WEBSTER V. DOE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91B00390R000400380012-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 27, 2016
• Document Release Date: September 3, 2013
• Sequence Number: 12
• Publication Date: June 24, 1988
• Content Type: MEMO

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NATIONALSECURTYCOUNCL
WASHINGTON. D.C. 20506
June 24, 1988
MEMORANDUM FOR MR. H. LAWRENCE SANDALL
Executive Secretary
Central Intelligence Agency
SUBJECT: Webster v. Doe
? 4572
OS REGISTRY
28 JUN 1988
The Supreme Court's decision in Webster v. Doe (Tab A) raises
important questions for the Director of Central Intelligence. It
may be that corrective legislation is desirable. Were it to be
determined to be desirable and appropriate, the Intelligence
Authorization Act now pending before the Senate may provide a
vehicle. Accordingly, I request that, by close of business,
June 30, CIA submit a recommendation for action based on a review
of the security, operational, and legal implications of the
Supreme Court's decision. CIA should coordinate its analysis and
recommendations with respect to legal questions with the Office
of Legal Counsel, Department of Justice.
4h4i-4414%,
- ? .
Paul Schott-Stevens,
Executiiie Secretary
Attachment
Tab A - Webster v. Doe
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The United States LAW WEEK 6-14-88
Full Text of Opinions
No. 86-1294
WILLIAM H. WEBSTER, DIRECTOR OF CENTRAL
INTELLIGENCE, PETITIONER v. JOHN DOE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Syllabus
No. 86-1294. Argued January 12. 1988?Decided June 15, 1988
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 homosex-
ual. 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 Ad-
ministrative 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 mo-
tion for partial summary judgment on his APA claim, declining to ad-
dress his constitutional claims. the Court of Appeals vacated the judg-
ment 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 ? 70I(a) of the APA.
which renders that Act inapplicable whenever 11) statutes preclude ju-
dicial 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. Section 701(3)(2) of the APA precludes judicial review under that
Act 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 exer-
cise 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 1 102(crs implementation was "com-
mitted to agency discretion by law" is also strongly suggested by the
overall structure of the NSA, which vests in the Director very broad au-
thority 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.
2. District Court review of respondent's constitutional claims is not
precluded by ? 102(c) of the NSA. Petitioner's view that all CIA em-
ployment 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 deci-
sions to the Director's discretion. ?? 701(a)(1) and (a)(2) of the APA re-
move from judicial review only those determinations specifically identi-
fied by Congress or "committed to agency discretion by law." Nothing
in 1102(c) demonstrates that Congress meant to preclude consideration
of colorable constitutional claims arising out of the Director's actions pur-
suant to that section. Petitioner's contention that judicial review of con-
stitutional 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 au-
thority 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 restric-
tions when it enacted ? 102(c). Even without such prohibitory legisla-
tion, 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.
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 BREN-
NAN, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, and in
Parts I and II of which O'CONNOR, J., joined. O'CoNNon, J., filed an
opinion concurring in part and dissenting in part. SCALIA, J., filed a dis-
senting opinion. KENNEDY, J., took no part in the consideration or deci-
sion 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 dis-
cretion, terminate the employment of any officer or em-
ployee of the Agency whenever he shall deem such ter-
mination 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 ter-
mination decisions of the Director under ? 102(c) are judicially
reviewable.
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 consist-
ently rated him as an excellent or outstanding employee. By
1977, respondent had been promoted to a position as a covert
electronics technician.
In January 1982, respondent voluntarily informed a CIA
security officer that-he was a homoses14.1. Almost immedi-
ately, 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, re-
spondent was extensively questioned by a polygraph officer
concerning his homosexuality and possible security viola-
tions. 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 poly-
graph 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 re-
spondent was allowed to attach a two-page addendum.
On April 14, 1982, a CIA security agent informed respond-
ent 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 (peti-
tioner's predecessor) that respondent be dismissed. After
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reviewing respondent's records and the evaluations of his
subordinates, the Director "deemed it necessary and advis-
able in the interests of the United States to terminate [re-
spondent's] employment with this Agency pursuant to sec-
tion 102(c) of the National Security Act. . . ." Respondent
was also advised that, while the CIA would give him a posi-
tive recommendation in any future job search, if he applied
for a job requiring a security clearance the Agency would in-
form the-prospective employer that it had concluded that re-
spondent's homosexuality presented a security threat.
Respondent then filed an action against petitioner in
United States District Court for the District of Columbia.
Respondent's amended complaint asserted a variety of statu-
tory and constitutional claims against the Director.' Re-
spondent alleged that petitioner's decision to terminate his
employment violated ? 706 of the Administrative Procedure
Act (APA), because it was arbitrary and capricious, repre-
sented an abuse of discretion, and was reached without
observing the procedures required by law and CIA regula-
tions.' 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 petitioner had violated the APA and the Con-
stitution, and asked the District Court for an injunction or-
dering 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 em-
ployment termination and provide a statement of the reasons
for any adverse final determination. Respondent sought no
'monetary damages in his amended complaint.
Petitioner moved to dismiss respondent's amended corn-
Plaint on the ground that ?102(c) of the National Security Act
(NSA) precludes judicial review of the Director's termination -
decisions under ?? 701, 702, and 706 of the APA.' Section
702 provides judicial review to any "person suffering legal
wrong because of agency action, or adversely affected or ag-
grieved by. agency action within the meaning of a relevant
statute." The section further instructs that "(aln 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
' See May 11. 1982, Letter from Deputy General Counsel of CIA to re-
spondent's counsel. App. 37.
'See Amended Complaint, id.. at 5, 12-13.
'Title 5 U. S. C. 1706 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 ac-
cordance 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:"
45 U. S. C. 1* 701, 702, 706 (1982 ed. and Supp.
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 judg-
ment. 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 un-
lawfully discharged because the CIA had not followed the
procedures described in its own regulations. The District
Court declined, however, to address respondent's constitu-
tional claims. Respondent was ordered reinstated to admin-
istrative leave status, and the Agency was instructed to re-
consider 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 pre-
cluded 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 re-
spondent do not limit the Director's discretion in making ter-
mination 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."
The majority thus concluded that the CIA regulations pro-
vide 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 capricidus eiecise of his power to discharge employees
under ?102(c).' 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.' We granted certiorari to decide the question
whether the Director's decision to discharge a CIA employee
under ? 102(c) of the NSA is judicially reviewable under the
APA.
II
The APA's comprehensive provisions, set forth in 5
U. S. C. ?? 701-706, 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
'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).
'This "arbitrary and capricious" standard is derived from / 706(2)(A),
see n. 3, supra.
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 1 102(c) dis-
charge are judicially reviewable under the APA.
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, 56 Lw TO The United States LAW WEEK 6-14-88
court." Typically, a litigant will contest an action (or failure
to act) by an agency on the ground that the agency has ne-
glected to follow the statutory directives of Congress. Sec-
tion 701(a), however, limits application of the entire APA to
situations in which judicial review is not precluded by stat-
ute, 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 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 re-
view; subsection (a)(2) applies "in those rare instances where
'statutes are drawn in such broad terms that in a given case
there is no law to apply." 401 U. S., at 410 (citing S. Rep.
No. 752, 79th Cong., 1st Sess., 26 (1945)).
We further explained what it means for an action to be
"committed to agency discretion by law" in Heckler v.
Chaney, 470 U. S. 821 (1985). Heckler required the Court
to determine whether the Food and Drug Administration's
decision not to undertake an enforcement proceeding against
the use of certain drugs in administering the death penalty
was subject to judicial review. We noted that, under
?701(a)(2), even when Congress has not affirmatively pre-
cluded judicial oversight, "review is not to be had if the stat-
ute is drawn so that a court would have no meaningful stand-
ard against which to judge the agency's exercise of
discretion." 470 U. S., at 830. Since the statute conferring
power on the Food and Drug Administration to prohibit the
unlawful misbranding or misuse of drugs provided no sub-
stantive standards on which a court could base its review, we
found that enforcement actions were committed to the com-
plete 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 National Security Act.
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 in-
terests of the United States" (emphasis added), not simply '
when the dismissal is necessary or advisable to those inter-
ests. This standard fairly exudes deference to the Director,
and appears to us to foreclose the application of any meaning-
ful judicial standard of review. Short of permitting cross-
examination of the Director concerning his views of the Na-
tion's security and whether the discharged employee was
inimical to those interests, we see no basis on which a review-
ing court could properly assess an Agency termination deci-
sion. 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 National Security
Act. 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 meth-
ods from unauthorized disclosure." See 50 U. S. C.
?403(d)(3); S. Rep. No. 239, 80th Cong., 1st Sess., 2 (1947);
H. R. Rep. No. 961, 80th Cong., 1st Sess., 3-4 (1947). Sec-
tion 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 Agen-
cy's employees. As we recognized in Snepp v. United
States, 444 U. S. 507, 510 (1980), employment with the CIA
entails a high degree of trust that is perhaps unmatched in
government service.
This overriding need for ensuring integrity in the Agency
led us to uphold the Director's use of ?102(d)(3) of the NSA to
withhold the identities of protected intelligence sources in
CIA v. Sims, 471 U. S. 159 (1985). In denying respondent's
Freedom of Information Act requests in Sims to produce cer-
tain CIA records, we stated that "Nile 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 disclo-
sure." Id., at 168-169. Section 102(c), that portion of the
NSA under consideration in the present case, is part and par-
cel of the entire Act, and likewise exhibits the Act's extraor-
dinary deference to the Director in his decision to terminate
individual employees.
We thus find that the language and structure of ? 102(c) in-
dicate 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, denied him equal protection of
the laws, and unjustifiably burdened his right to privacy.
Respondent asserts that he is entitled, under the APA. to ju-
dicial consideration of these claimed violations.'
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 impermis-
sible, or whether he asserts that a more pervasive dis-
crimination policy exists in the CIA's employment practices
regarding all homosexuals. This ambiguity in the amended
complaint is nyoubt attributable in part 66 the inconsistent
explanations respondent received from the Agency itself re-
garding his termination. Prior to his discharge, respondent
had been told by two CIA security officers that his homosex-
ual activities themselves violated CIA regulations. In con-
trast, the Deputy General Counsel of the CIA later informed
respondent that homosexuality was merely a security con-
cern that did not inevitably result in termination, but instead
was evaluated on a case-by-case basis.
Petitioner maintains that, no matter what the nature of re-
spondent's constitutional claim, judicial review is precluded
'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. *.M, 796 F. 2d 1508 (1986)); see also
Service v. Dulles, 354 U. S. 363 (1957) (recognizing the right of federal.
courts to review an agency's actions to ensure that its own regulations have
been followed); Sampson v. Murray, 415 U. S. 61. 71(1974) (stating that
"federal courts do have authority to review the claim of a discharged gov-
ernmental employee that the agency effectuating the discharge has not fol-
lowed 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 "provide( no independ-
ent 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.
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by the language and intent of ? 102(c). In petitioner's view,
all Agency employment termination decisions, even those
based on policies normally repugnant to the Constitution, are
given over to the absolute discretion of the Director, and are
hence unreviewable under the APA. We do not think
? 102(c) may be read to exclude review of constitutional
claims. We emphasized in Johnson v. Robison, 415 U. S.
361 (1974), that where Congress intends to preclude judicial
review Of constitutional claims its intent to do so must be
clear. Id., at 373-374. In Weinberger v. Salfi, 422 U. S.
749 (1975), we reaffirmed that view. We require this height-
ened showing in part to avoid the "serious constitutional
question" that would arise if a federal statute were construed
to deny any judicial forum for a colorable constitutional claim.
See Bowen v. Michigan Academy of Family Physicians, 476
U. S. 667, 681, n. 12 (1986).
Our review of ?102(c) convinces us that it cannot bear the
preclusive weight petitioner would have it support. As de-
tailed above, the section does commit employment termina-
tion decisions to the Director's discretion, and precludes
challenges to these decisions based upon the statutory lan-
guage of ? 102(c). A discharged employee thus cannot com-
plain 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 determina-
tions specifically identified by Congress or "committed to
agency discretion by law." Nothing in ? 102(c) persuades us
that Congress meant to preclude consideration of colorable
constitutional claims arising out of the actions of the Director
pursuant to that section; we believe that a constitutional
claim based on an individual discharge may be reviewed by
the District Court.' 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 constitu-
tional 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 bal-
ance respondent's need for access to proof which would sup-
port a colorable constitutional claim against the extraordi-
nary needs of the CIA for confidentiality and the protection
of its methods, sources, and mission. See Kerr v. United
States District Court. 426 U. S. 394, 405 (1976); "United
States v. Reynolds. 345 U. S. 1 (1953).
Petitioner also contends that even if respondent has raised
a colorable constitutional claim arising out of his discharge.
Congress in the interest of national security may deny the
courts the authority to decide the claim and to order re-
spondent's reinstatement if the claim is upheld. For the rea-
' Petitioner asserts, see Brief for Petitioner. 27-28. n. 23. that respond-
ent 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. Ilardwick, 478 U. S. 186 (1986) to sup-
port this view. This question was not presented in the petition for certio-
rari, and we decline to consider it at this stage of the litigation.
sons 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 balanc-
ing of public and private interests control the grant of de-
claratory or injunctive relief in the federal courts. Weinber-
ger v. Romero-Barcelo, 456 U. S. 305 (1982); Hecht Co. v.
Bowles, 321 U. S. 321, 329-330 (1944). On remand, the Dis-
trict 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 pro-
ceedings consistent with this opinion.
It is so ordered.
JUSTICE KENNEDY took no part in the consideration or
decision of this case.
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 re-
ferred to in ? 102(c) of the National Security Act. Because
? 102(c) does not provide a meaningful standard for judicial
review, such decisions are clearly "committed to agency dis-
cretion by law" within the meaning of ?701(a)(2) of the APA.
I. do not understand the Court to say that the exception in
?701(a)(2) is necessarily or fully defined by reference to stat-
utes "drawn in such broad terms that in a given case there is
no law to apply." See Citizens to Preserve Overton Park v.
Volpe, 401 U. S. 402, 410 (1971), quoted ante, at 6. Accord-
ingly, 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 employ-
ment 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 per-
formed by the Central Intelligence Agency and the Director
of Central Intelligence lie at the core a "the very delicate.
plenary an 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 Co., 299
U. S. 304. 320 (1936). The authority of the Director of Cen-
tral Intelligence to control access to sensitive national secu-
rity information by discharging employees deemed to be un-
trustworthy flows primarily from this constitutional power of
the President. and Congress may surely provide that the in-
ferior federal courts are not used to infringe on the Presi-
dent's constitutional authority. See, e. g., Department of
the Navy v. Egan, ? U. S. ?, ? (1988); Totten v.
United States. 92 U. S. 105 (1875). Section ? 102(c) plainly
indicates that Congress has done exactly that, and the Court
points to nothing in the structure, purpose. or legislative his-
tory of the National Security Act that would suggest a differ-
ent 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 8. 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
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do not see how a decision can, either practically or legally, be
both unreviewable and yet reviewable for constitutional de-
fect, I regard Part III of the opinion as essentially undoing
Part IL I therefore respectfully dissent from the judgment
of the Court.
Before proceeding to address Part III of the Court's opin-
ion, which I think to be in error, I must discuss one signifi-
cant element of the analysis in Part II. Though I subscribe
to most of that analysis, I disagree with the Court's descrip-
tion of what is required to come within the second paragraph
of ? 701(a), which provides that judicial review is unavailable
"to the extent that. . . agency action is committed to agency
discretion by law."' The Court's discussion, ante, at 6,
suggests that the Court of Appeals below was correct in hold-
ing 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 831. Moreover, the only supporting authority for
the "no law to apply" test cited in Chaney was our observa-
tion in Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U. S. 402 (1971), that "[t]he legislative history of the Admin-
istrative Procedure Act indicates that [?701(a)(2)] is appli-
cable 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 410. Perhaps Overton Park discussed only the "no
law to apply" factor because that was the only basis for non-
reviewability 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 nonreview-
ability 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
'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. However, at least with respect to all enti-
ties that come within the Chapter's definition of "agency," see 5 U. S. C.
3 701(b), if review is not available under the APA it is not available at all.
Chapter 7 of Title 5 of the United States Code (enacted as 3 10 of the APA)
is an umbrella statute governing judicial review of all federal agency ac-
tion. 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.
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 is prompted by per-
sonal animosity. Thus, "no law to apply" provides much less
than the full answer to whether ? 701(02) applies.
The key to understanding the "committed to agency dis-
cretion 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 discre-
tion? The answer is, as we implied in Chaney, that the lat-
ter was intended to refer to "the 'common law' of judicial
review of agency action," 470 U. S., at 832-a body of juris-
prudence 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
ranging from the "political question" doctrine, to sover-
eign 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 dis-
cretion 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 & South-
ern Air Lines, Inc. v. Waterman Steamship Corp., 333 U. S.
103, 110-114 (1948); Switchmen v. National Mediation
Board, 320 U. S. 297, 301-306 (1943); United States v.
George S. Bush & Co., 310 U. S. 371, 379-380 (1940); Reaves
v. Ainsworth, 219 U. S. 296, 306 (1911); Confiscation Cases,
7 Wall. 454, 457-459 (1869); Martin v. Mott, 12 Wheat. 19,
29-30 (1827). Only if all that "common law" were embraced
within ?701(a)(2) could it have been true that, as was gen-
erally understood, "[t]he intended result of [? 701(a)] is to
restate the existing law as to the area-of,seviewable agency
action." AttRrney-Gneral'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 pur-
poses 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 in-
volves "a sensitive and inherently discretionary judgment
call," Department of Navy v. Egan, 484 U. S. ?, ?
(1988), whether it is the sort of decision that has tradition-
ally been nonreviewable, ICC v. Locomotive Engineers, 482
U. S. _____, (1987); Chaney, 470 U. S., at 832. and
whether review would have "disruptive practical conse-
quences," see Southern R. Co. v. Seaboard Allied Milling
Corp., 442 U. S. 444, 457 (1979). This explains 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 ac-
tion 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 op-
erates 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
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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 6, quoting Chaney, 470
U. S., at 830. The standard set forth in ? 102(c) of the Na-
tional 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 review-
ability 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 9, n. 8?the difference be-
tween the "no law to apply" test and what I consider the cor-
rect 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 opin-
ion (though, as will soon appear, that holding seems to be un-
done 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 color-
able constitutional claim." Ante, at 10, quoting from Bowen
v. Michigan Academy of Family Physicians, 476 U. S. 667,
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 Con-
stitution." But Article III, ? 1 provides that the judicial
power shall be vested "in one supreme Court, and in such in-
ferior 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; conse-
quently, the statute which does prescribe the limits of
their jurisdiction, cannot be in conflict with the Constitu-
tion, tuilesi it confers powers not enumerated therein."
Sheldon v. Sill, 8 How. 441, 449 (1850).
Thus, if there is any truth to the proposition that judicial
cognizance of constitutional claims cannot be eliminated, it
is, at most, that they cannot be eliminated from state courts,
and from this Court's appellate jurisdiction over cases from
state courts (or cases 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 re-
moval 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 constitu-
tional 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 prin-
ciple, since it provides that "(e)ach House shall be the Judge
of the Elections, Returns and Qualifications of its own Mem-
bers," 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 con-
cerning constitutional violations committed in these con-
texts ?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
"political questions." See, e. g., Coleman v. Miller, 307
U. S. 433, 453-446 (1939); Ohio ex rel. Bryant v. Akron Met-
ropolitan Park District, 281 U. S. -74, 79-80 (1930). The
doctrine of sovereign immunity?not repealed by the Con-
stitution, 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) witheut just compensation. See Schillinger v.
United States, 155 U. S. 163, 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 unre-
viewed, as we always are.
Perhaps, then, the Court means to appeal to a more limited
principle, that although there may be areas where judicial re-
view 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 counter-
intuitive principle, especially since Congress has in reality
been the principal determiner of the scope of review, for con-
stitutional claims as well as all other claims, through its
waiver of the pre-existing 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
bacicpay by a dismissed Secretary of State claiming that the
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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 Sec-
retary 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 immuta-
ble 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 commit-
ment of the issue to a coordinate political department."
Baker v. Carr, 369 U. S. 186. 217 (1962). We have recog-
nized "the insistence (evident from the number of Clauses de-
voted to the subject) with which the Constitution confers au-
thority over the Army, Navy, and militia upon the political
branches." United States v. Stanley, 483 U. S. ?, ?
(1987). We have also recognized 'the very delicate, plenary
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, 320 (1936). And finally, we have ac-
knowledged that "(ilt is impossible for a government wisely
to make critical decisions about foreign policy and national
defense without the benefit of dependable foreign intelli-
gence." Snepp v. United States, 444 U. S. 507, 512, n. 7
(1980) (per curiam). We have thus recognized that the "au-
thority 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 Execu-
tive Branch that will give that person access to such informa-
tion flows primarily from this constitutional investment of
power in the President and exists quite apart from any ex-
plicit congressional grant." Department of Nary v. Egan,
484 U. S., at ? (emphasis added).
I think it entirely beyond doubt that if Congress intended,
by ?701(a)(2) of the APA, to exclude judicial review of the
President's decision (through the Director of Central Intelli-
gence) 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 Na-
tional Security Act of 1947, 61 Stat. 498, states:
"Notwithstanding . . . the provisions of any other law,
the Director of Central Intelligence, may, in his discre-
tion, terminate the employment of any officer or em-
ployee of the Agency whenever he shall deem such termi-
nation necessary or advisable in the interests of the
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 "ex-
traordinary deference to the Director." Ante, at 8. Given
this statutory text, and given (as discussed above) that the
area to which the text pertains is one of predominant execu-
tive authority and of traditional judicial abstention, it is diffi-
cult to conceive of a statutory scheme that more clearly re-
fleets 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 8. 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 10. It seems to me the Court is attempt-
ing 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." Ibid. (emphasis added). But two
sentences later it says that Inlothing 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) assess-
ment 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 re-
spondent 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 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 ad-
visable 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 respond-
ent'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 pro-
ceedings in the District Court" which it commands, ante,
at 11, 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 assur-
ances, 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
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this exception comes from. As discussed at length earlier,
the Constitution assuredly does not require it. Nor the text
of the statute. True, it only gives the Director absolute dis-
cretion to dismiss Inlotwithstanding . . . the provisions of
any other kiw" (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 author-
ity of the courts to review the dismissal. And the Director
does not have the authority to dismiss in violation of the Con-
stitution, nor could Congress give it to him. The implication
of nonreviewability in this text, its manifestation that the ac-
tion is meant to be "committed to agency discretion," is no
weaker with regard to constitutional claims than nonconstitu-
tional 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 Com-
merce Clause. A citizen would much rather have his statu-
tory entitlement correctly acknowledged after a constitution-
ally 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 impor-
? ? tance may be in the case at hand, it can be asserted against
the action of the legislature itself, whereas a nonconstitu-
tional 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.
Even if we were to assume, however, contrary to all rea-
son, that every constitutional claim is ipso facto more wor-
thy, and every statutory claim less worthy, of judicial re-
view, 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
3tatute 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 legisla-
tive will in order to avoid constitutional adjudication." Com-
modity Futures Trading Comm'n v. Schar, 478 U. S. 833,
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 367
(quoting 38 U. S. C. ? 211(a)). We concluded that this stat-
ute did not bar judicial review of a challenge to the constitu-
tionality 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 judi-
cial 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 dif-
ferent" from that at issue in Johnson, and "extend[ed] to any
'action' seeking `to recover on any [Social Security] claim' ?
irrespective of whether resort to judicial processes is neces-
sitated by. . . allegedly unconstitutional statutory restric-
tions." 422 U. S., at 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 to-
day's decision by observing that "petitioner acknowledges
that Title VII claims attacking the hiring and promotion poli-
cies of the Agency are routinely entertained in federal court."
Ante, at 11, citing Reply Brief for Petitioner 13-14; Tr. of
Oral Arg. 9. Assuming that those suits are statutorily au-
thorized, 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 decision-
making process_ of our intelligent% '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 intelli-
gence agent. It is of course not just valid constitutional
claims that today's decision makes the basis for Judicial re-
view 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 Direc-
tor denies, for example, respondent's contention in the pres-
ent 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 dis-
covery process," ante, at 11, could justify the refusal to per-
mit 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 fea-
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UM/ 11-a VT -2. o.I,., mite untrea .mates LA W WELK 6- 14-88
A, ?
ture 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 uncer-
tain 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 as-
sumption that we are capable of preserving a sensible corn- '
mon law of judicial review.
I respectfully dissent.
CHARLES FRIED. Solicitor General (RICHARD K. WILLARD,
Asst. Atty. Gen., DONALD B. AYER. Dpty. Sol. Gen., PAUL J.
LARKIN JR., Asst. to the Sol. Gen., BARBARA L. HERWIG,
BARBARA C. BIDDLE, Justice Dept. attys., DAVID P. DO-
HERTY, Gen. Counsel. and R. BRUCE BURKE. Assoc. Gen. Coun-
sel, on the briefs) for petitioner: MARK H. LYNCH, Washington,
D.C. (WILLIAM H. ALLEN. ELLIOTT SCHULDER, STEVEN F.
REICH, COVINGTON & BURLING, JOHN A. POWELL, HE-
LEN HERSHKOFF, and STEVEN R. SHAPIRO. on the briefs) for
respondent.
No. 87-645
F. CLARK HUFFMAN, ET AL., PETITIONERS v.
WESTERN NUCLEAR, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF.
APPEALS FOR THE TENTH CIRCUIT
Syllabus
No. 87-645. Argued April 27, 1988 ?Decided June 15, 1988
Section 161(v) of the Atomic Energy Act of 1954 authorizes the Depart-
ment of Energy (DOE) to offer its services, for a fee, to convert natural
uranium into the enriched uranium used for fuel in commercial reactors,
and provides that DOE "shall" restrict its enrichment of foreign-source
uranium intended for use in domestic facilities "to the extent necessary
to assure the maintenance of a viable domestic uranium industry."
DOE has determined that the domestic uranium industry has not been
"viable" since 1983, and that the imposition of restrictions on DOE's
enrichment of foreign uranium would not assure viability. Respondent
domestic uranium mining and milling companies filed suit against peti-
tioners (DOE and some of its officers and employees) in Federal District
Court, alleging that DOE's failure to impose restrictions on the enrich-
ment of foreign uranium for use in domestic facilities constituted a viola-
tion of ? 161(v). Respondents moved for summary judgment based on
this claim, arguing that two facts?that the domestic industry was not
viable and that DOE imposed no restrictions on enrichment of foreign
uranium?established their entitlement to judgment as a matter of law
under ? 161(v). Petitioners filed a cross-motion for summary judgment,
contending that ? 161(v) did not require restrictions when those restric-
tions would not serve the statutory goal of assuring the maintenance of a
viable domestic industry. The court entered summary judgment for re-
spondents, holding that the statute gave DOE no discretion to determine
not to impose restrictions if the domestic industry was not viable. The
Court of Appeals affirmed the judgment in relevant part.
Held: Section 161(v) does not require DOE to restrict the enrichment of
foreign uranium where such restriction would not achieve the statutory
goal of "assur(ingl the maintenance of a viable domestic uranium indus-
try," for the statute ties the amount of restriction to be imposed to the
achievement of that goal.
825 F. 2d 1430, reversed and remanded.
BLACKMUN, J., delivered the opinion for a unanimous Court.
JUSTICE BLACKMUN delivered the opinion of the Court.
Section 161(v) of the Atomic Energy Act of 1954, as
amended, 78 Stat. 606, 42 U. S. C. ? 2201(v), provides that
the Department of Energy (DOE) shall restrict its enrich-
ment of foreign-source uranium intended for use in domestic
facilities "to the extent necessary to assure the maintenance'
of a viable domestie uranium industry." DOE has deter-
mined that the domestic uranium industry has not been "via-
ble"' since 1983, and that the imposition of restrictions on
the enrichment of foreign uranium would not assure viability.
In this case we consider whether ? 161(v) requires DOE to re-
strict the enrichment of foreign uranium, irrespective of
whether such restriction would make the domestic industry
viable. We conclude that it does not.
In 1964, as part of its efforts to move the nuclear-power in-
dustry into the private sector, Congress enacted the Private
Ownership of Special Nuclear Materials Act, Pub. L. 88-489,
78 Stat. 602 (Act), which amended the Atomic Energy Act of
1954 to permit privately owned utilities operating nuclear re-
actors also to own, for the first time, the uranium used for
fuel in their reactors. At the time of the statute's enact-
ment, DOE's predecessor, the Atomic Energy Commission
(AEC), was the only entity in the world with the facilities to
convert natural uranium into the enriched uranium used for
fuel in commercial reactors.= In ? 161(v), Congress ac-
counted for this de facto monopoly by authorizing the AEC to
offer "toll enrichment" services whereby utilities could obtain
unenriched uranium on the open market and have it enriched
by the AEC for a fee. It was to protect the uranium mining
and milling industry from foreign competition during the pe-
riod of transition from a government-controlled market to an
open one, that Congress included in. ? 161(v) the requirement
that the AEC, in written "criteria," restrict its enrichment of
foreign-source uranium for domestic use-"to the extent neces-
sary to assurethe Maintenance of a viable domestic uranium
industry."'
' A purist might regard the word "viable" as misused in this context. It
nevertheless appears in the statute and therefore, inescapably, it and its
variants are used throughout this opinion. See H. Fowler, Modern Eng-
lish Usage 679 (2d ed. 1965); W. Follett, Modern American Usage 344-345
(1966).
"Enrichment," in this context, refers to the process whereby the pro-
portion of the fissionable isotope 0-235 is increased from approximately
1% to approximately 3%. Natural, unenriched. uranium cannot be used to
produce commercial electric power.
'The relevant portion of ? 161(v) states that the. AEC is authorized to
offer toll enrichment services provided:
"That the Commission, to the extent necessary to assure the maintenance
of a viable domestic uranium industry, shall not offer such services for
source or special nuclear materials of foreign origin intended for use in a
utilization facility within or under the jurisdiction of the United States.
The Commission shall establish criteria in writing setting forth the terms
and conditions under which services provided under this subsection shall
be made available including the extent to which such services will be made
available for source or special nuclear material of foreign origin intended
for use in a utilization facility within or under the jurisdiction of the United
States: Provided, That before the Commission establishes such criteria.
the proposed criteria shall be submitted to the Joint Committee (on Atomic
Energy], and a period of forty-five days shall elapse while CongreLs is in
session . . . unless the Joint Committee by resolution in writing waives
the conditions of, or all or any portion of. such forty-five-day period."
42 U. S. C. ?.1 2201(v).
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