796 F.2d 1508 (D.C. Cir. 1986), 85-5291, Doe v. Casey

Docket Nº:85-5291.
Citation:796 F.2d 1508
Party Name:John DOE v. William J. CASEY, Director, C.I.A., Appellant.
Case Date:August 01, 1986
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1508

796 F.2d 1508 (D.C. Cir. 1986)

John DOE

v.

William J. CASEY, Director, C.I.A., Appellant.

No. 85-5291.

United States Court of Appeals, District of Columbia Circuit

August 1, 1986

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Argued March 13, 1986.

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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:

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

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.

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

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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

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.

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.

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.

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.

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:

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.

After careful consideration of this matter, the Director has deemed it necessary and advisable in the interests of the United

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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

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:

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

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.

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. 5 Doe 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.

This appeal followed.

II. ANALYSIS

  1. Preclusion of Review

    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.

    Under section 701(a) of the APA, 6 agency actions are judicially reviewable

    except to the extent that--(1) statutes preclude judicial review; or (2) agency action is committed...

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