Webster v. Doe

486 U.S. 592, 108 S. Ct. 2047, 100 L. Ed. 2d 632, 1988 U.S. LEXIS 2724, 56 U.S.L.W. 4568, 3 I.E.R. Cas. (BNA) 545, 46 Empl. Prac. Dec. (CCH) 38,034, 46 Fair Empl. Prac. Cas. (BNA) 1671

Opinions

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.

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. Respondent’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 state ment 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 admin istrative 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 whether the Director’s decision to discharge a CIA employee under § 102(c) of the NSA is judicially re viewable under the

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. Volpe, 401 U. 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. Chaney, 470 U. 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 judi cial 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 mis-branding 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, 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 States, 444 U. 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. Sims, 471 U. 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 re viewable by the courts.

Ill

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, 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 Ms 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.

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. Robison, 415 U. 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. In Weinberger v. Salfi, 422 U. 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 Physicians, 476 U. 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 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 Court, 426 U. S. 394, 405 (1976); United States v. Reynolds, 345 U. 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 NS A. Even without such prohibitory legislation from Congress, of course, traditional equitable principles requiring the balancing of public and private interests control the grant of de claratory or injunctive relief in the federal courts. Weinberger v. Romero-Barcelo, 456 U. S. 305 (1982); Hecht Co. v. Bowles, 321 U. 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.

Footnotes

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 1508, 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 1508 (1986)); see also Service v. Dulles, 354 U. 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. Murray, 415 U. 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. Hardwick, 478 U. S. 186 (1986), to support this view. This question was not presented in the petition for certio-rari, and we decline to consider it at this stage of the litigation.