Wilson v. Libby

• Decision Date: 12 August 2008
• Docket Number: No. 07-5257.,07-5257.
• Citation: 535 F.3d 697
• Parties: Valerie Plame WILSON and Joseph C. Wilson, IV, Appellants v. I. Lewis LIBBY, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

535 F.3d 697

Valerie Plame WILSON and Joseph C. Wilson, IV, Appellants v. I. Lewis LIBBY, et al., Appellees.

No. 07-5257.

United States Court of Appeals, District of Columbia Circuit.

Argued May 9, 2008.

Decided August 12, 2008.

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, 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.

John G. Kester and Terrence O'Donnell 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.

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, 113 S.Ct. 1160, 122 L.Ed.2d 517 (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 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 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, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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, 2001 WL 34360430 (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, ___ U.S. ___, 127 S.Ct. 2588, 2600-01, 2604-05, 168 L.Ed.2d 389 (2007); Schweiker v. Chilicky, 487 U.S. 412, 421-22, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); Bush v. Lucas, 462 U.S. 367, 388, 103 S.Ct. 2404, 76 L.Ed.2d 648 (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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (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, 118 S.Ct. 1003 (quoting Mansfield, C. & L.M. Ry. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884))). Therefore, we must "`address questions pertaining to [our] jurisdiction before proceeding to the merits.'" Id. (quoting Tenet v. Doe, 544 U.S. 1, 6 n. 4...