OPINION OF THE COURT
TENET V. DOE
544 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NO. 03-1395
GEORGE J. TENET, INDIVIDUALLY, PORTER J. GOSS,
DIRECTOR OF CENTRAL INTELLI- GENCE AND DIRECTOR OF THE CEN- TRAL
INTELLIGENCE AGENCY, AND UNITED STATES, PETITIONERS
v.
JOHN DOE et ux.
on writ of certiorari to the united states court of
appeals for the ninth circuit
[March 2, 2005]
Chief Justice Rehnquist delivered
the opinion of the Court.
In
Totten v.
United
States, 92 U. S. 105 (1876), we held that
public policy forbade a self-styled Civil War spy from suing the
United States to enforce its obligations under their secret
espionage agreement. Respondents here, alleged former Cold War
spies, filed suit against the United States and the Director of the
Central Intelligence Agency (CIA), asserting estoppel and due
process claims for the CIA’s alleged failure to provide respondents
with the assistance it had promised in return for their espionage
services. Finding that
Totten did not bar respondents’
suit, the District Court and the Court of Appeals for the Ninth
Circuit held that the case could proceed. We reverse because this
holding contravenes the longstanding rule, announced more than a
century ago in
Totten, prohibiting suits against the
Government based on covert espionage agreements.
Respondents, a husband and wife who use the
fictitious names John and Jane Doe, brought suit in the United
States District Court for the Western District of
Washington.[
Footnote 1]
According to respondents, they were formerly citizens of a foreign
country that at the time was considered to be an enemy of the
United States, and John Doe was a high-ranking diplomat for the
country. After respondents expressed interest in defecting to the
United States, CIA agents persuaded them to remain at their posts
and conduct espionage for the United States for a specified period
of time, promising in return that the Government “would arrange for
travel to the United States and ensure financial and personal
security for life.” App. to Pet. for Cert. 122a. After “carrying
out their end of the bargain” by completing years of purportedly
high-risk, valuable espionage services,
id., at 123a,
respondents defected (under new names and false backgrounds) and
became United States citizens, with the Government’s help. The CIA
designated respondents with “PL–110” status and began providing
financial assistance and personal security.[
Footnote 2]
With the CIA’s help, respondent John Doe
obtained employment in the State of Washington. As his salary
increased, the CIA decreased his living stipend until, at some
point, he agreed to a discontinuation of benefits while he was
working. Years later, in 1997, John Doe was laid off after a
corporate merger. Because John Doe was unable to find new
employment as a result of CIA restrictions on the type of jobs he
could hold, respondents contacted the CIA for financial
assistance.[
Footnote 3] Denied
such assistance by the CIA, they claim they are unable to properly
provide for themselves. Thus, they are faced with the prospect of
either returning to their home country (where they say they face
extreme sanctions), or remaining in the United States in their
present circumstances.
Respondents assert, among other
things
, that the CIA violated their procedural and
substantive due process rights by denying them support and by
failing to provide them with a fair internal process for reviewing
their claims. They seek injunctive relief ordering the CIA to
resume monthly financial support pending further agency review.
They also request a declaratory judgment stating that the CIA
failed to provide a constitutionally adequate review process, and
detailing the minimal process the agency must provide. Finally,
respondents seek a mandamus order requiring the CIA to adopt agency
procedures, to give them fair review, and to provide them with
security and financial assistance.
The Government moved to dismiss the complaint
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),
principally on the ground that
Totten bars respondents’
suit. The District Court dismissed some of respondents’ claims but
denied the Government’s
Totten objection, ruling that the
due process claims could proceed. 99 F. Supp. 2d 1284,
1289–1294 (WD Wash. 2000). After minimal discovery, the Government
renewed its motion to dismiss based on
Totten, and it
moved for summary judgment on respondents’ due process claims.
Apparently construing the complaint as also raising an estoppel
claim, the District Court denied the Government’s motions, ruled
again that
Totten did not bar respondents’ claims, and
found there were genuine issues of material fact warranting a trial
on respondents’ due process and estoppel claims. App. to Pet. for
Cert. 85a–94a. The District Court certified an order for
interlocutory appeal and stayed further proceedings pending appeal.
Id., at 79a–83a.
A divided panel of the Court of Appeals for
the Ninth Circuit affirmed in relevant part. 329 F. 3d 1135
(2003). It reasoned that
Totten posed no bar to reviewing
some of respondents’ claims and thus that the case could proceed to
trial, subject to the Government’s asserting the evidentiary state
secrets privilege and the District Court’s resolving that issue.
329 F. 3d, at 1145–1155. Over dissent, the Court of Appeals
denied a petition for rehearing en banc. 353 F. 3d 1141 (CA9
2004). The Government sought review, and we granted
certiorari.[
Footnote 4] 542 U.
S. ___ (2004).
In
Totten, the administrator of
William A. Lloyd’s estate brought suit against the United States to
recover compensation for services that Lloyd allegedly rendered as
a spy during the Civil War.
92 U. S. 105. Lloyd purportedly entered
into a contract with President Lincoln in July 1861 to spy behind
Confederate lines on troop placement and fort plans, for which he
was to be paid $200 a month.
Id., at 105–106. The lower
court had found that Lloyd performed on the contract but did not
receive full compensation.
Id., at 106. After concluding
with “no difficulty,”
ibid., that the President had the
authority to bind the United States to contracts with secret
agents, we observed that the very essence of the alleged contract
between Lloyd and the Government was that it was secret, and had to
remain so:
“The service stipulated by the contract was a
secret service; the information sought was to be obtained
clandestinely, and was to be communicated privately; the employment
and the service were to be equally concealed. 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 the 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 our government in its public duties, or endanger the
person or injure the character of the agent.”
Ibid.
Thus, we thought it entirely incompatible with
the nature of such a contract that a former spy could bring suit to
enforce it. Id., at 106–107.
We think the Court of Appeals was quite wrong
in holding that
Totten does not require dismissal of
respondents’ claims. That court, and respondents here, reasoned
first that
Totten developed merely a contract rule,
prohibiting breach-of-contract claims seeking to enforce the terms
of espionage agreements but not barring claims based on due process
or estoppel theories. In fact,
Totten was not so limited:
“[P]ublic 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.”
Id., at 107 (emphasis added);
see also
ibid. (“The secrecy which such contracts impose
precludes
any action for their enforcement” (emphasis
added)). No matter the clothing in which alleged spies dress their
claims,
Totten precludes judicial review in cases such as
respondents’ where success depends upon the existence of their
secret espionage relationship with the Government.
Relying mainly on
United States v.
Reynolds,
345
U. S. 1 (1953), the Court of Appeals also claimed that
Totten has been recast simply as an early expression of
the evidentiary “state secrets” privilege, rather than a
categorical bar to their claims.
Reynolds involved a
wrongful-death action brought under the Federal Tort Claims Act, 28
U. S. C. §1346, by the widows of three civilians who died in
the crash of a military B–29 aircraft. 345 U. S., at 2–3. In the
course of discovery, the plaintiffs sought certain
investigation-related documents, which the Government said
contained “highly secret,” privileged military information.
Id., at 3–4. We recognized “the privilege against
revealing military secrets, a privilege which is well established
in the law of evidence,”
id., at 6–7, and we set out a
balancing approach for courts to apply in resolving Government
claims of privilege,
id., at 7–11. We ultimately concluded
that the Government was entitled to the privilege in that case.
Id., at 10–12.
When invoking the “well established” state
secrets privilege, we indeed looked to
Totten.
Reynolds, supra, at 7, n. 11 (citing
Totten,
supra, at 107). See also Brief for United States in
United States v.
Reynolds, O. T. 1952, No. 21,
pp. 36, 42 (citing
Totten in support of a military secrets
privilege). But that in no way signaled our retreat from
Totten’s broader holding that lawsuits premised on alleged
espionage agreements are altogether forbidden. Indeed, our opinion
in
Reynolds refutes this very suggestion: Citing
Totten as a case “where the very subject matter of the
action, a contract to perform espionage, was a matter of state
secret,” we declared that such a case was to be “dismissed
on
the pleadings without ever reaching the question of evidence,
since it was so obvious that the action should never prevail over
the privilege.” 345 U. S., at 11, n. 26 (emphasis added).
In a later case, we again credited the more
sweeping holding in
Totten, thus confirming its continued
validity. See
Weinberger v.
Catholic Action of
Haw./Peace Ed. Project, 454 U. S. 139, 146–147
(1981) (citing
Totten in holding that “whether or not the
Navy has complied with [§102(2)(C) of the National Environmental
Policy Act of 1969, 83 Stat. 853, 42 U. S. C. §4332(2)(C)] ‘to
the fullest extent possible’ is beyond judicial scrutiny in this
case,” where, “[d]ue to national security reasons,” the Navy could
“neither admit nor deny” the fact that was central to the suit,
i.e., “that it propose[d] to store nuclear weapons” at a
facility).
Reynolds therefore cannot plausibly be read to
have replaced the categorical
Totten bar with the
balancing of the state secrets evidentiary privilege in the dis-
tinct class of cases that depend upon clandestine spy
relationships.
Nor does
Webster v.
Doe,
486 U. S. 592
(1988), support respondents’ claim. There, we held that §102(c) of
the National Security Act of 1947, 61 Stat. 498, 50 U. S. C.
§403(c), may not be read to exclude judicial review of the
constitutional claims made by a former CIA employee for alleged
discrimination. 486 U. S., at 603. In reaching that conclusion, we
noted the “ ‘serious constitutional question’ that would arise
if a federal statute were construed to deny any judicial forum for
a colorable constitutional claim.”
Ibid. (citation
omitted). But there is an obvious difference, for purposes of
Totten, between a suit brought by an acknowledged (though
covert) employee of the CIA and one filed by an alleged former spy.
Only in the latter scenario is
Totten’s core concern
implicated: preventing the existence of the plaintiff’s
relationship with the Government from being revealed.[
Footnote 5] That is why the CIA regularly
entertains Title VII claims concerning the hiring and promotion of
its employees, as we noted in
Webster,
supra, at
604, yet
Totten has long barred suits such as
respondents’.
There is, in short, no basis for respondents’
and the Court of Appeals’ view that the
Totten bar has
been reduced to an example of the state secrets privilege. In a far
closer case than this, we observed that if the “precedent of this
Court has direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls, leaving to
this Court the prerogative of overruling its own decisions.”
Rodriguez de Quijas v.
Shearson/American Express,
Inc.,
490 U. S.
477, 484 (1989).
We adhere to
Totten. The state
secrets privilege and the more frequent use of
in camera
judicial proceedings simply cannot provide the absolute protection
we found necessary in enunciating the
Totten rule. The
possibility that a suit may proceed and an espionage relationship
may be revealed, if the state secrets privilege is found not to
apply, is unacceptable: “Even a small chance that some court will
order disclosure of a source’s identity could well impair
intelligence gathering and cause sources to ‘close up like a
clam.’ ”
CIA v.
Sims,
471 U. S. 159, 175
(1985). Forcing the Government to litigate these claims would also
make it vulnerable to “graymail,”
i.e., individual
lawsuits brought to induce the CIA to settle a case (or prevent its
filing) out of fear that any effort to litigate the action would
reveal classified information that may undermine ongoing covert
operations. And requiring the Government to invoke the privilege on
a case-by-case basis risks the perception that it is either
confirming or denying relationships with individual plaintiffs.
The judgment of the Court of Appeals is
reversed
.
It is so ordered.
Footnote 1
The Government has neither confirmed nor
denied any of respondents’ allegations. We therefore describe the
facts as asserted in respondents’ second amended complaint. See
App. to Pet. for Cert. 128a–136a. They are, of course, no more than
allegations.
Footnote 2
While the Government neither confirms nor
denies that respondents are part of any “PL–110” program, the
parties agree this reference is to 50 U. S. C. §403h, a
provision enacted as part of the Central Intelligence Agency Act of
1949, §8, 63 Stat. 212 (renumbered §7, 72 Stat. 337). This
provision allows a limited number of aliens and members of their
immediate families per year to be admitted to the United States for
permanent residence, regardless of their admissibility under the
immigration laws, upon a determination by the Director of the CIA,
the Attorney General, and the Commissioner of Immigration that
admission of the particular alien “is in the interest of national
security or essential to the furtherance of the national
intelligence mission.” §403h. However, nothing in this statute, nor
anything in the redacted CIA regulations and related materials
respondents cite, see Brief for Respondents 41–43; App. to Brief in
Opposition 41–50, represents an enforceable legal commitment by the
CIA to provide support to spies that may be admitted into the
United States under §403h. See also App. to Pet. for Cert. 145a
(decl. of William McNair ¶5 (Information Review Officer for the
CIA’s Directorate of Operations) (stating, based on his search of
regulations and internal CIA policies, that he “can inform the
court unequivocally that there are no Agency or other US
federal regulations that require the CIA to provide lifetime
subsistence assistance to individuals brought into the United
States under the authority of PL–110” (emphasis in original))).
Footnote 3
Respondents document their alleged series of
contacts with the CIA. See
id., at 128a–136a (Second
Amended Complaint). For instance, respondents allegedly received a
letter from the CIA in June 1997, expressing regret that the agency
no longer had funds available to provide assistance.
Id.,
at 128a. Later, respondents claim they were told the agency
determined “the benefits previously provided were adequate for the
services rendered.”
Id., at 129a. Although the CIA
apparently did not disclose to respondents the agency’s appeals
process, respondents were permitted to appeal the initial
determination both to the Director of the CIA and to a panel of
former agency officials called the Helms Panel; both appeals were
denied.
Id., at 129a–132a.
Footnote 4
Preliminarily, we must address whether
Steel Co. v.
Citizens for Better Environment,
523 U. S. 83
(1998), prevents us from resolving this case based on the
Totten issue. In
Steel Co., we adhered to the
requirement that a court address questions pertaining to its or a
lower court’s jurisdiction before proceeding to the merits. 523 U.
S., at 94–95. In the lower courts, in addition to relying on
Totten, the Government argued that the Tucker Act, 28 U.
S. C. §1491(a)(1), required that respondents’ claims be
brought in the Court of Federal Claims, rather than in the District
Court. The District Court and the Court of Appeals rejected this
argument, and the Government did not seek review on this question
in its petition for certiorari. Pet. for Cert. 8, n. 2.
We may assume for purposes of argument that
this Tucker Act question is the kind of jurisdictional issue that
Steel Co. directs must be resolved before addressing the
merits of a claim. Cf.
United States v.
Mitchell,
463 U. S. 206,
212, 215 (1983) (holding that “the Tucker Act effects a waiver of
sovereign immunity” and observing that “the existence of consent
[to be sued] is a prerequisite for jurisdiction”). Nevertheless,
application of the
Totten rule of dismissal, like the
abstention doctrine of
Younger v.
Harris,
401 U. S. 37
(1971), or the prudential standing doctrine, represents the sort of
“threshold question” we have recognized may be resolved before
addressing jurisdiction. See
Ruhrgas AG v.
Marathon
Oil Co., 526 U.
S. 574, 585 (1999) (“It is hardly novel for a federal court to
choose among threshold grounds for denying audience to a case on
the merits”); see also
Kowalski v.
Tesmer, 543 U.
S. ___, ___ (2004) (slip op., at 3) (assuming Article III standing
in order to “address the alternative threshold question whether”
attorneys had third-party standing);
Steel Co.,
supra, at 100, n. 3 (approving a decision resolving
Younger abstention before addressing subject-matter
jurisdiction). It would be inconsistent with the unique and
categorical nature of the
Totten bar—a rule designed not
merely to defeat the asserted claims, but to preclude judicial
inquiry—to first allow discovery or other proceedings in order to
resolve the jurisdictional question. Thus, whether or not the
Government was permitted to waive the Tucker Act question, we may
dismiss respondents’ cause of action on the ground that it is
barred by
Totten.
Footnote 5
The Court of Appeals apparently believed that
the plaintiff’s relationship with the CIA
was secret in
Webster, just as in this case. See 329 F. 3d 1135,
1153 (CA9 2003). It is true that the plaintiff in
Webster
proceeded under a pseudonym because “his status as a CIA employee
cannot be publicly acknowledged.” Brief for United States in
Webster v.
Doe, O. T. 1987, No. 86–1294,
p. 3, n. 1. But the fact that the plaintiff in
Webster kept his
identity secret did not mean
that the employment
relationship between him and the CIA
was not known and admitted by the CIA.
Comments
Be the first to comment
Leave a Comment