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Court Rejects Bivens Claim For Religious Discrimination By CIA

By Howard M. Friedman

Ciralsky v. Central Intelligence Agency, 2010 U.S. Dist. LEXIS 120617 (ED VA, Nov. 15, 2010), is a suit originally filed ten years ago by a former CIA employee challenging the revocation of his security clearance and his resulting termination from his position as an attorney with the CIA.  Plaintiff Adam Ciralsky claims that these actions were taken because he is Jewish and was viewed as a supporter of Israel. Some of plaintiff's claims have already been adjudicated or are still pending in the district court for the District of Columbia. The claims involved in this opinion are primarily Bivens claims for violations of various constitutional provisions. Among those are claims that defendants violated the free exercise clause and the equal protection component of the 5th Amendment's due process clause. The court dismissed plaintiff's claims on various grounds, including lack of subject matter jurisdiction. However it also discussed the merits of various claims, including those under the 1st and 5th Amendment:

Ciralsky has already challenged the revocation of his security clearance under Title VII in the District of Columbia, which dismissed that claim; he cannot use a Bivens action to receive a second chance at his failed Title VII claim.

Indeed, allowing this claim would require this Court to broaden the scope of Bivens, which courts are reluctant to do. Bivens creates an implied right of action for damages against federal officials who violate specific constitutional rights.... Ciralsky has not cited any precedent that creates a Bivens action for free exercise or equal protection claims.

Even if Ciralsky could bring such a Bivens action, he does not allege facts that make out a constitutional violation. Ciralsky alleges that the CIA revoked his security clearance because officials saw him as overly sympathetic to Israel. If true, the CIA's actions were within its broad discretion for granting and denying access to national security information.

Full post as published by Religion Clause on November 17, 2010 (boomark / email).