ROBERT M. GATES, ACTING DIRECTOR OF CENTRAL INTELLIGENCE, PETITIONER V. JOHN DOE No. 86-1294 In the Supreme Court of the United States October Term, 1986 On Petition for A Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit Reply Memorandum for the Petitioner In this case, the court of appeals ruled that the decision of the Director of Central Intelligence to dismiss an officer or employee of the Central Intelligence Agency pursuant to the Director's authority under Section 102(c) of the National Security Act of 1947, 50 U.S.C. 403(c), is subject to judicial review under the Administrative Procedure Act, 5 U.S.C. (& Supp. III) 701-706. We argued in our petition in No. 86-1294 that the ruling below is inconsistent with the text, purposes, and structure of the statutes governing the CIA, that it will injure the Director's ability to safeguard the CIA'S intelligence functions, and that it creates an anomaly in the overall scheme established by Congress to regulate access to classified information by employees in the intelligence community. Respondent's arguments that the decision below does not warrant reveiw by this Court are entirely unpersuasive. 1. Respondent's primary argument (86-1294 Br. in Opp. 2-5) is that this case is not in an appropriate posture for review by this Court. Respondent asserts that the only issues left in this case are (1) whether he was discharged pursuant to a CIA policy refusing to employ homosexuals, and (2) if so, whether dismissing him for that reason was unconstitutional. Respondent argues that, since the district court has jurisdiction over his constitutional claim pursuant to 28 U.S.C. 1331, the court of appeals' holding that the Director's decision to remove him may be reviewed under the APA "was unnecessary to its ultimate decision" and is "merely an academic" matter (86-1294 Br. in Opp. 2, 3). That argument is unpersuasive. /1/ To begin with, respondent has misread the court of appeals' decision. Under the court of appeals' remand order, if the district court finds that respondent was dismissed pursuant to a CIA policy against employing homosexuals, the district court must determine whether that policy exceeds the Director's statutory authority, not simply whether such a policy is constitutional. See Pet. App. 27a ("At the very least, the CIA would have to justify why such a ban on the employment of homosexuals was 'necessary or advisable in the interests of the United States.'"). We doubt that respondent intends to waive his claim that the Director has exceeded his statutory authority. In any event, respondent's claim lacks merit. Respondent sued the Director in his official, not his personal, capacity (see Brandon v. Holt, 469 U.S. 464 (1985)), and respondent sought reinstatement, a form of relief that, by necessity, "operates against the United States" (Dugan v. Rank, 372 U.S. 609, 621 (1963); see also Larson v. Domestic & Foreign Corp., 337 U.S. 682, 704 (1949); Hawaii v. Gordon, 373 U.S. 57, 58 (1963) ("The general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter.")). Respondent therefore cannot obtain such relief unless the United States has waived its immunity from suit. The 1976 amendments to the APA generally waive sovereign immunity for an action, like respondent's, "seeking relief other than money damages" (5 U.S.C. (Supp. III) 702), but the waiver does not apply where, as with Section 102(c), Congress has foreclosed judicial review of the agency's action (5 U.S.C. 701(a)(1) and (2), 5 U.S.C. (Supp. III) 702(1); H.R. Rep. 94-1656, 94th Cong., 2d Sess. 1-3, 9-12, 19-20, 27 (1976); S. Rep. 94-996, 94th Cong., 2d Sess. 2, 9-12, 19, 25-26 (1976); 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Section 3659, at 358 (1985) (footnote omitted) ("there is no consent to waive immunity when a statute precludes judicial review, or when the injurious action is committed to agency discretion by law")). /2/ Accordingly, even if respondent could have sought reinstatement under 28 U.S.C. 1331 on a so-called "officer's suit" theory (see Larson v. Domestic & Foreign Corp., supra) prior to 1976, /3/ he cannot do so at this time. See Block v. North Dakota, 461 U.S. 273, 280-286 (1983) (Congress's adoption of a comprehensive scheme in the Quiet Title Act, 28 U.S.C. 2409a, to adjudicate title disputes involving real property in which the United States claims an interest forecloses "officers' suits"); Brown v. GSA, 425 U.S. 820 (1976) (Congress's adoption of a comprehensive scheme in Section 717 of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16, to remedy federal employment discrimination forecloses other forms of judicial relief). /4/ Finally, respondent argues (86-1294 Br. in Opp. 3-4) that review is inappropriate because the issue of whether Section 102 (c) precludes judicial review of constitutional claims was not litigated in the court below. In fact, however, the court of appeals clearly addressed that issue (Pet. App. 24a, 27a-28a; id. at 33a (Ginsburg, J., concurring)). Further, after the District of Columbia Circuit decided this case, it ruled in another case that the Constitution forbids Congress from barring all judicial review of a federal constitutional claim. Bartlett v. Bowen, No. 85-5233 (D.C. Cir. Mar. 17, 1987), slip op. 2-3, 16-33. /5/ Accordingly, since the court of appeals has clearly spoken on this matter, respondent's argument is without merit. /6/ 2. Respondent argues (86-1294 Br. in Opp. 5-7) that the Director has exaggerated the importance of the decision below, but his claims are not persuasive. Respondent contends (id. at 5-6) that the Director can prevent the disclosure of confidentiql information by invoking the state secrets privilege or by relying on 50 U.S.C. 403(d)(3) and 403g to withhold particular information, but that argument misses the point. /7/ The military and state secrets privilege was well established before Congress adopted the National Security Act of 1947. Totten v. United States, 92 U.S. 105 (1897); see United States v. Reynolds, 345 U.S. 1, 6-8 (1953) (discussing privilege). If Congress had believed that the privilege, combined with 50 U.S.C. 403(d)(3) and 403g, was sufficient to protect confidential information from disclosure, it would have been unnecessary to enact Section 102(c). Respondent's argument would therefore render Section 102(c) a nullity. Moreover, respondent's argument is also wrong because in some cases invoking a privilege can itself reveal sensitive information. See CIA v. Sims, 471 U.S. 159, 179 (1985) ("It is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency."). Section 102(c) obviates that risk. In addition, respondent asserts (86-1294 Br. in Opp. 6-7) that review under the APA of claims such as his will not threaten national security, since the Director's personnel decisions can be reviewed in an action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16. He cites no authority, however, for the proposition that a Title VII action pertaining to a discharge may be brought over objection of the Director notwithstanding the provisions of Section 102(c). /8/ In any event, this case does not involve Title VII, and the fact that courts have reviewed certain of the Director's personnel actions under that law is irrelevant to the question whether the courts may review the Director's decision to dismiss respondent under the APA. 3. Respondent contends (86-1294 Br. in Opp. 7-8) that the ruling below does not conflict with the Court of Claims' decisions in Baker v. United States, 224 Ct. Cl. 760 (1980), cert. denied, 450 U.S. 1040 (1981), and Rhodes v. United States, 156 Ct. Cl. 31, cert. denied, 371 U.S. 821 (1962), but that argument plainly lacks merit. It rests on the incorrect premise that the only legal issue left in this case is whether a CIA policy against employing homosexuals is constitutional. In fact, the court of appeals directed the district court to determine whether such a policy exceeds the Director's statutory authority (Pet. App. 27a; page 1, supra). Accordingly, the ruling below squarely conflicts with Baker and Rhodes, which held that the Director's authority to remove a CIA employee is "absolute" (Baker, 224 Ct. Cl. at 762; Rhodes, 156 Ct. Cl. at 36). Because the Federal Circuit has appellate jurisdiction over back-pay claims brought by former CIA employees, this conflict requires a resolution by this Court. 4. Lastly, respondent argues (86-1294 Br. in Opp. 8-11) that the decision below is correct. His argument largely reiterates the court of appeals' reasoning. Two points merit a brief response. First, respondent argues (86-1294 Br. in Opp. 9) that the text of Section 102(c) does not preclude judicial review since it lacks an express statement to that effect, unlike other statutes that vest similar summary dismissal authority in the Secretary of Defense. As we have explained (Pet. 19-20 & n.19), however, Congress relied on Section 102(c) as the "statutory precedent" for enacting these other laws (H.R. Rep. 108, 88th Cong., 1st Sess. 4 (1963)), and it granted unreviewable, summary removal authority to the Secretary of Defense because it believed that the Director already had such discretion by virtue of Section 102(c). It would be quite odd, to say the least, to conclude that the Director's authority is narrower than the Secretary's, particularly since the CIA is responsible by statute for "coordinating the intelligence activities of the several Government departments and agencies" (50 U.S.C. 403(d)), including those under the authority of the Secretary of Defense. Second, in our petition, we argue that the nature of the agency action involved -- i.e., the determination whether an individual should have access to the CIA'S confidential information -- should inform the judgment whether Congress intended to foreclose judicial review. Respondent criticizes (86-1294 Br. in Opp. 9-10) our argument on the ground that it reflects only the Director's desire, and not Congress's intent. /9/ But in CIA v. Sims, supra, this Court found that Congress was well aware of the need for the CIA to maintain the secrecy of its operations in order to perform its statutory responsibilities, and that this consideration was relevant to a proper construction of a companion provision of Section 102(d)(3) of the National Security Act of 1947, 50 U.S.C. 403(d)(3), which authorizes the Director to protect intelligence sources and methods against improper disclosure. /10/ That consideration is equally relevant here, because the authority to decide who will have access to confidential information is essential to the Director's ability to safeguard the Agency's intelligence apparatus. See Cole v. Young, 351 U.S. 536, 546 (1956) (construing a similar summary removal statute, 5 U.S.C. 7532). Respondent has offered no reason why the considerations relevant to the meaning of Section 102(d)(3) should not be considered in construing Section 102(c). For the foregoing reasons and those given in the petition, it is respectfully submitted that the petition for a writ of certiorari should be granted. CHARLES FRIED Solicitor General DAVID P. DOHERTY General Counsel Central Intelligence Agency APRIL 1987 /1/ Respondent's argument rests on the assumption that the district court can order him reinstated with the CIA simply by invoking 28 U.S.C. 1331, the general federal question jurisdiction provision. As we explained in the petition (at 12 n.9), neither the court of appeals nor the district court decided whether Section 1331 empowers a district court to order the CIA to reinstate respondent. /2/ "(I)t is * * * an important factor in (the Justice Department's) support for the bill that the waiver of immunity, since it is made via Section 702, * * * will be subject to the other limitations of the Administrative Rocedure Act, including that which renders review unavailable 'to the extent that -- (1) statutes preclude judicial review, or, (2) agency action is committed to agency discretion by law.' 5 U.S.C. Section 701 (a). * * * These features were considered of great importance by the Administrative Conference Committee which originally drafted this legislative proposal, and they are important elements of the Department's support for the bill." H.R. Rep. 94-1656, supra, at 27 (quoting letter from Assistant Attorney General Scalia to Subcomm. Chairman Kennedy); S. Rep. 94-996, supra, at 26 (same). /3/ But see Larson, 337 U.S. at 691 n.11 ("(A) suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief requested can not be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property."). /4/ Respondent's reliance (86-1294 Br. in Opp. 3) on Davis v. Passman, 442 U.S. 228 (1979), is misplaced. Davis held that, in a suit against a government official in his personal capacity, a court may award a plaintiff damages for a violation of the equal protection component of the Fifth Amendment by relying upon 28 U.S.C. 1331. 442 U.S. at 245-248. Davis expressly left open the question whether a plaintiff could obtain reinstatement. Id. at 246 n.24. By contrast, in this case respondent sued the Director in his official capacity, and respondent sought reinstatement, rather than damages (see Pet. App. 60a n.2). Davis is therefore inapplicable. Nor does the rationale of Davis apply here. Reinstatement, particularly with an intelligence agency, is not an historic remedy. See White v. Berry, 171 U.S. 366 (1898) (in the absence of an express statute, judicial review of a federal employee's dismissal is unavailable in an action for reinstatement). Moreover, Section 102(c) and the related statutes applicable to the other intelligence services (see Pet. 18-20), certainly qualify as "special concerns counseling hesitation" (Davis, 442 U.S. at 246) in the creation of such a remedy. See Mitchell v. Forsyth, 472 U.S. 511, 538-542 (1985) (Stevens, J., concurring in the judgment) (provision in the federal wiretapping laws specifically exempting interceptions under President's authority for national security purposes should counsel some hesitation in creating a Bivens damages remedy against the Attorney General for ordering such a wiretap). /5/ The decision in the Bartlett case was written by the author of the decision below. The Solicitor General has not yet decided whether to authorize filing a suggestion for en banc rehearing in that case. /6/ Respondent also contends (86-1294 Br. in Opp. 4-5) that review is inappropriate because he may ultimately lose on the merits of his claims. If that reasoning were accepted, then no lower court decision allowing judicial review to go forward would be reviewed by this Court, and several of this Court's recent cases would not have been decided. E.g., Bowen v. Michigan Academy of Family Physicians, No. 85-225 (June 9, 1986); Block v. Community Nutrition Institute, 467 U.S. 340 (1984). To paraphrase the Court's decision in Pennsylvania v. Ritchie, No. 85-1347 (Feb. 24, 1987), slip op. 8, unless the Court reviews the preclusion question now, the harm that Section 102(c) seeks to avoid -- the disclosure of the facts and rationale underlying the Director's removal decisions -- will occur regardless of the result on remand. /7/ Respondent also states (86-1294 Br. in Opp. 5) that "the CIA has never asserted that any part of the record is classified or otherwise requires confidential treatment." That assertion is correct but immaterial because it ignores the procedural posture of this case. There has thus far been no discovery concerning the merits of petitioner's substantive claims. The issue in the court of appeals arose from the district court denial of the Director's motion to dismiss the complaint on preclusion grounds and its ruling for respondent on cross-motions for summary judgment concerning procedural issues. The limited discovery which was conducted concerned the question whether venue was proper in the District of Columbia (see C.A. App. 4). Accordingly, there was no occasion for the Director to invoke a privilege in the proceedings below. It has been the Director's position throughout the proceedings that it is unnecessary to invoke any privilege because Section 102(c) bars judicial review of his decision to dismiss respondent. /8/ Three of the cases cited by respondent did not involve the dismissal of an employee, so that there was no issue as to the preclusive effect of Section 102(c). See Turbeville v. Casey, 525 F. Supp. 1070 (D.D.C. 1981) (in ruling on venue, district court noted that the suit involved a variety of employment practices, but did not mention removal); Brown v. Turner, 490 F. Supp. 939 (D.D.C. 1980), aff'd, 659 F.2d 1199 (D.C. Cir. 1981) (claim of discrimination in hiring dismissed for lack of subject matter jurisdiction under Title VII); Weber v. Turner, 92 F.R.D. 749 (D.D.C. 1981) (order denying class certification in case alleging discrimination within the Agency). In the fourth case, Neely v. CIA, 27 Fair Empl. Prac. Cas. (BNA) 82 (D.D.C. 1981); Neely v. CIA, Civ. No. 79-3237 (D.D.C. July 21, 1982) (findings of fact and conclusions of law), aff'd mem., 744 F.2d 878 (D.C. Cir. 1984) (Table), cert. denied, 471 U.S. 1022 (1985), the plaintiff alleged that the Agency had discriminated against her in denying her a promotion and had also dismissed her in retaliation for pursuing her claim of discrimination. Because of the hybrid nature of the suit in district court, the Director did not there maintain that the action was non-reviewable under Section 102(c). To our knowledge, Neely is the only Title VII suit against the Agency involving the dismissal of an employee. /9/ Respondent errs in claiming (86-1294 Br. in Opp. 8) that the only relevant sources of congressional intent on this question are the text of the Act, its legislative history, and the structure of the statutory scheme. This Court's decisions make clear that the inquiry is not so narrowly confined. See, e.g., Clarke v. Securities Industry Ass'n, No. 85-971 (Jan. 14, 1987), slip op. 11 (footnote omitted) ("at bottom the reviewability question turns on congressional intent, and all indicators helpful in discerning that intent must be weighed"); Block v. Community Nutrition Institute, 467 U.S. 340, 345 (1984) ("the nature of the administrative action involved" is relevant to the question whether Congress intended to preclude review). /10/ Sims recognized that Congress was acutely aware of "the practical necessities of modern intelligence gathering" (471 U.S. at 169) and "the importance of secrecy in the intelligence field" (id. at 172), particularly the need to protect "the heart of all intelligence operations -- 'sources and methods'" (id. at 167). Sims further noted that, given "the harsh realities of the present day" (id. at 174), a narrow construction of Section 102(d)(3) could have "dangerous consequences" (471 U.S. at 174), in part because courts, which "have little or no background in the delicate business of intelligence gathering" (id. at 176), are unfamiliar with "'the whole picture'" (id. at 179), are not likely to determine correctly whether information should be disclosed (ibid.).