Doe v. Tenet

Decision Date29 May 2003
Docket NumberNo. 01-35419.,01-35419.
Citation329 F.3d 1135
PartiesJohn DOE and Jane Doe, Plaintiffs-Appellees, v. George J. TENET, Individually and as Director of Central Intelligence and Director of the Central Intelligence Agency; United States of America, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Daniel L. Pines, Central Intelligence Agency, Mclean, VA; Stuart Schiffer, Francis J. Diskin, Barbara L. Herwig, and Freddi Lipstein, Department of Justice, Washington, DC, for the defendants-appellants.

Steven W. Hale and Elizabeth A. Alaniz, Perkins Coie LLP, Seattle, WA, for the plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Washington; Robert S. Lasnik, District Judge, Presiding. D.C. No. CV-99-01597-RSL.

Before: CANBY, JR., BERZON,* and TALLMAN, Circuit Judges.

Opinion by Judge BERZON.

Dissent by Judge TALLMAN.


BERZON, Circuit Judge:**

Jane and John Doe — fictitious names, adopted for this litigation for reasons that will appear — assert that they performed espionage activities on behalf of the United States against a former Eastern bloc country. The Central Intelligence Agency (the "CIA"), they say, assured them that it would provide assistance in resettling in the United States as well as lifetime financial and other support. According to the Does, the CIA has now reneged on its obligation of support. The United States will neither confirm nor deny the Does' allegations, for reasons of national security.

We must decide whether the Does can sue the CIA for the alleged wrongs committed by the Agency, or whether, instead, their action is either appropriate only in the Court of Federal Claims or precluded by the venerable doctrine enunciated in Totten v. United States, 92 U.S. 105, 23 L.Ed. 605 (1875).


We assume, without deciding, that the facts as alleged by the Does are true and construe the complaint in the light most favorable to their case. See Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir.2000). The facts that appear in this opinion, with the exception of procedural history in federal court, are all, therefore, simply allegations, even when not stated as such.

The Does allege that they were citizens of an Eastern bloc country formerly considered an adversary of the United States. During his tenure as a high ranking diplomat for that country during the Cold War, Mr. Doe approached a person associated with the United States embassy and requested assistance in defecting to the United States.

The Does recount that after this request was made, CIA agents took them to a "safe house" for approximately twelve hours. The CIA officers employed intimidation and coercion to convince the Does to remain instead at their diplomatic post and to engage in espionage for the United States. The agents told the Does that if they agreed to conduct espionage on behalf of the United States, the CIA would arrange for their resettlement in the United States and ensure their financial and personal security "for life." The Does further allege that the agents assured them that this assistance was approved at the highest level of authority at the CIA and was mandated by U.S. law.

The Does state that although they were initially reluctant to conduct espionage activities, they eventually agreed to do what was asked of them. They allege that they carried out their end of the bargain but that the Agency has now reneged and abandoned them to fend for themselves.

The Does represent that they entered the United States under the special provisions of the "PL-110 Program."1 Pursuant to that program, the CIA provided them with false identities and backgrounds and offered to "retire" them with financial and health benefits. The Does allege that the Agency provided them with various benefits, including health care and education. Because the Does desired to "become integrated into American society," they requested that the CIA assist them in obtaining employment. They claim that the CIA continued to assure them that, to the extent that their earned income was insufficient to meet their needs, they would be supported by the Agency for the remainder of their lives with a "safety net," which was "required by law." The Does allege that they were told that such support was required on the basis of their classification as "PL-110s."

The Does eventually settled in the Seattle area, and were initially provided with a stipend of $20,000 per year, as well as housing and other benefits. Over time, their stipend was increased to $27,000. They say that with the CIA's assistance in providing false identities, resumes, and references, Mr. Doe obtained professional employment in 1987. As Mr. Doe's salary increased, the amount of the stipend provided by the CIA commensurately decreased.

In 1989, Mr. Doe and the CIA allegedly agreed that once Mr. Doe's salary hit the $27,000 mark, his stipend would be suspended. However, Mr. Doe received the CIA's assurance that if his employment were terminated, his stipend would be resumed. The CIA assertedly assured Mr. Doe that the Agency would "always be there" for the Does.

As a result of a corporate merger in 1997, Mr. Doe lost his job. Although Mr. Doe made efforts to find new employment, he says that his advanced age and his security arrangement with the CIA, which required him to use the false identity and background that he had been provided, limited his options. The Does assert that they contacted the CIA to request assistance. The CIA refused to assist Mr. Doe in finding a new job as it had done in the past. Mr. Doe has remained unemployed. After several failed attempts to obtain CIA assistance, the Does sought legal representation.

In 1997, the Does were allegedly informed by a CIA representative that the Agency had determined that the benefits they had previously been provided had been adequate compensation for the services rendered and that further support would not be provided. The Does were then told that they could appeal this decision to the Director. The Does' counsel therefore prepared an appeal to the Director. While so doing, the Does' counsel repeatedly requested from the Agency internal regulations governing the appeals process as well as regulations regarding resettled aliens. The CIA never responded to these requests. Other requests for access to records or individuals within the CIA were also either denied or ignored by the CIA.

Nevertheless, the Does claim, they filed their administrative appeal with the Director in late 1997. It was subsequently denied. The Does assert that they then appealed to the Helms Panel, a panel consisting of former Agency officials. The Does allege that the Helms Panel recommended that the Agency provide the plaintiffs "certain benefits ... for a period not to exceed one year, and nothing thereafter." The payment was conditioned on the Does' signing waivers and release documents. Apparently, the Does declined to execute such documents and therefore did not receive the payments recommended by the Helms Panel.

The Does then filed suit in the United States District Court for the Western District of Washington. They asserted claims under the Equal Protection and Due Process Clauses of the United States Constitution, seeking declaratory, injunctive, and mandamus relief. Their complaint further requested that the district court require the CIA to resume payment of the benefits allegedly promised and provide constitutionally adequate internal review procedures.

The United States moved to dismiss the case for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The district court denied the CIA's jurisdictional motion under Rule 12(b)(1), finding that the rule announced by the Supreme Court in Totten did not prohibit the court from entertaining this suit. The district court determined that the trial could proceed despite the alleged existence of a secret agreement, and any materials involving national security interests could be adequately protected by submission under seal or by in camera review.

The district court also rejected the CIA's contention that the Tucker Act, 28 U.S.C. § 1346, requires that this case be heard in the United States Court of Federal Claims, because, according to the Agency, this was essentially a contract suit seeking money damages from the United States. The district court reasoned that although the Does' request for injunctive relief may have included a directive that the CIA resume payments, the Does were not seeking solely a money damages judgment.

The district court went on to determine that the Does had properly stated both substantive and procedural due process claims, even apart from the existence of an alleged secret contract with the Agency. First, the district court found that "[the Does] may be able to base their entitlement to receipt of the CIA's monetary stipend on theories other than contract. For example, if plaintiffs are able to prove an entitlement to benefits based on a promissory or equitable estoppel theory, or if there is a regulatory or statutory basis for their entitlement, then they may be able to show a constitutionally protected property interest, regardless of Totten." Further, the court found that the Does had sufficiently stated due process claims on two separate theories — that the CIA had placed the Does in danger and that the CIA had created a special relationship with the Does.2

The United States later renewed its motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) and moved for summary judgment under Rule 56(c). The district court denied these motions and we granted an interlocutory appeal. See 28 U.S.C. § 1292(b). On appeal, the United States maintains that there is no...

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