applied for a job requiring a security clearance, so that the prospective employer could be informed that the CIA had determined that he was a security threat due to his homosexuality. The May 11 letter, marked the termination of Doe's administrative leave status. All efforts of his counsel to secure both a statement of reasons and a copy of the Adjudication Report from the CIA were denied.
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.
The defendant argues that venue is improper in the District of Columbia and, therefore, that this proceeding should be dismissed or transferred to the Eastern District of Virginia where, it is claimed, the CIA Director officially resides. The venue of a civil action involving federal question jurisdiction is governed by 28 U.S.C. § 1391(b); the venue of an action against an officer of the United States sued in his official capacity is governed by § 1391(e). Both sections provide that venue is proper in the judicial district where the defendant resides.
In advancing the improper venue argument, the government was confronted with somewhat of a dilemma because in three earlier proceedings before this District of Columbia District Court, the CIA explicitly and affirmatively admitted to the official residency of the CIA Director in the District of Columbia. Indeed, in those cases, no question or challenge of improper venue was presented in the government's pleadings. McGehee v. Casey, C.A. No. 81-0734 (D.D.C.1981); McGehee v. Turner, C.A. No. 78-2407 (D.D.C.1978); Jordan v. Turner, C.A. No. 78-2036 (D.D.C.1978). When confronted with these inconsistencies, the Government's attempts to explain were strained and implausible.
Indeed, with respect to the two McGehee cases, the inconsistency could not be explained or defended at all. Defendant's Motion to Dismiss or Transfer on the Grounds of Improper Venue at 4, (Motion filed June 8, 1984).
Following argument and submission on the government's motion to dismiss and the cross motions for summary judgment, plaintiff's counsel was allowed to pursue discovery on the question of venue and the CIA Director's official presence in the District of Columbia. The results of that discovery clearly demonstrated that Mr. Casey as the Director of Central Intelligence (DCI) performed a significant portion of his official duties in both the District of Columbia and the State of Virginia. The discovery focused on a 13-month period ending in March 1984. During that period, the DCI spent 226 days in the Washington, D.C. Metropolitan area. Of these, 190 were spent in both Virginia and the District, 32 were spent solely in Virginia and 4 solely in the District. Mr. Casey spent time in the District of Columbia in order to fulfill his DCI duties, his responsibilities imposed by statute and Executive Orders, and his duties connected with his position as a designated member of both the National Security Council and the President's Cabinet.
A review of the Director's statutory functions, permits a reasonable conclusion that he performs a significant amount of his official duties in the District of Columbia. The National Security Act of 1947, 50 U.S.C. § 401 et seq. created the CIA and the position of the Director of Central Intelligence. Section 101(a) of the Act establishes a National Security Council. The President, Vice President, Secretary of State and the Secretary of Defense are members of the Council. Section 403(a) provides that "there is established under the National Security Council a Central Intelligence Agency with a Director . . . who shall be the head thereof. . . ." The duties of the Agency and the DCI, set out in section 403(d), establish the CIA as an instrument of the National Security Council. That section together with section 1.5 of Executive Order 12333, 3 C.F.R. 200 (1982), provide that the DCI advise the President and the National Security Council on intelligence matters and coordinate intelligence activities of other government agencies. Further, pursuant to 50 U.S.C. § 413, the DCI is required to keep the congressional intelligence committees fully and currently informed on all intelligence matters. Since 1981, Director Casey has also served as a member of the President's Cabinet.
As a Cabinet officer, advising both the President and the National Security Council, and as an advisor to intelligence committees of the Congress, the DCI resides in the District where both the Cabinet, the Council, and the Congress sit. While the physical facilities of the CIA are located in Virginia, Director Casey's duties in the District are such that he maintains offices at two locations in the District, at the Old Executive Office Building and at the Intelligence Community Headquarters Building.
It is not unusual for public officials to have more than one designated place of official residence. When a public agency undertakes much of its business in a district different from that in which the agency is headquartered, venue is proper in the former district. Florida Nursing Home Ass'n. v. Page, 616 F.2d 1355, 1360 (5th Cir.), cert. denied, 449 U.S. 872, 101 S. Ct. 211, 66 L. Ed. 2d 92 (1980), rev'd. on other grounds, 450 U.S. 147, 101 S. Ct. 1032, 67 L. Ed. 2d 132 (1981), reh'd. denied, 451 U.S. 933, 101 S. Ct. 2008, 68 L. Ed. 2d 319 (1981); Lamont v. Haig, 192 U.S. App. D.C. 8, 590 F.2d 1124, 1128 n. 19 (D.C.Cir.1978) (drawing a distinction between the residence where official duties are performed and the personal residence of the defendant).
In determining the residence of a public official sued in his official capacity, the test of residence is where official duties are performed. When, as here, Director Casey performs a substantial portion of his duties in the District, although a larger proportion in Virginia, it is appropriate to conclude that the District of Columbia is a proper place for venue. In Buffalo Teachers Federation, Inc. v. Helsby, 426 F. Supp. 828, 830 (S.D.N.Y.1976), venue was held proper in a district where a state agency conducted a substantial portion of its business even though the headquarters' location was in a different district.
Failure to State a Claim
Various grounds are advanced to support the government's argument that Doe's complaint fails to state a claim upon which relief can be granted. The two considered most important are: that because Doe seeks an award of damages the doctrine of sovereign immunity precludes the claim, and; that assuming the Government has consented to be sued by virtue of the Administrative Procedure Act, review of the Director's dismissal action is foreclosed by section 701(a)(1), (2); that the CIA Director is empowered by statute, 50 U.S.C. § 403(c), with unreviewable authority to terminate an employee and that the decision is committed by law to agency discretion.
The argument that sovereign immunity bars the plaintiff's claim is flawed and misplaced. In 1976, the APA was amended, and the "Right of review" provision, 5 U.S.C. § 702, authorized non-monetary relief against a federal agency or officer. The section provides in relevant part
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer . . . thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief . . . denied on the ground that it is against the United States. . . .
In this proceeding the plaintiff does not pursue a monetary claim, but rather, Doe requests declaratory and injunctive relief, specifically, a judicial declaration that Director Casey abused his discretion in dismissing him and a determination that the Director violated his procedural rights. The plaintiff also seeks either reinstatement or, alternatively, a statement of reasons for his dismissal and a full opportunity to respond to those reasons. He relies upon 28 U.S.C. § 1361 which grants relief in the nature of mandamus to compel a federal officer to perform a duty owed to a plaintiff. When read together, section 702 of the APA and section 1361 of Title 28 may be considered as statutory waivers of sovereign immunity. At this point in time, it can scarcely be contended that when a government official is charged with superseding his or her authority the doctrine of sovereign immunity may be invoked.
But more importantly, the argument that the doctrine of sovereign immunity bars the plaintiff's efforts has been undermined and discredited by two recent decisions of our Circuit Court, Clark v. Library of Congress, 242 U.S. App. D.C. 241, 750 F.2d 89 (D.C.Cir. 1984) and Dronenburg v. Zech, 239 U.S. App. D.C. 229, 741 F.2d 1388 (D.C.Cir.1984), rehearing en banc denied, 241 U.S. App. D.C. 262, 746 F.2d 1579 (D.C.Cir.1984). In Clark, the plaintiff sued the Library of Congress, his former employer, seeking reinstatement as an employee, and an injunction prohibiting any further investigation of his political beliefs and associations which led to his leaving the Library. He charged the Library with violations of his First Amendment rights. He also sought compensatory and punitive damages. The Court of Appeals held that while sovereign immunity barred any relief for damages it was no obstacle to a claim for reinstatement, correction of his personnel records and an injunction against infringement of constitutional rights. The matter was reversed and remanded to the district court for consideration on the plaintiff's claims for specific non-monetary relief. Dronenburg involved a naval petty officer's challenge to his administrative discharge for homosexual conduct and a claim that his constitutional rights to privacy and equal protection of laws had been violated. The Navy raised threshold questions -- lack of subject matter jurisdiction and sovereign immunity, contending that plaintiff's complaint was essentially one for damages that should be pursued in the Court of Claims under the Tucker Act and, therefore, that the District Court lacked jurisdiction.
In rejecting the government's argument, the Circuit Court noted that " 5 U.S.C. § 702 was intended to waive the sovereign immunity of the United States in suits for injunctive relief," 741 F.2d at 1390. "We are further bound by another decision of this court holding that "the United States and its officers . . . are [not] insulated from suit for injunctive relief by the doctrine of sovereign immunity. " Schnapper v. Foley, 215 U.S. App. D.C. 59, 667 F.2d 102, 107 (D.C.Cir.1981), cert. denied, 455 U.S. 948, 102 S. Ct. 1448, 71 L. Ed. 2d 661 (1982)." Id. In discussing the legislative history of section 702, the Schnapper court noted
The legislative history of this provision could not be more lucid. It states that this language was intended "to eliminate the defense of sovereign immunity with respect to any action in a court of the United States seeking relief other than money damages and based on the assertion of unlawful official action by a federal official. . . . " S. Rep. No. 996, 94th Cong., 2d Sess. at 2 (1976).