Opposition Brief — Wilson v. Libby (No. 08-1043)

No. 08-1043

Jn the Supreme Court of the Cinited States

VALERIE PLAME WILSON, ET AL., PETITIONERS

Y,

I. LEWIS LIBBY, JR., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Ke LENA KAGAN

Solicitor General

Counsel of Record

TONY WEST

Assistant Attorney General

MARK B. STERN

(CHARLES W. SCARBOROUGH

Attorneys

De partie vit Of Justice

Washington, D.C. 20580-0001

) } ~ >

{ /

SUS) 014-221 3

QUESTION PRESENTED

Whether the Privacy Act’s comprehensive statutory

scheme governing disclosures of personal information,

and the tikelihood of judicial intrusion into sensitive

intelligence and national security matters, constitute

special factors that preclude creation of a cause of action

for damages under Bivens v. Six Unknown Named

Agents of the Federal Bureau of Narcotics, 408 U.S. 3888

(1971), for the alleged disclosure of petitioner’s identity

as an undercover Central Intelligence Agency operative.

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Argument

Conclusion

TABLE OF AUTHORITIES

Cases:

Arar v. Ashcroft, 532 F.3d 157 (2d Cir. 2008), reh’g

en bane granted (argued Dee. 9, 2008)

Ashcroft v. [qbal, No. 07-1015 (May 18, 2009)

19

Bagola v. Kindt, 131 F.3d 632 “Tih Cir. 1997) .......... 20

Benzman v. Whitman, 523 F.3d 119 (2d Cir. 2008) ..... 20

Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcoiics, 403 U.S. 388 (1971) ow. eee.

Bush v. Lucas, 462 U.S. 367 (1983) 4, 13, 12, Ug,

Carlson v. Green, 446 U.S. 14 (1980)

Castaneda v. United State- 146 F.8d 682 (9th Cir.

2008)

Chung v. Department of Justice, 33: 273 (D.C

Cir. 2003)

Correctional Servs. ( ‘Orp. V. Malesko, 524 U.S. 61

(2001)

Cuoco v. Moritsugu, 222

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

Downie v. City of Middleburg Heights, 301 F.3d 688

(6th Cir. 2002)

Krueger v. Lyng, 927 F.2d 1050 (Sth Cir. 1991) ....

2

16

Cuses—Continued:

Nixon v. Fitzgerald, 457 U.S. 731 (1982)

Oestereich v. Selective Service System, 393 U.S. 233

(1968)

Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir.

Na ssa bbe CREE Soe ok eae hace OAS 21

Schweiker v. Chilicky, 487 U.S. 412

(1988) 7,10, 12, 13, 14

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

Steel Co. v. Citizens for a Better Env, 523 U.S. 83

(1993)

United States v. Stanley, 483 U.S. 669 (1987) .......... 20

Van Dinh v. Reno, 197 F.3d 427 (10th Cir. 1999)

Wilkie v. Robbins, 1278. Ct. 2588 (2007)

Constitution, statutes and rules:

U.S. Const.:

Art. I]

Amend. I

Federal Tort Claims Act, 28 U.S.C. 2671 et seq.:

28 U.S.C. 2679(b)(1)

28 U.S.C. 2679(d)(1)

2S U.S.C. 2679(d (A)

Privacy Act of 1974, Pub. L. No. 93-579, &8& Stat. 1896

§ 2(a)(4), SS Stat. 1896

S 2(a)(5), 8&8 Stat. 1896 .

Privacy Act of 1974, 5 U.S.C. 55

5 ULS.C. 552a(a)(3)

5 | TS ¢ ~ aD5Path)

V

Statutes and rules—Continued: Page

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ees NE bg ub ys cic ae Kan See Vee eS 3

ee ss Soo 6 pow baw de een eae eee ea ew :

UE 8 gee: Er ie ee

5 U.S.C. 552a(g)(1)(D)

5 U.S.C. 552a(g)(4)

5 U.S.C. 552

viv ccc koe bends bwheeeenesen 3

G U.S.C. SBGatk) ........-. 000. - cr ececesss 3

42 U.S.C. 233(a)

Fed. R. Civ.

P. 11(b)

Miscellaneous:

120 Cong. Ree. (1974):

sor Peat oe Ue eo we g acrah aia ue es 3

NE alsin y'k C8 aah Deed e Sub ee Las ny ee we 3

ai saints he SON ty ek RNASE OR oa 3

I Ne i Ge aacn in areal ae Aen eo wae ee 3

S. 3418, 93d Cong., 2d Sess. (Sept. 24, 1974) ........... 3

. Rep. No. 1183, 93d Cong., 2d Sess. (1974) 5, 15, 16

In the Supreme Court of the Gnited States

No. 08-1048

VALERIE PLAME WILSON, ET AL., PETITIONERS

v.

I. LEWIS LIBBY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-50a)

is reported at 535 F.3d 697. The opinion of the district

court (Pet. App. 55a-105a) is reported at 498 I°. Supp. 2d

74.

JURISDICTION

The judgment of the court of appeals was entered on

August 12, 2008. A petition for rehearing was denied on

November 17, 2008 (Pet. App. 1084-1 11a). The petition

for a writ of certiorari was filed on February 17, 2009

(Tuesday following a holiday). The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioners, Valerie Plame Wilson and her husband

Joseph Wilson, allege that federal officials violated their

ee

9

constitutional rights by causing Ms. Wilson’s status as

an undercover Central Intelligence Agency (CIA) agent

to be publicly disclosed. Petitioners filed suit against

the individual respondents—former Vice President

Richard Cheney, former White House senior advisor

Kar! Rove, former Chief of Staff to the Vice President I.

Lewis Libby, and former Deputy Secretary of State

Richard Armitage—in their personal capacities, assert-

ing constitutional claims under Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403

U.S. 388 (1971). The court of appeals affirmed the dis-

trict court’s dismissal of those claims, holding, inter

alia, that Congress’s enactment of a comprehensive

statutory scheme in the Privacy Act, 5 U.S.C. 552a, to

address unlawful disclosures of personal information by

government officials precludes judicial creation of a

cause of action for damages under Bivens for the same

conduct. Pet. App. 10a-21a.

!. Congress enacted the Privacy Act based on its

understanding that the “right to privacy is a personal

and fundamental right protected by the Constitution”

and that regulating the federal government’s “sollection,

maintenance, use, and dissemination of information”

regarding individuals was necessary and proper “to pro-

tect the privacy of [such] individuals.” Privacy Act of

1974 (the Act), Pub. L. No. 93-579, § 2(a)(4) and (5),

88 Stat. 1896. The Act accordingly sets forth “detailed

instructions” governing the government’s “collection,

maintenance, use, and dissemination of information”

about individuals in ageney records. Doe v. Chao, 540

U.S. 614, 618 (2004); see 5 U.S.C. 552a(ay(3).

The Privacy Act, inter alia, regulates and limits the

information that agencies may maintain on individuals

In systems of records, including a general prohibition

5)

against maintaining, collecting, using, or disseminating

records describing how individuals exercise their First

Amendment rights. 5 U.S.C. 552a(a)(8), (e) and (e)(7).

It further provides that agencies must normally give

individuals access to records pertaining to them, and

directs agencies to promulgate rules allowing individuals

to obtain access to and request amendment of such re-

eords. 5 U.S.C. 552a(d) and (f). Subject to statutory

exceptions, the Privacy Act also specifies that:

No agency shall disclose any record which is con-

tained in a system of records by any means of com-

munication to any person, or to another agency, ex-

cept pursuant to a written request by, or with the

prior written consent of, the individual to whom the

record pertains.

5 U.S.C. 552a(b); ef. 5 U.S.C. 552a(}) and (k) (exemp-

tions).

Congress has enacted a carefully calibrated set of

judicial remedies for violations of the Privacy Act and its

implementing regulations. See 5 U.S.C. 552a(g). In

crafting those remedies, Congress considered imposing

monetary liability on “any person found to have violated

* * * the Act.” S. Rep. No. 1183, 98d Cong., 2d Sess.

83 (1974) (discussing Section 308(c) of S. 3418 as re-

ported by committee). It ultimately determined, how-

ever, that imposing such lability on “an individual em-

ployee of a Federal agency” would be inappropriate and

that “civil liabilities should run only against the agency

itself.” 120 Cong. Rec. 36,891 (1974) (explaining amend-

ments to S. 3418). Congress accordingly eliminated per-

sonal liability from the Privacy Act, see id. at 36,921,

37.085: see also 7d. at 40.406, and enacted a detailed re

medial provision that authorizes damages actions only

against federal agencies. 5 U.S.C. 552a(g).'

The Privacy Act authorizes an individual adversely

affected by a violation of the Act’s anti-disclosure provi-

sion, for instance, to bring a civil action against the re-

sponsible agency. 5 U.S.C. 552a(g)(1)(D). If the agency

is found to have acted intentionally or willfully in violat-

ing that provision and the plaintiff has sustained actual

damages as a result of the violation, the United States

will be liable to that individual for his or her actual dam-

ages (subject to a $1000 minimum award) and reason-

able attorneys’ fees and costs. 5 U.S.C. 552a(g@)(4); see

Doe, 540 U.S. at 616, 625 n.9.

2. Petitioners’ complaint alleges that the disclosure

of Ms. Wilson’s status as a CLA employee has its origin

in the 2003 State of the Union address in which Presi-

dent George W. Bush stated that “[t]he British govern-

ment has learned that Saddam Hussein recently sought

significant quantities of uranium from Africa.” Pet.

App. 3a. The New York Times subsequently published

a column by Nicholas Kristof questioning the accuracy

of that statement. Kristof reported that, following a

request from the Vice President’s office for an investiga-

tion of an allegation that Iraq sought to buy uranium

from an African country, an unnamed former ambassa-

dor (now known to'be Mr. Wilson) was sent to Niger in

2002 to investigate. Kristof claimed that the ambassa

Although the Privacy Act does not impose civil hability on individu

als, Congress did not nore culpable tederal employees. The Act spe

cifies that “{al|ny officer or employee” of an agency who knowingly and

willfully discloses information in violation of the Act may be held cnm

inally lable for a misdemeanor offense. 5 U.S.C, 552a(1)

This bef assumes, as it must at this stave of this litigation, th

truth of the allegations in petitioners: ( omplaint

dor reported to the CIA and the Department of State

that the allegations were wrong and based upon forged

documents. /bid.; C.A. App. 20-21.

After several more newspaper articles raised ques-

Lions about alleged Iraqi efforts to buy uranium and re-

ferred \\o Wilson’s trip to Niger, Wilson became person-

ally involvea in the controversy. He authored a New

York Times article entitled “What I Didn’t Find in Af-

rica”; gave an interview to the Washington Post, which

published an article about his trip to Niger; and ap-

peared on Meet the Press to discuss the controversy.

Pet. App. 4a-5a. He usserted in various public stace-

ments that he had taken the trip to Niger at the request

of the CIA in February 2002 to investigate the allega-

tions that Iraq had sought or obtained uranium. C.A.

App. 24. He also expressed doubts about the claim that

[raq had obtained uranium from Niger and stated nis

belief that the Vice President's office was advised of the

results of his trip. /b7d.; Pet. App. 5a.

Petitioners allege, “[uJpon information and belief,”

that former Vice President Cheney, Libby, and Rove

agreed to “discredit, punish and seek revenge” against

Mr. Wilson by taking actions that included the disclo

sure of his wife’s classified CIA employment to the

press. C.A, App. 28. Libby allegedly discussed Ms. Wil

son's CIA employment with reporter Judith Miller

and alleyedly revealed Ms. Wilson’s identity to reporter

Matthew Cooper. /d. at 23-27. Rove also allegedly

spoke with Cooper, informing him that Ms. Wilson

worked for “the agency” and was responsible for send

ing Mr. Wilson to Niger. /d. at 29; Pet. App. 5a.

But neither Miller nor Cooper was the alleged source

of the initial public disclosure of Ms. Wilson’s CLA em

ployment. That disclosure purportedly came from col

6

umnist Robert Novak in a syndicated column on July 14,

2003, based on information that Novak obtained from

respondent Armitage. C.A. App. 19, 31. Petitioners

contend that Novak’s column “destroyed |Ms. Wilson’s|

cover as a Classified CLA employee.” /d. at 19; Pet. App.

ha.

3. Petitioners’ amended complaint (C.A. App. 15-57}

asserts five causes of action seeking money damages for

injuries allegeciy sustained as a result of the public dis-

closure of Ms. Wilson’s employment as a CIA operative.

Three oi those claims remain in dispute. First, Mr. Wil-

son alleges that Libby, Rove, and Cheney (but not

Armitage) violated nis First Amendment rights by dis

closing his wife’s employment status in retaliation for

his protected speech (Count 1). C.A. App. 32-33; Pet. 2.

Petitioners further allege that all four individual defen-

dants violated the Fifth Amendment by disclosing Ms.

Wilson’s covert CLA employment, thereby violating peti

tioners’ constitutional right to privacy (Count 3) and

depriving Ms. Wilson of a property interest in her CIA

employment without due process of law (Count 4). C.A.

App. 34-35; Pet. 3.

The district court dismissed petitioners’ claims. Pet

App. 55a-105a. As is relevant here, the court held that

Petitioners abandon (Pet. 2 & n.1) their equal-protection claim

based on purportedly “differential treatment motivated by vin

lictiveness and an Hlegitimate animu CA. App. 38 (Count 2). They

iso abandon (Pet. 3 n.2) their common-law tort claim for public di

closure of private facts, CLA. App. 35-56 (Count 5). After the Attorne,

General substituted the United States us the only defendant for that

ommon-law privacy claim by certifving that each individual defendant

wted within the scope of his employment with respect to the alleged

maiiet STS OC 2AToObIe bod md (4) the claim was dism

rita re aX! mst udministrat ere? ile bet Ap} rebib- cota, |

7

“special factors” counsel against creating a new dam-

ages cause of action against individual government ofti-

cials under Bivens for improper disclosures of personal

information. The court found that fashioning a new

Bivens action would be inappropriate because Congress

enacted the Privacy Act as a comprehensive scheme to

address such disclosures and because creating a Bivens

action in this context would likely require inappropriate

judicial intrusion into matters of national security and

intelligence activities and operations. /d. at 68a-87a,

90a-97a. In light of that disposition, the court concluded

that it need not determine whether Mr. Wilson had Arti-

cle [Il standing to assert his First Amendment retalia-

tion claim. /d. at 69a n.2.

4. A divided panel of the court of appeals affirmed.

Pet. App. la-50a. The court explained that, under this

Court’s precedents, “|ojne ‘special factor’ that precludes

creation of a Bivens remedy is the existence of a com-

prehensive remedial scheme,” which “need not provide

full relief to the plaintiff.” /d. at lla-13a (discussing

Bush v. Lucas, 462 U.S. 367 (1983); Schweiker v. Chil-

icky, 487 U.S. 412 (1988); and Wilkie v. Robbins, 1278.

Ct. 2588 (2007)). Because “Congress created a compre-

hensive Privacy Act scheme that did not inadvertently

exclude a remedy for the claims brought against the| |

defendants,” the court reasoned, it would be inappropri-

ate under the decisions of this Court to “supplement the

scheme with Bivens remedies.” /d. at 2la; see id. at

lOa-2la.

In addressing petitioners’ assertion that the reme-

dies provided to them by the Privacy Act were insuffi

cient to preclude a Sivens action, the court rejected the

claim that the Act provided them with no possibility tor

relief. The court noted petitioners’ own concession that

8

“Valerie Wilson has a possible [Privacy Act] claim based

on the disclosure by [respondent] Armitage because the

information disclosed about her and the agency involved

in the disclosure are subject to the Privacy Act’s restric-

tions.” Pet. App. 20a. The court also reasoned that all

of petitioners’ constitutional claims are premised “on the

publication of Valerie Plame Wilson’s CIA employment

in the Novak column,” which resulted from “a disclosure

by Deputy Secretary of State Armitage of information

about an individual contained in State Department re-

cords.” /d. at 15a-16a. As a result, “each Constitutional

claim, whether pled in terms of privacy, due process, or

the First Amendment, is a claim alleging damages from

the improper disclosure of information covered by the

Privacy Act.” /d. at 16a.

The court then rejected petitioners’ argument that a

Bivens remedy was necessary because the Privacy Act

did not allow petitioners to bring all their claims. The

court reasoned that “the availability of Bivens remedies

does not turn on the completeness of the available statu-

tory rehef’—or, stated otherwise, that “|t]he special

factors analysis does not turn on whether the statute

provides a remedy to the particular plaintiff for the par-

ticular claim he or she wishes to pursue.” Pet. App. 13a,

20a-21a (discussing Bush, Chilicky, Wilkie). While

an “equally cffective statutory remedy is a sufficient

hee reason for [courts] to abstain from creating Biv-

ens remedies,” 7d. at 18a-19a, the court explained that

deference is alsu owed “to the considered judgment of

Congress that certain remedies are not warranted.” /d.

at 2Zla. “Indeed, it is where Congress has intentionally

withheld a remedy” in enacting a comprehensive statu-

tory scheme, the court continued, “that we must most

refrain from providing one.” /hbid. The court thus con-

y

cluded that, while petitioners did not have a Privacy Act

claim for disclosures by respondents Cheney, Rove, and

Libby because the Act “exempts the Offices of the Presi-

dent and Vice President from its coverage,” it would be

inappropriate to provide petitioners with these “addi-

tional remedies” under Bivens because Congress itself

had “intentional[ly] omi[{tted] * * * the Presidential

and Vice Presidential offices from the comprehensive

coverage of the Privacy Act.” /d. at 16a-18a.

The court of appeals further concluded that “special

factors” precluded fashioning a Bivens cause of action in

this context because a Bivens action “would inevitably

require judicial intrusion into matters of national secu-

rity and sensitive intelligence information” to litigate

“the allegations in the amended complaint.” Pet. App.

21la-22a. In light of petitioners’ allegations that the dis-

closure of Ms. Wilson’s identity impaired her ability to

carry out her duties as a CIA agent and increased the

risk of violence to her and her family, the court con-

cluded that “[wJe certainly must hesitate before we al-

low a judicial inquiry into these allegations that impli-

cate the job risks and responsibilities of covert CIA

agents.” /d. at 23a.

Judge Rogers dissented. Pet. App. 29a-50a. In her

view, the Privacy Act was not a “special factor” preclud-

ing implication of Bivens remedies in this case because

the statute provided only limited relief for Ms. Wilson

and no relief at all for Mr. Wilson. /d. at 35a-38a, 4&a-

49a. Judge Rogers found no clear evidence “indicating

that Congress considered and decided to deny a brvens

remedy in the context at issue.” /d. at 404.

10

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or any

other court of appeals. Further review is unwarranted.

l. Petitioners contend that this Court’s review is

necessary to resolve whether the existence of “a statute

that does not apply and can provide no remedy” can be

a special factor counseling hesitation in implying a cause

of action under Bivens. Pet. 16. Petitioner’s argument

rests on an incorrect premise and is flawed on its merits.

a. Itis well settled that litigants have no “automatic

entitlement” to a judicially devised cause of action for

money damages under Bivens. Wilkie v. Robbins, 127

S. Ct. 2588, 2597 (2007). The creation of such a cause of

action must “represent a judgment about the best way

to implement a constitutional guarantee,” and, after de-

ciding Bivens in 1971, this Court has made this judg-

ment in only limited situations. /b7d. “[1]n most in-

stances,” the Court has “found a Bivens remedy unjusti-

fied,” vb¢d., and the Court’s decisions “have responded

cautiously to suggestions that Bivens remedies be ex-

tended into new contexts.” Schweiker v. Chilicky, 487

U.S. 412, 421 (1988); see Ashcroft v. gbal, No. 07-1015

(May 18, 2009), slip op. 11; ef. Wilkie, 1275. Ct. at 2608

(Thomas, J., concurring) (concluding that A7vers and its

progeny should not be extended to any new contexts);

Correctional Servs. Corp. v. Malesko, 434 U.S. 61, 75

(2001) (Sealia, J., concurring) (same).

These decisions make clear that a judicially created

cause of action under Aivers is inappropriate in two cir-

cumstances. First, if Congress provides an alternative

remedy and indicates its intent (either by statutory lan

guaye, legislative history, or “the statutory remedy it-

self”) that a judicially fashioned cause of action is unde-

1]

sirable or unnecessary, then creating a new Bivens ac-

tion is unwarranted. Bush v. Lucas, 462 U.S. 367, 37:

(1983). Federal courts will thus follow Congress’s lead

where Congress has “resolved the question * * * by

expressly denying [a litigant] the judicial remedy he

seeks or by providing him with an equally effective sub-

stitute.” /bid.; see id. at 377-378 (citing Carlson v.

Green, 446 U.S. 14, 18-19 (1980)).

Second, if “such a congressional directive” is lacking,

courts must make “the kind of remedial determination

that is appropriate for a common-law tribunal, paying

particular heed * * * to any special factors counseling

hesitation” before creating a new Bivens cause of action.

Bush, 462 U.S. at 378; accord Wilkie, 1278. Ct. at 2598.

Analysis of these “special factors” may include an evalu-

ation of which Branch “is in a better position to decide”

whether the “public interest would be served by creat-

ing” a cause of action, Bush, 462 U.S. at 388-390, and

consideration of “the difficulty of defining limits” that

would permit government officials to pursue their duties

without “invitfing] an onslaught of Bivens actions.”

Wilkie, 1278S. Ct. at 2600, 2604-2605.

The court of appeals in this case correctly concluded

that the Privacy Act’s comprehensive regulation of gov

ernmental disclosures of personal information is a spe-

cial factor that makes judicial creation of a Bivens cause

of action inappropriate. Where Congress has enacted a

comprehensive statutory scheme like the Privacy Act,

“(t]he question is not what remedy the court should pro

vide for a wrong that would otherwise go unaddressed”;

it “is whether an elaborate remedial system that has

been constructed step by step, with careful attention to

conflicting policy considerations, should be augmented

by the creation of a new judicial remedy for the constitu

12

tional violation.” Bush, 462 U.S. at 388; see Chilicky,

487 U.S. at 425-427. If the statutory scheme “suggests

that Congress has provided what it considers adequate

remedial mechanisms for constitutional violations,” such

“indications that congressional inaction has not been

inadvertent” deserve “judicial deference.” /d. at 423.

As the court of appeals explained, the Privacy Act

established a comprehensive statutory scheme to regu-

late the collection, maintenance, use, and dissemination

of information about individuals in agency records. Pet.

App. 15a. The Congress that enacted the Privacy Act

was well aware of the constitutional privacy and First

Amendment implications of collecting and disclosing

such information in agency records, and it adopted de

tailed remedial provisions that authorize monetary relief

in suits against agencies while rejecting the alternative

of civil actions against individual federal officials. See

pp. 2-4, supra. Moreover, the court of appeals correctly

recognized that petitioners’ claims “are all claims alleg-

ing harm from the improper disclosure of information

subject to the Privacy Act’s protections,” and, for that

reason, petitioners have a potential remedy under the

Act because they allege that Armitage disclosed to

Novak information from agency records. Pet. App. 15a-

16a, 20a (emphasis added). Congress’s decision to au

thorize damayes actions only against federal agencies

for unlawful disclosures of Privacy Act information bal-

ances numerous factors, including the need for a civil

remedy and the 7» terrorem effect of civil suits against

individual government officials. And, because “Con-

gress is ina far better position than a court to evaluate

the impact of a new species of litigation [against] tederal

employees” and possesses “institutional competence in

crafting appropriate relief,” judicial deference is due to

13

the balance that Congress has struck. Mualesko, 534

U.S. at 68 (quoting Bush, 462 U.S. at 389); see Wilkie,

127 S. Ct. at 2605 (same).

b. Petitioners do not appear to dispute that the Pri-

vacy Act would preclude a new Bivens cause of action in

circumstances in which the Act provides a plaintiff with

some possibility of relief. They instead argue (Pet. 16-

18, 21) that the Act should not preclude a Bivens action

here because the Act provides petitioners “no remedies

at all.” That argument suffers from multiple defects.

First, as the court of appeals explained, petitioners’

underlying premise is incorrect. Petitioners themselves

eoncede that Ms. Wilson has a possible damages claim

under the Privacy Act. Pet. App. 20a; ef. C.A. App. 31

(alleging that Armitage acknowledged learning of Ms.

Wilson’s CIA employment from a State Department

memorandum, which Armitage subsequently disclosed

to Novak).

Moreover, petitioners’ argument suffers from what

the court of appeals terms a more “significant flaw”

(Pet. App. 20a)—namely, the assumption that a statu-

tory scheme must provide each potential plaintiff with

relief in order to preclude judicial fashioning of a new

Bivens action. This Court repeatedly has explained that

a comprehensive remedial scheme will preclude the cre-

ation of anew Bivens action even if the scheme does not

offer “complete relief” and fails to offer a remedy in all

circumstances. See Chilicky, 487 U.S. at 423, 425 (not-

ing that, in Bush, the Civil Service Reform Act (CSRA)

provided “no remedy whatsoever” in certain contexts);

id. at 424-425 (finding Bivens action precluded when

statute made “no provision for remedies in money dam-

ages against officials” and provided no remedy for con-

sequential damages from wrongful action); Bush, 162

14

U.S. at 372 & nn.8-9, 385 n.28, 388 (CSRA does not pro-

vide remedy for all personnel actions and provided only

limited relief for covered actions); ef. Wilkie, 127S. Ct.

at 2600-2604 (finding Bivens action inappropriate even

without comprehensive remedial scheme where most of

petitioners’ complaints could be raised on an “incident-

by-ineident” basis under a legal “patchwork” that was

‘“inadequajte|” to remedy the alleged course of conduct).

Under these precedents, not every form of relief need be

given to preclude a Bivens action. And if a statute does

not provide a specific form of relief in a specific context,

it will necessarily provide no relief to those plaintiffs

who seek only the unavailable remedy.

Further, Congress need not provide a “separate[]

remed|y|” for “statutory violations caused by unconsti-

tutional conduct” beyond “the remedies provided gener-

ally for such statutory violations.” Chilicky, 487 U.S. at

427-428. So long as the design of a statutory regime

“suggests,” as here, that “Congress has provided what

it considers adequate remedial mechanisms for constitu-

tional violations,” that indication is a special factor that

precludes the “creat[ion of] additional Bivens remedies.”

Id. at 423; see pp. 12-13, supra."

ce. Petitioners contend (Pet. 16-17) that the court of

appeais erred in refusing to augment the comprchensive

system of regulation enacted by Congress with a new

Bivens cause of action because the Privacy Act does not

Petitioners’ suggestion that statutory remedies must be “equally

effective” to preclude a Bivens aetion, Pet. 17 (quoting Carlson, 446

U.S. at 19), reflects only one way in which creation of a Bivens action

may be precluded. The “special factors” analysis reflected in this

Court's lecisions man independent basis for denying Biveus relief. See

pp JO-Li. supra

15

apply lo the Offices of the President and Vice President.

That argument is without merit.

Petitioners appear to acknowledge that Congress

deliberately excluded the Offices of the President and

Vice President from the Privacy Act, see Pet. 16-17, and

the dissenting opinion below notes the separation of

powers concerns that Congress considered in adopting

that exclusion. Pet. App. 39a. Petitioners nevertheless

contend (Pet. 18-19) that a new Bivens action against

individual officials in those offices should be created be

cause the Act’s legislative history does not affirmatively

reflect an intent to preclude separate damage actions for

constitutional violations. While this kind of legislative

history would provide an independeni reason for declin-

ing to create a Bivens action, no such expression of in-

tent is needed where, as here, a comprehensive statu-

tory scheme itself indicates that the remedies created by

Congress should be deemed exclusive, rather than sup-

plemented by the courts. See pp. 10-13, supra. When

such a comprehensive scheme exists, the relevant ques

tion becomes whether Congress “plainly expressed an

intention that the courts preserve bivens remedies.”

Spagnola v. Mathis, 859 F.2d 223, 228, 229 n.10 (D.C.

Cir. 1988) (en bane). If Congress tailed to express such

an intention, as here, the courts should not ereate a Bry

ens action.’

Nor are petitioners correct in suggesting that the Privacy Act’

legislative history reflects an expectation by Congress that courts

might add to the Act’s comprehensive scheme to include offices in

tentionally omitted by Congress. Pet. 18-19 (quoting Pet. App. 40a

fla). The relevant history includes no such statement. And although

a COMIMILee report inciicates that the Act was not intended to be the

“final statement by Congress on the mht to privacy and other related

rights as they may be developed or interpreted by the courts,’ S. Rep

16

d. Petitioners similarly argue (Pet. 16) that a new

Bivens cause of action should be created to allow Mr.

Wilson to pursue a First Amendment claim based on the

allegedly unlawful disclosure of his wife’s CIA employ-

ment because the Privacy Act permits civil actions only

by the person whose records have been released. That

argument rests on the erroneous premise previously dis-

cussed—that the absence of remedies under a compre-

hensive scheme warrants creation of a new Bivens cause

of action. Just as Congress’s decision to exclude the

Offices of the President and Vice President from the

scope of the Privacy Act must be given effect, so too

courts owe deference to Congress’s decision not to allow

third parties to sue under the Privacy Act based on al-

legedly unlawful disclosures of other people’s records.

““Congress is in a far better position than a court to

evaluate the impact of [such] a new species of litigation’

against those who act on the public’s behalf.” Wilkie,

275. Ct. at 2605 (quoting Bush, 462 U.S. at 389). That

conclusion carries particular force here, where recogniz-

ing Bivens claims against officials for derivative harms

flowing from the disclosure of information concerning a

close relative would significantly undermine the very

limitations in the Privacy Act that apply when the most

directly affected individual—the individual whose infor

mation was disclosed—seeks relief.”

No. 1ES3. svpra, at 15, that statement merely reflects Congress's ree

ognitionthatit could later address privacy-related concerns in different

contexts, including in the “private sector,” id. at 40. The statement

does not speak to the appropriate remedies tor the kind of disclosures

that Congress considered and regulated under the detailed provisions

fthe Privacy Act

sof plaintiffs raising claims like those in Bush and Chilichky

‘almost certamly would sutter adverse etfects trom re-

Moreover, this case would be a poor vehicle for the

Court to address Mr. Wilson’s derivative First Amend-

ment claim because petitioners may not have carried

their burden of establishing Mr. Wilson’s Article III

standing to assert that claim. Cf. Pet. App. 69a n.2 (de-

clining to reach that question). Petitioners allege that

Novak’s July 14, 2003 column publicly disclosed Ms. Wil-

son’s covert CLA employment and that that disclosure

“destroyed her cover as a classified CIA employee.”

C.A. App. 19. Petitioners, however, allege that Novak’s

source was Armitage, 7d. at 31; Pet. 12, and do not allege

that any of the three defendants against whom Mr. Wil-

son presses his First Amendment claim—Cheney, Rove,

and Libby—caused that column to be published.’ In the

absence of factual allegations that Mr. Wilson’s alleged

injury from the publie disclosure of his wife’s CIA em-

ployment is “fairly traceable” to alleged conduct by

Cheney, Rove, or Libby, petitioners have failed to estab-

lish Article III jurisdiction over Mr. Wilson’s First

taliatory termination of a government emplovee for exercising First

Amendment rights (Bush) and the demal of Social Security benefits

without due process of law (Chilicky). This Court’s cases provide no

basis for reading such a loophole into the Court’s Bivens jurisprudence

repvarcinge comprehensive Statutory schemes.

Petitioners have alleged that they “believe |" either “Karl Rove or

one or more of John Does No. 1 - 10” advised Libby that “Rove or the

Docs” spoke with Novak about Ms, Wilson's CIA employment befors

Novak's column was published. C.A. App. 26; see Pet. 9. That allega

tion is tantamount to alleging that Kove either did or did not tell Libby

that he disclosed such information to Novak. A plaintiff can alway

ulleve. consistent with Fed. R. Civ. P. 11(b), that a defendant either did

or did not cause his injury, but such creatively indeterminate pleading

fails inthis cuse ton ike out an allegatior that Rove Casa unrce T 1]

’ }

tormation tor Novak s columr

Ls

Amendment claim. See Steel Co. v. Citizens fora Better

Env’t, 523 U.S. 83, 103 (1998).

e. Petitioners are incorrect in their suggestion (Pet.

19) that serious constitutional issues arise from declin-

ing to create a new Bivens cause of action to supplement

congressionally sanctioned remedies in a comprehensive

statutory scheme. This Court long has recognized in the

Bivens context that plaintiffs do “not [have] a damages

remedy for every legal wrong,” Niwon v. Fitzgerald, 457

U.S. 731, 754 n.37 (1982), and, more recently, has con-

firmed that plaintiffs do not have an “automatic entitle

ment” to a judicially devised action under Bivens. Wil

kie, 1278. Ct. at 2597. Petitioners’ inability to garner

authority for their position suggests that no serious con

stitutional questions arise from the court of appeals’

decision not to fashion a Bivens cause of action here.”

2. Petitioners suggest (Pet. 19) that review is war

ranted to resolve a conflict in the circuits. No conflict

exists. The only two courts of appeals to have addressed

whether the Privacy Act is a comprehensive scheme that

precludes judicial creation of a Bivens cause of action

have answered the question affirmatively. Chung v. Di

partment of Justice, 333 F.3d 273, 274 (D.C. Cir. 2003);

Downie v. City of Middleburg Heights, 301 F.3d 688, 698

(6th Cir. 2002). Morever, petitioners fail to show “tre

mendous confusion in the lower courts concerning what

is a ‘special factor counseling hesitation.’” Pet. 15. The

cases that petitioners cite (Pet. 15, 19) do not employ

different legal principles; they simply reflect) the

Petitioners’ exclusive reliance (Pet. 1%) on Justice Harlan’s con

curring opinion in Oestereich Vv. Selective Service Suystes a} |

LOS), Is misplaced That OPTION merely expressed doubt “whether a

person may be deprived of his personal liberty without Che prior oppor

tunity to be heard.” /d. at 245 n.6 (Harlin, Jo. coneurring

19

context-specific nature of the “special factors” inquiry,

which turns on a careful examination of the applicable

statutes and claims. See, e.g., Wilkie, 1278. Ct. at 2599

2601 (assessing the “patchwork” of statutory remedies

available to vindicate plaintiff's claims).

For instance, Arar v. Ashcroft, 532 F.3d 157, 176-184

(2d Cir. 2008), reh’g en bane granted (argued Dee. 9,

2008), and Van Dinh v. Reno, 197 F.3d 427, 4382-435

(10th Cir. 1999), concluded that a new Bivens cause of

action would be inappropriate where the complained-of

conduct was regulated by the [mmigration and National

ity Act. Those decisions do not conflict with Castaneda

v. United States, 546 F.3d 682 (9th Cir. 2008)." The

Ninth Circuit in Castaneda applied this Court’s earlier

decision in Carlson to conclude that the availability of

relief under the Federal Tort Claims Act (FTCA) did

not constitute a “special factor| ]” that would preclude a

Bivens cause of action. Castaneda, 546 F.3d at 700-701

The court of appeals emphasized that, although this

Court has “subsequently found various other remedial

schemes” to preclude a Aivews cause of action, it has

ver “overruled Carlson's square holding” in the FTCA

context. /d. at 700." That decision creates no tension

with the holdings in Arar and Van Dinh, and none ot the

20

other decisions cited by petitioners (Pet. 19) conflicts

with the decision in this case."

3. Finally, petitioners contend (Pet. 20-21) that fur

ther review is warranted because the court of appeals

erred in concluding that the adjudication of their claims

would require judicial intrusion into matters of national

security and sensitive intelligence information. Because

the court concluded tnat judicial fashioning of a Bivens

action was inappropriate in light of the Privacy Act’s

comprehensive scheme for addressing injuries such as

the alleged disclosure of Ms. Wilson’s CLA employment,

Pet. App. 2la, its identification of additional factors

counseling against a Bivens action was unnecessary to

the court’s disposition. In any event, the court was cor

rect to recognize that “the litigation of the allegations in

the amended complaint would inevitably require judicial

intrusion into matters of national security and sensitive

intelligence information.” /d. at 2la-22a. Petitioners

themselves do not quarrel! with the proposition that the

ensitivity of issues raised by certain kinds of claims

counsels against a Bivens cause of action in certain cor

LeXxt See United States v. Stanley, 483 U.S. 669. 683

(1987) (“congressionally uninvited intrusion into militar

affairs by the judiciary is inappropriate” and cons

ha special factor); Benzman v. Whitman, 52

Zl

119, 126 (2d Cir. 2008) (holding that “a suit against a

federal official for decisions made as part of federal di

saster response and cleanup efforts implicate[s] the sort

of ‘special factors’ that counsel against creation of a

sivens remedy”); Sanchez-Aspinoza v. Heagan, 770

F.2d 202, 209 (D.C. Cir. 1985); see also Wilkie, 1278. Ct.

at 2604 (considering various factors, including the “diffi

culty of devising a workable cause of action”).

Petitioners contend (Pet. 20) that “it is purely specu

lative whether this case would risk disclosure of secret

or sensitive information.” But both the cou ct of appeal

and the district court concluded that the adjudication of

petitioners’ claims would require judicial inquiry into

highly sensitive areas such as “the job risks and respon

sibilities of covert CIA agents.” Pet. App. 23a; see rd. at

That context specilic appralsa Ol the "ISKS and

ion ociated with litigating

further revie'

CONCLUSION