WILLIAM H. WEBSTER, DIRECTOR OF CENTRAL INTELLIGENCE PETITIONER V.
JOHN DOE

   No. 86-1294

   In the Supreme Court of the United States

   October Term, 1987

   On Writ of Certiorari to The United States Court of Appeals For The
District of Columbia Circuit

   Brief For The Petitioner

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statutory provisions involved
   Statement
   Summary of argument
   Argument
         I. The decision of the Director of Central
            Intelligence to discharge an officer or employee of
            the Central Intelligence Agency is not subject to
            review under the Administrative Procedure Act
            A. Section 102(c) both commits to agency discretion
               and precludes judicial review of the Director's
               decision to dismiss an officer or employee of
               the CIA
               1. The statutory text
               2. The legislative history
               3. The structure and objectives of the statutory
                  scheme
            B. Section 102(c) precludes review of statutory
               and constitutional challenges to the Director's
               action
        II. Respondent cannot bring an action against the
            Director under 28 U.S.C. 1331 to obtain
            reinstatement with the CIA
       III. Section 102(c) of the National Security Act of
            1947 may constitutionally be applied to deny an
            employee of the CIA a judicial reinstatement
            remedy, because it is a reasonable means of
            promoting the government's compelling interest in
            protecting the fact and appearance of secrecy in
            the intelligence process
   Conclusion

                            OPINIONS BELOW

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

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 79a-80a) was
entered on August 1, 1986.  A petition for rehearing was denied on
October 9, 1986 (Pet. 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 petition was
filed on that date and was granted on June 8, 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, ch. 343, 61
Stat. 498, as originally enacted, provided as follows:

         Notwithstanding the provisions of section 6 of the Act of
      August 24, 1912 (37 Stat. 555), 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 United States Civil Service Commission.

   50 U.S.C. 403(c) currently 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. (and Supp.
III) 710-706.

                               STATEMENT

   1. 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 Intelligence 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.  Pet.
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.  Pet. 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 then-CIA
Deputy General Counsel told respondent's attorney that homosexuality
was a security concern that did not inevitably result in dismissal and
was evaluated on a case-by-case basis.  Pet. App. 4a.

   On April 14, respondent was asked to resign, but he refused.  The
Office of Security ultimately recommended to the Director that
respondent be dismissed.  After reviewing respondent's case, the
Director concluded that it was "'necessary and advisable in the
interests of the United States'" to dismiss respondent from the Agency
(J.A. 37).  Other Agency personnel told respondent that the CIA would
give him a positive recommendation to any prospective employer.
Respondent was also informed that if he applied for a job requiring
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.  Pet. App. 5a-6a.

   2. Respondent sued the Director in the United States District Court
for the District of Columbia.  Respondent alleged that he was
dismissed 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) 720;  28 U.S.C. 1361;  and
Section 102(c) of the National Security Act of 1947, 50 U.S.C. 403(c)
(J.A. 5, 12-13).  Respondent sought a declaratory judgment that his
dismissal was unlawful and an injuction requiring the CIA to reinstate
him to his former position (id. at 13).  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.).

   Petitioner moved 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. (and Supp. III) 701-706.  The district court denied
petitioner's motion (Pet. App. 74a-77a) and granted respondent's
motion for summary judgment in part (id. at 59a-78a).  The court ruled
that respondent had been unlawfully discharged because the CIA did not
follow its own regulations (id. at 70a-74a).  The court did not
address respondent's substantive constitutional claims (id. at 77a).

   3. a. By a divided vote, the court of appeals vacated the district
court's judgment and remanded the case for further proceedings (Pet.
App. 1a-32a).  At the outset, the court ruled that Section 102(c) of
the National Security Act of 1947 did not "preclude judicial review"
under 5 U.S.C. 701(a)(1) of the Director's decision to dismiss an
employee (Pet. App. 9a-14a).  The majority found nothing in the text
or legislative history of Section 102(c) expressly precluding judicial
review, and it 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" (Pet. 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 it
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 5 U.S.C. 701(a)(2) the decision whether to dismiss a
CIA employee (Pet. App. 15a-19a).  The statutory standard did not
offer "'absolutely no guidance'" how the Director may exercise his
discretion, the court explained, and the statute undoubtedly
prohibited discharge for an invalid reason, such as race or hair color
(id. at 16a).  In addition, the court ruled that "we must at least
satisfy ourselves" that an employee's removal "has 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)).

   On the merits of respondent's claims, the court determined that the
Agency did not violate its regulations in dismissing respondent (Pet.
App. 19a-23a).  Noting that the language of Section 102(c) left "the
decision to terminate * * * largely to the expertise and judgment of
the Director" (Pet. App. 24a), the court held 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
employing homosexuals.  And third, the Director may have discharged
respondent because his homosexuality presented a security risk (Pet.
App. 25a).  The court found that the first and last of these
explanations did not justify further judicial review, /4/ but it ruled
that the second possible explanation -- that respondent was discharged
because of a CIA policy against employing homosexuals -- gave rise to
an arguable claim that respondent's discharge was unlawful (id. at
27a).  /5/ The court did not decide which explanation was correct, and
it 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 employee was subject to review
under the APA (Pet. App. 34a-55a).  /7/ Looking to both the language
and the legislative history, he found a clear intention to preclude
review under 5 U.S.C. 701(a)(1) (Pet. App. 35a-45a).  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).  Similarly, Judge Buckley found
that Section 102(c) committed to the Director's discretion under 5
U.S.C. 401(a)(2) the decision whether to dismiss a CIA officer or
employee, a judgment that the courts are ill-equipped to second-guess
(Pet. App. 46a-52a).  Finally, Judge Buckley also took issue (id. at
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 (citation omitted)).  The only role for a court, he said, was to
determine whether the Director in fact exercised 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 (id. at
54a-55a).

                          SUMMARY OF ARGUMENT

   I. Section 102(c) of the National Security Act of 1947 commits to
the discretion of the Director of Central Intelligence the decision
whether to discharge a CIA officer or employee, and it precludes
review under the Administrative Procedure Act of that decision.  The
text of Section 102(c) expressly grants the Director broad discretion
to remove a CIA employee.  The historical context in which the statute
arose shows that, by granting the Director such discretion over
federal employees, Congress intended that his decision would be final.
 Section 102(c) is also an essential component of a broader regulatory
scheme that enables the CIA to protect its intelligence activities.
Finally, that statute is one component of a general network of
statutes that authorize the Secretary of Defense and the heads of
other federal agencies summarily to suspend or remove an employee
whenever national security considerations demand that result.

   II. Respondent cannot rely on the general federal question
jurisdictional provision, 28 U.S.C. 1331, to obtain his reinstatement
with the CIA.  The 1976 amendments to the APA established a
comprehensive remedial scheme to resolve questions of sovereign
immunity when the actions of federal officials are challenged.
Integral to that scheme is a compromise:  the APA waives sovereign
immunity when a party seeks relief other than money damages, but does
not allow an action to go forward where review is precluded by other
statutes, such as Section 102(c).  A party such as respondent
therefore cannot evade the restrictions imposed by statutes such as
Section 102(c) by relying on 28 U.S.C. 1331, because doing so would
undermine the compromise embodied in the 1976 APA amendments.

   III. Congress may preclude the courts from awarding reinstatement
to a discharged employee of an intelligence agency in order to protect
the integrity and confidentiality of the agency's activities.  The
government has a surpassing interest in the successful execution of
national security policy and in safeguarding both the fact and the
appearance of confidentiality in our intelligence services.  In view
of the primary responsibility of the President for the implementation
of foreign policy and the conduct of intelligence gathering
activities, it is reasonable that an Executive Branch official be
given final authority over retention or dismissal of persons in
sensitive intelligence-related positions.  Moreover, it is
well-established that the need to protect national security
information and intelligence gathering processes and justify
limitations on the rights of employees engaged in those activities,
including the availability of judicial remedies.  Under the state
secrets privilege, for example, a plaintiff is prevented from
obtaining relief, even for a constitutional claim, when the suit would
force the government to reveal matters damaging to national security.
Section 102(c) has a similar effect, but it leaves the decision to the
Director, rather than to the courts.  Section 102(c) does not forbid a
removed CIA employee from holding other federal employment and is
therefore narrowly tailored to serve the government's compelling
interest in safeguarding the integrity of the intelligence
establishment.

                               ARGUMENT

 I. THE DECISION OF THE DIRECTOR OF CENTRAL INTELLIGENCE TO DISCHARGE
AN OFFICER OR EMPLOYEE OF THE CENTRAL INTELLIGENCE AGENCY IS NOT
SUBJECT TO REVIEW UNDER THE ADMINISTRATIVE PROCEDURE ACT

 A. Section 102(c) Both Commits To Agency Discretion And Precludes
Judicial Review Of The Director's Decision To Dismiss An Officer Or
Employee Of The CIA

   The Administrative Procedure Act, which provides aggrieved parties
with a cause of action against a federal agency for actions that are
beyond its statutory authority or that are unconstitutional, 5 U.S.C.
706(2)(B) and (C), does not apply where another statute precludes
review or where an agency's action is committed to its discretion by
law, 5 U.S.C. 701(a)(1) and (2).  Both of those exceptions are
applicable here.  Section 102(c) of those exceptions are applicable
here.  Section 102(c) of the National Security Act of 1947, 50 U.S.C.
403(c), precludes review of the decision of the Director of Central
Intelligence to remove an officer or employee of the CIA, and it
commits that action to the director's discretion.

   1. The statutory text.  The text of Section 102(c) states that
"(n)ot withstanding * * * any other law," the Director "may, in his
discretion," remove any officer or employee of the CIA "whenever he
shall deem such termination necessary or advisable in the interests of
the United States." This section, which was enacted only a year after
the APA, expressly grants the Director broad discretion to remove an
employee whenever he deems it necessary or advisable in the national
interest.

   The historical context in which Section 102(c) was enacted shows
that the Director's decision is also final.  In 1947, federal
employees could not obtain judicial review of their removal.  /8/ The
two primary statutes protecting federal employees were the
Lloyd-LaFollette Act, 5 U.S.C. (1940 ed.) 652 (superseded by the Civil
Service Reform Act of 1978, 5 U.S.C. (and Supp. III) 6501 et seq.),
and the Veterans Preference Act of 1944, 5 U.S.C. (1946 ed.) 863.
Under the former statute, nonprobationary employees in the competitive
civil service could be removed only "for such cause as will promote
the efficiency of (the) service," and they were entitled to notice, a
copy of any charges, and a written statement of reasons for their
removal.  5 U.S.C. (1940 ed.) 652 (current version at 5 U.S.C. 7513).
Under the later act, veterans also had a right to appeal their
discharge to the Civil Service Commission.  5 U.S.C. (1946 ed.) 863.
Neither statute authorized judicial review.  By providing that the
authority vested in the Director was not limited by these or any other
laws, Section 102(c) abolished these limited restrictions on the
removal power, /9/ and thus made even clearer that judicial review was
unavailable as to such actions.

   Congress has interpreted the act as granting the Director the final
say whether to dismiss a CIA employee.  See H.R. Rep. 2120, 87th
Cong., 2d Sess. 4 (1962);  H.R. Rep. 108, 88th Cong., 1st Sess. 4
(1963);  S. Rep. 926, 88th Cong., 2d Sess. 2 (1964);  S. Rep. 98-77,
98th Cong., 1st Sess. 7 (1983);  S. Rep. 98-481, 98th Cong., 2d Sess.
9 (1984);  Ages 24-25 note 21, infra.  /10/ Both this Court and the
lower federal courts have also interpreted similar measures in that
manner.  For example, in Service v. Dulles, 235 F.2d 215 (D.C. Cir.
1956), rev'd on other grounds, 354 U.S. 363 (1957), the District of
Columbia Circuit construed a grant of authority to the Secretary of
State that is almost identical to Section 102(c).  /11/ The court
there held that, when an employee challenges his dismissal under such
a statute, a court is "limited to determining whether any procedural
requirement of the statute was violated in (the employee's) discharge"
(235 F.2d at 218 (original quotation marks omitted)).  Once the court
found that the Secretary had satisfied the one procedural requirement
imposed by the act -- i.e., that the Secretary determine that the
discharge was "in the interests of the United States" -- judicial
review came to an end (ibid.) /12/

   This interpretation of Section 102(c) cannot be overcome by
application of the general presumption that agency action is subject
to judicial review.  The presumption of reviewability is only a guide
to congressional intent (Block v. Community Nutrition Inst., 467 U.S.
340, 349 (1984)), and it should not be mechanically applied when the
type of agency action involved is unsuitable for judicial review
(Heckler v. Chaney, 470 U.S. 821, 831 (1985)).  It is inapposite in
this setting for several reasons.

   A presumption of reviewability would be peculiar in the context of
removals from federal employment, since at the time the statute was
enacted removals were not subject to judicial review.  See Carlin v.
McKean, No. 86-5510 (D.C. Cir. July 17, 1987), slip op. 6-7;  cf.
Padula v. Webster, No. 86-5053 (D.C. Cir. June 26, 1987), slip op. 6
(FBI's hiring decisions have traditionally been unreviewable).  More
particularly, personnel decisions affecting the national security are
an integral part of the President's inherent constitutional
responsibility to protect information bearing on national security.
See New York Times Co. v. United States, 403 U.S. 713, 728-730 (1971)
(Stewart, J., concurring).

   Furthermore, removal decisions of the sort involved here are
especially ill-suited to judicial review because the judgment whether
a person in any way imperils the "interests of the United States"
involves an inherently discretionary "prophecy" (Chicago and Southern
Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948))
about the risk that he could be compromised and the damage that would
result from the disclosure of confidential information.  /13/ It will
often rest on less than judicially provable facts and require an
assessment of potentially great risks.  Courts have "little or no
background in the delicate business of intelligence gathering" (CIA v.
Sims, 471 U.S. 159, 176 (1985)), and have no basis for determining a
legally acceptable margin of error.  They are therefore ill-equipped
to second-guess Executive Branch decisions of this sort.  Vitarelli v.
Seaton, 253 F.2d 338, 342-343 (D.C. Cir. 1958), rev'd on other grounds
359 U.S. 535 (1959);  Greene v. McElroy, 254 F.2d 944, 953 (D.C. Cir.
1958), rev'd on other grounds, 360 U.S. 474 (1959);  Adams v. Laird,
420 F.2d 230, 239 (D.C. Cir. 1969), cert. denied, 397 U.S. 1039
(1970);  ef. United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir.
), cert. denied, 409 U.S. 1063 (1972) (classification of information).

   Moreover, in order to replicate the Director's decision-making
process a court would have to be familiar with "'the whole picture'"
(CIA v. Sims, 471 U.S. at 179).  The disclosure of the necessary
information would itself compromise sensitive interests.  Also, in a
particular case the Director may need to create the impression that
his decision rested solely on one factor (such as poor performance) to
avoid publicizing a far more sensitive basis for an employee's
dismissal (such as a breach of security).  In some cases, the Director
may wish to offer no reason at all for his action.  The litigation
process is ill-suited to accommodate these concerns.

   The fact that Section 102(c) contains a "standard" -- "the
interests of the United States" -- for the Director to apply in making
personnel judgments, contrary to the court of appeals' view (Pet. App.
10a), does not necessarily mean that Congress intended the courts to
review an agency's action.  Under Section 102(c), it is quite clear
that the standard is offered to guide the Director's action -- to
allow dismissal "whenever he shall deem" it necessary or advisable in
the interests of the United States" (emphasis added) -- and not to
provide a basis for judicial action.

   2. The legislative history.  Congress adopted the National Security
Act of 1947 because of shortcomings in American intelligence before
Pearl Harbor and during World War II.  The Act created the Central
Intelligence Agency and placed the Director of Central Intelligence at
the head of the CIA and over the intelligence community to remedy
those deficiencies and to ensure that the nation could gather and
analyze intelligence in peace and war.  S. Rep. 239, 8th Cong., 1st
Sess. 2 (1947);  H.R. Rep. 961, 80th Cong., 1st Sess. 3-4 (1947);  CIA
v. Sims, 471 U.S. at 170.  In restructuring our intelligence
apparatus, Congress was acutely aware of the importance of secrecy to
the ability to conduct intelligence activities (id. at 172), /14/ and
it took several steps in the National Security Act of 1947 and in
later statutes to protect what it 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. 5 (1949)).  One of the
steps that Congress believed necessary to protect the nation's
security in the 1940s and 1950s (as well as today) was to authorize
the heads of certain federal agencies to suspend or dismiss a federal
employee without the procedural guarantees otherwise provided by the
civil service laws when the agency head found that national security
concerns demanded that the employee be removed.  Section 102(c) fits
comfortably within this tradition.

   Between 1940 and 1953, Congress adopted a series of 13 provisions
authorizing the summary suspension or discharge of federal employees
in the defense industry, the State and Commerce Departments, the
Atomic Energy Commission, and the CIA in order to protect the national
security.  /15/ These provisions gave the heads of these different
federal departments the final say whether to discharge civil service
personnel whose continued employment would present a risk to security.
 These contemporaneous statutes offer substantial evidence that
Congress intended that the decision to remove an employee made by the
head of an agency, such as the Director of Central Intelligence, would
not be subject to correction or review.  See Securities Indus. Ass'n
v. Board of Governors, 468 U.S. 137, 150-152 (1984).

   Respondent contends (Br. in Opp. 9) that the legislative history of
the National Security Act of 1947 is silent about Section 102(c), and
that this silence shows that Congress did not intend to preclude
review.  That claim is not persuasive.  The legislative history of the
National Security Act of 1947 does not specifically address the
meaning of Section 102(c), but the other contemporary evidence of
congressional intent discussed above strongly supports our
construction of the statute.  Ironically, the most likely explanation
for Congress's silence is that by 1947 it was quite familiar with
summary dismissal laws, because it had adopted five similar statutes
in the previous seven years.  Given these oft-stated, consistent, and
contemporaneous expressions of legislative intent, Congress's silence
does not undercut the meaning that is apparent on the face of Section
102(c).  /16/

   3. The structure and objectives of the statutory scheme.  a.
Section 102(c) is an internal component of a multipart statutory
scheme designed to safequard the intelligence-gathering activities of
the CIA.  Broadly speaking, this statutory scheme has four parts.
First, Section 102(d)(3) of the National Security Act of 1947, 50
U.S.C. 403(d)(3), vested in the Director the responsibility "for
protecting intelligence sources and methods from unauthorized
disclosure" and granted him "broad power to protect the secrecy and
integrity of the intelligence process" (CIA v. Sims, 471 U.S. at 170).
 /17/ Second, Section 6 of the Central Intelligence Agency Act of
1949, 50 U.S.C. 403g, enables the Director to prevent the disclosure
of the identities of CIA personnel, by exempting the CIA from any law
requiring the publication of "the organization, functions, names,
official titles, salaries, or numbers of personnel" it employs.
Third, Section 8(b) of that Act, 50 U.S.C. 403j(b), authorizes the
Director to account for CIA expenditures by certificate for "objects
of a confidential, extraordinary, or emergency nature," and thereby
exempts those payments from the accounting requirements normally
required for federal funds.  See 31 U.S.C. 3524(c)-(e) (exempting the
CIA's expenditures from external review outside intelligance
channels).  /18/ Section 102(c) completes the picture by authorizing
the Director to remove personnel when he deems it "necessary or
advisable" to protect the intelligance process.  See Cole v. Young,
351 U.S. 536, 546 (1956) (construing 5 U.S.C. 7532);  Haig v. Agee,
453 U.S. 280, 309-310 (1981).

   "(E)mployment with the CIA involve(s) an extremely high degree of
trust" virtually unmatched elsewhere in government.  Snepp v. United
States, 444 U.S. 507, 510 (1980).  Agency personnel have access to
highly classified information, including delicate
intelligence-gathering and counter-intelligence operations in which
the CIA is involved.  Some employees may be susceptible to blackmail,
bribery, or other means of influence or control by unfriendly foreign
powers.  For "reasons * * * too obvious to call for enlarged
discussion" (CIA v. Sims, 471 U.S. at 170), the Director must have the
ability swiftly to remove any employee in order to prevent the CIA's
intelligence operations from being compromised.  As the Court
explained in Cole v. Young, 351 U.S. at 546:  "There is an obvious
justification for the summary suspension power where the employee
occupies a 'sensitive' position in which he could cause serious damage
to the national security during the delay incident to an investigation
and the preparation of charges.  Likewise, there is a reasonable basis
for the view that an agency head who must bear the responsibility for
the protection of classified information committed to his custody
should have the final day in deciding whether to repose his trust in
an employee who has access to such information."

   This interpretation of Section 102(c) as conferring a power of
summary removal is consistent with this Court's construction in CIA v.
Sims of a companion provision of the National Security Act of 1947,
Section 102 (d)(3), 50 U.S.C. 403 (d)(3), which authorizes the
Director to protect "intelligence sources and methods" from
unauthorized disclosure.  Sims found that in 1947 Congress was acutely
aware of "the practical necessities of modern intelligence gathering"
(471 U.S. at 169) and "the importance of secrecy in the intelligence
field" (id. at 172), particularly the need to protect "the heart of
all intelligence operations -- 'sources and methods'" (id. at 167).
Sims also found these considerations relevant to a proper construction
of Section 102(d)(3).  /19/ Those considerations are equally relevant
here, because Congress could not have intended that the Director's
authority to remove personnel in whom he lacks confidence be less
extensive than his power to protect the CIA's intelligence-gathering
activities.

   b. Section 102(c) must also be viewed in the context of statutes
applicable to intelligence agencies other than the CIA, and which
presently govern relations between the several branches of the
intelligence community.  Other statutes authorize the Secretary of
Defense summarily to remove an officer or employee of the National
Security Agency and the Defense Intelligence Agency, and a civilian
intelligence officer or employee of a military department.  50 U.S.C.
833(a);  10 U.S.C. (Suppl III) 1604(e);  the Intelligence
Authorization Act for Fiscal Year 1987, Pub. L. No. 99-569, Section
504, 100 Stat. 3198 (to be codified at 10 U.S.C. 1590(e)(1));  App. A.
infra.  Congress gave the Secretary of Defense this authority to allow
him to regulate employees' access to sensitive information.  /20/ In
so doing, Congress relied on the authority that it believed had
already been given to the Director by Section 102(c) as the "statutory
precedent" for these other summary removal provisions (H.R. Rep. 108,
88th Cong., 1st Sess. 4 (1963)).  /21/ In addition, pursuant to the
generally applicable provisions of 5 U.S.C. 7532, the head of every
federal agency has the final authority summarily to suspend an
employee and thereafter to discharge him if necessary to protect
national security.  Cole v. Young, 351 U.S. at 546-547;  see Haig v.
Agee, 453 U.S. at 309-310.  /22/

   Section 102(c) must be read in conjunction with these other
statutes, since the CIA plays a central role in the intelligence
community.  The CIA reports to the National Security Council (50
U.S.C. 402, 403(a)) and has several responsibilities.  The CIA must
"advise the National Security Council in matters concerning (the)
intelligence activities of the Government" that "relate to the
national security" (50 U.S.C. 403(d)(1) and (2));  the Agency must
"correlate and evaluate intelligence relating to the national
security, and provide for the appropriate dissemination of such
intelligence within the Government" (50 U.S.C. 403(d)(3));  and, in
general, the CIA must "coordinat(e) the intelligence activities of the
several Government departments and agencies" (50 U.S.C. 403 (d)),
including the NSA and DIA, which report to the Secretary of Defense.
Thus, given the centrality of the CIA's functions in the intelligence
community, it would be quite odd to construe the Director's authority
to make personnel security decisions more narrowly than that of the
Secretary of Defense, or Commerce.  See United States v. American
Bldg. Maint. Indus., 422 U.S. 271, 277 (1975).

 B. Section 102(c) Precludes Review Of Statutory And Constitutional
Challenges To The Director's Action

   The majority below was troubled by the prospect that Section 102(c)
would foreclose review of respondent's constitutional claims (Pet.
App. 14a n.27, 16a-17a and n.33, 18a and n.35, 24a, 27a;  id. at 33a
(Ginsburg, J., concurring)).  This Court has also noted that a serious
constitutional question would be raised by a statute barring a
constitutional challenge to governmental action, and when possible the
Court has read statutes as not foreclosing review of such claims.
E.g., Bowen v. Michigan Academy of Family Physicians, No. 85-225 (June
9, 1986), 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 judicially amended to avoid confronting a
constitutional question, and that a constitutional issue may be
avoided only when it is "fairly possible" to read a statute in another
way.  E.g., CFTC v. Schor, No. 85-621 (July 7, 1986), slip op. 6;
Heckler v. Matthews, 465 U.S. 728, 742-743 (1984);  Crowell v. Benson,
285 U.S. 22, 62 (1932).  In fact, "a distortion of the congressional
purpose" is unjustified "even if the clearly correct purpose * * *
leads inevitably to a holding of constitutional invalidity" (United
States v. Sullivan, 332 U.S. 689, 693 (1948)).

   It is not "fairly possible" to interpret Section 102(c) in a way
that does not bar review of all challenges to the Director's actions.
/23/ The text of the act does not distinguish between constitutional
and nonconstitutional claims;  it vests the Director with unreviewable
discretion "notwithstanding * * * any other law." /24/ Congress
intended that the Director's action would be final, and review for any
reason would frustrate that purpose.  Similarly, disclosure of the
facts and rationale underlying the Director's actions will damage the
CIA functions regardless of the basis on which those actions are
challenged.  In sum, the statute cannot reasonably be read to allow
judicial review of the Director's dismissal decisions when
constitutional challenges to the Director's action are presented.  For
the reasons set forth in Point III below, we believe that the statute
so construed is constitutional.

 II. RESPONDENT CANNOT BRING AN ACTION AGAINST THE DIRECTOR UNDER 28
U.S.C. 1331 TO OBTAIN REINSTATEMENT WITH THE CIA

   Respondent argues (Br. in Opp. 3) that, even if review under the
APA is foreclosed, the district court has authority under 28 U.S.C.
1331 to order him reinstated with the CIA.  /25/ We submit that
following the 1976 amendments to the APA, such an action is plainly
unavailable.

   In 1976, Congress amended the APA to clarify what it saw as
uncertainty regarding the availability of injunctive actions against
government officers.  /26/ Congress concluded that there had been a
"'totally erratic,' haphazard, unpredictable, unfair, inconsistent,
and, in some situations unjust" application of sovereign immunity, and
an arbitrary application of the exceptions allowing suit because
certain actions against federal officers could be viewed as suits to
restrain the individual rather than the government.  S. Rep. 95-996,
94th Cong., 2d Sess. 2, 4, 6, 7, 26 (1976);  H.R. Rep. 94-1656, 94th
Cong., 2d Sess. 6-7 (1976).  In particular, Congress found that
"considerable confusion" existed "whether or not sovereign immunity
bars actions for equitable relief" and whether "employment
discrimination or discharge suits against Federal officers" could be
filed.  H.R. Rep. 94-1656, supra, at 7-8;  S. Rep. 94-996, supra, at
6-7;  cf. Brown v. GSA, 425 U.S. 820, 828-829 (1976).  To remedy that
problem, Congress amended the APA to waive the United States'
sovereign immunity for an action "seeking relief other than money
damages" (5 U.S.C. (Supp. III) 702).

   In so doing, however, Congress did not authorize suits seeking
equitable relief against the United States where judicial review of
the agency's action is otherwise foreclosed.  The waiver of sovereign
immunity was accepted by the Executive Branch on the express condition
that it would be subject to the other limitations imposed by the APA,
such as the preclusion of review provisions of 5 U.S.C. 701(a)(1) and
(2).  /27/ The senate and House Reports on the 1976 APA amendments,
moreover, state repeatedly that the amendments do not repeal other
statutes precluding review.  See H.R. Rep. 94-1656, supra, at 1-27;
S. Rep. 94-996, supra, at 2-26.  As then-Assistant Attorney General
Scalia explained to Congress, "it is * * * an important factor in (the
Justice Department's) support for the bill that the waiver of
immunity, since it is made via Section 702, * * * will be subject to
the other limitations of the Administrative Procedure Act, including
that which renders review unavailable 'to the extent that -- (1)
statutes preclude judicial review, or, (2) agency action is committed
to agency discretion by law.' 5 U.S.C. 701(a).  * * * These features
were considered of great importance by the Administrative Conference
Committee which originally drafted this legislative proposal, and they
are important elements of the Department's support for the bill." H.R.
Rep. 94-1656, supra, at 27 (letter from Assistant Attorney General
Scalia to Subcomm. Chairman Kennedy);  S. Rep. 94-996, supra, at 26
(same).  /28/

   In sum, the 1976 legislative compromise embodied an intent that
equitable remedies not be available where other statutes prevent
review under the APA.  Section 102(c) is one of those statutes.  It is
an "explicit congressional declaration" (Bivens v. Six Unknown Named
Agents, 403 U.S. 388, 397 (1971);  Davis v. Assman, 442 U.S. 228,
246-246 (1979)) that the Director must have the final say about who
may work for the CIA.  If that declaration is constitutional, courts
may not nullify it by relying on 28 U.S.C. 1331 to order the CIA to
reinstate a former employee over the Director's objection.  See Block
v. North Dakota, 461 U.S. 273, 280-286 (1983) (Congress's adoption of
a comprehensive scheme in the Quiet Title Act, 28 U.S.C. 2409a, to
adjudicate title disputes involving real property in which the United
States claims an interest forecloses "officers' suits");  Brown v.
GSA, 425 U.S. 820 (1976) (Congress's adoption of a comprehensive
scheme in Section 717 of the Civil Rights Act of 1974, 42 U.S.C.
2000e-16, to remedy federal employment discrimination forecloses other
forms of judicial relief).  /29/

 III. SECTION 102(c) OF THE NATIONAL SECURITY ACT OF 1947 MAY
CONSTITUTIONALLY BE APPLIED TO DENY AN EMPLOYEE OF THE CIA A JUDICIAL
REINSTATEMENT REMEDY, BECAUSE IT IS A REASONABLE MEANS OF PROMOTING
THE GOVERNMENT'S COMPELLING INTEREST IN PROTECTING THE FACT AND
APPEARANCE OF SECRECY IN THE INTELLIGENCE PROCESS

   If the Court concludes that plaintiff has raised a colorable
constitutional claim, the final question is whether Section 102(c) may
be validly applied to preclude review of respondent's constitutional
challenges to his discharge.  /30/ Of critical importance in
addressing this issue is the national security context in which the
statute operates.  The extraordinary considerations justifying the
denial of a judicial remedy of reinstatement in these circumstances
distinguish this case from the far broader and much debated issue of
legislative restriction of federal court jurisdiction.  /31/

   1. Section 102(c) relates directly to the ability of the President
to carry out his responsibilities as head of the Executive Branch
concerning national security and foreign policy.  That context is
important because the government has a surpassing interest in the
successful execution of national policy in these fields.  As the Court
has often recognized, "(i)t is 'obvious and unarguable' that no
governmental interest is more compelling than the security of the
Nation." Haig v. Agee, 453 U.S. at 307 (citation omitted);  Aptheker
v. Secretary of State, 378 U.S. 500, 509 (1964);  Cole v. Young, 351
U.S. at 546;  Lichter v. United States, 334 U.S. 742, 781 (1948);
accord Halperin v. Kissinger, 807 F.2d 180, 187 (D.C. Cir. 1986)
(Scalia, Circuit Justice, sitting by designation).

   The Constitution looks to the Executive to execute the
congressional policies necessary to safeguard our interests in these
fields.  Article II vests "(t)he executive Power" in the President and
"establishes the President as the chief constitutional officer of the
Executive Branch, entrusted with supervisory and policy
responsibilities of utmost discretion and sensitivity." Nixon v.
Fitzgerald, 457 U.S. 731, 750 (1982).  This authority is particularly
broad in connection with national security and foreign affairs.  "In
the governmental structure created by our Constitution, the Executive
is endowed with enormous power in the two related areas of national
defense and international relations." New York Times Co. v. United
States, 403 U.S. at 727 (Stewart, J., concurring);  see also id. at
741 (Marshall, J., concurring);  id. at 756-758 (Harlan, J.,
dissenting);  id. at 761 (Blackmun, J., dissenting).  As
Commander-in-Chief, the President shoulders the ultimate
responsibility for the nation's security.  Art. II, Section 2, Cl. 1;
Cafeteria Workers v. McElroy, 367 U.S. 886 (1961);  United States v.
Reynolds, 345 U.S. 1, 10 (1953);  Chicago and Southern Air Lines, Inc.
v. Waterman S.S. Corp., 333 U.S. at 109-112.  The President has "the
fundamental duty, under Art. II, Section 1, of the Constitution, to
'preserve, protect and defend the Constitution of the United States.'
Implicit in that duty is the power to protect our Government against
those who would subvert or overthrow it by unlawful means" United
States v. United States District Court, 407 U.S. 297, 310 (1972).  The
Executive also wields "very delicate, plenary, and exclusive power"
over the conduct of foreign affairs, and he serves as the 'sole organ
of the federal government in the field of international relations."
United States v. Curtiss-Wright Export Co., 299 U.S. 304, 320 (1936);
see also Goldwater v. Carter, 444 U.S. 996, 1002-1005 (1979)
(Rehnquist, J., concurring in the judgment);  Banco Nacional de Cuba
v. Subbatino, 376 U.S. 398 (1964);  United States v. Pink, 315 U.S.
203, 222-223 (1942).  The authority of the President in foreign
affairs or national security is also at its apogee when, as here, he
acts pursuant to express authorization from Congress.  Dames and Moore
v. Regan, 453 U.S. 654, 668 (1982), Youngstown Sheet and Tube Co. v.
Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).

   2. Intelligence-gathering activities are necessary for the
President to resolve the "important, complicated, delicate, and
maniford problems" in foreign affairs (United States v. Curtiss-Wright
Export Corp., 299 U.S. at 319).  Since the end of World War II, the
President has been forced to rely increasingly on intelligence to
obtain advance warning about aggressive moves by hostile foreign
powers.  Today, "(i)tis impossible for a government wisely to make
critical decisions about foreign policy and national defense without
the benefit of dependable foreign intelligence." Snepp v. United
States, 444 U.S. at 512 n.7.

   It is also elementary that secrecy is crucial to the effective
operation of the intelligence process.  The President must be able to
rely on "intelligence services whose reports are not ought not to be
published to the world" (Chicago and Southern Air Lines, Inc. v.
Waterman S.S. Corp., 333 U.S. at 111).  Intelligence activities,
including military and diplomatic undertakings, have been carried out
in secret throughout our history.  Covert intelligence operations
demand special protection to ensure that intelligence sources are not
compromised and that diplomatic policies are not embarrassed.  Doubts
about our ability to shelter information will make friendly nations
less willing to share it with us.  In some cases, the continued
availability of intelligence sources depends upon the Executive's
ability to guarantee the security of information that might compromise
their identity and endanger their safety.  See Snepp v. United States,
444 U.S. at 512-513;  New York Times Co. v. United States, 403 U.S. at
728-730 (Stewart, J., concurring).  Without protection for the
integrity of the intelligence process, our intelligence services
"would be virtually impotent." CIA v. Sims, 471 U.S. at 170.  The
Court has therefore 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 v. United States, 44 U.S.
at 509 n.3;  see also CIA v. Sims, 471 U.S. at 175;  Haig v. Agee, 453
U.S. at 307;  Chicago and Southern Air Lines, Inc. v. Waterman S.S.
Corp., 333 U.S. at 111;  Totten v. United States, 92 U.S. 105, 106-107
(1875).

   3. Nor is there anything extraordinary about foreclosing litigation
that could require the government to disclose secrets potentially
damaging to vital national interests.  /32/ On the contrary, in Totten
v. United States, 92 U.S. 105 (1875), this Court approved that
practice nearly three quarters of a century before the National
Security Act of 1947 was adopted.  There, the Court ruled that federal
courts should dismiss an action requiring the government to divulge
information relating to employment with an intelligence agency,
because "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" (id.
at 107).  See also Weinberger v. Catholic Action of Hawaii/Peace
Education Project, 454 U.S. 139, 146-147 (1981) (reaffirming Totten).
/33/ The state secrets privilege can also prevent a party from
obtaining relief, even for a constitutional claim.  Under that
privilege, state secrets -- i.e., information that could impair the
nation's defense, reveal intelligence gathering methods or
capabilities, or disrupt diplomatic relations with foreign governments
-- are absolutely privileged from disclosure regardless of the
strength of the competing private or public need for information.
Because of the privilege, an action may be dismissed, even if
constitutional claims are involved, when a plaintiff cannot establish
his case without the use of such information.  See, e.g., United
States v. Reynolds, 345 U.S. 1 (1953);  Fitzgerald v. Penthouse Int'l,
Ltd., 776 F.2d 1236 (4th Cir. 1985);  Molerio v. FBI, 749 F.2d 815
(D.C. Cir. 1984);  Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982);
Salisbury v. United States, 690 F.2d 966 (D.C. Cir. 1982 ;  Farnsworth
Cannon, Inc. v. Grimes, 635 F.2d 268 (4th Cir. 1980) (en banc).  /34/

   Section 102(c) augments the protection provided by the privilege.
It avoids the risk that even invoking the state secrets privilege will
reveal matters of interest to a hostile power.  That risk may seem
unimportant in an individual case, because a court will not know the
context in which it appears.  This Court, however, has recognized that
"(i)t is conceivable that the mere explanation of why information must
be withheld can convey valuable information to a foreign intelligence
agency," which will have "both the capacity to gather and analyze any
information that is in the public domain and the substantial expertise
in deducing the identities of intelligence sources from seemingly
unimportant details." CIA v. Sims, 471 U.S. at 178-179.  /35/ That
risk will be enhanced, however, if the Director over time is compelled
to reveal the CIA's personnel practices.  A hostile power could learn
from the Director's rationale whether it had successfully penetrated a
certain network of employees, thereby defeating the Agency's efforts
to protect its counter-intelligence operations.  Moreover, because the
courts must determine whether the state secrets privilege is
applicable (United States v. Reynolds, 345 U.S. at 8), Section 102(c)
protects against the risk that a court will misjudge the need for
secrecy.

   To be sure, respondent was discharged, not simply denied access to
confidential information.  But that fact does not call for a different
answer.  To begin with, insofar as respondent has sought a form of
relief that only the United States can afford him, he must overcome
the sovereign's immunity from suit, which is triggered, absent a
waiver, whenever the relief sought operates against the United States.
 See page 29 note 26, supra.  That immunity applies regardless of the
substantive issue on which the claim is brought.  Lynch v. United
States, 292 U.S. 571, 581-582 (1934);  Bartlett v. Bowen, 816 F.2d
695, 718-730 (D.C. Cir. 1987) (Bork, J., dissenting).  /36/ If, as
here, a plaintiff's claim would be barred by sovereign immunity, it is
difficult to imagine that Congress acts unconstitutionally by failing
to provide an affirmative judicial remedy.

   Beyond that, for most of our history the President had absolute
power to remove federal employees for any reason, and the federal
courts lacked authority to review the Executive's action absent an
express statutory restraint.  Indeed, public employees could generally
be required to surrender their constitutional rights as a condition of
their employment.  /37/ That doctrine is, of course, not the law
today.  See generally Connick v. Myers, 461 U.S. 138 (1983).  But the
government may impose reasonable restrictions on the actions of
federal employees, especially intelligence personnel.  Snepp v. United
States, 444 U.S. at 509n.3;  cf. Brown v. Glines, 444 U.S. 348,
353-358 (1980).  Section 102(c) is just such a reasonable limitation
of employee rights.

   Decisions of this Court and the lower federal courts demonstrate
that the Constitution is sufficiently flexible that it can accommodate
the government's interests in national security areas.  For instance,
in Cole v. Young, 351 U.S. at 546-547, this Court acknowledged that
federal employees in sensitive positions whose continued employment
could have discernible adverse effects on the nation's security can be
summarily suspended without a presuspension hearing.  The District of
Columbia Circuit expressly held in Scher v. Weeks, 231 F.2d 494, 494,
cert. denied, 351 U.S. 973 (1956), that a summary removal statute
similar to Section 102(c) did not violate the Due Process Clause.  See
also Haig v. Agee, 453 U.S. at 309-310 (the government may rescind a
passport without offering its holder a prior hearing when there is a
substantial likelihood that his actions in a foreign country will
seriously damage national security or foreign policy).  Snepp v.
United States, 444 U.S. at 509 n.3 ruled that a person accepting
employment with the CIA may be required, consistently with the First
Amendment, to agree to a prior restraint on his opportunity to write
about intelligence matters as a condition of his employment with the
Agency.  See also Alfred Al. Knopf, Inc. v. Colby, 509 F.2d 1362, 1370
(4th Cir.), cert. denied, 421 U.S. 992 (1975);  United States v.
Marchetti, 466 F.2d at 1313-1318 (both upholding the government's
right to obtain an injunction against publication in cases like
Snepp);  cf. Brown v. Glines, 444 U.S. at 353-358 (upholding over a
First Amendment challenge regulations requiring servicemen to obtain
the approval of their commanding officer to circulate petitions on
base).

   Section 102(c) is also narrowly tailored to employment voluntarily
undertaken with the CIA.  In some instances, an employee can be
transferred elsewhere within the Agency, rather than be discharged.
Even if a person is removed from the CIA, he is not disabled from
holding other federal employment.  The last clause of Section 102(c)
provides that removal from the CIA does not itself prevent an employee
from obtaining other federal employment if the head of the U.S. Civil
Service Commission (now the Director of the Office of Personnel
Management) concludes that he can be employed elsewhere in the federal
government.  Accord 10 U.S.C. (Supp. III) 1604(e)(2);  50 U.S.C. 833b;
 the Intelligence Authorization Act for Fiscal Year 1987, Pub. L. No.
99-569, Section 504, 100 Stat. 3198 (to be codified at 10 U.S.C.
1590(e)(2)) (to the same effect).

   Precluding review of the Director's removal decisions is not the
equivalent of immunity from all legal, political, and personal
consequences.  Congressional inquiry and oversight, criticism from
other Executive Branch officials, and dismissal of the Director from
office should not be discounted.  Congress has established select
committees on intelligence in both chambers, and persons such as
respondent can seek relief in those forums.  The President has also
established the Intelligence Oversight Board for the Executibe Branch,
and parties such as respondent may seek relief there as well.  Given
these safeguards, the risks posed by judicial inquiry into this
sensitive area, and Congress's established attitude toward the need
for summary dismissal authority in the national security services,
judicial review of national security dismissals must be deemed
procluded, even for "arguable" constitutional claims.

   4. In summary, there are occasions when the public interest in the
security and integrity of intelligence establishments must prevail
over the public and private interests in the vindication of individual
rights.  That is true in this case.  Section 102(c) requires a CIA
employee to forego the opportunity to overturn in court the Director's
decision that the employee should no longer work for the CIA.  The act
does so in order to strengthen the Director's ability to protect the
intelligence process.  And that result is in the interests of every
citizen, including the one who has been discharged.  As Viscount Simon
wrote in Duncan v. Cammel Laird and Co., (1942) A.C. 624 (H.L.);
(1492) 1 All E.R. 587, 595-596, in a decision upholding the British
government's refusal to disclose certain secret information:  "After
all, the public interest is also the interest of every subject of the
realm, and while, in the exceptional cases, the private citizen may
seem to be denied what is to his immediate advantage, he like the rest
of us, would suffer if the needs of protecting the interests of the
country as a whole were not randed as a prior obligation."

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   DONALD B. AYER

      Deputy Solicitor General

   PAUL J. LARKIN, 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

   AUGUST 1987

   /1/ Respondent has at all times proceeded under a pseudonym because
his status as a CIA employee cannot be publicly acknowledged (J.A.
5-6).

   /2/ At this state 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 (J.A. 52).

   /3/ The court noted the reference in Setion 102(c) to 5 U.S.C. 7501
-- the statutory protections afforded most federal employees, -- which
allow termination "only for such cause as will promote the efficiency
of the service" (5 U.S.C. 7513(a)) (Pet. App. 13a).

   /4/ The court found it "unlikely" that respondent was discharged
for reasons having nothing to do with his homosexuality (Pet. App.
25a), but ruled 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 (Pet. App. 26a).

   In addition, if the district court found that respondent was
dismissed because his homosexuality posed a security risk, the court
explained, 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 required that he
receive an opportunity "to refute the charges and 'clear his name'"
(Pet. App. 31a (footnote omitted)).  In that event, however,
respondent's challenge to his dismissal would not succeed, because the
CIA had provided him with all the process that was due by giving him a
meaningful opportunity to challenge 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 (Pet. 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 Ginsburg joined the majority opinion but also wrote a
brief separate concurrence (Pet. App. 33a).

   /7/ Judge Buckley concurred in the majority's ruling 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 (Pet. App. 34a).

   /8/ See, e.g., White v. Berry, 171 U.S. 366, 377-378 (1898)
(judicial review unavailable in an action for reinstatement);  Keim v.
United States, 177 U.S. 290, 292-294 (1900) (judicial review
unavailable in an action for damages);  Eberlein v. United States,257
U.S. 82, 84 (1921);  Bailey v. Richardson, 182 F.2d 46 (D.C. Cir.
1950), aff'd by an equally-divided court, 341 U.S. 918 (1951);  Carter
v. Forrestal, 175 F.2d 364, 365 (D.C. Cir.), cert. denied, 338 U.S.
832 (1949) (collecting cases);  see generally Chaturvedit, Legal
Protection Available to Federal Employees Against Wrongful Dismissal,
63 Nw. U.L. Rev. 287, 307-330 (1968).  The oft-stated reason was that
this broad power of removal was incident to the power of appointment
(U.S. Const. Art. II, Section 2), and the latter was essential to the
Executive's duty to "take Care that the Laws be faithfully executed"
(U.S. Const. Art. II, Section 3).  E.g., Myers v. United States, 272
U.S. 52, 117 (1926);  Keim v. United States, 177 U.S. at 293;  In re
Hennen, 38 U.S. (13 Pet.) 230, 259 (1839).

   /9/ It is clear from the Civil Service Reform Act (CSRA), as well,
that the Director's discretion is not limited by the protections of
that statute.  See 5 U.S.C. 2302(a)(2)(C)(ii) (exempting the CIA from
Chapter 23), 2305 (the SCRA does not "impair" the Director's authority
under Section 102(c)), 4301(1)(C)(ii) (exempting the CIA from Chapter
43 regarding dismissal for unacceptable performance);  H.R. Conf. Rep.
95-1717, 95th Cong., 2d Sess. 127-128 (1978);  S. Conf. Rep. 95-1272,
95th Cong., 2d Sess. 127-128 (1978);  S. Rep. 95-969, 95th Cong., 2d
Sess, 41 (1978);  Neely v. United States, No. 80-2266 (D.C. Cir. Nov.
24, 1986), slip op. 4 (footnote omitted) ("an employee discharged
under section 102(c) of the National Security Act has no recourse to
the procedures set forth in section 7513 of Title 5"), petition for
cert. pending, No. 86-6716;  Department of the Navy v. Egan, 802 F.2d
1563, 1567 n.2 (Fed. Cir. 1986), cert. granted.  No. 86-1552 (May 26,
1987) (Section 102(c) is not limited by the SCRA);  see also 50 U.S.C.
403(c) (exempting the Director's removal decisions from 5 U.S.C.
7513).  Compare Padula v. Webster, No. 86-5053 (D.C. Cir. June 26,
1987), slip op. 6 and n.3.

   We argued in United States v. Fausto, cert. granted, No. 86-595
(Jan. 12, 1987) (a copy of our brief has been furnished to
respondent's counsel), that the Civil Service Reform Act of 1978, 5
U.S.C. (and Suppl III) 7501 et seq., is a comprehensive regulation of
the procedures to be followed in adverse personnel actions involving
federal employees and that the structure and provisions of the SCRA
demonstrate that Congress intended to deny federal employees any other
remedy that could be maintained under more general statutes.  Our
argument in Fausto applies with equal force here:  it would be
anomalous to afford respondent greater rights than an employee such as
Fausto when Congress has expressly provided that CIA personnel are
exempt from the CSRA.

   /10/ For example, in adopting a 1983 intelligence authorization act
amendment, 50 U.S.C. (Supp. III) 403f(f), Congress noted that its
language "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).

   /11/ The Department of State Appropriation Act, 1952, ch. 533,
Section 103, 65 Stat. 581 (expired at the close of fiscal year 1952).
See Pet. App. 41a-42a (quoting act).

   /12/ In Ludecke v. Watkins, 335 U.S. 160 (1948), the President,
pursuant to his authority under the Alien Enemies Act of 1798, ch. 58,
1 Stat. 570, has promulgated a regulation directing the removal from
the United States of 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,'" since "(t)he President was careful to call
for the removal of aliens 'deemed by the Attorney General to be
dangerous,'" rather than those who were dangerous in fact (id. at
165).  Similarly, in United States ex rel. Brown v. Lane, 232 U.S. 598
(1914), the Secretary of the Interior was authorized by statute 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).  The 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.

   Accord Torpats v. McCone, 300 F.2d 914, 914 (D.C. Cir,), cert.
denied, 371 U.S. 886 (1962) (the court, in construing Section 102 (c),
did not require the Director to explain why he deemed it "in the
interests of the United States" to remove the employee and simply
determined that the Director had acted within his statutory
authority);  Scher v. Weeks, 231 F.2d 494 (D.C. Cir.), cert. denied,
351 U.S. 973 (1956) (similar construction of a statute authorizing the
Secretary of Commerce to remove an employee "whenever he shall deem
such termination necessary or advisable in the best interests of the
United States");  Baker v. United States, 224 Ct. Cl. 760, 762 (1981),
cert. denied, 450 U.S. 1040 (1981) (citation omitted) (Section 102(c)
"'gave the Director the absolute right to terminate any employee
whenever he deemed it necessary or advisable'");  Rhodes v. United
States, 156 Ct. Cl. 31, 36, cert. denied, 371 U.S. 821 (1962) (former
CIA employee could not challenge his dismissal on the ground that it
violated the Veterans Preference Act).  Cf. Falkowski v. EEOC, 764
F.2d 907, 911 (D.C. Cir. 1984), cert. denied, No. 85-1894 (June 30,
1986) (Attorney General has the unreviewable discretion to decide
whether to provide counsel for government employees in private
litigation pursuant to his authority to attend to "the interests of
the United States" under 28 U.S.C. 517).  But cf. Padula v. Webster,
slip op. 9 (relying on the court of appeals' decision in this case to
review agency action for constitutional claims even when the action is
committed to agency discretion by law).  Torpats and Baker also
recognized that, under Section 102(c), "the interests of the United
States" are not limited to threats to the national security.

   The majority below made no effort to distinguish Service, Baker, or
Rhodes.  It distinguished Torpats on the ground that Torpats
supposedly did not refuse to review the Director's decision to dismiss
a CIA employee and instead held that the Director had acted within his
statutory authority (Pet. 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 Torpats v. McCone is
that the court believed that the Director had plenary authority under
Section 102(c) to discharge a CIA employee.

   /13/ This point is explained in greater detail in our brief in
Department of the Navy v. Egan, cert. granted, No. 86-1552 (May 26,
1987).  We have furnished a copy of our Egan brief to respondent's
counsel.

   /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 was declassified only in
1982.  National Security Act of 1947:  Hearings on H.R. 2319 Before
the House Comm. on Expenditures in the Executive Departments, 80th
Cong., 1st Sess. v-viii (1947) (published 1982) (hereinafter Secret
House Hearings).

   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.  Secret House Hearings 10-11 (statement of
General Vandenburg, former head of the Central Intelligence Group, the
predecessor of the CIA);  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 operations, 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/ The 12 acts other than Section 102(c) were the Act of June 28,
1940, ch. 440, Section 6, 54 Stat. 679;  the Act of Dec. 17, 1942, ch.
739, Section 3, 56 Stat. 1053;  the Department of State Appropriation
Act, 1947, ch. 541, Tit. I, 60 Stat. 458;  the Atomic Energy Act of
1946, ch. 724, Section 12(a)(4), 60 Stat. 771;  the Department of
State Appropriation Act, 1948, ch. 211, 61 Stat. 279;  the Department
of State Appropriation Act, 1949, ch. 400, Tit. I, Section 104, 62
Stat. 315;  the Department of State Appropriation Act, 1950, ch. 354,
Tit. I, Section 104, 63 Stat, 447;  the National Military
Establishment Appropriation Act, 1950, ch. 787, Title VI, Section 630,
63 Stat. 1023;  the Act of Aug. 26, 1950, ch. 803, Section 1, 64 Stat.
476 (codified at 5 U.S.C. 7532);  the General Appropriation Act, 1951,
ch. 896, Section 1213, 64 Stat. 768;  the Departments of State,
Justice, Commerce, and the Judiciary Appropriation Act, 1952, ch. 533,
Tit. I, Section 102, Tit. III, Section 304, 65 Stat. 581, 594;  the
Departments of State, Justice, Commerce, and the Judiciary
Appropriation Act, 1953, ch. 651, Tit. I, Section 103, Tit. III,
Section 304, 66 Stat. 555, 567.  Moreover, in 1950, in the course of
enacting a general statute authorizing the removal of federal
employees on national security grounds, 5 U.S.C. 7532, the House
expressly rejected two proposals that would have subjected the removal
decision to review by an outside body, such as the Civil Service
Commission.  96 Cong. Rec. 10023-10029 (1950).

   For the convenience of the Court, these 12 acts and the relevant
portions of their legislative history are listed at App. B, infra.

   /16/ See Fullilove v. Klutznick, 448 U.S. 448, 503 (1980) (Powell,
J., concurring) ("After Congress has legislated repeatedly in an area
of national concern, its Members gain experience that may reduce the
need for fresh hearings or prolonged debate when Congress again
considers action in that area.").  In any event, "Congress' silence is
just that -- silence" (Alaska Airlines, Inc. v. Brock, No. 85-920
(Mar. 25, 1987), slip op. 7), and silence in the legislative history
cannot impeach the statutory text (Bourjaily v. United States, No.
85-6725 (June 23, 1987), slip op. 6;  Harrison v. PPG Industries,
Inc., 446 U.S. 578, 592 (1980)).

   /17/ The practice of designating information as "private,"
"confidential," or "secret" and to be withheld from the public began
in the nineteenth century and has continued to the present.  This
practice is described in our brief in Department of the Navy v. Egan,
supra.  Except in extraordinary circumstances, the identities of
intelligence operatives have never been disclosed.

   /18/ From the earliest days of the Republic Congress has
consistently found that the national interest demands confidentiality
regarding the expenditure of public funds for certain purposes, such
as the conduct of foreign relations.  See United States v. Richardson,
418 U.S. 166, 175 and n.7, 178 n.11 (1974);  Halperin v. CIA, 629 F.2d
144, 159-161 (D.C. Cir. 1980);  Harrington v. Bush, 553 F.2d 190,
195-196 (D.C. Cir. 1977).  From the First Congress to the present, the
President has been authorized to withhold a public accounting of the
expenditures that he believed should not be made public.  E.g., Act of
July 1, 1790, ch. 22, Section 1, 1 Stat. 129 (authorizing the
President to account only for the expenditures he believed should be
made public);  Act of Feb. 9, 1793, ch. 4, 1 Stat. 300 (establishing
permanent authorization for the accounting of such funds by
certificate if the President determined that the expenditure should
not be made public);  Rev. Stat. Section 291 (1878 ed.) (codifying Act
of Feb. 9, 1793);  31 U.S.C. 3526(e).  Congress has also included in
specific appropriations acts specific authority to account by
certificate for expenditures in the area of foreign affairs.  E.g.,
Act of Mar. 3, 1887, ch. 342, 24 Stat. 481;  Act of Apr. 29, 1926, ch.
195, 44 Stat. 335;  22 U.S.C. 2671;  31 U.S.C. 3526(e).

   /19/ Sims repeatedly emphasized that Section 102(d)(3) vested in
the Director "broad power" (471 U.S. at 173) and "very broad" and
"wide-ranging authority" (id. at 168-169, 177) to "control the
disclosure of intelligence sources" (id. at 173) and to "protect the
secrecy and integrity of the intelligence process" (id. at 170) by
authorizing the Director "to shield those Agency activities and
sources from any disclosures that could unnecessarily compromise the
Agency's efforts" (id. at 169).  Sims further noted that, given "the
harsh realities of the present day" (id. at 174), a narrow
construction of Section 102(d)(3) could have "dangerous consequences"
(471 U.S. at 174), in part because courts, which "have little or no
background in the delicate business of intelligence gathering" (id. at
176) and are unfamiliar with "'the whole picture'" (id. at 179), are
not likely to judge correctly whether information should be disclosed
(see also ibid.).

   /20/ For 50 U.S.C. 833(a), see S. Rep. 926, 88th Cong., 2d Sess. 2
(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").

   /21/ 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. 43p. 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 Intelligence Agency should be able to
operate its personnel management system on an equal footing with its
two sister intelligence agencies.").

   /22/ S. Rep. 2158, 81st Cong., 2d Sess. 2 (1950) ("The purpose of
this bill is to increase the authority of the heads of Government
departments engaged in sensitive activities to summarily suspend
employees considered to be bad security risks, and to terminate their
services if subsequent investigation develops facts which support such
action.");  H.R. Rep. 2330, 81st Cong., 2d Sess. 1-5 (1950);  96 Cong.
Rec. 9618 (1950) (Rep. Rees);  H.R. Rep. 2264, 80th Cong., 2d Sess. 2
(1948) ("the Central Intelligence Agency * * * is provided adequate
authority to deal with these matters under section 102(c) of the
National Security Act of 1947.");  S. Rep. 1155, 80th Cong., 2d Sess.
2-4 (1948).

   /23/ We also believe that the majority below erred in concluding
that respondent has presented an arguable constitutional claim.  The
majority conceded that this Court's decision in Bowers v. Hardwick,
No. 85-140 (June 30, 1986), and the court of appeals' own previous
decision in Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984), make
clear that "homosexual conduct is not constitutionally protected"
(Pet. App. 27a (emphasis in original)).  The D.C. Circuit recently
reaffirmed this conclusion in Padula v. Webster, slip op. 14, stating
that "FBI agents perform counterintelligence duties that involve
highly classified matters relating to the national security.  It is
not irrational for the Bureau to conclude that the criminalization of
homosexual conduct coupled with the general public opprobrium toward
homosexuality exposes may homosexuals, even 'open' homosexuals, to the
risk of possible blackmail to protect their partners, if not
themselves." That is sufficient to dispose of respondent's claims,
because he stated in his amended complaint that he "has engaged in
homosexual activities since 1976" (J.A. 15;  see also id. at 24).
Judge Buckley was correct (Pet. App. 52a-54a) that the majority
strained to find an arguable constitutional claim.

   /24/ Likewise, the APA preclusion sections (5 U.S.C. 701(a)(1) and
701(a)(2)) do not distinguish between constitutional and
nonconstitutional claims even though the APA's cause of action
includes cases where the agency has acted "contrary to constitutional
right" (5 U.S.C. 706(2)(B)).

   /25/ Neither court below considered this issue.  We will address
it, however, because respondent has indicated that he will present it
as an alternative ground for affirmance.

   /26 Absent a waiver by Congress, a suit to enjoin action by a
federal officer is barred by sovereign immunity when the United States
itself would be restrained by a judgment sought.  Hawaii v. Gordon,
373 U.S. 57, 58 (1963) ("The general rule is that relief sought
nominally against an officer is in fact against the sovereign if the
decree would operate against the latter.");  Dugan v. Rank 372 U.S.
609, 620 (1963) (citations omitted) ("The general rule is that a suit
is against the sovereign if 'the judgment sought would * * * interfere
with the public administration,' or if the effect of the judgment
would be 'to restrain the Government from acting, or to compel it to
act.'");  Larson v. Domestic and Foreign Corp., 337 U.S. 682, 688-689
(1949);  see Pennhurst State School and Hosp. v. Halderman, 465 U.S.
89, 101-102 and n.11 (1984) (same rule under Eleventh Amendment).

   At the same time, this Court has held that where a plaintiff seeks
to restrain allegedly unconstitutional action by a federal officer,
the action should not be deemed one against the sovereign because "the
conduct against which specific relief is sought is beyond the
officer's powers and is, therefore, not the conduct of the sovereign."
Larson v. Domestic and Foreign Corp., 337 U.S. 682, 690 (1949);  Ex
parte Young, 209 U.S. 123 (1908);  United States v. Lee, 106 U.S. 196
(1882).  The application of this exception is further complicated
because the Court has said it may not apply "if the relief requested
can not be granted by merely ordering the cessation of the conduct
complained of but would require affirmative action by the sovereign or
the disposition of unquestionably sovereign property." Larson, 337
U.S. at 691 n.11;  id. at 713-715 (Frankfurter, J., dissenting).  Some
courts held that a federal employee could not sue his employer to
obtain reinstatement or a promotion.  See Blaze v. Moon, 440 F. 2d
1348 (5th Cir. 1971) (dismissal);  Gnotta v. United States, 415 F.2d
1271 (8th Cir. 1969);  397 U.S. 937 (1970) (promotion).  Contra Bowers
v. Campbell, 505 F.2d 1155 (9th Cir. 1974) (assignment and promotion);
 DeLong v. Hampton, 422 F.2d 21 (3d Cir. 1970) (dismissal).

   /27/ The text of the amended APA reflects that compromise.  Section
701(a)(1) and (2) provides that Chapter 7 of Title 5, which includes
the APA's waiver of sovereign immunity, does not apply when judicial
review is foreclosed.  Section 702(1) provides that the waiver of
sovereign immunity found in that section does not affect other
limitations on judicial review.  When read together, these provisions
indicate that the APA's waiver of sovereign immunity is inapplicable
where the APA does not authorize judicial review.  See H.R. Rep.
94-1656, supra, at 27 (letter from Assistant Attorney General Scalia
to Subcomm. Chairman Kennedy);  S. Rep. 94-996, supra, at 26(same);
14 C. Wright, A. Miller, and E. Cooper, Federal Practice and Procedure
2d Section 3659, at 358 (1985) (footnote omitted) ("there is no
consent to waive immunity when a statute precludes judicial review, or
when the injurious action is committed to agency discretion by law").

   /28/ The Administrative Conference recommended that the sovereign
immunity doctrine be modified, but the Conference also believed that
the modification should not affect other limitations on judicial
review.  See the Administrative Conference of the United States,
Recommendation No. 69-1 -- Statutory Reform of the Sovereign Immunity
Doctrine (adopted Oct. 21-22, 1969) (reprinted at S. Rep. 94-996,
supra, at 22).

   /29/ Even if Section 102(c) were not itself a complete bar to
review, it would be a powerful reason for not creating a reinstatement
remedy within the intelligence community.  See Bivens, 403 U.S. at 407
(Harlan, J., concurring in the judgment) ("the range of policy
considerations we may take into account is at least as broad as the
gauge of those a legislature would consider with respect to an express
statutory authorization of a traditional remedy").  Unlike damages
(Bivens, 403 U.S. at 395), reinstatement is not a form of relief that
federal courts have traditionally awarded federal employees;  in fact,
the contrary is true.  See White v. Berry, 171 U.S. at 377-378 (absent
an express statute to the contrary, federal courts may not order a
federal employee reinstated).  Moreover, Section 102(c) and the
numerous former and current summary removal provisions applicable to
other agencies and intelligence services qualify as "special concerns
counseling hesitation" (Davis, 442 U.S. at 246) in creation of a
reinstatement remedy.  See Mitchell v. Forsyth, 472 U.S. 511, 538-542
(1985) (Stevens, J., concurring in the judgment) (provision in the
federal wiretapping laws specifically exempting interceptions under
President's authority for national security purposes should counsel
some hesitation in creating a damages remedy against the Attorney
General for ordering such a wiretap).  These statutes show that
reinstatement with an intelligence agency is an inappropriate form of
relief even for a person who has been unconstitutionally discharged.
Whether respondent could bring a Bivens suit for damages is not raised
by this case.

   /30/ Neither court below resolved that question.  We will address
it, however, because the Court's answer to that question may influence
its construction of Section 102(c).  See Johnson v. Robison, 415 U.S.
at 366-367.

   /31/ E.g., Gunther, Congressional Power to Curtail Federal Court
Jurisdiction:  An Opinionated Guide to the Ongoing Debate, 36 Stan. L.
Rev. 895 (1984);  Symposium:  Congressional Limits on Federal Court
Jurisdiction, 27 Vil. L. Rev. 893 (1982);  Redish and Woods,
Congressional Power to Control the Jurisdiction of Lower Federal
Courts:  A Critical Review and a New Synthesis, 124 U. Pa. L. Rev. 45
(1975);  Sager, Foreword:  Constitutional Limitations on Congress'
Authority to Regulate the Jurisdiction of the Federal Courts, 95 Harv.
L. Rev. 17 (1981);  Tribe, Jurisdictional Gerrymandering:  Zoning
Disfavored Rights Out of the Federal Courts, 16 Harv. C.R.-C.L. L.
Rev. 129 (1981);  Van Alstyne, A Critical Guide to Ex Arte McCardle,
15 Ariz. L. Rev. 229 (1973);  Hart, The Power of Congress to Limit the
Jurisdiction of Federal Courts:  An Exercise In Dialectic, 66 Harv. L.
Rev. 1362 (1953).

   Section 102(c) is not subject to criticism on most of the grounds
that have been voiced against laws restricting the jurisdiction of the
federal courts.  It does not use an invidious characteristic, such as
race, as a basis for denying review.  Compare Washington v. Seattle
School Dist. No. 1, 458 U.S. 457 (1982) (invalidating a state law
forbidding busing on racial grounds);  Hunter v. Erickson, 393 U.S.
385 (1969) (invalidating city charter amendment mandating a voters'
referendum before any ordinance concerning racial, religious, or
ancestral discrimination could become effective).  Nor does it
foreclose review to a group that can be fairly classified as "a
discrete and insular minority" (United States v. Carolene Products
Co., 304 U.S. 144, 152-153 n.4 (1938)), because employees of an
intelligence agency do not fit into such a niche.  Section 102(c)
cannot be challenged on the ground that Congress enacted it because of
hostility towards any category of persons, claims, or particular
federal court rulings.  Compare Hunter v. Underwood, 471 U.S. 222
(1985) (state law restricting the right to vote invalidated on the
ground that the motive for its adoption was hostility towards blacks).
 Finally, Section 102(c) does not attempt to dictate the outcome of
cases or to require a court to resolve cases in disregard of the
Constitution.  Compare United States v. Klein, 80 U.S. (13 Wall.) 128
(1871) (invalidating federal statute directing the federal courts to
decide particular cases in a particular manner).

   /32/ Many, if not most, of the actions of the political branches in
the national security and foreign policy fields are not subject to
judicial oversight.  As Justice Jackson wrote in Harisiades v.
Shaughnessy, 342 U.S. 580, 589 (1952) (footnote omitted) "the conduct
of foreign relations (and) the war power * * * are so exclusively
entrusted to the political branches of government as to be largely
immune from judicial inquiry or interference." Questions regarding the
validity of treaties, the recognition of foreign nations, and the
commitment of military forces are for the political branches of
government to resolve, even though the answer to these questions may
have a profound impact on individuals.  See, e.g., Goldwater v.
Carter, 444 U.S. at 1002-1005 (Rehnquist, J., concurring in the
judgment);  Johnson v. Eisentrager, 339 U.S. 763, 789 (1950)
("Certainly it is not the function of the Judiciary to entertain
private litigation * * * which challenges the legality, the wisdom, or
even the propriety of sending our armed forces abroad or to any
particular region");  United States v. Pink, 315 U.S. at 228-230;
Luftig v. McNamara, 373 F.2d 664, 665 (D.C. Cir. 1967) (whether the
United States' actions in Vietnam were constitutional is a political
question);  Eminente v. Johnson, 361 F.2d 73 (D.C. Cir.), cert.
denied, 385 U.S. 929 (1966);  Pauling v. McNamara, 331 F.2d 796, 798
(D.C. Cir. 1963), cert. denied, 377 U.S. (1964) ("decisions in the
large matters of basic national policy, as of foreign policy, present
no judicially cognizable issues and hence the courts are not empowered
to decide them").

   /33/ In Totten, the Court held that a party could not bring suit
for breach of an employment contract concerning the conduct of
espionage activities.  The Court further explained (92 U.S. at
106-107):

      Both employer and agent must have understood that the lips of
      the other were to be for ever sealed respecting the relation of
      either to the matter.  This condition of engagement was implied
      from the nature of the employment, and is implied in all secret
      employments of the government in time of war, or upon matters
      affecting our foreign relations, where a disclosure of the
      service might compromise or embarrass out government in its
      public duties, or endanger the person or injure the character of
      the agent.  * * * The secrecy which such contracts impose
      precludes any action for their enforcement.  The publicity
      produced by an action would itself be a breach of a contract of
      that kind, and thus defeat a recovery.

   /34/ Respondent argues (Br. in Opp. 5-6) that the Director can
protect confidential information under the military or state secrets
privilege or 50 U.S.C. 403(d)(3) and 403g.  That argument misses the
point.  The military and state secrets privilege was generally
established before Congress adopted the National Security Act of 1947
and the CIA Act of 1949.  Totten v. United States, 92 U.S. 105 (1875);
 see United States v. Reynolds, 345 U.S. at 6-8 (discussing the
origins of the privilege).  If these privileges were sufficient, it
would have been unnecessary to enact Section 102(c).  Respondent's
argument renders that section superfluous.

   /35/ See Gardels v. CIA, 689 F.2d 1100, 1106 (D.C. Cir. 1982)
(quoting Halperin v. CIA, 629 F.2d 144, 150 (D.C. Cir. 1980))
("'(E)ach piece of intelligence information, much like a piece of
jigsaw puzzle, may aid in piecing together other bits of information
even when the individual piece is not of obvious importance in
itself.'");  Halkin v. Helms, 598 F.2d 1, 8 (D.C. Cir. 1978) ("foreign
intelligence gathering in this age of computer technology is more akin
to the construction of a mosaic than it is to the management of a
cloak and dagger affair.  Thousands of bits and pieces of seemingly
innocuous information can be analyzed and fitted into place to reveal
with startling clarity how the unseen whole must operate");  United
States v. Marchetti, 466 F.2d at 1318 ("What may seem trivial to the
uninformed, may appear of great moment to one who has a broad view of
the scene and may put the questioned item of information in its proper
context.").

   /36/ As Justice Brandeis explained in the Lynch case (292 U.S. at
581-582):

      The sovereign's immunity from suit exists whatever the character
      of the proceeding or the source of the right sought to be
      enforced.  It applies alike to causes of action arising under
      acts of Congress * * * and to those arising from some violation
      of rights conferred upon the citizen by the Constitution,
      Schillinger v. United States, 155 U.S. 163, 166, 168 (1894) * *
      *.

         When the United States creates rights in individuals against
      itself, it is under no obligation to provide a remedy through
      the courts.  United States v. Babcock 250 U.S. 328, 331 (1919).
      It may limit the individual to administrative remedies.  Tutun
      v. United States, 270 U.S. 568, 576 (1926).

   /37/ E.g., Adler v. Board of Education, 342 U.S. 485 (1952);
Garner v. Los Angeles Board, 341 U.S. 716 (1951);  United Public
Workers v. Mitchell, 330 U.S. 75 (1947);  United States v. Wurzbach,
280 U.S. 396, 398-399 (1930);  Ex parte Curtis, 106 U.S. 371 (1882).

   Justice Holmes uttered the classic formulation of this principle,
stating that a policeman "may have a constitutional right to talk
politics, but he has no constitutional right to be a policeman."
McAuliffe v. New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892).
 The result, as this Court once noted, was that "this court can have
no control over the appointment or removal, nor entertain any inquiry
into the grounds of removal.  If the (appointing authority) is
chargeable with any abuse of his power, this is not the tribunal to
which he is amenable." In re Hennen, 38 U.S. (13 Pet.) at 261.

   appendix