No Easy Answers

This is a split decision (2-1) affirming the court below. Wilson's complaint (damages on account of loss of privacy when Plame's identity was disclosed by Armitage, Libby, and Rove) failed to state a cause of action, and was properly dismissed.

            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, 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 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.

---
       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."
Wilke 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.

posted by cboldt  # 8/12/2008 04:06:00 PM