ROBERT M. GATES, ACTING DIRECTOR OF CENTRAL INTELLIGENCE,
PETITIONER v. JOHN DOE

   No. 86-1294

   In the Supreme Court of the United States

   October Term, 1986

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit

   The Solicitor General, on behalf of Robert M. Gates, Acting
Director of Central Intelligence, petitons for a writ of certiorari to
review the judgment of the United States Court of Appeals for the
District of Columbia Circuit in this case.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutory provisions involved
   Question presented
   Statement:
      A. Background
      B. The proceedings below
   Reasons for granting the petition
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (App. 1a-55a) is reported at
796 F.2d 1508.  The opinion of the district court (App. 59a-78a) is
reported at 601 F. Supp. 581.

                             JURISDICTION

   The judgment of the court of appeals (App. 79a-80a) was entered on
August 1, 1986.  A petition for rehearing was denied on October 9,
1986 (App. 81a).  On December 31, 1986, the Chief Justice extended the
time within which to file a petition for a writ of certiorari to and
including February 6, 1987.  The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   1. Section 102(c) of the National Security Act of 1947, 50 U.S.C.
403(c), provides as follows:

   Notwithstanding the provisions of section 7501 of title 5, or the
provisions of any other law, the Director of Central Intelligence may,
in his discretion, terminate the employment of any officer or employee
of the Agency whenever he shall deem such termination necessary or
advisable in the interests of the United States, but such termination
shall not affect the right of such officer or employee to seek or
accept employment in any other department or agency of the Government
if declared eligible for such employment by the Director of the Office
of Personnel Management.

   2. The Administrative Procedure Act, 5 U.S.C. 701, provides, in
pertinent part, as follows:

   (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.

                          QUESTION PRESENTED

   Whether the decision of the Director of Central Intelligence to
discharge an officer or employee of the Central Intelligence Agency
pursuant to the Director's authority under Section 102(c) of the
National Security Act of 1947, 50 U.S.C. 403(c), is judicially
reviewable under the Administrative Procedure Act, 5 U.S.C. (& Supp.
III) 701-706.

                               STATEMENT

                             A. Background

   This case stems from a decision by the Director of Central
Intelligence to discharge an employee, respondent John Doe, /1/ after
his nine-year career with the Central Intelligency Agency (CIA or
Agency).  /2/ Respondent began work as a clerk-typist, but he was
eventually promoted, after training, to a covert position as an
electronics technician.  Periodic fitness reports consistently rated
respondent as an excellent or an outstanding employee, and the CIA had
not expressed dissatisfaction with respondent's work or loyalty.  App.
3a.

   On January 28, 1982, respondent voluntarily informed an Agency
security officer that he was a homosexual.  As a result, the CIA
placed respondent on paid administrative leave beginning on February
2, 1982, pending an investigation.  On February 12 and 17, respondent
was interviewed at length by a polygraph officer about his
homosexuality and his risk to security.  The officer later informed
respondent that his test responses were truthful, including his
statement that he had not had sexual relations with foreign nationals
and that he had not disclosed classified information to any sexual
partners.  App. 3a-4a.

   The polygraph officer prepared a factual report based on the
interviews.  Respondent was allowed to review the report, and he
prepared a supplement.  On April 14, a CIA security officer informed
respondent that the Agency's Office of Security had determined that
the circumstances of his homosexuality posed a security threat, but
refused to elaborate.  Respondent maintained that he had received
conflicting explanations about the Agency's policy towards
homosexuals.  Two security officers had told respondent that his
homosexual activities violated Agency regulations, but the CIA
then-Deputy General Counsel told respondent's attorney that
homosexuality was a security concern that did not inevitably result in
dismissal.  Rather, according to the then-Deputy General Counsel, the
Agency considered this a security concern that would be evaluated on a
case-by-case basis.  App. 4a.

   On April 14, respondent was asked to resign, but he refused.  The
Officer of Security ultimately recommended to the Director that
respondent be dismissed.  Respondent's counsel submitted a letter
requesting that respondent be retained, but respondent's attorney
later received a letter from the then-Deputy General Counsel stating
that the Director had reviewed respondent's case and concluded that it
was "'necessary and advisable in the interests of the United States'"
to dismiss respondent from the Agency (App. 5a(quoting C.A. App. 31)).
 Respondent was told that the agency would give a positive
recommendation to any prospective employer.  Respondent was also
informed that if he applied for a job requiring a security clearance,
the Agency would inform the prospective employer that he had been
dismissed because his homosexuality posed a security threat.  A member
of the General Counsel's staff also informed respondent that he was
required to inform the Agency if he applied for a job requiring a
security clearance.  App. 5a-6a.

                       B. The Proceedings Below

   1. Respondent brought suit against petitioner in the United States
District Court for the District of Columbia.  Respondent alleged that
the CIA had dismissed him because of his homosexuality and that his
discharge violated the First, Fourth, Fifth, and Ninth Amendments;
the Administrative Procedure Act (APA), 5 U.S.C. (Supp. III) 702;  28
U.S.C. 1361;  and Section 102(c) of the National Security Act of 1947,
50 U.S.C. 403(c) (C.A. App. 46).  Respondent sought a declaratory
judgment that his dismissal was unlawful and an injunction requiring
the CIA to reinstate him to his former position (id. at 54).  In the
alternative, he sought reinstatement to administrative leave,
reconsideration of his security suitability for employment with the
Agency, and a variety of procedural rights, such as a statement of the
reasons for any future dismissal and an opportunity to contest any
adverse final determination (ibid.).

   Respondent filed a motion for summary judgment, which the district
court granted in part (App. 59a-78a).  The court ruled that respondent
had been unlawfully discharged, because the CIA did not follow its own
regulations in dismissing him (id. at 70a-74a).  The court also denied
petitioner's motion to dismiss respondent's complaint on the ground
that Section 102(c) of the National Security Act of 1947, 50 U.S.C.
403(c), precluded judicial review of petitioner's decision under the
APA, 5 U.S.C. (& Supp. III) 701-706 (App. 74a-77a).  The court did not
address respondent's substantive constitutuional claims, given its
ruling in his favor on procedural grounds (id. at 77a).

   2. a. By a divided vote, the court of appeals vacated the district
court's judgment and remanded the case for further proceedings (App.
1a-33a).  At the outset, the court ruled that Section 102(c) of the
National Security Act of 1947 did not "preclude judicial review" under
Section 10(a)(1) of the APA, recodified as 5 U.S.C. 701(a)(1), of the
Director's decision to dismiss an employee (App. 9a-14a).  It found
that nothing in the text or legislative history of Section 102(c)
expressly precludes judicial review, and noted "most importantly" that
Section 102(c) provides a standard governing the Director's decision
and the courts' review -- i.e., whether dismissal is "necessary or
advisable in the interests of the United States" (App. 12a).  The
court found that no statutory "framework" or "scheme" would be
disrupted by judicial review of the Director's decision to dismiss a
CIA employee (ibid.), and concluded that, while Congress had intended
to impose a different and more relaxed standard of review than the one
governing most federal employees, /3/ Congress did not intend to bar
review altogether (id. at 13a).

   The court also held that Section 102(c) did not "commi(t) to agency
discretion" under Section 10 (a)(2) of the APA, recodified as 5 U.S.C.
701(a)(2), the decision whether to dismiss a CIA employee (App.
15a-19a).  The court explained that the statutory standard did not
offer "absolutely no guidance" as to how the Director may exercise his
discretion, and undoubtedly prohibited discharge for an invalid
reason, such as race or hair color (id. at 16a).  In addition, the
court ruled that, while the courts could not second guess the wisdom
of the Director's decisions, the courts could and must "satisfy
(themselves)" that the Director's decisions bear "some relationship to
the interests of the United States" to ensure that the Director did
not base his decision on an impermissible factor (id. at 17a (emphasis
in original)).

   The court then turned to the merits of respondent's claims.  It
first determined that the Agency did not violate its regulations in
dismissing respondent (App. 19a-23a).  The court then held, noting
that the language of Section 102(c) left "the decision to terminate
largely to the expertise and judgment of the Director" (App. 24a),
that its review should be under an arbitrary and capricious standard.
Looking to the actions taken in this case (id. at 23a-32a), the court
stated that there were three possible explanations for the Director's
decision:  First, the Director may have intended to invoke Section
102(c) without giving any reasons at all for discharging respondent.
Second, the Director may have intended to discharge respondent as part
of a ban against the employment of all homosexuals.  And third, the
Director may have discharged respondent because his homosexuality
presented a security risk (App. 25a).  While the court found two of
these explanations did not justify further judicial review, /4/ it
found that the second possible explanation -- that respondent was
discharged because of a CIA policy barring the employment of all
homosexuals -- would give rise to an arguable claim that respondent's
discharge was unlawful (id. at 27a).  /5/ The court did not decide
which scenario had in fact occurred, however, but instead remanded the
case to the district court for further proceedings (id. at 32a).  /6/

   b. Judge Buckley dissented from the majority's ruling that the
Director's decision to dismiss a CIA remployee was subject to review
under the APA (App. 34a-55a).  /7/ Looking to both the language and
the legislative history, he found a clear intention to preclude review
under Section 10(a)(1) of the APA (App. 35a-45a).  When Section 102(c)
was enacted, federal personnel actions were not subject to judicial
review (App. 39a-40a).  Accordingly, the fact that Section 102(c)
imposed a different substantive standard for removal (substituting the
language "necessary or advisable in the interests of the United
States" for "such cause as will promote the efficiency of (the)
service") did not suggest that Congress contemplated judical review of
the Director's decisions (App. 40a).  This was particularly true.
Judge Buckley explained, since the opening clause of Section 102(c) --
"(n)otwithstanding the provisions of (the Lloyd-LaFollette Act), or
the provision of any other law" -- also deprived CIA employees of all
procedural protections in the administrative process (such as notice
of the charges and an opportunity to respond) that were available to
other federal employees (App. 40a-41a).  Accordingly, Congress could
not have intended to allow CIA employees to obtain through judicial
review procedures they were denied in the administrative process (id.
at 41a).

   Judge Buckley further pointed out (App. 41a-43a) that the majority
misread the statute as imposing an objective requirement applicable by
a court, when, in fact, it authorized action "whenever (the Director
of Central Intelligenc) shall deem such termination necessary or
advisable in the interests of the United States" (emphasis added).
Thus, properly construed, Section 102(c) requires only that the
Director be satisfied as to the necessity or advisability of the
action.  In addition, Judge Buckley found that the statutory
objectives of Section 102(c) and the nature of the administrative
action involved strongly militated in favor of precluding judicial
review (App. 43a-46a).  Congress's obvious purpose in exempting the
Director of the CIA from normal civil service requirements, he
concluded, was to allow him "unimpeded" control over personnel as a
"natural and necessary function of the extraordinary sensitivity that
surrounds every aspect of our national security operations" (id. at
43a-44a).

   For similar reasons, Judge Buckley found that Section 102(c)
committed to the Director's discretion under 5 U.S.C. 701(a)(2) the
decision whether to dismiss a CIA officer or employee (App. 46a-52a).
"One obvious purpose" of Section 102(c) "is to allow the Director to
act upon unsubstantiated impressions 'when he shall deem' it in the
national interest to do so" (App. 47a).  That judgment, Judge Buckley
concluded, was one that the courts are ill-equipped to second guess.

   Finally, Judge Buckley also took issue (App. 52a-54a) with the
suggestion that the Director's judgment would be subject to scrutiny
for arguable constitutional violations, because judicial review even
in those circumstances might undercut the Director's ability to carry
out his sensitive duties according to his fuller knowledge of the
"'harsh realities of the present day'" (id. at 53a, quoting CIA v.
Sims, 471 US. 159, 174 (1985)).  The only role for a court, he said,
was to determine whether the Director acted within the bounds of his
statutory authority, and the Director's statement that he "'determined
that the termination of Mr. Doe's employment was necessary and
advisable in the interests of the United States'" satisfied that
requirement (App. 54a-55a).

   c. The court of appeals rejected the Director's suggestion for
rehearing en banc by a 5-5 vote.  Judges Bork, Starr, Silberman,
Buckley, and Williams would have reheard the case en banc (App. 83a).

                   REASONS FOR GRANTING THE PETITION

   This case presents a question of exceptional public importance
regarding the ability of the Director of Central Intelligence to
maintain the confidentiality of the Agency's personnel policies and
actions.  Crucial to the effective operation of any intelligence
agency is the ability to protect the secrecy and integrity of the
intelligence process, including the reasons for the dismissal of
officers or employees in positions of unique trust and confidence
whose continued employment its director believes to be detrimental to
the security interests he is responsible for safeguarding.  As this
Court acknowledged in CIA v. Sims, 471 (U.S. 159, 170 (1985), without
such protection a service like the CIA "would be virtually impotent."
For that reason, Congress gave the Director "broad power to protect
the secrecy and integrity of the intelligence process" (ibid.) by
granting him the authority under Section 102(d)(3) of the National
Security Act of 1947, 50 U.S.C. 403(d)(3), to "protect() intelligence
sources and methods from unauthorized disclosure."

   The question here involves a subject inseparably linked to the one
at issue in Sims.  The ability to decide what officers and employees
of the CIA may have access to confidential information is an essential
facet of the ability to protect intelligence sources and methods from
unauthorized disclosure.  To ensure that the Director could make such
personnel decisions without divulging the Agency's decisionmaking
processes or policies and other types of confidential or sensitive
information in adversary proceedings, Congress enacted Section 102(c)
of the National Security Act of 1947, 50 U.S.C. 403(c).  That
provision vested in the Director the authority to dismiss summarily an
officer or employee of the CIA and excepted removal decisions from
judicial review under the APA.  Section 102(c) of the National
Security Act of 1947, like Section 102(d)(3), was therefore intended
to enable the Director to preserve the confidentiality and integrity
of the CIA's intelligence functions.

   The court of appeals' ruling that the Director's decisions may
nonetheless be reviewed under the APA will subvert Congress's
statutory scheme.  By opening up to judicial (and therefore public)
scrutiny /8/ the reasons why an officer or employee must be
discharged, the court of appeals' ruling will seriously undermine the
Director's ability to safeguard intelligence sources, methods, and
personnel from unauthorized revelation.  In causing the disclosure of
internal decisionmaking processes and policies that the Director has
been entrusted by Congress to keep confidential, the decision below
will also seriously hamper the CIA's ability to perform its statutory
responsibility to "shepherd and analyze a 'mass of information' in
order to safeguard national security in the postwar world." Sims, 471
U.S. at 170.  Review by this Court is therefore clearly warranted.

   1. The question whether Section 102(c) precludes judicial review
under the APA is entirely a matter of statutory construction.  /9/
That question must be resolved by looking to "its express language,
the structure of the statutory scheme, ihs objectives, its legislative
history, and the nature of the administrative action invoked." Block
v. Community Nutrition Institute, 467 U.S. 340, 345 (1984);  see also
Bowen v. Michigan Academy of Family Physicians, No. 85-225 (June 9,
1986), slip op. 5;  Lindahl v. OPM, 470 U.S. 768, 779 (1985);  Morris
v. Gressette, 432 U.S. 491, 501 (1977).  Here, those factors strongly
militate in favor of the conclusion that the Director has the
unreviewable authority to discharge an officer or employee of the CIA.

   a. The text of Section 102(c) itself shows that the Director's
decisions are unreviewable.  In sweeping terms, that provision
expressly invests the Director with "discretion" to dismiss "any"
officer or employee "whenever he shall deem such termination necessary
or advisable in the interests of the United States." The scope of that
provision shows that the Director's authority to remove an officer or
employee of the CIA is plenary.  See Ludecke v. Watkins, 335 U.S. 160,
165 (1948);  Brown v. Lane, 232 U.S. 598, 601 (1914);  Service v.
Dulles, 235 F.2d 215, 218 (D.C. Cir. 1956), rev'd on other grounds,
354 U.S. 363 (1957).  /10/ That authority is stated as an explicit
exception to "the provisions of" the Lloyd-LaFollette Act, 5 U.S.C.
(1940 ed.) 652 (subsequently replaced by the Civil Service Reform Act
of 1978, 5 U.S.C. 7501 et seq.), the then-existing version of the
federal civil service laws, "or the provisions of any other law."

   At the time that Section 102(c) was adopted, it was firmly settled
that a discharged federal employee could not obtain judicial review of
his removal unless a statute expressly provided for review.  /11/ The
Lloyd-LaFollette Act was the primary statute protecting federal
employees, /12/ and it offered certain protections, including removal
only "for such cause as will promote the efficiency of (the) service"
(5 U.S.C. (1940 ed.)652), and the rights to a written statement of
reasons for removal, notice and a copy of any charges, and an
opportunity to examine witnesses at a hearing within the discretion of
the removal officer.  Section 102(c) made clear that the Director's
authority to dismiss a CIA employee was not limited by the
Lloyd-LaFollette Act, and thus denied Agency employees the limited
rights available to other federal employees in the administrative
process.  Congress therefore could not have intended to allow CIA
employees to obtain those rights through judicial review of the
Director's decisions.  When read as a whole (see Philbrook v.
Glodgett, 421 U.S. 707, 713 (1975)), Section 102(c) emphatically shows
that Congress intended to "preclud(e) judicial review" of the
Director's decision to dismiss an officer or employee of the CIA.

   b. While the legislative history of the National Security Act of
1947, does not specifically address the meaning of Section 102(c),
/13/ the structure of the statutory scheme, its objectives, and the
nature of the agency action involved (Block v. Community Nutrition
Institute, 467 U.S. at 349) offer a "'persuasive reason to believe'"
(Morris v. Gressette, 432 U.S. at 501, quoting Abbott Laboratories v.
Gardner, 387 U.S. 136, 140 (1967)) that Congress intended to preclude
judicial review of the Director's decisions.

   The National Security Act of 1947 was adopted shortly after World
War II to remedy shortcomings in American intelligence before Pearl
Harbor and during the war.  See, e.g., S. Rep. 239, 80th Cong., 1st
Sess. 2 (1947):  H.R. Rep. 961, 80th Cong., 1st Sess. 3-4 (1947);  CIA
v. Sims, 471 U.S. 159, 170 (1985).  In creating the CIA, Congress was
acutely aware of the importance of secrecy to the ability to undertake
intelligence activities.  /14/ To ensure that the Agency could
maintain the secrecy of the intelligence it acquired, Congress vested
in the Director the responsibility "for protecting intelligence
sources and methods from unauthorized disclosure" (50 U.S.C.
403(d)(3), which gave the Director "broad power to protect the secrecy
and integrity of the intelligence process" (Sims, 471 U.S. at 170).
Shortly thereafter, in the Central Intelligence Agency Act of 1949,
ch. 227, Section 7, 63 Stat. 211, Congress exempted the CIA from any
federal law requiring the publication of "the organization, functions,
names, official titles, salaries, or numbers of personnel employed by
the Agency" (50 U.S.C. 403g), in order to protect what Congress knew
to be "the confidential nature of the Agency's functions" (H.R. Rep.
160, 81st Cong., 1st Sess. 7 (1949);  see S. Rep. 106, 81st Cong., 1st
Sess. 7 (1949)).

   Without protection for the secrecy and integrity of the
intelligence process, as this Court recognized in CIA v. Sims, 471
U.S. at 170, the CIA "would be virtually impotent." Its officers and
employees have access to classified information, the identities of
other personnel in the CIA or in the intelligence services of friendly
nations and American citizens or foreign nationals willing to share
information with the Agency, the methods used to gather intelligence,
and specific intelligence operations.  The unauthorized disclosure of
this information, innocently or otherwise, can not cause severe,
irreparable injury to the CIA's ability to perform its statutory
duties and to other countries whose interests are allied with ours,
but also can imperil the persons who perform the Agency's functions.
See Sims, 471 U.S. at 171-172;  Haig v. Agee, 453 U.S. 280, 283-286 &
nn.1-7, 308 & n.59 (1981);  Snepp v. United States, 444 U.S. 507,
512-513 & nn.7-8 (1980).  To prevent those harms and to allow the CIA
to function effectively, Congress gave the Director authority in 50
U.S.C. 403(d)(3) and 403g, to maintain the confidentiality of the
Agency's intelligence-gathering operations.

   Section 102(c) must be read aginst that background.  At bottom, it
permits the Director to make personnel decisions that enable the CIA
to protect intelligence sources and methods.  /15/ Congress's intent
was to grant the Director plenary authority to make personnel
decisions in a manner consistent with the Agency's mission "to
shepherd and analyze a 'mass of information' * * * to safeguard
national security in the postwar world" (Sims, 471 U.S. at 170).  For
"reasons * * * too obvious to call for enlarged discussion" (ibid.),
the ability to determine who shall have access to classified
intelligence by virtue of employment with the CIA is an essential
component of the responsibility to protect intelligence sources and
methods.  Other statutes grant the Secretary of Defense similar
authority summarily to discharge an officer or employee of the
National Security Agency, 50 U.S.C. 833(a), /16/ and the Defense
Intelligence Agency, 10 U.S.C. (Supp. III) 1604 (e)(1).  /17/ Congress
granted the Secretary that authority to enable him to regulate
employees' access to sensitive information.  /18/ In so doing,
Congress relied on the similar authority granted to the Director of
Central Intelligence by Section 102(c) of the National Security Act of
1947.  /19/ Accordingly, Section 102(c) should be construed in a
manner consistent with the structure of the "statutory scheme" and
objectives of these closely related provisions (Block v. Community
Nutrition Institute, 467 U.S. at 345).

   Achievement of these clear statutory objectives is imperiled by the
majority decision below that, once an employee offers "a basis for
suspicion that (he was) terminated * * * for an impermissible reason"
(App. 26a), a court must "satisfy (itself) that the termination has
some relationship to the interests of the United States" (id. at 17a
(emphasis in original)).  Such questions cannot be resolved without
the disclosure of sensitive information that Congress did not want
publicly revealed.  Cf. Weinberger v. Catholic Action of Hawaii/Peace
Education Project, 454 U.S. 139, 146-147 (1981) (quoting Totten v.
United States 92 U.S. 105, 107 (1875)) ("we have held that 'public
policy forbids the maintenance of any suit in a court of justice, the
trial of which would inevitably lead to the disclosure of matters
which the law itself regards as confidential, and respecting which it
will not allow the confidence to be violated'").  It may require
discussion of aspects of the employee's performance which are
themselves matters of security concern.  Finally, disclosure of the
CIA's personnel practices themselves may allow our adversaries to
defeat intelligence gathering operations by infiltration or other
means.

   2. The majority below also erred in ruling (App. 16a-19a) that the
Director's decision to discharge a CIA officer or employee was not
"committed to agency discretion by law" under the APA by Section
102(c) of the National Security Act of 1947.  The language of Section
102(c) in this regard could not be clearer.  It authorized the
Director "in his discretion" to dismiss any officer or employee
"whenever he shall deem such termination necessary or advisable in the
interests of the United States" (emphasis added).  The most natural
reading of that provision is that the Director has the absolute
discretion to decide whether an employee should be retained or
dismissed.  Se Ludecke v. Watkins, 335 U.S. at 165;  Brown v. Lane,
232 U.S. at 601;  Service v. Dulles, 235 F.2d at 218;  compare
Falkowski v. EEOC, 764 F.2d 907, 911 (D.C. Cir. 1985), cert. denied,
No. 85-1894 (June 30, 1986) (Attorney General has unreviewable
discretion to decide whether to provide counsel to government
employees in private litigation pursuant to his authority to attend to
"the interests of the United States" under 28 U.S.C. (Supp. III) 517.
Section 102(c) of the National Security Act of 1947 therefore fits
squarely within the APA exception for agency action committed to
agency discretion by law.

   The reasons given in Sims why the courts -- with "little or no
background in the delicate business of intelligence gathering" (471
U.S. at 176) -- are ill-equipped to review the Director's judgments
whether to reveal intelligence sources and methods are equally
applicable here.  See ibid.  ("a court's decision whether an
intelligence source will be harmed if his identity is revealed will
often require complex political, historical, and psychological
judgments");  cf. Heckler v. Chaney, 470 U.S. 821, 831-832 (1985).
Moreover, fully to understand the Director's decisions would require a
court to "be familiar with 'the whole picture'" (Sims, 471 U.S. at
179), and disclosure of the necessary information would compromise the
very interests that 50 U.S.C. 403(d)(3) and 403g were adopted to
protect.  Accordingly, as Judge Buckley summarized (App. 47a (emphasis
in originial)), "the operative requirement (in Section 102(c)) is that
Director believe that the termination safeguards the interests of the
United States and not (as the majority suggests) that it do so in
fact."

   3. The court of appeals was troubled by the prospect of adopting a
construction of Section 102(c) of the National Security Act of 1947
that would foreclose judicial review under the APA of respondent's
constitutional claims (App. 14a n.27, 16a-17a & n.33, 18a & n.35, 24a;
 id. at 33a (Ginsburg, J., concurring)).  This court has often noted
that a serious constitutional question would be presented by a statute
that barred a party from asserting a constitutional challenge to
governmental action.  For that reason, when possible the Court has
construed a statute in a manner that does not foreclose a party from
raising a constitutional claim.  E.g., Bowen v. Michigan Academy of
Family Physicians, slip op. 14 n.12;  Johnson v. Robison, 415 U.S.
361, 366-367 (1974).  At the same time, the Court has also made clear
that a statute may not be interpreted in a manner tantamount to
judicial amendment simply to avoid confronting a constitutional
question.  A constitutional issue can be avoided only when it is
"fairly possible" to interpret a statute in another manner.  E.g.,
CFTC v. Schor, No. 85-621 (July 7, 1986), slip op. 6;  Heckler v.
Mathews, 465 U.S. 728, 742-743 (1984);  Crowell v. Benson, 285 U.S.
22, 62 (1932).

   Such an interpretation is not possible here.  The text of Section
102(c), which was adopted a year after the enactment of the APA, does
not distinguish between constitutional and nonconstitutional claims.
The purpose of Section 102(c) is also indifferent to the various types
of claims that can be presented.  Disclosure of the facts and
rationale underlying the Director's actions will damage the CIA's
intelligence functions regardless of the ground on which the
Director's decision is challenged.  Section 102(c) therefore cannot
fairly be construed as being limited to nonconstitutional challenges
to the Director's exercise of his authority.

   So read, Section 102(c) is a constitutional exercise of Congress's
authority to protect the nation's security.  The government has a
surpassing interest in protecting from public disclosure the
Director's personnel decisions, which necessarily relate to the
national security.  As the Court explained in Haig v. Agee, 453 U.S.
at 307, "(i)t is 'obvious and unarguable' that no governmental
interest is more compelling than the security of the Nation," and
"(m)easures to protect the secrecy of our Government's foreign
intelligence operations plainly serve these interests." See also
Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964);  Cole v.
Young, 351 U.S. 536, 546 (1956).  The Court has also acknowledged,
with particular reference to the CIA, that "(t)he Government has a
compelling interest in protecting both the secrecy of information
important to our national security and the appearance of
confidentiality so essential to the effective operation of our foreign
intelligence service." Snepp, 444 U.S. at 509 n.3;  see also Sims, 471
U.S. at 175;  Agee, 453 U.S. at 307;  compare Chicago & Southern Air
Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948).
Given "the harsh realities of the present day" (Sims, 471 U.S. at 174)
Congress's authority to protect the CIA's intelligence functions is at
its apogee.  To achieve that goal, Congress may invoke its broad power
to define and regulate the jurisdiction of the lower federal courts.
/20/

   Section 102(c) is also narrowly limited to employment voluntarily
undertaken with the CIA.  Its last clause states that dismissal from
the CIA does not itself bar a former employee from obtaining other
federal employment.  See 10 U.S.C. (Supp. III) 1604 (e)(2);  50 U.S.C.
833(b) (to the same effect).  Cf. Snepp, 444 U.S. at 509 n.3
(requiring Agency employees to submit to prepublication review was "an
'entirely appropriate' exercise of the CIA Director's statutory
mandate" to protect intelligence sources and methods).  Given these
considerations, Section 102(c) may validly be applied to foreclose
judicial review of even constitutional claims under the APA.  /21/

   4. As Judge Buckley explained (App. 41a-43a, 54a-55a), the majority
opinion below cannot be reconciled with several earlier decisions of
the District of Columbia Circuit.  In Service v. Dulles, involving a
virtually identical grant of authority to the Secretary of State, /22/
the court ruled that the judicial "'function is limited to determining
whether any procedural requirement of the statute was violated in (an
employee's) discharge'" (235 F.2d at 218).  Once a court concluded,
however, that the Secretary had met the "'one procedural requirement'"
imposed by the statute -- i.e., that the Secretary determine that it
was "in the interests of the United States" to dismiss an employee --
judicial review came to an end (ibid.).  /23/ The majority opinion in
this case made no attempt to square its holding with the decision in
Service.  See also Scher v. Weeks, 231 F.2d 494 (D.C. Cir.), cert.
denied, 351 U.S. 973 (1956) (concluding that Section 304 of the Act of
July 10, 1952, ch. 65, 66 Stat. 567, which authorized the Secretary of
Commerce to dismiss an employee "whenever he shall deem such
termination necessary or advisable in the best interests of the United
States," was satisfied and was constitutional).  Similarly, in Torpats
v. McCone, 300 F.2d 914 (D.C. Cir.), cert. denied, 371 U.S. 886
(1962), which also involved Section 102(c) of the National Security
Act of 1947, plaintiff alleged that the Director's decision exceeded
his statutory authority.  The court did not require the Director to
explain why he deemed it "in the interests of the United States" to
discharge the employee and simply concluded that the Director had
acted within his statutory authority (300 F.2d at 915).  /24/

   The opinion of the court below is also inconsistent with decisions
of the Court of Claims, which have been adopted as precedent by the
Federal Circuit.  /25/ See Baker v. United States, 224 Ct. Cl. 760
(1980), cert. denied, 450 U.S. 1040 (1981).  In Baker, several CIA
employees were discharged as part of a reduction in force under a
regulation implementing Section 102(c).  They brought suit alleging,
inter alia, dismissal for reasons other than "the interests of the
United States" and contrary to the Verterans' Preference Act of 1944,
5 U.S.C. 3502.  The Court of Claims held that they had failed to state
a claim because Section 102(c) "'gave the Director of the Central
Intelligence Agency the absolute right to terminate any employee
whenever he deemed it necessary or advisable.'" 224 Ct. Cl. at 762
(quoting Rhodes v. United States, 156 Ct. Cl. 31, 36, cert. denied,
371 U.S. 821 (1962) (holding that a former CIA employee could not
challenge his dismissal on the ground that it violated the Verterans'
Preference Act of 1944)).  /26/

   This conflict between the court below and Federal Circuit precedent
has important practical consequences.  Former CIA employees seeking
monetary relief, such as back pay, must litigate their claims in the
Federal Circuit.  /27/ By contrast, CIA employees, like respondent,
/28/ seeking non-monetary relief, such as reinstatement, may litigate
their claims in the District of Columbia Circuit.  Accordingly, review
by this Court is necessary to resolve this conflict of particular
significance.

   5. As Congress has indicated by relying on the "precedent" of
Section 102(c) of the National Security Act of 1947 to adopt similar
statutes for the National Security Agency and the Defense Intelligence
Agency, the Director of Central Intelligence must have the authority
to act swiftly to dismiss from the CIA officers or employees whom the
Director determines should no longer be privy to the confidential
information that the Director is sworn to protect.  The Director
cannot be required to disregard the reality that some employees may be
susceptible to blackmail or to other forms of influence or control by
unfriendly foreign governments, or that the disclosure of the reasons
underlying his decisions can have serious and irreparable
repercussions for our intelligence services.

   Moreover, review by this Court is needed at the present time
because the court of appeals' decision "would force the Director now
or in the future to risk the public airing of agency policies and
concerns as well as the particular information upon which a specific
termination decision is based" (App. 50a (Buckley, J., dissenting)).
Indeed, the ill effects of the court of appeals' ruling will be felt
both immediately and recurrently.  The immediate effect will be an
inappropriate and seriously intrusive inquiry into the CIA's
employment policies and practices.  The decision whether to disclose
that information, however, is precisely the type of matter that
Congress has left to the Director.  Indeed, in a particular case the
Director may need to create the impression that his decision rested
solely on one factor (such as inefficiency) to avoid publicizing the
far more sensitive basis for an employee's dismissal (such as a breach
of security).  The court of appeals' decision also creates the risk
that the Director will be forced to reveal confidential information in
future cases once "a plaintiff offers a basis for suspicion that the
Director terminated (his) employment for an impermissible reason"
(App. 26a).  By holding that the Director's decisions may be reviewed
under the APA, the court of appeals has created the risk that our
intelligence process will be seriously damaged in this or in future
cases.

   Review by this Court at this time is clearly warranted.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   DONALD B. Ayer

      Deputy Solicitor General

   PAUL J. JARKIN, JR.

      Assistant to the Solicitor General

   BARBARA L. HERWIG

   BARBARA C. BIDDLE

      Attorneys

   DAVID P. DOHERTY

      General Counsel

   R. BRUCE BURKE

      Associate General Counsel Central Intelligence Agency

   FEBRUARY 1987

   /1/ Respondent has at all times proceeded under a pseudonym because
his status as a CIA employee cannot be publicly acknowledged.

   /2/ The facts are discussed in the opinions of the courts below.
At this stage of the case, the facts are undisputed.  The Agency did
not contest respondent's factual assertions.  Instead, the Agency
stated only that respondent's assertions were not material insofar as
they were inconsistent with the Agency's own statement of material
facts not in dispute (C.A. App. 42).

   /3/ The court noted the reference in Section 102(c) to the more
rigorous statutory provisions allowing termination of most federal
employees "only for such cause as will promote the efficiency of the
service" (5 U.S.C. 7513(a)) (App. 13a).

   /4/ Although the court found it "unlikely" that respondent was
discharged for reasons having nothing to do with his homosexuality
(App. 25a), it ruled that, if the district court found that to be true
and "the Director intended to invoke section 102(c) without reasons in
this case," respondent could not challenge the Director's decision to
dismiss him (App. 26a).

   The court stated further that if the district court found
respondent to have been dismissed because his homosexuality posed a
security risk, respondent would have an arguable claim that the Agency
had unlawfully deprived him of a liberty interest in past or future
employment by damaging his reputation.  Such action would require that
he receive an opportunity "to refute the charges and 'clear his name'"
(App. 31a (footnote omitted)).  In that event, however, respondent's
claims would also fail, because the Agency had provided him with a
meaningful opportunity to contest any allegation that his
homosexuality posed a security risk (id. at 31a-32a).

   /5/ If the district court found that to be true, the court
explained, respondent would have an "arguable" constitutional claim,
because Bowers v. Hardwick, No. 85-140 (June 30, 1986), and Dronenburg
v. Zech, 741 F.2d 1388 (D.C. Cir. 1984), did not address
discrimination on the basis of homosexual orientation, rather than
homosexual conduct (App. 27a (emphasis in original)).  In any event,
the Director would have to justify why such a policy was "'necessary
or advisable in the interests of the United States'" (ibid.).

   /6/ Judge Ginburg joined the majority opinion but also wrote a
brief separate concurrence (App. 33a).

   /7/ Judge Buckley concurred in the majority's rulings that the CIA
did not violate its own regulations in discharging respondent and that
respondent had not been deprived of a liberty interest without due
process (App. 34a).

   /8/ It is unclear from the decision of the court of appeals how
frequently the Director's decisions are likely to be subject to
judicial re-evaluation.  By its own terms, though, the decision allows
such review at least when the plaintiff brings forth some "concrete
evidence" that his termination raises an "arguable infringement of
constitutional rights" or "the possibility that the Director has acted
in excess of statutory authority," that is, other than as 'necessary
or advisable in the interests of the United States" (App. 24a, 26a
(emphasis in original)).

   /9/ In his amended complaint, respondent also sought relief under
28 U.S.C. 1361 and alleged jurisdiction under 28 U.S.C. 1331 (C.A.
App. 46).  Although we believe that neither statute provides a basis
for judicial review of the Director's decision to dismiss a CIA
employee, neither the district court nor the court of appeals
addressed these provisions.

   /10/ In Udecke v. Watkins, the President promulgated a regulation
pursuant to his authority under the Alien Enemies Act of 1798, ch. 58,
1 Stat. 570 et seq., directing the removal from the United States of
all alien enemies "'who shall be deemed by the Attorney General to be
dangerous to the public peace and safety of the United States.'" 335
U.S. at 163 (citation omitted).  The Court explained that "removal was
contingent not upon a finding that in fact an alien was Dangerous,'"
because (t)he President was careful to call for the removal of aliens
deemed by the Attorney General to be dangerous.'" Id. at 165.  In
Brown v. Lane, a statute authorized the Secretary of the Interior to
remove from an Indian tribal council "'any member or members thereof
for good cause, to be by him determined.'" 232 U.S. at 599 (citation
omitted).  This court concluded that the statute "plainly vested the
Secretary of the Interior with the power and discretion to remove" a
person from the council without the need to offer notice or a hearing.
 Id. at 601.  Service v. Dulles involved a statute virtually identical
to Section 102(c).  The court of appeals held that it granted the
Secretary of State complete discretion to remove a State Department
employee once the Secretary concluded that removal was in the
interests of the United States.  235 F.2d at 218.  See page 25 & note
22, infra.

   /11/ E.g., Keim v. United States, 177 U.S. 290, 293-294 (1900)
(review unavailable in an action for damages);  White v. Berry, 171
U.S. 366, 377-378 (1898) (review unavailable in an action for
reinstatement);  see United States v. Testan, 424 U.S. 392, 406
(1976);  Sampson v. Murray, 415 U.S. 61, 69-71 (1974);  see generally
In re Hennen, 38 U.S. (13 Pet.) 230, 259-260) (1839).

   /12/ The Veterans' Preference Act of 1944, 5 U.S.C. (1946 ed.) 863,
protected veterans in federal employment by extending the
Lloyd-LaFollett Act's substantive and procedural protections in
several different ways.  See Bush v. Lucas, 462 U.S. 367, 385 n.25
(1983).  The Director's authority would not have been limited by that
statute, however, because Section 102(c) of the National Security Act
of 1947 excepted "the provisions of any other law" in addition to the
Lloyd-LaFollette Act.

   /13/ In 1983, however, as part of an intelligence appropriations
act Congress authorized the Director to set minimum and maximum age
limits for an original appointment to an operational position within
the Agency.  50 U.S.C (Supp. III) 403f(f).  In so doing, Congress
stated that the language in that amendment "is similar to the language
conferring special termination authority upon the Director under
subsection 102(c) of the National Security Act of 1947 (50 U.S.C.
403(c)).  The courts have uniformly held that such language confers
upon the Director authority to be exercised in his exclusive
discretion, and that the exercise of such authority is not subject to
review, judicially or otherwise." S. Rep. 98-77, 98th Cong., 1st Sess.
6-7 (1983).

   /14/ The Committees of both Houses went into executive session to
consider the proposed legislation.  Sims, 471 U.S. at 171 n.15, 172.
(The executive session of the House Hearings were declassified only in
1982.) The witnesses who testified before Congress also brought home
the importance of confidentiality.

   High-ranking intelligence officials advised Congress of the perils
facing intelligence sources whose identities were revealed.  National
Security Act of 1947:  Hearing on H.R. 2319 Before the Comm. on
Expenditures in the Executive Departments, 80th Cong., 1st Sess. 10-11
(1947) (statement of General Vandenberg) (hereinafter cited as Secret
House Hearings);  id. at 20 (statement of Allen W. Dulles);  id. at 59
(statement of Rear Adm. Inglis).  In addition, Congress was informed
of the risks both from using nongovernment personnel to gather
intelligence and from the infiltration of our intelligence networks by
foreign agents, or by their supporters.  Id. at 10-11 (statement of
General Vandenberg);  id. at 50 (statement of Col. Grombach).
Significantly, one expert recommended that a member of the armed
forces be appointed as Director of the Agency during its early years
of operation, because that would overcome the initial reluctance of
the military to share intelligence with civilians, who could not be
court-martialed for improperly divulging information.  Id. at 8-9
(colloquy between Reps. Dorn and Hoffman and General Vandenberg).

   /15/ See Snepp, 444 U.S. at 512 ("The continued availability of * *
* (intelligence) sources depends upon the CIA's ability to guarantee
the security of information that might compromise them and even
endanger the(ir) personal safety.").

   /16/ 50 U.S.C. 833(a) provides as follows:

         Notwithstanding sections 7512 and 7532 of title 5, or any
      other provision of law, the Secretary (of Defense) may terminate
      the employment of any officer or employee of the (National
      Security) Agency whenever he considers that action to be in the
      interest of the United States, and he determines that the
      procedures prescribed in other provisions of law that authorize
      the termination of the employment of that officer or employee
      cannot be invoked consistently with the national security.  Such
      a determination is final.

   /17/ 10 U.S.C. (Spp. III) 1604(e)(1) provides as follows:

         Notwithstanding any other provision of law, the Secretary of
      Defense may, during fiscal years 1985 and 1986, terminate the
      employment of any civilian officer or employee of the Defense
      Intelligence Agency whenever he considers that action to be in
      the interests of the United States and he determines that the
      procedures prescribed in other provisions of law that authorize
      the termination of the employment of such officer or employee
      cannot be invoked in a manner consistent with the national
      security.  The decisions of the Secretary under this paragraph
      are final and may not be appealed or reviewed outside the
      Department of Defense.  The Secretary of Defense shall promptly
      notify the Permanent Select Committee on Intelligence of the
      House of Representatives and the Select Committee on
      Intelligence of the Senate whenever this termination authority
      is exercised.

   Section 502 of the Intelligence Authorization Act for Fiscal Year
1987, Pub. L. No. 99-569 (Oct. 27, 1986), extended the Secretary's
summary dismissal authority under 10 U.S.C. (Supp. III) 1604(e)(1) to
fiscal years 1986 and 1987.  H.R. Conf. Rep. 99-952, 99th Cong., 2d
Sess. 24 (1986);  H.R. Rep. 99-960, 99th Cong., 2d Sess. Pt.1, at
20-21 (1986);  S.Rep. 99-307, 99th Cong., 2d Sess.7-8 (1986).  Section
504 of that Act also granted the Secretary the same summary dismissal
authority for fiscal year 1987 over "any civilian intelligence officer
or employee of a military department." H.R. Rep. 99-790, Pt. 1, supra,
at 25.

   /18/ For 50 U.S.C. 833(a), see S. Rep. 926, 88th Cong., 2d Sess.
(1964) ("'This grant of authority recognizes the principle that the
responsibility for control of those persons who are to have access to
highly classified information should be accompanied by commensurate
authority to terminate their employment when their retention and
continued access to extremely sensitive information is not clearly
consistent with the national security.'");  H.R. Rep. 108, 88th Cong.,
1st Sess. 4 (1963) (same);  ibid. ("The section enables the Secretary
to terminate employment, when necessary, without jeopardizing the
integrity and security of Agency activities through compliance with
prolonged adversary proceedings.");  id. at 5 (the Secretary's
decision to invoke these procedures "shall be final and the basis for
the determination will not be subject to review in any administrative
or judicial proceeding");  H.R. Rep. 2120, 87th Cong., 2d Sess. 3, 4
(1962) (same statements as in above cited Senate and House Reports).

   For 10 U.S.C. (Supp. III) 1604(e)(1), see S. Rep. 98-481, 98th
Cong., 2d Sess. 8 (1984) (noting that "the protection of highly
classified information is of paramount importance)" and that "(t)he
ability to meet security requirements and minimize the risk of
compromise of dedicated intelligence personnel must be an important
feature of the personnel management system").

   /19/ See S. Rep. 926, supra, at 2 ("It is not novel for Congress to
legislate the power of summary dismissal.  In fact, Congress granted
this same power to the Director of the Central Intelligence Agency in
the National Security Act of 1947.");  H.R. Rep. 108, supra, at 4
("Moreover, statutory precedent exists.  Similar authority to that
granted in the bill has been vested by the Congress in the Director of
Central Intelligence in section 102(c) of the National Security Act of
1947.  The activities of the National Security Agency undoubtedly
require equivalent protection from disclosure or compromise.");  H.R.
Rep. 2120, supra, at 4 (same);  S. Rep. 98-481, supra, at 8-9 ("CIA
management can exercise broad discretion for termination of employees,
* * * Like CIA, NSA * * * has special termination authority peculiar
to its needs.  The Defense Intelligency Agency should be able to
operate its personnel management system on an equal footing with its
two sister intelligence agencies.").

   /20/ E.g., U.S. Const. Art. III, Section 1;  South Carolina v.
Regan, 465 U.S. 367, 395-396 (1984) (O'Connor, J., concurring in the
judgment);  Lockerty v. Phillips, 319 U.S. 182, 187-189 (1943);
Sheldon v. Sill, 49 U.S. (8 How.) 441, 448-449 (1850);  see Ex parte
McCardle, 74 U.S. (7 Wall.) 506 (1868);  cf. Ludecke v. Watkins, supra
(upholding the President's unreviewable power under the Alien Enemies
Act of 1798, ch. 58, 1 Stat. 570 et seq., to detain and deport
potentially dangerous aliens during time of war).  Significantly, the
Constitution itself provides for suspension of the writ of habeas
corpus when "in Cases of Rebellion or Invasion the public Safety may
require it." U.S. Const. Art. I, Section 9. Cl.2.

   /21/ Although we have not presented it as a separate question, we
disagree with the majority below that respondent could state an
"arguable" constitutional claim if he were dismissed pursuant to a CIA
personnel policy barring the employment of all homosexuals (App. 27a
(emphasis in original)).  The majority below conceded that this
Court's decision in Bowers v. Hardwick, supra, and the District of
Columbia Circuit's own earlier decision in Dronenburg v. Zech, supra,
make clear that "homosexual conduct is not constitutionally protected"
(App. 27a (emphasis in originial)).  Respondent stated in his amended
complaint, however, that he "has engaged in homosexual activities
since 1976" (C.A. App. 47).  Judge Buckley was therefore correct in
concluding (App. 52a-54a) that the majority's effort to find an
arguable constitutional violation was strained.

   /22/ The Department of State Appropriations Act of 1952, ch. 533,
Section 103, 65 Stat. 581 (expired at the close of fiscal year 1952).
That statute provided, in pertinent part, that "(n)otwithstanding the
provisions of (the Lloyd-LaFollette Act), or the provisions of any
other law, the Secretary of State may, in his absolute discretion, * *
* terminate the employment of any officer or employee of the
Department of State or of the Foreign Service of the United States
whenever he shall deem such termination necessary or advisable in the
interests of the United States." See App. 41a-42a;  Service v. Dulles,
235 F.2d at 216 n.1.

   /23/ This Court subsequently reviewed the Secretary's decision to
determine whether he had followed the State Department's discretionary
regulations.  354 U.S. at 372-382.  In this case, the court of appeals
specifically held that the Director did not fail to comply with the
Agency's own regulations.  App. 19a-23a.

   /24/ The majority in the court below sought to distinguish Torpats
on the ground tha- the court there did not refuse to review the
Director's decision to dismiss a CIA employee and instead ruled that
the Director had acted within his statutory authority (App. 14a n.26,
18a-19a).  In light of the District of Columbia Circuit's earlier
decisions in Service v. Dulles and Scher v. Weeks, however, the best
reading of the decision in Torpats v. McCone, supra, is that the court
concluded that the Director had the plenary authority under Section
102(c) to discharge CIA employees.

   /25/ South Corp. v. United States, 690 F.2d 1368, 1370 (Fed. Cir.
1982 (en banc).

   /26/ To be sure, the plaintiffs in Baker did not allege that their
dismissal was unconstitutional, and the Court of Claims did not
therefore address that claim.  Nonetheless, unlike the court below,
the Court of Claims recognized that the Director has plenary authority
under Section 102(c) to dismiss an employee, and did not require the
Director to explain why the plaintiffs' discharge was "in the
interests of the United States," even though the plaintiffs alleged
that the Director had exceeded his authority.

   /27/ A claim for back pay in excess of $10,000 must be brought in
the Claims Court (28 U.S.C. 1346(a)(2), 1491), and an appeal of the
judgment is to the Federal Circuit (28 U.S.C. 1295(a)(1)).  A back pay
claim seeking $10,000 or less may be brought in the Claims Court or in
district court, but any appeal is to the Federal Circuit (28 U.S.C.
1295 (a)(1);  28 U.S.C. 1295(a)(2)).

   /28/ Respondent sought back pay in his original complaint, but he
omitted a claim for back pay in his amended complaint (see App. 60a
n.2).  Respondent has therefore waived any back pay claim in this
case.