The opinion of the court was delivered by: Beryl A. Howell United States District Judge
According to media reports, on February 17, 2003, United States and Italian intelligence agents kidnapped an Islamic cleric and suspected terrorist named Hassan Mustafa Osama Nasr, also known as "Abu Omar," in Milan, Italy and flew him to Egypt, where he was interrogated and tortured. Although both U.S. and Italian government agents allegedly carried out this "extraordinary rendition" of Abu Omar, an Italian prosecutor launched a criminal investigation in 2004 into the alleged kidnapping. The plaintiff in this case, Sabrina De Sousa, is a former employee of the U.S. State Department who was assigned to the U.S. consulate in Milan at the time of the alleged Abu Omar kidnapping. She returned to the United States in early 2004 after finishing her tour of duty in Italy. Subsequently, the Italian prosecutor charged her and others with allegedly participating in planning the Abu Omar operation on behalf of the Central Intelligence Agency ("CIA"). While the plaintiff denies having any involvement in the alleged kidnapping of Abu Omar, she was convicted in absentia in an Italian criminal proceeding in 2009 and sentenced to five years in prison. The plaintiff brought this civil lawsuit against the State Department and the CIA alleging, inter alia, that these agencies violated her constitutional rights by failing to assert diplomatic or consular immunity on her behalf in the Italian courts and by allowing defamatory information about her to spread unchecked. The government agencies have moved to dismiss the plaintiff's lawsuit. The plaintiff opposes the motion to dismiss and has moved for leave to file a Second Amended Complaint. For the reasons explained below, the motion to dismiss is granted and leave to file a Second Amended Complaint is denied.
The plaintiff filed the initial Complaint in this case on May 14, 2009. ECF No. 1. The plaintiff subsequently filed a First Amended Complaint, with leave of the Court, over a year later, on June 4, 2010. Am. Compl., ECF No. 17. The Amended Complaint alleges the following facts.
The plaintiff is a naturalized U.S. citizen born in India who served as a Foreign Service Officer for the U.S. State Department from 1998 to 2009. Am. Compl. ¶ 3. In August 1998, she was assigned to the U.S. Embassy in Rome, Italy as a Political Officer, Second Secretary. Id. ¶ 17. In May 2001, she was transferred to the U.S. Consulate in Milan as a Vice Consular Officer for a tour of duty scheduled to end in May 2004. Id. ¶ 18. Her employer provided her with a United States government diplomatic passport that explicitly stated that she was abroad on a diplomatic assignment. Id.
On February 17, 2003, the plaintiff was vacationing at a ski resort in Madonna di Campiglio, Italy, approximately 130 miles from Milan, Italy. Id. ¶ 19. According to news reports, on that same day, U.S. and Italian intelligence agents kidnapped Abu Omar in Milan and, in an act of "extraordinary rendition," transported him to Egypt, where he was interrogated and tortured. Id. ¶¶ 20-21.
In January 2004, the plaintiff's tour of duty in Italy ended and she returned to the United States, where she continued to work for the State Department. Id. ¶ 23.
In April 2004, an Italian prosecutor opened a criminal investigation into the alleged kidnapping of Abu Omar. Id. ¶ 24. Primarily by analyzing cell phone records, the prosecutor uncovered substantial evidence allegedly revealing that the CIA coordinated the abduction of Abu Omar with Italian intelligence agents. Id. ¶¶ 24-28. The investigation eventually led the prosecutor to search a villa belonging to Robert Seldon Lady, allegedly the CIA station chief in Milan. Id. ¶¶ 29, 52. That search yielded evidence tying Lady to the rendition. Id. ¶ 29.
In July 2006, the prosecutor issued an arrest warrant for De Sousa, whom he identified as one of the four U.S. officials mainly responsible for the alleged kidnapping. Id. ¶ 31. The warrant against De Sousa is a EUROPOL warrant, meaning that if she attempts to enter any country in the European Union, she faces immediate arrest and transfer to Italian authorities.
Id. ¶ 63. Countries outside the European Union could also choose to arrest and extradite her to Italy. Id. Arrest warrants were also issued for several other alleged U.S. and Italian agents. Id. ¶ 31. Around the time that her arrest warrant was issued, the plaintiff wrote to then-Secretary of State Condoleeza Rice requesting that the U.S. government invoke diplomatic or consular immunity with respect to her alleged involvement in the kidnapping of Abu Omar and provide her with legal representation to counter the charges in the Italian criminal case. Id. ¶ 58. She did not receive any response. Id.
Abu Omar ultimately was not charged with a crime and was released in February 2007. Id. ¶ 30. That same month, an Italian judge indicted 26 U.S. government officials, including the plaintiff, for their alleged roles in the kidnapping. Id. ¶ 32. Six Italian officials were also charged. Id. ¶ 34. Abu Omar, for his part, filed a separate civil suit in Italy. Id. ¶ 32. The plaintiff's employer instructed the plaintiff not to communicate with her Italian government-appointed defense lawyer or with the media. Id. ¶ 40.
In October 2008, the plaintiff requested approval from her employer to take a vacation to visit family members in India, but the request was denied because of concern that the outstanding EUROPOL warrant for De Sousa might lead to her arrest and extradition to Italy. Id. ¶ 60.
In early 2009, the plaintiff again wrote to the Secretary of State -- by then Hillary Clinton -- requesting official government assistance with the Italian case, but she again did not receive a response. Id. ¶ 61. On February 13, 2009, the plaintiff resigned from her employment with the U.S. government. Id. ¶ 66.
In August 2009, approximately three months after the plaintiff's filing of this action in May 2009, the U.S. government agreed to provide the plaintiff with defense counsel in Italy. Id. ¶ 44.
On November 4, 2009, the Italian judge issued convictions for 23 of the U.S. officials charged with involvement in the Abu Omar rendition, including the plaintiff, who was sentenced to five years in prison. Id. ¶ 38. Lady received a sentence of eight years. Id. The Italian judge found that a third alleged CIA operative, Jeffrey Castelli, the alleged CIA station chief in Rome, could not be convicted because he possessed diplomatic immunity. Id. The plaintiff's conviction is currently on appeal in Italy. Hr'g Tr. at 16-17, Sept. 16, 2011.
Abu Omar separately obtained a $1.5 million civil judgment against the plaintiff and other U.S. officials. Am. Compl. ¶ 39.
At the time of filing, the First Amended Complaint alleged claims against the Department of State, the Secretary of State, the Department of Justice, and the CIA (collectively, the "agency defendants"). The First Amended Complaint also alleged claims against three individuals: Robert Seldon Lady, Jeffrey Castelli, and Susan Czaska, another alleged CIA agent. Id. ¶¶ 8-10.
The first cause of action in the Amended Complaint claimed that the State Department violated the Administrative Procedure Act by failing "to either invoke or expressly waive diplomatic/consular immunity for De Sousa." Id. ¶ 80.
The second cause of action claimed that the State Department deprived De Sousa of liberty without due process of law in violation of the Fifth Amendment to the U.S. Constitution. Id. ¶¶ 84-94. Specifically, the plaintiff alleged that the State Department "constructively permitted inaccurate and defamatory information regarding De Sousa to be publicly reported world-wide and to be utilized as a basis for her criminal conviction," and that "[t]his information has publicly impugned De Sousa's reputation such that she is broadly precluded from pursuing her chosen profession." Id. ¶ 88. The State Department allegedly "failed to accord De Sousa any semblance of due process and denied her full administrative rights, including an internal name-clearing hearing," and, as a result, "De Sousa was effectively forced to resign." Id. ¶¶ 89-90. "Because De Sousa was not afforded due process rights before or after she was constructively forced to resign, she was deprived of the ability to challenge the accuracy of the evidence underlying the Italian proceedings and which can be found within her personnel and/or security files at [the State Department]." Id. ¶ 91. The plaintiff concludes that the State Department has "consequently automatically excluded De Sousa from participating in her chosen profession," depriving her of a liberty interest in pursuing her chosen profession. Id. ¶ 92.
The third cause of action claimed that the State Department violated the plaintiff's Fifth Amendment right to travel. Id. ¶¶ 95-103. According to the Amended Complaint, as a result of the State Department's actions, including failing to waive or assert immunity for De Sousa, she is "no longer able to travel outside the territorial boundaries of the United States, as she risks arrest and criminal imprisonment." Id. ¶ 100.
In the fourth cause of action, pled against the Department of Justice under the Westfall Act, 28 U.S.C. § 2679(d)(3), the plaintiff purported to invoke "her right to petition the Court, or alternatively the Attorney General, for a determination concerning whether De Sousa's alleged conduct fell within the scope of her employment." Id. ¶ 115.
The fifth cause of action, similar to the second cause of action, pled a claim for a Fifth Amendment due process liberty interest violation based on the preclusion of her ability to pursue her chosen profession. Id. ¶¶ 116-29. This count, however, is premised upon De Sousa's "alleged capacity as a CIA employee," as conveyed in news reports, and is therefore targeted at the CIA, rather than the State Department. Id.
Finally, the sixth, seventh, and eighth causes of action allege claims under the Bivens doctrine against the three individual defendants, respectively, for purported violations of De Sousa's Fifth Amendment rights. Id. ¶¶ 130-162.
The Amended Complaint asked the Court for various injunctive and declaratory relief, including requiring the U.S. government to "formally invoke or expressly waive diplomatic and/or consular immunity on behalf of De Sousa with respect to the Italian criminal and civil proceedings," ordering the defendants "to expunge all records or information that are inaccurate, derogatory or infringe upon De Sousa's express or implied constitutional or statutory rights," and awarding the plaintiff reimbursement of expenses and attorney's fees. Id. at 34-35.
C. Response To The First Amended Complaint And Disputes Over Classified Information
On August 19, 2010, the agency defendants and the individual defendants filed separate motions to dismiss the First ...