John Doe and Jane Doe v. George J. Tenet, Individually and as Director of Central Intelligence and Director of the Central Intelligence Agency United States of America
Docket: 01-35419
Court: Court of Appeals for the Ninth Circuit; May 29, 2003; Federal Appellate Court
Jane and John Doe, using fictitious names, claim they engaged in espionage for the United States at the CIA's request, with assurances of resettlement and lifelong support. They allege that the CIA has failed to fulfill these promises after they complied with the Agency's demands. The U.S. government has not confirmed or denied the allegations due to national security concerns. The legal question at hand is whether the Does can pursue a lawsuit against the CIA, or if their claims fall exclusively under the jurisdiction of the Court of Federal Claims or are barred by the Totten doctrine, which protects certain governmental actions from judicial scrutiny. The court will assume the allegations are true for the purpose of this appeal, which involves claims of intimidation by CIA agents that coerced the Does into espionage activities. They assert that the CIA's commitments were made with high-level approval and were mandated by law, but now they have been abandoned without support.
The Does entered the U.S. under the "PL-110 Program," receiving false identities and benefits from the CIA, including financial support and health care, to help them integrate into American society. Initially, they were given a stipend of $20,000 per year, which later increased to $27,000. Mr. Doe secured professional employment in 1987 with CIA assistance but was informed that his stipend would be suspended once his salary reached $27,000, although he was assured that it would be reinstated if he lost his job. After losing his job due to a corporate merger in 1997, Mr. Doe struggled to find new employment due to his age and security concerns related to his false identity. When he sought assistance from the CIA, the Agency allegedly refused to help him find a new job.
In 1997, the CIA informed the Does that they had received adequate compensation and that further support would not be provided, though they could appeal this decision. The Does' requests for internal regulations regarding the appeals process were ignored. They filed an administrative appeal, which was denied, and subsequently appealed to the Helms Panel, which recommended limited benefits for one year contingent on signing waivers. The Does declined to sign and did not receive the recommended payments. They then filed a lawsuit in the U.S. District Court for the Western District of Washington, claiming violations of the Equal Protection and Due Process Clauses, and sought declaratory, injunctive, and mandamus relief to compel the CIA to resume promised benefits and provide adequate internal review procedures.
The United States sought to dismiss the case based on lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under Rule 12(b)(6). The district court denied the CIA's jurisdictional motion, ruling that the Supreme Court's Totten decision did not bar the suit, allowing it to proceed even with a potential secret agreement. The court noted that national security materials could be protected through sealed submissions or in camera reviews. The district court also rejected the CIA's argument that the Tucker Act requires the case to be heard in the Court of Federal Claims, clarifying that the Does were not solely seeking monetary damages despite including a request for the CIA to resume payments.
Furthermore, the district court found that the Does adequately stated both substantive and procedural due process claims, independent of the alleged secret contract. It highlighted that the Does might establish entitlement to the CIA's stipend through theories such as promissory or equitable estoppel, or other regulatory/statutory grounds, potentially creating a constitutionally protected property interest. Additionally, the court identified two due process claims: that the CIA endangered the Does and that a special relationship existed between them.
The United States later renewed its motion to dismiss and sought summary judgment, both of which the district court denied, prompting an interlocutory appeal. On appeal, the United States contended that jurisdiction was lacking as the case should be in the Court of Federal Claims and cited the Totten rule for dismissal. The appeal court noted the need to examine whether the Tucker Act barred district court jurisdiction. The Tucker Act grants exclusive jurisdiction to the Court of Federal Claims for claims over $10,000 based on contracts with the United States. However, the Does did not explicitly frame their complaint as a contract claim and retained the option to pursue such a claim later, indicating that the nature of the claim depends on the rights asserted and the type of relief sought.
The Does seek an injunction for the CIA to pay $27,000 annually, citing an agreement for financial and personal security. This claim, framed under constitutional due process, effectively seeks specific performance of the alleged contract, which falls under the exclusive jurisdiction of the Court of Federal Claims, as established by the Tucker Act. The Court of Federal Claims cannot enforce specific performance, and equitable remedies are not included in its waiver of sovereign immunity.
The primary claim from the Does is for an injunction requiring the CIA to conduct due process-compliant internal hearings. The jurisdictional implications of the Tucker Act on this claim depend on the asserted interest in life, liberty, or property. While a property interest may stem from the alleged contract with the CIA, the D.C. Circuit allows due process claims based on contractual property interests to be brought in district court. However, the stricter view taken by the Ninth and Second Circuits holds that such claims are subject to the Tucker Act and cannot be pursued in district court.
In a related case, a New York district court ruled that a constitutional claim against the CIA for contract enforcement and due process hearings was also subject to the Tucker Act. Consequently, the Does attempt to argue that their due process hearing request is independent of the contract, but many claims significantly rely on it, leading the district court to interpret them as such. Despite this, the Does assert additional grounds for their due process claims that may avoid jurisdictional issues.
The Does assert a claim based on liberty interest, alleging that the CIA brought them to the U.S. under false identities for their safety. They contend that the CIA's provision of false histories and refusal to provide further assistance has left them without employment opportunities, forcing them to consider returning to Eastern Europe, where they face danger. The district court found that these claims raise triable issues of fact regarding liberty interest and due process violations, affirming that the CIA has a duty not to place individuals in perilous situations. The court denied the CIA's motion for summary judgment, allowing the claims to proceed and clarifying that the Tucker Act does not bar these claims as they are not based on any contract with the CIA.
Additionally, the Does argue that their procedural due process rights stem from their status under the PL-110 program. The government counters that the relevant statute, 50 U.S.C. 403h, does not confer the entitlements the Does claim. The Does believe that CIA regulations imply a right to ongoing support for individuals in this program. However, the evaluation of this claim is complicated by the redacted nature of the CIA's internal regulations, leaving the court unable to fully assess the merits for summary judgment. The district court's stay on discovery further limits the record's development. Thus, a summary judgment against the Does at this stage would be premature, and the court affirms the denial of summary judgment regarding the PL-110 due process claim, highlighting that its viability will depend on potential government assertions of state secrets privilege in future proceedings.
A due process claim based on PL-110 status must not rely on any contract between the CIA and the Does, as such claims fall under the exclusive jurisdiction of the Court of Federal Claims per the Tucson Airport decision. The district court denied the government's motion for summary judgment on the PL-110 status claim, noting it involved not just regulations but also promises and circumstances indicating a mutual understanding. Under the Tucker Act, exclusive jurisdiction exists over claims based on contracts with the United States, including those arising from mutual understandings. For the Does to pursue their due process claim in district court, they must demonstrate a property right from PL-110 status independent of any contract.
The Does argue that CIA procedural regulations provide a right to a fair hearing regarding benefits under the PL-110 program. The government asserts that these regulations do not impose requirements on the CIA, but the record may be incomplete. It is premature to grant summary judgment against the Does, as further discovery could support their claim. If their right to a hearing is based on an alleged contract rather than regulatory status, the Tucker Act would prevent district court proceedings on that claim.
Regarding the Does' estoppel claim, the district court found that they sufficiently pleaded the necessary elements: the government's knowledge of the facts, intent to induce reliance, the Does' ignorance of true facts, and detrimental reliance. Additionally, estoppel against the government requires proof of affirmative conduct beyond negligence and that public interest will not suffer. The district court determined that the Does raised a triable issue of fact on these last two points, concluding that its ruling was not in error based on John Doe's declaration.
Estoppel may be used defensively against the government, but not offensively to secure awards contrary to statutes, as established in Office of Personnel Management v. Richmond. The Does argue their claim for subsistence payments is authorized by law and does not violate Richmond or the Appropriations Clause. They cite Watkins v. United States Army, which allowed estoppel to prevent the government from obstructing a reenlistment. The court finds the Does have sufficiently demonstrated their case to deny the government's summary judgment request on the estoppel claim.
The estoppel claim does not fall under the Tucker Act, which requires claims to arise from a contract, as affirmed in Jablon v. United States. Although Jablon ruled that the government does not waive immunity for promissory estoppel claims, Watkins supports the use of estoppel in this context. The district court correctly asserted jurisdiction over the estoppel claim and the Does' non-contractual constitutional, statutory, or regulatory claims, while claims based on contract must be dismissed.
The court also addresses whether Totten bars judicial review of the case. Although Totten, related to a spy's contract claim, is significant, it does not mandate dismissal of the Does' claims, which do not stem from contractual obligations. Instead, the case involves the state secrets privilege, a legal framework that restricts disclosure of sensitive information. The government must follow specific procedures to invoke this privilege, and the evolution of due process rights requires fair procedures before depriving individuals of their rights. Consequently, the court concludes that summary dismissal is not warranted in this instance.
The excerpt acknowledges the possibility that the Does may not achieve redress in district court, even if their allegations are valid. It highlights the tension between individual legal rights and national security interests, suggesting that judicial outcomes can favor the latter at the expense of the former, as noted in various case precedents. The government and courts must carefully evaluate whether sacrificing the Does' constitutional interests is justified in the name of national security, avoiding a formulaic approach. The judiciary's role is to ensure that claims of national security are substantiated and to explore alternatives to outright dismissal, as failure to do so may lead to executive overreach and perceptions of unfair treatment, which could have broader security implications.
The excerpt references the Totten case, where the Supreme Court ruled that a suit for compensation by the estate of a Civil War spy was not justiciable due to the secret nature of the employment, emphasizing that disclosure would compromise government operations and the agent's safety. The Court concluded that the publicity from a lawsuit would breach the contract's confidentiality, thus barring recovery. The excerpt also notes that the Agency and dissent interpret Totten as a blanket prohibition on cases related to espionage relationships, but the text argues against such a broad reading of the decision.
Totten establishes two key rulings, primarily centered on contract law rather than a blanket prohibition against espionage-related suits. In Totten, the plaintiff, Lloyd, breached his contract with the President by disclosing the contract's existence, leading the Supreme Court to rule that such publicity constituted a breach that negated any potential recovery. The decision emphasized that the implicit agreement required secrecy, and thus the act of bringing a lawsuit was inherently contradictory.
The contractual reasoning in Totten is not applicable to the current case for two main reasons. First, the plaintiffs, referred to as the Does, are not merely seeking contract enforcement; their primary aim is to ensure fair process and application of substantive law within the CIA’s internal procedures, which may operate under a veil of secrecy. Second, unlike the situation in Totten, where publicity was unavoidable, contemporary courts have developed mechanisms to conduct judicial proceedings that respect national security interests without compromising confidentiality.
The Does have taken precautions to uphold the secrecy of their agreement by filing under pseudonyms and disclosing minimal details. Their attorneys coordinated with CIA officials to ensure the complaint did not breach confidentiality. With cooperation from the court and government, it is possible to proceed with the case while maintaining secrecy through measures like in camera proceedings, sealed records, and security clearances for involved personnel.
Therefore, while Totten addresses the enforcement of secrecy in contracts for espionage, it does not entirely obstruct further proceedings in this case. The court may adopt flexible procedures, drawing upon historical judicial practices, to navigate the complexities of confidentiality and national security in resolving the essential issues at hand.
Totten represents an early articulation of the evidentiary state secrets privilege, establishing a public policy that prevents legal proceedings from disclosing confidential matters deemed protected by law. This principle has evolved into the contemporary state secrets doctrine, reaffirmed by the Supreme Court in cases such as United States v. Reynolds and Jencks v. United States, which cite Totten in relation to military and national interests. The Ninth Circuit’s case, Kasza v. Browner, interprets Totten as a specific type of state secrets case, affirming that the state secrets privilege serves as a common law evidentiary privilege allowing the government to block the discovery of military secrets. The court outlined that proper invocation of this privilege can lead to the dismissal of a plaintiff's action if the subject matter is confirmed to be a state secret, provided that specific formalities and court investigations are followed.
Kasza affirmed these procedures, conducting an in camera review of classified materials to determine the privilege's applicability. The court concluded that the subject matter of the case was indeed a state secret, aligning with Totten's original holding. The current legal framework dictates that dismissal based on state secrets must adhere to formal requirements that have evolved post-Totten, reinforcing the interconnection between Totten and later legal precedents. While the Agency referenced Weinberger v. Catholic Action to argue for a broader interpretation of Totten, the binding precedent set by Kasza supports a more restricted understanding of Totten within the context of the state secrets privilege.
Weinberger primarily addressed an explicit exemption under the Freedom of Information Act (FOIA), highlighting that FOIA analysis is strictly statutory, while the state secrets privilege relies on judge-made law. FOIA determines public information release without dissemination restrictions, whereas the state secrets privilege regulates what materials litigants can access to support their cases, potentially requiring in camera reviews and sealed records. While Weinberger focused on whether sensitive material could be publicly released, it briefly referenced Totten and Reynolds to explain limitations on court inquiries under the National Environmental Policy Act (NEPA). However, the mention of Totten should not be interpreted as overriding the developed state secrets privilege doctrine, which Kasza did not suggest.
To assert the state secrets privilege, a formal claim must be made by the department head after personal consideration of the evidence, and the court must assess the appropriateness of this claim. The government has not yet made this assertion in the current case, failing to follow necessary procedures. Although procedural formalities may seem trivial, they are crucial, especially given the severe implications of dismissing a case under the state secrets privilege. The balance between national interest and individual rights necessitates careful government evaluation. Additionally, non-compliance with these formalities could allow officials to dismiss cases to avoid scrutiny for unfair or illegal actions. The invocation of the state secrets privilege can also affect national security interests by undermining trust among contractors, potentially harming future cooperation. Due to these complexities, the state secrets privilege should not be invoked lightly.
The imposition of the harsh remedy of dismissal on individuals protected by U.S. laws, particularly the Constitution, requires a personal review and certification by the responsible national security official, ensuring there is a legitimate national security basis for denying court consideration of the facts in a dispute. This protocol aims to prevent the routine misuse of the state secrets doctrine to evade unfavorable judicial outcomes. The government failed to follow the necessary formalities for invoking the state secrets privilege, justifying the district court's refusal to dismiss the case.
The Tucker Act does not bar some claims from being heard in district court, and Totten does not prevent jurisdiction over the current lawsuit. Should the state secrets privilege be invoked, the court must carefully evaluate such assertions, as emphasized in Reynolds, ensuring that judicial control over evidence is maintained and not surrendered to executive discretion. Before granting the privilege, the court must be convinced of a "reasonable danger" of revealing national secrets, although this privilege is absolute and cannot be overridden by necessity. However, the court’s obligation to probe deeper increases with the party's need for the evidence.
Safeguards exist to protect sensitive information, including in camera and ex parte document reviews. Moreover, unprivileged material must be distinguished from privileged material whenever feasible, allowing for the potential release of non-sensitive information.
The state secrets privilege must be applied narrowly, limiting its use to material essential for protecting national security. Courts are encouraged to explore alternatives such as sealed records and secret hearings to adjudicate cases without public exposure of state secrets. In instances where the government seeks complete dismissal of a case for national security reasons, the court should consider these alternatives before concluding that adjudication is impossible.
In the case of Webster v. Doe, the U.S. Supreme Court emphasized that when constitutional claims arise, courts should strive to assess whether these claims can be adjudicated while safeguarding national security interests. The decision allowed a former CIA employee, Doe, to pursue a constitutional challenge regarding his security clearance, despite the necessity of keeping his CIA affiliation secret. The Court acknowledged that significant constitutional questions would emerge if Doe's claims were dismissed outright, thereby permitting the case to proceed.
The ruling underscored that national security issues may arise during litigation, requiring special procedures. However, the constitutional nature of the claims must be a major consideration before dismissing the case. The district court is empowered to manage the discovery process to balance the plaintiff’s need for evidence supporting their constitutional claim against the government’s need for confidentiality.
The distinction between the employees in Webster and the present case is that the current plaintiffs are foreign nationals employed to spy for the U.S. The government has not provided justification for treating these individuals differently based on their nationality and location. Therefore, the constitutional nature of the claims should heavily influence the application of the Reynolds state secrets privilege standard in this context.
The Does allege both property and liberty interests, claiming threats to their lives, interference with employment, and failures related to the PL-110 program, which could form legitimate rights under the Fifth Amendment. Unlike the plaintiff in Webster, their primary focus is on due process within the agency rather than the courts. To support their procedural due process claim, the Does must show a relationship with the CIA that may indicate an entitlement to continued assistance or payments. It is not clear that establishing this relationship would require compromising state secrets. The CIA's recruitment of foreign spies is publicly known, and it is documented that foreign recruits receive permanent residency and compensation. A letter from the CIA acknowledges a prior relationship but cites budget constraints for the cessation of support, implying that this relationship may not be clandestine. Furthermore, if the CIA claims privilege, the district court may determine that the agency has not sufficiently justified that revealing the relationship would endanger national security, especially considering the elapsed time and the current geopolitical context. The court is expected to respect the government's assessment of state secrets but still requires a coherent rationale for any claims of jeopardizing national security. Due to the limited scope of procedural due process, detailed specifics about the nature of the Does' relationship with the CIA are not necessary for their claim.
The evidentiary inquiry must assess whether the alleged relationship with the CIA existed and if it created a legally recognized property or liberty interest. The adequacy of CIA procedures in protecting such interests is uncertain, especially regarding any claim of secrecy over these procedures. If the CIA asserts a secrecy interest, the court may still evaluate the procedures' consistency with constitutional standards in non-public proceedings. The procedural due process claim seeks a confidential resolution of the plaintiffs’ allegations. If the allegations are presumed true, dismissing the complaint would violate the plaintiffs' constitutional right to due process by preventing any merits review. A truncated judicial inquiry may allow the case to proceed, potentially in a manner that safeguards state secrets. The case should be remanded to allow the CIA to formally invoke the state secrets privilege, which the agency has not yet done, and for the court to evaluate how to advance the case while respecting national security. The appeal costs are awarded to the appellees. The decision is affirmed in part, reversed in part, and remanded for further proceedings consistent with existing law on the state secrets privilege.
The district court partially granted the CIA's motion to dismiss, concluding that the Does did not provide sufficient facts to establish that they were treated unequally in violation of the Fifth Amendment. The Tucker Act allows for jurisdiction over contract claims exceeding $10,000 in the Court of Federal Claims, but this jurisdiction is not exclusive, meaning Congress has only waived sovereign immunity for claims within that court. Previous cases, such as Tucson Airport and North Star, involved plaintiffs asserting constitutional claims to enforce contractual rights, which is distinct from the Does' case, as they are not seeking to enforce a contract but rather to compel the CIA to conduct a hearing that satisfies procedural due process. The court determined that the jurisdiction under the Tucker Act does not apply to the Does' due process claims, as these claims are fundamentally based on contractual obligations that the United States may not have.
The litigation is still in its early stages, and the court noted the possibility of a renewed motion for summary judgment by the CIA if subsequent evidence does not support the Does' claims. A CIA official declared that there are no regulations or laws requiring the CIA to provide lifetime financial assistance to individuals under PL-110. The district court interpreted this declaration as indicating no such obligations existed but did not consider the legal conclusions within the declaration. The Does bear the burden of proof, and if a state secret privilege is invoked, it may hinder their ability to support their claims, potentially leading to their failure. In-camera court reviews are acknowledged as consistent with the need for maintaining secrecy.
The invocation of the state secrets privilege allows for in camera review of documents by the court without breaching the privilege itself. Such review is comparable to that in trade secrets or attorney-client privilege cases, where the court evaluates whether the privilege applies. Relevant case law, including Loral Corp. v. McDonnell Douglas Corp. and United States v. Zolin, supports the idea that privileges are preserved during in camera reviews. Similarly, the court may review documents under the Freedom of Information Act without implying public release or disclosure of secrets. The state secrets doctrine, derived from Totten, has been further clarified by subsequent rulings that affirm the court's authority to assess national security claims while imposing safeguards to prevent unauthorized disclosures. The Federal Circuit has shown conflicting interpretations regarding the application of Totten, with cases like McDonnell Douglas Corp. v. United States emphasizing the need to prioritize state secrets when the subject matter involves such secrets. The dissenting opinion suggests judges are ill-equipped to evaluate national security matters, arguing that once the privilege is claimed, further judicial inquiry should cease, but this perspective is not supported by existing legal precedent, as demonstrated by the Kasza case. On remand, the government retains the right to assert the state secrets privilege before the case continues.
A district court must generally defer to the government's assessment of what constitutes a state secret, but it cannot merely accept the government's conclusions without scrutiny. The dissent incorrectly cites CIA v. Sims to suggest otherwise. In Sims, a Freedom of Information Act (FOIA) case, the court found that a statutory exemption justified withholding information, which is a different context than state secrets privilege cases where public disclosure is sought. The Sims court performed some review of the documents, considering agency affidavits to support the withholding decision.
The dissent emphasizes that the Supreme Court, not the circuit court, should determine if the Totten doctrine, which bars judicial review of claims by secret agents against the government, is still valid or if it has been replaced by the state secrets privilege established in United States v. Reynolds. The dissent argues that Reynolds does not modify Totten but reaffirms its non-justiciability. Additionally, it points out that the Does' lawsuit is constrained by the Tucker Act, mandating that it be filed in the Court of Federal Claims.
The dissent references Totten, where the estate of a Civil War spy sought compensation related to a secret agreement with President Lincoln. The Supreme Court dismissed the suit, noting that the secretive nature of the agreement precludes enforcement and that revealing such information could jeopardize government operations. This reasoning is relevant to the current case, where the nature of secret government employment similarly implies non-justiciability.
An agent claiming entitlement to higher compensation risks exposing sensitive service details, which could harm the public. The Totten rule applies beyond breach of contract cases involving secret government services, emphasizing that public policy prevents lawsuits that would reveal confidential matters. This principle aligns with the separation of powers, limiting judicial review of secret contracts related to national security, a power vested in the President as Commander-in-Chief.
A distinction exists between espionage cases like Totten and other cases where Congress has provided specific remedies. In such cases, the "state secrets" privilege can block discovery of relevant evidence. The Supreme Court case United States v. Reynolds illustrates this, where the government resisted discovery in a tort claim related to a military plane crash, citing national security concerns. The district court initially rejected the privilege claim, but after the Air Force asserted a formal claim of privilege, the government refused to disclose the requested documents, citing the secret nature of the mission.
The court could not determine the privilege status of certain documents and ruled in favor of the plaintiffs on the negligence issue. The government appealed, and the court of appeals affirmed the decision. The Supreme Court, upon review, recognized Reynolds as pivotal regarding the government's privilege against discovery. It clarified that the core issue was whether the government had a valid privilege claim to withhold documents discoverable under Federal Rule of Civil Procedure 34. The Court mandated that the government must submit a formal privilege claim, filed by the department head in control of the documents, and that a court must assess whether the circumstances justify the claim.
The Court distinguished Reynolds from the earlier Totten case, which prohibits judicial review when the subject matter is inherently a state secret, noting that Totten involves cases where the very nature of the action pertains to a secret contract for espionage. In Reynolds, the Court allowed for withholding relevant evidence in recognized causes of action, contrasting with Totten's dismissal of cases before evidence is evaluated. The Court also referenced public policy supporting evidentiary privileges to protect confidential matters, but did not imply a shift in Totten's jurisdictional rule to an evidentiary privilege.
The differences between Reynolds and Totten are critical: Reynolds allows for withholding relevant evidence in ongoing litigation, while Totten permits dismissal of non-justiciable lawsuits without addressing evidence. The case of Kasza v. Browner is cited to reinforce this understanding, involving a recognized cause of action under the Resource Conservation and Recovery Act pertaining to compliance issues at a secret installation.
During the discovery phase, the Air Force largely denied the plaintiffs' requests for information, citing state secrets privilege to protect sensitive operations from potential enemy exposure. The district court granted summary judgment to the Air Force, determining that the invocation of this privilege obstructed the plaintiffs from establishing a prima facie case for their claims, which was upheld on appeal. The court noted that the state secrets privilege, as established by the Reynolds rule, allows the government to deny discovery of military secrets. The application of this privilege can either exclude evidence from a case or lead to the dismissal of a cause of action. If critical evidence is withheld, and the plaintiff cannot establish a prima facie case without it, the court may dismiss the claim. Similarly, if the exclusion of evidence hampers the defendant’s ability to mount a valid defense, summary judgment may be granted in their favor. A formal claim of privilege and subsequent judicial review are required before the privilege can be applied in justiciable cases. In the specific case of Kasza, the court found that the plaintiffs' RCRA claims depended on the privileged documents, warranting summary judgment. Furthermore, in instances where the subject matter of the action itself constitutes a state secret, the court may dismiss the case outright without assessing the plaintiff's ability to present nonprivileged evidence. This dismissal occurs promptly upon recognizing the nonjusticiability of the action, as outlined in the Totten precedent, and can happen before resolving related evidentiary or discovery issues.
The district court's order differentiates between cases involving state secrets as the subject matter of litigation and those where discovery pertains to state secrets. The plaintiffs' discovery in Kasza was barred by the state secrets privilege, preventing the establishment of a prima facie case for dismissal. Their claims fell under a third category identified by Totten, where the Air Force could not confirm or deny the existence of hazardous waste at the operating location. It is established that Totten allows for dismissal of cases asserting that the subject is a state secret only after fulfilling specific court investigation requirements. However, the Kasza ruling did not mandate such judicial review; rather, it recognized Totten-type cases as a distinct category where dismissal based solely on the state secrets privilege is permissible without extensive judicial balancing. The reliance on Reynolds’ footnote indicates that no prior judicial determination is necessary before applying Totten's jurisdictional bar. A thorough examination of Supreme Court precedents and Kasza confirms that the state secrets privilege does not alter Totten’s applicability, which allows for dismissal at the pleading stage. Additionally, the ruling in Totten should not be confined solely to contract claims, as it also extends to tort or constitutional violations stemming from secret contractual relationships. The district court conceded that evidence of a secret contract between the Does and the CIA was a critical factor that could have led to the dismissal of the litigation.
Substantial issues and claims in this case extend beyond the reach of the Totten doctrine, regardless of the existence of a secret contract. The district court noted that plaintiffs might establish entitlement to the CIA's monetary stipend through theories such as promissory or equitable estoppel, or via regulatory or statutory grounds, thus potentially demonstrating a constitutionally protected property interest independent of Totten. The court emphasized that Totten's application should not be limited solely to secret service contracts, citing precedents where the doctrine was applied to various claims, including environmental and libel actions. The Totten ruling prohibits any lawsuit that would require disclosing confidential matters, not just those involving secret contracts. This principle was reinforced in Weinberger v. Catholic Action of Hawaii, where the Supreme Court ruled that the Navy could not be compelled to disclose information about nuclear weapons facilities, as it would violate confidentiality laws. The Totten doctrine, therefore, applies to this case, indicating that attempts to frame claims differently will not bypass the prohibition against revealing confidential relationships.
A claim based on estoppel against the CIA requires the Does to establish a demonstrable relationship, including evidence of a binding representation by the CIA that they relied on to their detriment. However, any such relationship or implied contract regarding secret services is undisclosable due to national security concerns, as revealing it would compromise government duties and endanger individuals involved. Additionally, even if the Does could point to statutory provisions or regulations concerning benefits for PL-110 individuals, they would still need to prove their classification under those terms and the existence of a relationship with the CIA to claim relief.
The district court noted that the Does could assert a violation of their substantive due process rights if a special relationship was created and subsequently abused by the CIA or if the CIA placed them in danger. To succeed, the Does must prove either the existence of a relationship with the CIA or that they were affirmatively placed in danger, which is hindered by the requirement for secrecy in employment and service. The principle established in Totten bars judicial review of secret contracts for espionage, even if the existence of such contracts has been publicly acknowledged. The Director of Central Intelligence (DCI) holds significant authority to determine what information related to such relationships can be disclosed, with the highest deference given to their judgment regarding national security risks.
Judges lack the expertise to evaluate the complexities involved in intelligence secrecy, as highlighted by the Supreme Court in Sims. The court expressed doubt that potential intelligence sources would trust judges with their identities, given judges' limited understanding of intelligence operations. Determining the potential harm to an intelligence source from disclosure involves intricate political, historical, and psychological factors, which should be assessed by the Director of Central Intelligence rather than the judiciary. The Does claim that their case would not threaten national security is unpersuasive; the court should reject their attempt to bypass the precedent set in Totten, which prohibits lawsuits to enforce secret or covert contracts with the government. The argument that ambiguous correspondence between parties transforms a secret arrangement into a public one is also ineffective, as speculation does not equate to public disclosure. To safeguard national security, the mere existence of the alleged relationship between the Does and the U.S. must remain undisclosed for the case to proceed. Furthermore, the majority's reliance on judicial processes to protect confidential information, such as in camera proceedings, is inappropriate, particularly when compared to past cases like Webster v. Doe, where the court did not address Totten. In Webster, the Supreme Court allowed some constitutional claims to be reviewed despite national security concerns, but this does not apply to cases involving covert contracts.
The Webster Court concluded that Congress did not intend to restrict courts from addressing constitutional claims related to the termination decisions of the DCI. It acknowledged that federal courts routinely handle claims regarding CIA hiring and promotion policies, asserting that the employee's claims were rooted in their employment relationship and involved similar investigative needs as typical employment cases. The Court emphasized that the district court should balance the plaintiff's access to evidence against the government's confidentiality concerns. However, the case at hand differs from Webster since it involves secret agreements that prevent litigation under the Totten doctrine, which is specifically designed to protect national security interests in cases involving covert employment. Unlike domestic employment disputes, the disclosure necessary to establish the secret employment of the Does would violate Totten's stipulations. The district court's reliance on Reynolds for conducting in camera proceedings was deemed inappropriate, as Reynolds emphasizes that national security should not be compromised for evidence examination.
Additionally, even if the Does’ claims could overcome the Totten bar—which they cannot—they would still need to be filed in the Court of Federal Claims under the Tucker Act, which grants exclusive jurisdiction for claims seeking monetary damages or arising from contracts with the United States. Constitutional claims tied to government contracts must also be heard in this specialized court. The majority opinion attempts to circumvent this jurisdictional issue by reinterpreting the Does’ claims as independent of the underlying contract.
The majority opinion suggests that the Does may have a liberty or due process claim against the CIA, stemming from allegations that the agency endangered them by bringing them to the U.S., providing false identities, and failing to assist them after Mr. Doe lost his job. However, the Does' intentional endangerment claim is essentially a failure to provide claim linked to an alleged agreement with the government. Without such an agreement, they would lack a false identity and expectations of government support. The source of any duty owed to the Does would derive from this alleged contract, as established in case law, including Tucson Airport Authority and Up State Federal Credit Union, which indicate that claims must be contractually based if the government’s duty arises from a contract.
The Does’ due process claim, which seeks a constitutionally adequate hearing to adjudicate their rights, similarly hinges on the alleged secret contract with the CIA. A precedent case, Kielczynski, rejected a similar due process argument, affirming that the Tucker Act barred jurisdiction because the claim's validity depended on the existence of a contract. The Does also assert that CIA procedures entitle them to continued support under the PL-110 program, which the court interprets as a claim of an implied contract. Finally, their estoppel claim is based on their assertion of an agreement with the CIA, alleging performance on their part and failure by the CIA to uphold its end. Thus, all claims by the Does are ultimately deemed contractually based and must be addressed in the Court of Federal Claims.
Subject matter jurisdiction cannot be exercised when Congress has assigned it to another court. The plaintiffs, referred to as the Does, should not be allowed to circumvent the jurisdictional boundaries established by the Tucker Act by mischaracterizing their case as anything other than a breach of contract claim. The legal principles governing espionage contracts, as established in the 1875 Totten decision, remain unchanged, asserting that claims related to secret espionage relationships are not justiciable. The court must dismiss the case once it is determined that Totten applies. The ongoing obligation to adhere to Totten's ruling is reinforced by the absence of any legislative or judicial changes that would alter its applicability. The court emphasizes that the existence of contracts for secret services is confidential, and such secrecy precludes any enforcement actions. Even if the Does' case were to be heard in federal court, it must be filed in the Court of Federal Claims under the Tucker Act. The dissenting opinion critiques the majority for failing to respect these jurisdictional limitations. Additionally, the dissent notes that the Does likely cannot prove entitlement to relief under the provisions cited, as they do not support claims for financial assistance from the CIA.
Regulations indicate that while the CIA has provided benefits and support to individuals alleged to be PL-110s, there is no mandatory obligation to do so, as the distribution of support is entirely at the discretion of the Director of Central Intelligence (DCI) and can be revoked at any time. A 1990 internal CIA document illustrates that support typically ends when an individual gains U.S. citizenship, but may be terminated sooner. The author rejects the majority opinion that judicial review of clandestine contracts could enhance national security, arguing that such policy decisions fall to the Executive Branch. Instead, the author advocates for the dismissal of such cases early in litigation to prevent sensitive information from being inadvertently disclosed. This perspective aligns with the Supreme Court's acknowledgment of the necessity for secrecy in intelligence operations, supported by historical testimony from CIA and military leaders about the importance of maintaining confidentiality for successful intelligence work. The Tucker Act allows the Court of Federal Claims to adjudicate claims against the United States based on constitutional grounds, congressional acts, executive regulations, or contracts, while the Kielczynski court has dismissed the lower court's reasoning on these matters.
