Section 102(c) of the National Security Act of 1947 (NSA)
authorizes the Director of the Central Intelligence Agency (CIA),
"in his discretion," to terminate the employment of any CIA
employee "whenever he shall deem such termination necessary or
advisable in the interests of the United States." After respondent,
a covert electronics technician in the CIA's employ, voluntarily
informed the agency that he was a homosexual, he was discharged by
the Director (petitioner's predecessor) under § 102(c). Respondent
filed suit against petitioner in Federal District Court for
declaratory and injunctive relief, alleging violations of the
Administrative Procedure Act (APA), of his rights to property,
liberty, and privacy under the First, Fourth, Fifth, and Ninth
Amendments, and of his rights to procedural due process and equal
protection of the laws under the Fifth Amendment. After the court
granted respondent's motion for partial summary judgment on his APA
claim, declining to address his constitutional claims, the Court of
Appeals vacated the judgment and remanded. The court agreed with
the District Court that judicial review under the APA of
petitioner's termination decisions made under § 102(c) of the NSA
was not precluded by the provision of the APA, 5 U.S.C. § 701(a),
which renders that Act inapplicable whenever "(1) statutes preclude
judicial review; or (2) agency action is committed to agency
discretion by law." However, the court held that the District Court
had erred in its ruling on the merits.
Held:
1. Title 5 U.S.C. § 701(a)(2) precludes judicial review under
the APA of the CIA Director's termination decisions under § 102(c)
of the NSA. Section 701(a)(2) applies where a statute is drawn in
such broad terms that, in a given case, there is no law to apply,
and the court would have no meaningful standard against which to
judge the agency's exercise of discretion. In allowing termination
whenever the Director "shall
deem [it] necessary or
advisable," and not simply when the dismissal
is necessary
or advisable, § 102(c) fairly exudes deference to the Director, and
forecloses the application of any meaningful judicial standard of
review for assessing a termination decision short of permitting
cross-examination of the Director. That § 102(c)'s implementation
was "committed to agency
Page 486 U. S. 593
discretion by law" is also strongly suggested by the overall
structure of the NSA, which vests in the Director very broad
authority to protect intelligence sources and methods from
unauthorized disclosure. Section 102(c) is an integral part of that
structure, because the CIA's efficacy, and the Nation's security,
depend in large measure on the reliability and trustworthiness of
CIA employees. Pp.
486 U. S.
599-601.
2. District Court review of respondent's constitutional claims
is not precluded by § 102(c) of the NSA. Petitioner's view that all
CIA employment termination decisions, even those based on policies
normally repugnant to the Constitution, are given over to the
Director's absolute discretion, is not supported by the required
heightened showing of clear congressional intent. Although § 102(c)
does commit termination decisions to the Director's discretion, 5
U.S.C. §§ 701(a)(1) and (a)(2) remove from judicial review only
those determinations specifically identified by Congress or
"committed to agency discretion by law." Nothing in § 102(c)
demonstrates that Congress meant to preclude consideration of
colorable constitutional claims arising out of the Director's
actions pursuant to that section. Petitioner's contention that
judicial review of constitutional claims will entail extensive
"rummaging around" in the CIA's affairs to the detriment of
national security is not persuasive, since claims attacking the
CIA's employment policies under Title VII of the Civil Rights Act
of 1964 are routinely entertained in federal court, and the
District Court has the latitude to control any discovery process in
order to balance respondent's need for access to proof against the
CIA's extraordinary need for confidentiality. Petitioner's
contention that Congress, in the interest of national security, may
deny the courts authority to decide respondent's colorable
constitutional claims arising out of his discharge and to order his
reinstatement if the claims are upheld is also without merit, since
Congress did not mean to impose such restrictions when it enacted §
102(c). Even without such prohibitory legislation, traditional
equitable principles requiring the balancing of public and private
interests control the grant of declaratory or injunctive relief,
and, on remand, the District Court should thus address respondent's
constitutional claims and the propriety of the equitable remedies
sought. Pp.
486 U. S.
601-605.
254 U.S.App.D.C. 282, 796 F.2d 1508, affirmed in part, reversed
in part, and remanded.
REHNQUIST, C.J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, and
in Parts I and II of which O'CONNOR, J., joined. O'CONNOR, J.,
filed an opinion concurring in part and dissenting in part,
post, p.
486 U. S. 605.
SCALIA,
Page 486 U. S. 594
J., filed a dissenting opinion,
post, p.
486 U. S. 606.
KENNEDY, J., took no part in the consideration or decision of the
case.
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.
Page 486 U. S. 595
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. . .
. [
Footnote 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.
Page 486 U. S. 596
Respondent's amended complaint asserted a variety of statutory
and constitutional claims against the Director. [
Footnote 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. [
Footnote 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 statement
Page 486 U. S. 597
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
provide:
"(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
administrative
Page 486 U. S. 598
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."
[
Footnote 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). [
Footnote 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. [
Footnote 6] We granted certiorari to decide the
question
Page 486 U. S. 599
whether the Director's decision to discharge a CIA employee
under § 102(c) of the NSA is judicially reviewable under the
APA.
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 401 U. S. 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 judicial
Page 486 U. S. 600
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
470 U. S. 830.
Since the statute conferring power on the Food and Drug
Administration to prohibit the unlawful misbranding 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,
Page 486 U. S. 601
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,
444 U. S. 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
471 U. S.
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 reviewable by the courts.
III
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,
Page 486 U. S. 602
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. [
Footnote 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
his
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.
Page 486 U. S. 603
Petitioner maintains that, no matter what the nature of
respondent's constitutional claim, 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
415 U. S.
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,
476 U. S. 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
Page 486 U. S. 604
the District Court. [
Footnote
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,
426 U. S. 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 NSA. Even without such prohibitory
legislation from Congress, of course, traditional equitable
principles requiring the balancing of public and private interests
control the grant of declaratory
Page 486 U. S. 605
or injunctive relief in the federal courts.
Weinberger v.
Romero-Barcelo, 456 U. S. 305
(1982);
Hecht Co. v. Bowles, 321 U.
S. 321,
321 U. S.
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.
[
Footnote 1]
See May 11, 1982, Letter from Deputy General Counsel of
CIA to respondent's counsel, App. 37.
[
Footnote 2]
See Amended Complaint,
id. at 5, 12-13.
[
Footnote 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."
[
Footnote 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).
[
Footnote 5]
This "arbitrary and capricious" standard is derived from §
706(2)(A),
see n 3,
supra.
[
Footnote 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.
[
Footnote 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,
415 U. S. 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.
[
Footnote 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 certiorari, and we decline to consider it at this
stage of the litigation.
JUSTICE O'CONNOR, concurring in part and dissenting in part.
I agree that the Administrative Procedure Act (APA) does not
authorize judicial review of the employment decisions referred to
in § 102(c) of the National Security Act of 1947. Because § 102(c)
does not provide a meaningful standard for judicial review, such
decisions are clearly "committed to agency discretion by law"
within the meaning of the provision of the APA set forth in 5
U.S.C. § 701(a)(2). I do not understand the Court to say that the
exception in § 701(a)(2) is necessarily or fully defined by
reference to statutes "drawn in such broad terms that in a given
case there is no law to apply."
See Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U. S. 402,
401 U. S. 410
(1971), quoted
ante at 599. Accordingly, I join Parts I
and II of the Court's opinion.
I disagree, however, with the Court's conclusion that a
constitutional claim challenging the validity of an employment
decision covered by § 102(c) may nonetheless be brought in a
federal district court. Whatever may be the exact scope of
Congress' power to close the lower federal courts to constitutional
claims in other contexts, I have no doubt about its authority to do
so here. The functions performed by the Central Intelligence Agency
and the Director of Central Intelligence lie at the core of
"the very delicate, plenary and
Page 486 U. S. 606
exclusive power of the President as the sole organ of the
federal government in the field of international relations."
United States v. Curtiss-Wright Export Corp.,
299 U. S. 304,
299 U. S. 320
(1936). The authority of the Director of Central Intelligence to
control access to sensitive national security information by
discharging employees deemed to be untrustworthy flows primarily
from this constitutional power of the President, and Congress may
surely provide that the inferior federal courts are not used to
infringe on the President's constitutional authority.
See,
e.g., Department of Navy v. Egan, 484 U.
S. 518,
484 U. S.
526-530 (1988);
Totten v. United States,
92 U. S. 105
(1876). Section 102(c) plainly indicates that Congress has done
exactly that, and the Court points to nothing in the structure,
purpose, or legislative history of the National Security Act that
would suggest a different conclusion. Accordingly, I respectfully
dissent from the Court's decision to allow this lawsuit to go
forward.
JUSTICE SCALIA, dissenting.
I agree with the Court's apparent holding in Part II of its
opinion,
ante at
486 U. S. 600
and
486 U. S. 601,
that the Director's decision to terminate a CIA employee is
"committed to agency discretion by law" within the meaning of 5
U.S.C. § 701(a)(2). But because I do not see how a decision can,
either practically or legally, be both unreviewable and yet
reviewable for constitutional defect, I regard Part
486 U.
S. S. 599|>Part II. I therefore respectfully dissent
from the judgment of the Court.
I
Before proceeding to address Part III of the Court's opinion,
which I think to be in error, I must discuss one significant
element of the analysis in Part II. Though I subscribe to most of
that analysis, I disagree with the Court's description of what is
required to come within subsection (a)(2) of § 701(a), which
provides that judicial review is unavailable "to the extent that .
. . agency action is committed to agency discretion
Page 486 U. S. 607
by law."
* The Court's
discussion,
ante at
486 U. S.
599-600, suggests that the Court of Appeals below was
correct in holding that this provision is triggered only when there
is "no law to apply."
See Doe v. Casey, 254 U.S.App.D.C.
282, 291-293, 796 F.2d. 1508, 1517-1519 (1986).
But see
id. at 305-307, 796 F.2d at 1531-1533 (Buckley, J.,
dissenting). Our precedents amply show that "commit[ment] to agency
discretion by law" includes, but is not limited to, situations in
which there is "no law to apply."
The Court relies for its "no law to apply" formulation upon our
discussion in
Heckler v. Chaney, 470 U.
S. 821 (1985) -- which, however, did not apply that as
the sole criterion of § 701(a)(2)'s applicability, but to the
contrary discussed the subject action's "general unsuitability" for
review, and adverted to "tradition, case law, and sound reasoning."
470 U.S. at
470 U. S. 831.
Moreover, the only supporting authority for the "no law to apply"
test cited in
Chaney was our observation in
Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.
S. 402 (1971), that
"[t]he legislative history of the Administrative Procedure Act
indicates that [§ 701(a)(2)] is applicable in those rare instances
where 'statutes are drawn in such broad terms that, in a given
case, there is no law to apply.' S.Rep. No. 752, 79th Cong., 1st
Sess., 26 (1945),"
id. at
401 U. S. 410.
Perhaps
Overton Park discussed only the "no law to apply"
factor because that was the only basis for non-reviewability
Page 486 U. S. 608
that was even arguably applicable. It surely could not have
believed that factor to be exclusive, for that would contradict the
very legislative history, both cited and quoted in the opinion,
from which it had been derived, which read in full:
"The basic exception of matters committed to agency discretion
would apply even if not stated at the outset [of the judicial
review Chapter]. If,
for example, statutes are drawn in
such broad terms that, in a given case, there is no law to apply,
courts of course have no statutory question to review."
S.Rep. No. 752, 79th Cong., 1st Sess., 26 (1945) (emphasis
added).
The "no law to apply" test can account for the nonreviewability
of certain issues, but falls far short of explaining the full scope
of the areas from which the courts are excluded. For the fact is
that there is no governmental decision that is not subject to a
fair number of legal constraints precise enough to be susceptible
of judicial application -- beginning with the fundamental
constraint that the decision must be taken in order to further a
public purpose, rather than a purely private interest; yet there
are many governmental decisions that are not at all subject to
judicial review. A United States Attorney's decision to prosecute,
for example, will not be reviewed on the claim that it was prompted
by personal animosity. Thus, "no law to apply" provides much less
than the full answer to whether § 701(a)(2) applies.
The key to understanding the "committed to agency discretion
by law" provision of § 701(a)(2) lies in contrasting it
with the "
statutes preclude judicial review" provision of
§ 701(a)(1). Why "statutes" for preclusion, but the much more
general term "law" for commission to agency discretion? The answer
is, as we implied in
Chaney, that the latter was intended
to refer to "the
common law' of judicial review of agency
action," 470 U.S. at 832 -- a body of jurisprudence that had marked
out, with more or less precision, certain issues and certain areas
that were beyond the range of judicial review. That jurisprudence
included principles
Page 486 U. S.
609
ranging from the "political question" doctrine, to sovereign
immunity (including doctrines determining when a suit against an
officer would be deemed to be a suit against the sovereign), to
official immunity, to prudential limitations upon the courts'
equitable powers, to what can be described no more precisely than a
traditional respect for the functions of the other branches
reflected in the statement in Marbury v.
Madison, 1 Cranch 137, 170-171 (1803),
that
"[w]here the head of a department acts in a case, in which
executive discretion is to be exercised; in which he is the mere
organ of executive will; it is again repeated, that any application
to a court to control, in any respect, his conduct, would be
rejected without hesitation."
See, e.g., Chicago & Southern Air Lines, Inc. v.
Waterman S.S. Corp., 333 U. S. 103,
333 U. S.
110-114 (1948);
Switchmen v. National Mediation
Board, 320 U. S. 297,
320 U. S.
301-306 (1943);
United States v. George S. Bush
& Co., 310 U. S. 371,
310 U. S.
379-380 (1940);
Reaves v. Ainsworth,
219 U. S. 296,
219 U. S. 306
(1911);
Confiscation
Cases, 7 Wall. 454,
74 U. S.
457-459 (1869);
Martin v. Mott,
12 Wheat.19,
25 U. S. 29-30
(1827). Only if all that "common law" were embraced within § 701
(a)(2) could it have been true that, as was generally understood,
"[t]he intended result of [§ 701(a)] is to restate the existing law
as to the area of reviewable agency action." Attorney General's
Manual on the Administrative Procedure Act 94 (1947). Because that
is the meaning of the provision, we have continued to take into
account for purposes of determining reviewability, post-APA as
before, not only the text and structure of the statute under which
the agency acts, but such factors as whether the decision involves
"a sensitive and inherently discretionary judgment call,"
Department of Navy v. Egan, 484 U.
S. 518,
484 U. S. 527
(1988), whether it is the sort of decision that has traditionally
been nonreviewable,
ICC v. Locomotive Engineers,
482 U. S. 270,
482 U. S. 282
(1987);
Chaney, supra, at
470 U. S. 832,
and whether review would have "disruptive practical consequences,"
see Southern R. Co. v. Seaboard Allied Milling Corp.,
442 U. S. 444,
442 U. S. 457
(1979). This explains
Page 486 U. S. 610
the seeming contradiction between § 701(a)(2)'s disallowance of
review to the extent that action is "committed to agency
discretion," and § 706's injunction that a court shall set aside
agency action that constitutes "an abuse of discretion." Since, in
the former provision, "committed to agency discretion by law" means
"of the sort that is traditionally unreviewable," it operates to
keep certain categories of agency action out of the courts; but
when agency action is appropriately in the courts, abuse of
discretion is of course grounds for reversal.
All this law, shaped over the course of centuries and still
developing in its application to new contexts, cannot possibly be
contained within the phrase "no law to apply." It is not
surprising, then, that although the Court recites the test, it does
not really apply it. Like other opinions relying upon it, this one
essentially announces the test, declares victory, and moves on. It
is not really true "
that a court would have no meaningful
standard against which to judge the agency's exercise of
discretion,'" ante at 486 U. S. 600,
quoting Chaney, 470 U.S. at 470 U. S. 830.
The standard set forth in § 102(c) of the National Security Act of
1947, 50 U.S.C. § 403(c), "necessary or advisable in the interests
of the United States," at least excludes dismissal out of personal
vindictiveness, or because the Director wants to give the job to
his cousin. Why, on the Court's theory, is respondent not entitled
to assert the presence of such excesses, under the "abuse of
discretion" standard of § 706?
If and when this Court does come to consider the reviewability
of a dismissal such as the present one on the ground that it
violated the agency's regulations -- a question the Court avoids
today,
see ante at
486 U. S. 602,
n. 7 -- the difference between the "no law to apply" test and what
I consider the correct test will be crucial. Perhaps a dismissal in
violation of the regulations can be reviewed, but not simply
because the regulations provide a standard that makes review
possible. Thus, I agree with the Court's holding in Part II of its
opinion
Page 486 U. S. 611
(though, as will soon appear, that holding seems to be undone by
its holding in Part III), but on different reasoning.
II
Before taking the reader through the terrain of the Court's
holding that respondent may assert constitutional claims in this
suit, I would like to try to clear some of the underbrush,
consisting primarily of the Court's ominous warning that
"[a] 'serious constitutional question' . . . would arise if a
federal statute were construed to deny any judicial forum for a
colorable constitutional claim."
Ante at
486 U. S. 603,
quoting from
Bowen v. Michigan Academy of Family
Physicians, 476 U. S. 667,
476 U. S. 681,
n. 12 (1986).
The first response to the Court's grave doubt about the
constitutionality of denying all judicial review to a "colorable
constitutional claim" is that the denial of all judicial review is
not at issue here, but merely the denial of review in United States
district courts. As to that, the law is, and has long been, clear.
Article III, § 2, of the Constitution extends the judicial power to
"all Cases . . . arising under this Constitution." But Article III,
§ 1, provides that the judicial power shall be vested "in one
supreme Court,
and in such inferior Courts as the Congress may
from time to time ordain and establish" (emphasis added). We
long ago held that the power not to create any lower federal courts
at all includes the power to invest them with less than all of the
judicial power.
"The Constitution has defined the limits of the judicial power
of the United States, but has not prescribed how much of it shall
be exercised by the Circuit Court; consequently, the statute which
does prescribe the limits of their jurisdiction, cannot be in
conflict with the Constitution, unless it confers powers not
enumerated therein."
Sheldon v.
Sill, 8 How. 441,
49 U. S. 449
(1850). Thus, if there is any truth to the proposition that
judicial cognizance of constitutional claims cannot be eliminated,
it
Page 486 U. S. 612
is, at most, that they cannot be eliminated from state courts,
and from this Court's appellate jurisdiction over cases from state
courts (or eases from federal courts, should there be any)
involving such claims. Narrowly viewed, therefore, there is no
shadow of a constitutional doubt that we are free to hold that the
present suit, whether based on constitutional grounds or not, will
not lie.
It can fairly be argued, however, that our interpretation of §
701(a)(2) indirectly implicates the constitutional question whether
state courts can be deprived of jurisdiction, because if they
cannot, then interpreting § 701(a)(2) to exclude relief here would
impute to Congress the peculiar intent to let state courts review
Federal Government action that it is unwilling to let federal
district courts review -- or, alternatively, the peculiar intent to
let federal district courts review, upon removal from state courts
pursuant to 28 U.S.C. § 1442(a)(1), claims that it is unwilling to
let federal district courts review in original actions. I turn,
then, to the substance of the Court's warning that judicial review
of all "colorable constitutional claims" arising out of the
respondent's dismissal may well be constitutionally required. What
could possibly be the basis for this fear? Surely not some general
principle that all constitutional violations must be remediable in
the courts. The very text of the Constitution refutes that
principle, since it provides that "[e]ach House shall be the Judge
of the Elections, Returns and Qualifications of its own Members,"
Art. I, § 5, and that "for any Speech or Debate in either House,
[the Senators and Representatives] shall not be questioned in any
other Place," Art. I, § 6. Claims concerning constitutional
violations committed in these contexts -- for example, the rather
grave constitutional claim that an election has been stolen --
cannot be addressed to the courts.
See, e.g., Morgan v. United
States, 255 U.S.App.D.C. 231, 801 F.2d 445 (1986). Even apart
from the strict text of the Constitution, we have found some
constitutional claims to be beyond judicial review because they
involve
Page 486 U. S. 613
"political questions."
See, e.g., Coleman v. Miller,
307 U. S. 433,
307 U. S.
443-446 (1939);
Ohio ex rel. Bryant v. Akron
Metropolitan Park District, 281 U. S. 74,
281 U. S. 79-80
(1930). The doctrine of sovereign immunity -- not repealed by the
Constitution, but to the contrary at least partly reaffirmed as to
the States by the Eleventh Amendment -- is a monument to the
principle that some constitutional claims can go unheard. No one
would suggest that, if Congress had not passed the Tucker Act, 28
U.S.C. § 1491(a)(1), the courts would be able to order
disbursements from the Treasury to pay for property taken under
lawful authority (and subsequently destroyed) without just
compensation.
See Schillinger v. United States,
155 U. S. 163,
155 U. S.
166-169 (1894). And finally, the doctrine of equitable
discretion, which permits a court to refuse relief, even where no
relief at law is available, when that would unduly impair the
public interest, does not stand aside simply because the basis for
the relief is a constitutional claim. In sum, it is simply
untenable that there must be a judicial remedy for every
constitutional violation. Members of Congress and the supervising
officers of the Executive Branch take the same oath to uphold the
Constitution that we do, and sometimes they are left to perform
that oath unreviewed, as we always are.
Perhaps, then, the Court means to appeal to a more limited
principle that, although there may be areas where judicial review
of a constitutional claim will be denied, the scope of those areas
is fixed by the Constitution and judicial tradition, and cannot be
affected by
Congress through the enactment of a statute
such as § 102(c). That would be a rather counterintuitive
principle, especially since Congress has in reality been the
principal determiner of the scope of review, for constitutional
claims as well as all other claims, through its waiver of the
preexisting doctrine of sovereign immunity. On the merits of the
point, however: It seems to me clear that courts would not
entertain, for example, an action for backpay by a dismissed
Secretary of State claiming that the
Page 486 U. S. 614
reason he lost his Government job was that the President did not
like his religious views -- surely a colorable violation of the
First Amendment. I am confident we would hold that the President's
choice of his Secretary of State is a "political question." But
what about a similar suit by the Deputy Secretary of State? Or one
of the Under Secretaries? Or an Assistant Secretary? Or the head of
the European Desk? Is there really a constitutional line that falls
at some immutable point between one and another of these offices at
which the principle of unreviewability cuts in, and which cannot be
altered by congressional prescription? I think not. I think
Congress can prescribe, at least within broad limits, that, for
certain jobs, the dismissal decision will be unreviewable -- that
is, will be "committed to agency discretion by law."
Once it is acknowledged, as I think it must be, (1) that not all
constitutional claims require a judicial remedy, and (2) that the
identification of those that do not can, even if only within narrow
limits, be determined by Congress, then it is clear that the
"serious constitutional question" feared by the Court is an
illusion. Indeed, it seems to me that, if one is in a mood to worry
about serious constitutional questions, the one to worry about is
not whether Congress can, by enacting § 102(c), give the President,
through his Director of Central Intelligence, unreviewable
discretion in firing the agents that he employs to gather military
and foreign affairs intelligence, but rather whether Congress could
constitutionally permit the courts to review all such decisions if
it wanted to. We have acknowledged that the courts cannot intervene
when there is "a textually demonstratable constitutional commitment
of the issue to a coordinate political department."
Baker v.
Carr, 369 U. S. 186,
369 U. S. 217
(1962). We have recognized
"the insistence (evident from the number of Clauses devoted to
the subject) with which the Constitution confers authority over the
Army, Navy, and militia upon the political branches."
United States v. Stanley, 483 U.
S. 669,
483 U. S. 682
(1987). We have also recognized
"the very delicate, plenary
Page 486 U. S. 615
and exclusive power of the President as the sole organ of the
federal government in the field of international relations -- a
power which does not require as a basis for its exercise an act of
Congress."
United States v. Curtiss-Wright Export Corp.,
299 U. S. 304,
299 U. S. 320
(1936). And finally, we have acknowledged that
"[i]t is impossible for a government wisely to make critical
decisions about foreign policy and national defense without the
benefit of dependable foreign intelligence."
Snepp v. United States, 444 U.
S. 507,
444 U. S. 512,
n. 7 (1980) (per curiam). We have thus recognized that the
"authority to classify and control access to information bearing
on national security and to determine whether an individual is
sufficiently trustworthy to occupy a position in the Executive
Branch that will give that person access to such information flows
primarily from this constitutional investment of power in the
President,
and exists quite apart from any explicit
congressional grant."
Department of Navy v. Egan, 484 U.S. at
484 U. S. 527
(emphasis added).
I think it entirely beyond doubt that, if Congress intended, by
the APA in 5 U.S.C. § 701(a)(2), to exclude judicial review of the
President's decision (through the Director of Central Intelligence)
to dismiss an officer of the Central Intelligence Agency, that
disposition would be constitutionally permissible.
III
I turn, then, to whether that executive action is, within the
meaning of § 701(a)(2), "committed to agency discretion by law." My
discussion of this point can be brief, because the answer is
compellingly obvious. Section 102(c) of the National Security Act
of 1947, 61 Stat. 498, states:
"
Notwithstanding . . . the provisions of any other law,
the 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
Page 486 U. S. 616
United States. . . ."
50 U.S.C. § 403(c) (emphasis added). Further, as the Court
declares, § 102(c) is an "integral part" of the National Security
Act, which throughout exhibits "extraordinary deference to the
Director."
Ante at
486 U. S. 601.
Given this statutory text, and given (as discussed above) that the
area to which the text pertains is one of predominant executive
authority and of traditional judicial abstention, it is difficult
to conceive of a statutory scheme that more clearly reflects that
"commit[ment] to agency discretion by law" to which § 701(a)(2)
refers.
It is baffling to observe that the Court seems to agree with the
foregoing assessment, holding that "the language and structure of §
102(c) indicate that Congress meant to commit individual employee
discharges to the Director's discretion,"
Ante at
486 U. S. 601.
Nevertheless, without explanation, the Court reaches the conclusion
that "a constitutional claim based on an individual discharge may
be reviewed by the District Court."
Ante at
486 U. S.
603-604. It seems to me the Court is attempting the
impossible feat of having its cake and eating it too. The opinion
states that
"[a] discharged employee . . . 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."
Ante at
486 U. S. 603
(emphasis added). But two sentences later, it says that
"[n]othing 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."
Which are we to believe? If the former, the case should be at an
end. If the § 102(c) assessment is really "the Director's alone,"
the only conceivable basis for review of respondent's dismissal
(which is what this case is about) would be that the dismissal was
not
really the result of a § 102(c) assessment by the
Director. But respondent has never contended that, nor could he.
Not only was his counsel formally advised, by letter of May 11,
1982, that
"the Director has deemed it necessary and
Page 486 U. S. 617
advisable in the interests of the United States to terminate
your client's employment with this Agency pursuant to section
102(c),"
App. 37, but the petitioner filed with the court an affidavit by
the Director, dated September 17, 1982, stating that,
"[a]fter careful consideration of the matter, I determined that
the termination of Mr. Doe's employment was necessary and advisable
in the interests of the United States and, exercising my discretion
under the authority granted by section 102(c), . . . I terminated
Mr. Doe's employment."
Id. at 56. Even if the basis for the Director's
assessment was the respondent's homosexuality, and even if the
connection between that and the interests of the United States is
an irrational, and hence an unconstitutional one, if that
assessment is really "the Director's alone," there is nothing more
to litigate about. I cannot imagine what the Court expects the
"further proceedings in the District Court" which it commands,
ante at
486 U. S. 604,
to consist of, unless perhaps an academic seminar on the
relationship of homosexuality to security risk. For even were the
District Court persuaded that no such relationship exists, "that
assessment is the Director's alone." Since the Court's disposition
contradicts its fair assurances, I must assume that the § 102(c)
judgment is no longer "the Director's alone," but rather only "the
Director's alone except to the extent it is colorably claimed that
his judgment is unconstitutional." I turn, then, to the question of
where this exception comes from. As discussed at length earlier,
the Constitution assuredly does not require it. Nor does the text
of the statute. True, it only gives the Director absolute
discretion to dismiss "[n]otwithstanding . . . the provisions of
any other
law" (emphasis added). But one would hardly have
expected it to say "[n]otwithstanding the provisions of any other
law or
of the Constitution." What the provision directly
addresses is the authority to dismiss, not the authority of the
courts to review the dismissal. And the Director does not have the
authority to dismiss in violation of the Constitution, nor could
Congress give it to him. The implication
Page 486 U. S. 618
of nonreviewability in this text, its manifestation that the
action is meant to be "committed to agency discretion," is no
weaker with regard to constitutional claims than nonconstitutional
claims, unless one accepts the unacceptable proposition that the
only basis for such committal is "no law to apply."
Perhaps, then, a constitutional right is by its nature so much
more important to the claimant than a statutory right that a
statute which plainly excludes the latter should not be read to
exclude the former unless it says so. That principle has never been
announced -- and with good reason, because its premise is not true.
An individual's contention that the government has reneged upon a
$100,000 debt owing under a contract is much more important to him
-- both financially and, I suspect, in the sense of injustice that
he feels -- than the same individual's claim that a particular
federal licensing provision requiring a $100 license denies him
equal protection of the laws, or that a particular state tax
violates the Commerce Clause. A citizen would much rather have his
statutory entitlement correctly acknowledged after a
constitutionally inadequate hearing than have it incorrectly denied
after a proceeding that fulfills all the requirements of the Due
Process Clause. The
only respect in which a constitutional
claim is necessarily more significant than any other kind of claim
is that, regardless of how trivial its real-life importance may be
in the case at hand, it can be asserted against the action of the
legislature itself, whereas a nonconstitutional claim (no matter
how significant) cannot. That is an important distinction, and one
relevant to the constitutional analysis that I conducted above. But
it has no relevance to the question whether, as between executive
violations of statute and executive violations of the Constitution
-- both of which are equally unlawful, and neither of which can be
said,
a priori, to be more harmful or more unfair to the
plaintiff -- one or the other category should be favored by a
presumption against exclusion of judicial review.
Page 486 U. S. 619
Even if we were to assume, however, contrary to all reason, that
every constitutional claim is
ipso facto more worthy, and
every statutory claim less worthy, of judicial review, there would
be no basis for writing that preference into a statute that makes
no distinction between the two. We have rejected such judicial
rewriting of legislation even in the more appealing situation where
particular applications of a statute are not merely less desirable,
but in fact raise "grave constitutional doubts." That, we have
said, only permits us to adopt one rather than another permissible
reading of the statute, but not, by altering its terms, "to ignore
the legislative will in order to avoid constitutional
adjudication."
Commodity Futures Trading Comm'n v. Schor,
478 U. S. 833,
478 U. S. 841
(1986). There is no more textual basis for reading this statute as
barring only nonconstitutional claims than there is to read it as
barring only claims with a monetary worth of less than $1 million.
Neither of the two decisions cited by the Court to sustain its
power to read in a limitation for constitutional claims remotely
supports that proposition. In
Johnson v. Robison,
415 U. S. 361
(1974), we considered a statute precluding judicial review of
"
the decisions of the Administrator on any question of law or
fact under any law administered by the Veterans' Administration.'"
Id. at 415 U. S. 367
(quoting 38 U.S.C. § 211(a)). We concluded that this statute did
not bar judicial review of a challenge to the constitutionality of
the statute itself, since that was a challenge not to a decision of
the Administrator, but to a decision of Congress. Our holding was
based upon the text, and not upon some judicial power to read in a
"constitutional claims" exception. And in Weinberger v.
Salfi, 422 U. S. 749
(1975), we held that 42 U.S.C. § 405(h), a statute depriving
district courts of federal question jurisdiction over "any claim
arising under" Title II of the Social Security Act, did embrace
even constitutional challenges, since its language was "quite
different" from that at issue in Johnson, and
"extend[ed] to any 'action' seeking 'to recover on any [Social
Security] claim' --
Page 486 U. S. 620
irrespective of whether resort to judicial processes is
necessitated by . . . allegedly unconstitutional statutory
restrictions."
422 U.S. at
422 U. S. 762.
In
Salfi, to be sure, another statutory provision was
available that would enable judicial review of the constitutional
claim, but as just observed, that distinction does not justify
drawing a line that has no basis in the statute.
Commodity
Futures Trading Comm'n v. Schor, supra.
The Court seeks to downplay the harm produced by today's
decision by observing that
"petitioner acknowledges that Title VII claims attacking the
hiring and promotion policies of the Agency are routinely
entertained in federal court."
Ante at
486 U. S. 604,
citing Reply Brief for Petitioner 13-14; Tr. of Oral Arg. 9.
Assuming that those suits are statutorily authorized, I am willing
to accept the Director's assertion that, while suits regarding
hiring or promotion are tolerable, a suit regarding dismissal is
not. Like the Court, I have no basis of knowledge on which I could
deny that -- especially since it is obvious that, if the Director
thinks that a particular hiring or promotion suit is genuinely
contrary to the interests of the United States, he can simply make
the hiring or grant the promotion, and then dismiss the prospective
litigant under § 102(c).
The harm done by today's decision is that, contrary to what
Congress knows is preferable, it brings a significant
decisionmaking process of our intelligence services into a forum
where it does not belong. Neither the Constitution, nor our laws,
nor common sense gives an individual a right to come into court to
litigate the reasons for his dismissal as an intelligence agent. It
is of course not just
valid constitutional claims that
today's decision makes the basis for judicial review of the
Director's action, but all
colorable constitutional
claims, whether meritorious or not. And in determining whether what
is colorable is in fact meritorious, a court will necessarily have
to review the entire decision. If the Director denies, for example,
respondent's contention in the present
Page 486 U. S. 621
case that he was dismissed because he was a homosexual, how can
a court possibly resolve the dispute without knowing what other
good, intelligence-related reasons there might have been? I do not
see how any "latitude to control any discovery process,"
ante at 604, could justify the refusal to permit such an
inquiry, at least
in camera. Presumably the court would be
expected to evaluate whether the agent really did fail in this or
that secret mission. The documents needed will make interesting
reading for district judges (and perhaps others) throughout the
country. Of course, the Agency can seek to protect itself,
ultimately, by an authorized assertion of executive privilege,
United States v. Nixon, 418 U. S. 683
(1974), but that is a power to be invoked only
in
extremis, and any scheme of judicial review of which it is a
central feature is extreme. I would, in any event, not like to be
the agent who has to explain to the intelligence services of other
nations, with which we sometimes cooperate, that they need have no
worry that the secret information they give us will be subjected to
the notoriously broad discovery powers of our courts, because,
although we have to litigate the dismissal of our spies, we have
available a protection of somewhat uncertain scope known as
executive privilege, which the President can invoke if he is
willing to take the political damage that it often entails.
Today's result, however, will have ramifications far beyond
creation of the world's only secret intelligence agency that must
litigate the dismissal of its agents. If constitutional claims can
be raised in this highly sensitive context, it is hard to imagine
where they cannot. The assumption that there are any executive
decisions that cannot be hauled into the courts may no longer be
valid. Also obsolete may be the assumption that we are capable of
preserving a sensible common law of judicial review.
I respectfully dissent.
* Technically, this provision merely precludes judicial review
under the judicial review provisions of the Administrative
Procedure Act (APA), that is, under Chapter 7 of Title 5 of the
United States Code. However, at least with respect to all entities
that come within the Chapter's definition of "agency,"
see
5 U.S.C. § 701(b), if review is not available under the APA, it is
not available at all. Chapter 7 (originally enacted as § 10 of the
APA) is an umbrella statute governing judicial review of all
federal agency action. While a right to judicial review of agency
action may be created by a separate statutory or constitutional
provision, once created, it becomes subject to the judicial review
provisions of the APA unless
specifically excluded,
see 5 U.S.C. § 559. To my knowledge, no specific exclusion
exists.