TENET et al. v. DOE et ux.

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CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2004
TENET et al. v. DOE et ux.
certiorari to the united states court of appeals for
the ninth circuit
No. 03–1395. Argued January 11, 2005—Decided March 2, 2005
Respondent husband and wife 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 them
with financial assistance it had promised in return for their espionage
services during the Cold War. The District Court denied the Govern-
ment’s motions to dismiss and for summary judgment, finding that re-
spondents’ claims were not barred by the rule of Totten v. United States,
92 U. S. 105, prohibiting suits against the Government based on covert
espionage agreements. Affirming in relevant part, the Ninth Circuit
reasoned that Totten posed no bar to reviewing some of respondents’
claims and thus the case could proceed to trial, subject to the Govern-
ment’s asserting the evidentiary state secrets privilege and the District
Court’s resolving that issue.
Held: Respondents’ suit is barred by the Totten rule. In Totten, this
Court concluded with no difficulty that the President had the authority
to bind the United States to contracts with secret agents, observed that
the very essence of such a contract was that it was secret and had to
remain so, and found that allowing a former spy to bring suit to enforce
such a contract would be entirely incompatible with the contract’s na-
ture. The Ninth Circuit was quite wrong in holding that Totten does
not require dismissal of respondents’ claims. It reasoned that Totten
developed merely a contract rule, prohibiting breach-of-contract claims
seeking to enforce an espionage agreement’s terms but not barring due
1

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2 TENET v. DOE
Syllabus
process or estoppel claims. However, Totten was not so limited. It
precludes judicial review in cases such as respondents’ where success
depends on the existence of their secret espionage relationship with the
Government. Id., at 107. The Ninth Circuit also claimed that Totten
had been recast simply as an early expression of the evidentiary “state
secrets” privilege, rather than a categorical bar to respondents’ claims,
relying mainly on United States v. Reynolds, 345 U. S. 1, in which wid-
ows of civilians killed in a military plane crash sought privileged mili-
tary information in their wrongful-death action against the Govern-
ment. While the Reynolds Court looked to Totten in invoking the “well
established” state secrets privilege, it in no way signaled a retreat from
Totten’s broader holding that lawsuits premised on alleged espionage
agreements are altogether forbidden. The Court later credited Totten’s
more sweeping holding in Weinberger v. Catholic Action of Haw. /Peace
Ed. Project, 454 U. S. 139, 146–147, thus confirming its continued valid-
ity. Reynolds therefore cannot plausibly be read to have replaced
Totten’s categorical bar in the distinct class of cases that depend upon
clandestine spy relationships. Nor does Webster v. Doe, 486 U. S. 592,
which addressed constitutional claims made by acknowledged (though
covert) CIA employees, support respondents’ claim. Only in the case
of an alleged former spy is Totten’s core concern implicated: preventing
the existence of the plaintiff ’s relationship with the Government from
being revealed. The state secrets privilege and the use of in camera
judicial proceedings simply cannot provide the absolute protection the
Court found necessary in enunciating the Totten rule. The possibility
that a suit may proceed and an espionage relationship may be revealed
is unacceptable. 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 out of fear that litigation would reveal
classified information that might undermine covert operations. And re-
quiring 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. Pp. 7–11.
329 F. 3d 1135, reversed.
Rehnquist, C. J., delivered the opinion for a unanimous Court.
Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined,
post, p. 11. Scalia, J., filed a concurring opinion, post, p. 12.
Acting Solicitor General Clement argued the cause for
petitioners. With him on the briefs were Assistant Attor-
ney General Keisler, Deputy Assistant Attorney General

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Opinion of the Court
Katsas, Lisa S. Blatt, Barbara L. Herwig, and H. Thomas
Byron III.
Dav id J. Burman argued the cause for respondents.
With him on the brief were Steven W. Hale, Elizabeth A.
Alaniz, and Marie Aglion.
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 se-
cret espionage agreement. Respondents here, alleged for-
mer Cold War spies, filed suit against the United States and
the Director of the Central Intelligence Agency (CIA), as-
serting 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 con-
travenes the longstanding rule, announced more than a cen-
tury 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.1 Ac-
cording to respondents, they were formerly citizens of a for-
eign country that at the time was considered to be an enemy
of the United States, and John Doe was a high-ranking diplo-
mat 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
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.

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4 TENET v. DOE
Opinion of the Court
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, respond-
ents 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.2
With the CIA’s help, respondent John Doe obtained em-
ployment in the State of Washington. As his salary in-
creased, 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
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 immedi-
ate 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 materi-
als 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 Oper-
ations) (stating, based on his search of regulations and internal CIA poli-
cies, 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))).

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Opinion of the Court
of jobs he could hold, respondents contacted the CIA for fi-
nancial assistance.3 Denied such assistance by the CIA,
they claim they are unable to properly provide for them-
selves. Thus, they are faced with the prospect of either re-
turning to their home country (where they say they face ex-
treme sanctions), or remaining in the United States in their
present circumstances.
Respondents assert, among other things, that the CIA vio-
lated 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 finan-
cial 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. Fi-
nally, 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), princi-
pally on the ground that Totten bars respondents’ suit. The
District Court dismissed some of respondents’ claims but de-
nied 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 Gov-
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, ex-
pressing 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.

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6 TENET v. DOE
Opinion of the Court
ernment 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 Govern-
ment’s motions, ruled again that Totten did not bar respond-
ents’ claims, and found there were genuine issues of material
fact warranting a trial on respondents’ due process and es-
toppel 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 Cir-
cuit affirmed in relevant part. 329 F. 3d 1135 (2003). It
reasoned that Totten posed no bar to reviewing some of re-
spondents’ 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.4 542 U. S. 936 (2004).
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 jurisdic-
tion 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.

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Opinion of the Court
In Totten, the administrator of William A. Lloyd’s estate
brought suit against the United States to recover compensa-
tion for services that Lloyd allegedly rendered as a spy dur-
ing 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 con-
tract but did not receive full compensation. Id., at 106.
After concluding with “no difficulty,” ibid., that the Presi-
dent 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 clan-
destinely, and was to be communicated privately; the
employment and the service were to be equally con-
cealed. Both employer and agent must have under-
stood that the lips of the other were to be for ever sealed
respecting the relation of either to the matter. This
Harris, 401 U. S. 37 (1971), or the prudential standing doctrine, represents
the sort of “threshold question” we have recognized may be resolved be-
fore 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. 125, 129 (2004) (assuming Article III stand-
ing in order to “address the alternative threshold question whether” attor-
neys 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 as-
serted 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.

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8 TENET v. DOE
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condition of the engagement was implied from the na-
ture of the employment, and is implied in all secret em-
ployments of the government in time of war, or upon
matters affecting our foreign relations, where a disclo-
sure 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]ub-
lic policy forbids the maintenance of any suit in a court of
justice, the trial of which would inevitably lead to the disclo-
sure 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 judi-
cial review in cases such as respondents’ where success de-
pends upon the existence of their secret espionage relation-
ship 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-

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related documents, which the Government said contained
“ ‘highly secret,’ ” privileged military information. Id., at
3–4. We recognized “the privilege against revealing mili-
tary 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 privi-
lege, id., at 7–11. We ultimately concluded that the Govern-
ment was entitled to the privilege in that case. Id., at
10–12.
When invoking the “well established” state secrets privi-
lege, 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 de-
clared 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 priv-
ilege.” 345 U. S., at 11, n. 26 (emphasis added).
In a later case, we again credited the more sweeping hold-
ing 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 be-
yond 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

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10 TENET v. DOE
Opinion of the Court
Totten bar with the balancing of the state secrets evidentiary
privilege in the distinct class of cases that depend upon clan-
destine spy relationships.
Nor does Webster v. Doe, 486 U. S. 592 (1988), support re-
spondents’ claim. There, we held that § 102(c) of the Na-
tional Security Act of 1947, 61 Stat. 498, 50 U. S. C. § 403(c),
may not be read to exclude judicial review of the constitu-
tional claims made by a former CIA employee for alleged
discrimination. 486 U. S., at 603. In reaching that conclu-
sion, 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.
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 impli-
cated: preventing the existence of the plaintiff ’s relationship
with the Government from being revealed.5 That is why the
CIA regularly entertains Title VII claims concerning the
hiring and promotion of its employees, as we noted in Web-
ster, 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
5 The Court of Appeals apparently believed that the plaintiff ’s relation-
ship 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 pro-
ceeded 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.

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Stevens, J., concurring
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 unac-
ceptable: “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 in-
formation 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 con-
firming or denying relationships with individual plaintiffs.
The judgment of the Court of Appeals is reversed.
It is so ordered.
Justice Stevens, with whom Justice Ginsburg joins,
concurring.
In Totten v. United States, 92 U. S. 105 (1876), the Court
held that an alleged oral agreement between a deceased spy
and President Lincoln was unenforceable. There may be
situations in which the national interest would be well
served by a rule that permitted similar commitments made
by less senior officers to be enforced in court, subject to pro-
cedures designed to protect sensitive information. If that
be so, Congress can modify the federal common-law rule an-
nounced in Totten. For the purposes of today’s decision,

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12 TENET v. DOE
Scalia, J., concurring
which I join, the doctrine of stare decisis provides a sufficient
justification for concluding that the complaint is without
merit. The Court wisely decides that the absence of an en-
forceable agreement requires that respondents’ constitu-
tional and other claims be dismissed without first answering
an arguably antecedent jurisdictional question. See ante, at
6–7, n. 4; see also Steel Co. v. Citizens for Better Environ-
ment, 523 U. S. 83, 117–123 (1998) (Stevens, J., concurring
in judgment).
Justice Scalia, concurring.
I join the Court’s opinion because I do not agree with
Justice Stevens’s concurrence, painting today’s action as a
vindication of his opinion concurring in the judgment in Steel
Co. v. Citizens for Better Environment, 523 U. S. 83, 112
(1998), in which he would have held that a jurisdictional bar
does not prevent the resolution of a merits issue. When to-
day’s opinion refers to the issue in Totten v. United States,
92 U. S. 105 (1876), as “the sort of ‘threshold question’ we
have recognized may be resolved before addressing jurisdic-
tion,” ante, at 7, n. 4, it is surely not referring to the run-of-
the-mill, nonthreshold merits question whether a cause of
action exists. And when it describes “the unique and cate-
gorical nature of the Totten bar—a rule designed not merely
to defeat the asserted claims, but to preclude judicial in-
quiry,” ibid., it is assuredly not describing the mere everyday
absence of a cause of action. As applied today, the bar of
Totten is a jurisdictional one.
Of course even if it were not, given the squarely applicable
precedent of Totten, the absence of a cause of action is so
clear that respondents’ claims are frivolous—establishing
another jurisdictional ground for dismissal that the Steel Co.
majority opinion acknowledges. See 523 U. S., at 89.