Webster v. Doe
Webster v. Doe
Opinion of the Court
delivered the opinion of the Court.
Section 102(c) of the National Security Act of 1947, 61 Stat. 498, as amended, provides that:
“[T]he Director of Central Intelligence may, in his discretion, terminate the employment of any officer or employee of the Agency whenever he shall deem such termination necessary or advisable in the interests of the United States_” 50 U. S. C. § 403(c).
In this case we decide whether, and to what extent, the termination decisions of the Director under § 102(c) are judicially reviewable.
I
Respondent John Doe was first employed by the Central Intelligence Agency (CIA or Agency) in 1973 as a clerk-typist. He received periodic fitness reports that consistently rated him as an excellent or outstanding employee. By 1977, respondent had been promoted to a position as a covert electronics technician.
On April 14, 1982, a CIA security agent informed respondent that the Agency’s Office of Security had determined that respondent’s homosexuality posed a threat to security, but declined to explain the nature of the danger. Respondent was then asked to resign. When he refused to do so, the Office of Security recommended to the CIA Director (petitioner’s predecessor) that respondent be dismissed. After reviewing respondent’s records and the evaluations of his subordinates, the Director “deemed it necessary and advisable in the interests of the United States to terminate [respondent’s] employment with this Agency pursuant to section 102(c) of the National Security Act. . . -”
Respondent then filed an action against petitioner in the United States District Court for the District of Columbia.
Petitioner moved to dismiss respondent’s amended complaint on the ground that § 102(c) of the National Security Act (NSA) precludes judicial review of the Director’s termination decisions under the provisions of the APA set forth in 5 U. S. C. §§701, 702, and 706 (1982 ed., Supp. IV). Section 702 provides judicial review to any “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” The section further instructs that “[a]n action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.” The scope of judicial review under §702, however, is circumscribed by § 706, see n. 3, supra, and its availability at all is predicated on satisfying the requirements of § 701, which provides:
“(a) This chapter applies, according to the provisions thereof, except to the extent that—
“(1) statutes preclude judicial review; or
“(2) agency action is committed to agency discretion by law.”
The District Court denied petitioner’s motion to dismiss, and granted respondent’s motion for partial summary judgment. The court determined that the APA provided judicial review of petitioner’s termination decisions made under § 102(c) of the NSA, and found that respondent had been unlawfully discharged because the CIA had not followed the procedures described in its own regulations. The District Court declined, however, to address respondent’s constitutional claims. Respondent was ordered reinstated to admin
A divided panel of the Court of Appeals for the District of Columbia Circuit vacated the District Court’s judgment and remanded the case for further proceedings. The Court of Appeals first decided that judicial review under the APA of the Agency’s decision to terminate respondent was not precluded by §§ 701(a)(1) or (a)(2). Turning to the merits, the Court of Appeals found that, while an agency must normally follow its own regulations, the CIA regulations cited by respondent do not limit the Director’s discretion in making termination decisions. Moreover, the regulations themselves state that, with respect to terminations pursuant to § 102(c), the Director need not follow standard discharge procedures, but may direct that an employee “be separated immediately and without regard to any suggested procedural steps.”
The Court of Appeals went on to hold that respondent must demonstrate that the Director’s action was an arbitrary and capricious exercise of his power to discharge employees under § 102(c).
II
The APA’s comprehensive provisions, set forth in 5 U. S. C. §§701-706 (1982 ed. and Supp. IV), allow any person “adversely affected or aggrieved” by agency action to obtain judicial review thereof, so long as the decision challenged represents a “final agency action for which there is no other adequate remedy in a court.” Typically, a litigant will contest an action (or failure to act) by an agency on the ground that the agency has neglected to follow the statutory directives of Congress. Section 701(a), however, limits application of the entire APA to situations in which judicial review is not precluded by statute, see § 701(a)(1), and the agency action is not committed to agency discretion by law, see § 701(a)(2).
In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402 (1971), this Court explained the distinction between §§ 701(a)(1) and (a)(2). Subsection (a)(1) is concerned with whether Congress expressed an intent to prohibit judicial review; subsection (a)(2) applies “in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’” 401 U. S., at 410 (citing S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)).
We further explained what it means for an action to be “committed to agency discretion by law” in Heckler v. Chaney, 470 U. S. 821 (1985). Heckler required the Court to determine whether the Food and Drug Administration’s decision not to undertake an enforcement proceeding against the use of certain drugs in administering the death penalty was subject to judicial review. We noted that, under § 701(a) (2), even when Congress has not affirmatively precluded judi
Both Overton Park and Heckler emphasized that §701 (a)(2) requires careful examination of the statute on which the claim of agency illegality is based (the Federal-Aid Highway Act of 1968 in Overton Park and the Federal Food, Drug, and Cosmetic Act in Heckler). In the present case, respondent’s claims against the CIA arise from the Director’s asserted violation of § 102(c) of the NSA. As an initial matter, it should be noted that § 102(c) allows termination of an Agency employee whenever the Director “shall deem such termination necessary or advisable in the interests of the United States” (emphasis added), not simply when the dismissal. is necessary or advisable to those interests. This standard fairly exudes deference to the Director, and appears to us to foreclose the application of any meaningful judicial standard of review. Short of permitting cross-examination of the Director concerning his views of the Nation’s security and whether the discharged employee was inimical to those interests, we see no basis on which a reviewing court could properly assess an Agency termination decision. The language of § 102(c) thus strongly suggests that its implementation was “committed to agency discretion by law.”
So too does the overall structure of the NSA. Passed shortly after the close of the Second World War, the NSA created the CIA and gave its Director the responsibility “for protecting intelligence sources and methods from unauthorized disclosure.” See 50 U. S. C. §403(d)(3); S. Rep. No. 239, 80th Cong., 1st Sess., 2 (1947); H. R. Rep. No. 961,
This overriding need for ensuring integrity in the Agency led us to uphold the Director’s use of § 102(d)(3) of the NSA to withhold the identities of protected intelligence sources in CIA v. Sims, 471 U. S. 159 (1985). In denying respondent’s Freedom of Information Act requests in Sims to produce certain CIA records, we stated that “[t]he plain meaning of the statutory language, as well as the legislative history of the National Security Act, . . . indicates that Congress vested in the Director of Central Intelligence very broad authority to protect all sources of intelligence information from disclosure.” Id., at 168-169. Section 102(c), that portion of the NSA under consideration in the present case, is part and parcel of the entire Act, and likewise exhibits the Act’s extraordinary deference to the Director in his decision to terminate individual employees.
We thus find that the language and structure of § 102(c) indicate that Congress meant to commit individual employee discharges to the Director’s discretion, and that § 701(a)(2) accordingly precludes judicial review of these decisions under the APA. We reverse the Court of Appeals to the extent that it found such terminations re viewable by the courts.
Ill
In addition to his claim that the Director failed to abide by the statutory dictates of § 102(c), respondent also alleged a number of constitutional violations in his amended complaint. Respondent charged that petitioner’s termination of his employment deprived him of property and liberty interests under the Due Process Clause of the Fifth Amendment,
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 Ms homosexuality, is constitutionally impermissible, or whether he asserts that a more pervasive discrimination policy exists in the CIA’s employment practices regarding all homosexuals. This ambiguity in the amended complaint is no doubt attributable in part to the inconsistent explanations respondent received from the Agency itself regarding his termination. Prior to his discharge, respondent had been told by two CIA security officers that his homosexual activities themselves violated CIA regulations. In contrast, the Deputy General Counsel of the CIA later informed respondent that homosexuality was merely a security concern that did not inevitably result in termination, but instead was evaluated on a case-by-case basis.
Our review of § 102(c) convinces us that it cannot bear the preclusive weight petitioner would have it support. As detailed above, the section does commit employment termination decisions to the Director’s discretion, and precludes challenges to these decisions based upon the statutory language of § 102(c). A discharged employee thus cannot complain that his termination was not “necessary or advisable in the interests of the United States,” since that assessment is the Director’s alone. Subsections (a)(1) and (a)(2) of §701, however, remove from judicial review only those determinations specifically identified by Congress or “committed to agency discretion by law.” Nothing in § 102(c) persuades us that Congress meant to preclude consideration of colorable constitutional claims arising out of the actions of the Director pursuant to that section; we believe that a constitutional claim based on an individual discharge may be reviewed by
Petitioner complains that judicial review even of constitutional claims will entail extensive “rummaging around” in the Agency’s affairs to the detriment of national security. See Tr. of Oral Arg. 8-13. But petitioner' acknowledges that Title VII claims attacking the hiring and promotion policies of the Agency are routinely entertained in federal court, see Reply Brief for Petitioner 13-14; Tr. of Oral Arg. 9, and the inquiry and discovery associated with those proceedings would seem to involve some of the same sort of rummaging. Furthermore, the District Court has the latitude to control any discovery process which may be instituted so as to balance respondent’s need for access to proof which would support a colorable constitutional claim against the extraordinary needs of the CIA for confidentiality and the protection of its methods, sources, and mission. See Kerr v. United States District Court, 426 U. S. 394, 405 (1976); United States v. Reynolds, 345 U. S. 1 (1953).
Petitioner also contends that even if respondent has raised a colorable constitutional claim arising out of his discharge, Congress in the interest of national security may deny the courts the authority to decide the claim and to order respondent’s reinstatement if the claim is upheld. For the reasons previously stated, we do not think Congress meant to impose such restrictions when it enacted § 102(c) of the NS A. Even without such prohibitory legislation from Congress, of course, traditional equitable principles requiring the balancing of public and private interests control the grant of de
The judgment of the Court of Appeals is affirmed in part, reversed in part, and the case is remanded for further proceedings consistent with this, opinion.
It is so ordered.
Justice Kennedy took no part in the consideration or decision of this case.
See May 11, 1982, Letter from Deputy General Counsel of CIA to respondent’s counsel, App. 37.
See Amended Complaint, id., at 5, 12-13.
Title 5 U. S. C. § 706 provides in pertinent part:
“Scope of review
“To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—
“(1) compel agency action unlawfully withheld or unreasonably delayed; and
“(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
“(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
“(B) contrary to constitutional right, power, privilege, or immunity;
“(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
“(D) without observance of procedure required by law.”
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
We understand that petitioner concedes that the Agency’s failure to follow its own regulations can be challenged under the APA as a violation of § 102(c). See Reply Brief for Appellant in No. 85-5291 (CADC), p. 18 (Doe v. Casey, 254 U. S. App. D. C. 282, 796 F. 2d 1508 (1986)); see also Service v. Dulles, 354 U. S. 363 (1957) (recognizing the right of federal courts to review an agency’s actions to ensure that its own regulations have been followed); Sampson v. Murray, 415 U. S. 61, 71 (1974) (stating that “federal courts do have authority to review the claim of a discharged governmental employee that the agency effectuating the discharge has not followed administrative regulations”). The Court of Appeals, however, found that the CIA’s own regulations plainly protect the discretion granted the Director by § 102(c), and that the regulations “provid[e] no independent source of procedural or substantive protections.” Doe v. Casey, supra, at 294, 796 F. 2d, at 1520. Thus, since petitioner prevailed on this ground below and does not seek further review of the question here, we do not reach that issue.
Petitioner asserts, see Brief for Petitioner 27-28, n. 23, that respondent fails to present a colorable constitutional claim when he asserts that there is a general CIA policy against employing homosexuals. Petitioner relies on our decision in Bowers v. Hardwick, 478 U. S. 186 (1986), to support this view. This question was not presented in the petition for certio-rari, and we decline to consider it at this stage of the litigation.
Concurring in Part
concurring in part and dissenting in part.
I agree that the Administrative Procedure Act (APA) does not authorize judicial review of the employment decisions referred to in § 102(c) of the National Security Act of 1947. Because § 102(c) does not provide a meaningful standard for judicial review, such decisions are clearly “committed to agency discretion by law” within the meaning of the provision of the APA set forth in 5 U. S. C. § 701(a)(2). I do not understand the Court to say that the exception in § 701(a)(2) is necessarily or fully defined by reference to statutes “drawn in such broad terms that in a given case there is no law to apply.” See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 410 (1971), quoted ante, at 599. Accordingly, I join Parts I and II of the Court’s opinion.
I disagree, however, with the Court’s conclusion that a constitutional claim challenging the validity of an employment decision covered by § 102(c) may nonetheless be brought in a federal district court. Whatever may be the exact scope of Congress’ power to close the lower federal courts to constitutional claims in other contexts, I have no doubt about its authority to do so here. The functions performed by the Central Intelligence Agency and the Director of Central Intelligence lie at the core of “the very delicate, plenary and
Dissenting Opinion
dissenting.
I agree with the Court’s apparent holding in Part II of its opinion, ante, at 600 and 601, that the Director’s decision to terminate a CIA employee is “committed to agency discretion by law” within the meaning of 5 U. S. C. § 701(a)(2). But because I do not see how a decision can, either practically or legally, be both unreviewable and yet reviewable for constitutional defect, I regard Part III of the opinion as essentially undoing Part II. I therefore respectfully dissent from the judgment of the Court.
I
Before proceeding to address Part III of the Court’s opinion, which I think to be in error, I must discuss one significant element of the analysis in Part II. Though I subscribe to most of that analysis, I disagree with the Court’s description of what is required to come within subsection (a)(2) of §701, which provides that judicial review is unavailable “to the extent that. . . agency action is committed to agency dis
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 observation in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402 (1971), that “[t]he legislative history of the Administrative Procedure Act indicates that [§ 701(a)(2)] is applicable in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945),” id., at 410. Perhaps Overton Park discussed only the “no law to apply” factor because that was the only basis for non-
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 with the fundamental constraint that the decision must be taken in order to further a public purpose rather than a purely private interest; yet there are many governmental decisions that are not at all subject to judicial review. A United States Attorney’s decision to prosecute, for example, will not be reviewed on the claim that it was prompted by personal animosity. Thus, “no law to apply” provides much less than the full answer to whether § 701(a)(2) applies.
The key to understanding the “committed to agency discretion by law” provision of § 701(a)(2) lies in contrasting it with the “statutes preclude judicial review” provision of § 701(a)(1). Why “statutes” for preclusion, but the much more general term “law” for commission to agency discretion? The answer is, as we implied in Chaney, that the latter was intended to refer to “the ‘common law’ of judicial review of agency action,” 470 U. S., at 832 — a body of jurisprudence that had marked out, with more or less precision, certain issues and certain areas that were beyond the range of judicial review. That jurisprudence included principles
All this law, shaped over the course of centuries and still developing in its application to new contexts, cannot possibly be contained within the phrase “no law to apply.” It is not surprising, then, that although the Court recites the test it does not really apply it. Like other opinions relying upon it, this one essentially announces the test, declares victory and moves on. It is not really true “‘that a court would have no meaningful standard against which to judge the agency’s exercise of discretion,’” ante, at 600, quoting Chaney, 470 U. S., at 830. The standard set forth in § 102(c) of the National Security Act of 1947, 50 U. S. C. § 403(c), “necessary or advisable in the interests of the United States,” at least excludes dismissal out of personal vindictiveness, or because the Director wants to give the job to his cousin. Why, on the Court’s theory, is respondent not entitled to assert the presence of such excesses, under the “abuse of discretion” standard of § 706?
If and when this Court does come to consider the 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 602, n. 7 — the difference between the “no law to apply” test and what I consider the correct test will be crucial. Perhaps a dismissal in violation of the regulations can be reviewed, but not. simply because the regulations provide a standard that makes review possible. Thus, I agree with the Court’s holding in Part. II of its opin
M I — I
Before taking the reader through the terrain of the Court’s holding that respondent may assert constitutional claims in this suit, I would like to try to clear some of the underbrush, consisting primarily of the Court’s ominous warning that “[a] ‘serious constitutional question’ . . . would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.” Ante, at 603, 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 Constitution.” But Article III, § 1, provides that the judicial power shall be vested “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” (emphasis added). We long ago held that the power not to create any lower federal courts at all includes the power to invest them with less than all of the judicial power.
“The Constitution has defined the limits of the judicial power of the United States, but has not prescribed how much of it shall be exercised by the Circuit Court; consequently, the statute which does prescribe the limits of their jurisdiction, cannot be in conflict with the Constitution, unless it confers powers not enumerated therein.” Sheldon v. Sill, 8 How. 441, 449 (1850).
Thus, if there is any truth to the proposition that judicial cognizance of constitutional claims cannot be eliminated, it
It can fairly be argued, however, that our interpretation of § 701(a)(2) indirectly implicates the constitutional question whether state courts can be deprived of jurisdiction, because if they cannot, then interpreting § 701(a)(2) to exclude relief here would impute to Congress the peculiar intent to let state courts review Federal Government action that it is unwilling to let federal district courts review — or, alternatively, the peculiar intent to let federal district courts review, upon removal from state courts pursuant to 28 U. S. C. § 1442(a)(1), claims that it is unwilling to let federal district courts review in original actions. I turn, then, to the substance of the Court’s warning that judicial review of all “colorable constitutional claims” arising out of the respondent’s dismissal may well be constitutionally required. What could possibly be the basis for this fear? Surely not some general principle that all constitutional violations must be remediable in the courts. The very text of the Constitution refutes that principle, since it provides that “[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members,” Art. I, §5, and that “for any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place,” Art. I, §6. Claims concerning constitutional violations committed in these contexts — for example, the rather grave constitutional claim that an election has been stolen — cannot be addressed to the courts. See, e. g., Morgan v. United States, 255 U. S. App. D. C. 231, 801 F. 2d 445 (1986). Even apart from the strict text of the Constitution, we have found some constitutional claims to be beyond judicial review because they involve
Perhaps, then, the Court means to appeal to a more limited principle, that although there may be areas where jüdicial review of a constitutional claim will be denied, the scope of those areas is fixed by the Constitution and judicial tradition, and cannot be affected by Congress, through the enactment of a statute such as § 102(c). That would be a rather counter-intuitive principle, especially since Congress has in reality been the principal determiner of the scope of review, for constitutional claims as well as all other claims, through its waiver of the 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 backpay by a dismissed Secretary of State claiming that the
Once it is acknowledged, as I think it must be, (1) that not all constitutional claims require a judicial remedy, and (2) that the identification of those that do not can, even if only within narrow limits, be determined by Congress, then it is clear that the “serious constitutional question” feared by the Court is an illusion. Indeed, it seems to me that if one is in a mood to worry about serious constitutional questions the one to worry about is not whether Congress can, by enacting § 102(c), give the President, through his Director of Central Intelligence, unreviewable discretion in firing the agents that he employs to gather military and foreign affairs intelligence, but rather whether Congress could constitutionally permit the courts to review all such decisions if it wanted to. We have acknowledged that the courts cannot intervene when there is “a textually demonstratable constitutional commitment of the issue to a coordinate political department.” Baker v. Carr, 369 U. S. 186, 217 (1962). We have recognized “the insistence (evident from the number of Clauses devoted to the subject) with which the Constitution confers authority over the Army, Navy, and militia upon the political branches.” United States v. Stanley, 483 U. S. 669, 682 (1987). We have also recognized “the very delicate, plenary
I think it entirely beyond doubt that if Congress intended, by the APA in 5 U. S. C. § 701(a)(2), to exclude judicial review of the President’s decision (through the Director of Central Intelligence) to dismiss an officer of the Central Intelligence Agency, that disposition would be constitutionally permissible.
Ill
I turn, then, to whether that executive action is, within the meaning of § 701(a)(2), “committed to agency discretion by law.” My discussion of this point can be brief, because the answer is compellingly obvious. Section 102(c) of the National Security Act of 1947, 61 Stat. 498, states:
“Notwithstanding ... the provisions of any other law, the Director of Central Intelligence, may, in his discretion, terminate the employment of any officer or employee of the Agency whenever he shall deem such termination necessary or advisable in the interests of the*616 United States . . . 50 U. S. C. §403(c) (emphasis added).
Further, as the Court declares, § 102(c) is an “integral part” of the National Security Act, which throughout exhibits “extraordinary deference to the Director,” Ante, at 601. Given this statutory text, and given (as discussed above) that the area to which the text pertains is one of predominant executive authority and of traditional judicial abstention, it is difficult to conceive of a statutory scheme that more clearly reflects that “committment] 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.” Ibid. 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 603-604. It seems to me the Court is attempting the impossible feat of having its cake and eating it too. The opinion states that “[a] discharged employee . . . cannot complain that his termination was not ‘necessary or advisable in the interests of the United States,’ since that assessment is the Director’s alone.” Ante, at 603 (emphasis added). But two sentences later it says that “[njothing in § 102(c) persuades us that Congress meant to preclude consideration of colorable constitutional claims arising out of the actions of the Director pursuant to that section.” Which are we to believe? If the former, the case should be at an end. If the § 102(c) assessment is really “the Director’s alone,” the only conceivable basis for review of respondent’s dismissal (which is what this case is about) would be that the dismissal was not really the result of a § 102(c) assessment by the Director. But respondent has never contended that, nor could he. Not only was his counsel formally advised, by letter of May 11, 1982, that “the Director has deemed it necessary and
Since the Court’s disposition contradicts its fair assurances, I must assume that the § 102(c) judgment is no longer “the Director’s alone,” but rather only “the Director’s alone except to the extent it is colorably claimed that his judgment is unconstitutional.” I turn, then, to the question of where this exception comes from. As discussed at length earlier, the Constitution assuredly does not require it. Nor does the text of the statute. True, it only gives the Director absolute discretion to dismiss “[notwithstanding. . . the provisions of any other law” (emphasis added). But one would hardly have expected it to say “[notwithstanding the provisions of any other law or of the Constitution.” What the provision directly addresses is the authority to dismiss, not the authority of the courts to review the dismissal. And the Director does not have the authority to dismiss in violation of the Constitution, nor could Congress give it to him. The implication
Perhaps, then, a constitutional right is by its nature so much more important to the claimant than a statutory right that a statute which plainly excludes the latter should not be read to exclude the former unless it says so. That principle has never been announced — and with good reason, because its premise is not true. An individual’s contention that the Government has reneged upon a $100,000 debt owing under a contract is much more important to him — both financially and, I suspect, in the sense of injustice that he feels — than the same individual’s claim that a particular federal licensing provision requiring a $100 license denies him equal protection of the laws, or that a particular state tax violates the Commerce Clause. A citizen would much rather have his statutory entitlement correctly acknowledged after a constitutionally inadequate hearing, than have it incorrectly denied after a proceeding that fulfills all the requirements of the Due Process Clause. The only respect in which a constitutional claim is necessarily more significant than any other kind of claim is that, regardless of how trivial its real-life importance may be in the case at hand, it can be asserted against the action of the legislature itself, whereas' a 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.
The Court seeks to downplay the harm produced by today’s decision by observing that “petitioner acknowledges that Title VII claims attacking the hiring and promotion policies of the Agency are routinely entertained in federal court.” Ante, at 604, citing Reply Brief for Petitioner 13-14; Tr. of Oral Arg. 9. Assuming that those suits are statutorily authorized, I am willing to accept the Director’s assertion that, while suits regarding hiring or promotion are tolerable, a suit regarding dismissal is not. Like the Court, I have no basis of knowledge on which I could deny that — especially since it is obvious that if the Director thinks that a particular hiring or promotion suit is genuinely contrary to the interests of the United States he can simply make the hiring or grant the promotion, and then dismiss the prospective litigant under § 102(c).
The harm done by today’s decision is that, contrary to what Congress knows is preferable, it brings a significant decision-making process of our intelligence services into a forum where it does not belong. Neither the Constitution, nor our laws, nor common sense gives an individual a right to come into court to litigate the reasons for his dismissal as an intelligence agent. It is of course not just valid constitutional claims that today’s decision makes the basis for judicial review of the Director’s action, but all colorable constitutional claims, whether meritorious or not. And in determining whether what is colorable is in fact meritorious, a court will necessarily have to review the entire decision. If the Director denies, for example, respondent’s contention in the pres
Today’s result, however, will have ramifications far beyond creation of the world’s only secret intelligence agency that must litigate the dismissal of its agents. If constitutional claims can be raised in this highly sensitive context, it is hard to imagine where they cannot. The assumption that there are any executive decisions that cannot be hauled into the courts may no longer be valid. Also obsolete may be the assumption that we are capable of preserving a sensible common law of judicial review.
I respectfully dissent.
Technically, this provision merely precludes judicial review under the judicial review provisions of the Administrative Procedure Act (APA), that is, under Chapter 7 of Title 5 of the United States Code. However, at least with respect to all entities that come within the Chapter’s definition of “agency,” see 5 U. S. C. § 701(b), if review is not available under the APA it is not available at all. Chapter 7 (originally enacted as § 10 of the APA) is an umbrella statute governing judicial review of all federal agency action. While a right to judicial review of agency action may be created by a separate statutory or constitutional provision, once created it becomes subject to the judicial review provisions of the APA unless specifically excluded, see 5 U. S. C. § 559. To my knowledge, no specific exclusion exists.
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