Judge Bates of the United States District Court for the District of Columbia has dismissed the lawsuit filed by Valerie Plame Wilson and her husband against I. Lewis (Scooter) Libby, Jr., Vice President Cheney, and other high-level Executive Branch officials resulting from the public disclosure that she was a covert CIA operative. (Wilson v. Libby et al., D.D.C. Civil Action No. 06-1258 (JDB), 7/19/07)
The Wilsons sued Libby and the others personally based on four so-called “Bivens” constitutional tort claims. (Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)) They also asserted a fifth claim under D.C. tort law involving public disclosure of private facts. (Opinion p. 1)
The Bivens claims sought money damages directly under the First and Fifth Amendments of the U.S. Constitution for alleged violations of the Wilsons’ constitutional rights.
In a classic understatement, Judge Bates begins his opinion by saying, “This is a case of some notoriety and public interest.” (p. 1)
(I agree that the background involving the “outing” of Plame Wilson’s identity has been dealt with tirelessly in the press, and I won’t go into it here. However, for those readers who want a good re-cap, read pp. 2 through 10 of the court’s opinion, which is based on the facts as set forth in the Defendants’ briefs supporting their motion to dismiss.)
As Judge Bates points out, “The merits of plaintiffs’ claims pose important questions relating to the propriety of actions undertaken by our highest government officials…” Nevertheless, he “expresses no view on…the merits….because the motions to dismiss will be granted.” (pp. 1-2) This outcome turns on Judge Bates’ conclusion that there are “special factors counseling hesitation.”
The original Bivens case fashioned an implied right of action under the Constitution in order to provide a remedy where none existed in a case where Federal government officials violated Bivens’Fourth Amendment rights. In creating this constitutional tort remedy out of whole cloth, the Supreme Court in Bivens used language that “[t]he present case involves no special factors counseling hesitation in the absence of affirmative action by Congress.” (Bivens at 396)
The Supreme Court subsequently issued a line of cases in which it found such special factors existed and it refused to permit a constitutional tort remedy.
Judge Bates now looks to those cases to conclude that there is an alternative legislative remedy available to the Wilsons that precludes providing them with a constitutional tort remedy. He finds that the Privacy Act, which governs the disclosure of personal information from government files, affords a sufficient statutory remedy for the Wilsons. (p. 34)
As for the Wilsons’ claim based on D.C. tort law, the court now rules that since the Defendants were acting within their scope of employment, the sole remedy available is under the Federal Tort Claims Act. Judge Bates therefore orders the United States substituted as the sole defendant. Since the Wilsons have failed to file an administrative claim under the FTCA, he now rules that the court lacks jurisdiction over this allegation. (p. 40)
Given the “notoriety and public interest,” in this whole affair, the next stop in this case will most likely be the federal appeals court.