Molerio v. F.B.I.

• Decision Date: 30 November 1984
• Docket Number: No. 83-2095,83-2095
• Citation: 242 U.S.App.D.C. 137,749 F.2d 815
• Parties: 36 Fair Empl.Prac.Cas. 586, 35 Empl. Prac. Dec. P 34,825, 242 U.S.App.D.C. 137, 40 Fed.R.Serv.2d 769, 16 Fed. R. Evid. Serv. 1295 Daniel MOLERIO, Appellant v. FEDERAL BUREAU OF INVESTIGATION, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 815

749 F.2d 815

36 Fair Empl.Prac.Cas. 586,

35 Empl. Prac. Dec. P 34,825, 242 U.S.App.D.C. 137,

40 Fed.R.Serv.2d 769, 16 Fed. R. Evid. Serv. 1295

Daniel MOLERIO, Appellant v. FEDERAL BUREAU OF INVESTIGATION, et al.

No. 83-2095.

United States Court of Appeals, District of Columbia Circuit.

Argued April 10, 1984.

Decided Nov. 30, 1984.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-01706).

Arthur B. Spitzer, Washington, D.C., with whom Andrew B. Weissman and Margaret L. Tobey, Washington, D.C., were on the brief, for appellant.

Freddi Lipstein, Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty., and Barbara L. Herwig, Dept. of Justice, Washington, D.C., were on the brief, for appellees.

Before EDWARDS, SCALIA and FRIEDMAN, ^* Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

We review the decision of the District Court to dismiss an action brought by Daniel Molerio, who asserted that the Federal Bureau of Investigation refused to hire him as a special agent for reasons which were both illegal and unconstitutional. The appeal raises issues, among others, of the validity and effect of the government's assertion of the state secrets privilege, and of the elements necessary to sustain claims under Title VII of the Civil Rights Act and the Due Process Clause of the Constitution.

I

On September 19, 1979, Daniel Molerio applied to be an FBI special agent. At the time, he was a criminal investigator in the Immigration and Naturalization Service, where he held a "secret" security clearance. A panel of three FBI special agents interviewed Molerio, and rated him an "outstanding candidate." After an interview and examinations, Molerio ranked fifth out of the 785 applicants in the Special Agent Selection System, and was included in a list of agents tentatively selected for the new class of special agents, subject to a background investigation for the necessary "top secret" security clearance.

Because, as he was told, the investigation had revealed "something in New York having to do with his family," Complaint p 14, Molerio was interviewed a second time. This interview concentrated on his family relationships and the political beliefs of members of his family. Molerio was asked about pro- and anti-Castro groups, specifically the "26th of July" group, a Cuban political organization which supported the Castro revolution and to which Molerio's father belonged at one time. Molerio was later told that his application had been referred to the Bureau's counter-intelligence division because "his background investigation [revealed] something in New York having to do with [his] father," Complaint p 27. In a letter dated November 20, 1980, the Bureau informed him that he would not be hired. No reasons were given.

After contacting EEO officers in the Immigration and Naturalization Service and the FBI, Molerio filed a formal complaint of discrimination, which was denied. He also filed combined Freedom of Information Act ("FOIA") and Privacy Act requests with FBI headquarters and several Field Offices. The agency began processing these requests, and acknowledged that responsive documents were located; no documents, however, have been provided.

Molerio then brought this action for injunctive relief and damages, naming as defendants the Bureau, its Director, and the individual who was its Personnel Officer during the period at issue. Molerio sought relief on four counts. First, he claimed that the Bureau's actions violated Title VII, 42 U.S.C. Sec. 2000e-16 (1982). He alleged that he was qualified for the job of special agent, but was not chosen because of his Cuban or Hispanic national origin. Second, he alleged that the Bureau decided not to hire him because of his association with his father and his father's political activity, in violation of his First Amendment associational rights. Third, he asserted that he had been deprived of his liberty without due process of law, stating that the action of the Bureau had impugned his reputation and adversely affected his chance for advancement within the government, all without adequate procedural protection. Finally, he claimed that the Bureau wrongfully denied his FOIA and Privacy Act requests, 5 U.S.C. Secs. 552(a) & 552a(d) (1982), and, in violation of the Privacy Act, willfully maintained inaccurate records regarding him as a result of which he was harmed, 5 U.S.C. Sec. 552a(g).

Defendants answered the complaint, and complied with discovery requests, although redacting many of the documents produced to eliminate information which would "jeopardize or interfere with National-States Secrets or the National Security." Molerio moved to compel production of the redacted portion of selected documents. Defendants moved to stay consideration of this motion on the ground that they would soon move to dismiss the action--which they did, claiming that the state secrets privilege required dismissal. The Bureau also submitted an affidavit, to be examined in camera, disclosing the Bureau's reasons for not hiring Molerio. Defendants argued that because either the prosecution of the case or its defense would require disclosing state secrets, the action must be dismissed.

The District Court held that the Department of Justice had complied with the formal requirements of the state secrets privilege, and that the reason for Molerio's non-appointment revealed in camera was protected by the privilege. The court held first, that without the privileged information the plaintiff had not made out a prima facie case; and second, that even if he had the suit would have to be dismissed because the defendants were unable to present their defense on the record. The court was unwilling to require the government to present the secret material in camera, since that would compromise the court's objectivity by forcing it to evaluate evidence without the assistance of opposing counsel. The court dismissed the plaintiff's action "for failure to state a claim upon which relief can be granted," and the motion to compel production as moot. Molerio v. FBI, Civil No. 83-1706, mem. op. at 11 (D.D.C. Sept. 6, 1983) ("mem. op.").

II

Since all of the rulings challenged here, including that as to the insufficiency of the evidence, constitute findings of law rather than fact, in our consideration of this appeal we do not defer to the judgment of the district court and reverse only if that judgment is clearly erroneous, but rather make our own independent assessment. Western Casualty & Surety Co. v. National Union Fire Insurance Co., 677 F.2d 789, 791 n. 1 (10th Cir.1982). A preliminary issue relates to the evidence that we can properly take into account.

Molerio claims that since what was before the District Court was the government's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), it was improper for the district judge, and it would be improper for us upon this appeal, to consider evidence outside the pleading. We disagree. Although the defendants styled their motion as one brought under Rule 12(b)(6), no one treated it as such. The appellant, in fact, treated it as a motion for summary judgment. He filed a "Statement of Genuine Issues," which the District Court's Local Rule 1-9(i) requires parties to file in connection with summary judgment motions. That document specifically acknowledged that "[b]y disputing the plaintiff's factual allegations on the basis of matters outside the pleadings, the defendants have converted their motion to dismiss to a motion for summary judgment." J.A. 96. While the conclusion of the court's memorandum opinion asserted that the appellant had not stated a claim upon which relief could be granted, mem. op. at 11, it is apparent from the text of the opinion that the primary basis for dismissal was that he had not made out a prima facie case in support of any of his claims, id. at 7 (Title VII claim) & 8 (First Amendment, due process, FOIA, and Privacy Act claims). It is true that, if the District Court was proceeding in this fashion, it should more properly have denied the motion to compel production of documents rather than dismiss it as moot. The latter course is more consistent with the District Court's alternative theory (viz., that the litigation could not proceed because the defendants would be unable to present their defense) which would, if valid, perhaps produce dismissal for failure to state a claim. But we can of course affirm the District Court on any valid ground, and need not follow the same mode of analysis. Langnes v. Green, 282 U.S. 531, 538-39, 51 S.Ct. 243, 246, 75 L.Ed. 520 (1931). Without passing upon the validity of a more direct approach to dismissing the entire suit, we choose to rely upon the primary theory reflected in the District Court's opinion, for which purpose we find no difficulty in treating the defendants' motion, as appellant himself treated it, as a motion for summary judgment.

Molerio's next procedural point is that it is improper to treat a 12(b)(6) motion accompanied by matters outside the pleading as a Rule 56 motion for summary judgment unless all parties have been given a reasonable opportunity to submit material appropriate to the latter motion. FED.R.CIV.P. 12(b). He asserts that this opportunity was not provided, since the District Court wrongfully denied (in effect) his motion to compel production by accepting the government's assertion of the state secrets privilege, i.e., the privilege against disclosure of information that would adversely affect national security. As we have recently noted, this includes information that would result in "impairment of the nation's defense capabilities, disclosure of intelligence-gathering methods or capabilities, and disruption of diplomatic relations with foreign governments." Ellsberg v. Mitchell, 709...