MOLERIO V. F.B.I.

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00530R000300560010-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 11
• Document Creation Date: December 27, 2016
• Document Release Date: January 9, 2013
• Sequence Number: 10
• Content Type: MISC

749 FEDERAL REPORTER, 2d SERIES
plaintiff as special agent for illegal and
unconstitutional reasons was dismissed by
the United States District Court for the
District of Columbia, June L. Green, J., and
plaintiff appealed. The Court of Appeals,
Scalia, Circuit Judge, held that: (1) because
court could properly treat defendants' dis-
missal motion as motion for summary judg-
ment, and because state secrets privilege
was properly invoked, rejection of plain-
tiff's motion to compel disclosure did not
wrongfully deprive him of opportunity to
submit responsive material on the motion;
(2) prima facie showing of discrimination
was met with assertion that plaintiff was
not qualified for job because he could not
obtain the necessary security clearance val-
idly required pursuant to Executive Order;
(3) there was no evidence on which finding
of deprivation of liberty without due pro-
cess could be made; (4) reason for not
hiring plaintiff did not implicate any First
Amendment concerns; and (5) cause of ac-
tion under Privacy Act provision required
showing of "actual damages sustained."
Affirmed.
1. Federal Courts ?754
Because all rulings challenged, includ-
ing that as to insufficiency of evidence,
constituted findings of law rather than
fact, Court of Appeals would not defer to
judgment of the district court, reversing
only if that judgment was clearly errone-
ous, but, rather, would make its own inde-
pendent assessment.
2. Federal Civil Procedure ?2554
Federal Courts x766
Where defendants styled their motion
as one brought for dismissal for failure to
state claim for relief but no one treated it
as such, and plaintiff, in fact, treated it as
motion for summary judgment, filing
"Statement of Genuine Issues," it was not
improper for district judge, and for Court
of Appeals on appeal, to consider evidence
outside the pleadings. Fed.Rules Civ.Proc.
Rule 12(b)(6), 28 U.S.C.A.; U.S.Dist.Ct.
Rules D.C., Civil Rule 1-9(i); U.S.C.A.
Const.Amend. 1.
3. Federal Civil Procedure ?1600.3
r
The state secrets privilege, i.e.;'
lege against disclosure of information
would adversely affect national securi
includes information that would result _in
impairment of nation's defense capabilities,
disclosure of intelligence-gathering meth-
ods or capabilities, and disruption of diplo-
matic relations with foreign governmeiito.
Fed.Rules Civ.Proc.Rules 12(b), (b)(6), 56, .
4. Federal Civil Procedure ?1600.3
When properly invoked to protect-
na-tional security, state secrets privilege is
absolute, and no competing public or pri-
vate interest can be advanced to compel
disclosure. Fed. Rules Civ.Proc.Rules
12(b), (b)(6), 56, 28 U.S.C.A.
5. Federal Civil Procedure ?1623
On record, procedural requirements
for assertion of state secrets privilege, i.e.,
that there must be formal claim of pri vi-
lege, lodged by head of department which
has control over the matter, after actual
personal consideration by that officer, were
met by the Department of Justice, of which
the Federal Bureau of Investigation is com-
ponent. Fed.Rules Civ.Proc.Rules 12(b),
(b)(6), 56, 28 U.S.C.A.
6. Federal Civil Procedure ?1623
Where whole object of suit and of dis-
covery is to establish a fact that is a state
secret, it suffices for cabinet secretary to
determine on personal consideration that
disclosure of that fact would impair nation-
al security, whereupon compliance with dis-
covery request is excused in gross, without
necessity of examining individual docu-
ments, and to extent such documents would
assist in establishing what was sought,
they would be privileged, while to extent
they would not they would be immaterial
and not proper subject of disclosure. Fed.
Rules Civ.Proc.Rule 26(b)(1), 28 U.S.C.A.
7. Federal Civil Procedure x1623
Notwithstanding satisfaction of formal
requirements for assertion of state secrets
privilege, validity of government's asser-
tion must be judicially assessed to some
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 1600.3 :~
i.e.,.pn.
mation
al securi}q
Id result-in':
capabilities,-
wring meth.
.on of diplo-
)vernment9.
(b)(6),
1600.3 :
protect tia.
privilege is
iblic or pri-
( to compel
'.Proc.Rules
io&o
equirements
rivilege, i.e.,
.im of privi-
after actual
)fficer, were
ice, of which
ation is com-
Rules 12(b),
'1623
t and of dis-
at is a state
secretary to
eration that
npair nation-
nee with dis-
.-oss, without
'idual docu-
ments would
was sought,
ile to extent
e immaterial
losure. Fed.
28 U.S.C.A.
'1623
ion of formal
.state secrets
nent's asser-
sed to some
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V V
MOLERi-O- v. F:B:It3
(Cite as 749"F:20131t984)
degree at least, and how far the court
should probe in conducting such inquiry
depends upon showing of necessity for the
information on the part of the party re-
questing it.
8. Federal Civil Procedure x1623
Where district court did not rest upon
conclusory statements contained in public
affidavit of acting Attorney General of the
United States but also examined sworn in
camera affidavit of assistant director in
charge of the Intelligence Division of the
Federal Bureau of Investigation, which
specifically set forth reason for failure of
the Bureau to hire the plaintiff as special
agent, district court satisfied itself, that
reason for failure to hire would impair na-
tional security, in what was fully adequate
fashion, while nevertheless giving consider-
able deference to views of executive de-
partment as to what sort of matter would
impair national security.
9. Federal Civil Procedure x1623
In camera inspection of affidavit will
not necessarily always be sufficient to de-
termine validity of claim of privilege for
state secrets, and extent to which district
court may properly rely on affidavits and
similar sources will vary from case to case.
II). Federal Civil Procedure 0-2535
Because court could properly treat de-
fendants' motion under rule authorizing
dismissal for failure to state claim for re-
lief as motion for summary judgment, and
because state secrets privilege was proper-
ly' invoked, rejection of plaintiff's motion to
compel disclosure did not wrongfully de-
prive him of opportunity to submit respon-
sive material on the motion. Fed.Rules
('iv.l'roc.Rules 12(b), (b)(6), 56, 56(c), 28
L.S.C.A.
I I. Civil Rights 0-43
Federal Courts 0-858
The McDonnell Douglas test was
merely meant to establish ordinary order of
production of evidence in Title VII case,
,uid is irrelevant where what is at issue is
Ow adequacy of evidence to support a judg-
ment, and thus the McDonnell Douglas
ruling, does not mean that trial courts or
reviewing courts should treat discrimina-
tion differently from other ultimate ques-
tions of fact. Executive Order No. 10450,
5 U.S.C.A. ? 7311 note; Civil Rights Act of
1964, ? 701 et seq., as amended, 42 U.S.
C.A. ? 2000e et seq.
12. Civil Rights (8-44(1)
In Title VII case, prima facie showing
of discrimination in hiring was met with
assertion that plaintiff was not qualified
for job because he could not obtain the
necessary security clearance validly re-
quired pursuant to Executive order. Exec-
utive Order No. 10450, 5 U.S.C.A. ? 7311
note; Civil Rights Act of 1964, ?? 701 et
seq., 717, as amended, 42 U.S.C.A.
?? 2000e et seq., 2000e-16.
13. Civil Rights x44(1)
General policy of the FBI, of attaching
special weight, in hiring of special agents,
to fact that applicant had relatives residing
in any foreign country controlled by
government whose interests or policies are
hostile to or inconsistent with those of the
United States, was not any evidence of
discrimination on basis of race or national
origin, nor was the application of such poli-
cy to Cuba, since the policy would apply to
any person, of any race or nationality, with
relatives in the pertinent country. Execu-
tive Order No. 10450, 5 U.S.C.A. ? 7311
note.
14. Civil Rights ?9.10, 44(1)
Equal employment opportunity statute
specifically acknowledges general validity
of national security clearance require-
ments, and mere fact that such require-
ments impose special disabilities on basis of
connection with particular foreign coun-
tries is not alone evidence of discrimination.
Executive Order No. 10450, 5 U.S.C.A.
? 7311 note; Civil Rights Act of 1964,
? 703(g), as amended, 42 U.S.C.A. ? 2000e-
2(g); U.S.C.A. Const.Amend. 5. J
15. Officers and Public Employees 0-18
There is ordinarily no constitutionally
protected "legitimate claim of entitlement"
to be appointed to particular federal job.
Civil Rights Act of 1964, ? 703(g), as
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818 749 FEDERAL REPORTER, 2d SERIES
amended, 42 U.S.C.A. ? 2000e-2(g); U.S.
C.A. Const.Amends. 5, 14.
16. Civil Rights X13.4(1)
It was doubtful that government's con-
fidential and unpublished denial of security
clearance, even for specified defamatory
reason, would be sufficiently disseminated
to constitute "stigmatizing" as element of
deprivation of constitutionally protected
property right, but, in any event, mere fact
that plaintiff had relatives in hostile coun-
try and that same could be considered basis
for denial of top secret clearance did not in
any way imply disloyalty or any other re-
pugnant characteristic and thus there was
no stigmatizing effect. Executive Order
No. 10450, 5 U.S.C.A. ? 7311 note; Civil
Rights Act of 1964, ? 703(g), as amended,
42 U.S.C.A. ? 2000e-2(g); U.S.C.A. Const.
Amend. 5.
17. Constitutional Law x91
Even if freedom of association rights
were somehow implicated by considering
any information ;regarding plaintiff's fa-
ther, on plaintiff's application for employ-
ment by the FBI, national security was
sufficiently compelling governmental need
that same alone, without further specifica-
tion that the father's exercise of rights of
political speech and association were in-
volved, would not make out case of denial
of rights under the First Amendment.
U.S.C.A. Const.Amend. 1.
18. Civil Rights x13.12(7)
Where it was apparent by reason of
adjudication on claim of state secrets privi-
lege that reason for the nonhiring of plain-
tiff by the Federal Bureau of Investigation
had nothing to do with his assertion of
First Amendment rights, the First Amend-
ment count of employment discrimination
complaint was properly dismissed. U.S.
C.A. Const.Amend. 1.
19. Records x31
Cause of action under Privacy Act pro-
vision of remedies for persons harmed by
an agency's intentional or willful failure to
United States Circuit Judge for the United States
Court of Appeals for the Federal Circuit, sitting
maintain accurate files requires not mePe
intentional or willful failure to main
accurate records but also "actual dami
sustained" as result of such failure, ant
must be shown that violation of the'c,Ai
caused the damages complained
C.A. Const.Amend. 1; 5 U.S.C.A..??,55
552(a), 552a, 552a(d, g), (g)(1)(C), (gX2x4
(g)(4), (g)(4)(A).
Court for the District of Columbia (Civ.
with whom Andrew B. Weissman and Mai-;
garet L. Tobey, Washington, D.C., were"C
the brief, for appellant. ->n
ington, D.C., with whom Richard '
'
Willard, Acting Asst. Atty. Gen., Dept'df
Justice, Joseph E. diGenova, U.S. A
and Barbara L. Herwig, Dept. of Just
Washington, D.C., were on the brief,' fore.
appellees.
Before EDWARDS, SCALIA.:;an,
Opinion for the Court filed by Circuit
.aull
Judge SCALIA.
SCALIA, Circuit Judge:
We review the decision of the District
Court to dismiss an action brought by Daat
iel Molerio, who asserted that the Federal
Bureau of Investigation refused to hire hill
as a special agent for reasons which were
both illegal and unconstitutional. The ap'1
peal raises issues, among others,' of the
validity and effect of the government's a0
sertion of the state secrets privilege, and of
the elements necessary to sustain clsi!1
under Title VII of the Civil Rights Actan
the Due Process Clause of the Constitution.
ilia,
f,nq
On September 19, 1979, Daniel MoleriQ
applied to be an FBI special agent. At the
by designation pursuant to 28 U.S.C. ? 29161
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 11M
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MOLERIO v. F.B.I.
time, he was a criminal investigator in the
Immigration and Naturalization Service,
where he held a "secret" security clear-
ance. A panel of three FBI special agents
interviewed Molerio, and rated him an "out-
standing candidate." After an interview
and examinations, Molerio ranked fifth out
of the 785 applicants in the Special Agent
Selection System, and was included in a list
of agents tentatively selected for the new
class of special agents, subject to a back-
ground investigation for the necessary "top
secret" security clearance.
Because, as he was told, the investiga-
tion had revealed "something in New York
having to do with his family," Complaint
1114, Molerio was interviewed a second
time. This interview concentrated on his
family relationships and the political beliefs
of members of his family. Molerio was
asked about pro- and anti-Castro groups,
specifically the "26th of July" group, a
Cuban political organization which sup-
ported the Castro revolution and to which
Molerio's father belonged at one time.
Molerio was later told that his application
had been referred to the Bureau's counter-
intelligence division because "his back-
ground investigation [revealed] something
in New York having to do with [his] fa-
ther," Complaint 1127. In a letter dated
November 20, 1980, the Bureau informed
him that he would not be hired. No rea-
sons were given.
After contacting EEO officers in the Im-
migration and Naturalization Service and
the FBI, Molerio filed a formal complaint
of discrimination, which was denied. He
also filed combined Freedom of Informa-
tion Act ("FOIA") and Privacy Act re-
quests with FBI headquarters and several
Field Offices. The agency began process-
ing these requests, and acknowledged that
responsive documents - were located; no
documents, however, have been provided.
Molerio then brought this action for in-
junctive relief and damages, naming as de-
fendants the Bureau, its Director, and the
individual who was its Personnel Officer
during the period at issue. Molerio sought
that the Bureau's actions violated Title VII,
42 U.S.C. ? 2000e-16 (1982).t He alleged
that he was qualified for the job of special
agent, but was not chosen becau y"of his
Cuban or Hispanic national origin. Second,
he alleged that the Bureau decided not to
hire him because of- his association with his
father and his father's political activity, in
violation of his )First Amendment associa-
tional rights. Lfihird, he asserted that he
had been. deprived of his liberty without
due process of law, stating that the action
of the Bureau had impugned his reputation
and adversely affected his chance for ad-
vancement within the government, alljwith-
out adequate procedural protection. UFinal-
ly, he claimed that the Bureau wrongfully
denied his FOIA and Privacy Act requests,
5 U.S.C. ?? 552(a) & 552a(d) (1982), and, in
violation of the Privacy Act, willfully main-
tained inaccurate records regarding him as
a result of which he was harmed, 5 U.S.C.
? 552a(g).
Defendants answered the complaint, and
complied with discovery requests, although
redacting many of the documents produced
to eliminate information which would "jeop-
ardize or interfere with National-States Se-
crets or the National Security." Molerio
moved to compel production of the redacted
portion of selected documents. Defendants
moved to stay consideration of this motion
on the ground that they would soon move
to dismiss the action-which they did,
claiming that the state secrets privilege
required dismissal. The Bureau also sub-
mitted an affidavit, to be examined in cam-
era, disclosing the Bureau's reasons for not
hiring Molerio. Defendants argued that
because either the prosecution of the case
or its defense would require disclosing
state secrets, the action must be dismissed.
The District Court held that the Depart-
ment of Justice had complied with the for-
mal requirements of the state secrets privi-
lege, and that the reason for Molerio's non-
appointment revealed in camera was pro-
tected by the privilege. The court held
first, that without the privileged informa-
tion the plaintiff had not made out a prima
facie case; and second, that even if he had
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the suit would have to be dismissed be-
cause the defendants were unable to
present their defense on the record; The
court was unwilling to require the govern-
ment to present the secret material in cam-
era, since that would compromise the
court's objectivity by forcing it to evaluate
evidence without the assistance of opposing
counsel. The court dismissed the plain-
tiff's action "for failure to state a claim
upon which relief can be granted," and the
motion to compel production as moot. Mol-
erio v. FBI, Civil No. 83-1706, mem. op. at
11 (D.D.C. Sept. 6, 1983) ("mem. op.").
II
[1] Since all of the rulings challenged
here, including that as to the insufficiency
of the evidence, constitute findings of law
rather than fact, in our consideration of
this appeal we do not defer to the judgment
of the district court and reverse only if that
judgment is clearly erroneous, but rather
make our own independent assessment.
Western Casualty & Surety Co. v. Na-
tional Union Fire Insurance Co., 677 F.2d
789, 791 n. 1 (10th Cir.1982). A preliminary
issue relates to the evidence that we can
properly take into account.
[2] Molerio claims that since what was
before the District Court was the govern-
ment's motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6), it was
improper for the district judge, and it
would be improper for us upon this appeal,
to consider evidence outside the pleading.
We disagree. Although the defendants
styled their motion as one brought under
Rule 12(b)(6), no one treated it, as such.
The appellant, in fact, treated it as a mo-
tion for summary judgment. He filed a
"Statement of Genuine Issues," which the
District Court's Local Rule 1 i9(i) requires
parties to file in connection with summary
judgment motions. That document specifi-
cally acknowledged that "[b]y disputing the
plaintiff's factual allegations on the basis
of matters outside the pleadings, the de-
fendants have converted their motion to
dismiss to a motion for summary judg-
ment." J.A. 96. While the conclusion of
the court's memorandum opinion asserted
that the appellant had not stated a claii7i
upon which relief could be granted, mem. `
op. at 11, it is apparent from the text of the
opinion that the primary basis for dismissal":
was that he had not made out a prima facie
case in support of any of his claims, id. at,7
(Title VII claim) & 8 (First Amendmen
due process, FOIA, and Privacy Act
claims). It is true that, if the District
Court was proceeding in this fashion, -i
should more properly have denied the mo-
tion to compel production of documents
rather than dismiss it as moot. The latter
course is more consistent with the District
Court's alternative theory (viz., that the
litigation could not proceed because the
defendants would be unable' to present
their defense) which would, if valid, per-
haps produce dismissal for failure to state
a claim. But we can of course affirm the
District Court on any valid ground, and
need not follow the same mode of analysis.
Langnes v. Green, 282 U.S. 531, 538-39, 51
S.Ct. 243, 246, 75 L.Ed. 520 (1931). With-
out passing upon the validity of a more
direct approach to dismissing the entire
suit, we choose to rely upon the primary
theory reflected in the District Court's
opinion, for which purpose we find no diffi-
culty in treating the defendants' motion, as
appellant himself treated it, as a motion for
summary judgment.
[3, 4] Molerio's next procedural point is
that it is improper to treat a 12(b)(6) motion
accompanied by matters outside the plead-
ing as a Rule 56 motion for summary judg-
ment unless all parties have been given a
reasonable opportunity to submit material
appropriate to the latter motion. FED.R.
Civ.P. 12(b). He asserts that this opportu-
nity was not provided, since the District
Court wrongfully denied (in effect) his mo-
tion to compel production by accepting the
cgovernment-_siasser_tion-of-=thate-secrets
cpriviiege,ci:e?, the pris,ilege=-againat-dis`e-lo-
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raffett-nationalrse ur-ity. A-s_we-have-
ccent-ly-noted-this=includes-informatiooi =that
wou ld- resu ltan-impairment-of-the -nation's
defense-capabilitiesdiselosu ee-of=intklli=
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gence-g;
and disc
foreign
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notes 01
protect
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MOLERIO v. F.B.I.
Cite as 749 F.2d 815 (1984)
cgence-gathering_ methods-or-capabilities, of privilege, however, did not relate to par-
(and-disruption-of-diplomatic-relations-with ticular documents, but to all documents
,foreign-governments." Ellsberg v. Mitch- and testimony that would disclose the rea-
e14 709 F.2d 51, 57 (D.C.Cir. 1983) (foot- son for rejection of Molerio's application.
notes omitted). When_properly:invoked-to To determine that reason, it would only be
,,protect-succh--interests;-"the-state- secrets necessary to examine specifically Molerio's
privilege-is-absolute.- No-competing-public ) applicant file; and such examination (plus,
or-private-interest can-be-advanced _to-co_m- of course, assessment of the national secur-
TeLdisclosure .... " Id.
(5, 61 cTheileading -c s e= dscribes--the
(pr-oc edural-----requirements-for-assertion -of
the-privilege-as--follows:
T-he-privilege belongs-to=the-Government
and-mu_st be _asserted by-it;-it_can-Neither
,be-claimed_nor-waived-by -aprivate-party.
.It-is-not-to-be-lightly-invoked There
,must be-a= :formal- claim of- -privilege,
,lodged-by-the-headofthe=department
which-has control over thematter,-after
actual-personal consideration by-th`at of-
cficer:
c-Uln ted St?tes-u Renolds;345__U 1 7-8,
73 S.Ct. 528, 532, 97 L.Ed. 727 (1953) (foot-
notes omitted). These formal requirements
were met in the present case. In an affida-
vit executed on April 4, 1983, and filed the
next day, Acting Attorney General
Schmults, who was during Attorney Gener-
al Smith's absence from the country head
of the Department of Justice (of which the
Bureau is a component), formally invoked
the privilege, specifically reciting that he
had reviewed the pertinent portions of the
plaintiff's applicant file and was familiar
with the allegations of the complaint. Ap-
pellant objects that the affidavit did not
recite personal review of the other files for
which disclosure was sought, in particular
the file on Molerio's father. The assertion
I. Appellant's Statement of Points and Authori-
ties in Support of Motion to Compel Production
of Documents at 6-13 explained why he needed
the documents. Virtually all of them were
sought to establish the reason for his nonap-
pointment. Some were sought to establish that
the Bureau maintained inaccurate records, in
order to support the claim for damages under
the Privacy Act; but that claim ultimately de-
pended upon establishing the reason for Moler-
io's nonappointment as well. See page 826,
in/ra. Whether or not that alone would be
enough to render a blanket assertion of the
privilege appropriate, any unjustified failure to
produce relating to the Privacy Act claim was
ity consequences of disclosure) would con-
stitute the "personal consideration" of the
matter required by Reynolds. If the state
secret were only an incidental part of the
litigation, it might have been necessary for
the Attorney General (either personally or
by proper delegation) to go further, and to
examine each document requested in order
to determine that the state secret was im-
plicated. But= whey-e;-as-here,-the-whole
objeetof-the-suit-and-ofthe-discovery is-to
,establish_a-fact-that -is-a-state secret,'-we
are_of--the --view-that-it suffices--for-the
cabinet secretary_to determine-on personal
.considera-tion-that-disclosure-of-that-fact
,would-impair national-security, whereupon
compliance-_with_ the-discovery--r-equest-is,
,excused-in-g-ross-without- -the-necessity-of
examining-individual-documents. To the
extent those documents would assist in es-
tablishing what is sought, they would be
privileged, and to the extent they would not
they would be immaterial and not a proper
subject of disclosure. See FED.R.CIv.P.
26(b)(1); O Neal v. Riceland Foods, 684
F.2d 577, 581 (8th Cir.1982). Insofar as the
formal requirements are concerned, there-
fore, the assertion of the privilege here
was adequate.
[7] Satisfaction of the formal require-
ments, however, is not an end of the mat-
harmless, since the claim is invalid on the mer-
its for reasons that cannot be affected by any
inaccuracy in the Bureau's records except an
inaccuracy pertaining to the state secret itself.
Id. Of course even though the plaintiff did not
seek correction of records, as the Privacy Act
permits, 5 U.S.C. ? 552a(g)(2)(A), if this case
had proceeded and if such relief were shown to
be warranted, the court would have had to
award such relief in its final judgment, FED.R.
Cnv.P. 54(c); but it is at least permissible, if not
mandatory, to evaluate requests for discovery
on the basis of the relief sought rather than all
relief to which the plaintiff may prove to be
entitled.
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 Declassified in Part - Sanitized Copy Approved for Release 2013/01/09: CIA-RDP90-0053OR000300560010-2 ~
749 FEDERAL REPORTER, 2d SERIES
ter. T9,somedegr-ee at least;rthe;validity
Hof,f the,government's-casertionrmust=bejudi-
ceiallyiassessed. 'MT hecourtnust'be-satis-
1 l therevidencefandicircumsta-nc-
Efied,froni
1es,handvfromithedimplications'fofktheuques-
ttion3inrtheasettingrinxwhichiit=asTasked, tthat
ages pons iveFanswerrtoathe.cquestio~orr wan
e`pla-nationlof bywit-ccannotvberanswered
`mig-htxbedangerousxbecausevinjurious-Fdis-
Eclosure-1couldxresult.' " 4wllnited= fates=v.
4r S. at 9, 73 S.Ct. at 532-33,
quoting from Hoffman v. United States,
341 U.S. 479, 486-87, 71 S.Ct. 814, 818-19,
95 L.Ed. 1118 (1951). `E[H]owifar-theTcourt
shouldzprobe6min.conducting=this=inquiry
,depends_.upontheshowing;of.necessity"
therinformatiomonztheTpart=ofitheTpa_rty
for-,
requestingwit. r3451MS. at 11, 73 S.Ct. at
533. In the present case, that necessity
was high indeed. The plaintiff sought the
information in question in order to estab-
lish the Bureau's reason for refusal to hire
him-which was the gravamen of both the
Title VII and First Amendment counts of
the complaint, and an indispensable ele-
ment of the Privacy Act count. This rea-
son could be established only with great
difficulty, if at all, from other sources.
[8, 9] The District Court satisfied itself
that the reason for the failure to hire
would impair the national security in what
seems to us a fully adequate fashion:
While it gave, as is appropriate, considera-
ble deference to the views of the executive
department as to what sort of matter
would impair national security, see Ellsberg
v. Mitchell, 709 F.2d at 58, it did not rest
upon the conclusory statements contained
in the public affidavit of Acting Attorney
General Schmults, but also examined the
sworn in camera affidavit of Edward J.
O'Malley, Assistant Director in charge of
the Bureau's Intelligence Division which
specifically set forth the reason for the
failure to hire.' It may be true, as we have
earlier discussed, that the District Court's
disposition relied upon its second mode of
analysis, rather than its earlier merits ap-
2. We do not mean to suggest in camera inspec-
tion of an affidavit will always be sufficient to
determine the validity of a claim of privilege for
state secrets. In this. case, we find that it was
proach that we choose to follow here, and
used the affidavits as a basis for dismiss.
ing the suit directly, instead of denying the
motion to compel disclosure. Nonetheless,
it is clear that the judge was convinced of
the validity of the state secrets claim-as
we independently are, having examined the
same documents, including the in camera
affidavit.
[10] Since the court could properly
treat the defendants' motion as a Rule 56
motion; and since, by reason of the proper
invocation of the state secrets privilege,
rejection of the motion to compel disclosure
did not wrongfully deprive plaintiff of an
opportunity to submit responsive material;
the question remaining is whether, on the
evidence before the court, defendants were
entitled to summary judgment.
III
Under Federal Rule of Civil Procedure
56(c), a party moving for summary judg-
ment must show that "there is no genuine
issue as to any material fact." In making
this determination, "the inferences to be
drawn from the underlying facts ... must
be viewed in the light most favorable to the
party opposing the motion. However, the
moving party is entitled to the benefit of
any relevant presumptions, and if the es-
tablished facts and relevant presumptions
would have entitled him to a directed ver-
dict at trial, he is entitled to a summary
judgment under Rule 56." United States
v. General Motors Corp., 518 F.2d 420,
441-42 (D.C.Cir. 1975) (citations and inter-
nal quotations omitted). We will examine
each of Molerio's claims to see if summary
judgment should have been granted.
A. Title VII Claim
[11, 12] Molerio claimed that his nonap-
pointment was due to FBI discrimination
agairrst Hispanic, more specifically Cuban,
applicants. He alleged that he was a mem-
so. The extent to which a district court may
properly rely on affidavits and similar sources
will vary from case to case. See Ellsber& 709
F.2d at 58 & n. 36.
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 Declassified in Part - Sanitized Copy Approved for Release 2013/01/09: CIA-RDP90-0053OR000300560010-2
MOLERIO v. F.B.I.
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