The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiffs Valerie Plame Wilson and Joseph C. Wilson IV bring this action against four high-level Executive Branch officials, including the Vice President of the United States and his former Chief of Staff, based on the widely-publicized disclosure of the fact that Mrs. Wilson worked as a covert operative for the Central Intelligence Agency. Plaintiffs allege that defendants undertook a concerted effort to reveal this information to reporters in order to retaliate against and discredit Mr. Wilson for his public criticism of the Bush Administration's handling of foreign intelligence prior to this country's military involvement in Iraq. The Wilsons have sued the defendants personally for money damages based on claims brought directly under the First and Fifth Amendments of the Constitution and on a common-law tort claim for the public disclosure of private facts. Now pending before the Court are motions to dismiss filed by each of the four named defendants and the United States pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
This is a case of some notoriety and public interest. The merits of plaintiffs' claims pose important questions relating to the propriety of actions undertaken by our highest government officials. Defendants' motions, however, raise issues that the Court is obliged to address before it can consider the merits of plaintiffs' claims. As it turns out, the Court will not reach, and therefore expresses no views on, the merits of the constitutional and other tort claims asserted by plaintiffs based on defendants' alleged disclosures because the motions to dismiss will be granted.
For the reasons explained below, the Court finds that, under controlling Supreme Court precedent, special factors -- particularly the remedial scheme established by Congress in the Privacy Act -- counsel against the recognition of an implied damages remedy for plaintiffs' constitutional claims. The Court also finds that it lacks subject-matter jurisdiction over the tort claim because plaintiffs have not exhausted their administrative remedies under the Federal Tort Claims Act, which is the proper, and exclusive, avenue for relief on such a claim.
In the 2003 State of the Union address, President George W. Bush told the nation that "[t]he British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa." Am. Compl. ¶ 19(a). As it turned out, the veracity of the claim asserted in these "sixteen words" had previously been disputed to some degree within the Executive Branch. See id. ¶ 19(b). Newspaper articles published in May and June 2003 revealed that plaintiff Joseph C. Wilson IV, a former Senior Director for Africa at the National Security Council under President Clinton and the former U.S. ambassador to Gabon and São Tomé and Principé under President George H.W. Bush, id. ¶ 8, was sent to Niger in 2002 to investigate claims that Iraq had attempted to purchase uranium yellowcake from that country, id. ¶ 19(b), (i). Mr. Wilson's trip was reportedly taken at the behest of the CIA, in response to inquiries made by the Office of the Vice President into the alleged Iraqi activities. See id. Upon the conclusion of the Niger trip, and well before the State of the Union address, Mr. Wilson advised the CIA and the State Department that the allegations were based on forged documents and were wholly untrue. Id. ¶ 19(b), (i).
The first newspaper column recounting this information, which was published in the New York Times on May 6, 2003, referred to Mr. Wilson only as an unnamed former ambassador. Id. ¶ 19(b). In response to the article, defendant I. Lewis Libby, Jr., the Vice President's Chief of Staff and Assistant for National Security Affairs, id. ¶ 9, asked the Under Secretary of State for further information about the Niger trip, id. ¶ 19(c). The Under Secretary in turn directed the State Department's Bureau of Intelligence and Research to prepare a report on the trip. Id. On or before June 10, 2003, the Under Secretary received that report, which was labeled "Secret" and referred to Valerie Plame Wilson as a Weapons of Mass Destruction ("WMD") manager for the CIA. Id. ¶ 36. The particular paragraph mentioning Mrs. Wilson was prefaced with the letters "S/NF," which indicate that the information was both secret and not to be shared with foreigners. Id. Based on information gathered for this report, the Under Secretary informed Libby by early June 2003 that Mr. Wilson was the former ambassador in question. See id. ¶ 19(c). The Under Secretary also advised Libby by June 12, 2003, that Mr. Wilson's wife worked at the CIA and the scuttlebutt around the State Department was that she was involved in planning his trip. Id. ¶ 19(e). At about the same time, Libby spoke with a senior officer at the CIA, who told Libby that Mr. Wilson's wife worked at the CIA and was thought (erroneously) to have been responsible for Wilson's trip. Id. ¶ 19(f). Libby further learned from Vice President Cheney, who obtained the information from the CIA, that Wilson's wife worked in the CIA's Counterproliferation Division. Id. ¶ 19(h). Libby additionally heard, sometime between June 1 and July 8, 2003, that Wilson's wife worked at the CIA from the Assistant to the Vice President for Public Affairs, who in turn had learned that information "from another government official." Id. ¶ 19(t).
When a second article about the sixteen words and the Niger trip was published in the Washington Post on June 12, 2003, it also referred to Wilson only as a retired ambassador. Id. ¶ 19(i). The author of the Post article, Walter Pincus, had contacted the Office of the Vice President prior to its publication. Pincus's call generated discussions in the Office of the Vice President that involved Libby, among others. Id. ¶ 19(g). Two days after the Post article was published, Libby met with a CIA briefer and "expressed displeasure that CIA officials were making comments to reporters critical of the Vice President's office." Id. ¶ 19(j). Furthermore, on June 13, 2003, defendant Richard L. Armitage, Deputy Secretary of the Department of State, met with reporter Bob Woodward in Armitage's office at the State Department and told Woodward that Mrs. Wilson worked as a WMD analyst at the CIA -- information he had learned from a State Department memorandum. Id. ¶ 37.
A third related article, entitled "The First Casualty: The Selling of the Iraq War," appeared in the online edition of The New Republic on June 19, 2003. Id. ¶ 19(k). This article again referred to Mr. Wilson as an unnamed ambassador and quoted him anonymously as saying that officials in the Bush Administration "'knew the Niger story was a flat-out lie.'" Id. The article also accused the Bush Administration of suppressing dissent from the intelligence agencies with respect to Iraq's WMD capacity. Id. The publication of The New Republic article prompted further activity within the Office of the Vice President. Libby discussed the article with his principal deputy, who asked Libby whether he could counter the reports that Vice President Cheney had arranged for Mr. Wilson's trip by discussing that trip with journalists. Id. ¶ 19(l). Libby "responded that there would be complications at the CIA in disclosing that information publicly, and that he could not discuss the matter on a non-secure line." Id. Libby did, however, meet with reporter Judith Miller on June 23, 2003, and offered criticism of the CIA and "informed Miller that Wilson's wife might work at a bureau of the CIA." Id. ¶ 19(m).
Two additional publications are central to the events leading up to this action. First, an oped written by Mr. Wilson, entitled "What I Didn't Find in Africa," appeared in the July 6, 2003, edition of the New York Times. Id. ¶ 19(n). In that op-ed, Mr. Wilson asserted "that he had taken a trip to Niger at the request of the CIA in February 2002 to investigate allegations that Iraq had sought or obtained uranium yellowcake from Niger, . . . that he doubted Iraq had obtained uranium from Niger recently" and "that the Office of the Vice President had been advised of the results of his trip." Id. This information was also publicly conveyed by Mr. Wilson in the course of his appearance as a guest on the July 6 edition of the television show "Meet the Press," and in an interview with a reporter that provided the basis for a July 6 Washington Post article about the Niger trip. Id.
Subsequently, on July 14, 2003, several national newspapers, including the Chicago Sun Times and The Washington Post, published a column by writer Robert Novak that discussed the Niger trip. Id. ¶ 14. Novak's column stated, in relevant part: "[Joseph] Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction. Two senior administration officials told me Wilson's wife suggested sending him to Niger . . . ." Id. The publication of Novak's column revealed to the public, for the first time, Mrs. Wilson's "previously secret and classified CIA identity." Id. The disclosure of this information "destroyed her cover as a classified CIA employee." Id. The Government has conceded that Mrs. Wilson's identity was classified in July 2003 and that her "cover was blown" when Novak's column was published. Id. ¶¶ 21, 22.
According to plaintiffs, "[t]here is evidence that multiple officials in the White House discussed [Valerie Wilson's] employment with reporters prior to . . . July 14." Id. ¶ 33 (quoting Gov't's Resp. to Def.'s Third Mot. to Compel Disc. at 30 n.10, United States v. Libby, No. 05-cr-394 (D.D.C. Apr. 5, 2006)). For example, on or before July 8, 2003, Vice President Cheney informed Libby that President Bush "specifically had authorized Libby to disclose to New York Times reporter Judith Miller certain information from an October 2002 National Intelligence Estimate concerning Iraq and weapons of mass destruction in order to rebut Mr. Wilson." Id. ¶ 19(q). Libby met with Judith Miller on July 8, 2003. Id. ¶ 19(r). Libby and Miller discussed Mr. Wilson's trip: Libby "criticized the CIA reporting concerning Wilson's trip" and "advised Miller of his belief that Wilson's wife worked at the CIA." Id. Also on that day, Libby asked the Counsel to the Vice President "in sum and substance, what paperwork there would be at the CIA if an employee's spouse undertook an overseas trip." Id. ¶ 19(s).
On July 10 or 11, 2003, Libby was told by a senior White House official, thought by plaintiffs to be defendant Karl C. Rove, that Robert Novak would be writing a story about Wilson's wife based on a conversation that Rove had with him earlier that week. Id. ¶ 19(u). Libby conversed with the press again himself on July 12, 2003. He spoke first with Matthew Cooper, who asked whether Libby had heard that Mr. Wilson's wife was involved in sending Mr. Wilson to Niger; Libby confirmed that he had also heard that information. Id. ¶ 19(w). Libby then spoke with Judith Miller and discussed the fact that Mr. Wilson's wife worked at the CIA. Id. ¶ 19(x).
Rove, who held several positions in the Bush White House, including Deputy Chief of Staff and head of the Office of Political Affairs, id. ¶ 10, also spoke with reporters during this time period. On July 11, 2003, Matthew Cooper of Time magazine called Rove at the White House. Id. ¶ 27. Rove spoke to Cooper on the condition that the conversation was on "deep background," meaning that Cooper could use the information provided by Rove but could not quote it or reveal its source. Id. Rove then told Cooper that Mrs. Wilson worked "at the agency," clearly referring to the CIA, and that she "worked on 'WMD'" issues and had been responsible for sending Mr. Wilson to Niger. Id. ¶ 28. Rove ended the call by saying, "I've already said too much." Id. ¶ 29. According to Cooper, who later wrote a Time article about the incident entitled "What I Told the Grand Jury," his July 11 conversation with Rove was the first time he had heard about Mr. Wilson's wife. Id. ¶¶ 26, 28. Shortly after the publication of Novak's article, Rove also called Chris Matthews, the host of the television program "Hardball," and told him off the record that "Mr. Wilson's wife was 'fair game.'" Id. ¶ 30.
Plaintiffs also assert that Armitage spoke with reporters about Mrs. Wilson between the publication of Mr. Wilson's op-ed and the date of the Novak article. On July 6, 2003, the day that the op-ed appeared in the Times, Armitage directed that the Bureau of Intelligence and Research update its report on the Wilson trip and send the report to the Secretary of State. Id. ¶ 38. Armitage also met with Robert Novak at the State Department on July 8, 2003, and told Novak that Mrs. Wilson worked for the CIA on WMD issues. Id. ¶ 39.
The Wilsons initiated this lawsuit on July 13, 2006. The complaint originally named Libby, Rove, Cheney, and John Does 1-10 as defendants. The amended complaint, now the operative complaint, was filed on September 13, 2006, and substituted Armitage for one of the Doe defendants. Plaintiffs seek money damages for injuries they allegedly suffered as a result of the public disclosure of Mrs. Wilson's covert operative status. In particular, plaintiffs assert that they both fear for their safety and the safety of their children because they are potential targets for "those persons and groups who bear hostility to the United States and/or its intelligence officers." Id. ¶ 42. Additionally, both plaintiffs allege that they have been impaired in pursuing professional opportunities, id. ¶ 44, and that Mrs. Wilson was unable to continue with her chosen career path at the CIA, id. ¶ 43.
Now pending before the Court are motions to dismiss filed by each of the four named defendants. The United States has also filed both a Statement of Interest and a motion to dismiss. On May 17, 2007, the Court heard argument on the many issues raised in these motions.
All that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. ___, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. ___, 127 S.Ct. 2197, 2200 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp., 127 S.Ct. at 1964-65; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp., 127 S.Ct. at 1965 (citations omitted). Hence, although "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is impossible, and 'that a recovery is very remote and unlikely,'" id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the "threshold requirement" of Fed. R. Civ. P. 8(a)(2) is "that the 'plain statement' possess enough heft to 'sho[w] that the pleader is entitled to relief,'" id. at 1966 (quoting Fed. R. Civ. P. 8(a)(2)).
The notice pleading rules, however, are not meant to impose a great burden on a plaintiff. Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005); see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13 (2002). When the sufficiency of a complaint is challenged by a motion to dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. Leatherman v. Tarrant County Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 973 (D.C. Cir. 1979); see also Erickson, 127 S.Ct. at 2200 (citing Bell Atl. Corp., 127 S.Ct. at 1965). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, "the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal v. MCI Commc'n Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); see also Domen v. Nat'l Rehab. Hosp., 925 F. Supp. 830, 837 (D.D.C. 1996) (citing Papasan, 478 U.S. at 286).
Under Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction. See Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (noting that court has "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority"); see also Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 18 (D.D.C. 1998). A court must accept as true all the factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), and the plaintiff should receive the benefit of all favorable inferences that can be drawn from the alleged facts. See Leatherman, 507 U.S. at 164; EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997).
Plaintiffs have asserted five causes of action in their amended complaint. Four are what are commonly known as Bivens claims: they seek money damages directly under the Constitution for alleged violations of plaintiffs' constitutional rights. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The fifth cause of action, for the public disclosure of private facts, is asserted under District of Columbia tort law. Because ...