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Administrative Remedies, Tort Claims and the Privacy Act

by Susan McGuire Smith |

The federal appeals court has handed another defeat to Joseph and Valerie Plame Wilson in their efforts to exact damages from various high-level officials, including Vice President Cheney. (Wilson v. Libby et al, C.A.D.C. No. 07-5257 (8/12/08))

Readers may recall that Mrs. Wilson was a covert CIA employee whose cover was blown in press reports following her husband’s involvement in the controversy surrounding whether Saddam Hussein had sought significant quantities of uranium from Africa prior to the U.S. invasion of Iraq.

The Wilsons sued Vice-President Cheney, Karl Rove, I. Lewis Libby, Jr., and Richard Armitage, all senior administration officials. They sought damages from these individuals in their personal capacity under a constitutional tort theory. They also sought damages from the U.S. Government for the tort of invasion of privacy. The U.S. District Court dismissed their claims. The appeals court now follows suit and affirms the dismissal of all claims. (Opinion p. 2)

Summarizing, the appeals court has refused to carve out a constitutional tort since the Privacy Act affords a remedy to Mrs. Wilson. As the court states, “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.” (p. 18)

As for the Wilsons’ tort claim against the individual defendants, the district court dismissed it for failure to exhaust administrative remedies. The appeals court affirms, holding that the defendants’ actions in speaking to the press corps were within the scope of their employment: “It can hardly be disputed that such discussions were of the type that the defendants were employed to perform.” (p. 23) Since the discussions were within the scope of their employment, the tort action must be against the United States. The Federal Tort Claims Act requires that the Wilsons first file an administrative tort claim. Since they missed this step, the court does not have jurisdiction over a tort claim against the U.S. and the case was properly dismissed. (pp. 23-24)

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About the Author

Photo of Susan McGuire Smith

Susan McGuire Smith

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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