1. Introduction
This case concerns the relationship between broad executive authority to dismiss intelligence personnel and an agency’s obligation to honor its own mandatory employment procedures. Nineteen career intelligence officers challenged their terminations after the Central Intelligence Agency and the Office of the Director of National Intelligence allegedly denied them procedures addressing reassignment and internal appeal.
The central constitutional question was narrow but consequential: can employees possess a protected entitlement to specified termination-related procedures even when they have no protected right to continued employment? The panel answered yes in the circumstances presented. The full court declined to rehear that decision.
The supplied decision is an order denying rehearing, accompanied by Judge Berner’s concurrence and Judge Niemeyer’s dissent. It is not a new en banc merits opinion. Its immediate effect is to leave the panel decision intact; the separate statements explain competing understandings of that decision rather than establish additional holdings for the full court.
2. Background and Procedural History
The parties and the terminations
The plaintiffs were intelligence officers proceeding under pseudonyms. The defendants included the CIA, ODNI, and their respective directors in their official capacities.
Judge Niemeyer describes the terminations as following Executive Order No. 14151, which directed the closure of diversity, equity, and inclusion offices. According to his account, the CIA Director terminated more than fifty employees, nineteen of whom brought this action. Judge Berner emphasizes that the challenged dismissals occurred through a reduction in force, without allegations that the affected officers individually posed national-security threats.
The disputed regulation
Agency Regulation 4-16 contained two relevant procedural protections:
- An opportunity to meet with an agency representative about reassignment and receive assistance if the employee wished to pursue it.
- An opportunity to appeal a termination decision internally.
The regulation also contained a broad reservation of authority. As quoted by Judge Niemeyer, it stated that employees lacked tenure, could be terminated under the National Security Act without regard to the regulation’s procedural requirements, and acquired no property interests or employment privileges from agency regulations or other documents.
Those provisions create the dispute’s central interpretive tension: whether particular procedural commitments remain constitutionally enforceable despite a general disclaimer of employment interests and a reservation of termination authority.
The preliminary injunction and appeal
The district court granted preliminary relief. According to the dissent, it prohibited the CIA Director from implementing the plaintiffs’ terminations “without further court authorization.” The panel affirmed.
A member of the court then requested an en banc poll. Fourteen judges voted against rehearing, while Judge Niemeyer voted in favor. Judge Berner explained why rehearing was unwarranted; Judge Niemeyer argued that the panel had substantially expanded judicial control over discretionary executive employment decisions.
3. Summary of the Decision
The court’s operative ruling
The court denied rehearing en banc because the poll did not produce the required majority. That procedural disposition leaves the panel judgment undisturbed. It does not establish that every judge voting against rehearing endorsed every part of the panel’s reasoning or Judge Berner’s explanation.
Judge Berner’s concurrence
Judge Berner identifies four principal features of the panel decision:
- The courts could consider the officers’ constitutional claims under Webster v. Doe.
- The regulation created a constitutional entitlement to the specified reassignment and internal-appeal procedures.
- The officers possessed no property interest in continued employment.
- The district court’s irreparable-harm determination, equitable balancing, public-interest assessment, and injunction scope survived abuse-of-discretion review.
She considers that result consistent with existing precedent and too fact-specific to warrant exceptional full-court review. She also notes that the agencies subsequently amended the regulation to remove the two disputed procedures for terminations based on an “excess personnel” determination.
Judge Niemeyer’s dissent
Judge Niemeyer sees the panel decision as a substantial doctrinal departure. In his view, procedural rules cannot create a constitutionally protected property interest when the underlying employment remains entirely discretionary. He further argues that enforcing these procedures through an injunction intrudes upon authority Congress deliberately entrusted to the CIA Director.
The disagreement is therefore not simply about whether the agencies followed their rules. It concerns whether those rules supply an independently protected constitutional entitlement.
4. Analysis of the Precedents Cited
Webster v. Doe, 486 U.S. 592
This precedent performs two distinct functions. Judge Berner invokes it as the foundation for judicial consideration of the officers’ constitutional claims. Judge Niemeyer relies on its explanation of the extraordinary deference owed to the CIA Director’s termination decisions.
The quoted passage observes that the statutory standard “fairly exudes deference” and supplies no meaningful judicial standard for assessing the Director’s national-security judgment. That reasoning supports the distinction between reviewing the discretionary merits of a dismissal and considering a constitutional challenge associated with it.
Accordingly, the precedent does not resolve this dispute merely by establishing that the Director enjoys broad discretion. The additional question is whether the plaintiffs have identified a valid constitutional entitlement that a court may enforce without reconsidering the substantive termination judgment.
Doe 1 v. Off. of the Dir. of Nat'l Intel., 180 F.4th 536 (4th Cir. 2026)
This is the underlying panel decision preserved by the rehearing denial. Judge Berner quotes its formulation of the issue: whether the regulation creates an entitlement to consideration for reassignment and an internal appeal. She also quotes its express acknowledgment that the officers have no right to continued employment.
Judge Niemeyer cites the same panel decision as Doe v. Office of the Dir. of Nat'l Intel., 180 F.4th 536 (4th Cir. 2026). The differing case-name forms in the supplied text refer to the same reported decision, not separate precedents.
Its significance lies in separating the procedural opportunities from the ultimate employment outcome. Because the full panel opinion is not supplied, the present commentary necessarily assesses its reasoning through the quotations and descriptions in the rehearing statements.
Smith v. Ashcroft, 295 F.3d 425 (4th Cir. 2002)
Judge Niemeyer invokes this Fourth Circuit precedent for the requirement that a claimant identify an entitlement grounded in a statute or regulation that meaningfully limits the decision-maker’s discretion.
His application treats continued employment as the relevant benefit: because the Director retains discretion to terminate employment, no protected entitlement exists. The competing position identifies the benefit more narrowly as access to particular reassignment and appeal opportunities. Thus, the dispute turns partly on which benefit must be subject to a meaningful limit on discretion.
Bd. of Regents v. Roth, 408 U.S. 564 (1972)
This foundational property-interest decision supports the distinction between a desired benefit and a legally grounded entitlement. A constitutional property claim requires more than an employee’s expectation or preference.
Its importance here is methodological: the court must identify the source and scope of the asserted entitlement before deciding what process the Constitution protects. Both sides accept that continued employment is not such an entitlement. They disagree over whether the agency’s separate procedural commitments qualify.
Ky. Dep't of Corr. v. Thompson, 490 U.S. 454 (1989)
Judge Niemeyer cites this case alongside the entitlement authorities. It reinforces the need to examine whether governing rules actually constrain official discretion, rather than assuming that an administrative regulation necessarily creates constitutional rights.
Applied here, that inquiry requires attention to both the mandatory language of the particular procedural provisions and the regulation’s broader reservation of termination authority. The supplied concurrence does not reproduce the panel’s complete reconciliation of those provisions.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
Judge Niemeyer relies on this decision for the distinction between a substantive property entitlement and the procedures governing its deprivation. The existence of a procedural rule does not, by itself, establish the underlying property interest.
This presents the strongest conceptual challenge to the panel’s approach. If reassignment consideration and appeal are merely steps regulating deprivation of unprotected employment, constitutional protection may not follow. If they are distinct promised benefits, the analysis may differ. Judge Berner maintains that existing entitlement doctrine supports the panel’s treatment, but her statement does not reproduce its full doctrinal explanation.
Hewitt v. Helms, 459 U.S. 460 (1983)
The dissent also invokes this case to support its argument that procedural requirements should not be confused with substantive interests. Its role is to reinforce the objection to deriving a constitutional entitlement from procedural language alone.
Taken together, the cited authorities frame a threshold inquiry: does the regulation confer an independently identifiable benefit, or does it merely prescribe procedures concerning an outcome that remains discretionary? The separate statements give opposing answers to that question.
5. Legal Reasoning and Principal Tensions
A. Constitutional review is different from review of dismissal merits
The National Security Act authorizes the CIA Director to terminate employment when the Director deems it necessary or advisable in the interests of the United States. Judge Niemeyer emphasizes the breadth of that authority under 50 U.S.C. § 3036(e)(1).
Judge Berner’s response is not that courts may substitute their employment judgments for the Director’s. Instead, she distinguishes the power to dismiss from the obligation to provide specified procedures. On that account, a court can enforce the latter without creating a substantive right to retain a position.
Nevertheless, constitutional jurisdiction does not establish a constitutional violation. The officers still needed a protected interest, making the entitlement issue indispensable.
B. Defining the protected interest determines the analysis
The competing approaches can be stated simply:
- Concurrence: The relevant entitlements are reassignment consideration and an internal appeal; continued employment is not protected.
- Dissent: Those procedures cannot supply an independent constitutional property interest where employment itself remains discretionary.
This distinction explains why the same general entitlement principles can produce sharply different conclusions. The controversy concerns the legal characterization of the benefit, not merely whether mandatory language appeared in the regulation.
C. The regulation’s disclaimer remains significant
The dissent quotes language expressly denying employment-related property interests and permitting statutory terminations without the regulation’s procedures. Any account of the case that discusses only the procedural promises would therefore be incomplete.
Judge Berner answers principally by emphasizing that the panel recognized no property interest in continued employment. The supplied statement, however, does not fully explain how the panel treated the reservation of authority to dispense with procedural requirements. That limits what can confidently be reconstructed from this order alone.
D. The injunction creates a practical separation-of-powers concern
Judge Berner maintains that the panel leaves the agencies’ substantive termination discretion intact. Judge Niemeyer stresses that an injunction preventing implementation of terminations nevertheless affects the exercise of that discretion.
Both observations identify relevant dimensions of the dispute. A court order can preserve an official’s ultimate decision-making authority while temporarily restricting implementation. Whether that restriction is justified depends on the validity of the protected entitlement and the requirements for preliminary relief.
The concurrence states that the panel sustained the district court’s equitable determinations and injunction scope. It does not provide enough factual detail to independently assess the particular irreparable harms or the need for the injunction’s full breadth.
E. Rehearing standards are separate from the merits
Under Federal Rule of Appellate Procedure 40, rehearing en banc is disfavored and ordinarily requires satisfaction of specified criteria. Judge Berner finds no relevant precedent conflict, inter-circuit conflict, or question of exceptional importance warranting review.
Her argument is partly institutional: disagreement with a panel does not automatically justify rehearing by the full court. Judge Niemeyer, conversely, considers the perceived expansion of constitutional protection and intrusion into executive authority sufficiently important to require it.
F. The constitutional terminology requires care
The dissent refers to an expansion of “substantive Due Process rights.” The dispute as otherwise described principally concerns procedural due process: whether a protected property interest exists and what procedures must accompany governmental action affecting it. Identifying a substantive entitlement is a threshold step in that inquiry; it does not necessarily make the claim a conventional substantive-due-process challenge.
6. Potential Impact
A narrow immediate result
The immediate effect is preservation of the panel’s preliminary-injunction ruling for these officers under the disputed regulation. The decision does not establish a general right to intelligence-agency employment or authorize ordinary judicial reconsideration of national-security dismissal judgments.
Possible significance beyond intelligence employment
Future litigants may invoke the panel’s distinction between discretionary ultimate outcomes and mandatory intermediate benefits. That argument could matter wherever a public institution promises a particular opportunity while reserving discretion over the final result.
But broader application is not automatic. Courts would still need to examine the governing text, the nature of the claimed benefit, applicable disclaimers, statutory discretion, and controlling entitlement doctrine. Judge Niemeyer’s dissent supplies a substantial argument against converting procedural commitments into constitutional property interests.
Regulatory drafting and amendment
The agencies’ reported amendment removes the disputed procedures for “excess personnel” terminations. That supports Judge Berner’s prediction that the precise controversy is unlikely to recur.
It does not itself decide whether the amendment affects existing claims, whether the litigation became moot, or how future regulations should be interpreted. The supplied order resolves none of those questions. More generally, the case highlights the importance of clearly coordinating mandatory procedures with reservations of discretion.
Continuing institutional disagreement
The decision exposes a recurring tension between enforcing governmental commitments and preserving executive flexibility. Its broader significance will depend on whether later courts treat the panel’s reasoning as confined to an unusual regulation and factual setting or apply its conception of independently protected procedural benefits elsewhere.
7. Complex Concepts Simplified
- Rehearing en banc
- Review of a panel decision by the court’s eligible active judges. It is exceptional, not a routine additional appeal.
- Property interest
- A legally protected entitlement to a benefit—not merely a hope of receiving it. Public employment can qualify when governing law sufficiently restricts dismissal, but the panel recognized no such employment entitlement here.
- Procedural due process
- The constitutional requirement of appropriate procedures when government deprives someone of protected life, liberty, or property. A claimant ordinarily must first identify a protected interest.
- Discretionary authority
- Authority allowing an official to choose among permissible outcomes. Broad discretion over an ultimate outcome does not necessarily answer whether separate legal obligations remain enforceable.
- Preliminary injunction
- A temporary court order protecting asserted rights while litigation continues. It is not a final adjudication of every claim.
- Abuse-of-discretion review
- A deferential appellate standard used for decisions involving judicial judgment, including aspects of preliminary equitable relief. Deference does not make legal errors permissible.
- Separation of powers
- The constitutional allocation of authority among the branches. Here, the concern is whether enforcing procedural commitments improperly constrains employment authority Congress entrusted to executive officials.
8. Conclusion
The Fourth Circuit left intact a panel decision recognizing constitutional protection for two specified intelligence-agency termination procedures while expressly rejecting any right to continued employment.
The enduring doctrinal question is whether those procedures constitute independent protected benefits or merely regulate an otherwise discretionary employment decision. Judge Berner views the panel’s answer as orthodox and narrowly confined; Judge Niemeyer views it as an unprecedented expansion of constitutional and judicial authority. The rehearing denial preserves the panel’s answer without converting either separate statement into an en banc merits holding.