Ed.2d 405 (1981)
67
While it may be true that other agencies and private employers will make their own determination of Doe's security risk, as a practical matter, we find it inconceivable that other agencies would second-guess such a determination by the CIA. At the very least, the potential foreclosure of economic opportunities is as great as that found to violate liberty interests in recent cases in this circuit. See, e.g., Doe v. United States Dep't of Justice, 753 F.2d at 1112-13 & n. 24 (information in employee's file indicating that employee was terminated for unprofessional conduct and dishonesty gives rise to liberty claim); Old Dominion Dairy Products, Inc. v. Secretary of Defense, 631 F.2d 953, 962-66 (D.C.Cir.1980) ("lack of integrity" charge that was communicated to other government agencies gave rise to liberty interest claim); see also White v. Thomas, 660 F.2d 680, 684-85 (5th Cir.1981) (charge that employee lied on his employment application gave rise to liberty interest due process claim), cert. denied, 455 U.S. 1027, 102 S.Ct. 1731 72 L.Ed.2d 148 (1982)
68
Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct. 882 883 51 L.Ed.2d 92 (1977)
69
Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893 901 47 L.Ed.2d 18 (1976)
70
Endicott v. Huddleston, 644 F.2d 1208, 1216 (7th Cir.1980)
71
See, e.g., Staton v. Mayes, 552 F.2d 908, 913-14 (10th Cir.) (finding potential due process violation because of biased decisionmaker), cert. denied, 434 U.S. 907, 98 S.Ct. 309 54 L.Ed.2d 195 (1977)
72
Similar informal procedures have been upheld. See, e.g., Campbell v. Pierce County, 741 F.2d 1342, 1345-46 (11th Cir.1984) (rejecting liberty interest due process claim when plaintiff had notice and the opportunity to rebut claims of insubordination and mishandling of funds), cert. denied, --- U.S. ----, 105 S.Ct. 1754 84 L.Ed.2d 818 (1985); Endicott, 644 F.2d at 1216 (rejecting requirement that government call witnesses whom the employee's counsel could cross-examine)
*
In support of its position that such pragmatic concerns need not be considered, and that the presence of a judicially manageable standard is the only issue relevant to the applicability of section 701(a)(2), the majority cites two cases from this court, Adams v. Richardson, 480 F.2d 1159 (D.C.Cir.1973) (en banc), and Robbins v. Reagan, 780 F.2d 37(D.C.Cir.1985). These cases, however, are both distinguishable. Neither case involved an agency with a sensitive, national security-related mission, and in neither did judicial review pose the threat of disrupting "the effectiveness of the agency in carrying out its congressionally assigned role." Natural Resources Defense Council, 606 F.2d at 1044. In fact, in both cases the court emphasized that its scrutiny would not interfere with agency functioning. 480 F.2d at 1162; 780 F.2d at 47
The majority also cites Local 1219, AFGE v. Donovan, but far from supporting the majority's narrow reading of section 701(a)(2), that case directs the court to weigh the "practical and policy implications of reviewability." 683 F.2d at 515.
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