JOHN DOE, CROSS-PETITIONER V. ROBERT M. GATES, ACTING DIRECTOR OF
CENTRAL INTELLIGENCE

   No. 86-1442

   In the Supreme Court of the United States

   October Term, 1986

   On Cross-Petition for A Writ of Certiorari to the United States
Court of Appeals for the District of Columbia Circuit

   Memorandum for the Respondent in Opposition

   In No. 86-1294, we filed a petition for a writ of certiorari
presenting the question whether the decision of the Director of
Central Intelligence to discharge an officer or employee of the
Central Intelligence Agency (here, John Doe) pursuant to the
Director's authority under Section 102(c) of the National Security Act
of 1947, 50 U.S.C. 403(c), is judicially reviewable under the
Administrative Procedure Act, 5 U.S.C. (& Supp. III) 701-706.
Respondent John Doe has now filed a cross-petition, claiming that the
review afforded him by the court of appeals does not go far enough,
because he is entitled to a fuller explanation of the reasons for his
dismissal (Cross-Pet. 2).  Because the cross-petition neither raises a
significant question of federal law nor demonstrates a conflict with
the decisions of this Court or among the circuits, review by this
Court is not warranted.

   1. Doe maintains that he is entitled under the Due Process Clause,
the APA, and the CIA'S regulations to a statement of the reasons for
his dismissal from the CIA.  That claim does not warrant review even
if the government's petition is granted.  The court of appeals
remanded this case to the district court precisely because the record
did not reveal the Director's reason(s) for dismissing Doe (Pet. App.
25a, 32a).  In these circumstances, it is diffcult to see how the
relief Doe has sought in his cross-petition differs from the relief he
has already been awarded under the judgment below.  In any event, he
is not entitled to further information concerning the reasons for his
dismissal.

   a. Relying on Cleveland Board of Education v. Loudermill, 470 U.S.
532 (1985), Doe argues (Cross-Pet. 8) that he was entitled to a
statement of the reasons for his discharge from the CIA, since it may
affect his liberty interest in obtaining future employment.
Loudermill ruled that a "tenured public employee is entitled to oral
or written notice of the charges against him, an explanation of the
employer's evidence, and an opportunity to present his side of the
story" before he may be discharged (470 U.S. at 546).  Doe was not a
"tenured" CIA employee, however, /1/ as the court of appeals correctly
determined, /2/ and Doe does not argue to the contrary.  Accordingly,
Doe's reliance on Loudermill is misplaced.

   Doe argues that the hearing procedures necessary before a tenured
public employee may be discharged also apply when an employee is
entitled only to a "name-clearing hearing" (Pet. App. 31a).  It is
doubtful that Doe has stated a claim that the government has deprived
him of a liberty interest by preventing him from obtaining future
employment, because his complaint did not allege that the CIA has
published any false or defamatory statements in connection with his
dismissal, and the failure to do so ordinarily "dooms" a claim like
Doe's (Loudermill, 470 U.S. at 547 n.13;  Bishop v. Wood, 426 U.S.
341, 348 (1976)).  /3/ In any event, "the hearing required where a
nontenured employee has been stigmatized in the course of a decision
to terminate his employment is solely 'to provide (him) an opportunity
to clear his name,'" not to convince his employer that he should be
reinstated (Codd v. Velger, 429 U.S. 624, 627 (1977)).  As the court
of appeals found (Pet. App. 31a-32a), the procedures afforded Doe gave
him "an opportunity to refute the charges and 'clear his name.'" Doe
admitted that he was a homosexual;  he was given notice that the CIA
was concerned that the circumstances of his homosexuality created a
security risk;  /4/ he was given a chance to review and to respond to
a factual report summarizing his interviews and his polygraph results;
 and he took advantage of the opportunity to dispel the CIA's concern
that he was a security risk in a letter from his counsel to the
Director (id. at 4a;  C.A. App. 26-30).  Doe has cited no decision
suggesting that a "name-clearing hearing" requires more.

   Doe complains (Cross-Pet. 7) that he deserved a fuller explanation
of the facts to learn whether the Director's decision "was based on
some misunderstanding of the facts of his case or on an irrational
bias toward homosexuals." But Doe was aware of the nature of the
Office of Security's general concerns, including "his unwillingness to
identify his homosexual partners" (C.A. App. 27).  Moreover, in an
extensive letter to the Director, Doe's counsel addressed his concerns
that the Director might misunderstand the facts of his case or harbor
an irrational bias towards homosexuals (id. at 26-30).  Accordingly,
Doe had a meaningful opportunity to clear his name, even though the
proceedings were informal.  Cf. Hewitt v. Helms, 459 U.S. 460, 472-474
(1983) (prison officials need only conduct "an informal, non-adversary
review" of the information supporting administrative confinement).

   Doe concedes (Cross-Pet. 10-11) that there are circumstances where
the CIA may properly withhold the reasons for dismissing an employee
because of national security concerns, but he maintains that the
Director should be required to justify such withholding on a
case-by-case basis.  The court of appeals correctly noted (Pet. App.
23a-24a), however, that Section 102(c) of the National Security Act of
1947, 50 U.S.C. 403(c), reflects Congress's judgment that the Director
must have broad power to remove employees for the slightest security
risk, and that even his judgments about whether to withhold
information or explain the reasons why he is doing so are entitled to
great deference.  This judgment by Congress is entitled to deference
even on the question whether due process requires disclosure (see
Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305,
319-320 (1985)).  Congress's judgment is also eminently reasonable.
As this Court has recognized, "(i)t is conceivable that the mere
explanation of why information must be withheld can convey valuable
information to a foreign intelligence agency," which has "both the
capacity to gather and analyze any information that is in the public
domain and the substantial expertise in deducing the identities of
intelligence sources from seemingly unimportant details." CIA v. Sims,
471 U.S. 159, 178-179 (1985).  These considerations are relevant in
determining the process that is due under the Fifth Amendment.  See
Haig v. Agee, 453 U.S. 280, 309 (1981);  Cole v. Young, 351 U.S. 536,
546-547 (1956).  It was thus hardly unreasonable for the court of
appeals to limit the disclosures necessary for a proceeding whose sole
purpose is to allow an employee to clear his name.

   b. Doe also contends (Cross-Pet. 8-9) that he has a right under 5
U.S.C. 555(e) to a statement of the reasons for his dismissal.  /5/
More specifically, he claims a right under Section 555(e) to a copy of
the CIA Office of Security report to the Director, but having made no
such claim in the lower courts he may not do so now.  In any event,
Doe's argument under Section 555(e) is insubstantial.  /6/

   Section 555(e) applies only to an "agency proceeding," and an
"agency proceeding" includes only "rule-making," "adjudication," or
"licensing" procedures (5 U.S.C. 551(5), (7), (9), and 12)).  While
the termination of an employee might conceivably be argued to involve
an adjudication, it is clear from the statute that the APA hearing
procedures do not apply to disputes regarding the "selection or tenure
of an employee." 5 U.S.C. 554(a)(2);  Senate Comm. on the Judiciary,
Administrative Procedure Act:  Legislative History, S. Doc. 248, 79th
Cong., 2d Sess. 202, 260-261 (1946);  Normile v. McFague, 685 F.2d 9,
10 n.2 (1st Cir. 1982) (5 U.S.C. 555(e) is inapplicable to the
dismissal of a federal employee);  Bollow v. Federal Reserve Bank, 650
F.2d 1093, 1101-1102 (9th Cir. 1981), cert. denied, 455 U.S. 948
(1982) (5 U.S.C. 555(e) does not entitle a federal employee to a
statement of the reasons for his removal);  King v. Hampton, 451 F.2d
247, 249 (8th Cir.), aff'g 327 F. Supp. 714, 716 (E.D. Mo. 1971);  see
Zeisel v. Pierce, 784 F.2d 405, 408 (D.C. Cir. 1986) (dismissal of an
employee is a matter involving "tenure" under 5 U.S.C. 554(a)(2));
Olsen v. Department of Commerce, 735 F.2d 558, 562 (Fed. Cir. 1984)
("(t)he discharge of an employee involves his 'tenure'" under 5 U.S.C.
554(a)(2));  Hoska v. Department of the Army, 694 F.2d 270, 273 (D.C.
Cir. 1982).  /7/ Accordingly, Doe had no right under 5 U.S.C. 555(e)
to a statement of reasons from the Director explaining his actions.

   c. Finally, Doe argues (Cross-Pet. 10) that the CIA's regulations
entitle him to know why he was dismissed and to examine the Office of
Security report, but that claim is frivolous.  The pertinent
regulation expressly preserves the Director's discretion under Section
102(c) to remove an employee summarily without issuing a statement of
reasons.  CIA Headquarters Reg. Sections 20-27.j, 20-27.m,
20-27.m(8)(c) (Mar. 17, 1977) (reprinted in relevant part at Pet. App.
19a-20a).  /8/ As the court of appeals succinctly put it (Pet. App.
20a), "(w)e cannot imagine how the CIA could have more plainly
expressed its intent to protect the discretion granted it by section
102(c)."

   2. Doe asserts (Cross-Pet 7) that the court of appeals' decision
threatens "thousands of federal employees," who, he contends, may be
summarily removed under that decision by "the mere invocation of the
phrase 'national security.'" Doe has clearly exaggerated the effect of
the court of appeals' decision on federal employees.

   The court of appeals emphasized that judicial review is limited
because of the broad discretion vested in the Director to remove CIA
personnel under Section 102(c) and because the sensitive nature of the
CIA'S functions and the national security interests at stake dictate
that judicial oversight of the Director's removal decisions be
particularly circumscribed (Pet. App. 23a-24a).  Neither consideration
is present for civil service personnel not employed within the
intelligence community.  /9/ In fact, a different statute, 5 U.S.C.
7532, defines the procedures for the separation on national security
grounds of such civil service employees, and it provides them with the
very procedures that petitioner deems necessary (App., infra, 1a-2a).
/10/ Accordingly, although we believe that the court of appeals'
decision will have a serious and damaging effect on the intelligence
community, there is no substance to Doe's fear that its ruling will be
applied beyond those confines.

   It is therefore respectfully submitted that the cross-petition for
a writ of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   DAVID P. DOHERTY

      General Counsel Central Intelligence Agency

   APRIL 1987

   /1/ Tenure rights are created by "existing rules or understandings"
that stem from a source independent from the Due Process Clause, such
as a statute, regulation, or contract (Loudermill, 470 U.S. at 546;
Board of Regents v. Roth, 408 U.S. 564, 577 (1972)).  No such
authority gave Doe a property right in continued employment with the
CIA.  The text of Section 102(c) denies CIA personnel the qualified
tenure rights held by other civil service employees under the
Lloyd-LaFollette Act (now the Civil Service Reform Act of 1978, 5
U.S.C. 7501);  the Agency's regulations reiterate the terms of the
statute (CIA Headquarters Reg. Sections 20-27.j, 20-27.m,
20-27.m(8)(c) (Mar. 17, 1977;  and Doe has alleged no other source of
a property right.  Accordingly, since Doe was not deprived of a
property right by his discharge, he had no due process right to
examine the Office of Security report or to receive a statement of
reasons for his dismissal.  Codd v. Velger, 429 U.S. 624, 628 (1977)
(when a public employee has no property interest in continued
employment, "the adequacy or even the existence of reasons for failing
to rehire him presents no federal constitutional question").

   /2/ Doe erroneously asserts (Cross-Pet. 6) that the court of
appeals never addressed his claim that he had a property interest in
continued employment with the CIA.  The court ruled that Doe would
have no constitutional claim unless the Director dismissed him because
of a CIA policy barring the employment of all homosexuals.  Pet. App.
23a-28a (discussed at 86-1294 Pet. 7-8).  In so ruling, it necessarily
rejected Doe's claim that his discharge unlawfully deprived him of a
property interest in continued employment with the CIA.

   /3/ Doe's complaint alleged that the CIA will give him a positive
recommendation to any future employer, but that he was told by a CIA
security officer and an assistant general counsel that, if he applies
for a job requiring a security clearance, the CIA will inform the
prospective employer that the CIA determined that Doe is a security
risk because of his homosexuality.  Amended Complaint paras. 37-38
(C.A. App. 49-50);  see also Plaintiff's Statement of Material Facts
As To Which There Is No Genuine Dispute paras. 53-54 (C.A. App.
16-17).  The court of appeals predicted that, "(a)s a practical
matter, Doe will be unable to obtain employment whenever a security
clearance is required," because "we find it inconceivable that other
agencies (and private employers) would second-guess such a
determination by the CIA" (Pet. App. 30a & n.67).  But Section 102(c)
in terms provides that dismissal does not by itself bar a former CIA
employee from obtaining other employment by the federal government
(86-1294 Pet. 24).  Given the sensitive nature of the CIA's work,
there is also no reason to assume, as the court of appeals did, that
private employers will automatically follow the CIA's determination.
There is no need to resolve these issues in this case, however, since
the court of appeals correctly held that the procedures afforded Doe
by the CIA were sufficient.

   /4/ The letter that Doe's counsel submitted to the Director stated
that a CIA security officer had told Doe that the CIA was concerned
about "the duration and frequency of Mr. Doe's sexual activity, his
failure to reveal his homosexuality to the Agency for six years, and
his unwillingness to identify his homosexual partners." C.A. App. 27.

   /5/ Section 555(e) of Title 5 provides:

         Prompt notice shall be given of the denial in whole or in
      part of a written application, petition, or other request of an
      interested person made in connection with any agency proceeding.
       Except in affirming a prior denial or when the denial is
      self-explanatory, the notice shall be accompanied by a brief
      statement of the grounds for denial.

   /6/ As we have explained in the petition (86-1294 Pet. 12-22), the
Director's decision to dismiss a CIA employee under Section 102(c) is
not subject to review under the APA.  Doe therefore is not entitled
under 5 U.S.C. 555(e) to a statement of the reasons why he was
discharged.  Bollow v. Federal Reserve Bank, 650 F.2d 1093, 1101-1102
(9th Cir. 1981), cert. denied, 455 U.S. 948 (1982) (the government is
not required by 5 U.S.C. 555(e) to provide a statement of reasons for
an employee's dismissal when the decision to discharge him is
"committed to agency discretion by law" under 5 U.S.C. 701(a)(2)).

   But Section 102(c) shows that Doe's claim lacks merit even if the
Director's decision to dismiss him may be reviewed under the APA.  As
we explained in the petition (at 14-15), Section 102(c), which was
adopted the year after the enactment of the APA, denies CIA personnel
the rights that Doe seeks, because it provides that the Director's
authority to remove a CIA employee is exempt from the civil service
laws, which would otherwise have guaranteed Doe notice of any charges
and a statement of reasons for his removal.  It would be anomalous to
find that 5 U.S.C. 555(e) guarantees CIA personnel the same rights
explicitly withheld from them under a statute that is specifically
addressed to the rights of Agency employees, Section 102(c).
Accordingly, 5 U.S.C. 555(e) cannot be read to require the Director to
provide a statement of reasons why he invoked his authority under
Section 102(c) to remove a CIA employee, even if the merits of the
Director's decision can itself be reviewed under the APA.

   For the reasons given in the text, however, Doe's claim lacks merit
even if our construction of Section 102(c) is erroneous.

   /7/ None of the cases cited by Doe is to the contrary.  Dunlop v.
Bachowski, 421 U.S. 560 (1975), on which Doe relies (Cross-Pet. 8),
does not support his claim.  Dunlop found insufficient the Secretary
of Labor's statement of reasons for refusing to file an action to set
aside a labor union election, on the ground that the statement did not
satisfy the requirements of the Labor-Management Reporting and
Disclosure Act of 1959, 29 U.S.C. 482(a) and (b) (421 U.S. at
573-574).  That statute is not at issue in this case, and, in contrast
to it, the relevant statute, Section 102(c) of the National Security
Act of 1947, 50 U.S.C. 403(c), certainly does not expressly or
impliedly require a statement of reasons for an employee's removal.

   Doe's reliance (Cross-Pet 9) on Simmons v. United States, 348 U.S.
397 (1955), and Gonzalez v. United States, 348 U.S. 407 (1955), is
also misplaced.  Neither case involved 5 U.S.C. 555(e).  Instead,
those cases dealt with the requirements of an entirely different
statute, Section 6(j) of the Universal Military Training and Service
Act, 50 U.S.C. App. (Supp. II 1948) 456(j), which required a hearing
on "the character and good faith'" of a claim of conscientious
objector status (Simmons, 348 U.S. at 403 (quoting statute)).  In this
case, the relevant statute, Section 102(c), does not require the
Director to find any facts or to conduct a hearing before an employee
may be removed.

   /8/ Doe argues (Cross-Pet. 10) that the Director's authority is
limited by the Agency's regulations to those circumstances where
urgency is required.  As the court of appeals explained (Pet. App.
20a-21a), however, the CIA's regulations impose no such requirement.
In any event, the Director's affidavit indicates that he did
"exercis(e) my discretion under the authority granted by section
102(c) * * * and pursuant to HR 20-27m" to discharge an employee
"immediately" when the "circumstances of a case * * * make the()
(normal separation) procedures impractical or undesirable" (C.A. App.
45 (quoting regulation)).  Doe is incorrect in asserting that the
Director did not.

   /9/ There are other statutes similar to Section 102(c), but they
are also limited to employees of other intelligence agencies.  50
U.S.C. 833(a) (National Security Agency);  10 U.S.C. (Supp III)
1604(e)(1) (Defense Intelligence Agency);  Intelligence Authorization
Act for Fiscal Year 1987, Pub. L. No. 99-569, Section 504, 100 Stat.
3198 (civilian intelligence employees or officers of a military
department);  see 86-1294 Pet. 18-19 & nn.16-17 (reprinting statutes).
 Moreover, under these statutes the Secretary of Defense may summarily
discharge an employee only when the Secretary finds that other
procedures cannot be followed consistent with the national security.

   /10/ In Department of the Navy v. Egan, petition for cert. pending,
No. 86-1552, we have sought review of a decision of the Federal
Circuit holding that the Merit Systems Protection Board may, in the
course of reviewing the removal of an employee for failing to maintain
a required security clearance, review the merits of the agency's
underlying decision to revoke a security clearance.  (We have provided
Doe's counsel with a copy of our petition in Egan).  The questions in
Egan and in this case are quite distinct.  In Egan, we agree that
Egan's removal was subject to review to determine, inter alia, whether
he received procedural due process;  we contest only the MSPB's right
to second guess the clearance determination on the merits.  86-1552
Pet. 19-20.  Here, our contention is that another statute specifically
bars review of either the merits or the procedures leading to removal.
 The Federal Circuit in Egan specifically recognized that the
intelligence agencies, such as the CIA, are governed by their own
statutes, which exempt them from the procedural rights applicable to
civil service employees generally.  Egan v. Department of the Navy,
802 F.2d 1563, 1567 n.2 (1986).

   APPENDIX