Wilson v. Libby

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 9, 2008 Decided August 12, 2008

No. 07-5257

VALERIE PLAME WILSON AND JOSEPH C. WILSON, IV,

APPELLANTS

v.

I. LEWIS LIBBY, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 06cv01258)

Erwin Chemerinsky argued the cause for appellants. With

him on the briefs were Anne L. Weismann and Melanie T. Sloan.

Jeffrey S. Bucholtz, Acting Assistant Attorney General, U.S.

Department of Justice, argued the cause for appellees. With him

on the brief were Jeffrey A. Taylor, U.S. Attorney, Mark B. Stern

and Charles W. Scarborough, Attorneys, Michael L. Waldman,

John G. Kester, Terrence O’Donnell, C. Bryan Wilson, Robert

D. Luskin, William H. Jeffress Jr., and Alex J. Bourelly. Richard

Montague, Attorney, U.S. Department of Justice, R. Craig

Lawrence, Assistant U.S. Attorney, and Jeffrey A. Lamken,

entered appearances.

2

John G. Kester, Terrence O’Donnell , and C. Bryan Wilson

were on the brief for appellee Vice President Richard B.

Cheney.

Before: SENTELLE, Chief Judge, HENDERSON and ROGERS,

Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

Opinion concurring in part and dissenting in part filed by

Circuit Judge ROGERS.

SENTELLE, Chief Judge: In his 2003 State of the Union

address, President George W. Bush reported that “[t]he British

government has learned that Saddam Hussein recently sought

significant quantities of uranium from Africa.”1 Those sixteen

words set off a series of events which resulted in the disclosure

of Valerie Plame Wilson’s previously covert status at the

Central Intelligence Agency. Valerie Plame Wilson and her

husband, Joseph C. Wilson IV, have filed this action for

damages to remedy the injuries they allege they suffered

because of that disclosure. Defendants are the United States and

four Executive Branch officials — Vice President Richard B.

Cheney, former Senior Advisor to the President Karl C. Rove,

former Assistant to the President and Chief of Staff to the Vice

President I. Lewis “Scooter” Libby, Jr., and former Deputy

Secretary of State Richard L. Armitage. On motions to dismiss,

the district court dismissed all claims. We affirm.

1

George W. Bush, U.S. President, State of the Union,

Address Before the Nation (Jan. 23, 2003) (transcript available at

http://www.whitehouse.gov/news/releases/2003/01/20030128-

19.html).

3

I. BACKGROUND

We accept the factual allegations in the Amended

Complaint as true for purposes of this appeal. See Leatherman

v. Tarrant County Narcotics Intelligence & Coordination Unit,

507 U.S. 163, 164 (1993).

During the spring of 2003, after President George W. Bush

informed the Nation that “[t]he British government has learned

that Saddam Hussein recently sought significant quantities of

uranium from Africa,” there was much speculation in the press

about whether the uranium allegation was credible and whether

individuals at the White House were aware of questions about

its credibility when the State of the Union address was given.

On May 6, 2003, The New York Times published the first article

questioning the veracity of the claim. That article by Nicholas

Kristof cited as its source a “former ambassador” who had

traveled to Niger in early 2002 and reported back to the Central

Intelligence Agency (“CIA”) and the State Department that the

uranium “allegations were unequivocally wrong and based on

forged documents.” Am. Compl. ¶ 19b.

The Vice President’s Chief of Staff, I. Lewis “Scooter”

Libby, Jr., contacted the State Department and asked for

information about the Niger trip reported in The New York

Times. The State Department’s Bureau of Intelligence and

Research was directed to prepare a report about the travel and an

Under Secretary kept Libby updated about its progress. The

Under Secretary informed Libby that the former ambassador

was Joseph Wilson. In June 2003, Libby was further advised by

the Under Secretary and by a senior official at the CIA that

Valerie Plame Wilson was Joseph Wilson’s wife, that she

worked at the CIA, and that some thought that she helped plan

Joseph Wilson’s trip to Niger. Vice President Cheney also told

4

Libby that Valerie Plame Wilson worked at the CIA in the

Counterproliferation Division.

On June 12, 2003, The Washington Post published an article

critical of the uranium claim based on the report of a retired

ambassador who had traveled to Niger. Another article was

published on June 19, 2003, in The New Republic. Entitled “The

First Casualty: The Selling of the Iraq War,” the article alleged

that the Vice President’s office had prompted the former

ambassador’s trip to Niger and that, after the trip, administration

officials “‘knew the Niger story was a flat-out lie.’” Am.

Compl. ¶ 19k (quoting Spencer Ackerman & John B. Judis, The

First Casualty: The Selling of the Iraq War, NEW REPUBLIC,

June 30, 2003, at 14). Several news outlets carried the story on

July 6, 2003. The New York Times published an Op-Ed by

Joseph Wilson entitled “What I Didn’t Find in Africa;” The

Washington Post published an article based on an interview with

Joseph Wilson; and the Meet the Press television show included

Joseph Wilson as a guest. Wilson confirmed the prior reports of

his travel to Niger in 2002 and his doubts about the uranium

claims and said that he had told the administration of his doubts

upon his return from Niger.

The administration commenced an effort to rebut the

Wilson allegations. In July, Libby talked to Judith Miller of The

New York Times and to Matthew Cooper of Time magazine; Karl

Rove talked to Matthew Cooper of Time magazine and to Chris

Matthews, host of MSNBC’s “Hardball;” and Deputy Secretary

of State Richard Armitage met with reporter Robert Novak.

Armitage, who had learned of Valerie Wilson’s CIA

employment from a State Department memo, told Novak that

Valerie Wilson worked at the CIA on issues relating to weapons

of mass destruction. Novak then wrote an article that was

published in several newspapers, including The Washington Post

and the Chicago Sun Times, on July 14, 2003. In the article, he

5

wrote that “Wilson never worked for the CIA, but his wife,

Valerie Plame, is an Agency operative on weapons of mass

destruction.” Am. Compl. ¶ 14. That article, Valerie Wilson

contends, “destroyed her cover as a classified CIA employee.”

Id.

The Wilsons filed a complaint in district court seeking

money damages from Vice President Cheney, Libby, and Rove

for injuries allegedly suffered because of the disclosure of

Valerie Wilson’s employment at the CIA. They amended their

complaint on September 13, 2006, to add Armitage as a

defendant. The Wilsons seek damages for constitutional

violations under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), and for the

invasion of their privacy under District of Columbia tort law.

The district court dismissed all of their claims. Wilson v.

Libby, 498 F. Supp. 2d 74 (D.D.C. 2007). The court held that

the Wilsons failed to state a Bivens claim upon which relief

could be granted because special factors counsel against creating

a Bivens remedy in this case. The Wilsons’ Bivens claims were

based on alleged violations of their Fifth Amendment rights to

equal protection of the laws, of Joseph Wilson’s First

Amendment right to freedom of speech, and of Valerie Wilson’s

Fifth Amendment rights to privacy and property, with each

claim based on the disclosure of personal information covered

by the Privacy Act, 5 U.S.C. § 552a. Because this Court has

held that the Privacy Act is a comprehensive remedial scheme,

Chung v. U.S. Dep’t of Justice, 333 F.3d 273, 274 (D.C. Cir.

2003), aff’g in relevant part No. 00-1912 (D.D.C. Sept. 20,

2001), and because the Supreme Court has held that the

existence of a comprehensive remedial scheme precludes

implication of Bivens remedies even where the scheme does not

provide full relief, Wilkie v. Robbins, 127 S. Ct. 2588, 2600-01,

2604-05 (2007); Schweiker v. Chilicky, 487 U.S. 412, 421-22

6

(1988); Bush v. Lucas, 462 U.S. 367, 388 (1983), the district

court concluded that it could not imply a Bivens remedy here.

The court further concluded that creating a Bivens remedy in this

case would be inappropriate because, if litigated, the case would

inevitably require the disclosure of sensitive intelligence

information.

The district court held that the invasion of privacy claim

also required dismissal. The United States had intervened in the

lawsuit with respect to the tort claim and had filed a certification

pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(2), that, “at

the time of the conduct alleged in the amended complaint the

individual federal defendants . . . were each acting within the

scope of their employment as employees of the United States.”

The court found that the Westfall Act certification was proper,

meaning that the case must proceed solely against the United

States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C.

§§ 2671–80. Because the Wilsons had not exhausted

administrative remedies as required by the FTCA, the court

dismissed the claim for lack of jurisdiction. The Wilsons

appealed.

II. JURISDICTION

The “first and fundamental question” that we are “bound to

ask and answer” is whether we have jurisdiction to decide this

appeal. Bancoult v. McNamara, 445 F.3d 427, 432 (D.C. Cir.

2006) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 94 (1998)) (internal quotation marks omitted). “‘The

requirement that jurisdiction be established as a threshold matter

“springs from the nature and limits of the judicial power of the

United States” and is “inflexible and without exception.”’” Id.

(quoting Steel Co., 523 U.S. at 94–95 (quoting Mansfield, C. &

L.M. Ry. v. Swan, 111 U.S. 379, 382 (1884))). Therefore, we

must “‘address questions pertaining to [our] jurisdiction before

7

proceeding to the merits.’” Id. (quoting Tenet v. Doe, 544 U.S.

1, 6 n.4 (2005)).

The Vice President argues that we do not have jurisdiction

under the political question doctrine because this case involves

the identity of a covert agent and thereby implicates foreign-

policy and national-security decisions that are reserved to the

Executive Branch. We conclude that the allegations do not

implicate the political question doctrine.

The political question doctrine “‘excludes from judicial

review those controversies which revolve around policy choices

and value determinations constitutionally committed for

resolution to the halls of Congress or the confines of the

Executive Branch.’” Bancoult, 445 F.3d at 432 (quoting Japan

Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230

(1986)). The doctrine applies where, “[p]rominent on the

surface” of the case is:

[1] a textually demonstrable constitutional commitment of

the issue to a coordinate political department; or [2] a lack

of judicially discoverable and manageable standards for

resolving it; or [3] the impossibility of deciding without an

initial policy determination of a kind clearly for nonjudicial

discretion; or [4] the impossibility of a court’s undertaking

independent resolution without expressing lack of the

respect due coordinate branches of government; or [5] an

unusual need for unquestioning adherence to a political

decision already made; or [6] the potentiality of

embarrassment from multifarious pronouncements by

various departments on one question.

Baker v. Carr, 369 U.S. 186, 217 (1962). “‘[U]nless one of

these formulations is inextricable from the case at bar,’ we may

not dismiss the claims as nonjusticiable under the political

8

question doctrine.” Bancoult, 445 F.3d at 432–33 (quoting

Baker, 369 U.S. at 217).

The doctrine does not apply here. While “decision-making

in the fields of foreign policy and national security is textually

committed to the political branches of government,” Schneider

v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005), the Wilsons

have not challenged any foreign policy or national security

decisions entrusted to the Executive Branch. They have instead

challenged disclosures made by high-level executive branch

officials when speaking with the press. The disclosures may

have implicated national security by identifying a previously

covert agent, but the lawsuit itself is not about national security

in a manner requiring application of the political question

doctrine. We therefore will proceed to the merits of the

Wilsons’ claims.

III. ANALYSIS

The Wilsons argue that the district court erred in holding

that special factors preclude implication of a Bivens claim and

that the Government’s Westfall Act certification was proper. On

each legal issue, our review is de novo. See Rasul v. Myers, 512

F.3d 644, 654 (D.C. Cir. 2008).

A. Constitutional Claims

The Wilsons first contest the district court’s ruling that

Bivens remedies are not available for their injuries. We agree

with the district court that we cannot create a Bivens remedy

because the comprehensive Privacy Act and the sensitive

intelligence information concerns affiliated with this case

preclude us from doing so.

9

1.

We have discretion in some circumstances to create a

remedy against federal officials for constitutional violations, but

we must decline to exercise that discretion where “special

factors counsel[] hesitation” in doing so. See Bivens, 403 U.S.

at 396; Spagnola v. Mathis, 859 F.2d 223, 226 (D.C. Cir. 1988)

(en banc). In Bivens, the Court implied a remedy where there

were no “‘special factors counselling hesitation in the absence

of affirmative action by Congress’” that required “the judiciary

[to] decline to exercise its discretion in favor of creating

damages remedies against federal officials.” Spagnola, 859

F.2d at 226 (quoting Bivens, 403 U.S. at 396). Since Bivens, the

Supreme Court has “recognized two more nonstatutory damages

remedies, the first for employment discrimination in violation of

the Due Process Clause, Davis v. Passman, 442 U.S. 228 (1979),

and the second for an Eighth Amendment violation by prison

officials, Carlson v. Green, 446 U.S. 14 (1980),” but “in most

instances[, the Court has] found a Bivens remedy unjustified.”

Wilkie v. Robbins, 127 S. Ct. 2588, 2597 (2007). Indeed, in its

“more recent decisions[, the Supreme Court has] responded

cautiously to suggestions that Bivens remedies be extended into

new contexts.” Chilicky, 487 U.S. at 421.

One “special factor” that precludes creation of a Bivens

remedy is the existence of a comprehensive remedial scheme.

In Bush v. Lucas, 462 U.S. 367 (1983), the Court held that the

federal civil service laws were a “special factor” that precluded

additional Bivens remedies because they constituted “an

elaborate remedial system that ha[d] been constructed step by

step, with careful attention to conflicting policy considerations”

and thereby reflected Congressional judgment about the type

and magnitude of relief available. Id. at 388–90. The scheme

did not provide “complete relief” to the plaintiff, but the Court

held that the special factors inquiry does “not concern the merits

10

of the particular remedy that was sought” or its completeness.

Id. at 380, 388. Rather, the doctrine “relate[s] to the question of

who should decide whether such a remedy should be provided.”

Id. at 380. “[C]onvinced that Congress is in a better position to

decide whether or not the public interest would be served” by

the addition of legal liability, the Court refused to create new

remedies under Bivens for the plaintiff in Bush. Id. at 390.

The Supreme Court reiterated that a remedial statute need

not provide full relief to the plaintiff to qualify as a “special

factor” in Schweiker v. Chilicky, 487 U.S. 412 (1988). In

Chilicky, “exactly as in Bush, Congress ha[d] failed to provide

for ‘complete relief’: respondents ha[d] not been given a

remedy in damages for emotional distress or for other hardships

suffered because of delays in their receipt of Social Security

benefits.” Chilicky, 487 U.S. at 425. But, the Court noted,

“[t]he absence of statutory relief for a constitutional violation

. . . does not by any means necessarily imply that courts should

award money damages against the officers responsible for the

violation.” Id. at 421–22. Rather, “the concept of ‘special

factors counselling hesitation in the absence of affirmative

action by Congress’ . . . include[s] an appropriate judicial

deference to indications that congressional inaction has not been

inadvertent.” Id. at 423. Therefore, “[w]hen the design of a

Government program suggests that Congress has provided what

it considers adequate remedial mechanisms for constitutional

violations that may occur in the course of its administration,”

courts should not “create[] additional Bivens remedies.” Id.

Because “Congress is the body charged with making the

inevitable compromises required in the design of a massive and

complex welfare benefits program,” the Court refused to

question the legislative decision to exclude certain remedies

from that program. Id. at 429.

11

Most recently, in Wilkie v. Robbins, 127 S. Ct. 2588 (2007),

the Court again held that the creation of a Bivens remedy is not

required solely because there is no alternative statutory remedy.

In Wilkie, there was no comprehensive scheme demonstrating

“that Congress expected the Judiciary to stay its Bivens hand,”

but the Court declined to imply a Bivens remedy nonetheless.

Id. at 2600. The Court held that a remedy for allegedly

harassing conduct of government officials would “come better,

if at all, through legislation [because] ‘Congress is in a far better

position than a court to evaluate the impact of a new species of

litigation’ against those who act on the public’s behalf.” Id. at

2604–05 (quoting Bush, 462 U.S. at 389). The Court’s “point

. . . is not to deny that Government employees sometimes

overreach, for of course they do, and they may have done so

here if all the allegations are true.” Id. at 2604. Instead, “[t]he

point is the reasonable fear that a general Bivens cure would be

worse than the disease.” Id. The Court concluded that authority

to create a remedy should remain with Congress because

Congress can “tailor any remedy to the problem perceived, thus

lessening the risk of raising a tide of suits threatening legitimate

initiative on the part of the Government’s employees.” Id. at

2605. Thus, the Court again made clear that there is no

“automatic entitlement” to a Bivens remedy regardless of “what

other means there may be to vindicate a protected interest.” Id.

at 2597.

Consistent with Bush, Chilicky, and Wilkie, our Court sitting

en banc has held that the availability of Bivens remedies does

not turn on the completeness of the available statutory relief. In

Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988), we

interpreted Bush and Chilicky as “ma[king] clear that it is the

comprehensiveness of the statutory scheme involved, not the

‘adequacy’ of specific remedies extended thereunder, that

counsels judicial abstention.” Id. at 227. We held that “courts

must withhold their power to fashion damages remedies when

12

Congress has put in place a comprehensive system to administer

public rights, has ‘not inadvertently’ omitted damages remedies

for certain claimants, and has not plainly expressed an intention

that the courts preserve Bivens remedies.” Id. at 228. Quoting

Chilicky, we explained that, “[i]n these circumstances, it is not

for the judiciary to question whether Congress’ ‘response [was]

the best response, [for] Congress is the body charged with

making the inevitable compromises required in the design of a

massive and complex . . . program.’” Id. (quoting Chilicky, 487

U.S. at 429).

Our Spagnola decision involved the comprehensive scheme

established by the Civil Service Reform Act. 859 F.2d at 230.

We have also found comprehensive remedial schemes in Title

VII of the Civil Rights Act of 1964, see Ethnic Employees of

Library of Congress v. Boorstin, 751 F.2d 1405, 1414–16 (D.C.

Cir. 1985), the Freedom of Information Act, see Johnson v.

Executive Office for U.S. Attorneys, 310 F.3d 771, 777 (D.C.

Cir. 2002), the Veterans’ Judicial Review Act, see Thomas v.

Principi, 394 F.3d 970, 975–76 (D.C. Cir. 2005), and the

Privacy Act, see Chung v. U.S. Dep’t of Justice, 333 F.3d 273,

274 (D.C. Cir. 2003), aff’g in relevant part No. 00-1912 (D.D.C.

Sept. 20, 2001).

2.

The Wilsons concede that this Court has held that the

Privacy Act, 5 U.S.C. § 552a, is a “special factor” that counsels

hesitation in implying Bivens remedies. Appellants’ Br. at

17–18 (citing Chung, 333 F.3d at 274); accord Downie v. City

of Middleburg Heights, 301 F.3d 688, 698 (6th Cir. 2002)

(finding Privacy Act is a “comprehensive legislative scheme”

that precludes additional Bivens remedies). But they contend

that the Privacy Act should not be found “comprehensive” and

preclusive of Bivens remedies here because three defendants in

13

this case are exempted from its terms. The failure of the Privacy

Act to provide complete relief to the Wilsons, however, does not

undermine its status as a “comprehensive scheme” that stops us

from providing additional remedies under Bivens.

The Privacy Act regulates the “‘collection, maintenance,

use, and dissemination of information’” about individuals by

federal agencies. Doe v. Chao, 540 U.S. 614, 618 (2004)

(quoting Privacy Act of 1974 § 2(a)(5), 88 Stat. 1896). It

“authorizes civil suits by individuals . . . whose Privacy Act

rights are infringed,” Sussman v. U.S. Marshals Serv., 494 F.3d

1106, 1123 (D.C. Cir. 2007), and provides for criminal penalties

against federal officials who willfully disclose a record in

violation of the Act, 5 U.S.C. § 552a(i)(1).

The claims asserted by the Wilsons are all claims alleging

harm from the improper disclosure of information subject to the

Privacy Act’s protections. The Privacy Act applies to

information that is “about an individual,” that is stored in a

system of records “under the control of any agency,” and that is

“retrieved by the name of the individual or by some identifying

number, symbol, or other identifying particular assigned to the

individual.” 5 U.S.C. § 552a(a)(4), (5). The amended complaint

premises the Wilsons’ damages on the publication of Valerie

Plame Wilson’s CIA employment in the Novak column. Am.

Compl. ¶ 40. The publication was the result of a disclosure by

Deputy Secretary of State Armitage of information about an

individual contained in State Department records. Id. at ¶ 14.

Each claim in the Wilson complaint is based on this

disclosure of Privacy Act protected information. In Count One,

the Wilsons allege that Joseph Wilson’s First Amendment right

to free speech was violated when the information was disclosed

in retaliation for his speech. Count Two alleges that Valerie and

Joseph Wilson’s Fifth Amendment rights to equal protection of

14

the laws were violated by the disclosure of information because

that disclosure treated them differently from others. Count

Three alleges that Valerie Wilson’s Fifth Amendment right to

privacy was violated when her personal information was

publicly disclosed. Count Four alleges that Valerie Wilson’s

Fifth Amendment right to property was violated when the

information was disclosed because the disclosure eliminated the

secrecy of her position which was essential to her employment.

Thus, each Constitutional claim, whether pled in terms of

privacy, property, due process, or the First Amendment, is a

claim alleging damages from the improper disclosure of

information covered by the Privacy Act.

It is true that the Wilsons cannot obtain complete relief

under the Privacy Act because the Act exempts the Offices of

the President and Vice President from its coverage. See 5

U.S.C. § 552a(b) (applying Privacy Act requirements to

agencies); id. § 552a(a)(1) (adopting definition of “agency”

from the Freedom of Information Act (FOIA)); Kissinger v.

Reporters Committee for Freedom of the Press, 445 U.S. 136,

156 (1980) (Office of the President is not an “agency” under

FOIA); Judicial Watch, Inc. v. National Energy Policy

Development Group, 219 F. Supp. 2d 20, 55 (D.D.C. 2002).

Thus, even if the Wilsons can prove their allegations against

Vice President Cheney, Rove, and Libby, they will not be

remunerated for them. Nonetheless, our precedent is plain that

the Wilsons are still not entitled to Bivens relief as to Vice

President Cheney, Rove, or Libby, provided their omission from

the remedial scheme was not inadvertent. See Spagnola, 859

F.2d at 228.

Congress did not inadvertently omit the Offices of the

President and Vice President from the Privacy Act’s disclosure

requirements. The Privacy Act explicitly defines “agency” by

reference to FOIA, 5 U.S.C. § 552a(a)(1), which the Supreme

15

Court has held, based on “unambiguous” legislative history,

does not extend to the Office of the President, Kissinger, 445

U.S. at 156 (citing H.R. Rep. No. 93-1380 at 15 (1974)); see

also Judicial Watch, 219 F. Supp. 2d at 55 (concluding that the

Vice President and his staff are not “agencies” for purposes of

the FOIA). “There is every indication from the legislative

history that the drafters of the Privacy Act, in choosing to apply

the FOIA definition of ‘agency’ to the Privacy Act, were

cognizant of the Conference Committee Report prepared in

connection with the 1974 FOIA Amendments, which

specifically provided that ‘the term [agency] is not to be

interpreted as including the President’s immediate personal staff

or units in the Executive Office whose sole function is to advise

and assist the President.’” Jones v. Executive Office of the

President, 167 F. Supp. 2d 10, 19 (D.D.C. 2001) (quoting H.R.

Rep. No. 93-1380, at 15). This intentional omission of the

Presidential and Vice Presidential offices from the

comprehensive coverage of the Privacy Act requires us to deny

the additional remedies to the Wilsons which they seek.

3.

The Wilsons make two principal arguments in attempting

to distinguish their case from precedent. First, they rely on the

Supreme Court’s decision in Carlson. In Carlson the Supreme

Court stated that the right of victims of a constitutional violation

to a Bivens remedy “may be defeated . . . in two situations.” The

Court defined the first as “when defendants demonstrate ‘special

factors counseling hesitation in the absence of affirmative action

by Congress.’” 446 U.S. at 18. The Supreme Court described

the second as “when defendants show that Congress has

provided an alternative remedy which it explicitly declared to be

a substitute for recovery directly under the Constitution and

viewed as equally effective.” Id. at 18-19. The Wilsons argue

that the Bivens claim cannot be defeated here because there is no

16

“equally effective alternative remedy.” Were we to look at

Carlson standing alone, this argument might carry much weight.

However, subsequent to Carlson, the Court clarified that there

does not need to be an equally effective alternate remedy.

Instead, “the decision whether to recognize a Bivens remedy

may require two steps.” Wilkie, 127 S. Ct. at 2598. First, if

there is an “alternative, existing process for protecting the

interest,” then that is “a convincing reason for the Judicial

Branch to refrain from providing a new and freestanding remedy

in damages.” Id. Even if there is no equally effective

alternative remedy, the decision of whether to create “a Bivens

remedy is a subject of judgment” that requires the court to

“‘make the kind of remedial determination that is appropriate for

a common-law tribunal, paying particular heed, however, to any

special factors counseling hesitation before authorizing a new

kind of federal litigation.’” Id. (quoting Bush, 462 U.S. at 378).

In other words, an equally effective statutory remedy is a

sufficient, but not essential, reason for us to abstain from

creating Bivens remedies. The presence of a comprehensive

remedial scheme is also a sufficient reason for us to stay our

hand.

Second, the Wilsons argue that other remedies have been

available to the plaintiffs in cases where the Court denied a

Bivens remedy. In Bush, the Court referred to the

“comprehensive nature of the remedies currently available”

under the civil service laws, 462 U.S. at 388; in Chilicky, the

Court described the Social Security Act as a “comprehensive

statutory scheme,” 487 U.S. at 428; and in Wilkie, the Court

noted that the plaintiff could avail himself of a “patchwork” of

remedies for some of his injuries, 127 S. Ct. at 2600. Here, in

contrast, the Wilsons assert that they will never be able to obtain

any remuneration for injuries allegedly suffered because of the

actions of Vice President Cheney, Rove, and Libby if they

cannot proceed under Bivens. Thus, they argue, they are like the

17

plaintiffs in Davis and Bivens who were given a Bivens remedy

because they had no other avenue of relief available to them.

See Davis, 442 U.S. at 245 (“There are available no other

alternative forms of judicial relief.”); Bivens, 403 U.S. at 410

(Harlan, J., concurring in the judgment) (“For people in Bivens’

shoes, it is damages or nothing.”).

The first problem with this argument is that the Wilsons,

unlike the plaintiffs in Davis and Bivens, can seek at least some

remedy under the Privacy Act. At the least, as they concede,

Valerie Wilson has a possible claim based on the disclosure by

Deputy Secretary of State Armitage because the information

disclosed about her and the agency involved in the disclosure are

subject to the Privacy Act’s restrictions. Appellants’ Br. at 18

n.3. So, while the Privacy Act may not provide the Wilsons

with full relief regarding the alleged disclosures, and provides

Mr. Wilson with no relief, the Wilsons cannot contend that there

is no possibility of relief at all under the statute for the

disclosure of Privacy Act protected information.

The more significant flaw in the Wilsons’ argument is its

focus on the necessity of a remedy at all. The special factors

analysis does not turn on whether the statute provides a remedy

to the particular plaintiff for the particular claim he or she

wishes to pursue. In Spagnola, we held that a comprehensive

statutory scheme precludes a Bivens remedy even when the

scheme provides the plaintiff with “no remedy whatsoever.”

859 F.2d at 228 (quoting Chilicky, 487 U.S. at 423). And the

Supreme Court, in its most recent consideration of the issue, did

not create a remedy even though there was no cause of action

that the plaintiff could pursue to remedy injuries that resulted

from a prolonged “course of dealing as a whole.” Wilkie, 127 S.

Ct. at 2600-01, 2604-05. The pertinent inquiry is “the question

of who should decide whether such a remedy should be

provided,” Bush, 462 U.S. at 380, not whether there is a remedy.

18

Indeed, it is where Congress has intentionally withheld a remedy

that we must most refrain from providing one because it is in

those situations that “appropriate judicial deference” is

especially due to the considered judgment of Congress that

certain remedies are not warranted. See Chilicky, 487 U.S. at

423. That deference must be given whether Congress has

chosen to exclude a remedy for particular claims, as in Bush and

Chilicky, or from particular defendants, as here. Provided

“Congress has put in place a comprehensive system to

administer public rights, has ‘not inadvertently’ omitted

damages remedies for certain claimants, and has not plainly

expressed an intention that the courts preserve Bivens remedies,”

Spagnola, 859 F.2d at 228, we cannot create additional

remedies.

Therefore, because Congress created a comprehensive

Privacy Act scheme that did not inadvertently exclude a remedy

for the claims brought against these defendants, we will not

supplement the scheme with Bivens remedies.

4.

We also cannot ignore that, if we were to create a Bivens

remedy, the litigation of the allegations in the amended

complaint would inevitably require judicial intrusion into

matters of national security and sensitive intelligence

information. The decision of whether to create a Bivens remedy

involves our judgment and “weighing [of] reasons for and

against the creation of a new cause of action, the way common

law judges have always done.” Wilkie, 127 S. Ct. at 2600.

Pertinent to that judgment are the difficulties associated with

subjecting allegations involving CIA operations and covert

operatives to judicial and public scrutiny.

19

There is no dispute on appeal that a Bivens remedy in this

case is not precluded by the Intelligence Identities Protection

Act of 1982 (“IIPA”), 50 U.S.C. §§ 421–26, or by the

justiciability doctrine of Totten v. United States, 92 U.S. 105

(1875). The IIPA is not a “comprehensive remedial scheme” for

purposes of the special factors analysis because it is a purely

criminal statute that only authorizes criminal prosecution of

those who intentionally disclose the identity of a covert agent.

See 50 U.S.C. § 421. And the doctrine of Totten, which

precludes suits “against the Government based on covert

espionage agreements,” Tenet v. Doe, 544 U.S. 1, 3 (2005), does

not apply where the suit is “brought by an acknowledged

(though covert) employee of the CIA,” id. at 10. Nonetheless,

the concerns that underlie the protective restrictions of the IIPA

and the Totten doctrine are valid considerations in the Bivens

analysis and weigh against creating a remedy in this case. As

the Supreme Court has recognized, “‘[e]ven 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.”’” Id. at 11 (quoting CIA v. Sims, 471 U.S. 159, 175

(1985)). We will not create a cause of action that provides that

opportunity.

Litigation of the Wilsons’ allegations would inevitably

require an inquiry into “classified information that may

undermine ongoing covert operations.” See Tenet, 544 U.S. at

11. The amended complaint alleges that the disclosure of

Valerie Plame Wilson’s identity “impaired . . . her ability to

carry out her duties at the CIA,” Am. Compl. ¶ 43, increased the

risk of violence to her and her family, id. at ¶ 42, and subjected

her to treatment different from that given other similarly situated

agents, id. at ¶¶ 51–52. We certainly must hesitate before we

allow a judicial inquiry into these allegations that implicate the

job risks and responsibilities of covert CIA agents. In cases

involving covert espionage agreements, “[t]he state secrets

20

privilege and the more frequent use of in camera judicial

proceedings simply cannot provide the absolute protection [the

Court] found necessary in enunciating the Totten rule.” Tenet,

544 U.S. at 11. Here, although Totten does not bar the suit, the

concerns justifying the Totten doctrine provide further support

for our decision that a Bivens cause of action is not warranted.

For all the above-stated reasons, we will not imply a Bivens

remedy. The district court’s decision in this regard is affirmed.

B. Tort Claim

The Wilsons also contest the district court’s dismissal of

their tort claim. With respect to the tort claim, the United States

made a certification pursuant to the Federal Employees Liability

Reform and Tort Compensation Act of 1988 (the “Westfall

Act”), 28 U.S.C. § 2679, that “at the time of the conduct alleged

in the amended complaint the individual defendants . . . were

acting within the scope of their employment as employees of the

United States.” The certification carries a rebuttable

presumption that the employee has absolute immunity from the

lawsuit and that the United States is to be substituted as the

defendant. Id. § 2679(d); Osborn v. Haley, 127 S. Ct. 881,

887–88 (2007); Council on Am. Islamic Relations (CAIR) v.

Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006). If the

presumption is not rebutted in this case, the case must be

dismissed because the Wilsons have not exhausted their

administrative remedies as required to pursue a claim against the

United States pursuant to the Federal Tort Claims Act. See 28

U.S.C. § 2675(a).

The Wilsons seek to rebut the certification’s claim that the

defendants were working within their scope of employment

when the disclosures were made. To determine whether an

employee was acting within the scope of employment under the

21

Westfall Act, we apply the respondeat superior law in the state

in which the alleged tort occurred. CAIR, 444 F.3d at 663.

District of Columbia law, which applies in this case, defines the

scope of employment in accordance with the Restatement

(Second) of Agency (1958) (“Restatement”). Id. (citing Moseley

v. Second New St. Paul Baptist Church, 534 A.2d 346, 348 n.4

(D.C. 1987)). The Restatement provides, in pertinent part, that:

Conduct of a servant is within the scope of

employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time

and space limits;

(c) it is actuated, at least in part, by a purpose to serve

the master, and

(d) if force is intentionally used by the servant against

another, the use of force is not unexpectable by the

master.

Restatement § 228(1); see CAIR, 444 F.3d at 663. “‘[T]he test

for scope of employment is an objective one, based on all the

facts and circumstances.’” Id. (quoting Weinberg v. Johnson,

518 A.2d 985, 991 (D.C. 1986)). “Although scope of

employment is generally a question for the jury, it ‘becomes a

question of law for the court, however, if there is not sufficient

evidence from which a reasonable juror could conclude that the

action was within the scope of the employment.’” Id. (quoting

Boykin v. District of Columbia, 484 A.2d 560, 562 (D.C. 1984)).

The Wilsons argue that the disclosure of a covert agent’s

identity cannot fall within an employee’s scope of employment

with the United States because the disclosure is unlawful and

threatens the security of the nation, its covert agents, and its

intelligence-gathering functions. But, as we explained in CAIR,

22

“[t]his argument rests on a misunderstanding of D.C.

scope-of-employment law (not to mention the plain text of the

Westfall Act), which directs courts to look beyond alleged

intentional torts themselves” to the underlying conduct in

determining whether that conduct was within the scope of

employment. 444 F.3d at 664. As a result, an employee’s scope

of employment “‘is broad enough to embrace any intentional

tort arising out of a dispute that was originally undertaken on the

employer’s behalf.’” Id. (quoting Weinberg, 518 A.2d at 992).

We noted in CAIR that D.C. courts have concluded that “a

reasonable juror could find that a laundromat employee acted

within scope of employment when he shot a customer during a

dispute over missing shirts,” id. (citing Johnson v. Weinberg,

434 A.2d 404, 409 (D.C. 1981)), and that a “jury reasonably

found that a mattress deliveryman acted within [the] scope of

employment when he assaulted and raped a customer following

a delivery-related dispute,” id. (citing Lyon v. Carey, 533 F.2d

649, 652 (D.C. Cir. 1976)).

We have since held, under D.C. scope of employment law,

that the alleged “authorization, implementation and supervision

of torture” was within the scope of employment of military

officers who interrogated detainees at the United States Naval

Base at Guantanamo Bay, Cuba. Rasul v. Myers, 512 F.3d 644,

656–60 (D.C. Cir. 2008). In Rasul, the allegation that

employees had engaged in “serious criminality” while

interrogating detainees did not change the result because “the

detention and interrogation of suspected enemy combatants

[was] a central part of the [employees’] duties as military

officers charged with winning the war on terror.” Id. at 658–60.

Because “the detention and interrogation of suspected enemy

combatants [was] the type of conduct the defendants were

employed to engage in,” id. at 658, the “alleged tortious conduct

was incidental to the defendants’ legitimate employment duties,”

id. at 659, and “allegations of serious criminality d[id] not alter

23

our conclusion that the defendants' conduct was incidental to

authorized conduct,” id. at 660.

Even more to the point for purposes of this case, we held in

CAIR that a congressman’s allegedly defamatory statement

made during a press interview was within the scope of his

employment because “[s]peaking to the press during regular

work hours in response to a reporter’s inquiry falls within the

scope of a congressman’s ‘authorized duties.’” Id. A

congressman’s “ability to do his job as a legislator effectively is

tied, as in this case, to the Member’s relationship with the public

and in particular his constituents and colleagues in the

Congress.” Id. at 665. Thus, we held that the congressman’s

statement to the press was “of the kind he is employed to

perform” and “actuated, at least in part, by a purpose to serve the

master.” Id. at 664–66 (quoting Restatement § 228(1)).

Here, the Wilsons allege that the defendants spoke to the

press in order to diffuse Joseph Wilson’s criticism of the

Executive’s handling of pre-war intelligence. Am. Compl.

¶¶ 2–3. It can hardly be disputed that such discussions were of

the type that the defendants were employed to perform. Even

the Wilsons agree that “[o]f course, the defendants may discredit

public critics of the Executive Branch.” Appellants’ Br. at 33.

The conduct, then, was in the defendants’ scope of employment

regardless of whether it was unlawful or contrary to the national

security of the United States. Therefore, we agree with the

district court that the Wilsons’ arguments about the illegality

and impropriety of the alleged conduct are misplaced. The

government’s scope-of-employment certification is proper, and

the district court’s dismissal of the tort claim is affirmed.2

2

We further agree with the district court that further

discovery is not warranted to determine precise times and locations of

the defendants’ conversations with the press. Even if some

24

IV. CONCLUSION

Because the Wilsons have failed to state constitutional

Bivens claims for which relief may be granted and have failed to

exhaust their administrative remedies as required to pursue a tort

claim against the United States, we affirm the judgment of the

district court dismissing the Wilsons’ amended complaint in its

entirety.3

conversations took place on Sunday or occurred off White House

property as the Wilsons contend and seek to discover, the

conversations would still have occurred within the “time and space”

of employment of the high-level Executive Branch employees sued

here. Neither the Vice President, his chief of staff, nor a close advisor

to the President punches out of work at the end of the day or when he

leaves White House property.

3

Because our decision, based on the grounds considered by

the district court, results in the dismissal of all claims against the Vice

President of the United States, we need not, and do not, consider his

alternate claim for absolute Vice-Presidential immunity.

ROGERS, Circuit Judge, concurring in part and dissenting in

part: In holding that the Privacy Act is a comprehensive

remedial scheme that precludes creation of a Bivens remedy for

any of the Wilsons’ constitutional claims, Op. at 18, the court

assigns to the Privacy Act a burden that it was never intended to

bear. Aimed at protecting “one of our most fundamental civil

liberties — the right to privacy,”1 the Privacy Act established

certain enforceable rights, such as the right to have access to and

notice of one’s agency records, to limit the government’s

collection of certain information, and to consent to its release.

5 U.S.C. §§ 552a(b)-(f). The Act balanced these individual

protections against the government’s legitimate need for

information and information systems,2 but did not eliminate other

protections under the Constitution. The issue presented is thus

not whether any individual may obtain some relief regarding

information that is protected under the Act, but whether the

Wilsons are to be afforded an opportunity to obtain relief for

alleged constitutional violations against which the Act provides

no protection. Nothing in Congress’s decision to limit remedies

under the Act to individuals with agency records or to exempt

the offices of the President and Vice President shows an

intention to deny a cause of action for violations of the First and

Fifth Amendments to the Constitution, as the legislative history

makes clear, see, e.g., S. REP. NO. 93-1183, at 15 (1974),

reprinted in JOINT COMM. ON GOV’T OPERATIONS, 94TH CONG.,

LEGISLATIVE HISTORY OF THE PRIVACY ACT OF 1974: SOURCE

BOOK ON PRIVACY at 3 (1976). Furthermore, the court’s

invocation of other special factors is based on unfounded and

premature speculation about a risk of disclosure of secret or

1

120 CONG. REC. 12,646 (1974) (statement of Sen. Ervin).

2

H.R. REP. NO. 93-1416, at 4 (1974), reprinted in JOINT

COMM. ON GOV’T OPERATIONS, 94TH CONG., LEGISLATIVE HISTORY

OF THE PRIVACY ACT OF 1974: SOURCE BOOK ON PRIVACY at 297

(1976).

2

sensitive information, Op. at 19. The Wilsons’ claims, as

alleged, do not rely on such information but on information

already in the public domain, see, e.g., United States v. Libby,

498 F. Supp. 2d 1 (D.D.C. 2007). The United States has not

invoked the state secrets privilege. Besides, district courts are

well-situated to protect against unwarranted disclosures, and any

concern here about the disclosure of sensitive information in

lawsuits against the President’s close advisors can be resolved by

evidentiary rules and the defense of immunity, which the district

court has yet to address.

I.

A brief overview of Bivens precedent reveals how far this

court strays. For a plaintiff alleging the violation of a

constitutional right by a federal government official, the analysis

of whether a court should imply a cause of action under Bivens

v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971), involves two primary steps after a

determination that a “constitutionally recognized interest” is at

stake, Wilkie v. Robbins, 127 S. Ct. 2588, 2598 (2007). First, the

court must determine “whether any alternative, existing process

for protecting the interest amounts to a convincing reason for the

Judicial Branch to refrain from providing a new and freestanding

remedy in damages.” Id. When it is “hard to infer that Congress

expected the Judiciary to stay its Bivens hand, but equally hard

to extract any clear lesson that Bivens ought to spawn a new

claim,” id. at 2600 (citing Schweiker v. Chilicky, 487 U.S. 412,

426 (1988); Bush v. Lucas, 462 U.S. 367, 388 (1983); Bivens,

403 U.S. at 397), step two of the analysis directs the court to

“make the kind of remedial determination that is appropriate for

a common-law tribunal, paying particular heed, however, to any

special factors counselling hesitation before authorizing a new

kind of federal litigation,” id. at 2598 (citation and internal

quotation marks omitted).

3

Under step one, the Supreme Court has rejected the notion

that state tort law of privacy could adequately protect a victim’s

“absolute right” under the Fourth Amendment, Bivens, 403 U.S.

at 392, observing that tort law may be inconsistent or hostile to

Fourth Amendment guarantees, id. at 394, such that it was

appropriate to imply a constitutional damages remedy against

individual law enforcement officers as “the ordinary remedy for

an invasion of personal interests in liberty,” id. at 395. Similarly,

in Carlson v. Green, 446 U.S. 14 (1980), the Supreme Court

rejected the notion that a damages remedy against the United

States pursuant to the Federal Tort Claims Act could sufficiently

protect a prisoner’s Eighth Amendment rights as would preclude

a damages action against individual prison officials, id. at 23. In

each instance, the Supreme Court implied a Bivens action as

“complementary” to an existing remedial scheme. Id. at 20.

Additionally, in Davis v. Passman, 442 U.S. 228 (1979), the

Supreme Court held — despite Congress’s exemption of its

Members from liability under Title VII of the Civil Rights Act

— that the plaintiff had a cause of action under the Fifth

Amendment for damages arising from her dismissal from

employment by a Congressman on the alleged basis of her

gender, because the exemption did not “foreclose the judicial

remedies of those expressly unprotected by the statute,” id. at

247. Recently, the Supreme Court held that federal officials who

use their power to retaliate against an individual through criminal

prosecution for the exercise of First Amendment rights are

“subject to an action for damages on the authority of Bivens,”

without discussing any alternative remedies that may exist.

Hartman v. Moore, 547 U.S. 250, 256 (2006).

Notably, except possibly in a military context,3 neither the

3

Under step two of the Bivens analysis, the Supreme Court

concluded in view of the “specificity” and “insistence” of the “explicit

constitutional authorization for Congress ‘[t]o make Rules for the

4

Supreme Court nor this court has denied a Bivens remedy where

a plaintiff had no alternative remedy at all. For example in Bush,

the Supreme Court stated that there was no need to reach the

question whether the absence of any remedy could imply that

courts should stay their hands, 462 U.S. at 378 n.14, because the

plaintiff’s claim of retaliatory demotion was addressed by the

Civil Service Reform Act, which provided a partial remedy, id.

at 386. Similarly, in Chilicky, 487 U.S. at 421, because the

plaintiff’s denial of disability benefits was covered by the Social

Security Act, id. at 428, the Supreme Court determined that

“Congress . . . ha[d] not failed to provide meaningful safeguards

or remedies for the rights of persons situated as [were the

plaintiffs],” id. at 425. In each instance a remedial scheme

clearly encompassed the grievance underlying the plaintiff’s

alleged constitutional violation. So, too, in Correctional

Services Corp. v. Malesko, 534 U.S. 61 (2001), the Supreme

Court did not extend Bivens liability to corporations, a new

category of defendant, id. at 68-71, as the plaintiff had not only

a Bivens action under the Eighth Amendment against an

individual official but also “alternative remedies [that] [were] at

least as great, and in many respects greater, than anything that

could be had under Bivens,” id. at 72. More recently in Wilkie,

127 S. Ct. at 2600-01, although the patchwork of remedies was

not “an elaborate remedial scheme,” id. at 2600 (quoting Bush,

Government and Regulation of the land and naval Forces,’ U.S.

Const., Art. I, § 8, cl.14,” United States v. Stanley, 483 U.S. 669, 681-

82 (1987), and “the unique disciplinary structure of the Military

Establishment and Congress’ activity in the field” regarding the

military justice system, id. at 683 (quoting Chappell v. Wallace, 462

U.S. 296, 304 (1983)), that it would be inappropriate to provide a

Bivens action against a military official for injuries incident to military

service, even though the plaintiff appeared to have no statutory

remedy, id. at 683-84 (citing Feres v. United States, 340 U.S. 135

(1950)).

5

462 U.S. at 388), sufficient to indicate that “Congress expected

the Judiciary to stay its Bivens hand,” id., the Supreme Court

denied a Bivens action in part because “[f]or each charge” the

plaintiff “had some procedure to defend and make good on his

position,” including “the means to be heard,” id. at 2599, through

“an administrative, and ultimately a judicial, process for

vindicating virtually all of his complaints,” id. at 2600; see also

id. at 2604.

Consistent with this precedent, where nothing “suggests that

Congress intended to prevent [suits] . . . for constitutional

violations against which [the statute] provides no protection at

all,” even where the statute provided remedies for other

employment-based injuries, this court has entertained a Bivens

remedy. Ethnic Employees of Library of Cong. v. Boorstin, 751

F.2d 1405, 1415 (D.C. Cir. 1985). Even when denying a Bivens

remedy in Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988);

see Op. at 11, 17, the en banc court emphasized that although the

plaintiffs’ claims did not receive the full protection under the

Civil Service Reform Act, there could be “little doubt” that

“Congress ha[d] brought [the plaintiffs’] claims . . . within [the

statute’s] ambit” as it “affirmatively sp[oke] to claims such as

[the plaintiffs’]” and “technically accommodate[d] [their]

constitutional challenges,” id. at 229.

Under step two, the Supreme Court has described the type

of “special factors counselling hesitation.” Wilkie, 127 S. Ct. at

2598 (citation and internal quotation marks omitted). Where the

Constitution itself vests unique responsibility in Congress for the

military, see Stanley, 483 U.S. at 681-84, or where a

constitutional claim depends upon a government-created interest

such as federal employment, benefits, or the availability of

government information as in FOIA, the Supreme Court has

considered whether “Congress is in a better position to decide”

whether to create a particular damages remedy, Chilicky, 487

6

U.S. at 427 (quoting Bush, 462 U.S. at 390); Bivens, 403 U.S. at

396-97; see Thomas v. Principi, 394 F.3d 970, 975-76 (D.C. Cir.

2005); Johnson v. Exec. Ofc. for U.S. Attys., 310 F.3d 771, 777

(D.C. Cir. 2002); Spagnola, 859 F.2d at 226-28. The Supreme

Court also has considered the judicial manageability of “devising

a workable cause of action,” Wilkie, 127 S. Ct. at 2604; see

Davis, 442 U.S. at 245.

II.

Applying the Bivens analysis demonstrates that reversal is

required for Mr. Wilson’s claims against all appellees and for

one of Ms. Wilson’s claims against three of the appellees.

A.

Mr. Wilson alleges that, in violation of the First

Amendment, appellees intentionally retaliated against him for his

constitutionally protected statements about the President’s State

of the Union Address by disclosing to various members of the

press his wife’s identity as an undercover agent with the Central

Intelligence Agency (“CIA”), and thereby harming him and his

family. Am. Compl. ¶¶ 19-49. In addition, he alleges that, in

violation of the Fifth Amendment’s equal protection

requirement, appellees intentionally targeted him for unfavorable

treatment different from those similarly situated without a

legitimate basis. Id. ¶¶ 50-54.

At step one, the Privacy Act is not an alternative remedial

scheme for Mr. Wilson’s constitutional claims because he has no

cause of action under the Act, see Sussman v. U.S. Marshals

Serv., 494 F.3d 1106, 1123 (D.C. Cir. 2007), but even assuming

he could somehow obtain relief through his wife’s Privacy Act

claim as the court suggests, Op. at 13-14, 17, the statute would

provide none for the harm allegedly caused by three appellees

not employed by an “agency.” First, the Act creates a civil

7

damages remedy “[w]henever any agency . . . fails to comply

with any other provision of this section . . . in such a way as to

have an adverse effect on an individual,” 5 U.S.C. §

552a(g)(1)(D) (emphasis added), such as by violating the

prohibition on the disclosure of an individual’s “record which is

contained in a system of records,” id. § 552a(b). These

provisions do not cover Mr. Wilson’s claims due to the

disclosure of information about his wife that is retrievable from

agency records under her name, because the term “adverse

effect” includes “only . . . a person whose records are actually

disclosed.” Sussman, 494 F.3d at 1123; 5 U.S.C. § 552a(4).

Thus, the Privacy Act suggests nothing about the legal rights of

an individual without an agency record who is harmed through

the disclosure of someone else’s agency record, i.e., someone

“expressly unprotected” by the statute, Davis, 442 U.S. at 247;

see Ethnic Employees, 751 F.2d at 1415. The Act neither

“affirmatively speaks to” nor “accommodates . . . [the]

constitutional challenges,” Spagnola, 859 F.2d at 229, brought

by Mr. Wilson. See also Dunbar Corp. v. Lindsey, 905 F.2d 754,

762 (4th Cir. 1990).

The court’s conclusion, therefore, that “[t]he presence of a

comprehensive remedial scheme is . . . a sufficient reason for us

to stay our hand” on Bivens, Op. at 16, is, at best, incomplete. A

statutory scheme may be insufficient when it is comprehensive

for some claims but not for others or for the plaintiff alleging a

harm that the statute does not purport to address. When a statute

omits remedies for government officials’ harm, its mere

existence is an unconvincing reason to deny a Bivens remedy, as

was the Civil Rights Act in Davis, 442 U.S. at 247, and the

Federal Tort Claims Act in Carlson, 446 U.S. at 23. See also

Wilkie, 127 S. Ct. at 2600 (quoting Davis, 442 U.S. at 245

(quoting Bivens, at 410 (Harlan, J., concurring in judgment))).

An exception would occur where “the design [of the statute]. . .

suggests that Congress has provided what it considers adequate

8

remedial mechanisms for constitutional violations,” Chilicky,

487 U.S. at 423. Bivens embraces the notion that a constitutional

claim and a statutory claim may be complementary, see Carlson,

446 U.S. at 20; see also Bagola v. Kindt, 131 F.3d 632, 642-44

(7th Cir. 1997). But an omission in the statute can mean that

Congress either decided not to provide a damages remedy or did

not contemplate much less decide “‘what it considers adequate

remedial mechanisms for constitutional violations that may

occur,’” Op. at 10 (quoting Chilicky, 487 U.S. at 423), in a

certain way or to a certain class of individuals. In sum, the

comprehensiveness of a statute for some plaintiffs begs the key

question of whether Congress has “not inadvertently omitted

damages remedies for certain claimants,” Spagnola, 859 F.2d at

228 (citation and internal quotation marks omitted); see Wilkie,

127 S. Ct. at 2598.

Second, in suggesting that Mr. Wilson could obtain some

relief through his wife’s potential claim under the Privacy Act,

Op. at 13-14, 17, and thus that it is a comprehensive remedial

scheme as to him, the court appears to assume that a statutory

exemption of certain offices must mean that Congress has not

inadvertently denied a remedy, id. at 14-15, 17-18. But such an

approach glosses over the question whether the Privacy Act in

this case “amounts to a convincing reason for the Judicial Branch

to refrain from providing a new and freestanding remedy in

damages,” Wilkie, 127 S. Ct. at 2598. In four instances involving

a congressional exemption of a category of defendant, the

Supreme Court has proceeded to analyze whether it would be

appropriate to imply a Bivens action. See Malesko, 534 U.S. at

70-74; FDIC v. Meyer, 510 U.S. 471, 484-86 (1994); Carlson,

446 U.S. at 19-23; id. at 28 (Powell, J., concurring in judgment);

Davis, 442 U.S. at 245-48. For example, although Congress had

exempted its Members from liability under Title VII of the Civil

Rights Act, the Supreme Court concluded in Davis that this did

not demonstrate Congress’s intention to deny a Bivens remedy.

9

See 442 U.S. at 247. Acknowledging that a suit against a

Member of Congress “for putatively unconstitutional actions

taken in the course of his official conduct [did] raise special

concerns,” id. at 246, the Supreme Court concluded that “these

concerns [were] coextensive with the protections afforded by the

Speech or Debate Clause,” id., and left to the lower court to

determine in the first instance whether the defendant’s conduct

was shielded by immunity, id. at 249. In so doing, the Supreme

Court observed that “[o]ur system of jurisprudence rests on the

assumption that all individuals, whatever their position in

government, are subject to federal law.” Id. at 246 (quoting Butz

v. Economou, 438 U.S. 478, 506 (1978) (quoting United States

v. Lee, 106 U.S. 196, 220 (1882))).

In the Privacy Act, 5 U.S.C. § 552a(a)(1), Congress adopted

the definition of “agency” in the Freedom of Information Act

(“FOIA”), id. § 552(f), without explanation. The legislative

history of FOIA, see Op. at 15, makes clear that the exemption

of the President and his close advisors4 was simply designed to

avoid a challenge that Congress lacked authority to force

disclosure of the President’s papers and communications with

close advisors. See H.R. REP. NO. 93-1380 at 15 (1974) (Conf.

Rep.), reprinted in H. COMM. ON GOV’T OPERATIONS, S. COMM.

ON THE JUDICIARY, 94TH CONG., FREEDOM OF INFORMATION ACT

4

In Kissinger v. Reporters Committee for Freedom of the

Press, 445 U.S. 136 (1980), the Supreme Court held that the Office of

the President is not an “agency,” id. at 156 (citing H.R. REP. NO. 93-

1380, at 15 (1974) (Conf. Rep.)). In Schwarz v. U.S. Department of

Treasury, No. 00-5453, 2001 WL 674636, at *1 (D.C. Cir. May 10,

2001), this court summarily affirmed the district court’s holding that

the Vice President’s office is not an “agency,” see Schwarz v. U.S.

Dep’t of Treas., 131 F. Supp. 2d 142, 147-48 (D.D.C. 2000); see also

Op. at 14, although the Vice President’s participation in an Executive

Branch entity does not automatically exempt it from the definition, see

Meyer v. Bush, 981 F.2d 1288, 1295 n.7 (D.C. Cir. 1993).

10

AND AMENDMENTS OF 1974, SOURCE BOOK II, at 231-32 (1975);

Soucie v. David, 448 F.2d 1067, 1071-72 & nn. 9-12 (D.C. Cir.

1971).5 This is a far cry from indicating that Congress

considered and decided to deny a Bivens remedy in the context

at issue. The myriad procedural duties imposed on an “agency”

by FOIA and the Privacy Act, see, e.g., 5 U.S.C. §§ 552(a), (e),

(g), (i)-(l); id. §§ 552a(b)-(f), reveal that the considerations

relevant to the exemption of an office, see, e.g., Meyer, 981 F.2d

at 1291-93, are different from those relevant to whether a cause

of action should be created for an individual who alleges First

and Fifth Amendment violations by employees of the exempted

offices.

In any event, the legislative history demonstrates that the

Privacy Act was designed to add protection, not to eliminate

existing remedies or those that might be developed by the courts.

See, e.g., S. REP. NO. 93-1183, at 2-3, 16, SOURCE BOOK ON

PRIVACY at 155-56, 169; H.R. REP. NO. 93-1416 at 3 (1974),

SOURCE BOOK ON PRIVACY at 296; 120 CONG. REC. 40,410

(1974) (statement of Sen. Muskie). Most significantly, the

Senate Report states that the Privacy Act “should not be

5

The Conference Report accompanying the 1974

Amendments to FOIA stated:

With respect to the meaning of the term “Executive

Office of the President” [in 5 U.S.C. § 552(f)] the

conferees intend the result reached in Soucie v.

David, 448 F.2d 1067 (C.A.D.C. 1971). The term is

not to be interpreted as including the President’s

immediate personal staff or units in the Executive

Office whose sole function is to advise and assist the

President.

H.R. REP. NO. 93-1380, at 15, FOIA SOURCE BOOK II at 232; see

Meyer, 981 F.2d at 1292 & n.1.

11

construed as a final statement by Congress on the right of

privacy and other related rights as they may be developed or

interpreted by the courts.” S. REP. NO. 93-1183, at 15, SOURCE

BOOK ON PRIVACY at 168 (emphasis added). The legislative

history satisfies any “clear expression” requirement, see

Spagnola, 859 F.2d at 229 (citing Chilicky, 487 U.S. at 423), as

it makes manifest that Congress did not intend the Privacy Act

to be a final or exclusive remedy but contemplated a continuing

role for the courts. The court therefore errs in treating

Congress’s decision to exempt certain Executive offices from the

Privacy Act as a “convincing” reason to refrain from implying a

Bivens remedy, Wilkie, 127 S. Ct. at 2598.

To the extent the court relies on Chung v. Dep’t of Justice,

333 F.3d 273, 274 (D.C. Cir. 2003), for the proposition that the

Privacy Act is a per se comprehensive statute for Bivens

purposes, Op. at 5, 12, its reliance is misplaced. Chung does not

apply because Mr. Wilson has no cause of action or remedy

against any appellee under the Act. In Chung, the plaintiff

alleged the violation of his First and Fifth Amendment rights by

agency officials (unnamed defendants) and pled a Privacy Act

claim against their employer agency when his investigative

cooperation was leaked. See Chung v. Dep’t of Justice, No. Civ.

00-1912, 2001 WL 34360430, at *1-2 (D.D.C. 2001). This court

affirmed the dismissal of his constitutional claims, adopting the

district court’s view that they were “encompassed within the

remedial scheme of the Privacy Act,” 333 F.3d at 274. This

court provided no independent analysis, and the district court’s

holding that the Privacy Act was comprehensive because the

plaintiff’s claims stemmed from an agency disclosure of his

records, 2001 WL 34360430, at *12, was limited to a

circumstance where the plaintiff, unlike Mr. Wilson, had a cause

of action under the Act. Neither this court nor the district court

addressed the legislative history discussed above. The other case

cited by the court, Op. at 12; see Downie v. City of Middleburg

12

Heights, 301 F.3d 688, 699 (6th Cir. 2002), also involved

plaintiffs who had “a meaningful remedy” under the Privacy Act.

In sum, where courts have declined to imply a Bivens

remedy notwithstanding omission of a damages remedy or

exemption of a defendant category, there was an indication that

Congress had considered “the rights of persons situated as [were

the plaintiffs],” Chilicky, 487 U.S. at 425; see Malesko, 534 U.S.

at 72; Spagnola, 859 F.2d at 229. No evidence here suggests that

Congress meant the Privacy Act “to foreclose alternative

remedies available to those not covered by the statute,” Davis,

442 U.S. at 247. As our sister circuit has observed, where it

“seems plain . . . that Congress never has given a moment’s

thought to the question of what sort of remedies should be

available,” Krueger v. Lyng, 927 F.2d 1050, 1057 (8th Cir.

1991), to an injured plaintiff such as Mr. Wilson, “Congress’s

failure to provide a remedy for constitutional wrongs suffered by

[such a plaintiff] has been inadvertent” and the plaintiff “may

proceed with his Bivens action.” See also Bagola, 131 F.3d at

642; Dunbar Corp., 905 F.2d at 762; Ethnic Employees, 751 F.2d

at 1415. Given the text of the Privacy Act and the evidence of

congressional intent, it is incongruous to apply a statute designed

to protect the privacy of an individual’s agency records to

preclude congressionally unforeseen constitutional claims by a

stranger to the Act, see Sussman, 494 F.3d at 1123. Because Mr.

Wilson is a person for whom Congress has “inadvertently

omitted damages remedies,” Spagnola, 859 F.2d at 228 (citation

and internal quotation marks omitted), the Privacy Act is not a

comprehensive remedial scheme as to him and implying a Bivens

action for his claims would comport with precedent. See Wilkie,

127 S. Ct. at 2600; Malesko, 534 U.S. at 73-74; Davis, 442 U.S.

245; Bivens, 403 U.S. at 410 (Harlan, J., concurring in

judgment); Ethnic Employees, 751 F.2d at 1414-15; see also

Munsell v. Dep’t of Agric., 509 F.3d 572, 591 (D.C. Cir. 2007).

To avoid this result, the court lumps the Wilsons’ claims

13

together, describing Mr. Wilson’s claims as seeking damages for

unconstitutional action taken in regard to information that once

was covered by the Privacy Act. Op. at 13-14, 17. But the

Constitution protects individual rights, not information, and

whether Ms. Wilson might have a Privacy Act remedy is

irrelevant to Mr. Wilson’s independent claims based on public

disclosures that were steps removed from internal government

transfers, see, e.g., 5 U.S.C. § 552a(b). The days when husband

and wife were considered as one at law are long past. See, e.g.,

Rousey v. Rousey, 528 A.2d 416, 417 & n.1 (D.C. 1987) (en

banc).

At step two, the court acknowledges that neither the

Intelligence Identities Protection Act of 1982 (“IIPA”), 50

U.S.C. §§ 421-26, which imposes criminal penalties for

intentional disclosure of a covert agent’s identity to an

unauthorized source in certain circumstances, nor the Totten

doctrine,6 which bars litigation of a claim involving an

unacknowledged CIA agent’s employment, applies. Op. at 18-

19. That is, because the IIPA provides no civil remedies it is

irrelevant to assessing whether Congress has created a

comprehensive remedial scheme that it deems an adequate

alternative to suits directly under the Constitution. Rather, a

Bivens action would supplement the criminal scheme by

imposing civil damages. And because the United States has

acknowledged Ms. Wilson’s prior covert CIA identity, there is

no Totten problem. The court nonetheless, in a novel analysis,

extends the disclosure concerns underlying the IIPA and the

Totten doctrine, treating them as “valid considerations” weighing

against implying a Bivens remedy, id. at 19, even though all of

the cases the court cites are inapposite. The cat is out of the bag

as Ms. Wilson’s cover has already been compromised, see Tenet,

6

Totten v. United States, 92 U.S. 105 (1875); see Tenet v.

Doe, 544 U.S. 1, 8 (2005).

14

544 U.S. at 10, and these claims, as pled, do not depend upon the

“forced disclosure of the identities of [the CIA’s] intelligence

sources,” CIA v. Sims, 471 U.S. 159, 175 (1985). Besides, courts

regularly entertain cases involving CIA agents, confidential

information, and even matters relating to national security. See,

e.g., Tenet, 544 U.S. at 10; Webster v. Doe, 486 U.S. 592, 604

(1988); In re Sealed Case, 494 F.3d 139 (D.C. Cir. 2007).

Likewise, the court’s speculation that this litigation “would

inevitably require judicial intrusion into matters of national

security and sensitive intelligence information,” Op. at 18, is

unfounded and at best premature. It is unfounded because any

concern about possible disclosure of secret or sensitive

information has not prompted the United States to assert the state

secrets privilege, see United States v. Reynolds, 345 U.S. 1, 7-8

(1953); In re Sealed Case, 494 F.3d at 142. At this stage of the

proceedings this is hardly surprising inasmuch as the United

States successfully prosecuted related obstruction-of-justice,

perjury, and false-statements charges to a jury verdict, see Libby,

498 F. Supp. 2d at 2; see also Am. Compl. ¶¶ 20-22, 33-34. In

any event, district courts are well-suited to protect secrets from

unwarranted disclosures. See, e.g., Boumediene v. Bush, 128 S.

Ct. 2229, 2276 (2008); Webster, 486 U.S. at 604; In re Sealed

Case, 494 F.3d at 153. It is premature because “[t]here has been

neither discovery nor any presentation to the district court of how

[the Wilsons] will try to prove their claims.” Appellants’ Reply

Br. at 2. As alleged, the claims depend upon the intent and effect

of appellees’ exposure of Ms. Wilson’s covert identity to the

press, relying on information already in the public domain.

Concern regarding the disclosure of sensitive information in

lawsuits against close Presidential advisors can be resolved under

evidentiary rules, see, e.g., In re Sealed Case, 494 F.3d 139, and

the defense of immunity. As to the latter, the Supreme Court has

instructed that “[t]he danger that high federal officials will

disregard constitutional rights in their zeal to protect the national

15

security is sufficiently real to counsel against affording [these]

officials [such as the Attorney General] an absolute immunity,”

Mitchell v. Forsyth, 472 U.S. 511, 523 (1985), and so immunity

questions should be addressed on their own merit rather than

imported into the Bivens analysis. Hence, the court’s disclosure

concerns cannot serve as a special factor to “modify litigants’

substantive rights as to either constitutional or statutory matters,”

In re Sealed Case, 494 F.3d at 143. Neither can the court’s

broad holding rely, Op. at 12, 17, on the limited concession that

the Privacy Act is a special factor for Ms. Wilson’s privacy claim

against former Deputy Secretary of State Armitage, see

Appellants’ Br. at 18 n.3.

For these reasons the underlying rationale of Bivens and its

progeny — “‘[t]he very essence of civil liberty certainly consists

in the right of every individual to claim the protection of the

laws, whenever he receives an injury,’” Bivens, 403 U.S. at 397

(quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163

(1803)), unless Congress has acted to the contrary in a

“convincing” way or there are “special factors counselling

hesitation,” Wilkie, 127 S. Ct. at 2598 — instructs that the

dismissal of Mr. Wilson’s constitutional claims was erroneous.

He has no alternative remedy and no special factors counsel

caution against creating a cause of action for him. There is

nothing novel about a Bivens remedy for a First Amendment

retaliation claim against federal officials. See, e.g., Hartman,

547 U.S. at 256; Nat’l Commodity & Barter Ass’n v. Gibbs, 886

F.2d 1240, 1248 (10th Cir. 1989); Gibson v. United States, 781

F.2d 1334, 1342 (9th Cir. 1986); Ethnic Employees, 751 F.2d at

1415; Dellums v. Powell, 566 F.2d 167, 194-95 (D.C. Cir. 1977).

A claim of denial of equal protection for a class of one has long

been recognized, see 3883 Conn. LLC v. Dist. of Columbia, 336

F.3d 1068, 1075 (D.C. Cir. 2003) (citing Village of Willowbrook

v. Olech, 528 U.S. 562, 564 (2000)), and the Supreme Court’s

recent decision in Engquist v. Oregon Department of

16

Agriculture, 128 S. Ct. 2146 (2008), does not affect Mr. Wilson

as he was not a public employee when the alleged constitutional

violations occurred. Mr. Wilson’s claims, then, are the type for

which Bivens contemplated a compensatory cause of action to

deter government officials’ violations of the Constitution, see

Malesko, 534 U.S. at 70-71, 74; FDIC, 510 U.S. at 485; Carlson,

446 U.S. at 21-22; Bivens, 403 U.S. at 395-96; id. at 403, 408

(Harlan, J., concurring in judgment); see also Wilkie, 127 S. Ct.

at 2600; Hartman, 547 U.S. at 256, and which the Privacy Act

did not foreclose, see, e.g., S. REP. NO. 93-1183, at 15, SOURCE

BOOK ON PRIVACY at 168.

B.

Ms. Wilson alleges that in disclosing her covert identity

appellees violated her Fifth Amendment rights to equal

protection, privacy, and property. Am. Compl. ¶¶ 50-64.

For the claims that are inseparable from her public

employment, Ms. Wilson has no “constitutionally recognized

interest” at stake, Wilkie, 127 S. Ct. at 2598; see Davis, 442 U.S.

at 236-38; see also Dunbar Corp., 905 F.2d at 759. Under

Engquist, because of the “unique considerations applicable when

the government acts as employer as opposed to sovereign, . . . the

class-of-one theory of equal protection does not apply in the

public employment context,” 128 S. Ct. at 2151. She also has no

due process protection for a non-existent property interest in her

continued CIA employment. See Doe v. Gates, 981 F.2d 1316,

1320-21 (D.C. Cir. 1993); cf. Doe v. Cheney, 885 F.2d 898, 909

(D.C. Cir. 1989).

However, the district court acknowledged that Ms. Wilson

alleges a violation of a constitutional right to privacy under the

Due Process Clause where public disclosure of information

constituted a state-created danger, see Butera v. Dist. of

Columbia, 235 F.3d 637, 651-52 (D.C. Cir. 2001); Kallstrom v.

17

City of Columbus, 136 F.3d 1055, 1064 (6th Cir. 1998); Am.

Compl. ¶¶ 1, 21, 40-42, 55-58; cf. Am. Fed. of Gov’t Employees,

AFL-CIO v. Dep’t of Housing & Urban Devel., 118 F.3d 786,

791-93 (D.C. Cir. 1997).7 In view of the design of the Privacy

Act and Congress’s intention in enacting it, and the absence of

special factors counselling against a Bivens remedy, see supra

Part II.A, I would remand this claim to the district court, except

as to appellee Armitage for whose disclosure Ms. Wilson has a

potential cause of action under the Privacy Act, 5 U.S.C.

§ 552a(g)(1), against his former agency, see Ethnic Employees,

751 F.2d at 1415. Except as to this appellee Chung is not

dispositive, 333 F.3d at 274, for although Ms. Wilson’s records

are protected in some respects under the Privacy Act, three of the

appellees are not covered by the Act and, as the legislative

history shows, the exemption of the offices in which they work

was unrelated to and reveals no consideration of the type of harm

on which her endangerment claim is based. The Privacy Act

thus cannot be said to adequately protect her constitutional

privacy interest or to reveal a congressional intent to bar this set

of claims.

In conclusion, the court’s decision is not the product of the

application of the Bivens doctrine to appellants’ claims as Wilkie

directs, 127 S. Ct. at 2598. It is rather the result of the refusal to

acknowledge precedent that Bivens is a remedial doctrine and

absent special factors applies where Congress created statutory

protection for some persons in some circumstances but did not

address the type of constitutional claims alleged by Mr. Wilson

and in part by Ms. Wilson. The disclosure concerns identified by

the court as counselling hesitation are either unfounded or

premature because there has been no discovery or presentation

by the Wilsons to the district court of how they will attempt to

7

See generally Totten, 92 U.S. at 106; Haig v. Agee, 453 U.S.

280, 285 & n.7 (1981).

18

prove their claims. Contrary to separation of powers, then, the

court effectively cedes to Congress the judiciary’s defined role

to decide issues arising under the Constitution, despite the fact

that the Privacy Act neither is nor purports to be a universal bar

to all constitutional relief related to the release of agency records.

Accordingly, I concur in Parts II and III.B of the court’s opinion,

and in the judgment regarding Ms. Wilson’s equal protection and

due process property claims, but I respectfully dissent from the

affirmance of the dismissal of Mr. Wilson’s First and Fifth

Amendment claims against each appellee and Ms. Wilson’s due

process state-endangerment claims (except against appellee

Armitage), and would leave to the district court to address in the

first instance appellees’ defenses of immunity, see, e.g., Saucier

v. Katz, 533 U.S. 194, 201 (2001); Davis, 442 U.S. at 249;

Butera, 235 F.3d at 646.