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DOE v. CASEY

January 16, 1985

John DOE, Plaintiff,
v.
William CASEY, Defendant



The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, District Judge:

 The plaintiff John Doe claims that after nine years of service with the Central Intelligence Agency ("CIA" or "Agency") his employment was unlawfully terminated because he voluntarily acknowledged to his superior that he had engaged in homosexual practices. Following that disclosure, the CIA Director, William Casey, decided that it was "necessary and advisable in the interests of the United States to terminate [Doe's] employment . . . pursuant to section 102(c) of the National Security Act of 1947 [ 50 U.S.C. § 401] . . . ." *fn1"

 John Doe asserts that the Director provided no reasons for his decision, thus, rendering him unable to respond to the charges. In his complaint seeking declaratory and injunctive relief, plaintiff alleges that he was deprived of the elements of fundamental fairness, that he was the victim of procedural deficiencies and irregularities arising from the refusal of the Director to supply reasons for his dismissal and a reasonable and fair opportunity to respond to those reasons. He charges that in dismissing him, the Director violated Agency regulations and provisions of both the National Security Act and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. He further charges that the Director violated his Fifth Amendment due process and equal protection rights, his liberty interest, as well as his right to privacy under the First, Fourth, Fifth and Ninth Amendments of the Constitution. The CIA Director is sued in his official capacity.

 Plaintiff seeks a judicial declaration that Director Casey abused his discretion, acted arbitrarily and improperly, and violated his rights secured by the Constitution. Injunctive relief, requiring the Director either to reinstate him to his former position, or alternatively, to provide him with a statement of reasons for termination of his employment, and an adequate opportunity to respond to those reasons is also sought. *fn2"

 The legal memoranda submitted by counsel were exhaustive, ably presented, and have been fully considered. For the reasons set forth below, the Court determines that this proceeding should not be dismissed and that the decision of the CIA Director to terminate the plaintiff's employment was improper, unreasonable, an abuse of discretion and both procedurally and substantively flawed. The Court also determines that under the circumstances the plaintiff is entitled to declaratory and limited injunctive relief. The proceeding should be remanded to the Agency for further consideration consistent with the conclusions set out in this Memorandum Opinion and the accompanying Order.

 BACKGROUND

 The affidavits and statement of material facts presented in the plaintiff's motion for summary judgment stand unchallenged by the Government. They are briefly recounted.

 In June 1973, at the age of 17, John Doe began employment with the CIA as a clerk typist. Four years later he was promoted to an electronics technician position, and, in 1978, he was selected for participation in the Agency's upward mobility program. By that time, he had acquired a non-probationary employee status. Throughout his employment he received acceptable performance ratings and there was no dissatisfaction with his work reported by any supervisor.

 Doe became aware of his homosexuality in 1976 and his orientation was known to his family and immediate friends. His homosexuality was never publicized and he never made advances toward fellow employees. During the course of his employment there was no indications that, at any time, he disclosed classified information to unauthorized persons, that he ever engaged in any conduct with any one individual which compromised security with foreign nationals or anyone else, or that his homosexuality disrupted or affected his duties and responsibilities in any manner.

 In January 1982, plaintiff voluntarily informed a security officer of his homosexuality. He was then told that he was in violation of CIA regulations; and on February 2, 1982, he was placed on administrative leave. Plaintiff was interviewed extensively about his homosexuality and his risk to security. Later, a polygraph test was administered covering that matter. Doe was advised that his responses to questions on that test were truthful. An Adjudication Report on his case was prepared by the Office of Security and then forwarded to the Office of Security and then forwarded to Director William Casey. The Deputy General Counsel of the CIA informed Doe's counsel that homosexuality was not a per se ground for dismissal but that it was a security concern which would be evaluated on a case-by-case basis.

 On April 14, 1982, a security officer informed Doe that the Office of Security had determined that the "circumstances of his homosexuality" posed a security threat. Plaintiff sought an explanation of the reasons why the "circumstances" posed such a threat; but his request was denied and no further explanation was provided. Doe was asked to resign and he declined to do so. Later, his counsel also sought a statement of the reasons why the determination was made that Doe's homosexuality posed a security threat.

 On May 11, 1982, the Deputy General Counsel wrote to plaintiff's counsel that Director Casey "deemed it necessary and advisable in the interests of the United States to terminate" Doe's employment, "pursuant to . . . the National Security Act . . . § 403(c)." No further explanation was given and Doe received no other statement of reasons. He was placed on administrative leave for the three months prior to his termination. He received full pay but was not required to report for duty.

 ANALYSIS

 While several grounds for dismissal of the complaint are asserted, only two are considered meritorious and warrant consideration: improper venue and failure to state a claim upon which relief can be granted. Those problems will first be considered and followed by a discussion of the merits.

 A.

 Venue ...


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